Saturday, December 31, 2005

The Sole Duty of Journalists

A couple of months ago, I brought home a book from Barnes & Noble called "Unembedded." It's the photographic account of what four independent photojournalists saw and experienced during a battle between U.S. forces and the Mahdi Army in the holy city of Najaf. They put themselves into scenes of war without political or military affiliations to either side, without weapons, for the purpose of witnessing the reality of war and recording it in words and pictures.

Just now, at Mother Jones, I came across a photo essay and some text excerpted from the book. This is a view of war that most Americans never see. In fact, most journalists never see it, even the ones who call themselves foreign correspondents or war reporters.

Here is most of the text of the Introduction, by Phillip Robertson:

... There have been worse battles in Iraq since the late summer of 2004, but that doesn't matter. One death is still a death. It is the end of a universe. The photographs in this feature story, many of which were taken in Najaf during the siege that August, are the bright traces of the moments we witnessed there, and it is impossible for me to see them now without hearing the detonations, the entreaties, and the terrible silence of that time.

During the siege of Najaf, a holy city to tens of millions of Shiite Muslims, the five of us - four photojournalists and I - were drawn together, pulled into a fierce orbit around the gold tomb where the saint Imam Ali lies buried.

On Aug. 17, 2004, close to the height of the U.S.-led siege of Najaf, Thorne Anderson, Yassir Jarallah and I crossed the U.S. cordon and the Mahdi Army lines on foot, thinking that if we could get to the old city, we would be able to understand what was happening at the center of the Mahdi movement. Very little information was coming from the old city inside the cordon because few reporters had made it through the blockade. Most had been turned back by gunfire or had been rousted from their hotel rooms by Iraqi police. For a period of a few days, journalists were threatened with arrest if they remained within Najaf city limits. We wanted to find our way through the cordon and break the news blockade.

On the day we crossed the cordon, Kael Alford was taking photographs of a Najafi family trapped by the fighting near the desolate zone that characterized the front lines. Rita Leistner, who arrived in Najaf the following day, was in Baghdad, tirelessly negotiating the release of our colleague Micah Garen, a Mahdi Army hostage in Nasiriyah. Ghaith Abdul-Ahad, whose columns for the Guardian are some of the best reporting to come out of the war, arrived in the shrine that evening and captured a doomed peace delegation as it met with Mahdi Army officials. I remember seeing his blue flak jacket as he followed the dignitary Hussein al-Sadr though a chanting mob of fighters.

As Thorne and I crossed the U.S. cordon with our hands in the air, we found ourselves in a landscape of burned buildings and smoldering cars. We continued over broken glass and melted plastic through a ruined market where we finally came across the first Mahdi Army position. We waved to a group of heavily armed men wearing black shirts, crouching in an alley, and when the fighters saw us, they did not arrest us. Instead, the commander sent an unarmed messenger to show us the path through the fighting to the old city. We walked to an open space where a wide street divided the old city from its newer sections. When we reached the middle of the street, where it was impossible to turn back, a sniper fired on us, and there was a cracking sound and dust in the air from the rounds hitting the concrete pillar above our heads. Thorne lay down in the road, finding shelter under a low concrete barrier. I ran behind a column.

When the shooting was over, we walked slowly to the shrine in the old city, past dozens of fighters in black, leaning against the walls with their weapons. It was a moment of relief, of somber triumph. Other photographers and journalists who have risked everything to cover the war from the other side know this feeling well because they have made this crossing or one just like it many times. Fighters on the other side of the street took us in, and there was an innocent, human quality in this moment that I cannot describe even a year later. It would have been easy for them to kill two American journalists, accuse them of being spies, but they did not. Perhaps that is all that needs to be said.

In the old city where most of the fighting took place, the sound of the great machinery of killing focused on a small space came through the air in shattering waves. A few dozen yards away from the great shrine of Imam Ali, Hellfire missiles fell from Apache helicopters and smashed buildings into their basements, rocket-propelled grenades flew down Prophet Street, machine guns chattered in bursts. We watched young men rushing through the gates of the shrine, down Prophet Street toward death. In this way we learned that all of the weapons have their own distinct voices. Soon it was easy to imagine the machinery of war as demons, and the siege of Najaf as a war between heaven and hell. This was how the Mahdi fighters saw it. For them, it was a war of faith.

We entered the southern gates of the shrine and saw the tomb of Ali in the center of an expanse of polished white marble. The reflection of the sun off the gold minarets made them look like vessels being fired in a kiln. Wounded fighters were being carried through the gates to a makeshift infirmary in a small alcove, as the Mahdi lines collapsed around the shrine. Older men who tended the mosque wiped up the trails of blood from the wounded. The young men in black T-shirts and green headbands ran down Prophet Street toward the American lines and came back on wheeled carts, their bodies torn apart. After they died, comrades of the dead fighters wrapped them in white and carried them in a final circuit around Ali's gold tomb, shouting, "There is no god but God."

While I filed reports for the radio and gave interviews over the satellite phone, Thorne took hundreds of pictures of the fighters in the shrine and near the front lines, documenting what I was unable to describe in words. He showed them eating meals, praying and fighting, the whole extent of their lives under fire. In his photographs you can see the connection he had made with the young Mahdi volunteers and the trust he had gained.

A few blocks to the north of where we slept, hundreds of Mahdi Army soldiers were hiding in a vast graveyard, a necropolis far larger than Najaf itself, with more than a million people buried in the sacred earth. Fighters huddled down in the dust of the tombs, firing at U.S. positions. We heard the sound of the missiles that destroyed them. The other men who took their place picked up the weapons of the killed and fought until they also died. The war and the routine that surrounded it functioned with mechanical regularity. And because machines are predictable, you always knew what would happen before it happened.

Three days later, on Aug. 19, after learning that we couldn't safely leave the old city the way we had come in, Kael Alford and Rita Leistner brokered a cease-fire between the U.S. military and the Mahdi Army. It was the first step in a plan to evacuate us from the shrine. Riding in the first car of a convoy of journalists, Kael and Rita made their way into the old city, past the nervous fighters who fired warning shots to stop them. While some of the journalists in the convoy decided to turn back, Kael and Rita continued through the ruined city.

At four o'clock, dozens of journalists entered the shrine to bring us out, get quick interviews, take photographs of the Mahdi volunteers who were shouting and chanting Muqtada al-Sadr's name. I had first heard that they were coming when a young fighter ran up to me and said, "The journalists are coming."

"Which journalists?"

"All of them!" the boy said. An hour later, when Rita and Kael arrived, it seemed like a species of miracle. After we returned to Baghdad, we were shocked by some of the reactions people had to our work during the siege.

One U.S. officer who was angry that we covered the other side of the conflict in Najaf accused us in a New York Times editorial of putting American soldiers at risk. I am not sure what he meant, and it is certainly not true. Another man, in an Internet posting, threatened Thorne's life because of the photographs he took behind the Mahdi lines. This is a short catalog of incidents, but all of us have been escorted out of places, threatened with the loss of press credentials or with arrest. There are always consequences when stories run, but I was surprised by the bitterness and vehemence of the accusations, the absurd insinuations of treason.

We crossed the lines because we believe it is more important to humanize a conflict than it is to trade in rhetorical truths, or to reinforce easy notions of enemy and friend, which are mere propaganda. Instead, we wanted to document honestly what we witnessed in the war because this is the sole duty of journalists, regardless of their nationality and religion. We were able to do this precisely because we did not carry weapons or claim allegiance to one of the warring parties.

If our journeys behind the lines were acts of faith, then they were also proof that often when one man is confronted with the humanity of another, he will not raise his rifle and pull the trigger. This is not disloyalty to one's country. It is the thing that brings an end to war.


A Well-Informed Electorate

A just-released Harris Interactive poll reveals that significant numbers of Americans still believe that:

  • Saddam Hussein had strong ties with Al Qaeda (41%).
  • Saddam Hussein helped to plan and supported the 9/11 attacks (47% last February; 22% now).
  • Iraq had weapons of mass destruction at the time of the U.S. invasion (36% last February; 26% now).

And arguably the best of all:

  • Several of the 9/11 hijackers were Iraqis (44% of those polled believed this as of last February; 24% still believe it today).

Via Altercation.


And Just in Time for Christmas!

The 2005 Compassionate Conservative of the Year vote goes to Dick Cheney, who cast the tie-breaking vote in the Senate that passed the Support for Poverty bill (aka the budget reconciliation bill):

The controversial budget reconciliation bill cuts funding for health care, student loans, child support enforcement, foster care funding, and other programs by $40 billion over the next five years. This highly partisan bill passed in the House by just six votes with no Democrats supporting it. The Senate was split evenly 50-50, again with no Democrats supporting the bill, and the cuts passed only after Vice President Cheney cast a tiebreaking vote.

Under the new provisions, students would see increased repayment costs, and low-income Americans in the Medicaid program could be subject to higher costs for medical care. Children would be hurt as well since the bill also cuts funding for child support enforcement as well as supports for foster care. The bill is also serving as a Trojan horse to enact changes to the Temporary Assistance for Needy Families program that would place unfunded mandates on states, and that would place unworkable work requirements on two-parent families.

While proponents will likely declare this a victory for fiscal responsibility, it must be noted that for every dollar in spending cuts, more than two dollars will be spent for additional tax cuts if a companion tax bill is accepted by both chambers. And all of the cuts combined add up to little more than one-fifth of the already enacted tax cuts for the top 1 percent of the population.

This holiday season, millions of people will donate clothing, food, and money to our nation’s charities. And these charities will endeavor to ease the burden on the least fortunate Americans, including those affected by Hurricane Katrina. It is a shame that at this time of need, Congress is instead intent on passing legislation that will harm ordinary and low-income Americans simply to finance yet more tax cuts that overwhelmingly benefit high-income individuals.


A Response to Mike Luckovich

An 11th-grade reader of the Atlanta Journal-Constitution has created a cartoon response to Mike Luckovich's October 26 cartoon that spelled out the word "Why?" with the names of the 2,000 U.S. soldiers who had died in Iraq at that point. Danielle Ansley, who attends a private Christian high school near Atlanta, used the names of the fallen American soldiers to spell out the word "Freedom."

Luckovich has printed Danielle's cartoon and her explanatory letter to him in his column and asked his readers to respond. As a number of readers noted, regardless of what you believe about the war, Luckovich's sense of fair play and respect for opinions that differ from his is impressive.

In reading through the comments on ML's blog, I came across a link to another remembrance of the 2,000 American men and women who, as of late October, had died in Iraq. I will not even attempt to describe it, other than to say it's extremely powerful. You can find it here.


365 Days of Clearing Brush

Here's a nice throwaway line for you:

On most of the 365 days he has enjoyed at his secluded ranch here, President Bush's idea of paradise is to hop in his white Ford pickup truck in jeans and work boots, drive to a stand of cedars, and whack the trees to the ground.

365 days? George W. Bush has been president for five years. And in that time he has spent the equivalent of an entire year vacationing on his ranch in Crawford, Texas, whacking underbrush.

Perhaps this is what conservative Republicans mean when they say that the purpose of the Iraq war and the Bush administration's anything-goes surveillance and interrogation programs is to protect the "American way of life." It's the right to disconnect yourself from all the death, destruction, pain, and misery that happens in your name and as a result of your actions; the right not even to know, much less think about, families torn apart by war, bodies and minds opened up and emptied out by the uncountable, unknown Torquemadas following your orders in secret prisons all over the globe; the "right," ultimately, to cut down trees and bushes for "recreational enjoyment," and to do that as often and as much as you wish, even though you are wealthy enough to hire a dozen people to do it for you and there are so many other things you should be and could be doing that no one else can do except you.


Iran's Turn To Be Bombed May Be Getting Closer

Der Spiegel reports that the German media has picked up on a number of strong signs that the U.S. may be planning to make Iran its next bombing target sooner rather than later. The signs include:

  • Greatly increased number of meetings with Turkish officials, in which reportedly Porter Goss and other U.S. bigwigs presented "evidence" of ties between Iran and Al Qaeda, as well as information on Iran's nuclear program -- for the purpose of soliciting Turkey's support for airstrikes against Iran.
  • Personal visits by Bush administration officials to Jordan, Saudi Arabia, Oman, and Pakistan, to prepare their governments for an imminent U.S. attack on Iran.
  • Informing European allies of U.S. military plans.

The Bush administration may be planning an attack now because of the virulently anti-Semitic statements of Iran's new president, Mahmoud Ahmadinejad; he called the Holocaust a myth and said that Israel "should be wiped off the map."

Of course, if Iran is more dangerous now than it was three years ago, and if its government is getting more extreme, Bush's invasion and occupation of Iraq is largely to blame. The invasion of Iraq was supposed to make that region less sympathetic to terrorism; instead, the ground has become even more fertile for violent opposition to the U.S. than it was before. Not only is widening the war to Iran unlikely to change that; it will almost certainly make things even worse.

...[E]ven experts in the West are skeptical of whether a military intervention against nuclear installations in Iran could succeed. The more likely scenario is that an attack aiming to stop Iran's nuclear program could instead simply bolster support for Ahmadinejad in the region.

Then again, the Bush administration has never been known either for its rationality or for its ability to learn from experience.


Friday, December 30, 2005

The Mother of All Counterterrorism Programs

It's an umbrella program that covers the entire world and includes within it many of the other intelligence operations we've learned about recently.

The effort President Bush authorized shortly after Sept. 11, 2001, to fight al Qaeda has grown into the largest CIA covert action program since the height of the Cold War, expanding in size and ambition despite a growing outcry at home and abroad over its clandestine tactics, according to former and current intelligence officials and congressional and administration sources.

The broad-based effort, known within the agency by the initials GST, is compartmentalized into dozens of highly classified individual programs, details of which are known mainly to those directly involved.

GST includes programs allowing the CIA to capture al Qaeda suspects with help from foreign intelligence services, to maintain secret prisons abroad, to use interrogation techniques that some lawyers say violate international treaties, and to maintain a fleet of aircraft to move detainees around the globe. Other compartments within GST give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.

Over the past two years, as aspects of this umbrella effort have burst into public view, the revelations have prompted protests and official investigations in countries that work with the United States, as well as condemnation by international human rights activists and criticism by members of Congress.

Still, virtually all the programs continue to operate largely as they were set up, according to current and former officials. These sources say Bush's personal commitment to maintaining the GST program and his belief in its legality have been key to resisting any pressure to change course.
Bush has never publicly confirmed the existence of a covert program, but he was recently forced to defend the approach in general terms, citing his wartime responsibilities to protect the nation. In November, responding to questions about the CIA's clandestine prisons, he said the nation must defend against an enemy that "lurks and plots and plans and wants to hurt America again."

This month he went into more detail, defending the National Security Agency's warrantless eavesdropping within the United States. That program is separate from the GST program, but three lawyers involved said the legal rationale for the NSA program is essentially the same one used to support GST, which is an abbreviation of a classified code name for the umbrella covert action program.

The administration contends it is still acting in self-defense after the Sept. 11 attacks, that the battlefield is worldwide, and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001, when it passed a resolution authorizing "all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks."

"Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act," said one official who was briefed on the CIA's original cover program and who is skeptical of its legal underpinnings. "It's an amazing legal justification that allows them to do anything," said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

The interpretation undergirds the administration's determination not to waver under public protests or the threat of legislative action. For example, after The Washington Post disclosed the existence of secret prisons in several Eastern European democracies, the CIA closed them down because of an uproar in Europe. But the detainees were moved elsewhere to similar CIA prisons, referred to as "black sites" in classified documents.

The CIA has stuck with its overall approaches, defending and in some cases refining them. The agency is working to establish procedures in the event a prisoner dies in custody. One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and then quickly burning the body, according to two sources.

In June, the CIA temporarily suspended its interrogation program after a controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice Department's Office of Legal Counsel that defined torture in an unconventional way. The White House withdrew and replaced the memo. But the hold on the CIA's interrogation activities was eventually removed, several intelligence officials said.

The authorized techniques include "waterboarding" and "water dousing," both meant to make prisoners think they are drowning; hard slapping; isolation; sleep deprivation; liquid diets; and stress positions -- often used, intelligence officials say, in combination to enhance the effect.

The WaPo article does not say what the initials GST stand for; but Shakespeare's Sister is guessing it was the Bush administration's second choice, because KGB was already taken.

I also spent some time reading comments at Captain's Quarters. Very entertaining:

"Now it is time to track down the real leakers who are threating our national security and putting America at risk. You want to see civile rights go away lefties? Another attack WILL bring about martial law." -- Posted by: msdl5 at December 30, 2005 07:11 AM

"Perhaps like the INS, the CIA has outlived its usefulness. Why not abolish it, parceling its functions to military intelligence and/or the NSA? With a bureaucracy this disloyal and incompetent, a death sentence may be the only cure for the body politic." -- Posted by: Redhand at December 30, 2005 07:34 AM

"When any agent or agency of the government begins to work against the safety and well-being of our nation, it is time to dust off the law books, and start prosecutions for treason. Yes, 'treason' is a strong word, and the punishment for treason is also strong.

Find the leakers, prosecute them, and then execute them, for all I care. They are putting not only my country, but my way of life, and the futures of my children and grandchildren in jeopardy. " -- Posted by: Cowgirl at December 30, 2005 08:06 AM

"Isn't it time that we see the divulgence of confidential information during a time of war as an act of treason? It has been 25 years since my military service so forgive me if I'm not totally accurate, but it seems to me the UCMJ calls treason during a time of war an offence punishable by execution. Do the leakers in the CIA fall under the jurisdiction of the UCMJ? The MSM as deliverers of information internationally could without much imagination also fall under the authority of the UCMJ. I know it's not realistic a hope for such an outcome. Nevertheless, censorship of the MSM in regards to national security should be implemented, and the writers, editors and publishers of the MSM that produce these bits of information should be prosecuted as war criminals. ..." Posted by: gawfer at December 30, 2005 10:06 AM

With friends of liberty like these....


No Room at the Inn for Illegal Immigrants

Supporters of a border security bill just passed by the House want to make it a federal crime to provide social services or any kind of assistance to illegal immigrants.

The measure would broaden the nation's immigrant-smuggling law so that people who assist or shield illegal immigrants would be subject to prosecution. Offenders, who might include priests, nurses or social workers, could face up to five years in prison. The proposal would also allow the authorities to seize some assets of those convicted of such a crime.

Proponents of the legislation have argued that such provisions would make it harder for illegal immigrants to thrive in the United States by discouraging people from helping them. The legislation, which cleared the House this month, could also subject the spouses and colleagues of illegal workers to prosecution.

Several Republicans and Democrats in Congress say the measure appears unlikely to become law. But the legislation has touched off an outcry among groups that teach English and offer job training, medical assistance and other services to immigrants.

The United States Conference of Catholic Bishops has written to members of Congress and called on President Bush to oppose the measure publicly. In Manhattan, scores of immigrants demonstrated against the bill last week. Here in the Washington area, a coalition of immigrant-services groups is planning rallies, visits to members of Congress and a letter-writing campaign to try to prevent the immigration bill from becoming law.

"We are going to fight this legislation," said Gustavo Torres, executive director of Casa of Maryland, one of the advocacy groups rallying against the measure. "The immigrant community is very upset about this."

Mr. Torres's group offers job placement services and English classes to thousands of immigrants each year. On Wednesday, as he greeted day laborers looking for work at his center in Silver Spring, Md., Mr. Torres said he could not imagine being forced to turn away the needy because they lacked legal papers.

"We never ask for documentation," he said. "Our mission is to help anyone in need of service, regardless of their immigration status. We are proud of that."

Speaking for the Conference of Catholic Bishops, Bishop Gerald R. Barnes of San Bernardino, Calif., said the measure threatened church workers and doctors as well as ordinary citizens who provided urgent or life-saving assistance to illegal immigrants.

"Current legislation does not require humanitarian groups to ascertain the legal status of an individual prior to providing assistance," Bishop Barnes wrote this month in a letter to Congress. "The legislation would place parish, diocesan and social service program staff at risk of criminal prosecution simply for performing their jobs."

I wonder how many of the House members who voted for this bill consider themselves to be followers of Jesus.


Thursday, December 29, 2005

A Call for Bloggers to Publish Torture Documents

The Blair administration in the U.K. is trying to prevent the publication of documents that show the British government has been soliciting and using intelligence from Uzbekistan gained through the use of torture.

Craig Murray, the former ambassador to Uzbekistan from the U.K., was the first to protest his government's use of torture-tainted intelligence, and when his opposition got too public and too vociferous, the Blair government tried to discredit him, and then sacked him.

The British Foreign Office has been trying to prevent Murray from publishing a book he has written about these matters; and now they have also informed him that he must either destroy or return two documents containing key evidence of the U.K.'s involvement in funneling intelligence gained through torture.

Now, here is where the Blogger Forces for Truth, Integrity, Justice, and Honor (that's us, folks) come into play. A group of dissident bloggers in Britain have basically given Blair and his Foreign Office the finger, and are posting the damning documents on their blogs. They are asking that other bloggers do the same.

We have published the documents in full here, and ask that anyone who can will do the same.
If you could publish, host and link to these documents on your own webspace, then it will be harder for anybody to be prosecuted here in the UK, and ensure that they get maximum coverage.

Craig Murray stood up for what many of us believe, and it cost him his Job, his health, and his professional reputation. The least we can do his stand by him as he defies the UK government's attempts at censorship, and possible prosecution.

So here they are, from the Blairwatch blog:

Summary of legal opinion from Michael Wood arguing that it is legal to use information extracted under torture.

Confidential letters from Ambassador Craig Murray.

And here are the same documents, as original files:

The documents have also been posted at TalkLeft, Daily Kos, Politics in the Zeros, Mahablog, and Agitprop.


Terrorism, Israeli style

The Israeli military is targeting innocent civilians in the Gaza Strip with sonic booms from low-flying fighter jets.

It's Israel's latest weapon: Without notice, an Israeli jet fighter flies low over the densely populated Gaza strip, breaking the sound barrier.

The massive sonic boom often breaks windows, shakes entire apartment buildings and terrifies the people of Gaza.

Just about every night for the last five months, 10-year-old Basma Abid Adiam has had trouble sleeping.

Her father says during the day she often seems distant. Basma's problems started when the Israeli air force began breaking the sound barrier almost nightly over her home.

On the fourth floor of her family's apartment building, surrounded by her brothers and sisters, Basma said shyly, "We are afraid when we hear the boom. I wet my bed. During the day when we go to school, we are afraid and try to hide."

Since Israel pulled out of the Gaza Strip last September, a small group of Palestinian militants have been using the Northern Gaza area to launch homemade rockets at Israel.

The Palestinian authority has either been unable or unwilling to stop the attacks. The Israel army says it has to take action.

And the only action the Israeli army can think to take is to terrorize the entire population of Gaza, including children, with sonic booms, without warning, on a daily basis.

The almost nightly sonic booms are the Israeli air force's attempt to turn the Palestinian population against the militants in Gaza and help stop the attacks.

That's bull. This is not friendly persuasion. This is collective punishment, and it's illegal.

Targeting innocent civilians violates the Geneva Conventions. Both Israeli and Palestinian human rights groups have asked Israeli High Court to stop the air force from this practice.

Dr. Eyad Sarraj, a psychiatrist in Gaza, says it is the children who are harmed the most.

"For children under the age of 6, large noise means danger, a danger to life," he said. "This is definitely a form of collective punishment, which under international law is prohibited and considered a war crime."

But Rannan Gissim, an adviser to Prime Minister Ariel Sharon, defends the tactic. "The inconvenience that it causes the Palestinian population cannot be measured against the question of life or death for Israelis on the other side."

Well, let's "inconvenience" Mr. Gissim with nightly unannounced sonic booms over his home, shattering the windows and shaking the foundations of HIS home, and making HIS children scream and cry and wet their beds in terror. And then let's tell Mr. Gissim that the lives of Palestinians are worth more than the lives of Israelis.

Despicable, contemptible fucker.


Making Us Less Safe

Judd at Think Progress refers us to an article in today's New York Times which reports that defense attorneys who handle terrorism cases are planning to challenge the admissibility of any evidence gained through illegal wiretaps.

At today's press briefing, White House spokesman Trent Duffy was asked about a story in today's New York Times, which reported that Bush's warrantless domestic spying program could undermine key terrorism prosecutions:

Q The New York Times reports today that there are several legal challenges based on the NSA wiretaps. Are you concerned that these challenges could jeopardize the cases against people you guys have already described as very bad people?

MR. DUFFY: ...[W]e decline to comment on any pending cases, but I don't think it should serve as any surprise that defense attorneys are looking at ways to represent their clients; that's what defense attorneys do.

Duffy's right, criminal defense lawyers are looking for ways that their clients can avoid conviction. And Bush's actions have given them an easy way to do it. The program violated federal criminal law -- the Foreign Intelligence Surveillance Act. As a result, any information collected by the program is inadmissible in court. (This principle is called the exclusionary rule.) If that information is critical to the government's case, a guilty terrorist might be found not guilty.

What's worse, if what the administration says is true, none of this was necessary. If all of the surveillance targeted people associated with al Qaeda, as the administration claims, it would have been easily approved by the FISA court. That process would not have delayed the surveillance since a warrant can be obtained up to 72 hours after the surveillance starts.

The Bush administration says the program is justified because it made us safer. The opposite appears to be true. The program has made us less safe by needlessly complicating the prosecution of terrorist suspects.

The same issue has come up with the use of torture by the U.S. against suspected terrorists. Last month the Justice Department dropped plans to charge Jose Padilla with attempting to use a "dirty bomb" on an American city because much of the evidence to support the charge came from statements given by Al Qaeda officials after they had been tortured.

Over a year earlier, Phillip Carter, a former Army officer who writes on legal and military issues for Slate, had predicted this very scenario:

... Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate.

... [W]e now know that the United States has intentionally used (with the sanction of the highest levels of government) torture tactics to pry open the mind of Khalid Sheik Mohammed, alleged to be one of al-Qaida's top masterminds. According to the Times, "C.I.A. interrogators used graduated levels of force, including a technique known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown." Gen. Peter Pace, the vice chairman of the Joint Chiefs of Staff, described such tactics as a violation of the Geneva Conventions. And the FBI has instructed its agents to steer clear of such coercive interrogation methods, for fear that their involvement might compromise testimony in future criminal cases.
This torture of top al-Qaida leaders may also cause problems for the government were there to be a trial for the alleged "dirty bomber" Jose Padilla. The tip that led to Padilla's initial detention on a material witness warrant in May 2002 came from intensive CIA interrogations of Zubaida, a close associate of Osama Bin Laden. In December 2003, the 2nd Circuit Court of Appeals ordered that Padilla be released from military custody and either charged in federal court or released. However, any prosecution of Padilla could be very problematic for the government, because the case for his guilt rests mostly (if not entirely) on secret interrogations of al-Qaida leaders, which now appear to have involved torture. If a criminal case is ever brought against Padilla, his lawyers are sure to challenge this crucial evidence on a number of grounds, including reliability and the fact that it was procured with torture in a way that "shocks the conscience."

What does the Bush administration hope to gain by identifying and gathering information on suspected terrorists in a manner that only benefit terrorists by making it impossible to prosecute them? Clearly, it's not about keeping Americans safe.


Wednesday, December 28, 2005

This Terrorist Isn't Toilet-Trained Yet

Once your name gets on that no-fly list, you will never get it off. Even if you're only nine months old.

The classified no-fly list was adopted after the hijacked-plane attacks of Sept. 11, 2001, in an effort to prevent suspected terrorists from getting on aircraft or coming to the United States. Airlines must check passenger names against the list before allowing them to get on a plane.

While the number of suspected terrorists on the list is unknown, aviation sources estimate that it includes tens of thousands of names, if not more.

TSA spokesman Christopher White said the agency has seven people working full-time on processing applications to get on the cleared list. Considering the number of applications, that works out to less than 4,000 complaints per redress officer.

"We do take the cleared list very seriously, and it's also important for us to focus on the right people. It does us no good to focus on the wrong John Doe," White said.

Cleared individuals receive a letter from the TSA saying, "we have provided sufficient personal information to the airlines to distinguish you from other individuals" but cautions that "TSA cannot ensure that your travel will be delay-free."

John Graham, a 63-year-old former Department of State official, said his TSA letter had not helped at all.

"I'm at a point now where I don't really care whether my name is on the list as a mistake, as mistaken identity or whether someone at TSA does intend to hassle me. The fact is, there's a total absence of due process," he said.

The American Civil Liberties Union calls the no-fly list system unconstitutional, saying it treats people as guilty without a trial and unfairly deprives them of freedoms. It also says the system is an inaccurate and ineffective security method.

Via Suburban Guerrilla.


Follow-up on Bush's Bypass of FISA court

Lis Riba points out that it's misleading to conclude that Pres. Bush's 2001 decision to order warrantless wiretaps was a response to a surge in the number of warrant applications rejected by the FISA court. Lis notes that most of those rejected applications occurred in 2003 and 2004, after Bush had already authorized the NSA to bypass the court.

Let's do the math:

Since 2001, the judges have modified 179 requests.
173 of these court-ordered modifications took place in 2003 and 2004.
That makes six (6) modifications in 2001 and 2002.
The administration began bypassing the Court shortly after 9/11, in late 2001.

The headline and first paragraph of the news story suggests challenges led to Bush's decision to eschew court approval, when in fact they were simultaneous developments.

Lis is right, of course; and as one of those who wrote that it appeared Bush decided to flout the law because the court was challenging him too much, I stand corrected.

But if Bush decided to bypass the FISA court before the court challenged him in any significant way, then what were those 173 court-ordered modifications that were issued in 2003 and 2004 about? A diarist at Daily Kos speculates that, as simple as the court's requirements for a warrant are, the Bush administration's applications failed to meet them:

Out of the 5,645 applications the Bush administration made to the FISA court, a record 179 were modified. Remarkably, 173 out of the 179 modifications took place in 2003 and 2004. What occurred in 2003 and 2004 that triggered the submission of inadequate applications to the FISA court?

You can find the requirements for a FISA application here. The requirements are straightforward. What defects existed in the applications that were so severe that the FISA court felt compelled to modify them? My suspicion is that the administration had trouble fulfilling the "foreign power" requirement. The application must state the facts relied upon that the target of the surveillance is indeed a "foreign power or agent of a foreign power" (read: terrorist). Was the administration casting its net too wide, stretching the limits of logic to classify individuals as "foreign agents" in order to conduct the surveillance?

We find a clue in this WaPo article from Dec. 22:

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

By the way, FISA doesn't even require the name of the target (See 1804(a)(3)). So, the administration didn't want to comply with FISA requirements; it didn't want to explain why the surveillance was necessary. Instead, it wanted broad, unrestrained power to spy on anyone, for any reason, even if that reason was not based in evidence. FISA makes such spying illegal, which is why Bush ignored the law and chose to spy by royal edict instead.

Bush was put on notice that his intended method of surveillance was not lawful. In response, like a petulant child, he stomped his feet and stubbornly insisted upon having it his way.


So THAT'S Why Bush Bypassed FISA

Looks like the reason Pres. Bush decided to authorize secret NSA wiretaps on Americans without getting warrants from the Foreign Intelligence Surveillance Court had nothing to do with the need to move fast. An AP article today reports that Bush actually was going through FISA until the court began rejecting more and more of his requests for wiretaps.

Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined.

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands of Americans and foreigners inside the United States, according to James Bamford, an acknowledged authority on the supersecret NSA, which intercepts telephone calls, e-mails, faxes and Internet communications.

Naturally, Bush supporters think this shows dangerous obstructionism on the part of the court:

If the FISA court was being dangerously obstructionist in the Administration's view, then the President would appear to not just have a right, but a Constitutional responsibility to go around the court if he felt American lives were at risk. To act otherwise would be criminal negligence, would it not?

Why? Because the president's "views" are more valid and important than the legal standards set by the Foreign Intelligence Surveillance Act for the issuance of warrants?

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake of President Nixon's misuse of the NSA and the CIA before his resignation over Watergate, sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that "may" involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

So maybe those requests should not have been approved. Maybe the Foreign Intelligence Surveillance court was simply following the law as established by the statute that created the court.

The current occupant of the White House, however, does not feel constrained by any such scruples. Bush wanted those eavesdropping warrants, probable cause or not; the court was refusing to grant them; so Bush just decided to bypass the court and authorize the spying himself.

And to those who think that's just fine, I say: You don't deserve your freedom. But the rest of us do.


Ann Coulter on The Today Show

This is absolutely breathtaking, folks. Ann Coulter on the Today Show, justifies Pres. Bush's decision to authorize warrantless wiretapping by using the "We're at war" excuse -- and then she uses the internment of Japanese-Americans during World War II to buttress her argument that suspending civil liberties during wartime is fine and perfectly legal. Matt Lauer's response? None. Whatsoever.

Here is what she said:

...FDR put Japanese including loyal Japanese-American citizens in internment camps, and the Supreme Court said during a war we're not going to touch this ... this is wartime, what the president does to defend America, not only are Americans overwhelmingly behind it, but he has the authority to do it.

I can think of a dozen ways he could have challenged her. Just for starters, he could have asked her if she thought she was being inconsistent about condoning restrictions on freedom during wartime when just a few moments before she had dismissed the idea that Iraqis might choose a strongly religious government because, she said, "I think people instinctively prefer freedom." Or he could have asked her how arguing for restrictions on freedom during wartime would work in a situation like this one, where the war we are fighting is going to last for decades, if not much longer than that. Do we spy on Americans secretly and without warrants indefinitely? Forever?

But Lauer did not ask these questions or any others. Instead, he just looked down at his notes, and proceeded to ask Coulter what she thought of Pres. Bush supporting Anna Nicole Smith in her court fight over her late husband's estate!

Check out the video for yourself. But have a barf bag handy; you'll need it.


Tuesday, December 27, 2005

Robert Fisk in the Los Angeles Times

Robert Fisk is one of the few totally honest voices in journalism, print or broadcast. His op-ed in today's Los Angeles Times -- about the way journalism uses language and images to obfuscate the truth about war and other forms of injustice -- is just another example of his unwillingness to call a spade anything other than a spade.

I first realized the enormous pressures on American journalists in the Middle East when I went some years ago to say goodbye to a colleague from the Boston Globe. I expressed my sorrow that he was leaving a region where he had obviously enjoyed reporting. I could save my sorrows for someone else, he said. One of the joys of leaving was that he would no longer have to alter the truth to suit his paper's more vociferous readers.

"I used to call the Israeli Likud Party 'right wing,' " he said. "But recently, my editors have been telling me not to use the phrase. A lot of our readers objected." And so now, I asked? "We just don't call it 'right wing' anymore."
This is only the tip of the semantic iceberg that has crashed into American journalism in the Middle East. Illegal Jewish settlements for Jews and Jews only on Arab land are clearly "colonies," and we used to call them that. I cannot trace the moment when we started using the word "settlements." But I can remember the moment around two years ago when the word "settlements" was replaced by "Jewish neighborhoods" -- or even, in some cases, "outposts."

Similarly, "occupied" Palestinian land was softened in many American media reports into "disputed" Palestinian land -- just after then-Secretary of State Colin Powell, in 2001, instructed U.S. embassies in the Middle East to refer to the West Bank as "disputed" rather than "occupied" territory.

Then there is the "wall," the massive concrete obstruction whose purpose, according to the Israeli authorities, is to prevent Palestinian suicide bombers from killing innocent Israelis. In this, it seems to have had some success. But it does not follow the line of Israel's 1967 border and cuts deeply into Arab land. And all too often these days, journalists call it a "fence" rather than a "wall." Or a "security barrier," which is what Israel prefers them to say. For some of its length, we are told, it is not a wall at all -- so we cannot call it a "wall," even though the vast snake of concrete and steel that runs east of Jerusalem is higher than the old Berlin Wall.

The semantic effect of this journalistic obfuscation is clear. If Palestinian land is not occupied but merely part of a legal dispute that might be resolved in law courts or discussions over tea, then a Palestinian child who throws a stone at an Israeli soldier in this territory is clearly acting insanely.

If a Jewish colony built illegally on Arab land is simply a nice friendly "neighborhood," then any Palestinian who attacks it must be carrying out a mindless terrorist act.

And surely there is no reason to protest a "fence" or a "security barrier" -- words that conjure up the fence around a garden or the gate arm at the entrance to a private housing complex.

For Palestinians to object violently to any of these phenomena thus marks them as a generically vicious people. By our use of language, we condemn them.

We follow these unwritten rules elsewhere in the region. American journalists frequently used the words of U.S. officials in the early days of the Iraqi insurgency -- referring to those who attacked American troops as "rebels" or "terrorists" or "remnants" of the former regime. The language of the second U.S. pro-consul in Iraq, L. Paul Bremer III, was taken up obediently -- and grotesquely -- by American journalists.

American television, meanwhile, continues to present war as a bloodless sandpit in which the horrors of conflict -- the mutilated bodies of the victims of aerial bombing, torn apart in the desert by wild dogs -- are kept off the screen. Editors in New York and London make sure that viewers' "sensitivities" don't suffer, that we don't indulge in the "pornography" of death (which is exactly what war is) or "dishonor" the dead whom we have just killed.

Our prudish video coverage makes war easier to support, and journalists long ago became complicit with governments in making conflict and death more acceptable to viewers. Television journalism has thus become a lethal adjunct to war.


Top Ten Myths About Iraq in 2005

Juan Cole gives us what he believes are the 10 most prevalent myths about Iraq -- and surprise! They are not all conservative myths. Here they are, in abbreviated form:

1. The guerrilla war is being waged only in four provinces.

2. Iraqi Sunnis voting in the December 15 election is a sign that they are being drawn into the political process and might give up the armed insurgency.

3. The guerrillas are winning the war against US forces.

4. Iraqis are grateful for the US presence and want US forces there to help them build their country.

5. Grand Ayatollah Ali Sistani, born in Iran in 1930, is close to the Iranian regime in Tehran.

6. There is a silent majority of middle class, secular-minded Iraqis who reject religious fundamentalism.

7. The new Iraqi constitution is a victory for Western, liberal values in the Middle East.

8. Iraq is already in a civil war, so it does not matter if the US simply withdraws precipitately, since the situation is as bad as it can get.

9. The US can buy off the Iraqis now supporting guerrilla action against US troops.

10. The Bush administration wanted free elections in Iraq.

I find the third myth especially interesting. Prof. Cole says, "...this level of insurgency could never defeat the U.S. military in the field." But he does not say whether the opposite could happen -- that the U.S. military could effectively defeat and end the insurgency. His word choice implies (to me, at least) that if the U.S. is defeated, it will be in the political, not the military, arena.


Freedom Is Risky

Why is it such a bad idea for the Bush administration to rewrite law to allow torture and to authorize warrantless wiretapping, among other legally questionable power moves? The people who say that we can't be safe without sacrificing some measure of personal freedom have it exactly backward, as Eugene Robinson tells us:

The problem is that if the president really were determined to do anything it takes to prevent another terrorist strike, why not suspend habeas corpus, as Lincoln did during the Civil War? That way you could arrest everyone who could possibly be a terrorist, or who once lived next door to a suspected terrorist's uncle, and you could hold those people as long as you wanted. Why stop at surveillance of international telephone calls and e-mails? Why not listen in on, say, all interstate calls as well? Or just go for it and scarf up all the domestic communications the National Security Agency's copious computers can hold?

Why stop at waterboarding? Why not go all the way and pull out some fingernails, if that would give Americans another tiny increment of security? Wouldn't electric shocks make us safer still? Just order the White House lawyers to draw up yet another thumb-on-the-scale legal opinion explaining how torture isn't really torture, and have at it.

If potential terrorists may be walking among us, why not have police officers stand on street corners all day and subject anyone who looks "suspicious" to questioning and a search? That's what Fidel Castro does in Cuba, and believe me, Cuba is an extremely safe country.

In Vietnam we destroyed villages in order to save them. In this war on terrorism, why not go ahead and destroy our freedoms in order to save them?

The reason we don't do these absurd things, of course, is that we see a line between the acceptable and the unacceptable. That bright line is the law, drawn by Congress and regularly surveyed by the judiciary. It can be shifted, but the president has no right to shift it on his own authority. His constitutional war powers give him wide latitude, but those powers are not unlimited.

If you go along with my experiment and assume that the president has the best of motives, then the problem is that he wants to protect the American people but doesn't trust us.

There can be no freedom without some measure of risk. We guarantee freedom of the press, which means that newspapers sometimes print things the government doesn't want printed. We guarantee that defendants cannot be forced to incriminate themselves, which means that sometimes bad guys go free. We accept these risks as the price of liberty.

The president would probably respond that in an era of loose-knit terrorist groups and suitcase nukes, the risks are exponentially greater than those his predecessors faced. Even if you agree, the answer is not to act unilaterally but to go to Congress and the courts and ask them to redraw that line between state power and individual freedom. [Emphasis mine.]


Monday, December 26, 2005

Now That Elections Are Over in Iraq, Are Combat Operations and Violence Over?

At least 24 people were killed today in Iraq by post-election violence. It doesn't help that Sunnis and secular Shiites are enraged over what looks like serious fraud in the recent parliamentary elections.

Officials blamed the surge in violence on insurgent efforts to deepen the political turmoil surrounding the contested vote. Preliminary figures -- including some returns released Monday from ballots cast early by expatriate Iraqis and some voters inside Iraq -- have given a big lead to the religious Shiite bloc that controls the current interim government.

The violence came as three opposition groups threatened a wave of protests and civil disobedience if fraud charges are not properly investigated. The warning came from the secular Iraqi National List, headed by former Shiite Prime Minister Ayad Allawi, and two Sunni Arab groups.

Iraq's Electoral Commission said Monday that final results for the 275-seat parliament could be released in about a week.

Sunni Arab and secular Shiite factions are demanding that an international body review more than 1,500 complaints, warning they may boycott the new legislature. They also want new elections in some provinces, including Baghdad. The United Nations has rejected an outside review.

"We will resort to peaceful options, including protests, civil disobedience and a boycott of the political process until our demands are met," Hassan Zaidan al-Lahaibi, of the Sunni-dominated Iraqi Front for National Dialogue, said in neighboring Jordan, where representatives of the groups have met in recent days.

Airborne violence has increased, too. The WaPo reported on Saturday that in the last several months, U.S. airstrikes on Iraq have soared from 62 in September to 120 in November.

Several U.S. officers involved in operations in Iraq attributed much of the increase to a series of ground offensives in western Anbar province. Those offensives, conducted by U.S. Marines and Iraqi forces, were aimed at clearing foreign fighters and other insurgents from the Euphrates River Valley and establishing Iraqi control over the Syrian border area.

But Air Force Maj. Gen. Allen G. Peck, deputy commander of the U.S. air operations center in the region, said the higher strike numbers also reflected more aggressive military operations in other parts of Iraq that were undertaken to improve security for last week's national elections.

"I'm hard-pressed to provide a single definitive explanation for the increase," Peck said in a telephone interview.

Many Bush supporters have been crowing since the Dec. 15 elections that the high turnout proves America can impose democracy at gunpoint. But all it proves is that Iraqis wanted to vote, which is a no-brainer. Voting alone does not equate to democracy, when the only thing that makes the voting possible is massive military power.


The Only Thing We Have to Fear

Doesn't it seem odd that the same conservative bloggers who praised "the brave people of Iraq" for risking their lives to vote see nothing wrong with giving up their liberty to gain an illusory safety?

Could it be that those "brave people of Iraq" have taken Patrick Henry to heart while 21st-century Americans no longer share his priorities?


Fear, Not Terrorism, Is Destroying Our Freedom

Live free or die; or live as slaves, but safe?

One wonders if Osama bin Laden didn't win after all. He ruined the America that existed on 9/11. But he had help.

If, back in 2001, anyone had told me that four years after bin Laden's attack our president would admit that he broke U.S. law against domestic spying and ignored the Constitution -- and then expect the American people to congratulate him for it -- I would have presumed the girders of our very Republic had crumbled.

Had anyone said our president would invade a country and kill 30,000 of its people claiming a threat that never, in fact, existed, then admit he would have invaded even if he had known there was no threat -- and expect America to be pleased by this -- I would have thought our nation's sensibilities and honor had been eviscerated.

If I had been informed that our nation's leaders would embrace torture as a legitimate tool of warfare, hold prisoners for years without charges and operate secret prisons overseas -- and call such procedures necessary for the nation's security -- I would have laughed at the folly of protecting human rights by destroying them.

If someone had predicted the president's staff would out a CIA agent as revenge against a critic, defy a law against domestic propaganda by bankrolling supposedly independent journalists and commentators, and ridicule a 37-year Marie Corps veteran for questioning U.S. military policy -- and that the populace would be more interested in whether Angelina is about to make Brad a daddy -- I would have called the prediction an absurd fantasy.
All of these things have happened. And yet a large portion of this country appears more concerned that saying ''Happy Holidays'' could be a disguised attack on Christianity.
Never would I have expected this nation -- which emerged stronger from a civil war and a civil rights movement, won two world wars, endured the Depression, recovered from a disastrous campaign in Southeast Asia and still managed to lead the world in the principles of liberty -- would cower behind anyone just for promising to "protect us."

President Bush recently confirmed that he has authorized wiretaps against U.S. citizens on at least 30 occasions and said he'll continue doing it. His justification? He, as president -- or is that king? -- has a right to disregard any law, constitutional tenet or congressional mandate to protect the American people.

Is that America's highest goal -- preventing another terrorist attack? Are there no principles of law and liberty more important than this? Who would have remembered Patrick Henry had he written, "What's wrong with giving up a little liberty if it protects me from death?"

Bush would have us excuse his administration's excesses in deference to the "war on terror" -- a war, it should be pointed out, that can never end. Terrorism is a tactic, an eventuality, not an opposition army or rogue nation. If we caught every person guilty of a terrorist act, we still wouldn't know where tomorrow's first-time terrorist will strike. Fighting terrorism is a bit like fighting infection -- even when it's beaten, you must continue the fight or it will strike again.

Are we agreeing, then, to give the king unfettered privilege to defy the law forever? It's time for every member of Congress to weigh in: Do they believe the president is above the law, or bound by it?

Bush stokes our fears, implying that the only alternative to doing things his extralegal way is to sit by fitfully waiting for terrorists to harm us. We are neither weak nor helpless. A proud, confident republic can hunt down its enemies without trampling legitimate human and constitutional rights.

Ultimately, our best defense against attack -- any attack, of any sort -- is holding fast and fearlessly to the ideals upon which this nation was built. Bush clearly doesn't understand or respect that. Do we?


Blogging the Blogs

The complete final text of the McCain legislation is at Balkinization.

Kieran Healy passes along some Christmas wishes that are well worth taking to heart.

Via Atrios, Steve Chapman has a scathing critique of the Bush presidency:

President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did, but doesn't think he should be constrained by their intentions.

He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.

His conservative allies say Bush is acting to uphold the essential prerogatives of his office. Vice President Cheney says the administration's secret eavesdropping program is justified because "I believe in a strong, robust executive authority, and I think that the world we live in demands it."

But the theory boils down to a consistent and self-serving formula: What's good for George W. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.

Even people who should be on Bush's side are getting queasy. David Keene, chairman of the American Conservative Union, says in his efforts to enlarge executive authority, Bush "has gone too far."
What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.

Over at Just a Bump in the Beltway, Charles Roten puts the "UMass Student Visited by Homeland Security Over Little Red Book" hoax in perspective:

Long story short: the UMass Dartmouth student who was the original complainant was lying his ass off. And later 'fessed up, when confronted by the spectacle of the elephant in his living room.

Although he is an authentic scumbag, this does put the kid a couple of cuts above W and his buddies, who have yet to 'fess up to the lies which have buried more than 2000 Americans, uncounted thousands of Iraqis, and the nation-state of Iraq, soon to be either de-facto partitioned or else slide into outright civil war.

Also at Just a Bump, Matt Zemek has a reflection on Christmas that you will never hear from Bill "Christmas Must Be Protected" O'Reilly:
One of the enduringly poignant elements of the Christmas story is that Jesus and his parents weren't allowed a room at an inn. If we're to honor the spirit and meaning of Christmas, we must see the Baby Jesus in the guise of all the others who lack room at the inns and homes of America. Then, having made this connection, we must make room in our hearts and our lives for these same folks. Our hearts must become the inns and shelters where Jesus--the incarnate God who endures within every one of us--can be revealed, acknowledged and celebrated.

For the poor to have an inn in which to sleep and rest, they must first find an inn within the hearts of people like you and me. Remember "the inn within yourself" this Christmas, and encourage others to make room for Jesus in the most sacred dwelling place of all: your own very large heart.

"A great miracle happened there." May miracles continue to happen, even in our own time.


Saturday, December 24, 2005

The Fourth Amendment is Our Friend

All of us on the sane side of the blogosphere have been worried by the news about Pres. Bush authorizing the National Security Agency to eavesdrop on Americans' international phone calls and e-mail communications without a warrant. The latest news is that the NSA's net is much wider than was thought: They are basically monitoring the international communications of all Americans, not just those suspected of having connections to Al Qaeda.

But John at AMERICAblog has found reason for hope, and even an end to our fears. The NSA website tells us why we should feel confident that the NSA does not violate our constitutional rights:

Americans expect NSA to conduct its missions within the law. But given the inherently secret nature of those missions, how can Americans be sure that the Agency does not invade their privacy?

The 4th Amendment of the Constitution demands it... oversight committees within all three branches of the U.S. government ensure it... and NSA employees, as U.S. citizens, have a vested interest in upholding it. Respecting the law is only a part of gaining Americans' trust.

I don't know about you guys, but I feel an enormous sense of relief. They are the government. I trust them.


Barron's Uses the "I" Word

That bastion of socialist thought, Barron's Online, has published an editorial strongly critical of Pres. Bush's post-9/11 decision to authorize wiretapping without a search warrant -- and adds that impeachment proceedings might be appropriate. Take special note of the last paragraph in my paste. That is the crux of the matter.

Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn't last four years.

In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.

"We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity," said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that Constitutional authority." Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the "strict constructionists" on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must "take care that the laws be faithfully executed." That includes following the requirements of laws that limit executive power. There's not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

It is important to be clear that an impeachment case, if it comes to that, would not be about wiretapping, or about a possible Constitutional right not to be wiretapped. It would be about the power of Congress to set wiretapping rules by law, and it is about the obligation of the president to follow the rules in the Acts that he and his predecessors signed into law.


Things Not Seen

Eugene Robinson says exactly what I have long felt about people who insist that intelligent design is a legitimate scientific way to "prove" the existence of God. Why would anyone want to prove the existence of God, and what does it say about the faith of people who actually would try to do so?

The judge [in the Dover, PA, case] notes that nothing in Darwin forecloses religious belief. Intelligent design, on the contrary, seems to me to be anti-faith.

One of the best definitions of Christian faith is attributed to St. Paul, who called it "the substance of things hoped for, the evidence of things not seen." At every Mass, Roman Catholics around the world "proclaim the mystery of faith." There is no need to have faith in something that can be touched, measured, quantified, predicted; no need for faith in something that can be seen if only we build a big enough telescope or a sensitive enough electron microscope.

What would be the posture of a believer toward a God who could be seen? It might be adoration, I suppose, or obeisance, but it wouldn't be faith as believers since St. Paul have understood it. Faith requires mystery. Faith requires a leap.

Exactly. And as a person who believes that God is real, I am just as inclined to oppose the movement to teach "intelligent design" in public schools on religious grounds as I am to oppose it on the grounds that it violates the separation between church and state. I agree with Robinson that it isn't even possible to prove the existence of God -- and I'm glad.

There is a famous quote: "Doubt is the essence of faith." I don't know the origin of this aphorism, but it's true. The very meaning of the word "faith" implies a lack of certainty. If God's existence could be proved, religious faith would be impossible. That would be a loss I would never want to experience.


More Secret, Warrantless Surveillance

The FBI has been monitoring Muslims at mosques, private businesses, and homes to detect radiation levels that might indicate the presence of nuclear weapons. This has been going on since the beginning of 2002, and, in keeping with the Bush administration's signature surveillance style, has been done secretly and entirely without the use of court orders or search warrants.

It's important to note that "Muslim" does not mean "non-citizen." In fact, almost all the people who were monitored were U.S. citizens.

Of course, the government says this is all perfectly legal, although not all FBI employees who were or are involved with the program agree. If they expressed their concerns out loud, though, they were threatened with the loss of their jobs.

The nuclear surveillance program began in early 2002 and has been run by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST). Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI. For some ten months, officials conducted daily monitoring, and they have resumed daily checks during periods of high threat. The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle.
In Washington, the sites monitored have included prominent mosques and office buildings in suburban Maryland and Virginia. One source close to the program said that participants "were tasked on a daily and nightly basis," and that FBI and Energy Department officials held regular meetings to update the monitoring list. "The targets were almost all U.S. citizens," says the source. "A lot of us thought it was questionable, but people who complained nearly lost their jobs. We were told it was perfectly legal."

The question of search warrants is controversial, however. To ensure accurate readings, in up to 15 percent of the cases the monitoring needed to take place on private property, sources say, such as on mosque parking lots and private driveways. Government officials familiar with the program insist it is legal; warrants are unneeded for monitoring from public property, they say, as well as from publicly accessible driveways and parking lots. "If a delivery man can access it, so can we," says one.

Georgetown University Professor David Cole, a constitutional law expert, disagrees. Surveillance of public spaces such as mosques or public businesses might well be allowable without a court order, he argues, but not private offices or homes: "They don't need a warrant to drive onto the property -- the issue isn't where they are, but whether they're using a tactic to intrude on privacy. It seems to me that they are, and that they would need a warrant or probable cause."

Cole points to a 2001 Supreme Court decision, U.S. vs. Kyllo, which looked at police use -- without a search warrant -- of thermal imaging technology to search for marijuana-growing lamps in a home. The court, in a ruling written by Justice Antonin Scalia, ruled that authorities did in fact need a warrant -- that the heat sensors violated the Fourth Amendment's clause against unreasonable search and seizure. But officials familiar with the FBI/NEST program say the radiation sensors are different and are only sampling the surrounding air. "This kind of program only detects particles in the air, it's non directional," says one knowledgeable official. "It's not a whole lot different from smelling marijuana."

Officials also reject any notion that the program specifically has targeted Muslims. "We categorically do not target places of worship or entities solely based on ethnicity or religious affiliation," says one. "Our investigations are intelligence driven and based on a criminal predicate."

Right. But the intelligence always leads officials to Muslim religious sites and Muslim businesses and Muslim homes. And you know why? It's because they use that "criminal predicate" -- known in less fancy language as "racial profiling." The lists of sites to monitor are predicated on the assumption that the "criminals" are Muslim.

Interesting, isn't it? As Faiz at Think Progress reminds us, this targeting of Muslim Americans based on the thinking that Muslims -- even if they are U.S. citizens -- are more likely to have ties to terrorism is not exactly consistent with Pres. Bush's statement right after 9/11:

On September 17, 2001, President Bush visited the Islamic Center of Washington, D.C., to declare that Muslims "share the same values of respect and dignity and human worth. ...They love America just as much as I do." But the actions Bush took in the days shortly after 9/11 sent a clear signal that his administration viewed those who stood with him in the Islamic Center as national security threats, not as individuals who shared American values.


Sunnis and Secular Shiites Charge Election Fraud

The charges of widespread election fraud by Sunnis and secular Shiites in Iraq sound just like home sweet home -- except for the striking lack of hundreds of thousands of enraged Ohioans and Floridians marching through Washington, D.C.

Publius Pundit has a lengthy and very well-detailed piece about the election results, with numerous examples of specific complaints.

Reuters AlertNet reports that the losing Iraqi political parties have formed a coalition to protest the election results.

Iraq's Sunni Arab and secular parties threatened on Wednesday to boycott the new parliament after alleging massive fraud in last week's election, ramping up pressure on the triumphant Shi'ite Islamists to share power.
Representatives of secular Shi'ite former prime minister Iyad Allawi and two major Sunni Arab groups, the Islamist-led Iraqi Accordance Front and the secular Iraqi Unified Front, along with other groupings, met on Wednesday to coordinate.

"We all agreed to contest and reject the results of the election," said Allawi aide Thaer al-Naqib. "We want the Electoral Commission dissolved and the election rerun."

"We will take to the streets if necessary," he told Reuters. "We might even not take up our seats in the new parliament and so any new government would be illegitimate."

Unified Front leader Saleh al-Mutlak said they would take their complaints not only to the Electoral Commission but also the Arab League, European Union and United Nations.


Friday, December 23, 2005

The Country that Cried Wolf

Juan Cole points to the problem with lying your way into a war: When the justifications for the war turn out to be untrue, because the intelligence was fraudulent, even the most unlikely accusations coming from the least credible of sources will be believed by people who never would have if the invading country had told the truth:

[Saddam Hussein] reiterated charges that he had been beaten and tortured by the Americans, allegations that Washington had denied. He called the Bush administration congenital liars, pointing to their false claims that Iraq had had weapons of mass destruction or was linked to al-Qaeda terrorism. He said the denials that he had been mistreated were equally untrue. Saddam will be believed by a lot of Muslims, pointing to the disadvantage of this amateurish trial for the US.


The Imperial Presidency

A couple of days ago, Dahlia Lithwick posed a question: Why does George W. Bush refuse to obey the law?

There are two explanations for the Bush administration's failure to stay within the boundaries of the legal structures for which it's bargained: One is that the administration believes it is fighting this war on its own; the courts, the Congress, and the American people are all standing in its way. The other is that the administration is convinced that none of our statutes or policies or systems will actually work in a pinch. Our laws aren't just broken. They are unfixable.

I think the first explanation could more bluntly be characterized this way: Pres. Bush and his top aides do not act in accordance with legal procedures because they do not feel they should have to. There is no other way to understand Alberto Gonzales' assertion on Monday that the Bush administration had considered going to Congress for the authority to do electronic surveillance on Americans without a court order, but decided not to do so because "we were advised [by unnamed members of Congress] that that was not something we could likely get" without the American people finding out about the program.

So they did it without telling Congress or the American people.

The day after Gonzales' statement, Dick Cheney said straight out that there should be no limits on presidential power in matters of national security.

Returning from a trip to the Middle East, Cheney said that threats facing the country required that the president's authority under the Constitution be "unimpaired."

Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney told reporters traveling with him on Air Force Two. "Especially in the day and age we live in ... the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

But "the day and age we live in" has very little to do with Cheney's belief that the Executive Branch should be able to make decisions about foreign policy, defense, the military, and intelligence-gathering at will, with no oversight and, indeed, without informing anybody. The beliefs that underlie Cheney's assertions have far more to do with power -- both for himself and for the office of the president -- than with national security.

Peter Baker and Jim VandeHei write in the WaPo that Dick Cheney's determination to strengthen the power of the presidency predates 9/11 by three decades.

Speaking with reporters traveling with him aboard Air Force Two to Oman, Cheney said the period after the Watergate scandal and Vietnam War proved to be "the nadir of the modern presidency in terms of authority and legitimacy" and harmed the chief executive's ability to lead in a complicated, dangerous era. "But I do think that to some extent now we've been able to restore the legitimate authority of the presidency."

For Cheney, the post-Watergate era was the formative experience shaping his understanding of executive power. As a young White House chief of staff for President Gerald R. Ford, he saw the Oval Office at its weakest point as Congress and the courts asserted themselves. But scholars such as Andrew Rudalevige, author of "The New Imperial Presidency," say the presidency had recovered long before Cheney returned to the White House in 2001. The War Powers Act, the legislative veto, the independent counsel statute and other legacies of the 1970s had all been discarded in one form or another.

"He's living in a time warp," said Bruce Fein, a constitutional lawyer and Reagan administration official. "The great irony is Bush inherited the strongest presidency of anyone since Franklin Roosevelt, and Cheney acts as if he's still under the constraints of 1973 or 1974."

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

Both the WaPo piece and an editorial in today's New York Times point out that reversing what George W. Bush and Dick Cheney view as a 30-year weakening of presidential power was a key goal for them when Bush ran for office in 2000.

The Times (hypocritically, given that it sat on the illegal spy program story for a year and then only published it because a new book by James Risen was about to break the news), calls the current administration "Mr. Cheney's imperial presidency":

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency -- from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal and the Iran-contra debacle and worried that the presidency had become too powerful, secretive and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.
Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contractors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

When you know that Cheney holds it as a basic political value that the presidency needs essentially unlimited power in military, defense, and intelligence matters; and given that Congress has always given the president wide latitude during wartime, then Cheney's eagerness for war with Iraq after 9/11 takes on added significance. Invading Iraq was the path to widening the war. Although I am not one of those who believe that the Bush administration wanted 9/11 to happen so they could increase their own power at the expense of Americans' civil liberties, I do think 9/11, once it had occurred, was viewed by Cheney as an enormous (one might even say heaven-sent) opportunity to do what they had wanted to do for decades.

And simply invading the country that had harbored the mastermind behind 9/11 was not enough. Cheney needed to widen the war into a "global war on terror": a war that not only would not end anytime soon, but conceivably could last forever. Invading Iraq was key to making the case for the existence of this "global war on terror."

Why is it that when a reporter asked Pres. Bush at his Monday press conference whether a possibly permanent war on terror implied a "more or less permanent expansion of the unchecked power of the executive in American society," the president's only objection was to the term "unchecked power" -- not to the idea that this war is permanent?

My feeling is, this administration knows full well that the war on terror as they have framed it is permanent, and that they are using this permanence to cement their power.

Katherine at Obsidian Wings says we shouldn't be surprised that the Bush administration has been so shamelessly unapologetic about breaking the law:

I was shocked by the brazen defense of the wiretapping thing like anyone else, but when I thought about it for a's not like this should be news to us.

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?

There are some signs that this is beginning to happen. Consider that, in the past couple of weeks alone:
  • The Senate voted to extend the current Patriot Act for six months to provide enough time to craft stronger civil liberties protections. Yes, the House did whittle that down to five weeks, but the White House still did not get the rubber stamp reauthorization before Dec. 31 that it wanted; and Congress sent a message that it might not let Pres. Bush destroy all of our civil liberties without a peep of protest.
  • The Bush administration lost its twin bid to (1) have Jose Padilla's enemy combatant status voided by the federal district court in Richmond that last September had upheld the Bush administration's request to identify Padilla as an enemy combatant; and (2) have Padilla transferred to Justice Department custody to face criminal charges in Florida. This ruling means that the Supreme Court might yet agree to take Padilla's case to decide the central issue of whether the Bush administration has the right to hold someone in military detention indefinitely without charges, trial, or access to an attorney if that detainee is defined as an enemy combatant. It was precisely this possibility that the White House was trying to avert by asking the Richmond court to void the ruling upholding Padilla's enemy combatant status.
  • Pres. Bush was forced to retreat on a bill banning torture by U.S. personnel: The White House fought the McCain amendment ferociously; initially trying to get it defeated, and when that didn't work, trying to get an exemption for the C.I.A. That didn't work either; and both the House and Senate have now passed the legislation, and Pres. Bush has promised to sign it.

Maybe it's a sign of how truly awful things have gotten that I feel encouraged by these signs of change, but I do feel encouraged.