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Just a few. Really.
One word: Whiner.
Two words: Shut up.
Three words: Return the medal.
Four words: Confess and repent. Now.
Five words: Apologize to soldiers and marines
Six words: Give your royalties to our casualities.
Seven words: Get out of our lives for good.
You've heard all about the connection between having an abortion and developing breast cancer, right?
Hear this: no connection.
Reality. It works.
On the N&R's front page today, you will see an Associated Press report on fraud being committed in the aftermath of Hurricane Katrina. I'm all for locking up swindlers, but both the substance and the display of this particular story give me pause.
For one thing, this story doesn't fully grasp the level of fraud being committed by small and large companies, rather than individuals -- the kind of thing that even simple due diligence would turn up, such as the fact that the government had more home-repair grants than homes in nearly one out of five neighborhoods since Katrina. A simple search of Census data would have turned that up.
For another thing, looking at the play (front-page lede) and the size of the headline type, I might think that the incidence of fraud after this disaster was much greater than after previous disasters. And it might be. The Federal Emergency Management Agency (FEMA), whose handling of all things Katrina has come to seem, well, questionable says that the numbers aren't excessive in proportion to the number of people left homeless, etc.
But the starkest accusations are being made by the Government Accountability Office, the nonpartisan investigative arm of Congress. The GAO is so insistent on nonpartisanism that it bleaches every last bit of both politics and emotion from its reports, even when it finds itself returning to congressional panels year after year after year to report the same problems (as it has in, for example, certain Veterans Affairs issues). So when a GAO spokesman stands up and snarks, we should pay attention: The AP article quotes GAO spokesman Gregory Kutz on FEMA as saying, "I don't think they know the magnitude of the problem."
They probably don't. But neither do most Americans, which is why bloggers such as Scout have been spending so much time in areas hit by Katrina. There's not much they can personally, but they do what they can, and, perhaps more importantly, they continue to send out a distress beacon to the rest of the country: Our fellow Americans are in a world of hurt.
You can decide what's more important, that or the fraud. (And don't try to give the nonstarter answer that America is neither rich nor competent enough to handle that kind of multitasking.) But a year and a half after Katrina, we still have plenty to do. Whether or not we do it will tell Americans, and the rest of the world, whether we still aspire to be the country we always have aspired to be or whether we're now coasting on our reputation as other countries gaze, sick and angry, at the courage we exhibit in the face of our countrymen's suffering.
UPDATE: More info on NOLA bloggers and their subjects' plight here and here.
Long and technical story short, Sen. John McCain's presidential-campaign page at the online community MySpace was pulling in copies of a photo from a different server, which it shouldn't have been doing because that was incurring additional expenses from the guy, Mike Davidson, whose account it was. (His version of the story is here.) What McCain's online folks should have done instead was "locally host" the photo -- that is, download a copy, which Mike apparently wouldn't have minded, and posted it on their own server so that their own Web pages could include the photo without drawing from anyone else's Web resources.
Mike decided that if they were going to do that, he was going to replace the photo being pulled with one the senator perhaps wouldn't enjoy being associated with as much.
Meanwhile, as of 10:51 a.m. today, that photo is gone, but an editorial cartoon and an uncomplimentary (and NSFW) excerpt from the cartoon strip "Get Your War On" remain on the site.
I guess the candidates and their online folks still have a bit to learn. The Edwards campaign made what turned out to be a bad personnel choice in bloggers. The McCain campaign hired what turned out to be either inept or crooked Web designers.
The '08 presidential campaign was supposed to be the one where the 'Net and blogging firmly established themselves as campaign tools. And they might well turn out to be. But right now, the campaigns are still firmly stuck in 2005.
Remember that warrantless domestic wiretapping plan that the President said was so essential to protecting us from terrorism?
President George W. Bush has decided not to reauthorize the controversial domestic warrantless surveillance program for terrorism suspects and to put it under the authority of a secret special court, Attorney General Alberto Gonzales said on Wednesday."The president has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," Gonzales wrote in a letter to Senate leaders.
"Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," Gonzales said.
The program, adopted after the September 11 attacks, allowed the government to eavesdrop on the international phone calls and e-mails of U.S. citizens without obtaining a warrant, if those wiretaps are made to track suspected al Qaeda operatives.
Critics have said the program violated the U.S. Constitution and a 1978 law, the Foreign Intelligence Surveillance Act, which made it illegal to spy on U.S. citizens in the United States without the approval of the special court.
The president insisted in 2004 that a wiretap of Americans in this country requires a court order. Then, after the New York Times disclosed the existence of his illegal program, he insisted that even if the program did violate FISA, he had the right to run it anyway, an argument based on no existing constitutional principle, statute or regulation and pretty much already rejected 50 years ago in the Supreme Court's Youngstown case.
It would be tempting to think the president declined to reauthorize his program because he finally had come to the conclusion that it was illegal and wrong. And it would be downright awesome to think there was a basis for believing that he was declining to reauthorize now because the threat of terrorism had greatly subsided.
But I see no evidence that either is true.
I have a guess -- that the substance and timing of this decision has to do with the Democratic takeover of Congress and some promised hearings -- but that's only a guess.
Whatever the reason, and notwithstanding the fact that this program never should have been authorized in the first place, this is excellent news. With it, the country takes a big step back toward the rule of law.
A few weeks ago some commenters took issue with my review of Michelle Goldberg's book "Kingdom Coming," about the rise of Christian nationalism in America. In particular, they contested the notions that such nationalists 1) were all that numerous and 2) had any real power. For those interested in learning more about the subject, award-winning historian Garry Wills writes about it for the New York Review of Books.
Offered without comment:
Vice President Dick Cheney, deviating from previous practice, admits that the U.S. waterboards prisoners, adding, "It's a no-brainer for me."
I live here in Greensboro, but various relatives have vacation places and/or live up in the mountains, so I'm passingly familiar with Asheville-area politics. One of the enduring monuments of those politics is 11th District Rep. Charles Taylor, who ended up in today's Wall Street Journal (subscription-only) for all the wrong reasons, most having to do with self-dealing through pork earmarks. TPMMuckraker summarizes:
Rep. Charles Taylor (R-N.C.) has a remarkable talent for steering federal dollars to benefit properties that he owns, The Wall Street Journal reports this morning.As you read about the millions that Taylor has earmarked for himself ($11.4 million to widen a highway that runs through a resort town where his development companies own thousands of acres, $3.8 million for a park that is "directly in front of the Blue Ridge Savings Bank, flagship of his financial empire"), recall Taylor's dogged opposition to federal money going to a 9/11 memorial. As chairman of the House Interior Appropriations subcommittee, Taylor was for years the sole impediment to releasing the $10 million in federal funds needed to buy the land for a memorial in Shanksville, Pa., where United Airlines Flight 93 crashed.
Taylor's opposition to the effort, The Washington Post explained at the time, "comes down to principle: The federal government is already the largest landowner in the country, and he believes that no additional tax dollars should go to more land buying for this or any other memorial."
When challenged on his earmarks by the Journal, Taylor sounds a different principle:
"The same tax dollars would be spent," [Taylor] said through a spokesman. "The decisions about where and how much would just be left to unelected bureaucrats."
Pork is a bipartisan, and very expensive, problem. (For more info on pork, I cannot recommend highly enough "Adventures in Porkland: How Washington Wastes Your Money and Why They Won't Stop," by Brian Kelly, which although its examples are now somewhat dated, remains an excellent, enraging, amusing primer on the subject.) But getting pork for your district is one thing. Getting pork to enrich your very own interests, however, is something else entirely and about the unloveliest behavior a congresscritter can engage in without the involvement of another person.
"We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."
-- Supreme Court Justice Robert Jackson at the Nuremberg war-crimes tribunal in 1946. The 60th anniversary of the first verdicts in those trials is today.
Not only did President Bush sign into law the bill creating a spending database so that the public can keep an eye on federal pork, he even invited bloggers to the signing ceremony.
(Only Republican blogger Glenn Reynolds and the site Porkbusters.org are mentioned in the article, but Josh Marshall's TalkingPointsMemo.com also played a signficant role. Marshall's site has performed similar "blogswarm" citizen journalism in the past by inviting readers to pin down their reps and senators on Social Security privatization.)
The fact is that this was a bipartisan, if not nonpartisan, effort. When everyone can keep an eye on how Congress is spending our money, even if we disagree on those priorities, everyone wins. Good job all around.
Why is the president so eager to get his version of the bill through Congress? Holden at First Draft has a hypothesis. I'm not a lawyer, so I don't know exactly how valid his analysis is. But if he were correct, the ramifications would be unparalleled in U.S. history.
UPDATE: Holden might not be a lawyer (I don't know, actually), but Marjorie Cohn, a professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists, most assuredly is. And she says basically the same thing as Holden, albeit more politely:
Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva's Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.
Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.
Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech, Bush took credit for working with Senator John McCain to pass the DTA.
In fact, Bush fought the McCain "anti-torture" amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.
Bush signed the bill, but attached a "signing statement" where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.
The Democratic Leadership Council, the centrist, pro-business wing of the Democratic Party from which Bill Clinton's presidency arose and which has been led by Sen. Joe Lieberman of Connecticut, has had its tax exemption revoked by the IRS, Forbes reports. (Annoying free registration required.)
Tax-exempt organizations (of which there are many flavors) are a complicated issue, and the intermingling of such organizations with politics and politicians more complicated still. But the gist of the IRS's problem with the DLC is that it favored a specific subset of Democrats rather than society as a whole. That was basically the same argument, but with respect to Republicans, the IRS used to revoke the Christian Coalition's exemption several years ago, which makes sense inasmuch as the two groups had the same kind of tax exemption.
The DLC also owes more than $20,000 in back taxes. A quick search didn't turn up any specific info on the DLC's budget, so I don't know how big a financial problem this is for the group. (Donations to the DLC and other, similar organizations are not tax-deductible.) Its think tank, the Progressive Policy Institute, has an annual budget of around $3 million.
Much has happened since last I visited this issue. Let's recap, shall we?
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.
TO: CIA counterterrorism officers
FROM: Lex
DATE: 9/12/2006
RE: Lawsuit insurance
If you hadn't broken well-known, clearly established U.S. and international law, you wouldn't need lawsuit insurance.
(Aside: As a taxpayer, I'd like to know: Why, exactly, am I paying for this insurance? And what connections, if any, do the people who run this "private insurance plan" have to the administration?)
For those interested, the Senate Intelligence Committee has posted the first two parts of what will be a five-part report comparing postwar findings on Iraq's WMD capabilities and terrorism involvement with prewar assessments (Part 2) and use by the intelligence community of information provided by the Iraqi National Congress (Part 3). I've only just begun to look at them, but I'd say the biggest headline so far (p. 22ff of Part 2) is that no evidence was found of any Iraqi effort to develop or obtain nuclear weapons after 1991, although scientists and others who had worked on the program before then were kept in jobs/positions where they might one day resume such work.
But read for yourself.
... and Congress, finally, listens: All the anonymous holds have been dropped, and the S. 2590, the Federal Funding Accountability and Transparency Act of 2006 passed the Senate last night by unanimous voice vote. It still must be reconciled with its House version before being sent to the president, and there's very little time left in this congressional session. But at least the bill isn't being held up by mystery senators anymore. Bloggers of all political descriptions who smoked those senators out deserve all the credit for getting us to this point.
Marty Lederman of Balkinization, who knows more about this stuff than I do (and probably more than you do), assesses the administration's legislative response to the Supreme Court's Hamdan decision:
Although section 6 in effect says that the U.S. will "comply" with Common Article 3 of Geneva even if such techniques are used, that's wrong. These techniques are -- at least in many cases -- "cruel treatment and torture" prohibited by Common Article 3. Thus, this bill would in effect authorize the United States to breach its treaty obligations. Perhaps that's something we should do -- perhaps not.* But if so, we shouldn't pretend that we're not engaged in such cruelty and torture, and we shouldn't engage in the fiction that we are in compliance with the Geneva Conventions. The decision to authorize such horrifying techniques, and to thereby be the first nation to adopt breach of Geneva as official state policy, is a solemn one, and it should be treated with the seriousness that it deserves -- without euphemism or obfuscation. (Emphasis added.)
Hear, hear. I doubt a winning case can be made for abrogating Geneva. But I'm willing to listen, honestly and straightforwardly, to any such case that's made honestly and straightforwardly. This, however, ain't that case.
UPDATE: Oops, forgot to say why this isn't that case: The president utterly misrepresented some key facts in order to suggest that torture had benefited our anti-terrorism efforts. Here's what he said about Abu Zubaydah:
"Within months of September the 11th, 2001, we captured a man known as Abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country. Zubaydah was severely wounded during the firefight that brought him into custody — and he survived only because of the medical care arranged by the CIA."After he recovered, Zubaydah was defiant and evasive. He declared his hatred of America. During questioning, he at first disclosed what he thought was nominal information — and then stopped all cooperation. Well, in fact, the 'nominal' information he gave us turned out to be quite important. For example, Zubaydah disclosed Khalid Sheikh Mohammed — or KSM — was the mastermind behind the 9/11 attacks, and used the alias 'Muktar.' This was a vital piece of the puzzle that helped our intelligence community pursue KSM. Abu Zubaydah also provided information that helped stop a terrorist attack being planned for inside the United States — an attack about which we had no previous information. Zubaydah told us that al Qaeda operatives were planning to launch an attack in the U.S., and provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained — one while traveling to the United States."
And here's the truth:
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" — a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics — travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques. […]
"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."
Spencer Ackerman at The New Republic puts it this way:
... most Americans don't remember--and can't be expected to remember--newspaper coverage of Al Qaeda for a seven-month stretch between the attacks and Abu Zubaydah's capture. Bush is exploiting that ignorance to tell the American people an outright lie in order to convince them that we need to torture people. As Bush once said in another context, if this is not evil, then evil has no meaning.
Lederman's footnote (asterisked in his excerpt above) explains why we don't need to torture people:
The thrust of the President's speech is that such techniques -- let's call them "torture light," since the President is so insistent that we never "torture" -- are absolutely necessary to preventing terrorist attacks. Apparently the Pentagon hasn't gotten the memo. At a briefing this [Wednesday -- Lex] morning, Army Deputy Chief of Staff for Intelligence John Kimmons forcefully argued that:
I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. . . . Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.
We don't need abusive practices in there. Nothing good will come from them.
Jack Balkin, here.
Marty Lederman, here.
Scotusblog roundup of legal analysis and newspaper editorial opinions, here. (Scotusblog, which focuses mainly on the Supreme Court's rulings, didn't analyze the district-court ruling itself.)
A consensus is emerging among the people who actually know what they are talking about, all along the political spectrum: The judge's ruling was rushed (possibly to preclude the case's being consolidated with another in California). It was more a kitchen-sink summation than a model of analytical grace. On some issues, particularly standing and the First Amendment finding, it's kind of wobbly. Relatedly, it didn't even refer to the Supreme Court's June Hamdan ruling, which demolished the administration's legal and constitutional defenses for the program. But it got the big picture right.
UPDATE (8/21): Jonathan Turley, a law professor at George Washington University who has testified before Congress against the NSA program, concurs ... and follows that analysis to its logical conclusion:
While Atty. Gen. Alberto Gonzales insists that the legal authority for the program is clear and filed a notice of appeal with the 6th U.S. Circuit Court of Appeals, few experts outside of the Bush administration support the program. To the contrary, federal law seems perfectly clear in prohibiting warrantless surveillance. ...The far more difficult question is the implication of Taylor's ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid. Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order. ...
The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge. ... Certainly, nobody wants to mention the "I" word, particularly not the Democrats who believe that the threat of impeachment could scare away independent voters in the November elections.
Court decisions, however, may make it increasingly difficult for members to ignore a squealing constitutional violation in their midst.
For those who favor impeachment, are you really willing to put the country through that? For those who oppose it, do you really think it's a good idea to let a president get away with willful, intentional and serial felony violations of criminal law?
The pig is in the parlor, pooping on the carpet, ladies and gentlemen, so let us have this conversation.
David A. Passaro was a CIA contractor who was convicted yesterday of one felony-assault count and three misdemeanors in beating an Afghani detainee who later died.
Riggsveda suggests that whatever his ultimate sentence, he will have gotten off very, very lightly ... and that he was the kind of sociopath who should never be given authority over other human beings.
(Updated repeatedly below.)
President Bush's warrantless domestic wiretapping program, as actual lawyers have made quite clear, is a direct criminal violation of the Foreign Intelligence Surveillance Act and of the Fourth Amendment. These folks also have argued pretty convincingly that the defenses raised by the administration -- that the surveillance was permitted under the Authorization for the Use of Military Force against Iraq and/or the president's constitutional war-making powers -- do not hold water.
But, as resident troll jaycee is fond of saying, no court has ruled on the program's constitutionality or legality. Until now.
A federal court has struck it down -- on quite a number of grounds -- and ordered the president to end it. Right. Now.:
DETROIT (AP) -- A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.
"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," Taylor wrote in her 43-page opinion.
I'll have more to say on this after reading the opinion, but the short version is: This is huge. A federal court has ruled that the president of the United States is violating the Constitution and has ordered him to stop.
And although I'm not a lawyer, my understanding is that because the judge struck the program down on Constitutional grounds, any bill Congress might pass legalizing the program without addressing Fourth Amendment concerns would not survive court scrutiny.
Ben Franklin, asked after the Constitution was signed what form of government had been created for the new nation, famously answered, "A republic, if you can keep it." To Franklin, "citizen" was a job, not a title.
Ladies and gentlemen, welcome to Constitutional Crisisville, Population: You.
UPDATE: Ruling here, permanent injunction here. Quick observation: The judge found the program violated "the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the Constitution, the FISA [Foreign Intelligence Surveillance Act] and Title III."
That's a lot of violations. And the FISA violation is a felony.
UPDATE: Unsurprisingly, the government appears to be filing for an immediate stay of the injunction while the ruling is appealed. I say "unsurprisingly" because, given the stakes, I never doubted but that one side or the other would take this case all the way to the Supreme Court. The only question I have is whether the appeal will be expedited or follow the normal course.
A bit more background on the appeals process: Typically, the trial judge will grant or refuse to grant a stay depending on which choice maintains the status quo -- that is, in this case, everything else being equal, she'd be more likely to grant the stay than not because granting it would maintain the status quo. Then, if the 6th Circuit upheld her ruling, the stay would be lifted and the permanent injunction would take effect.
However, if she thinks the government has little to no chance of prevailing on appeal, she might refuse to grant a stay. That decision could in turn be appealed, and the 6th Circuit would rule one way or the other on it, before the appeal of the case itself goes forward.
Caution: The sources I've been able to find on short notice generally lay out the process as I've described it, but they don't agree in every detail. And, as always, I Am Not A Lawyer. If any real lawyer spots an error, by all means let me know.
Justice Department statement (via TPMMuckraker.com; statement not yet posted at www.justice.gov):
The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties. Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror, the Department of Justice has appealed the District Court's order. The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal. [UPDATE: The court will hear arguments Sept. 7 on the government's motion for a stay. The permanent injunction, for now, will not be enforced at least until the judge rules, sometime after those arguments.]
Regardless of your feelings on a stay, the question of whether or not to have one now doesn't have to be litigated, so the lawyers and courts can focus on the substance of the case. That decision eliminates a possible delay in the appeal process and brings a final ruling closer, so I take that as good news. I misunderstood: Parties have agreed on a temporary stay until the judge can hear arguments on a stay Sept. 7 and then rule.
As always, Glenn Greenwald is your expert.
UPDATE: Here's another opinion on the judge's ruling, from "Publius," a lawyer who, although "sympathetic to the result," calls it "an atrocity. ... premature, unsupported, and in violation of elementary civil procedure." I've got to say his analysis is far more substantively critical than any I've read from people who are NOT sympathetic to the result.
UPDATE (8/20): Publius elaborates on his procedural concerns ... and some of his commenters suggest he's giving the government way too much benefit of the doubt. I don't know who's right, but it's an interesting discussion. Also, Greenwald elaborates on the quality of the ruling and how much (or, more appropriately, how little) it means.
Thanks to frequent commenter Fred Gregory, I've learned that the Senate Judiciary Committee has quietly returned to the White House the nomination of William J. Haynes to the 4th U.S. Circuit Court of Appeals. William J. Haynes is better known in some circles as "Jim" Haynes, my freshman hall counselor at Davidson back in the day.
According to this article in the Columbia newspaper The State, Haynes' nomination never got out of committee because U.S. Sen. Lindsey Graham, R-S.C., wouldn't support it because of Haynes' role in authorizing "aggressive questioning" (i.e., torture) of detainees. With a 9-7 majority on the committee and Democrats threatening a filibuster, Republicans needed unanimity to move the nomination to the Senate floor, and although Graham publicly denies it, it would appear Graham had privately made it clear to his colleagues that that unanimity would be coming shortly after ice skating commenced in Hell.
NRO's Jon Adler says he finds Graham's opposition "less upsetting than Graham's apparent role in preventing Haynes from receiving an up-or-down vote on the Senate floor." Graham previously had called for up-or-down floor votes on all judicial nominees.
I'm guessing that it's just coincidence that Graham, along with the Senate's other GOP "renegades," Chuck Hagel of Nebraska and John McCain of Arizona, is frequently mentioned as a possible 2008 presidential contender. Graham, a former military lawyer himself, knew a great deal about the law regarding treatment of detainees, and as the State article linked above says, he didn't approve of Haynes' handling of it:
In a dramatic showdown last month, Graham grilled Haynes at his confirmation hearing, cutting him off in mid-sentence at several points. Graham highlighted contradictions between Haynes’ testimony and that of military lawyers who said Haynes ignored their strong opposition to the interrogation techniques.And Graham ridiculed Haynes’ contention that he didn’t set interrogation policies, but merely passed on the findings of Justice Department lawyers to Defense Secretary Donald Rumsfeld and the White House office of legal counsel.
I may be reading too much between the lines, but it sounds to me as if Graham also thought Haynes lied during his confirmation hearing. That's a huge no-no for any nominee.
Reasonable people can disagree on a nominee's qualifications for the federal bench. And as I said when I first blogged about this case, anything is possible, particularly in wartime. but the picture of Haynes painted in that Independent Judiciary report and this article is utterly at odds with the Jim Haynes I knew a quarter-century ago.
Whether he broke the law or not, the whole thing is sad ... and the whole thing likely never would have become a controversy if the administration hadn't decided to seize on torture as a solution before actually finding a problem that it would solve.
Since the Supreme Court's Hamdan ruling, there's been a fair bit of discussion on legal blogs about the ramifications for not only the programs at direct issue (military tribunals for detainees) but also for such programs as the National Security Agency's warrantless domestic wiretapping program. I have no idea whether the blogs I reviewed were a representative sample. I suspect not.
In general, the bloggers felt that the majority opinion in Hamdan effectively kicked the legs out from under the two main defenses the administration has offered for its program:
Some examples:
Even Andrew McCarthy, a very pro-administration legal writer at National Review Online, now concedes that any legal challenge to the program almost certainly will succeed:
I have spent a great deal of time and energy studying and trying to explain what I understand to be the legal basis for the NSA program. (For those interested, see this lengthy white paper for the Federalist Society that I compiled with brothers Rivkin and Casey). Throughout the Hamdan majority opinion, and especially in the Kennedy concurrence (particularly where he discusses Justice Jackson’s Steel Seizure concurrence), one immersed in these issues perceives resonances of the letter submitted to Congress by fourteen scholars of constitutional law and former government officials. That letter, available here, posits that the NSA program is illegal. Even though the letter is not cited in Hamdan, its influence is palpable. It was that letter, and a similar ABA report, that prompted David, Lee and I to do our study.My own rule of thumb is to try to fight hard but fight fair, and admit when I've lost. I’ve lost.
So, when a case involving the program ever gets to the Supreme Court, the high court, at least as currently constituted, probably will strike it down. One such case is before a federal district judge in Detroit, who heard government arguments Monday that the entire case should be thrown out because to hear it in open court would be a national security risk. Such an exemption exists in the law, but it is typically applied much more narrowly -- to individual documents or witnesses, say -- rather than to entire cases. The judge hasn't said when she will rule, and I'd bet a dollar whichever side loses will appeal anyway.
Perhaps you recall Defense Department counsel William J. Haynes II, whom I mentioned here in quoting from an uncomplimentary New Yorker article on vice-presidential chief of staff David Addington. I did not realize this, but Haynes has been nominated to a seat on the 4th U.S. Circuit Court of Appeals. Some people are not happy about this because Haynes has been involved in the Pentagon's use of torture (details here).
And if I'm right, I knew William J. Haynes II as Jim Haynes, one of my freshman hall's two counselors at Davidson, although I haven't seen him since he graduated in 1980.
Davidson was a pretty conservative place when I was there. (That was part of the reason I went there.) But I'm having a helluva time reconciling the Jim Haynes I knew with the stuff I'm reading about ... stuff I'm pretty sure the alumni magazine will, understandably, be in no hurry to write about.
UPDATE: More here, and it's not good.
If you wonder just how we got to the point at which a Supreme Court ruling affirming that torture is bad is cause for celebration instead of a very routine matter, you should read this article about David Addington, longtime confidant of Vice President Cheney and now his chief of staff. In an administration whose senior members are nonlawyers almost to a man and woman, Addington and his proteges (e.g., William J. Haynes, Defense Department general counsel) and their, shall we say, creative legal viewpoints have carried disproportionate weight, which they have wielded like clubs:
Rear Admiral Donald Guter, who was the Navy’s chief JAG [Judge Advocate General, or military lawyer] until June, 2002, said that he and the other JAGs, who were experts in the laws of war, tried unsuccessfully to amend parts of the military-commission plan when they learned of it, days before the order was formally signed by the President. "But we were marginalized," he said. "We were warning them that we had this long tradition of military justice, and we didn’t want to tarnish it. The treatment of detainees was a huge issue. They didn’t want to hear it." In a 2004 report in the [New York] Times, Guter said that when he and the other JAGs told Haynes that they needed more information, Haynes replied, "No, you don’t."
OK, got that? "Experts in the laws of war" were blown off by a political appointee with no active-duty military experience who couldn't be bothered with facts and was condescending as all hell besides. There's a recipe for success.
Alexis de Tocqueville, author of "Democracy in America," is reputed to have said, "America is great because she is good, and if she ever ceases to be good, then she shall cease to be great." There's no evidence he ever actually said it ... not in "Democracy in America," anyway. But it's an interesting saying nonetheless, and a noble idea: that what we do as a nation, how well or poorly we live up, in the real world, to the values and virtues we espouse, is the true measure of our greatness.
Thanks to the Supreme Court, we took a huge step back toward greatness this morning.
The court ruled 5-3 (with Chief Justice Roberts, who did not participate because he participated in the appeals-court ruling that brought the case to the high court, abstaining) in Hamdan v. Rumsfeld that the military commissions established by President Bush at Guantanamo Bay, Cuba, violate both military-justice laws and the Geneva Convention.
But according to Marty Lederman at ScotusBlog, who knows a whole lot more about this stuff than I do, those commissions are the least of the issue (all emphases in original):
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. See my further discussion here.This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation 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).
So by a 5-3 vote, the high court is telling the administration, in effect, "What part of 'No torture!' do you not understand?" It's a shame -- or, more accurately, a crime -- that it had to come to this, but at least the Supremes are saying what decent Americans already know: Torture has no place in our national policy.
But wait! There's more!
Near the bottom of page 3 of the ruling, Justice Stevens, writing for the majority, says:
Neither the AUMF [Authorization for the Use of Military Force] nor the DTA [Detainee Treatment Act] can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld*, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in [Article 21 of the Uniform Code of Military Justice*].
(For those of you wondering, this is what an "originalist" court ruling looks and sounds like: If you are the president and Congress had wanted you to do something, it would have written a law enabling you to do something. And it came from the pen of Stevens, perhaps the most liberal member of the court. Think about that the next time you hear anyone complaining about "activist" judges.)
Now, this finding applies not only to the particular type of military commission being used against plaintiff Hamdan, it also would appear to destroy one of the two legal arguments being used to support the National Security Agency's warrantless domestic wiretapping program. Supporters, including but not limited to Attorney General Alberto Gonzalez, have argued that the Authorization for Use of Military Force against the 9/11 attackers authorized warrantless domestic wiretapping, which otherwise would have been a clear criminal violation of the 1978 Foreign Intelligence Surveillance Act.
Looks like we can put a fork in that argument. And if you're wondering why the administration has fought so hard to keep any and all litigation over FISA violations from getting into court (even the secret FISA court), well, now you probably know.
UPDATE: Looks like the Court also has kicked the legs out from under the other argument in favor of warrantless domestic wiretapping, that it's implicitly approved in the president's constitutional warmaking powers. This argument appears to run up against the high court's 1952 ruling in Youngstown Co. v. Sawyer, in which justices basically said that presidents cannot use their constitutional warmaking authorities to claim authority to do X if Congress already has explicitly barred X. Indeed, lawyer Glenn Greenwald notes, Justice Kennedy explicitly referred to Youngstown in his concurring opinion.
(Because violations of FISA were not at issue in this case, this means nothing from a practical standpoint unless the administration is publicly willing to acknowledge that its flimsy legal arguments justifying criminal violations of FISA have just been blown out of the water. But that's exactly what today's ruling has done.)
If we let one branch of government destroy the rule of law, the Bill of Rights and the other things that make America the great country that it is, then whatever al-Qaeda might or might not do is unimportant: We will have ceased to be good, and we therefore will have ceased to be great. Today's ruling is an enormous good, affirming the importance of the rule of law, and points us once again toward greatness.
Now let's see whether the administration will follow the law.
UPDATE: Glenn Greenwald explains in more detail here what Geneva Article 3 requires, and how the administration has failed to meet those requirements, i.e., broken the law.
UPDATE: It is true that most of what the court barred today would be legal if the administration had simply asked Congress to write laws making it so. And that could still happen, although I can't imagine the Back-Out-of-the-Geneva-Convention-and-Legalize-Torture Act of 2006 would have much backing.
Still, whatever you might think of the merits of that approach, it would have the virtue of working within the same system that has worked so well for us since the Constitution was ratified. And, really, that's all I ask: that we act in a way consistent with our espoused principles and that we follow the law.
*Links not in original
Remember how Congress was all set back in January to clean up lobbying? Eh, not so much:
Committee chairmen once predicted the bill would be finished in March, but the Senate did not pass its ethics bill until March 29 and the House passed its version May 3. The House has yet to name negotiators to draft the final package.Legislators and public-interest group advocates say the most likely result this year is a minimalist package that would allow members to say they have responded to the Abramoff situation and other scandals but would do little to crimp their ability to accept lobbyist favors.
The change, these people say, reflects a calculation that the political storm has mostly passed and that the need for more intrusive efforts to alter the congressional culture and the lobbyist-lawmaker relationship is less urgent.
The New York Times' report Friday on the administration's secret surveillance of financial transactions appears to me to have drawn more than the usual amount of blogospheric complaint. (UPDATE: Times Executive Editor Bill Keller responds to the criticism here.)
I think this is true for two reasons: First, although the program doesn't use warrants or subpoenas, that fact doesn't make it dead-bang illegal the way the Foreign Intelligence Surveillance Act does the administration's warrantless wiretapping of U.S. citizens' phone calls and Internet traffic. (For one thing, it involves a Europe-based cooperative.) Second, unlike the circumventing-FISA program (which needs a short, descriptive name not ending in "-gate," IMHO), which has produced no antiterrorism successes that we know of, the bank program, the Times reports, has had some successes.
Typically, after reports such as this, bloggers who support the president have criticized the media for their reports, while bloggers who oppose the president have supported the media, although the level of support has varied according to the clarity, or lack thereof, of the media issues involved. But with this report, even some bloggers who can be counted on to criticize the president are pronouncing themselves, at the least, ambivalent on the question of whether or not the Times should have reported on the program. (When anyone at Glenn Greenwald's blog, which has criticized the president unrelentingly, posts that at the least there are issues to be discussed, then I think it certain that there are, indeed, issues to be discussed.)
The response of the administration-supporting blogs, however, appears generally to be far less ambivalent: It's treason.
On this particular issue, I don't know whether the Times should have reported what it did or not. I'm inclined to think that if the program is legal and providing some benefit, AND if disclosing it would limit or eliminate future benefits, then reporting on it would be wrong. At the same time, I find it difficult to believe that terrorists such as al-Qaeda who have relied on wire transfers to move money around the world would not have suspected that such transfers were being monitored.
That said, the Times is up against a context it ignores at the country's peril (and which Keller's letter, linked in the update above, does not address): the repeated failure of this administration to recognize, and act within, existing law. From torture to wiretapping, the administration repeatedly has chosen to act as if settled law does not in fact exist, and frequently to lie about its actions in these areas. If the administration tells The New York Times the program is legal and effective, and that reporting about it will cause harm to national security, why should the Times believe the administration this time when doing so in the past has led it, and the nation, to grief?
These are complex questions. They need to be dealt with forthrightly, dispassionately and fairly.
Moreover, pre-emptive claims of "Treason!" proceed from the presumption that the accusers know not only what the accused did but why he/she did it. In the case of the Times, the closest accusers can come is a sort of implied inference that because publication would inevitably damage the country's ability to fight terrorism, then causing that damage must have been the Times' reason for publishing.
That's an awful lot of as-yet-unsupported suppositions. In addition, one could just as reasonably -- and perhaps more so -- infer that because the administration's approach to fighting Islamicist terror has been so flawed (protection of our ports, anyone?), the administration must have intended to allow us to remain vulnerable and thus is guilty of treason.
I suggest we start by focusing on actions and facts before we move on to examination of motivation. And I suggest we examine motivation very carefully before hurling accusations of treason.
And I suggest we all remember that competence, in journalism and government, carries a moral component.
UPDATE: Oh, dear. Looks like if we're going to shoot reporters for doing their jobs (comment at 0157 6/24) or figure out ways for them to die of "heart attacks" (comment at 1220 6/24), we're first going to have to execute the Treasury Department's Undersecretary for Enforcement. Plus which, it looks like this secret program actually wasn't all that secret.
Oh, well.
What a week. And it's only Wednesday.
Yesterday morning we learned that numerous federal, state and local police agencies have bought Americans' phone records from private data brokers without obtaining the legally required warrants or subpoenas for them. The federal agencies known to have done so include the Department of Homeland Security and a number of Justice Department agencies, including the FBI and the U.S. Marshals' Service.
The liberal Americablog first drew wide attention to the problem of these brokers in January when it bought retired Gen. Wesley Clark's cell-phone records from one of the brokers. In a display of bipartisanship not seen since 9/11 or the Pleistocene Era, whichever came most recently, the House voted 409-0 to ban such sales (HR 4709). Funny thing, though: A related bill, HR 4943, the "Prevention of Fraudulent Access to Phone Records Act," which also had been introduced, "disappeared" from the legislative calendar after USA Today broke the story about the government's illegal gathering of our phone records. There's been no action on the bill whatsoever and none has been scheduled. Meanwhile, the Senate version of the bill passed unanimously by the House (S 2177) has sat untouched since being introduced and referred to the Senate Judiciary Committee in January.
Rep. Ed Whitfield, R-Ky., head of the House Energy and Commerce investigations subcommittee, says he's going to be holding hearings this week on the issue. Good for him, but the way Congress has been handling its oversight responsibilities in general and legislation on this subject in particular of late, I'll believe it when it happens.
Meanwhile, after earlier reports of an AT&T center in San Francisco being used to monitor Americans' phone activity, Salon.com is now quoting two former AT&T employees as saying the company operated at least one other such center near St. Louis.
If you don't care about this illegality, maybe you'll care that the best solution to the problem right now appears to be coming from Sen. Hillary Rodham Clinton.
A final note: U.S. Rep. Howard Coble, the Republican whose 6th District includes much of Guilford County, chairs the House Judiciary subcommittee on crime, terrorism and homeland security, so he might have some jurisdiction over this issue. If you have strong feelings one way or another about this issue, you can e-mail him here.
UPDATE: The House Judiciary Committee, on a voice vote (i.e., it's not immediately clear who voted how), this morning passed a resolution calling on the National Security Agency to "turn over all requests made by the National Security Agency and other federal agencies to telephone service providers to obtain information without a warrant." Because this is a resolution, not a subpoena, it has no legal force unless/until the full House approves it. Committee Chairman James Sensenbrenner, R-Wisc., says that if the NSA doesn't comply, that's exactly where he'll go.
I'm unsure how serious Sensenbrenner is about this. Part of me thinks that if he were serious, he'd have asked his committee to vote out a subpoena from the git-go, inasmuch as the administration obviously does not want any legislative or judicial oversight of its warrantless surveillance and has resisted every effort thus far by either of those branches to exercise any. Still, Sensenbrenner is at least saying the right things, so we'll see what happens.
The state of New Jersey has subpoenaed records of five phone companies to try to determine whether they violated state consumer-protection laws.
The government, predictably, sued on Wednesday, claiming that complying with the subpoenas would endanger national security.
You'll have to pardon me for being skeptical of that claim. We managed to win the Cold War without this level of federal paranoia, so I've got to wonder whether there isn't something else going on here.
The United States trails many other industrialized nations in a number of technological criteria, such as broadband penetration, and last week's House vote against net neutrality is only going to make that situation worse. (The defeat of any net-neutrality proposal in the Senate, should one be offered, is a foregone conclusion.) Back in the good old days, when American politicians at least pretended to prefer free markets to crony capitalism, this would never have happened.
(UPDATE: Here's the roll-call vote so you can see how your congresscritter voted.)
But the consequences of this vote are going to be broad and, for most Americans, unpleasant, inasmuch as it will make us much less competitive in global markets. Meanwhile, guess who's eating our lunch in this regard? Among others, the French. Yeah, you heard me.
What with my real job and all, I've been a little too busy to blog any more about the government's vast, and pretty plainly illegal, electronic-surveillance programs. But at the moment, while I'm awaiting callbacks from sources on a couple of stories, I'll try to get us caught up.
I don't know for sure whether this is a good idea or a bad idea, but I've got to question giving a blank check to an administration that can't even obey the laws we've already got. Moreover, if gun dealers aren't required to keep records that long, why should ISPs be? Are computers any more likely to be used in child porn than guns are in violent crime?
The Electronic Frontier Foundation attorney is also quoted as worrying that this measure could make ISPs "an arm of the government." That argument resonates with me because news organizations have to resist precisely that pressure from time to time. Independence doesn't just make our news report more trustworthy, it also makes us better able to do our jobs.
TO: Dick
FROM: Arlen
RE: You are such a butthead.Hey, I walked right in front of you at the caucus luncheon twice yesterday and you didn't even talk to me. Why won't you talk to me?
OK, that's not quite what he said, but, boy howdy, it's closer than you'd like to think a United States senator would be capable of getting in a letter intended for public consumption.
And it would be funny if it weren't about so serious a subject: Specter, who has threatened to use his committee to actually try to hold the administration accountable for its illegal surveillance, is complaining that Cheney has gone behind his back to other committee Republicans in an attempt to shut that effort down. Now, I'm just a journalist in a middle-sized market and not a United States senator or anything, but I'm pretty sure that if I had Specter's gavel and a sitting vice president pulled a stunt like that, I'd be doing a lot more than sending out a whiny letter.
A prominent Republican senator backed