Torture-'n'-warrantless-wiretapping roundup
Much has happened since last I visited this issue. Let's recap, shall we?
- Marty Lederman at Balkinization, probably the premiere legal blog covering the administration's sub-Supreme Court legal maneuverings, says the draft Warner/Graham/McCain bill addressing treatment of detainees is better than the Administration's bill but still pretty bad -- likely to be used by administration lawyers to provide legal cover for actions otherwise clearly banned by Common Article 3 of the Geneva Convention. He also thinks sections 6 and 8 of the bill will be relied upon to prevent the courts from having oversight of the administration's actions in this area. Read his concerns in more detail here; another good analysis can be found at Obsidian Wings (part 2 here).
- The Senate Judiciary Committee apparently reported out at least three different versions Wednesday, some of which contradict each other, of a bill addressing the administration's use of warrantless wiretapping in violation of the Foreign Intelligence Surveillance Act. Glenn Greenwald directs us to this analysis, by a frequent commenter of his, on the various bills. My take remains: What part of "get a warrant" don't they understand?
- The administration's defenses of its warrantless wiretapping took another hit in court last week. The administration has argued that courts cannot hear suits challenging the program because doing so would damage national security. But the judge in this Oregon case ruled that when information about the program is already public (including a still classified phone-call log showing that calls to and from the plaintiff, a now-defunct Muslim charity, definitely were intercepted), the national-security horse is out of the barn. Judges in two other cases have ruled the same way, but this case goes beyond them. The government has argued that plaintiffs in other cases do not have legal standing to sue because they can't show that their calls actually were intercepted. And to be absolutely fair, the government has a good point here (albeit in a Catch-22 kind of way). But the plaintiffs in this case, thanks to the call log, have no such problem. All these cases are probably headed to the Supreme Court, and rightfully so.
- This article in Sunday's San Francisco Chronicle by staff writer Bob Egelko on the administration's post-9/11 legal maneuvering contains this interesting bit on piece on former administration lawyer John Yoo:
UC Berkeley law Professor John Yoo, who as a Justice Department lawyer was one of the Bush administration's chief legal theorists, summarized its view in his forthcoming book, "War by Other Means":
"We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch."
I looked at the Constitution and found nothing of the sort. But you're welcome to look for yourself.
There's probably more, but that's all I know of now.
