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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Thursday, 28 September 2006
The Big Day
Topic: The Law
The Big Day
Some might argue that Thursday, September 28, 2006, was a defining day in American history, and you don't get those too often.

Daniel Froomkin at the Washington Post was working on that idea here -
Today's Senate vote on President Bush's detainee legislation, after House approval yesterday, marks a defining moment for this nation.

How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?

The legislation before the Senate today would ban torture, but let Bush define it; would allow the president to imprison indefinitely anyone he decides falls under a wide-ranging new definition of unlawful combatant; would suspend the Great Writ of habeas corpus; would immunize retroactively those who may have engaged in torture. And that's just for starters.

It's a red-letter day for the country. It's also a telling day for our political system.

The people have lost confidence in their president. Despite that small recent uptick in the polls, Bush remains deeply unpopular with the American public, mistrusted by a majority, widely considered out of touch with the nation's real priorities.

But he's still got Congress wrapped around his little finger.

Today's vote will show more clearly than ever before that, when push comes to shove, the Republicans who control Congress are in lock step behind the president, and the Democrats - who could block him, if they chose to do so - are too afraid to put up a real fight.

The kind of emotionless, he-said-she-said news coverage, lacking analysis and obsessed with incremental developments and political posturing - in short, much of modern political journalism - just doesn't do this story justice.
Was it that big?

There was this item - "A $75 million project to build the largest police academy in Iraq has been so grossly mismanaged" and "so poorly constructed that feces and urine rained from the ceilings in student barracks." Don't you just love symbolism? Everyone was saying the was "the" key project in Iraq - the cornerstone of the new post-war Iraq, which will obviously become a placid place where no one si killing each other and the well-liked police are directing traffic and investigating petty crimes. It seemed that turned to… well, you see. The contactor involved was the giant international firm Parsons, based out here in Pasadena - they oversaw the project t. They've received a billion dollars in federal contracts for work in Iraq. Their record? They were the folks who managed the "Big Dig" construction project in Boston (see this), and apart from people dying and having to closed the tunnels under Boston Harbor for retrofitting, that went well too. The last time anyone looked, their tall headquarters building a block north of Old Town in Pasadena is still standing, but they didn't build that. Their executives may be good friends with key people in the administration - but you just don't hand the now less-than-happy Iraqi citizens a symbol like the policy academy from hell. This was a potent story. It got buried.

And so did this - Former New York mayor Rudy Giuliani said, "The idea of trying to cast blame on President Clinton [for 9/11] is just wrong for many, many reasons, not the least of which is I don't think he deserves it." What? What about the emotionless, he-said-she-said news coverage, lacking analysis and obsessed with incremental developments and political posturing - in short, much of modern political journalism? Shouldn't they report a major Republican figure just doesn't want to play in that sandbox? This also was a potent story. It got buried.

So did this - "Most of the 9 million uninsured children in the US live in homes where at least one parent works full time - in more than one-quarter of the cases, there are two working parents." The healthcare crisis is not "news" - it's not sexy or scary. The implications are huge, but they are, after all, implications.

And as for our upcoming war with Iran, one sees here that seventy percent of Americans oppose the use of US ground troops in Iran. Only nine percent favor even airstrikes on selected targets in Iran, while forty-five percent said we should increase our diplomatic efforts with allies and work something out. Karl Rove has some work to do. Dick Cheney is muttering under his breath again. But this item got sidetracked.

Out of the UK we see this - a report from the UK Ministry of Defense says the Iraq war has acted as a "recruiting sergeant" for Islamic extremists, and describes the west as being "in a fix." There's a consensus building. The same newspaper also reported this - "Scientists have uncovered evidence that levels of the greenhouse gas methane will rise sharply in the next few years, warming the planet faster than previously expected." No one has time for the British papers, or the British.

And no one had time for cultural notes - John E. Jones III, the district judge who "struck down a Dover, Penn., school board's decision to teach intelligent design in public schools said he was stunned by the reaction, which included death threats and a week of protection from federal marshals." Death threats? Federal protection? Those who love Jesus have been kicking things up a notch. Armed Christian evangelicals willing to take out those who stand in the way of His Word is a bit of an escalation. But then, no one shot him. So it's not news.

Nor was it news when the UN weighed in here - "New explosive devices are now used in Afghanistan within a month of their first appearing in Iraq," concludes a new United Nations report on Iraq, which "echoe[s] many of the dire predictions in an American assessment." Yeah? So what? We're fighting them there so we don't have to fight them here, or something. And fighting them there, and also over there, and over there, and look, over there now too. When the final "there" becomes "here" we'll deal with it then, and use another explanation of what's going on. It's not news yet.

Nope, the only news was the vote in the senate.

The night before, our friend, the high-powered Wall Street attorney, called as he was waiting to get into the Holland tunnel well after midnight. He'd been silent recently - in Montreal on business, and that night he was late at work catching up after the flight back. We reviewed current events and he asked why the Democrats are doing what seemed like nothing on the "big vote" on this torture/habeas corpus bill passed by the House and to be passed with no problem at all by the Senate.

There was no answer for that, but the obvious thing was to review the summary of the stakes involved, as the New York Times had noted a few hours earlier here -
Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret - there's no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
So why wouldn't the opposition party oppose this? There was not enough time to fix all this, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seemed to have decided not oppose this at all. The Democrats may have agreed to let this one slide by - the cost of appearing weak on terror before the election is far too high.

That was unfortunate, but understandable, or maybe not, as Richard Einhorn explains here -
Yes, the NY Times gets it. But it's not telling the whole truth.

The truth is that the United States government is presently holding, torturing, and even murdering countless numbers of people who have no chance in hell of obtaining a lawyer, let alone anything resembling a trial. The government is doing this under the direct orders of George W. Bush. There is no law, no bill, and no legislature who can stop him. If Congress were to pass a law unequivocally banning torture and send it to him, he'd use it for toilet paper. If the Supreme Court were to rule against Bush in the harshest and bluntest language, he'd yawn.

The truth is that there is a rogue presidency and there has been, since January, 2001 (earlier, if you count the stolen election). Certainly, everyone in Washington knows it, but no one dares to admit it. The bill legalizing torture merely enables congress to pretend they still have some influence over an executive that from day one was governing, not as if they had a mandate, but as if Bush were a dictator. If, for some miracle, the bill didn't pass, every congress-critter knows Bush would keep on torturing.

Better to vote to pass and preserve the appearance of a working American government, the thinking goes. For the very thought that the US government is seriously broken - that the Executive is beyond the control of anyone and everyone in the world - is such a truly awesome and terrifying thought that it can never be publicly acknowledged. If ever it is, if the American crisis gets outed and Congress and the Supremes openly assert that the executive has run completely amok and is beyond control, the world consequences are staggering. It is the stuff of doomsday novels.

And this brings up the dilemma of a post Nov. 7 world. Apparently, one if not both houses of Congress may be controlled by Democrats. Now what? You think Bush is gonna get impeached? Put on trial for war crimes? Forget it. You think they're gonna repeal the pro-torture law they're about to pass? You can almost certainly forget that, too. Remember: it is crucial to maintain the illusion that Congress still has some say, as it was in November of 2002 about the Bush/Iraq war.

If, for some reason, Congress does decide to move against Bush in some substantive way, there will be hell to pay. Those of us who well remember Watergate remember that while it was genuinely thrilling to have Nixon caught, disgraced, and removed, it was also a time of extreme tension. Would Nixon tough the impeachment trial out, causing the country incalculable harm? It looked for quite a long time that he would. About Bush, there is no doubt.

Since the day after the 2000 election, Bush and his goons have been playing chicken with the very structure of the United States Government, double-daring anyone to try and stop them. If Congress does try - and I'm not talking little things like wrecking Social Security, that'll happen and a dictator can afford to let things like that wait a while, I'm talking atomic bang bang and thumbscrews - he will force the private Constitutional crisis into the open. And there is no guarantee that Bush will lose.

And that is the truth. The Congress has been given an awful choice: Vote to approve torture and the suspension of habeas or show the world that yes, you really do have no genuine power to check Bush.

Of course, all of Congress should vote against the bill anyway. But they won't. And to themselves, they will justify the vote as saying they made a hard choice but made the best one they could for their country.

Me, well... I've gone on record numerous times about how much I dread radicalism and serious national crises (which are two reasons Bush scares the hell out of me). The prospect of an open Constitutional confrontation, Bush vs. the Congress plus the Supremes... Jesus Christ. Perhaps I should understand the Congress had no real choice?

Absolutely not. The time truly is long overdue where there simply is no choice but to say "enough." It should have been enough over the stolen election, or the neglect that led to 9/11, or Schiavo, or the filibuster. But voting to permit the US government to sidestep Geneva? To suspend habeas? What the fuck is Congress thinking, for crissakes?

… There's no question about it. Any person in Congress who votes for this - listening, Hillary? - will never get my vote again. Ever, not even for dogcatcher, let alone president. If there is going to be a public Constitutional crisis over Bush's rogue presidency - and there will be sooner or later, guaranteed - bring it on now.
But the votes weren't there to stop this. And who is Richard Einhorn anyway? He's the modern classical composer - studied composition and electronic music with Jack Beeson, Vladimir Ussachevsky, and Mario Davidovsky at Columbia. He's most famous for "Voices of Light" - written for and inspired by the old French silent film "The Passion of Joan of Arc" (Carl Theodor Dreyer - 1928). Saw it once - very strange. Believed lost until a complete print was found in a mental institution in Oslo in the fifties, it pops up cable television now and then. And there's also Einhorn's "Freud and Dora: A Case of Hysteria" - an opera in two acts, and "My Many Colored Days" - the Doctor Seuss thing for orchestra and narrator on the program of children's concerts here and there. Maybe he has no right to speak. He's only a citizen, just like the rest of us.

And the bill passed, as the New York Times reported here -
The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated.

The vote, 65-to-34, came after more than 10 hours of often impassioned debate touching on the Constitution, the horrors of Sept. 11 and the nation's role in the world, but it was also underscored by a measure of politics as Congress prepares to break for the final month of campaigning before closely fought midterm elections.
So now we have the rules for the military commissions that will allow us to prosecute high-level terrorists, including that Khalid Sheikh Mohammed, the big mastermind, they say. It's just all the other stuff that's a problem.

But this is almost identical to the bill passed by the House of Representatives the day before by a vote of 253 to 168 - no need for much conference committee work and it gets signed into law by the weekend.

Senator Saxby Chambliss, Republican of Georgia - "Our prior concept of war has been completely altered, as we learned so tragically on September 11th, 2001, and we must address threats in a different way." So we need to change the foundations of the American legal system, even if this might come back to haunt future lawmakers as one of the greatest mistakes in history. It's just necessary.

And twelve Democrats agree - they crossed party lines to support the legislation, while one odd Republican, Senator Lincoln Chafee of Rhode Island, opposed it.

Some amendments were proposed, and got voted down on party lines - a habeas corpus provision (the accused can say they're not guilty), one that would have established a sunset on the legislation to allow Congress to reconsider it in five years, one that would have required the Central Intelligence Agency to submit to Congressional oversight, and one that would have required the State Department to inform other nations of what interrogation techniques it considers illegal for use on American troops (that would have forced the administration to say publicly what techniques it considers out of bounds). None of that stuff was going to happen.

Senator Levin of Michigan, the senior Democrat on the Armed Services Committee, argued that the habeas corpus provision "is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees." Atlas shrugged. Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the "no habeas corpus" provision - the Supreme Court would send the legislation right back to Congress, so what the heck. Senator Gordon Smith, Republican, Oregon - "We should have done it right, because we're going to have to do it again."

So it wasn't a big deal?

That's not what Glenn Greenwald said in Congress Gives Bush the Right to Torture and Detain People Forever -
Following in the footsteps of the House, the Senate this afternoon approved the bill which vests in the President the power of indefinite, unreviewable detention (even of US citizens) and which also legalizes various torture techniques. It is not hyperbole to say that his is one of the most tyrannical and dangerous bills to be enacted in our nation's history.

… The Democrats lacked the votes for a filibuster and therefore did not attempt one. Twelve (out of 44) Senate Democrats voted in favor of this bill, while only one Republican (Chafee) voted against it. The dishonorable list of Democrats voting for the bill: Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich).

One can look at the Democrats' conduct here in one of two ways. On the one hand, it is true that the Democrats disappeared from the debate until today, all but hiding behind John McCain in the futile hope that he would remain steadfast in his opposition to the White House. When McCain predictably capitulated and agreed to a bill that gave the Bush administration virtually everything it wanted, the Democrats, by their own doing, had very few options. Once the Democrats designated McCain as the Noble and Wise Torture Expert who spoke on their behalf, it became very difficult for them to oppose the "compromise" bill after McCain announced that he was blessing it. Democrats painted themselves into this corner by failing forcefully to advocate their own position against torture and indefinite detention.

Nonetheless, it is simply a fact that every Republican in the House and the Senate (with one sole exception in each) voted in favor of this tyrannical bill, while Democrats overwhelmingly opposed it (in the House, 160 Democrats voted "no," while 34 voted "yes"). With those facts assembled, it is fair to say that the Republicans are the party of torture, indefinite and unreviewable detention powers, and limitless presidential power, even over US citizens on US soil. By contrast, Democrats have largely opposed these tyrannical, un-American and truly dangerous measures. Even if Democrats didn't oppose them as vociferously as they could have and should have - and that is plainly the case - this is still a meaningful and, at this point in our country's history, a critically important contrast.
And earlier he had said this -
Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

... There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny - one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 US 443, 533 (1953):
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:
Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.
In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone - US citizen, resident alien or foreign national - detained indefinitely in a military prison regardless of where they are - US soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?

... During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.
And so it goes. John, at Runnymede and Thomas Jefferson are so pre-9/11.

Of course the organization Bill O'Reilly often says is plainly a terrorist group out to destroy America, the ACLU, has its views -
The American Civil Liberties Union expressed distress as the Senate adopted S.3930, the Military Commissions Act of 2006. That bill is identical to legislation adopted by the House yesterday and removes important checks on the president by: failing to protect due process, eliminating habeas corpus for many detainees, undermining enforcement of the Geneva Conventions, and giving a "get out of jail free card" to senior officials who authorized or ordered illegal torture and abuse.

"This legislation gives the president new unchecked powers to detain, abuse, and try people at Guantanamo Bay and other government facilities around the world," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Unfortunately for America, the Senate chose not to deliberate today. Instead, it joined the House and President Bush in jamming through a hastily written bill before running home to try to campaign."

Senators rejected several amendments that would have corrected shortcomings in the legislation. The bill gives the president license to weaken enforcement of the basic protections in Common Article 3 of the Geneva Conventions. As passed, the president would have new power to decide much of the scope of authorized conduct and the severity of punishment, giving him unparalleled power to unilaterally determine whether the government can carry out cruelty and abuse.

Additionally, the bill undermines the American value of due process by permitting convictions based on evidence literally beaten out of a witness or obtained through other abuse by either our government or other countries. Government officials who authorized or ordered illegal acts of torture and abuse would receive retroactive immunity for many of these acts, providing a "get out of jail free" card that is backdated nine years.

In the closest vote today, the Senate rejected by a 51-48 vote an amendment by Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT) to preserve minimal protections of the courts in their historical and constitutional role as a check on the executive branch, through habeas corpus.

"Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas petition," said Christopher Anders, an ACLU Legislative Counsel. "But that's exactly what Congress just approved."
Well, there is an election coming up. The judgment is that this is just what people want. And maybe they do.

This you have Dennis Hastert after the earlier the earlier House vote saying this -
"Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of more rights for terrorists," Hastert said in a statement. "So the same terrorists who plan to harm innocent Americans and their freedom worldwide would be coddled, if we followed the Democrat plan."
And you get statements from legal experts on the left like this -
The "Democratic plan" is simply to expect the government to obey existing laws rather than brushing them aside with a quick legislative assist, but what is truly offensive and disingenuous about Hastert's attack is the assumption that Democrats want to "coddle terrorists" rather than "protect the innocent." It is astonishing that the GOP, so long distrustful of the ability of government to make decisions wisely, is now populated with members who are certain that the executive branch will never err in taking custody of a suspected terrorist. The rights that protect against a wrongful conviction - freedom from tortured confessions and a ban against the inherently unreliable evidence that coercion produces, confrontation of witnesses, discovery of evidence, judicial review and more - can be safely withheld because of ... presidential infallibility?

… Those who oppose the president's "terrorism" bills recognize that law enforcement agencies - from the smallest police department to Homeland Security and the CIA - don't get it right every time. … Why are Hastert and his ilk so convinced that it is unnecessary to provide terrorism detainees with basic procedural protections that can save the falsely accused from a lifetime of indefinite detention?

It is monstrous that the GOP uses respect for our nation's founding principles as an object of political ridicule and scorn. But it has been monstrous for Republicans to work tirelessly to imprison so many for so long while attacking Democrats for being "soft on crime." And just as it has been frustrating to watch Democrats capitulate on crime (it was Bill Clinton, after all, who signed legislation that severely limited the scope of federal habeas corpus review), it is sad to see Democrats who are unwilling to protect our constitutional values today.

Harry Reid, on the Ed Schultz show today, said there just weren't enough votes to sustain a filibuster. Why not? Why would anyone in the legislative branch tolerate an executive power grab of this dimension? Democrats had the power to stop this arrogant betrayal of the Constitution. Why didn't they exercise that power? Because they didn't want to seem soft on terrorism? What kind of politician are you if you can't explain the difference between "coddling terrorists" and "protecting the innocent from an incompetent branch of government"?
The answer is clear - you're the kind of politician who wants to stay in office, and maybe fight another day, or not.

But those Democrats who played it safe are just suckers, as the election campaign started in earnest a few hours after the senate vote with here -
President Bush suggested Thursday that Democrats don't have the stomach to fight the war on terror, battling back in the election-season clamor over administration intelligence showing terrorism spreading.

"Five years after 9/11, the worst attack on the American homeland in our history, Democrats offer nothing but criticism and obstruction and endless second-guessing," Bush said at a Republican fundraiser.

"The party of FDR and the party of Harry Truman has become the party of cut and run," Bush told a convention-center audience of over 2,000 people. The event put $2.5 million in the campaign accounts of Alabama Gov. Bob Riley and the state GOP.
The Democrats fought back - Karen Finney, spokeswoman for the Democratic National Committee - "On his watch, five years after 9/11, he not only has failed to capture Osama bin Laden, but as the National Intelligence Estimate indicates, his failed policies have made America less safe and spawned terrorism, not decreased it. Democrats will be tough and smart, and will actually fight the terrorists, not leave them to plan future attacks."

Who believes that now? On Thursday the president accused the Democrats of "cherrypicking" pieces of that National Intelligence Estimate "for partisan political gain" with the express purpose "to mislead the American people and justify their policy of withdrawal from Iraq." And as for the new rules - "We must give our professionals the tools they need to protect the American people in this war on terror…" And he's the decider on that.

He won, and he knows it. And he's not going to give any credit to the dozen or so Democrats who said "please don't hit me again." That's not how things work.

Some Democrats got it. Hillary Clinton, of all people, gave a rip-roaring speech on the senate floor, as did Harry Reid -
I strongly believe this legislation is unconstitutional. It will almost certainly be struck down by the Supreme Court. And when that happens, we'll be back here several years from now debating how to bring terrorists to justice.

The families of the 9/11 victims and the nation have been waiting five years for the perpetrators of these attacks to be brought to justice. They should not have to wait longer. We should get this right now - and we are not doing so by passing this bill. The National security policies of this administration and Republican Congress may have been tough, but they haven't been smart. The American people are paying a price for their mistakes.

History will judge our actions here today. I am convinced that future generations will view passage of this bill as a grave error. I wish to be recorded as one who voted against taking this step.
Not that it did any good.

The odd thing is that whether the legislation is shot down by the Supreme Court or not, this one day, because of what was decided by the majority of our elected officials, changed the country. We have become something we were not before, and there may be no going back.

Posted by Alan at 22:00 PDT | Post Comment | Permalink
Updated: Thursday, 28 September 2006 22:27 PDT home

Friday, 18 August 2006
Two Cases: What Legal Matters are Hot, and What Legal Matters Are Not
Topic: The Law
Two Cases: What Legal Matters are Hot, and What Legal Matters Are Not
As we out here in Hollywood all know, Americans are fascinated by the law, even if in an odd way. The old Perry Mason show is long gone but Dick Wolff became a very rich man with "Law and Order" and its spin-offs. That's a mini-industry out here, propelling various actors and actresses to fame and fortune they never expected, and made the late Jerry Orbach a hero with the real-life cops on the streets of New York where it is filmed. That's more than the role as the tight-assed father in Dirty Dancing ever did for him. Sam Watterson retired from real acting to play the district attorney in the series, trying to prove this and that to a puzzled jury each week, and Senator Fred Thompson retired from politics to play his boss. Who needs Washington? The general rule seems to be play a lawyer and argue your case, and become a star - Spencer Tracy as Clarence Darrow in "Inherit the Wind" to Tom Cruise (before he went all scientology) as the conflicted JAG lawyer in "A Few Good Men" and all the rest. Folks eat it up. They watch.

And then there's the real world. There's the nasty Nancy Grace on CNN Headline News saying who is really guilty in real cases, and why, and a there's whole cable channel - Court TV - for those who need this sort of thing all day, all the time. From OJ to Michael Jackson, we all tune in to the case of the day, or at least many do - more than enough viewers to sell the advertising slots at a fine rate.

So what were the big cases that fascinated folks in the middle of August, 2006?

Just glancing at the news, the winner, by maybe a ten to one margin, was this - "The breakthrough arrest of a suspect in the long-unsolved murder of six-year-old JonBenet Ramsey started to look distinctly shaky yesterday, as legal experts and former investigators in the case poked holes in the confession of expatriate schoolteacher John Mark Karr and even Colorado prosecutors said they were proceeding cautiously."

Well, it had sex, and dead child, and a pervert. Karr was arrested in Thailand on Wednesday and was paraded before reporters. He claimed he was with the kid when she died in the basement of her family home in Boulder in 1996 and that her death "was a horrible accident for which he took responsibility." The Thai officials said he had admitted drugging her and having sex with her before she died, but then that just didn't match the autopsy results - no drugs or alcohol in her system. The former Denver prosecutor said "this confession seemed delusional" and added - "He looked like a drugged-out Lee Harvey Oswald." The Thai immigration police backed off - he had only told them whole encounter was "a blur." Sorry about that.

The case is ten years old. The mother, once a suspect, and who dressed the kid like a little hooker and entered her in beauty contests, died a while back. And the case is not very significant in the greater scheme of things. Outside the family, whatever happened is, really, nobody's business. It's certainly a bad business, but means little. It's just titillating and slightly freighting entertainment for those whose lives are a bit dull. If you live a life of "quiet desperation" it's best to import some nasty stuff you can safely contemplate, as it has nothing to do. It fills the time.

The loser, by ten to one, receiving far less coverage, was this - a federal judge ordered all entities to stop participating in warrantless surveillance because the National Security Administration's program is unconstitutional. The president had to stop that stuff - it violates First and Fourth Amendments by monitoring communications without warrants and "interfering with the ability of journalists and scholars to do their jobs." She ordered an immediate halt to it all. You want to tap phones and read email? Get a damned warrant, just like it says in the constitute, and use the system set up by law in 1978 for such things. District Judge Anna Diggs Taylor up Detroit (US District Court for the Eastern District of Michigan) was blunt - although she dismissed the argument that data-mining should be subject to obtaining warrants, saying perhaps those could not be discussed without revealing state secrets. The administration had boasted about the phone and email business, and said they had the right to break the law and ignore the constitution. They hadn't said anything about data-mining, so maybe that was off limits to the plaintiffs - secret stuff.

But the thrust of the matter was clear - listen all you want, go after the bad guys, but follow the law. If you're dealing with US citizens, the rules are you get a warrant. It's kind of a no-brainer. Do your job, but don't jerk us all around, saying the law just doesn't matter any longer.

This is not sexy, and it's not titillating stuff, but it kind of does matter to everyone. If laws don't matter any longer we're in a world of hurt, unless you implicitly trust the authorities in power. Some do. Some don't.

An this decision is the first ruling by any court on the legality of the NSA program - one that was secret until it was revealed, so to speak, last December by the New York Times. And it rejected every single argument the administration made to defend its "right" to eavesdrop without warrants. And too the court also rejected the administration's claim that mere "adjudication by the court "of the legality of this NSA program would risk the disclosure of "state secrets." They say that all the time about stuff they don't want reviewed in any court (see this). But that didn't fly here. They'd already talked about it quite enough, and no more details were actually necessary.

The decision has already been appealed by the administration to the 6th US Circuit Court of Appeals, conservative-leaning some say, and the parties have agreed that the Michigan District Court's order will be stayed until September 7 - it won't be enforced. We'll see what happens then.

But to be clear about what this decision means and what it does not mean - it does not prohibit eavesdropping on terrorists. It prohibits illegal eavesdropping in violation of the clear law in the matter. The White House is saying this is a real blow to the administration's efforts to fight terrorism (see this press release), but doesn't explain how the law was getting in their way. They seem to assume everyone knows it was.

But just what does everyone know? Some perspective is in order. But where do you go for that?

There is Erwin Chemerinsky. He's been at Duke since July 2004, but spent twenty-one years out here, not in Hollywood but at the University of Southern California Law School - a professor of Public Interest Law, Legal Ethics, and Political Science. His four textbooks are standard. In April 2005, was named by Legal Affairs as one of "the top 20 legal thinkers in America." There's also the 2003 President's Award from the Criminal Courts Bar Association. the 2003 Freedom of Information Award form the Society for Professional Journalists, the 2001 Community Service Award from the Anti-Defamation League, the 2001 Clarence Darrow Award from the People's College of Law. Take that Spencer Tracy. And he's argued the big cases - Van Orden v. Perry (a challenge to a Texas Ten Commandments monument) and Tory v. Cochran (a First Amendment case concerning the permissibility of injunctive relief as a remedy in defamation cases), and in the Supreme Court Scheidler v. National Organization for Women (suit for injunction to stop violent protests of reproductive health care facilities) in November 2005. He testified before the Senate Judiciary Committee on the hearings of Samuel Alito for confirmation to the Supreme Court in January 2006. He might know something.

And he says this -
The Constitution is the winner in Thursday's decision by a federal judge in Detroit to invalidate the National Security Agency's program of warrantless wiretapping. The Bill of Rights is a constant reminder that the ends do not justify some means. Surely, there would be less crime and more safety if the police could search anyone's person or property, at any time, without a level of suspicion that meets the legal definition of probable cause. But a society that values privacy and dignity does not accord the police such authority, even when the objective is fighting terrorism.

Judge Anna Diggs Taylor followed basic constitutional principles in ruling that the NSA must not engage in warrantless electronic surveillance. The core requirement of the Fourth Amendment is that, subject to narrow exceptions, police searches and wiretaps must be authorized by a warrant issued by a judge and based on probable cause. The framers of the Constitution were deeply distrustful of executive power and wanted to make sure that searches and arrests were authorized by a neutral magistrate.

Federal statutes reaffirm this by requiring the government to obtain a warrant when it engages in wiretapping. Under these laws, the government usually goes to federal district court for the required warrant. Or, if the person it wants to listen in on is thought to be acting at the direction of a foreign power, then the government goes to the Foreign Intelligence Surveillance Court. The law is explicit: The government must follow one of these two procedures before engaging in electronic surveillance.
That's clear. Why was there even an argument about it? The administration decided against meeting the requirements for a warrant and probable cause mandated by the Constitution and specific federal statutes. The judge had little choice here. The president has no such power.

But here's the problem -
Under the Bush administration's argument, federal law enforcement could seemingly go into anyone's home, at any time, without a warrant by claiming that it might better catch terrorists. There is simply no obvious stopping point, and that's what makes the president's claim of broad executive power so alarming. Nor is there any reason to believe that warrantless wiretapping is needed to protect national security. The administration could have gone to the Foreign Intelligence Surveillance Court, which approves more than 99 percent of all government requests for warrants. Under the procedures of that court, it even could have gotten the warrant after the surveillance had been done.
But they didn't. The obvious question is why. Put on your tin-foil hat and work on that a bit.

Chemerinsky goes over the argument that the Joint Resolution Authorizing the Use of Military Force, that authorized the wars in Afghanistan and Iraq, and notes the Supreme Court shot that down in the Guantánamo case (Hamdan v. Rumsfeld) - it did not provided the necessary authority for it to set up those special military commissions to try the folks there and could be taken to override specific statutes and treaties. The thing gave the president permission to use troops and take military actions - it said nothing about special military commissions, and it this case, it said nothing about eavesdropping electronically on US citizens. Neither is military force. That's kind of obvious.

As for the flak coming down now -
Judge Taylor's ruling has been criticized because it did not offer a full explanation for why the NSA's warrantless eavesdropping is unconstitutional. And the judge herself has been derided for overstepping the judiciary's proper role. But critics would have objected to Taylor's opinion no matter how it was written. As for the notion that the judge went too far, it is precisely the role of the federal courts to interpret the Constitution and to determine if it has been violated.
She was just doing her job.

And he offers this perspective -
The most important thing to keep in mind, in weighing Judge Taylor's ruling against the government's arguments, is that no administration in memory, and perhaps none ever in American history, has so frequently claimed that it can ignore the Constitution, as well as federal statutes and ratified treaties, to pursue important goals. Lawyers for the Bush administration have argued that the government can engage in torture in violation of federal statutes and treaties in the name of national security. They have claimed the power to detain American citizens as enemy combatants without complying with the Fourth, Fifth, and Sixth Amendments. They have argued that the administration can ignore federal statutes and the Geneva Conventions in imprisoning individuals indefinitely in Guantanamo.

It is the role of the federal courts to say no to such actions. Judge Taylor did exactly that on Thursday. Now it's up to the federal court of appeals and the Supreme Court to back her up.
We'll see what happens. Suddenly Joe Lieberman's breaking with his party to support the nominations of Alito and Roberts matters more now.

But what does this guy know? In a smug and nasty editorial here the Washington Post says the ruling just wasn't sufficiently thoughtful. The warrantless wiretapping program "exists on ever-more uncertain legal ground" but this ruling was "neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting." Maybe something you need a bludgeon?

The Wall Street Journal just gets hysterical here - they accuse this judge of gunning for a "Civil Libertarian of the Year" award and then complain that voters will have no way to hold her accountable for "any Americans who might die as a result" of her ruling. And she was appointed by Jimmy Carter way back when (1979) and she's black. She must have an agenda and doesn't care of we all die. Damned liberals.

Then there's this in the National Review - "Virtually every intelligence agency in the world is pursuing al Qaeda operatives and intercepting their communications. In Judge Taylor's perfect world, only the US - the primary target of al Qaeda - would be forbidden to do so." Of course that's not what the ruling said - the intercepts were not forbidden at all - but they have to feed their readers that red meat.

And there was Rush Limbaugh with this - "Make no mistake: this enemy is all over this country. It's all over the world, and this same type of surveillance program that was used by Bill Clinton and a number of other presidents, nobody beefed about it, nobody complained about it. This is liberals, ladies and gentlemen. This is leftists."

Clinton never ordered the warrantless wiretapping of Americans' telephone calls. There was that warrantless search of Aldrich Ames' home, a search that occurred before FISA was amended to require warrants for physical searches. But what's the point of arguing?

Friday, August 18, the president himself spoke, saying it was really naïve to believe in these special time he should follow the law, with this - "I would say that those who herald this decision simply do not understand the nature of the world in which we live." Sure the fancy-pants lawyers and people who read books know the law and the constitution, but he knows the real world. He has no use for such things. Of course he's banking on the cowboy thing - people don't like thinkers and readers, they like doers who cut through all the crap. And that may work. It's worked for six years.

And who's arguing against that? Glenn Greenwald, the attorney and best-selling author of How Would a Patriot Act? - he worked at the New York firm of Wachtell, Lipton, Rosen & Katz and left to co-found the law firm of Greenwald Christoph & Holland, now Greenwald-Christoph. He has litigated cases with constitutional issues, but then he's openly gay and splits his time between Brazil and New York City - because only Brazil, and not the United States, recognizes his same-sex relationship with his Brazilian partner as the basis for emigration. Are you going to trust that sort of fellow?

Still he says this -
This ruling … has critical implications for the administration's efforts to change the law so as to legalize its warrantless eavesdropping activities. Sen. Arlen Specter, working in collaboration with the White House, has introduced legislation that would effectively eliminate all restrictions on the president's power to eavesdrop on Americans. That bill would make the process of obtaining warrants optional, rather than mandatory, and it would all but kill off judicial challenges to the legality of the president's eavesdropping.

But the court's ruling today strongly suggests that the Specter bill would be just as unconstitutional as the president's current eavesdropping program. This is because the court found warrantless eavesdropping generally to be a violation of the Fourth and First Amendments. Thus, Congress cannot authorize warrantless eavesdropping via legislation - Congress cannot authorize activities that are unconstitutional - which would preclude enforcement of the Specter bill.

Still, commentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent. And with respect to the most difficult hurdle the plaintiffs faced - whether they have "standing" to challenge the NSA program in light of their inability to prove that their conversations were monitored - the court made the best case it could as to why the plaintiffs should be allowed to proceed, but it relied on reasoning that is far from decisive.

Nonetheless, the political significance of this decision cannot be denied. The first federal court ever to rule on the administration's NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law.

And in so holding, the court eloquently and powerfully rejected the Bush administration's claims of unchecked executive power in the area of national security. The court observed that "it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights ... We must always be mindful that '[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.' Clinton v. Jones, 520 U.S. 681, 703 (1997)."

Ever since the 9/11 attacks, the Bush administration has insisted that nothing can restrict the president's decisions in any way with regard to national security, including laws enacted by the coequal branch of government, the Congress. Such a theory is wholly alien to the most fundamental principles that have defined this country since its founding. The court's decision today reaffirms that even in times of war, the president is bound by the rule of law and constrained by the protections guaranteed to Americans by the Bill of Rights. And that the Bush administration simply has no justification for acting outside the parameters of the law.
Well, if that writing is a little too dense, watch CNN's Jack Cafferty here be a little more succinct - the man broke the law, on purpose, and told us he did -
You know Wolf, it seems like were having this discussion about this judge's ruling sort of in the abstract, as if there's no precedent for what the judge decided. The judge in effect upheld the ruling of the FISA court which says that 'if you want to wiretap phones you need a warrant to do so'. The court was created by Congress in 1978 I think it was and the law of the land says, "Get a warrant". The actions of the administration have ignored the law of the land in that regard. So it's not a discussion in the abstract. It's not hypothetical. There are laws on the books against what the administration is doing and it's about time someone said it out loud.

This Federal district judge ruled today President Bush is breaking the law by spying on people, in this country, without a warrant. The judge said the President is violating the First Amendment to the Constitution. The Fourth Amendment to the Constitution, and the Foreign Intelligence Surveillance Act FISA, passed by Congress 1978, specifically to prevent this kind of abuse of power. It was being done before. That's why the FISA court was created in the first place.

So what does this mean? It means President Bush violated his oath of office, among other things, when he swore to uphold the Constitution of the United States. It means he's been lying to us about the program since it started, when tells us there's nothing illegal about what he's doing. A court has ruled it is illegal. And it means a 75 year old black female judge in Michigan has finally stepped in and done the job that Congress is supposed to do, namely oversight of the executive branch of government. But the gov… but the Congress is controlled by Republicans. They are controlled by the President, and they have done nothing in the way of oversight.
If someone would do their job it might be impeachment time?

See Glenn Greenwald here -
… judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be - and are required to be - held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law - criminal laws - in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.
My, my, things are heating up. And conspiracy theorists wonder if Karl Rove worked with the Thai police on the timing of the arrest and confession of that strange man in Bangkok. That got most of the press. But no, that's just a lucky coincidence.

What's going to happen? We'll pay attention to the odd man who may have killed the little tarted-up beauty queen ten years ago, but may not have done that at all. It's even more scandalous that the noseless Michael Jackson and the little boys. We have our priorities. Everyone lives in Hollywood.



The ruling on the NSA program is here and the stayed injunction stopping it here. Both are in PDF format - you'll Adobe Acrobat Reader, or an equivalent, to review them. A few regular readers are attorneys. These might be of interest.

Posted by Alan at 22:29 PDT | Post Comment | Permalink
Updated: Friday, 18 August 2006 22:32 PDT home

Thursday, 29 June 2006
Legal Matters: Third Time is Charm, or Not
Topic: The Law

Legal Matters: Third Time is Charm, or Not

School's out, the Fourth of July is at hand, and the Supreme Court is ending its session and packing it in for the summer, which in their case means from now until the first Monday in October. That's a long summer, but not to worry, the week gave us their decisions on what is permissible and what is not, as it is their job to listen to the opposing views on this matter and then look closely at the constitution, and decide who is right, and who is being silly. That's been their job since 1803, since Marbury v. Madison - Chief Justice John Marshall presided over that case, and used the case to legally establish the right of the judiciary - and in particular, the Supreme Court - to determine the constitutionality of the actions of coequal branches of government, and that's the basis for the current authority of the Supreme Court. After this week's closing flurry of decisions, the legal-eagles in the current administration might now start saying that one from back in 1803 was clearly decided wrongly.

The first two of the three big decisions weren't so bad for the guys in charge, The third was a killer.

The first was Kansas v. March (PDF format), having to do with a case bumped up from the Kansas Supreme Court, where that lower court had ruled that state's capital-sentencing system was unconstitutional. They have the usual system out there - in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, that jury must then weigh various statutory "aggravating factors" against "mitigating factors." The former includes things like how shocking and awful the crime was and all that, and the later are pleas for mercy - the poor defendant was abused as a child or whatnot. The jury then decides whether the defendant should die, or just rot in jail. But Kansas added a twist. If there's a tie - the aggravating factors pretty much balancing the mitigating factors - then the defendant dies. That is the default - all things being equal, you die. That's how they do things in Kansas.

The Supreme Court said that's fine, don't get all excited. The vote was five to four and Justice Clarence Thomas, the fellow who likes porn tapes and said those odd things about Coke cans to Anita Hill, authored the majority opinion - this just does not violate the prohibition on "cruel and unusual punishment" in the Eighth Amendment. The jury was given the opportunity to consider all the mitigating evidence, there's no compelling reason to micromanage one state's specific sentencing scheme. Jurors had the right to look at everything, but there's no constitutional rule requiring how the state decides to break any tie. The dissents all harped on the idea that this was about death, and that made the default "cruel and unusual punishment." The reply was a resounding "not our business." Or so it seemed.

Score one for the forces of vengeance and retribution. As the president, who holds the record for governors ordering executions to proceed, likes to say, "Folks have to understand there are consequences." Even when all things are equal. And "folk" like death as a default.

The second case was the Texas thing - instead of redistricting every ten years after each census, Tom Delay, now indicted on all those felony charges, had the folks in Texas change the boundaries of all the congressional districts in the state in the middle of the ten years, and the Republicans picked up six seats in Congress in the election that followed. The Democrats called foul, and sued, and lost. The decision is here (132 pages of PDF), but you can find a summary here and a good news item here. It comes down to this - the court said a state can redistrict any time it want as there's nothing in the constitution that forbids it (the census clause of the Constitution is only a suggestion, it seems), and there no controlling specific federal law about all this, so what happened in Texas was, while plainly political, not a constitutionally impermissible gerrymander. It may be crass and unfair, but it's not illegal. But then what happened in one district (the Twenty-Third) was illegal and unconstitutional. There you can't just reduce its Hispanic percentage for political reasons - there are specific laws in that case, like the Voting Rights act.

Ah well, the Supreme Court isn't going to get into hardball politics and the law, again. Florida in 2000 was quite enough. This was narrow and precise, without consideration of larger issues, like fairness.

Walter Dellinger - professor of law at Duke University and a partner in the law firm of O'Melveny & Myers - isn't impressed -
Partisan gerrymandering is wrong, and it is a constitutional wrong, for it involves discriminating against some voters on the basis of their political beliefs and interfering with the process of self-government by the majority. But what is a court to do? An appreciation of the political effects of different districting plans cannot be eradicated from the legislative mind. How much consideration is too much? How is a court to tell? And will the body politic believe that federal judges, because they are unelected, are disinterested referees of the political process?

Until I heard the oral argument, I thought that the Texas case might be the exceptional one in which there was actually a judicially manageable standard that could be invoked to set aside what the state legislature had done. The facts suggest a perfect storm of partisanship: Texas had adopted a Democratically biased congressional redistricting plan in 1990; a split in the control of the state legislature had led to deadlock over the required decennial redistricting in 2001; a court had to act to adopt a plan. Tom DeLay, accusers said, raised illegal corporate money to gain control of both state houses, tried to get the Federal Aviation Authority to monitor Democrats fleeing to Oklahoma to defeat a quorum, and pushed through a partisan plan that made the Texas delegation to Congress heavily Republican.

Finally, it seemed, a case that could be resolved with a "judicially manageable standard." Given the almost unbroken tradition, pegged to the census clause of the Constitution, that the lines for Congressional districts are redrawn every 10 years, some explanation is required for the highly unusual act of the Texas mid-decade gambit. Of the Texas move it can truly be said, to paraphrase the late coach Vince Lombardi, "Partisanship was not the most important thing; it was the only thing."

One sentence leaps out in today's controlling opinion by Justice Kennedy in the Texas redistricting case. He is writing about the decision of the newly installed Republican majority in the Texas state legislature to take the highly unusual step of redistricting the state's U.S. congressional seats in the middle of a decade - specifically, this one. And he says: "The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew."

I would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action "for the sole purpose of achieving a Republican congressional majority," it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the "sole purpose" of achieving a partisan aim does not satisfy that standard.
Yeah, but it all stands as it is now. And the old "one man one vote" myth is just that - that's not how things work. That's why we have an electoral college and all that. Everyone games the systems and some votes count more than others. Suck it up and move on.

Score one for the Republicans. They know how to play hardball.

Would the third time be charm?

Those in charge of things, "half in love with death" (not quite what Shelley meant) and fully in love with power, were on a roll. But then there was this on Thursday, June 29, the Supreme Court rules 5-3 that George W. Bush overstepped his authority in ordering military trials for detainees at Guantánamo Bay - and that the procedures administration had intended to use violate both US law and the Geneva Conventions (treaties we ratified that thus have the force of law). They said that the administration can hold the detainee in question - Salim Ahmed Hamdan - "for the duration of active hostilities." That's fine. No problem, but the president really must "comply with the rule of law" if he wants to have the guy or any other detainees tried and subjected to criminal punishment.

It was Justice Anthony Kennedy joined John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter in the majority. In his separate opinion, Kennedy said that trial by military commission "raises separation-of-powers concerns of the highest order," and that the "concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid." Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Scalia said they had really did have no jurisdiction in the matter, implying it was not their job to tell the president what he could or could not do. The new Chief Justice, Roberts, sat this one out. Before he got the current job he had ruled on the matter from the bench of a lower court - no one could tell the president what he could or could not do. His new colleagues just don't seem to agree.

The ruling, Hamden v. Rumsfeld, is here (one hundred eighty pages in PDF format). That's a little daunting.

There's an interesting survey of the implications from Tim Grieve here, and there are some curious implications.

First this could impact the whole business of warrantless wiretaps. Grieve points to this, and comments -
The decision, five justices - Kennedy, Stevens, Souter, Breyer and Ginsburg - reject the Bush administration's argument that the power to try detainees by military tribunal was implied in the Authorization for Use of Military Force approved by Congress in the days after 9/11.

... the Bush administration has advanced exactly the same argument in support of its warrantless wiretapping program. That is, Attorney General Alberto Gonzales and other administration officials have argued that Congress somehow implicitly authorized the warrantless wiretapping of American citizens when it passed the Authorization for Use of Military Force, or AUMF, in 2001.

So if the AUMF didn't implicitly authorize the use of military tribunals at Guantánamo, it probably didn't authorize the warrantless wiretaps either, right? That's how it seems, but readers with a keen memory will recall that in the Hamdi v. Rumsfeld decision in 2004, five justices - O'Connor, Rehnquist, Kennedy, Breyer and, in a separate opinion, Thomas - reached the conclusion that the AUMF did authorize the detention of enemy combatants for the duration of the conflict in which they were captured. Sandra Day O'Connor wrote then that it is "of no moment" that the AUMF says nothing about detaining enemy combatants. "Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," O'Connor said, "in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.'"

Why is the outcome in Hamdan different?
And there it gets complicated. Go read it, if you dare, but it comes down to this -
Assuming a legal challenge ever got to the Supreme Court, the outcome could turn on two questions. First, does the Foreign Intelligence Surveillance Act leave open the possibility that another "Act of Congress" might authorize spying without the warrants FISA requires? Although FISA itself says it's the "exclusive means by which electronic surveillance ... may be conducted," the administration has argued that FISA actually contemplates the possibility that a future act of Congress could expand the president's surveillance authorities. But even assuming the court agreed with that view, it would still have to grapple with the second question: If FISA does contemplate additional, broader authorizations for electronic surveillance, did the AUMF amount to one? To answer that question, the court would have to decide whether spying on American citizens - and, arguably, doing so without a warrant - is such an inherent part of waging war that the power to do so must be read into the AUMF in the same way that the power to detain enemy combatants was.
That could be interesting. Is listening to everyone's phone calls and scanning and storing their each and every email a necessary and appropriate use of force? That may be a stretch. Common sense says no, but these guys aren't big on common sense.

On the treatment of these detainees things are clearer - the interrogation techniques the Bush administration is using in the war on terror are now in question.

Marty Lederman, a Georgetown law professor who served in the Clinton and Bush Justice Departments, explains here that this Hamdan decision essentially "resolves the debate" over what interrogation techniques the United States may use against detainees -
More importantly, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever" - including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

... This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
Oops. There's a problem if there ever was one.

But you remember this, the Attorney General himself arguing that the war on terror "renders obsolete" the Geneva Conventions' "strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The court says he's just wrong, as a matter of law. Grieve notes that in a section of his opinion in which four other justices joined, John Paul Stevens says that the Geneva Conventions' Common Article 3 applies to the U.S. conflict with al-Qaida. And Lederman argues that these prohibitions are stronger than those contained in the McCain torture ban the president signed last year. Grieve says he "might also note that the administration has argued that the McCain ban can't be invoked in court with respect to detainees at Guantánamo - an argument that may be moot if the Geneva Contentions' protections apply anyway."

This third decision seems to be a big deal.

See Walter Shapiro here -
It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals. Now four and a half years later, the Supreme Court's end-of-the-session decision in Hamdan v. Rumsfeld both rejected these military tribunals and quickened the hearts of civil libertarians.

Read narrowly, the court's ruling applies only to the roughly 450 prisoners held at Guant?namo. In fact, Thursday's decision does not even guarantee any kind of trial for these detainees. As Justice Paul Stevens noted in his majority opinion, "Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." Yet such a gimlet-eyed interpretation may be the equivalent of believing that Brown v. Board of Education applies only to schools in the greater metroplex of Topeka, Kan.

It is possible that Hamdan may someday be seen as the turning point in repudiating the Bush-Cheney view that all branches of government are equal but some are more equal than others. An optimist could find persuasive evidence in the decision that the Supreme Court was, in effect, saying to the White House: "Enough of your cockamamie theories about the all-powerful president in wartime. Enough of your cloud-cuckoo readings of the resolution that Congress passed after Sept. 11. And enough of your cataclysmic claims that the war against al-Qaida requires a wanton disrespect for international law and the norms of civilized behavior."

... the most compelling passage in Stevens' opinion is this four-word sentence: "That reasoning is erroneous." The octogenarian justice was rejecting the government's cherished argument that not one syllable of the Geneva Conventions applies to alleged al-Qaida captives at Guant?namo. Stevens held that, at minimum, Hamdan and his companions on the American-held tip of Cuba are covered by the portions of the Geneva Conventions that regulate the treatment of prisoners in civil wars and similar conflicts.
Or not. The White House could say that while what the Supreme Court rules is interesting, but they don't that they have to follow anything they say. The three branches of government are coequal, after all. And Marbury v. Madison was wrongly decided. Who is John Marshall after all? And that was back in 1803 - and 9/11 changed everything. And so on and so forth.

Lederman - "After today, any waterboarding will open you up to a possible war-crimes prosecution." But he suggested that Thursday's decision probably could not be used retroactively to punish anyone for employing "extralegal interrogation techniques." On the other hand he said - "I wish I could see the memos that are going out today from the CIA to the field."

That would be cool.

As for other view, see Walter Dellinger (cited above) and Dahlia Lithwick in dialog here.

Lithwick -
I am struggling to feel the same euphoria about the court's repudiation of President Bush's military tribunals in today's rather stunning Hamdan decision.

... If Lederman is right on this, I can take some comfort in an opinion that's about more than just a handful of guys at Guantanamo whose trials are on hold. But for the moment, I am trying to imagine explaining to Mr. Hamdan that the good news today is that he doesn't get a trial at all. The court finds that Hamdan can be detained "for the duration of active hostilities." It's not like the base at Guantanamo has to be closed. This case may not have that much immediate impact, outside of Guantanamo, but as a judicial smoke signal to the president, it's a whopper.

... Today's rebuke to the president still feels hollow to me because I just don't believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they'd won the last round of enemy combatant cases, even when the rest of us heard O'Connor's admonition, in Hamdi v. Rumsfeld, about a state of war not being a "blank check" for the president. As a practical matter, even if it's true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions - which we will never know about?

When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions - positions that seemed utterly contemptuous of the court - and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war.

At the time, I wondered how such an unbending, unyielding view of the law, and the world, made any sense. It didn't seem to me a particularly helpful tactic in dealing with a Supreme Court that thrives on nuance. When you're talking to nine people who can churn out 132 pages of painstakingly detailed nuance on a regular basis, does the argument that the president thinks courts are soft, sloppy, and slow really seem like a winner?

... Do the Bush folks take this simplistic view of their own power - throwing around ideas like "unitary executive" and FISA-as-optional - because in the end, they just don't care what the courts think?

The administration isn't really asking for constitutional blank checks. Why should it, when the president thinks he has his own constitutional Swiss bank account?

... Does the president believe he is bound by this decision? Does he refuse to send a really senior representative to a Senate Committee hearing on signing statements; or offer substantive responses to congressional questions about warrantless wiretapping; or offer a nuanced argument to the high court to make clear that he's not accountable to any of those entities? And if the administration refuses to be accountable, then what will today's decision actually achieve? It's all very good for Mr. Hamdan and his nine friends at Guantanamo. But won't it encourage Bush to detain/render/wiretap/torture in even greater secrecy?

Cheer me up, Obi-Wan, you're my only hope.
Dellinger -
Because in order to understand the larger significance of today's decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

The problem has been what those presidential signing statements say - even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term "inherent presidential power." One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could also be taken, however, to refer to matters so deeply at the core of presidential authority that that any act of Congress that regulated or limited the exercise of that power would be unconstitutional - even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has 'inherent authority' to do an act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws.

This seemingly simply proposition has huge consequences.

... Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House.
Yeah. That makes sense, but what if the Supreme Court places the presidency back under the law and the president shrugs and ignores the whole business? Who's going to do anything about that? Both houses of congress are firmly Republican - the Texas redistricting took care of that - and angry now.

So the summer beings. No more court decisions until late fall, and all this plays out now in whatever way it will.

As in this -
The Bush administration likely will have to extend rights to terrorism suspects at the U.S. military prison at Guantanamo Bay, Cuba, that it has denied for years, after the Supreme Court invalidated the government's system of military trials and ruled that the detainees must be treated according to international standards, officials and experts said yesterday.

Senior administration officials acknowledged that the ruling scuttles their plans to put as many as 80 detainees through administration-created "military commissions" - with extremely limited rights - and said it is unclear how they will respond. The 5 to 3 ruling in Hamdan v. Rumsfeld sent officials scrambling to evaluate options for the 450 detainees at Guantanamo Bay, some of whom have been held for more than four years without trial.

The choices, experts and government officials said yesterday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop new rules to comply with the court's decision.

The administration could also ask foreign governments to try the more than 150 prisoners it considers hard-core terrorism suspects. The rest are likely to be returned to their home countries for further detention or release.

But if the United States decides it wants to hold the trials, detainees probably would gain more access to the evidence against them and the right to be present for much or all of the proceedings - both of which were denied in some circumstances under the military commission rules, the experts and officials said.

The court did not rule on whether Guantanamo Bay should be closed, and its action does not affect operations at the facility. Military officials said yesterday that scheduled military commission hearings for 10 suspects have been suspended.

Retired Army Gen. Barry R. McCaffrey, a professor of international affairs at the U.S. Military Academy who visited Guantanamo Bay last week, said the military commissions were destined to fail. He said the government should have used courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights.

"We put ourselves in an unnecessary legal mess from the beginning, and now we've gotten ourselves in such a mess legally and politically, there's no easy solution," McCaffrey said yesterday.
No kidding.

Posted by Alan at 22:59 PDT | Post Comment | Permalink
Updated: Friday, 30 June 2006 09:12 PDT home

Saturday, 6 May 2006
Christmas in May: Albania to the Rescue
Topic: The Law

Christmas in May: Albania to the Rescue

This is just a follow-up to an item in the these pages on Christmas Day, 2005, here, a discussion of an Associated Press item two days before Christmas about the Chinese Muslims "in limbo" at Guantánamo.

Limbo? That would be this -
Washington, Friday, December 23, 2005 - Two Chinese Muslims can be held indefinitely in the U.S. military prison at Guantanamo Bay, Cuba, even though their confinement is unlawful, a federal judge ruled Thursday.

Abu Bakker Qassim and A'Del Abdu Al-Hakim, who were captured in Pakistan in 2001, had asked to be released after the government determined nine months ago that they were not "enemy combatants."

U.S. District Judge James Robertson, who has criticized the government for holding the two ethnic Uighurs, said their "indefinite imprisonment at Guantanamo Bay is unlawful."

At the same time, he said, the federal courts have "no relief to offer" the two men.
They were just out of luck, even if it was Christmas.

At the time there were others commenting, as in this item from "Hilzoy" noting that over four years ago these two were captured by bounty hunters and turned over to us for cash and finally, in early 2005, a military tribunal found that they were not enemy combatants after all. Someone just wanted some money and these two guys were sold to us as really, really bad guys. We paid, but we were had. It happens to us all. We buy something as advertised and when we get it home find out it doesn't work or isn't what they said it was.

The December 2005 count finding is here (PDF format), saying holding these two was clearly illegal - "The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."

And then the finding is that, in this case, the courts just cannot do anything about this, even if it is illegal -
In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts "to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared "no longer enemy combatants." Now facing that question, I find that a federal court has no relief to offer.
It seems no one thought that far ahead, or more precisely, who would "hate America" so much to think we needed a mechanism to manage any mistakes we made? We don't make mistakes. To propose that we might, and suggest procedures to fix them if the occur, is to give "aid and comfort" to the enemy.

Hilzoy at the time suggested the judge should have ordered that we send them to Peoria or something -
He cannot just order the government to open the gates of the camp at Guantanamo and let Qassim and al-Hakim walk free: they'd be walking out onto a military base, and judges do not have the power to order that someone be admitted to a military installation. No other country is willing to take them. The obvious solution is to release them into the United States.
But that won't work. They're Chinese nationals who received military training in Afghanistan under the Taliban, and China wants them back. They were, after all, in Afghanistan to learn all sorts of ways to fight to overthrow the Chinese government, and we're working on better relations with them - President Bush and Chinese President Hu Jintao met in Washington on Thursday, April 20, 2006. Don't tick off the Chinese. That would be the end of Wal-Mart, and they buy all those five and ten year Federal Notes that keep our economy afloat - you just don't tick off the folks holding the IOU's. And anyway, requiring their release into the United States, as the judge notes, "would have national security and diplomatic implications beyond the competence or the authority of this Court."

The same week, Mark Kleiman, the public policy professor out here at UCLA, said the president ought to do something -
Of course, the lack of power in the court to order a remedy for the Uigurs' wrongs shouldn't matter. When court of competent jurisdiction finds that an act of the executive branch is illegal, the President, having taken an oath to "faithfully execute" an office whose chief duty is to "take care that the laws be faithfully executed," is oath-bound to order that the illegal activity cease. His failure to do so is grounds for impeachment.

But we have a President whose word isn't worth the spit behind it, and a Congressional majority blinded by partisanship. So the illegal (and inhumane) action of holding innocent non-combatants prisoner will continue, forever or until we elect a better President, whichever comes first.
But the story faded away. Too much else happened to distract those unhappy with the president, and you have to wonder whether there's an administration strategy here - do so many outrageous things, like claiming the president has the authority to ignore any law he decides he should if you think about what the constitution really says, and no one will be able to focus on any one single "outrage" for more than a day or two. You just overwhelm your opponents be giving them too many good targets. They get all confused. It works.

But this one issue was just resolved. The answer was Albania. Isn't it always?

Note this from Reuters -
WASHINGTON, May 5 - The United States said on Friday it had flown five Chinese Muslim men who had been held at the Guantanamo Bay prison to resettle in Albania, declining to send them back to China because they might face persecution.

The State Department said Albania accepted the five ethnic Uighurs - including two whose quest for freedom went all the way to the U.S. Supreme Court - for resettlement as refugees.

The Pentagon said 17 other Chinese Uighurs remained at the prison for foreign terrorism suspects at Guantanamo Bay, Cuba, because, unlike the five sent to Albania, they were still deemed "enemy combatants."

... State Department spokesman Sean McCormack said Albania's resettlement of the men was an important humanitarian gesture, and expressed U.S. appreciation.
Something is up when our government is publicly saying nice things about Albania, which used to be one of the two remaining hard-line old-style "Stalinist utopias" left in this world, Cuba being the other - although things in Albania have changed quite a bit as they really would like to join the European Union.

And Reuters does mention the "back story."

This was not exactly humanitarian - on April 17th the Supreme Court had "declined to consider" whether a federal judge actually could just free these two, as their detention was flat-out illegal, but the issue was far from over -
Barbara Olshansky, a lawyer for the New York-based Center for Constitutional Rights representing the two men, said their case was due to be heard again in court on Monday. Olshansky said the U.S. government's decision to send them to Albania was made "to avoid having to answer in court for keeping innocent men in jail."

"We had no idea they were going to Albania. We didn't have any time to get anything on the ground to assist them with resettlement or to find out about whether they are trying to send them into some kind of detention," Olshansky said.
Well, if Albania has any need to suck up to China, they could jail these guys and torture them - make the eat the local cuisine (think stewed goat and garlic) and listen to Albania folk music (excruciating). But we asked them not to do that, as the Pentagon spokesman said - "The United States has done the utmost to ensure that the Uighurs will be treated humanely upon release. Our key objective has been to resettle the Uighurs in an environment that will permit them to rebuild their lives. Albania will provide this opportunity."

Everyone should have a second chance in Albania.

The Chinese are pissed, and their foreign ministry on April 20 said the United States should "repatriate Chinese-nationality terror suspects" as quickly as it can be arranged - and a Pentagon spokesman shot back - "The United States has made it clear that it does not expel, return or extradite individuals to other countries where it believes that it is more likely than not that they will be tortured or subject to persecution."

There's no small irony in what the Pentagon spokesman said. The same day we sent the two Chinese "mistakes" off to the good life in Albania we were getting hammered in UN hearings about torture and rendition (discussed here - we blustered and denied, and were met with known facts and logic, and what could be called derision).

In any event, it would be wise to remember the core issue, and what's happening.

Hilzoy says this -
Arguments in the Uighurs' appeal were scheduled to be heard on Monday morning. (I was going to go to DC to hear them.) I wish I could think it was just a coincidence that after over a year of searching, the administration found a country willing to take the Uighurs today. But I can't. This administration has built up quite a track record of freeing people (or, in Jose Padilla's case, bringing unrelated charges) just in time to render their appeals moot, thereby preventing the courts from finding their conduct illegal or unconstitutional.
Yep, the administration dodged a bullet. Thank you, Albania, all is forgiven.

The first amendment attorney Glenn Greenwald says this -
The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures - from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants - but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.

The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in the cases of Yaser Hamdi and Jose Padilla - two American citizens whom the administration abducted (in Padilla's case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming - based solely on George Bush's secret decree - that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.

But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush's decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla's case, the administration - one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla's 3 1/2 year lawless incarceration - suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla's claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.

And now, they have done the same thing in the case of the Uighur detainees.

... Of all the abuses and excesses engaged in by the administration, the one that I am endlessly amazed can prompt defenses - even from the most zomibified Bush followers - is the administration's claim to have the power to incarcerate - indefinitely - U.S. citizens without any charges. Even the administration knows that much of their conduct is indefensible, which is why they abandon their efforts when they are forced to defend the legality of their behavior.
How does that thing about trail lawyers go - if you can't argue the facts, argue the law? And if you can't do that, bamboozle the jury with emotional appeals and jingoistic patriotism - but then that Moussaoui fellow didn't get the death penalty, did he? And when, as in this case, you face a panel of judges and not twelve untrained, rube jurors, and you have exhausted your options - and the president himself is going to lose the one key gonzo power that makes him very, very happy - off course you send the plaintiffs to Albania. The problem goes away. Or it goes away until the next case, and you hope Albania will be again the land of opportunity - where folks can rebuild their lives.

The whole thing stinks, of course, but this may be the start of a new tourist campaign - "Come to Albania, the land of fresh starts." Heck, they could even build a fancy statue at the port of Vlorë with some words at the base about giving Albania those huddled masses yearning to be free. The French gave us one. Maybe they'd like to build another.

Posted by Alan at 18:29 PDT | Post Comment | Permalink
Updated: Saturday, 6 May 2006 18:33 PDT home

Monday, 6 February 2006
Question Time: The Attorney General Smiles
Topic: The Law

Question Time: The Attorney General Smiles

Each week should start off with a dramatic political event that sweeps all the other news off the table. Monday, February 6, 2006, we got that - a Watergate-style senate hearing with big issues, angry words, evasions, posturing - and, after the hearings, more of the same as the participants popped up on all the cable new talks shows with refinements of the big issues, angry words, evasions and posturing. The New York Times summary opened with this - "Attorney General Alberto R. Gonzales told skeptical senators today that the Bush administration's domestic eavesdropping program is legal, constitutional and vital to national security in a time of terrorism."

They were skeptical (some of them, even some key Republicans). It didn't go that well, but it was a fine day for political junkies and folks who think about where this country is headed - full of heated exchanges about the constitution and the law and who has the power to decide what they mean, and who doesn't. These are core issues, and the event made up for the dreary big story from the previous evening, the Pittsburgh Steelers winning Super Bowl XL in Detroit. (Even those of us born and raised in Pittsburgh were forced to admit it was a sloppy game by two teams playing badly, with bad calls from the officials - not an XL game but more of a S.)

Of course there was other Monday news. The Cartoon Wars became even more intense and deadly, as the BBC reported Four Killed In Cartoon Protests. Yes, that's a terrible headline with a badly placed modifier, evoking the film "Who Framed Rodger Rabbit" and all that careening through Toontown - but this is serious stuff.

See Christopher Hitchens here and his "case for mocking religion" -
As it happens, the cartoons themselves are not very brilliant, or very mordant, either. But if Muslims do not want their alleged prophet identified with barbaric acts or adolescent fantasies, they should say publicly that random murder for virgins is not in their religion. And here one runs up against a curious reluctance. ... In fact, Sunni Muslim leaders can't even seem to condemn the blowing-up of Shiite mosques and funeral processions, which even I would describe as sacrilege.

... The question of "offensiveness" is easy to decide. First: Suppose that we all agreed to comport ourselves in order to avoid offending the believers? How could we ever be sure that we had taken enough precautions? On Saturday, I appeared on CNN, which was so terrified of reprisal that it "pixilated" the very cartoons that its viewers needed to see. And this ignoble fear in Atlanta, Ga., arose because of an illustration in a small Scandinavian newspaper of which nobody had ever heard before! Is it not clear, then, that those who are determined to be "offended" will discover a provocation somewhere? We cannot possibly adjust enough to please the fanatics, and it is degrading to make the attempt.
Hitchens, addressing all the threats of violence for what was published, argues civil society means that "free expression trumps the emotions of anyone to whom free expression might be inconvenient," and says it's "depressing to have to restate these obvious precepts," and of our government's tut-tut reaction says it's "positively outrageous that the administration should have discarded them at the very first sign of a fight."

On the other hand, a long item from Tristero at Hullabaloo argues this about the cartoons as a "statement" about the absolute rightness of free speech -
The events of the cartoon riots, in all their mad senselessness and fatal tragedy, reflect - epitomize - some of the worst but most virulently widespread presumptions of our time: the arrogance and shallowness of white boy moralizing; the maniacal self-destructive sense of sheer helplessness that descends into pointless murder, destruction, and horror.

As I see it, both the decision to commission and publish the cartoons and the riots that followed simply defy comprehension not because one couldn't predict the consequences but because one could, with depressing ease. Unless they come to their senses, the white do-gooders are gonna get us all killed in their crusades. And the recipients of all this do-gooding are gonna do the exact same thing when their fury at the do-gooders is cynically stoked and channeled into senseless destructiveness and murder.

In short, no more cartoon riots. No more cartoon editors. No more cartoon evil cavemen. And no more cartoon American administrations. It's time not to listen to what our gut says, it's time to give it some Alka-Seltzer and get it to shut up so we can think.
And on and on it goes.

There was other news - Bush Proposes $2.77 Trillion Budget, with the subhead "More money sought for defense, cuts in most other areas..." That's the plan. Big boosts for defense spending - and cutbacks for education and Medicare and programs for the poor and for the Centers for Disease Control in Atlanta and for all the other stuff for the unlucky and "irresponsible." And Bush insists that current and upcoming tax cuts for the very wealthy be made permanent. The consensus seems this one will be hard to get through congress. Some of the unlucky, and many who earn less than five hundred grand a year, actually vote - and this may look, to them, like a plan somewhere between mean-spirited wrong-headed nastiness and sheer madness. Congressmen and some Senators face the voters late in the year, and even with clever gerrymandering and electronic voting machines they sense potential trouble. Will this fly? In the House, Tom DeLay is no longer around to twist arms, and, in the Senate, Bill Frist lost his mojo a long time ago. It's a story in the making.

And Iran is still there, seemingly on its way to building nuclear weapons. The International Atomic Energy Agency (IAEA) late the week before referred Iran to UN Security Commission for some sort of action. Iran tossed them out, shut off all monitoring, dropped out of the nonproliferation treaties, and threatened sanctions, and we said diplomacy was necessary but suggested military action was possible. (Sounds familiar.) Wesley Clark explains here what the military action would look like - over four thousand precision bombings as all the sites are so scattered, and, where the sites are co-located with hospitals and schools, the insertion of special-ops teams on the ground for even more precision. No invasion. Norman Solomon here explains what happens next - regional war or worse - and says, given who's in charge here, and there, that'll happen. It's another story in the making.

The immediate story was the Senate hearing.

Of course, to set the stage properly for that, one should note this from Newsweek hit the wires over the weekend before Monday's print distribution, just a little something from the administration, specifically the Justice Department -
Steven Bradbury, acting head of the department's Office of Legal Counsel, went to a closed-door Senate intelligence committee meeting last week to defend President George W. Bush's surveillance program. During the briefing, said administration and Capitol Hill officials (who declined to be identified because the session was private), California Democratic Sen. Dianne Feinstein asked Bradbury questions about the extent of presidential powers to fight Al Qaeda; could Bush, for instance, order the killing of a Qaeda suspect known to be on U.S. soil? Bradbury replied that he believed Bush could indeed do this, at least in certain circumstances.

... A Justice Department official, who asked not to be ID'd because of the sensitive subject, said Bradbury's remarks were made during an "academic discussion" of theoretical contingencies. In real life, the official said, the highest priority of those hunting a terrorist on U.S. soil would be to capture that person alive and interrogate him. At a public intel-committee hearing, Feinstein was told by intel czar John Negroponte and FBI chief Robert Mueller that they were unaware of any case in which a U.S. agency was authorized to kill a Qaeda-linked person on U.S. soil. Tasia Scolinos, a Justice Department spokeswoman, told NEWSWEEK: "Mr. Bradbury's meeting was an informal, off-the-record briefing about the legal analysis behind the president's terrorist-surveillance program. He was not presenting the legal views of the Justice Department on hypothetical scenarios outside of the terrorist-surveillance program."
Ah, theoretical contingencies.

You see, the Justice Department and the administration claims the president has the authority to declare citizens "enemy combatants" with no appeal of that declaration (you can't claim a mistake has been made), to hold them without charges or council for as long as the Justice Department and the administration deem necessary, and to hold them with no communication with anyone, and never have a trial or hearing of any kind - and neither the courts or congress can object, as this in one of the plenary powers a president has in time of war, or in this case, in time of what everyone seems to think is pretty much the same as a war, given that "authorization of force" to deal with terrorism almost five years ago. Close enough. Now on the president's word alone, citizens can be selected and killed, as due process would not apply? So says the Justice Department's acting head of the Office of Legal Counsel. Theoretically.

See this - "...lettres de cachet were letters signed by the king of France, countersigned by one of his ministers, and closed with the royal seal, or cachet. They contained orders directly from the king, often to enforce arbitrary actions and judgments that could not be appealed." It's a fourteenth century French thing, but really made useful by Louis XVI - but then they had that revolution. But then Napoleon brought them back. Then on April 3, 1814, they were gone again. So was he.

They're back - and you didn't think these guys in Washington liked anything French.

Also to set the stage, the day before the Gonzales hearing on the NSA program, Senate Judiciary Committee chairman Arlen Specter, the Republican from Pennsylania set to run the hearing went wild (sort of), saying the administration's legal justifications for its warrantless spying program have been "strained and unrealistic" - so far. And he opened the hearing (see here) with the idea the administration may have violated federal law's "forceful and blanket prohibition against any electronic surveillance without a court order."

Well, CNN covered the hearing fairly - who said what - and Emily Bazelon offers Cowardly Lions: Congress talks tough to Gonzales - and then turns and runs.

The hearing was odd.

Gonzales said what everyone expected - congress cannot override a president's battlefield decisions, as the constitution says the president is the commander-in-chief of the armed forces, so what he did was legal, as all the world is a battlefield now, even Akron and Tulsa one assumes, and anyway, congress told him to act as commander-in-chief of the armed forces when they overwhelmingly passed that "authorization of force" thing a few years back. So it's all "legal and reasonable." That was the whole of what Gonzales had to say - and no, congress could not have access to the administration's internal legal findings that this was how things were.

Case closed? Hardly.

Gonzales got hammered. No, the "authorization of force" in no way posited all the world is a battlefield now, including here at home - the administration asked for that and it was denied. Gonzales smiled. Everyone knows (he assumes) all the world is a battlefield now, including here at home.

Gonzales was asked why not use the existing law and get the warrants. He smiled - takes too much time, and not relevant anyway.

Why not ask for a change in the law if the NSA was using new techniques not covered in the 1978 law as amended so many times. He smiled. The law was not applicable here.

Why not inform congress of what was up, as required by law? He smiled. The law was not applicable here, and they really did inform a few people - not the ones listed in the law, but close enough.

Senator Leary - "No man is above the Law." Gonzales smiled - as that obviously depends on how you read the constitution.

Senator Kennedy said that Democrats and Republicans are "united in their desire to keep Americans safe" but suggested if it turns out that this warrantless spying program is ruled illegal - if a court is forced to throw out evidence against an accused terrorist because it was obtained unlawfully - then wouldn't we all be less safe? The question was blunt - "What if you're wrong?" Kennedy didn't mention it but two defendants actually charged with crimes last week filed motions for suppression of evidence based on the claim that the evidence was obtained illegally by the NSA sweeps. Gonzales smiled he said the administration wasn't wrong.

Judiciary Committee chairman Arlen Specter - "There are a lot of people who think you're wrong. What do you have to lose if you're right?"

Gonzales - "Obviously we would consider and are always considering methods of fighting the war effectively against al Qaeda."

That's an answer?

Senator Russ Feingold had another axe to grind. Last year during Gonzales' confirmation hearing he asked Gonzales, directly, whether Gonzales believed that the president has the power "to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country." Gonzales shrugged off the question then as "hypothetical" - but obviously Gonzales knew that was just what was going on at the time. Russ was not pleased - so he asked about that

Gonzales said, now, that of course the president had authorized "warrantless wiretaps" - but since he hadn't done anything "in violation of the criminal and foreign intelligence surveillance statutes of this country," asking about the power to engage in such a violation had been in fact a "hypothetical" question back then - and he told the truth then, and he was telling it now.

The guy is good.

Next was Lindsey Graham, Republican, South Carolina - if the administration thought congress somehow or other "implicitly" authorized warrantless intelligence work when it adopted that use-of-force authorization way back when, next time you guys ask for one you may not get it, as that was not what congress authorized - and anyway, where are the boundaries here - does the Constitution also allow the president to ignore that new McCain law that prohibits the United States from engaging in torture? Gonzales smiled - torture wasn't the topic, was it?

And on it went. The full transcript is at the Washington Post site, in two parts, here and here, if you really need more detail.

The best part needs to been seen, however. That would be here (Windows Media Player) and here (QuickTime). As things were getting underway, Senator Feingold said he wanted Gonzales be put under oath. Senate Judiciary Committee chairman, good Arlen Specter, said it wan't necessary. You could trust the guy. Feingold insisted. Gonzales said he had no problem testifying under oath. Specter no oath, period - and it's not the decision of the witness - as HE was chairman. Feingold forced a vote, and lost - all Democrats voting for the testimony to be under oath, and all Republicans voting against that idea. The Democrats lost - they are the minority party, after all.

This was somewhat academic. False testimony to congress is against the law - very bad - but then, it's not the same as perjury (lying under oath) - which is really, really bad.

Specter - "This is really not a very good way to begin this hearing." No kidding.

The whole event might strike some, on one side of the national debate, as absurd, and on the other side, more than a tad ominous.

From that other side, note this from Digby at Hullabaloo (go there for links to all the supporting documentation) -
I'm beginning to wonder if the Democrats might not have some information that the administration has done domestic surveillance without a warrant. They keep asking. Pointedly. And Gonzales keeps saying that he isn't "comfortable" acknowledging the question.

It is indisputable that the administration has engaged in surveillance of political groups. We know this. It has been verified. We also know that they believe that political dissent gives aid and comfort to the enemy. The president says so himself.

Therefore, it is entirely reasonable to suspect that this administration would use this illegal surveillance program for purposes other than that to which they have admitted, particularly since they consider political dissent to be bordering on treason. This is, remember, an administration that has made a fetish of the politics of personal destruction. The gathering of "oppo research" is the life's blood of their political strategy and it goes all the way back to the Big Kahuna.

... Remember: Watergate was about bugging the Democratic National Committee. The "3rd rate burglary" was to replace an illegal bug that had been planted on the telephones of prominent Democrats.

The lesson of Watergate for the chagrined Republicans was that they needed to be more forceful in assuming executive power and they needed to be more sophisticated about their campaign espionage. This is what they've done.

Anybody who even dreams that these guys are not using all their government power to spy on political enemies is being willfully naive. It is what they do. It is the essence of their political style. This is Nixon's Republican party and they have finally achieved a perfect ability to carry out his vision of political governance: L'etat C'est Moi. If the president does it that means it's not illegal.
What's with the Louis XVI stuff? Is everyone seeing that now? But he has a point.

The there is this - you letthe firemen in when the house is burning but that's not what we have here now -
Taking the most extreme powers granted under emergency conditions - and interpreting even those powers as extremely as possible - the current administration has undertaken a vast backfill operation. On 9/11, they jumped to the very bottom of the civil liberties-limitation ravine and have systematically shored up, over the past four-and-a-half years what I'm now thinking of as Operation Backfill. For example, in the past few days I've run across repeated accounts of how they considered shooting down Flight 93 on the fateful day. Well, if we were willing to do that, the reasoning seems to go, what's wrong with torture, surveillance, killing without trial an individual suspected of plotting terror? Isn't granting the administration the right to shoot down a plane with a majority of innocent civilians aboard evidence enough that we can undertake namby-pamby warrantless surveillance? In other words, we already turned over, in our panic after 9/11, the right to do anything - anything - to protect us. Any objections we make now to lesser violations than loss of life (which we implicitly agreed to), the administration intimates, are silly.

Aside from continuing actions that are appropriate during an emergency - an attack happening this very minute - there's been a dilution and spreading of definitional terms on the proverbial slippery slope as well, making the slope not only steeper, but wider. Consider how we've gone from discussing a foreign terrorist piloting a plane to foreigners suspected of actively planning to pilot a plane to foreigners vaguely wishing they could pilot a plane into a landmark. And notice too the smudge between foreign and domestic, as well as the intentional blur from known terrorist to suspected terrorist to anyone who aids a terrorist to anyone who is "affiliated" with a terrorist (with "affiliation" totally defined by the executive branch), and from Al Qaeda to Al Qaeda enablers to Al Qaeda affiliates to people who mighta sorta kinda agree with Al Qaeda to American citizens who don't agree that the proper response to Al Qaeda's attack was invading Iraq (like Quakers).

What we are faced with is, as numerous observers have pointed out, is a perpetual, never-ending war, kind of a general war declared on "bad stuff" - bad people who think bad thoughts about America. This is declared to be an emergency situation, and one that will obviously never end because people will always resent and have bad feelings about the most powerful nation on earth, and thus the crisis is deemed - conveniently for the executive branch - eternal.

In short, this administration wants to argue that we will never, ever, ever be in a rational, analytical prevention phase, but more of one in which an arson unit is trying to come up with detection and preventive standards while the roof is raging on fire above their heads.

I'm not buying it.

Someone's got to tell Mr. Bush the fire's out and that what this country needs more than boogeyman visuals from its attorney general are firm, well-reasoned, coordinated, legal policies to ensure we don't catch fire again. Don't like the surveillance restrictions in FISA, Mr. Attorney General? Well, now's as good a time as any to offer calm rationalizations in front of the cameras of this country, using old, verifiable, truthful instances (the Brooklyn Bridge plot doesn't fly, Mr. Gonzales) or clear-cut, specific hypotheticals in which these "backfilled" rights violations should be legalized to spare us an attack. Then we can have a national conversation about what rights we're willing to give up in the trade-off for personal security. Simply relying on crisis-granted powers - and even those considered by most legal scholars as illegal - is not selling me.
This writer isn't buying it any longer. The question is, will more and more people not buy into the-sky-is-falling don't-think run presentation of the world right now? We'll see. There will be another day of hearings in a week or so. We'll see who's as unflappable as Gonzales.

As for Gonzales, he may be facing a post-post 9/11 world, not the world of 1784 in Versailles. This was a hard sell. If so, he should be glad he wasn't under oath.

Posted by Alan at 22:35 PST | Post Comment | Permalink
Updated: Monday, 6 February 2006 22:44 PST home

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