Hope For A Restored Set Of Civil Liberties

For those in Southern California, I'm actually on a panel tonight about civil liberties and the first 100 days of the Obama Administration, with the Pasadena chapter of the ACLU. The location is:

NEIGHBORHOOD UNIVERSALIST CHURCH
301 North Orange Grove Blvd. Pasadena, CA 91103
7:30pm

In general, I think the civil liberties changes in the Administration are shaping up as kind of a mixed bag. I appreciate the quality and character and commitment to justice of many of Obama's nominees for top positions, in particular Dawn Johnsen at the Office of Legal Counsel. At the same time I'm troubled by the lack of concern for past crimes and instead this insistence on "moving forward," as if deterrence is not a part of criminal justice. Yesterday, Obama's transition vowed to order the closure of Guantanamo immediately. Today, we hear that the closure could take up to a year:

But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.

Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”

Good and bad here as well. There is the power of the symbolism in breaking with the past and ordering closure, as well as rejecting the extra-legal options of indefinitely detaining people on US soil or continuing the flawed shams that Bush has been using as military commissions. However, trying detainees in federal courts and accepting evidence gained through torture that would otherwise be inadmissable is abhorrent. So we still don't know which way he's going to go. As Anthony Romero says in the article, “Just like we need specifics on an economic recovery package, we need specifics on a ‘justice recovery package.”

There is some good news to report, however. Not only is Obama committed to reversing several executive orders made by the Bush regime, he is going to express his legal opinions in public instead of making more secret laws.

Senator Russ Feingold (D-WI) said he’s been informed that President Obama will support his proposed legislation to make public some opinions from the Justice Department's Office of Legal Counsel, which issued some of the Bush Administration's most sweeping claims of executive power. Obama also has promised to limit President Bush's practice of using "signing statements" to amend legislation.

"Every day we get indications that they're serious about reversing the abuses of the Constitution," Feingold, a harsh Bush critic, told Politico. Feingold said he thinks Obama is likely to issue executive orders rapidly reversing Bush policies, and others have indicate that those will likely cover the interrogation and detention of terror suspects, and keeping the records of past presidents secret.

"I don't know in what order or how fast" Obama’s executive orders could come, he said. "It'll be important that a couple of them be done immediately, and I think they will be, to show there's a strong break from the current policy."

It's going to be hard to get an executive to willingly give up power. But if the means by which he seeks to maintain or expand them is public, then pressure can be far more effective in dialing the worst abuses back.

See Greenwald for more on all of this. And see me, if you can, tonight in Pasadena.

Secret Laws

Russ Feingold is doing the Lord's work, trying to get to the bottom on a set of laws that have been passed by executive order that none of us mere citizens have awareness of or ideas about. He calls them secret laws, and apparently the President believes he can create or modify them without informing anyone.

It would appear that this is the direction which the Bush regime is trying to take America. John R. Elwood, the Office of Legal Counsel's deputy assistant attorney general, recently testified at a Senate hearing on "Secret Law and the Threat to Democratic and Accountable Government" and he revealed that the Bush regime believes "that the president could ignore or modify existing executive orders that he and other presidents have issued without disclosing the new interpretation."

In the past, even if you disagreed with the president's executive orders or the administration's interpretation of the laws, at least you'd know what they were — and perhaps challenge them in court, if you thought you had a case. Now, though, you can be potentially be arrested and tossed in jail without charges, without being allowed to contact your family, and for an indefinite period of time... all for violating an order or legal interpretation which you are completely unaware of. You'll be subjected to treatment which might cause you to lose your sanity, but you'll never be told why.

If you were allowed to consult a lawyer (which you wouldn't be), and if you were permitted to challenge your detention in court (not a chance), then not only would the evidence against you be so secret that your non-existent lawyer wouldn't be allowed to see it, but even the charges against you would be too secret for your non-existent lawyer to look at. To be fair, I guess there's no real point in allowing people to know what laws or rules they have broken when there aren't going to be allowed to defend themselves in a court of law. Wouldn't that just serve to make them even more insane?

Usually us librul hippie types are told to take off the tinfoil hat and that we're worried about nonsense. Whatever "secret laws" exist are there for our protection, after all, and we'll be damned happy they're in place when the time comes. Digby takes a look at this article in Radar Magazine which described what may happen when the time comes, particularly in the event of another terrorist attack.

Addressing the nation from the Oval Office in 2005 after the first disclosures of the NSA's warrantless electronic surveillance became public, Bush insisted that the spying program in question was reviewed "every 45 days" as part of planning to assess threats to "the continuity of our government."

Few Americans—professional journalists included—know anything about so-called Continuity of Government (COG) programs, so it's no surprise that the president's passing reference received almost no attention. COG resides in a nebulous legal realm, encompassing national emergency plans that would trigger the takeover of the country by extra-constitutional forces—and effectively suspend the republic. In short, it's a road map for martial law.

While Comey, who left the Department of Justice in 2005, has steadfastly refused to comment further on the matter, a number of former government employees and intelligence sources with independent knowledge of domestic surveillance operations claim the program that caused the flap between Comey and the White House was related to a database of Americans who might be considered potential threats in the event of a national emergency. Sources familiar with the program say that the government's data gathering has been overzealous and probably conducted in violation of federal law and the protection from unreasonable search and seizure guaranteed by the Fourth Amendment.

According to a senior government official who served with high-level security clearances in five administrations, "There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived 'enemies of the state' almost instantaneously." He and other sources tell Radar that the database is sometimes referred to by the code name Main Core. One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.

It could be paranoid folly to worry about this, or not. We have no idea, and we're being kept intentionally in the dark. Secret laws like this have no business in a democracy, the legitimacy for which is derived from the consent of the governed. It's pretty clear that the technical apparatus is in place to spy on and detain those who government officials believe constitute an emerging threat to the United States. Whether or not it will be used is an open question, but it may be legal to do so without any of us citizens knowing it.

That is a scary place to be, and a Democratic Administration simply has to eradicate this with the fullest amount of sunshine. Obama can be a reformer just by governing outside the shadows. I'd like a massive bonfire of all that data being collected, perhaps out on the White House lawn.