Power Begets Power

Marcy Wheeler has the gory details of today's markup for the renewal of the Patriot Act. Basically, the Obama Administration and friendly Democrats in Congress - mainly DiFi and Pat Leahy - have used the Mohammed Zazi investigation to reauthorize provisions of the Patriot Act, some of which have never been used, some of which represent deep intrusions into our civil liberties.

So the Obama administration has its first allegedly big Terrorism case, and they can hardly contain themselves as they exploit it to justify a continuation of the very Patriot Act and FISA powers which Democrats (and, in the case of FISA, Obama himself) long claimed to oppose. Indeed, key Obama ally Dianne Feinstein has worked diligently in the Senate not just to block Patriot Act reforms, but to make the law even worse, and has repeatedly cited the Zazi case to justify that.

Absolutely none of the methods used in the Zazi investigation would have commenced without Zazi being tied directly to Al Qaeda. But Feinstein and the White House doesn't want to have this burden of proof. They want the ability to engage in fishing expeditions, to use roving wiretaps or "sneak and peek" searches or the use of business records without having to prove that the subject is suspected of terrorist activity. It's pretty clear that this is leading toward tracking the records of anyone who bought large quantities of hydrogen peroxide. So look out, women who dye their hair and like to stock up!

This has come in conjunction with major pronouncements by Administration officials about how very dangerous the Zazi case was and how it proves that law enforcement needs these tools. I rebutted that earlier - they need tools, but not OPEN-ENDED ones. It also makes a mockery of Administration boasts that they're not politicizing terror - the juxtaposition of these press events and the Patriot Act markup is pretty obvious.

But that's apparently what they're getting. Russ Feingold is upset. Only him, Dick Durbin and Arlen Specter (!) managed to vote against the final bill from the perspective of civil liberties.

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone’s priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms. Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms [...]

Specifically, the bill reported out of the Committee today on an 11-8 vote (five Republicans and only three Democrats voted No) fell short in a few key areas. Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy’s original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority. Unfortunately, Senator Durbin’s amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

The bill that passed out of committee did include some positive changes. I was pleased my amendment to reform invasive "sneak and peek" searches was included, as well as my amendment to require the executive branch to issue minimization procedures for NSLs. But these improvements did not make up for the bill’s shortcomings, and I was unable to support it on the final vote.

I only wish that Julian Sanchez could make another rebuttal video and we'd be done with this, but Fox News is hardly the problem. We've morphed pretty solidly into a surveillance state, a factor of being a state at permanent war.

I tend to side with Anonymous Liberal that at least Obama isn't asserting the divine right to break the law just by dint of being the unitary executive. That theory is on the dustbin of history, I hope. But if he's gathering the same powers, that's a distinction without a difference.

The Beauty Product Hunt

Marcy Wheeler notes some disturbing language in the reauthorization of the Patriot Act put in by DiFi:

I'm going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects [...]

First, at the start of the hearing, DiFi claimed that the investigation of Najibullah Zazi is the largest terrorism investigation since 9/11. Whether that's hyperbole or not, she's claiming that the FBI is doing more in the wake of the Zazi arrest than it did after all those false scares stemming from Bush's illegal wiretap program, all those false scares arising out of torturing Abu Zubaydah, and all the scares hyped up around election time. She's claiming this thing is huge.

Second, DiFi and Pat Leahy went through Leahy's proposed renewal to the PATRIOT Act and made some changes--to make sure that current investigations are not hampered by any changes proposed. Significantly, she appears to have taken out this language (I haven't been able to get a hold of the substitute amendment yet) which would have required investigators to have some connection between a person and a suspected terrorist before they could collect "tangible information" on them [...] So if this investigation is as big as DiFi says it is, and if it does rely on Section 215 as currently written...

Then all they would have to do is assert that anyone buying this particular cocktail of chemicals (or products containing those chemicals) could be presumptively related to activities of a foreign power. That is, if you buy these chemicals it may be safe to assume (or the FBI might be claiming it is safe to assume) you're doing so to build an al Qaeda-related bomb.

These are the kind of fishing expeditions put together by panicked lawmakers that make people feel their civil liberties are under attack by their government. The system appeared to work in the Zazi case, but to expand that out and make anyone who buys hair care products a potential terror suspect seems completely excessive. And these kind of broad nets to capture individuals have proven ineffective, because the mass of information being searched inevitably makes it harder to find the good stuff.

It's pure paranoia, reflected in legislation. Not good.

Doing Away With Those Inconvenient Civil Liberties

I still don't understand Mel Zelaya's game plan in Honduras, but it's pretty telling that the ruling regime, who staged a coup to remove Zelaya from office, immediately turned their thoughts to eliminating civil liberties the moment they felt any dissent toward their brazen action. Kind of tells you what kind of people we're dealing with.

The new restrictions, including a ban on non-authorized gatherings and a media clampdown, aimed to protect "the large majority of the Honduran population which is not engaged with groups of violent protesters," according to an announcement on national television.

The restrictions were announced on the eve of mass protests called by Zelaya for Monday, the three-month anniversary of the coup.

Zelaya has been holed up in the Brazilian embassy since his surprise return to the country last week.

The right, which has been praising the coup and chiding the President for "coddling" Zelaya, self-evidently history's greatest monster, will probably find a way to explain away the state-sponsored supression at work here. They always do. As Glenn Greenwald notes in a fantastic post today, they are the kings of moral relativism, having convinced themselves that violating international treaties and suspending laws and dealing in the weapons trade and stealing elections are fine for us and our allies, but reprehensible for those designated enemies of freedom and liberty. To quote Greenwald, "It's the adolescent self-love of believing that 'X, by definition, is good when I do it and bad when you do it.'"

The Self-Entangling Giant

White House officials are trying to prepare the ground for the fact that they're not going to close Guantanamo on time. I believe Obama boasted in his UN address that he announced the closure of Gitmo.

Senior administration officials told The Associated Press that difficulties in completing the lengthy review of detainee files and resolving thorny legal and logistical questions mean the president's self-imposed January deadline may slip. Obama remains as committed to closing the facility as he was when, as one of his first acts in office, he pledged to shut it down, said the officials, who spoke on condition of anonymity in order to more freely discuss the sensitive issue. They said the White House still was hoping to meet the deadline through a stepped-up effort.

The prison in Cuba was created by former President George W. Bush after the Sept. 11, 2001, terrorist attacks as a landing spot for suspected al-Qaida, Taliban and foreign fighters captured in Afghanistan and elsewhere. But it has since become a lightning rod of anti-U.S. criticism around the globe. There are approximately 225 detainees still being held at the prison.

People may give a little slack if we're talking months, but of course we won't see the closure of American prisons holding suspects indefinitely. Bagram is still open, and the White House is trying to run some B.S. military commission-like trial to give the illusion habeas rights, which fall far short of that goal. They haven't set the rules for military trials at Guantanamo, or found a location for the prisoners they want to keep, or host countries that will take the ones who can be let go. And they want to use Bush-era theories about the authorization of military force against Al Qaeda giving them authority to use preventive detention and hold suspects without charges. This may be a small victory because they are not setting preventive detention into statutory authority through Congress, but it remains the case that this Administration still wants to hold suspects without charges, is doing so at Bagram and is dragging their feet on closing Guantanamo.

This leads to a more general point: when it comes to uprooting ("changing") the Bush/Cheney approach to Terrorism and civil liberties -- the issue which generated as much opposition to the last presidency as anything else -- the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites -- at a time when none was operating. They trumpeted the President's order that no interrogation tactics outside of the Army Field Manual could be used -- at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo "inherent power" theories -- while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo -- while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their "changes" exist solely in theory -- which isn't to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

Greenwald references this Gary Wills article in forwarding the argument that a country in a near-permanent state of war will always assert these kind of expansive powers for reasons of national security :

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

The White House has replaced the leadership dealing with Guantanamo closure, and maybe they'll regroup and get the place closed in short order. But the permanent national security society, and the political momentum behind it, will resist real transformation in this area.

If You Want Your Country Back, Start With This

Senate Democrats have introduced legislation to scale back some of the worst abuses of both the Patriot Act and the FISA legislation from last year. Obama Administration officials were noncommital.

At hearings in the House and Senate, the officials repeatedly said they had no position yet on legislation that Democrats have introduced that would tighten standards and oversight of surveillance tools authorized under laws including the USA Patriot Act.

"We are trying to figure out whether the provisions that are suggested there will work for us as is, or perhaps with modifications," David S. Kris, assistant attorney general for national security, said at a Senate Judiciary Committee hearing Wednesday on whether to renew a trio of Patriot Act powers set to expire Dec. 31.

Those provisions allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not belong to a terrorist group but may be planning attacks.

I'm surprised they've even gone to the level of noncommital. Executives generally want to retain the power handed to them.

But it took a non-lawyer Senator named Al Franken to explain in plain English why the roving wiretap statute offends the conscience.

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Yes, it is "surreal" that some politician would dare look to the Founding documents for guidance when determining whether the roving wiretaps statute violates civil liberties. I'm no originalist, but I don't think there's a ton of wiggle room in "the persons or things to be seized."

The truth is that, for all the pretty talk about exigent circumstances and "the war on terror" and the need to conduct investigations in secret, almost all Patriot Act "sneak and peek" requests, where warrants could be obtained to conduct secret searches without telling the subjects, had nothing at all to do with terrorism, but standard-issue federal drug cases. The mission creep here is obvious, and it's true on national security letters and roving wiretaps as well.

I'd be willing to overlook the regular-grade racism and general ugliness of the tea party crowd if they'd actually take a look at these examples of government overreach, and work with civil libertarians on the left to roll them back. The combination could be potent. Of course, the teabaggers aren't libertarians, they're glibertarians, who adored this kind of stuff in the Bush years when they were fighting "terrism."

The Trust-Us Strategy

This move on state secrets fits a familiar pattern of the executive branch trying to pre-empt the legislative branch by promising to do something internally instead of having to be forced into it by statute. It's not a durable solution and should have no bearing on future legislation, but inevitably it does.

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

The problem is that the people deciding whether "significant harm to national defense or foreign relations is at stake" remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it's not that I don't trust Eric Holder or the review committee tasked with making this determination, I don't trust who comes after him. Case in point - Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

It's not enough for the executive branch to police itself. Congress should act.

...More from bmaz and Adam Serwer. In fact, Holder promised a review of the state secrets privilege back in February, meaning that he's already been undergoing the process that they're announcing today, and yet the DoJ has invoked state secrets in often-unacceptable ways on many occasions since then.

...Basically, nobody's buying this nonsense. Hopefully, Nadler, Leahy and Feingold (all quoted at the link) will continue to move forward with their bill to rein in this hideous practice.

Better News On Bagram

Barack Obama has been lit up for not being the be-all and end-all to liberals for months now, and a fair amount of those criticisms are warranted. The storm of criticism has also driven out of the conversation what has been a pretty decent week for those who want to see a bit more fairness and humility in our domestic and foreign policy. In addition to the resumption of talks with Iran, the Administration will pursue bilateral negotiations with North Korea. The raising of tariffs against Chinese tire imports, while met with petulance and idle threats by the PRC, represents a genuine concern for American manufacturing the likes of which we haven't seen in decades. And this announcement on detainee reviews at Bagram AFB, while not wholly sufficient, is nevertheless welcome.

The Obama administration soon plans to issue new guidelines aimed at giving the hundreds of prisoners at an American detention center in Afghanistan significantly more ability to challenge their custody, Pentagon officials and detainee advocates say.

The new Pentagon guidelines would assign a United States military official to each of the roughly 600 detainees at the American-run prison at the Bagram Air Base north of Kabul. These officials would not be lawyers but could for the first time gather witnesses and evidence, including classified material, on behalf of the detainees to challenge their detention in proceedings before a military-appointed review board.

Some of the detainees have already been held at Bagram for as long as six years. And unlike the prisoners at the Guantánamo Bay naval base in Cuba, these detainees have had no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as “enemy combatants,” military officials said.

The changes, which are expected to be announced as early as this week after an obligatory Congressional review, come as the Obama administration is picking through the detention policies and practices of the Bush administration, to determine what it will keep and what it will abandon in an effort to distance itself from some of the harsher approaches used under President George W. Bush. Human rights groups and prisoner advocates cautiously hailed the policy changes but said the government’s track record in this area had been so poor that they wanted to see concrete results before making hard judgments.

These are not habeas trials under the American system of justice, which should follow for those detainees brought to Bagram from other countries and not as part of the Afghan war. But this is in response to a federal judge's ruling that would have allowed those very prisoners to challenge their confinement, so hopefully it can be put together in such a way that satisfies the principle. And this Defense Department official's quote is encouraging:

“We don’t want to hold anyone we don’t have to hold,” said one Defense Department official, who spoke on the condition of anonymity because the guidelines have not been formally announced. “It’s just about doing the right thing."

Karen DeYoung and Peter Finn have more.

Justice And Accountability By Inches

After 9/11, among the many deprivations of civil liberties and violations of federal and international law, Attorney General of the United States John Ashcroft gave the FBI the power to detain and interrogate thousands of Muslim-Americans across the country as "material witnesses" without charges. We know little about the number of people detained, the nature of the interrogations and the extent of the abuse heaped on the prisoners. We do know, based on Ashcroft's own words, that this policy sought to pre-emptively detain Muslim-Americans suspected by the Bush Administration of future acts of terrorism or extremism, despite not having any evidence required to charge the suspects.

Yesterday, a federal appeals court panel, composed of two Bush 43 appointees and a Reagan appointee, allowed a case to go forward that would hold John Ashcroft liable for violating one detainee's Constitutional rights under the 4th and 5th Amendments.

The court found that a man who was detained as a witness in a federal terrorism case can sue Ashcroft for allegedly violating his constitutional rights. Abdullah al-Kidd, a U.S. citizen and former University of Idaho student, filed the lawsuit against Ashcroft and other officials in 2005, claiming his civil rights were violated when he was detained as a material witness for two weeks in 2003.

He said the investigation and detention not only caused him to lose a scholarship to study in Saudi Arabia, but cost him employment opportunities and caused his marriage to fall apart.

He argued that his detention exemplified an illegal government policy created by Ashcroft to arrest and detain people -- particularly Muslim men and those of Arab decent -- as material witnesses if the government suspected them of a crime but had no evidence to charge them [...]

''Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world,'' Judge Milan D. Smith Jr. wrote. ''We find this to be repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.''

You can read the 9th Circuit's opinion in the case, including the circumstances Abdullah al-Kidd found himself in back in 2003. Al-Kidd, a Muslim convert of African-American descent, planned a flight to Saudi Arabia to study on a law scholarship at a Saudi university. He was arrested at the airport under the material witness statute on a separate case, held for 16 days in detention centers in Virginia and Idaho, strip-searched on multiple occasions, and after several interrogations, eventually released. He was never called as a witness in the case on which he was arrested (a case where the individual was acquitted), nor has he been charged with any crime or called in on any other proceeding.

The ruling basically states that Ashcroft is liable for an unconstitutional policy that purposely violated the rights of al-Kidd, and by association thousands of other potential defendants, using the material witness statute just to hold anyone he fancied. If it survives appeal, the government will have to release all documents pertaining to the material witness policy under Ashcroft.

Glennzilla says the impact of this is to show the illegality and immorality of a preventive detention policy - one which this Administration might assert later this year. I agree with that, but I think its impact is slightly different. What it shows is that there are so many people whose lives have been touched - in some cases irreparably - by the terror practices of the Bush regime that there will be no limit to the actions to seek justice and accountability. The suits will continue, one by one, and the rulings made, over and over, and out of the thousands, at least one will find a crack. A legal hole in the framework of official secrecy and efforts by the executive branch to shut down the judiciary. And that hole will beget more holes. The groups and defendants striving for accountability will not stop because they rest on the principle of equal justice under the law, and to give up would signal the effective end of the American system.

Under the Bush Administration, officials in the highest levels of government committed heinous crimes, crimes to which they are only beginning to be held to account. The effort by the Obama Administration to indemnify those officials for those crimes just won't work. Little by little, good men and women with the law on their side will probe and appeal and file suit, and we will see justice. It's only a matter of time.

The Tanks Of Lackawanna

This is the second story in a week about how noble George W. Bush averted disaster. First he stuck to his principles about honesty and refused to pardon Scooter Libby (who he did already commute, incidentally, somehow that didn't make it into the paean of an article). Today we learn he was all that stood between us and tanks rolling down the streets:

Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

It's not that I disagree that this was brought up as an option, it's the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution's chief beta-tester ("testing the Constitution" is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration - right up until the moment that Eric Holder started talking seriously about prosecutions that didn't involve him, that is, then he slithered back into the undisclosed location - Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus' folks, and one by one all of these articles showing how he wasn't SO bad - he didn't want to use the military in American cities, after all! - keep popping up, using anonymous sources. It's a nice kickoff for the library.

Meanwhile, there is an important component to all of this, namely, the stated reason why the authority to use military force was sought:

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Earlier that summer, the administration designated Jose Padilla an enemy combatant and sent him to a military brig in South Carolina. Mr. Padilla was arrested by civilian agencies on suspicion of plotting an attack using a radioactive bomb.

(This shows once again how the construction of Bush as a savior of the Constitution is false - he USED the powers granted by Yoo to designate Padilla an enemy combatant.)

So because of concerns that the evidence was weak, Cheney wanted to use "a lower threshold of evidence," and denote the Lackawanna Six enemy combatants to keep them outside the criminal justice system. We've gotten rid of the enemy combatants term, but not really the thinking of getting around the standards of evidence when dealing with terrorism suspects. While the report on detention policy and Guantanamo Bay has been delayed a number of months, in the preliminary report, we see the seeds of a three-tiered system of justice based on the amount of evidence gathered, altering the due process granted to ensure that the government can continue to confine anyone it captured relating to the so-called war on terror. As Glenn Greenwald writes today, in reaction to the NYT article:

All of this underscores why it is so important to vigorously oppose the efforts of the Obama administration (a) to continue many of the radical Bush/Cheney Terrorism programs and even to implement new ones (preventive detention, military commissions, extreme secrecy policies, warrantless surveillance, denial of habeas corpus) and (b) to endorse the core Orwellian premise that enables all of that (i.e., the "battlefield" is anywhere and everywhere; the battle against Terrorism is a "War" like the Civil War or World War II and justifies the same powers). By itself, the extreme injustice imposed by our Government on the individuals subjected to such tyrannical powers (i.e., those held in cages for years without charges or any prospect for release) should be sufficient to compel firm opposition. But the importance of these issues goes far beyond that. Even if the original intention is to use these powers in very limited circumstances and even for allegedly noble purposes ("only" for Guantanamo detainees who were tortured, "only" for people shipped to Bagram, "only" for the Most Dangerous Terrorists), it's extremely dangerous to implement systems and vest the President with powers that depart from, and violently betray, our core precepts of justice [...]

Those are the stakes when it comes to debates over Obama's detention, surveillance and secrecy policies. To endorse the idea that Terrorism justifies extreme presidential powers in these areas is to ensure that we permanently embrace a radical departure from our core principles of justice. It should come as no surprise that once John Yoo did what he was meant to do -- give his legal approval to a truly limitless presidency, one literally unconstrained even by the Bill of Rights, even as applied to American citizens on U.S. soil -- then Dick Cheney and David Addington sought to use those powers (in the Buffalo case) and Bush did use them (in the case of Jose Padilla). That's how extreme powers work: once implemented, they will be used, and used far beyond their original intent -- whether by the well-intentioned implementing President or a subsequent one with less benign motives. That's why it's so vital that such policies be opposed before they take root.

Those Presidents who fail to show respect and deference for the system of justice that has held over two centuries and more, even if they do not use the powers granted to them, set in motion a process to devolve that system. The precedents set by the Bush Administration, and potentially the Obama Administration, will have a lasting impact. So pardon me if I don't send a thank you note over to the 43rd President for not ordering an up-armored Humvee through a Buffalo suburb.

The Creeping National Security State

This makes no sense:

The federal government's most secure prison has determined that two books written by President Barack Obama contain material "potentially detrimental to national security" and rejected an inmate's request to read them.

Ahmed Omar Abu Ali is serving a 30-year sentence at the federal supermax prison in Florence, Colo., for joining al-Qaida and plotting to assassinate then-President George W. Bush. Last year, Abu Ali requested two books written by Obama: "Dreams from My Father" and "The Audacity of Hope."

But prison officials, citing guidance from the FBI, determined that passages in both books contain information that could damage national security.

Then I guess we'll have to track down all of the couple million copies sold worldwide and redact them, not to mention garbling the Grammy-winning books on tape.

Couple things here. First, somebody tell Republicans and skittish Democrats that there's an Al Qaeda member in a federal prison on US soil! Let the pants-piddling begin!

Second, this has basically become shorthand for any violations of civil liberties in the modern age - cite national security. There's no justification for the theory that someone confined to a solitary cell 23 hours a day can gain valuable insight to carry out attacks on the nation from a memoir written in 1996 and a campaign-era collection of policy papers. Seduced by secrecy, government officials use the threat of national security to convince themselves of any behavior under the sun. Shielding a book from a prisoner pales in comparison to torture or warrantless spying or whatever it is the CIA held from Congress all those years. But they have the same rationale, which is often uncritically accepted by political leadership and the media establishment. And everyone walks around in this daze, without challenging this constant invocation of national security for increasingly ridiculous actions.

As long as nobody rises to stop it, the ruling class can expand the national security state block by block until we live as we do today, in a fundamentally different country.

And Justice For None

Glenn Greenwald has the gory details about yet another civil liberties backtrack for the White House, introducing the new term of "presidential post-acquittal detention power." Basically, if the Administration puts a terror suspect on trial and they are actually found innocent, the President reserves the right to detain them anyway for an indefinite period.

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates. This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree. That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals). Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

I get the feeling that if those left at Guantanamo wanted to engage in mass suicide right now, someone in the White House would give the go-ahead to mix the Kool-Aid for them. This is just a problem they don't want to solve.

And of course, the focus on Guantanamo, and the fate of the prisoners there, keeps everyone's eye off of those indefinitely detained at Bagram Air Force Base in Afghanistan, without charges, and in greater numbers at this point than in Cuba. Furthermore, what Obama's team has not answered is if they plan to continue these show trials and preventive detention tactics for those they capture, not just the artifacts of the Bush regime. That answer could come soon.

We have, through expansion of executive power, extreme Congressional deference and a failure to counteract the push in the popular culture, allowed the arguments of reactionaries - that any suspect in the so-called "war on terror" must be detained indefinitely until the end of combat in an endless, figurative war - to take hold in the public mind. When these issues made the public debate, when torture became the stuff of online poll topics, when they were allowed legitimacy, we inevitably and inescapably lost that debate. The genie has left the bottle, and while a popular President could put it back in, he has shown absolutely no willingness to expend an ounce of political capital to do so. And we will look back on decisions like this as part of a sad legacy, regardless of the rest of the tenure.

Happy Torture Of July

I have pulled back from writing about the torture debate of late because it's just too painful. There can be no question that this country used taxpayer-funded federal agencies like the CIA and the Department of Defense to enact cruel, degrading and illegal techniques on terrorism suspects as young as twelve, pushing them into false confessions and generally making it impossible to separate the guilty from the innocent, in a mad search for evidence, including confessions linking Iraq and Saddam Hussein with Al Qaeda and 9-11. These acts of torture, which we reversed engineered from the Chinese Communists (who also used them to extract false confessions) were far from benign or even ephemeral; indeed, at least 100 prisoners in custody died from torture, both at secret prisons abroad, in Iraq and in Afghanistan, where the very same base of operations for the torture of prisoners, Bagram, continues to house hundreds of suspects without charges. When civil liberties groups and ordinary Americans learned of these acts of torture, authorized and directed at the highest levels right out of the White House, those in power sought to destroy the evidence, and even to this day, the Administration that succeeded them has done everything in its power to cover up much of the worst abuses and ensure no accountability for these actions. To this day, some of the people directly involved in the torture regime continue to work in their positions under the Obama Administration.

Some would consider this a terrible subject to write about on the Fourth of July. I think it's the perfect time. I believe that the founding of the nation rings hollow when we can no longer say without laughing that here, the people rule, that no man is king and nobody is above the law, that we have a government of, by and for the people. The difficulties of passing legislation that moves us forward into the future were in many ways baked into the checks and balances of the system. Those processes can change. But the stain of torture, combined with the complete lack of accountability for it, must not get swept out with the old Administration like a bad policy. Indeed, the spectacle of watching the Democratic President essentially follow the Republican President in enshrining civil liberties abuses into law , gaining support on both sides, is deeply distasteful and distressing to me as an American.

I guess I'm supposed to be cheered by the fact that the President won't sign an executive order bringing the concept of preventive detention, the idea of indefinitely holding prisoners without charges, into this American experiment. And I should take solace that some in the Justice Department believe that detainees in our custody do have protections in the legal system against being charged using evidence gained through torture or coercion. But none of this is really good enough. Torture is a bright line that should separate civilized societies from the uncivilized. It is true that the courts and even some of the internal Justice Department mechanisms at the Office of Legal Counsel have resisted this headlong push into codifying some of the worst abuses of the Bush Administration. And yet those tactics and actions seen as wrong, as illegal, as the cause of hundreds if not thousands of deaths, have no sanction. And we live with this moral rot. And it's a rot which almost necessarily leads to other abuses, as we get swept up in almost a fever dream, where security trumps liberty and fear overpowers reason.

Donald Rumsfeld has finally said he's sorry. Sort of.

In an interview with biographer Bradley Graham, the former secretary of defense says he has regrets about the administration's controversial detainee policy.

The twist is that Rumsfeld doesn't regret the policy itself -- specifically the abandoning of the Geneva Conventions for detainees picked up in Afghanistan. Rather, he regrets how the policy was formulated.

Here's the relevant section from Graham's book:

With the passage of time, Rumsfeld has come to recognize that he made a mistake, although he sees the error as one of process, not basic judgment. He faults himself for taking too legalistic an approach initially, saying it would have been better if senior Pentagon officials responsible for policy and management matters had been brought in earlier to play more of a role and provide a broader perspective. As he explained in an interview in late 2008, policies were developing so fast in the weeks after the September 11 attacks that he did not follow his own normal procedures. "All of a sudden, it was just all happening, and the general counsel's office in the Pentagon had the lead," he said. "It never registered in my mind in this particular instance--it did in almost every other case--that these issues ought to be in a policy development or management posture. Looking back at it now, I have a feeling that was a mistake. In retrospect, it would have been better to take all of those issues and put them in the hands of policy or management."

Further, Rumsfeld conceded, more should have been done to engage Congress in drafting the new policies on detainees--something he said that White House officials had opposed. Although Congress did eventually get involved, he noted that this occurred "in duress" after the Supreme Court ruled in 2006 against the administration's original approach.

"All of a sudden, it was all just happening." Rumsfeld doesn't really take responsibility for the deaths of people in custody, but he recognizes the environment that leads to such mistakes and lapses, a groupthink that eventually consumes the policymakers. It makes a mockery of deliberative democracy to think this could ever happen.

It's not the most festive message on this day, but if we celebrate these United States on the day of its founding, then we must also strive for that union to live up to the founding principles. All men are created equal reads like a punchline in light of the past eight years and even these last several months. And there is no better time to ruminate on how we can be worthy of the sacrifices of those who started a revolution to bring self-government to this colonized collection of states.

Preventive Detention Floated

John Cole said to prepare for an anti-Obama shit fit based on this news, but isn't it a pro-civil liberties shit fit? A pro-habeas corpus shit fit? A pro-due process shit fit? A pro-hundreds of years of Western-style criminal justice shit fir?

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president's January deadline.

It's important to note that an unnamed White House official denies the existence of a draft order, and in the story spokesman Ben LaBolt does the same. But if you believe the general overview of the piece, we're about to see a little over 100 prisoners, with insufficient evidence to be tried but suspicions that they would "return to the battlefield," as it were, if released, will be held indefinitely in a prison, whether it's Guantanamo or not, until such time as they are fit to release, at the end of the so-called war on terror, I suppose.

The Administration is still working from this theory that the only problem with Guantanamo is its symbology and not its reality, that the indefinite detention of prisoners, their torture and abuse, etc., constituted the outrage of the world, not its location.

The other kind of astonishing thing with this idea is that the courts have ALREADY found it unconstitutional. Hamdan v. Rumsfeld pretty much put it to rest. In fact, the attorney for Salim Hamdan in that case was President Obama's own Deputy Solicitor General, Neal Katyal.

If this were sent out as a trial balloon to gauge reaction, hopefully the White House staff will take a click over to TPM:

But it doesn't sound like those groups are pysched about the news, exactly. Shane Kadidal of the Center for Constitutional Rights told TPMmuckraker via email:

Prolonged imprisonment without trial is exactly the Guantanamo system that the President promised to shut down. Whatever form it takes - from Congress or the President's pen - it is anathema to the basic principles of American law and the courts will find it unconstitutional.

Kadidal continued:

Another thing that's odd about this is the idea that this detention authority would somehow be more transient if it were authorized through executive order (which can be reversed at the stroke of the president's pen) rather than a statute (which could sit on the books indefinitely). If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent.

In fact, this executive abuse is being carried out to cover up the previous executive abuse, which doesn't excuse Obama for this illegal action, but just shows how untrammeled executive power can just snowball. Indeed, in at least one Guantanamo case, it can be argued that preventive detention will be employed to cover up the torture of one of the potential witnesses in the trial.

Glennzilla notes something even more horrific about this:

There has now emerged a very clear -- and very disturbing -- pattern whereby Obama is willing to use legal mechanisms and recognize the authority of other branches only if he's assured that he'll get the outcome he wants. If he can't get what he wants from those processes, he'll just assert Bush-like unilateral powers to bypass those processes and do what he wants anyway [...]

That, for instance, is the precise pattern that's driving his suppression of torture photos. Two federal courts ordered the President to release the photos under the 40-year-old Freedom of Information Act. Not wanting to abide by that decision, the White House (using Lindsey Graham and Joe Lieberman) tried to pressure Congress to enact new legislation vesting the administration with the power to override FOIA. When House progressives blocked that bill, the White House assured Lieberman and Graham that Obama would simply use an Executive Order to decree the photos "classified" (when they are plainly nothing of the sort) and thus block their release anyway.

People are starting to wake up to the evidence that the President has basically carried on a good deal of the same abuses of the Bush regime, and this attempt to engage in preventive detention is perhaps the worst example. The idea that the Administration cannot change certain prisoners because we cannot be assured ahead of time that they will win a conviction sets the standard of law completely on its head. As Bob Herbert notes:

Americans should recoil as one against the idea of preventive detention , imprisoning people indefinitely, for years and perhaps for life, without charge and without giving them an opportunity to demonstrate their innocence. And yet we’ve embraced it, asserting that there are people who are far too dangerous to even think about releasing but who cannot be put on trial because we have no real evidence that they have committed any crime, or because we’ve tortured them and therefore the evidence would not be admissible, or whatever. President Obama is O.K. with this (he calls it "prolonged detention"), but he wants to make sure it is carried out -- here comes the oxymoron -- fairly and nonabusively. Proof of guilt? In 21st-century America, there is no longer any need for such annoyances. Human rights? Ha-ha. That’s a good one.

Slow Motion Avalanche

This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.

Equal Justice

I'm getting to this late, but Jack Balkin (h/t Hilzoy) has some excellent questions about George Tiller's alleged murderer Scott Roeder:

"(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian? (...)

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?"

In fact, if you want to talk about ticking time bomb scenarios, Roeder would certainly be a subject for interrogation. He has been involved in pro-life movements for many years; he was arrested and convicted in 1996 for attempting to bomb an abortion clinic; he attempted to break and enter into Tiller's clinic in the weeks leading up to the murder (a federal crime under the FACE Act), and his name and license plate number were sent to the FBI; he had the phone number for Operation Rescue in his car, and Operation Rescue provided information about Tiller to Roeder before the shooting. In the wake of Tiller's murder, a pro-life activist published photos and personal information of other doctors who perform late-term abortions.

So on those grounds, considering there may be other individuals seeking to kill American doctors, considering that Roeder has multiple ties to the movement that would carry out those killings, it would only make sense to use the interrorgation techniques on Roeder that would help protect Americans. Right? Furthermore, everyone associated with these movements, all of the dangerous suspected domestic terrorists or those with ties to them, including the commentators who fanned the flames of hate, ought to be locked up without charges so that they don't hurt Americans. Right? Right?

Well, I don't believe the answer is yes. But apparently, on a bipartisan basis, our political leadership does believe that some individuals should be subject to indefinite detention in case they commit a crime in the future, and that the legal system is not equipped to handle them. And the overwhelming majority of at least one major political party believes that torture is justified if it saves American lives. As Hilzoy says:

Obviously, though, these tactics were never meant to be used against people like us. It's only other people -- scary, presumptively guilty other people -- whom we get to detain without trial, based on evidence that would not win a conviction in a normal court of law. Not people like us.

Personally, I think this would be a bad idea. But a lot of people seem to disagree. They seem to think it's fine to toss aside centuries of legal tradition, not to mention our civil liberties. What's really strange is that they claim that they are doing this because they love freedom.

Well said.

Maybe someone in the media could ask any member of either party about this.

You Don't Have To Stay Here But You Can't Go Home

When the final history is written on this era, we will be as ashamed with ourselves about the Uighurs as we are with Korematsu:

The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.

In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE'-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants.

The administration says a federal appeals court ruling that blocked the Uighurs' release in the United States should be upheld. The government is trying to find another country to take them.

The Uighurs' "continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States," Solicitor General Elena Kagan told the court.

The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. "They are free to leave Guantanamo Bay to go to any country that is willing to accept them," she said.

Apparently Australia is being tapped, again - they turned down Bush twice when they tried to resettle the Uighurs. Until that time, our government is literally saying that a group of people who have committed no crime, who were falsely imprisoned and detained for over seven years, cannot be allowed to leave prison even after a federal judge has exonerated them and ordered them released. And they frame it in the most disingenuous way possible - saying they are "free to leave" when that is patently false. They even have the audacity to allege that the living conditions in the prison are just peachy:

Somewhat shockingly, as ABC’s Jake Tapper notes, the Obama administration’s petition suggests that the Uighurs’ imprisonment “isn’t so bad,” and trumpets their comfy quarters at Guantanamo:

“In contrast to individuals currently detained as enemies under the laws of war, petitioners are being housed under relatively unrestrictive conditions, given the status of Guantanamo Bay as a United States military base,” Kagan writes, saying they are “in special communal housing with access to all areas of their camp, including an outdoor recreation space and picnic area.” They “sleep in an air-conditioned bunk house and have the use of an activity room equipped with various recreational items, including a television with VCR and DVD players, a stereo system, and sports equipment.”

I'm so annoyed, I could spit. The Administration has tried to have it both ways on civil liberties and terrorism policy so many times now. This latest argument, consigning the Uighurs to a legal black hole, is particularly distasteful.

I have no idea whether or not the administration's argument is correct as a matter of law. Moreover, I don't care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.

We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent.

I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That's not a reasonable amount of time to tie up loose ends; it's a tenth of a normal lifespan.

We screwed up. We should step up to the plate and do what's right. Seven and a half years is too long.

I'm seeing less and less change from this Administration by the day.

Not Thrown Off The Trail

Good for human rights and civil liberties groups, refusing to be dazzled by rhetoric, and almost unanimously coming out today to assail the President on particular detainee policies, particularly indefinite detention, as too close to the prior regime and out of step with the policies he has articulated. A sample from Human Rights Watch:

"President Obama is absolutely right to emphasize that ignoring our values undermines rather than enhances America's security," said HRW executive director Kenneth Roth. "But allowing detention without trial creates a dangerous loophole in our justice system that mimics the Bush administration's abusive approach to fighting terrorism."

A kinder, gentler, stateside Guantanamo, with the same indefinite detention and kangaroo court policies, does not and should not satisfy those committed to the rule of law. Obama may have gotten over the hump with respect to the decision to close Guantanamo, but his divide with these groups remain. They should be commended for fighting for all of us to make us safer and more respected in the world.

The Speech Is Not Enough

President Obama made a nice speech today, defending his national security policies and the theory that we should not shrink from our values in a maelstrom of fear. He stood at the National Archives, in front of the founding documents, and acted as a defender of them.

And that's great. Obama made quite a few excellent points, about the closure of Guantanamo, the need for checks and balances and vigorous oversight from the other branches of government, and the failure of the previous Administration to keep faith with our values.

Bully. Wonderful.

I'm pretty much done with talk. On these issues in particular, I will look to the actions of the Administration to make determinations on their success or failure in my eyes. And those actions are likely to fail as much as they succeed. Obama basically acknowledged this. I think this was the key moment in the speech, the moment where Obama tried to position himself as offering some wise middle path and marginalizing "absolutists" on either side of him:

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants - provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

When he talks here about absolutists, I can only assume he's talking about those of us who believe that no prisoner should be held indefinitely without charges, who believe that there need not be a military courts process outside the one used on our own soldiers, with all of the agreed-upon safeguards and rules for acquiring justice over 200-plus years, who believe that people described vaguely as "supporters" of criminal activities are not as culpable as the criminals themselves and cannot be held without legitimate charges, who believe that the government should not be able to assert state secrets as a means solely to shut down accountability by the judicial branch. If that makes me an extremist, cue the Barry Goldwater line about extremism in the defense of liberty being no vice. I'm simply articulating Constitutional principles, much like the human rights groups who met with Obama yesterday have articulated for many years. And I come out of this speech with a similar reaction to one of the participants in that discussion.

Asked whether the president had pacified some of the concerns she brought to the White House on Wednesday, (Human Rights First CEO Elisa) Massimino said that she was pleased with the opportunity for engagement. Beyond that, she still registered concerns.

"I think that many of us were disappointed by the announcement about the military commissions and wondered what the reasoning was behind that. And to be honest, I am still wondering having been in this meeting today. I don't think that this fits the overall framework that the president had articulated about using our values to reinforce a counter terrorism strategy against al Qaeda."

Obama seems committed to providing a durable framework for future Presidents to deal with these issues, and seems committed to a robust process of oversight to allow for a full examination of whether the policies are consistent with Constitutional principles. And then he throws out something like the military commissions revival or hints about preventive detention (literally, the pre-crime process from Minority Report) and you wonder if this is the same person. The actions have not matched the rhetoric, at least not always.

Now, as a token of some sort, the US government will prosecute Ahmed Khalfan Ghailani, who was allegedly involved in the bombing of US Embassies in Africa in 1998, in a New York City courtroom. That's consistent with our criminal justice system and the proper method of dealing with terrorist activity. It lends credibility to the process and shows that the United States is serious about joining the community of law-abiding nations again. But one token is not enough. And I will continue to fight for civil liberties as long as I see them being abused.

Now, Dick Cheney crawled out of the primordial ooze and I'm supposed to be watching his speech today as well. Here's my only response to that.

With Friends Like These

With Friends Like These

by dday

Is there one right-wing hissy fit the Democrats can manage to ignore? I know, simple answers to stupid questions, the answer is no.

Senate Majority Leader Harry Reid (D-NV) declared in a press conference today, “We will never allow terrorists to be released into the United States.” In several tense back and forths with reporters, Reid said he opposes imprisoning detainees on U.S. soil, saying flatly, “We don’t want them around the United States”:

REID: I’m saying that the United States Senate, Democrats and Republicans, do not want terrorists to be released in the United States. That’s very clear.

QUESTION: No one’s talking about releasing them. We’re talking about putting them in prison somewhere in the United States.

REID: Can’t put them in prison unless you release them.

QUESTION: Sir, are you going to clarify that a little bit? …

REID: I can’t make it any more clear than the statement I have given to you. We will never allow terrorists to be released in the United States.

Later, Reid repeated that he would not support Guantanamo detainees being transferred to U.S prisons:

QUESTION: But Senator, Senator, it’s not that you’re not being clear when you say you don’t want them released. But could you say — would you be all right with them being transferred to an American prison?

REID: Not in the United States.

That floating plastic island in the Pacific is looking better and better every day.

No doubt Reid's sudden lack of confidence in the federal prison system and trickle of piss tumbling down his pants has something to do with the low approval ratings coming out of Nevada. But more than that, he exhibits the exact same knee-jerk response to Republican fearmongering to which we've grown accustomed - a weak-kneed backpedal displayed in the name of looking strong and tough. This statement Reid's office released makes absolutely no sense, proving again Digby's point that, when politicians start speaking Engrish instead of English, you know they're hiding something:

"President George W. Bush, Senator John McCain, Secretary Colin Powell, President Obama and I all agree – Guantanamo must be closed. President Obama’s approach is a responsible one. [...]

“The amendment Chairman Inouye has offered today recognizes that it would be premature for Congress to act before the Administration proposes its plan. I support his amendment. On two important points, however, we do not need to wait for any instruction – and there should be no misunderstanding. Let me be clear: Democrats will not move to close Guantanamo without a responsible plan in place to ensure Americans’ safety. And we will never allow a terrorist to be released into the United States.

“This amendment is as clear as day. It explicitly bars using the funds in this bill to ‘transfer, release or incarcerate’ any of the Guantanamo detainees in the United States. When the Administration closes Guantanamo, we will ensure it does so the right way.”

So we have to close Guantanamo, but we will never allow terrorists to pump our gas or check us out at Wal-Mart, but we also won't transfer, release or incarcerate any Guantanamo detainees, whether they've been absolved of any terrorism charges or not. But in the end, don't worry, we'll do the "right" thing. Sounds like they need some kind of detention facility outside the United States, maybe on foreign soil, to handle those dangerous sorts. Maybe Cuba has something opening up soon.

Harry Reid needs to get himself down to Guantanamo and personally inform the Uighurs, who have been held in a Kafka-esque legal black hole for seven years, innocent of crimes and cleared for release but without a country to call home, why his misplacing of his vertebrae means that they must stay locked in prison forever. Maybe they'll say to his face what they said to Newt Gingrich through interpreters: "Why does he hate us so much and say those kinds of things? He doesn't know us."

Meanwhile, Mitch McConnell is laughing his ass off:

Senate Democrats won rare praise from Senate GOP Leader Mitch McConnell (R-Ky.), who hailed their "flexibility" on closing Guantanamo Bay and other national security issues.

"Well, they're certainly coming in the right direction," McConnell told reporters about Democrats' decision to strip money to close the Naval detention center from the war supplemental bill.

McConnell said Americans "ought to be pleased that our friends on the other side of the aisle are showing some flexibility on this issue and heading in our direction," adding that he hoped President Obama would show similar flexibility, as with his reversed decision on releasing photos of detainee abuse.

"The president has shown some flexibility on national security issues," McConnell said. "I hope he will have some flexibility on the detainee facility at Guantanamo, because it really has worked very, very well."

I can't wait for the day Obama reverses hiimself and keeps Guantanamo open. The pundits will praise him endlessly for his wise centrism. And he might as well, considering the restoration of military commissions with the same flaws as before, including continued use of evidence obtained from HEARSAY - think about the implications of allowing evidence in an American-sponsored court based on anonymous whispers. Nobody wanted a change of venue from Guantanamo because they didn't like the name. It was about the sad legacy of the policies practiced there.

The problem with Reid's obnoxious, intelligence-insulting backpedal, aside from how easily anyone can discern the party on offense from the party on defense, is that the entire Democratic Party has flat stopped making any argument about national security from the perspective of civil liberties and human rights, and how respecting both ultimately makes us safer. Even if Democrats believe it - and most of them don't - they either think it's too nuanced for the country to accept (wrong) or too easily demagogued by the hissy fit stirrers on the right (who are completely discredited). And this of course starts right at the top. Obama put himself in this position, where the Senate Majority Leader is now flopping around like a fish trying to look "tough." But Reid is of course collateral damage in this battle to burnish the "sensible center," as defined by what George Bush did to keep us safe. Here's Glenn:

What is, in my view, most noteworthy about all of this is how it gives the lie to the collective national claim that we learned our lesson and are now regretful about the Bush/Cheney approach to Terrorism. Republicans are right about the fact that while it was Bush officials who led the way in implementing these radical and lawless policies, most of the country's institutions -- particularly the Democratic Party leadership and the media -- acquiesced to it, endorsed it, and enabled it. And they still do [...]

As Maureen Dowd pointed out in the non-plagiarized part of her column on Sunday, the reason Bush was able to do what he did is because "very few watchdogs — in the Democratic Party or the press — were pushing back against the Bush horde in 2002 and 2003, when magazines were gushing about W. and Cheney as conquering heroes." But all of this recent media commentary makes clear that media stars and Democratic leaders now are only pretending to find Bush/Cheney policies repugnant because Bush is now so unpopular and his policies were proven to be failures. As a result, a new face is needed for those policies, but the belief in the rightness of those policies hasn't changed. They still consider Bush/Cheney policies "centrist" and responsible -- only Leftist Purists oppose them -- and thus heap praise on Obama for embracing them. We're still the same country we were in 2003. Our media stars and political leaders from both parties still think the same way. That's why the more Obama embraces the Bush/Cheney approach, the more praise he gets for Centrism.

This is not only a losing argument around the world, as the stars fall from their eyes when they witness the same distasteful policies wrapped up in a prettier package. It's also a lose POLITICALLY to strengthen the arguments of your opponents and alienate your supporters. I'm just a DFH who doesn't know how the world works, but it seems to me that the Democrats never succeeded by trying to take issues "off the table," only by confronting them and offering a better argument. I guess that makes me unserious.

"Most Transparent Administration In History"

Sorry, I was out for a bit.

There was an expectation of this today, and now the Obama Administration made it official - they're going back to court to block the release of thousands of photographs from Afghanistan and Iraq of detainee abuse sought by the ACLU.

President Obama said on Wednesday that he is seeking to block the release of photographs that depict American military personnel abusing captives in Iraq and Afghanistan, worrying that the images could “further inflame anti-American opinion.”

As he left the White House to fly to Arizona for an evening commencement address, Mr. Obama briefly explained his abrupt reversal on releasing the photographs. He said the pictures, which he has reviewed, “are not particularly sensational, but the conduct did not conform with the Army manual.”

He did not take questions from reporters, but said disclosing the photos would have “a chilling effect” on future attempts to investigate detainee abuse.

The president’s decision marks a sharp reversal from a decision made last month by the Pentagon, which agreed in a case with the American Civil Liberties Union to release photographs showing incidents at Abu Ghraib and a half-dozen other prisons. At the time, the president signed off on the decision, saying he agreed with releasing the photos.

Robert Gibbs, the White House press secretary, said that the president met last week “with his legal team and told them that he did not feel comfortable with the release of the D.O.D. photos because he believes their release would endanger our troops.”

This may be the most Bushian thing Obama has done, not necessarily because of the action, but because of the rationale. First off, the idea that the release of the photos would endanger the troops looks over the fact that the troops are in danger RIGHT NOW because of their placement in harm's way in two unnecessary and failed wars. We've heard all this happy talk about the war in Iraq, yet one set of photos would spark a revolution? I think it betrays a naivete about what the Iraqis already know about detainee abuse. After all, they have, um, access to those who were abused, namely their relatives.

Second, Obama said that the release would have a "chilling effect" on other attempts to investigate abuse. How? If anyone stopped taking photos because of their release, that would have already happened after the release of the pictures in Abu Ghraib. Look, the Defense Department wants everything they do to remain secret. But this is a democracy, and I dare say that the American taxpayer has paid for those photos. We deserve an accounting. And if Obama thinks that denying the EVENTUAL release (he'll lose this in court) will somehow mute the calls for an independent investigation over torture, clearly the opposite will happen.

I hope the stars are out of everyone's eyes with respect to Obama now. And this reversal is sadly not isolated, particularly on national security and civil liberties issues. They want to revive the discredited military commissions process, and sidestep a criminal justice system that has worked for 225 years in favor of what amounts to a kangaroo court. They threatened Britain to keep quiet over evidence showing the torture of Binyam Mohamed, or else they would cut off cooperation with the British government on terror operations and intelligence. They have continued the practice of declaring the state secrets privilege to shut down judicial review of past actions of the executive branch. On these issues, Obama has offered no change whatsoever, but an allegiance to very right-wing ideas about security and privacy and civil liberties. It's shameful.