Still Hooked On Hopium

January 12, 2009


Jeralyn Merritt at TalkLeft, a criminal defense attorney and Obama supporter who frequently writes about people who were wrongfully convicted and other abuses of our criminal justice system, casually laid this rotten egg yesterday:

During the presidential campaign, Barack Obama said he would close Guantanamo during his first 100 days in office. This morning, on ABC‘s This Week with Stephanopoulos, he backtracked:

“It is more difficult than I think a lot of people realize,” the President-elect explained. “Part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted even though it’s true.

And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up.”

Shorter version: It will close at some point, just not as soon as he promised.

She then goes on to ho-hum the news that Obama isn’t interested in prosecuting any Cheney-Bush war crimes either.  Glenn Greenwald gets kinda wordy but he nails it:

What he’s saying is quite clear.  There are detainees who the U.S. may not be able to convict in a court of law.  Why not?  Because the evidence that we believe establishes their guilt was obtained by torture, and it is therefore likely inadmissible in our courts (torture-obtained evidence is inadmissible in all courts in the civilized world; one might say it’s a defining attribute of being civilized).  But Obama wants to detain them anyway — even though we can’t convict them of anything in our courts of law.  So before he can close Guantanamo, he wants a new, special court to be created — presumably by an act of Congress — where evidence obtained by torture (confessions and the like) can be used to justify someone’s detention and where, presumably, other safeguards are abolished.   That’s what he means when he refers to “creating a process.”

It’s not surprising that Jeralyn takes the news that Obama is breaking yet another promise so lightly.  We’re only talking about war crimes, constitutional rights, due process violations, illegal detention and torture.  It’s not anything important like Troopergate.


UPDATE:  Jeralyn has a new post with sensible recommendations for closing Gitmo, leaving her 177 posts short of her Troopergate coverage.

(graphic courtesy of New Hampster)

A nation of laws?

November 20, 2008
Detainees at Gitmo

Detainees at Gitmo


U.S. District Judge Richard J. Leon, in the first ruling to carry out the Supreme Court’s June decision on detainees’ rights, ordered the federal government to release five Guantanamo Bay detainees “forthwith.” The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem ben Sayah.

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners, suggesting that “seven years is enough” in captivity. He argued that the government could pursue whatever legal issues it wished to while defending on appeal his ruling in the case of ben Sayah.

As you might expect, this story has some rightwingers’ panties all twisted:

Getting judges involved in national security matters, what could go wrong?


The six prisoners were captured in Bosnia, where they had been living, although they are all natives of Algeria.

In ruling against the government as to the five detainees, Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces.

I find it extremely disturbing that the United States government asserts that it has the authority to arrest and imprison Algerian nationals arrested in Bosnia for the alleged crime of planning to travel to Afghanistan to fight our troops.  Even more disturbing is the fact that our government wants to do so without providing the defendants with due process of law.

These men have been imprisoned for seven years based on a single classified document.  German and Japanese prisoners of war were released shortly after hostilities ceased in WWII (except for those accused of war crimes) but these men have been imprisoned far longer than any POW we ever held, and were probably subjected to “enhanced interrogation.”  IIRC, the “detainees” at Gitmo were all supposed to be “the worst of the worst.”

No wonder the Bush adminstration has tried so hard to deprive these people of due process.  Everytime these “dangerous terrorists” manage to get a fair tribunal to look at their cases the evidence against them turns out to be vitually non-existent.  Under these facts, I don’t see how we could assert legal authority over these men in the first place, even if the charges were true.

From Wikipedia:

Since October 7, 2001, when the current war in Afghanistan began, 775 detainees have been brought to Guantánamo. Of these, approximately 420 have been released without charge, with only one prisoner, David Hicks, being convicted of a crime.

Quis custodiet ipsos custodes?

July 9, 2008

Quis custodiet ipsos custodes? is a Latin phrase translated as “Who will watch the watchers?” In The Republic Plato proposed that in the perfect society, there would be a guardian class is to protect the city. The question is then asked “Who will guard the guardians?” or, more accurately, “Who will protect us from the guardians?”

Plato argued that they would guard themselves against themselves. He believed that the guardians should be told a “noble lie” that they are better than those they serve and it was therefore their responsibility to guard and protect those lesser than themselves. He thought they could instilled with distaste for power or privilege, so that they would do what was “right” rather than what they desired. This is sometimes referred to as a form of noblesse oblige. How well did Plato’s theory work in practice?


Our Founding Fathers, principally through the work of James Madison, (who is often called the “Father of the Constitution” because he was its principal author as well as writing the Bill of Rights) designed a system of divided government. Madison’s believed that our government needed checks and balances to limit the powers of special interests. Madison eclipsed his mentor, Thomas Jefferson, by outlining a system of separate powers that has endured for over 200 years. He did such a good job we have had more Presidents (43) than Amendments (27) and our Constitution has endured through the Civil War and two impeachments, as well as other crises such a Watergate, the Great Depression, Disco and polyester leisure suits.

So why is that important today? The answer is FISA

FISA stands for the Foreign Intelligence Surveillance Act. It was passed in 1978 in response to the post-Watergate Church Committee Report, the key finding of which was :

The Committee finds that information has been collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action.

If you think that was bad, check out these subfindings:

(a) White House officials have requested and obtained politically useful information from the FBI, including information on the activities of political opponents or critics.

(b) In some cases, political or personal information was not specifically requested, but was nevertheless collected and disseminated to administration officials as part of investigations they had requested. Neither the FBI nor the recipients differentiated in these cases between national security or law enforcement information and purely political intelligence.


(c) The FBI has also volunteered information to Presidents and their staffs, without having been asked for it, sometimes apparently to curry favor with the current administration. Similarly, the FBI has assembled intelligence on its critics and on political figures it believed might influence public attitudes or Congressional support.


(d) The FBI has also used intelligence as a vehicle for covert efforts to influence social policy and political action.

Now when the Church Report says “FBI,” what they really mean is “J. Edgar Hoover.”

J. Edgar Hoover was the director of the FBI from its creation in 1935 until his death in 1972. He was also the head of the FBI’s predecessor, the Bureau of Investigation from 1924 until 1935. Hoover was the top cop in the United States for 53 years, a period encompassing 8 Presidents, Prohibition, John Dillinger and other infamous bank-robbers, World War II, the Cold War, the JFK assassination, the Civil Rights Movement and most of the Vietnam War.

It wasn’t until after his death that it was learned that Hoover blackmailed people, especially politicians, but using the FBI to collect incriminating and/or embarrassing information on them. Hoover also directed the FBI to conduct a covert “dirty tricks” program under the name COINTELPRO. This program was first used to disrupt the Communist Party, and later such organizations such as the Black Panther Party, Martin Luther King, Jr.’s Southern Christian Leadership Conference, the Ku Klux Klan, and others. Its methods included infiltration, burglaries, illegal wiretaps, planting forged documents and spreading false rumors about key members of target organizations. In 1975, the activities of COINTELPRO were investigated by the Senate Church Committee and declared illegal and unconstitutional.

This was the same kind of stuff that got Nixon impeached. So to prevent it from ever happening again, Congress passed some new laws, among them the Foreign Intelligence Surveillance Act of 1978.

Fast forward to 2007 and Attorney General Alberto Gonzales’ testimony before Congress. Not the time he couldn’t remember jack shit about the firings of the U. S. Attorneys, but before that when he was questioned about the Terrorist Surveillance Program. Of course he didn’t call it that, in fact he wouldn’t even admit it had a name.

When the TSP was first disclosed by the NY Times, it was supposedly only a narrowly defined program to eavesdrop on communications between suspected terrorists. The Bush administration initially claimed the NYT’s was committing treason by revealing the mere existence of the program. Wow! What a shocker! I guess nobody ever thought we might try to intercept communications between suspected terrorists! Why, they were probably just blabbing away over the phone about their nefarious plans until the NYT’s let the cat out of the bag.

Then former Deputy AG James Comey told Congress about a super-duper-top secret surveillance program that had been started by the Bush Administration after 9/11 (except it turns out they started it before that fateful day) He also related that in March 2004 he was asked to endorse the program while he was the Acting Attorney General during a period in which AG John Ashcroft was hospitalized. He refused to make the endorsement, but then learned that then White House Counsel Alberto Gonzales and White House Chief of Staff Andrew Card were headed to Ashcroft’s hospital room in what has been called the “Enzo the Baker” incident. Comey went to the hospital and with the assistance of FBI Director Robert S. Mueller III was able to intercept and stop Gonzales and Card.

During his testimony before the Senate Judiciary Committee, Gonzales at first tried to claim he was trying to get Ashcroft to re-approve the TSP on the night of the “Enzo the Baker” incident. Then the administration tried claiming he was there at the hospital in regards to data mining, or “other intelligence activities.”

Whatever they were doing is so secret they won’t even call it by name, let alone describe what it is or was. And it was so outrageously controversial that it almost caused mass resignations in the Department of Justice, including Comey and Mueller. Despite what the administration claimed, it wasn’t just “data-mining” either.

Data mining had already been disclosed years earlier, but somehow it again became secret (or was secret until it was leaked anonymously to cover Gonzales ass.) The concept had been around since the Reagan years. What other method of spying or surveillance could they possibly be using that none dare speak its name?

The law, including the Fourth Amendment, requires that warrants be obtained in order for the government to eavesdrop on communications within the United States. And all warrants require probable cause. But if a suspected terrorist in Afghanistan calls Osama bin Laden at his cave in Pakistan, the Fourth Amendment does not apply and the CIA or NSA can listen to their heart’s content for up to one year.

But what about cases where a suspected terrorist in another country makes a call to someone here in the United States, or when someone here calls a suspected terrorist over there. In the interest of national security, special rules were made because by the time all the legal formalities were met some atrocity could occur. And there was concern that regular procedures could divulge classified information. But back in 1978 Congress was also concerned about preventing abuse by the government.

So they enacted FISA. It created special courts that would determine if eavesdropping was warranted (pun intended) but allowed the government to begin eavesdropping immediately while giving them 72 hours to obtain authorization from the FISA court. Historically, that court has almost never rejected a request. FISA has been amended several times to keep up with new technologies.

But that wasn’t good enough for the Bush Administration. They asked for revisions and got them, in the 2001 USA PATRIOT Act. But they still weren’t satisfied, and began the program that remains nameless. The Bush Administration also decided that they could ignore FISA even though the law was specifically designed to deal with this type of surveillance.

You have to consider that this administration has shown no real concern for national security, just for covering up their own misdeeds. Just ask Valerie Plame about that. Decisions to classify, declassify and/or leak information are based solely on political necessity or advantage, not on the public interest. The same applies to claims of privilege asserted by the Bush Administration..

This is also the administration that tried to turn the entire government into an arm of the Republican Party. It is clear that Karl Rove was the motivating force behind trying to get the U.S. Attorneys to file false voter fraud allegations, and to fire those attorneys who would not cooperate. It has also been Dick Cheney’s obsession to reset the clock and reclaim all the Presidential powers and prerogatives lost following the Watergate scandal. The term “unitary executive” has been frequently used.

So what exactly were they doing? Nobody would really care if they were spying on real or suspected terrorists, FISA or no FISA. Voters wouldn’t be too worked up about spying on drug dealers or extremists groups either. You can bet the rent that what they were doing (and may still be doing) is: THEY WERE SPYING ON US!

But how could we prove what the White House was doing if it continued to stonewall and Congress continued to let them get away with it, doing no more than writing stern letters of protest. Well, it turns out that the original FISA law did something else. It required the telecommunications companies to ensure that proper procedures were followed. If they didn’t, the statute created a cause of action so private individuals whose communications were unlawfully monitored could sue for damages. The statute permits actual damages of not less than $1,000 or $100 per day for each day the violation occurs. In addition, that statute authorizes punitive damages and an award of attorney’s fees.

Now that could potentially be a lot of money for the Telecoms to have to pay, but the money isn’t the important part. In civil procedure there is a process called “discovery” where each side can force the other side to produce evidence. There have been lawsuits filed against the telecoms and there are discovery demands pending before federal courts. If the courts make the telecoms turn over the information being sought, we’ll know exactly who was spied on, when, and what information was given to the government. And that’s exactly why Congress is rushing to enact a FISA revision that provides for retroactive civil immunity for the telecoms.

Retroactive civil immunity means the lawsuits are immediately null and void. Because the cause of action was provided by the statute, it can be taken away by revising the statute. Case closed. Well, not quite case closed. The plaintiff’s can still sue the government, but the Bush administration will assert the “state secrets” privilege and “executive” privilege and those lawsuits will be squished as well.

If the telecoms get civil immunity, there are only two avenues of inquiry into this lawbreaking by the Bush Administration. There is Congressional oversight, which has been a joke because Congress refuses to enforce subpoenas. Besides, if they were serious about investigating this they wouldn’t be in such a hurry to give the telecoms immunity, now would they?

The other possibility is an investigation by the next administration. When you consider that the head of the next administration will likely be either a Republican or a DINO who plans to vote for the FISA revision, that possibility isn’t just remote, it’s “in a galaxy far, far away” remote.

Now ask yourself this: Why would the Democratic leadership in Congress (including the Presumptuous nominee) be so eager to foreclose the possibility of exposing the criminal wrongdoing of the Bush Administration? This was not a case of the GOP acting in lockstep with a few renegade Democrats. The bill passed the House with the support of Nancy Pelosi and Steny Hoyer. Majority Leader Harry Reid is pushing it through the Senate.

Whose side are these people on, anyway?