Archive for the ‘civil liberties’ Category


The tempering of experience by hope

July 6, 2008

The FISA Amendments Act of 2008 (FISAAA, HR 6304), due to be voted on in the Senate on July 8, is a horror of a bill which essentially rips up the fourth amendment, leaving only sufficient shreds for Congress to clutch to its collective groin as a fig leaf. A quick summary of some of its bad features may be found on this ACLU webpage.

(As long as I’m throwing links around, here’s a .pdf of the original FISA as it was written in 1978 . It has been amended several times since.) [UPDATE: Cornell University has a copy of FISA as of January 2006, very nicely cross-linked with HTML.]

In Obama’s brief announcement that he would support the bill, he referred twice to a provision in the Act calling for an Inspectors General investigation. In his disappointingly disingenuous response to his anti-FISAAA supporters, he mentioned it yet again. That suggests this IG investigation is worth a closer look. The provision is set forth in Title III of the bill, pp. 95 to 101 of the PDF.

(It is not to be confused with the mandate, earlier in the bill at 702(l)(2), for ongoing oversight of each “element of the intelligence community” by its own individual IG, alluded to on the ACLU webpage.)

The IG investigation:
(1) Covers “The President’s Surveillance Program” – which is very broadly defined to cover all intelligence activity authorized by Bush between 9/11 and January 17, 2007. It would have been nice if it also covered the period between inauguration and 9/11, during which Qwest was asked to perform illegal wiretaps. But you can’t have everything.
(2) Is to be conducted jointly by all the affected IGs. And they are required to assist each other, not allow the investigation to be compartmentalized. To avoid having the effort led by an IG who happens to be a Bush stooge (most of them have not been), the Act asks the IGs themselves to pick their leader.
(3) Is authorized to expand the specific topics of interest to “any other matters identified by any such IG that would enable that IG to complete a review”.
(4) Authorizes any expansion of staff the IGs feel is needed to conduct the review.
(5) Requires the IG and their staff to be expeditiously granted security clearances. Heel dragging on clearances has been used by Bush to quash previous Congressionally mandated investigations.
(6) The report is to be submitted to Congress “not later than 1 year after the date of enactment of this Act”, and must be unclassified, though it may have classified appendices. So no matter how much Bush stonewalls, there’s still going to be six months of Barack administration in which to do real investigation. And the product won’t be something to be whispered about only by the Gang of Eight behind soundproofed doors.

I see just one loophole in all this, and it’s that “not later than”. Bush could try to stonewall, and also try to force the IGs to submit their report before his term ends, so it contains only the information he felt like letting them see. Frankly, though, it’s not clear to me that he has an ounce of leverage to force a bad report out.

It sets a terrible precedent for the Telecoms to be granted immunity. It is an announcement to all players in the future: When the President tells you to do something you know is illegal, do it anyway, and you’ll get off scot free. But the central sticking point with the immunity provision has always been that the civil suit had been the last available avenue for prying open the secrets of Who Bush Really Spied On. Any investigation launched by Barack after the election would be drowned out in howls from the right wing and its captive media of “partisan witch hunt”. This IG mechanism provides another avenue of discovery, which happily affords no opening for those ritual howls. The right wing to a man will have voted for the investigation, and Bush (albeit with Addington helping him to cross his fingers behind his back with yet another signing statement) will have signed off on it.

The report may, of course, be born into the world with its infant wails unheard by the media. But Obama will at that point have the bully pulpit in his hands. It is the one method that could manage to get a genuine investigation under way without awakening the High Broderist wrath of the media, which is always as offended at investigations of Republicans as it is eager for investigations of Democrats. The facts, once out, might generate momentum of their own.

Of course, all those other terrible elements of the bill remain: the “exigency” rules which swallow all the other rules. The permission to listen to every single call in or out of the country. The fact that once the FISA court gives its blessing to a general method of wiretapping, it is not permitted to know or enquire what actual specific taps are laid, who is listened to or why. And so on.

The fact is, Bush will continue doing all those things, without notifying the FISA court, regardless of what the law may be. So will the passage of those nasties have any practical effect? Only if you believe either of the following propositions:

(1) Obama is planning to use this vote, not just as cover for the election, but so he can abuse the fourth amendment once in office. That strikes me as unlikely, even if (as I also think unlikely) the idea tempted him. He knows the press that gave George W an unending free ride will go back to Clinton rules, casting a hawk-like eye over every potential misstep. Or:
(2) If McCain entered the White House with only the old FISA in place, he would ignore the advice of all the neocons with whom he has surrounded himself, reverse Bush’s power grabs, and meekly follow the law. That’s also highly unlikely. It is not the law before whom he has been meek the last eight years; it is the demands and the conventional wisdom of the radical right.

So it could be argued that, from Obama’s point of view, that loathsome as it is <em>qua</em> law, the practical effect of FISAAA’s passage or defeat on who is actually spied upon will, in our post-rule-of-law era, be exactly nil.

From the point of view of a citizen who cannot read Obama’s mind, unfortunately, that argument utterly fails. It is an argument that we should trust Obama with tyrannical powers, when in fact as the Founders wrote, we should not trust even “the best of men” with them.

On July 8, it will become apparent that, will we or nill we, we shall perforce have to trust one or the other, Barack or Saint John, to love the Constitution more than power. Saint John has already declared his unshakable disgust even for habeas corpus. Though the choice may be one that would have made Adams and Jefferson weep, thanks to Saint John’s public capitulations on habeas, on torture and rendition, on use of coerced testimony, on choice of Supreme Court justices, it will also be a no-brainer.


Handicapping the Tunguska event

June 29, 2008

This isn’t the “all manner of thing will be well” post I adumbrated. It’s a stray FISA thought brought on by a scientific anniversary.

Every so often, Nature publishes a themed issue. For 26 June, the theme is astronomical collisions.
The lead editorial talks about the catalog of near-earth asteroids that’s been developed since the 1980s. When the catalog was originally proposed, the idea met with some active resistance from astronomers. It wouldn’t really give us any new science, just a lot of boring detail, and the acquisition would have an opportunity cost on more instructive research.

But now we have all the asteroids capable of producing a mass extinction event under our sights; it’s a good thing that we do, and it’s been good PR for astronomy. There’s a tendency to consider the job done. However, there’s a huge population of lesser asteroids that could still be pretty devastating, from the point of view of the layman, if not from a planetary perspective. The editorial recommends beginning the larger survey, but in an incremental way rather than as Big Science.

Imagine an unspotted asteroid laying waste to a significant chunk of land, as happened in the Tunguska region of Siberia 100 years ago this week; and imagine if that area, unlike Tunguska and a surprising amount of the globe today, were populated. The politician or scientific adviser who had dismissed such a disaster as being too improbable to bother with would be in dire straits. Politicians know in their bones that unlikely events matter.

Last summer, Director of National Intelligence McConnell took congressional Democrats aside and told them a terrorist hit on DC was likely over the August recess. It was a lie. The Dems swallowed it hook, line and sinker. And so the “Protect America Act”, authorizing massive warrantless wiretapping of American citizens, was passed.

Over at the Unclaimed Territory blog, Glenn Greenwald, peace be upon him, has been pointing out that fear of “looking weak on terror” by letting the PAA lapse is groundless. Several Republicans have run against Dems in Republican districts lately, using precisely that attack. And the Democrats who have said, “No, surveillance has to be overseen by courts and Congress, it can’t be left to one man’s say-so” have won handily. That fear tactic has been defanged. And the polls show it, too.

That’s right as far as it goes, and it’s true that many Vichy Democrats are paralyzed by exactly that outmoded bogeyman. But I would suggest that there’s another political calculus, which may be behind Obama’s decision to defuse the FISA issue, even if he has to temporarily deep six the Constitution to do it. A calculus based not on fear of being called soft on terrorism for opposing the FISA extension, but on what would happen politically in the case of a Tunguska event.

Not to put too fine a point on it, if Obama were to lead an assault on HR 6304, and succeed, and if before the election there were another major Al Qaeda attack in the US, Bush would flood the media with a false but unfalsifiable claim: that the warrant that would have prevented the attack was tangled in the (nonexistent) “red tape” of the old FISA laws. And with that, any chance of keeping the White House out of the hands of McCain and his neocon handlers for the next four years would be blasted to green glass.

That probably won’t happen. But it isn’t all that unlikely. It wouldn’t take another September 11. Close enough to Election Day, a Madrid level attack would suffice. The chances of such an attack in any given year are surely over 5%. Considering that Al Qaeda wants to keep the neocons in power, once they have an operational plan, they will try to time the attack to coincide with an election. So it’s more likely this year than at any time since 2004. Given Al Qaeda’s resurgence in Waziristan, and the rate at which opium wealth has been pouring into their coffers, it is really more likely than at any time since 2001. And AQ may feel they need to move quickly, because although their wealth and military strength have been growing, their brand is hurting of late. Recent surveys, in Iraq and elsewhere, indicate they are getting a rep for blowing up fellow Muslims rather than infidels, and are being taken less seriously as a result. They need a return to America, or at least to Europe, to bolster recruiting.

Obama is free to forthrightly champion the rule of law – by loudly opposing telecom amnesty and, more substantively, by cheering the restoration of habeas, as he did earlier this month. No October attack could be laid to the telecoms having to spend a little time in court, nor to the fact that a few Guantanamo inmates are finally allowed to spend a little time in one. He can meet any political risk in those stances head on, by educating the public. But if he were to squash the FISA amendments, and Al Qaeda chose October to make its next move, the nation would no more be in the midst of a teachable moment than it was through the awful panicked year of 2002.

I don’t know if that’s his reasoning. (For that matter, I don’t know whether the congressional leadership would give up their love affair with amnesty on his say-so anyhow.) But if it is, he might well be right that the time to fully crank up the country’s long overdue basic instruction in the Bill of Rights will only come once he stands safely behind the Bully Lectern.


The triumph of experience over hope

June 24, 2008

Since Harry Reid and Nancy Pelosi conspired last summer to keelhaul the fourth amendment with the “Protect America Act”, I have suspended all my contributions to the DSCC and DCCC. With every solicitation from those bodies, I’ve mailed back CHOICE WORDS IN CAPS explaining that I am an American first, and a Democrat second, and if they ever want to see money from me again, they will have to stop suffocating the Bill of Rights in the Capitol basement. I got fully on board with the dailyKos mantra of “more and better Democrats” – except that from now on I am going to let someone else worry about the “more” part.

I spent last week in an ecstasy of cold fury, watching my party’s so-called “leaders”, bend heaven and earth not only to grant George W. Bush and John McSame carte blanche to listen in on every last one of us, but also to establish a firm precedent that anyone who breaks the law, provided he does so at the President’s behest, may expect a Get Out of Jail Free Card.

Then Barack Obama announced that he too would vote for what is in effect the Let George W. Bush Wiretap Whoever The Hell He Wants bill. On the bright side, he promised to cast an ineffectual vote in favor of an amendment (which he knows will fail) to at least strip retroactive immunity from the bill. And once that charade is played out, he will give the whole wretched mess his blessing.

So much for hope. Barack in a stroke managed to transform my anger into something very like despair.

In the following days, I’ve read through most of HR 6304. I won’t go into details in this post, but it’s as bad as you thought, and it’s worse than that. And I have wrestled with the awful cognitive dissonance of wanting to continue to hope for a transformative presidency from Barack Obama, and knowing what a profound betrayal this vote is going to be of even his senatorial oath of office. I keep being tempted to make excuses for him, to fit this breathtaking capitulation into the narrative I had been forming of his character.

Today, a seemingly unrelated story broke that strengthens the temptation. It was this one, the publication of the first report (pdf) from the Department of Justice’s Inspector General concerning the blatant and illegal politicization of the Department by the Bush administration (in the person of Monica Goodling), including the destruction of personnel records in order to cover up that corruption.

Inspectors General are appointed by the President. Yet, more often than not, IGs under this administration who have been tasked by Congress with conducting oversight into various executive departments have come back with honest, and damning, results. Being criminal and ethics-free themselves, the Bush/Cheney cabal have over and again (Ashcroft and Comey are other examples that spring immediately to mind) made the error of assuming that lifelong, politically committed Republicans, once appointed, will automatically also be criminal and ethics-free. Happily, except for judges properly vetted by the Federalist Society, that assumption has often failed them.

One very puzzling thing about the new FISA amendments, found in Title III, Section 301 of the Act, is the provision for an investigation of the Administration’s warrantless wiretap activities by a group of Inspectors General. Puzzling because I really can’t suss out why Bush was willing to agree to it. In his short announcement of his support for the bill, Obama mentioned this provision twice. Perhaps it poses a real danger of accountability, and the Cabal remain blind to the danger because of that constitutional failure to internalize the possibility that not all Republicans are as corrupt as they and their congressional cronies.

My next post (if I get around to posting) will look more closely at III (301), and present the devil’s advocate case that Barack knows what he’s doing in supporting the bill formerly known as Hoyer’s Folly, and that all manner of things will be well.


King George’s denial of habeas

June 6, 2007

One of the recurrent themes of Glenn Greenwald, as well as of the handful of honest conservatives who have spoken out against Chancellor Bush’s headlong assault on America’s civil liberties, is that the assault is not in the least conservative under any previously known meaning of that word. From its embrace of torture, its normalization of secret and indefinite detention, to its revocation of <em>habeas corpus</em>, all upon the unreviewable assertion of “unlawful enemy combatant” status by a single monarch, the program has rather been radical.

The intellectual godfather of all conservatism was Edmund Burke. As Harper’s reminds us, Burke had his own view of whether habeas should apply to “unlawful enemy combatants”, who in his day were called “pirates”. It stood in stark contrast to the view of the pseudo-conservatives who seized power in December of 2000.

At the behest of an English King George, by the parliamentary mediation of one Lord North, an Act had been passed providing for the elimination of habeas corpus for those whom, at the sole discretion of the chief executive, had been declared unlawful enemy combatants pirates. These hapless individuals were held under inhumane conditions outside the normal jurisdiction of courts (in the holds of ships rather than in a Cuban stockade.) Far from the reach and norms of English law, they were to be tried and executed by summary informal military courts.

His position required Burke to transmit copies of these acts to sheriffs in his district. He did so with an accompanying letter urging them to disregard the King’s lawless law.

I therefore could never reconcile myself to the bill I send you, which is expressly provided to remove all inconveniences from the establishment of a mode of trial which has ever appeared to me most unjust and most unconstitutional. Far from removing the difficulties which impede the execution of so mischievous a project, I would heap new difficulties upon it, if it were in my power. All the ancient, honest, juridical principles and institutions of England are so many clogs to check and retard the headlong course of violence and oppression. They were invented for this one good purpose, that what was not just should not be convenient. Convinced of this, I would leave things as I found them. The old, cool-headed, general law is as good as any deviation dictated by present heat.

No one can miss the exquisitely conservative tone of Burke’s appeal to honored tradition, against the hot-headed emotionalism of the moment. The contrast with the anti-liberal, anti-conservative tone set by Bush, and echoed by nearly all the Republican candidates at this week’s presidential debate, could scarcely be sharper.

Harpers’ Scott Horton goes on to observe:

And today, in the Military Commissions Act, what has Bush and his crew done that can be distinguished from Lord North’s measures? Very little, in fact. The past echoes in tyrannical excess. The Bush program is indeed more ruthless, more comprehensive in its drive to extirpate the great principles of our nation and its constitution.

Oh yes. Exactly who were those vermin insurgents who by Lord North’s design were to be stripped of habeas corpus, subjected to military trials with no rights and held in the crudest and most abusive conditions? They were the Americans, and the conflict was our Revolution.


Infinite jeopardy round

February 21, 2007

“I’ll take Bush Administration Totem Animals for 200, Alex.”Gitmo totem animal
“Inspired design of the Combatant Status Review Tribunals”
“Ka- ka- ”
“Could you phrase that as a question, please?”
“What is a kangaroo?”

Enterprising scholars at Seton Hall University law school in New Jersey have combed through what little has been pried loose from the secretive bowels of the torture-happy Cheney Administration’s operations at Gitmo, and emerged with this salubrious report. (pdf format).

The Defense Department responded to 2004 instructions from the Supreme Court, in both Rasul and Hamdan, that detainees must be granted habeas corpus access to federal courts, by setting up a system of combatant status review tribunals (CSRTs), to determine whether detainees were “illegal enemy combatants”.

Of 558 detainees who went through the tribunal process, federal courts forced Gitmo to release tribunal records for 102 of them. The Seton Hall study analyzes those 102 reluctantly coughed up records. If nothing else, take a peek at the first two pages, the executive summary. None of the tribunals granted any right to counsel. A “personal representative”, usually shockingly passive (meeting the defendant only once in 78% of the cases, sometimes for as little as 10 minutes, often not bothering to speak at the hearing), was assigned by the DoD.

The evidence against them was secret; neither they nor their representatives were permitted to see it when it was classified, and rarely permitted to do so when it was not classified. In no instance did the unclassified “evidence” provide any clue as to why they were being considered enemy combatants. The rules of the proceeding required the three tribunal judges to assume that the secret evidence was “reliable and accurate”. The secret evidence could include material obtained under torture; it could include hearsay from anonymous informants.

The government called no witnesses in any of the hearings. The defendants were permitted to ask for witnesses, but not a single requested witness (other than a handful of other detainees, presumed to be sworn enemies of the United States) was allowed to testify.

This is what Cheney and Bush and Rumsfeld and Gonzales call “justice”. It gets better. From the executive summary:

14. In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to be no longer an enemy combatant by two Tribunals, before a third Tribunal was convened, which then found the detainee to be an enemy combatant.

15. When a detainee was initially found not/no-longer to be an enemy combatant:

a. The detainee was not told of his favorable decision;

b. There is no indication that the detainee was informed of or participated in the second (or third) hearings;

c. The record of the decision finding the detainee not/no-longer to be an enemy combatant is incomplete.

You are presumed guilty until proven innocent. Then you are presumed guilty again and again and again until judges can be cycled in who will ignore the proof of innocence.

It has been said that military justice is to justice as military music is to music. That’s as may be. What’s clear is that Bush justice is to justice as the screams of the slowly dismembered are to music.


How the Grownups Do It

October 18, 2006

Below: Shiny happy people clapping hands.

Yesterday, Chancellor Bush signed into law the “Yes, Virginia, America Stands for Kidnapping, Rendition, Life Imprisonment Without Charges, Torture, and Amnesty for War Crimes Act of 2006”, more affectionately known to its friends as the Military Commissions Act. The full text of the bill as signed may be found on the GPO site. (That was pdf, the plaintext is here.) I’ve slogged through all the pages of depressing verbiage, and no one sums it up more clearly or succinctly than T Bogg:

Secret prisons.
Hearsay evidence.
No habeas petitions.
Kangaroo courts.
Star chambers.

None of these things, of course, are remotely necessary in order to “protect us from terrorists”. Over in the state of Israel, which in the face of enormous security pressures and despite the general dominance of its hawkish party, has managed to remain a vibrant democracy and to harbor a press expressing a far wider range of views than the USA permits, they don’t do any of this. Prisoners are charged with crimes, or they’re released. Judges insist on respect for the constitution. The executive branch submits to and respects judicial decisions.

According to Israeli government figures, terrorists killed 1,123 of its citizens between September of 2000 and May of 2006 – the equivalent, in that country of just over six million, of around 54,0000 American deaths. That’s 20 September 11s. And that doesn’t even count the bloodshed of the preceding five decades. Israelis know terrorism. They know what it takes to deal with it, face it down, and survive it. What do our more experienced, and more freedom-loving, allies have to teach us?

Israel enacted its own Unlawful Combatants Law in 2002, with the purpose of providing a domestic legal framework for the prolonged detention of terrorists. Rejecting the terrorists’ status as prisoners of war, the law instead provides for holding them “until the end of hostilities.” …Unlike the US bill , the Israeli law provides for a first hearing of the detainee before a high-ranking officer immediately upon his detention; a detainee has a right to legal representation; a first judicial review of the detention warrant has to take place in a district court no longer than 14 days after the first arrest, and every six months thereafter; and the detainee can appeal his detention before a Supreme Court j udge. The court must revoke the detention order if it finds that the release of the detainee would not threaten national security or if there are other special reasons that justify it.

Regulations promulgated under the law stipulate conditions for detention. These include provisions on medical treatment, clothing, food (including the right to purchase items in a canteen), outdoor exercises, religious practices, correspondence with the outside world, and even cigarettes. Unlike the US bill, in Israel, the detainee also has a right to meet with representatives of the International Committee of the Red Cross.


Bush’s new breed of rape shield law

October 4, 2006

While we’re discussing signing statements, here’s a great catch by Daisy Cutter at dailykos.

By overwhelming bipartisan majorities, Congress in 2003 passed a law empowering the aggressive investigation of instances of prison rape. Bush’s signing statement reserved the President’s right to stonewall any such investigation.

In more halcyon days, rape shield laws were intended to protect victims. Bush’s idea of a rape shield law is apparently one which enables the government to protect those noble Americans who have raped prisoners on behalf of the state.

When the Torture Act of 9/28/06 was passed, it detailed a very short list of acts prohibited to the President: torture (however the President chooses to define it), murder, maiming, and rape. If, however, rape should be used as a torture technique in defiance of the Torture Act, the 2003 signing statement permits the President to guarantee that the act will never be investigated.

Say what you will about Chancellor Bush. This is a guy who thinks ahead. He had the foresight to carve out exemptions from the meager constraints of his own Torture Law, three years before he knew he would get the Reichstag to pass it.