Yesterday the Senate Judiciary Committee followed last month's House Judiciary Committee hearing into the Bush Administration's abuse of the "state secrets" privilege. The administration has used the privilege to thwart examination in the clear light of day of its activities, from its illegal wiretapping (domestic surveillance) program, the so-called rendition of suspected terrorists such as Khaled el-Masri, the torture/interrogation of prisoners, or the secret gathering of banking records.
Just yesterday, a federal judge dismissed a lawsuit on the grounds of the state secrets privilege. The suit was brought against a Boeing subsidiary accused of flying alleged terrorists, on behalf of the CIA, to foreign countries to undergo torture.
In his ruling, the US District Court judge, James Ware, wrote "the court's review of Gen. Hayden's public and classified declarations confirm that continuing the case would jeopardize national security and foreign relations and that no protective procedure can salvage this case." (emphasis added) The State Secrets Protection Act seeks to remedy this since it will require a court to actually examine the evidence.
Senate Judiciary Committee Chairman Patrick Leahy (D-VT) noted, because of the administration's repeated invocation of the privilege, "it is through the press that we first learned about secret surveillance of Americans by their own government in the years after 9/11, secret renditions abroad in violation of U.S. laws, secret prisons abroad, secret decisions to fire some of the nation’s top prosecutors, and the secret destruction of interrogation tapes that may have contained evidence of torture. Having relied on an overly expansive, self-justifying view of executive power, the Bush administration now seeks secrecy for its actions. It has taken a legal doctrine that was intended to protect sensitive, national security information and seems to be using it to evade accountability for its own misdeeds."
Louis Fisher, a specialist in Constitutional law at the Law Library of the Library of Congress, testified on the need to reform the state secrets privilege as "necessary to protect constitutional principles, particularly the system of checks and balances. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. A sense of fairness in the courtroom is essential in protecting the integrity and credibility of the judiciary."
This sounds stunningly reasonable. So how does the Bush Administration respond? Naturally, it cites the threat from al-Qaeda specifically and terrorists generally.
Carl Nichols, Assistant Deputy Attorney General: "litigation may risk disclosing to al Qaeda or other adversaries details regarding our intelligence capabilities and operations, our sources and methods of foreign intelligence gathering, and other important and sensitive activities that we are presently undertaking in our conflict."
But former federal Appeals Court Judge Patricia Wald noted that judges frequently deal with classified information without revealing anything to the nation's enemies:
"To my knowledge there have been no court 'leaks' of any such information."
Of course, the administration casts aside the privilege when politically convenient. Despite its past assertions that even revealing the existence of any program would damage national security, it then selectively dribbles out information to the public or to Congress. One recent example was cited by Kevin Bankston, an attorney for the Electronic Freedom Foundation, in his testimony to the House: "The timing of the Administration’s belated disclosure to House members of materials related to the NSA program, after over a year of Congressional demands and at the height of the debate over whether to give AT&T and the other carriers immunity, was clearly dictated not by a need to protect state secrets but by political considerations."
And on Monday, White House Press Secretary Dana Perino, knowing telecom immunity would be granted by the Senate, said this about FISA violations, illegal wiretapping and the telecommunications companies who participated: "The telephone companies that were alleged to have helped their country after 9/11 did so because they are patriotic and they certainly helped us and they helped us save lives." (emphasis added). Note that "alleged," apparently a reflexive use of the word on Perino's part, becomes "did so."
The Senate's State Secrets Protection Act is intended to remedy these several abuses. Caroline Frederickson of the ACLU said "the state secrets privilege has been used in recent years as a legal ‘A’ bomb, annihilating cases that may expose the government," and that the time had come "for Congress to intervene and to reinforce the system of checks and balances."
Whether that will be the case remains to be seen.
Thursday, February 14, 2008
Wednesday, February 13, 2008
Surveillance State, Torture State, Terminal State
As we continue our national metamorphosis from a nation of laws to an intrusive, abusive and Constitution-discarding state, we're left to ponder the whys and wherefores of our descent into darkness.
The Senate yesterday passed legislation to expand warrantless surveillance and grant immunity to the telecommunications companies that illegally participated in warrantless surveillance from at least the onset of 9/11, if not before.
As reported by the NY Times, Sen. Leahy's (D-VT) view of it was that "some people around here get cold feet when threatened by the administration."
Michael Sussman, a former Justice Department attorney, said "this is a dramatic restructuring" of the law, "and the thing that’s so dramatic about this is that you’ve removed the court review. There may be some checks after the fact, but the administration is picking the targets."
That was followed today by a Senate ban on "interrogation methods," or torture, such as waterboarding that are not permitted under Army Field Manual. The vote, however, did not carry a veto-proof majority and President Bush has promised a veto of any such legislation, saying it "would prevent the president from taking the lawful actions necessary to protect Americans from attack in wartime," even though torture is illegal and a war crime. (emphasis added)
Sen. McCain (R-AZ) voted against the ban although he'd earlier said of waterboarding, "all I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today ... it is not a complicated procedure. It is torture." (McCain sponsored the 2006 Detainee Treatment Act which prohibited waterboarding; nevertheless, the Bush administration, as the Washington Post put it, "maintained that the law did not apply to the CIA and other intelligence agencies, leading to today's vote.")
Yet today, McCain chose the "presidential" path and reversed himself.
And so here we are. There are some in Congress, such as Sen. Feingold (D-WI), who still have clarity of thought and character.
On the torture ban: I made my position clear. I could not support the CIA’s program on moral, legal, or national security grounds. When I was finally fully briefed on the program, it was clear that what was going on was profoundly wrong. It did not represent what we, as a nation, stand for, or what we are fighting for in this global struggle against Al Qaeda. And it was not making our country any safer .... I also concluded that if the American people knew what we in the Intelligence Committee knew, they would agree.
And from Sen. Dodd (D-CT) on warantless wiretapping legislation:
I have seen some dark days in this chamber; in my mind, one of the worst was September 28, 2007: the day the Senate voted to strip habeas corpus and tolerate torture. Today, February 12, 2008, is nearly as dark: the day the Senate voted to ensure secrecy and to exempt corporations from the law. Frankly, I’ve seen a lot of darkness in recent years, as one by one our dearest traditions of Constitutional governance have been attacked.
And from Scott Horton, lawyer, Columbia Law School lecturer, and Harper's contributer: If things proceed on the course now set by the Bush Administration and its shortsighted collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach.
How did we get to this point? Fear, I suppose, is the leading explanation, the one suggested by Sen. Leahy. But it isn't just the fear of another terrorist attack only, it's fear of political opposition, fear of the rhetorical skills of persuasion ("soft on terror") by one's opponents, fear of businesses with unholy lobbying clout.
Ultimately, though, these explanations serve to mask something darker--the cowardice and, essentially, contempt of the political class for its own and the nation's integrity.
The Senate yesterday passed legislation to expand warrantless surveillance and grant immunity to the telecommunications companies that illegally participated in warrantless surveillance from at least the onset of 9/11, if not before.
As reported by the NY Times, Sen. Leahy's (D-VT) view of it was that "some people around here get cold feet when threatened by the administration."
Michael Sussman, a former Justice Department attorney, said "this is a dramatic restructuring" of the law, "and the thing that’s so dramatic about this is that you’ve removed the court review. There may be some checks after the fact, but the administration is picking the targets."
That was followed today by a Senate ban on "interrogation methods," or torture, such as waterboarding that are not permitted under Army Field Manual. The vote, however, did not carry a veto-proof majority and President Bush has promised a veto of any such legislation, saying it "would prevent the president from taking the lawful actions necessary to protect Americans from attack in wartime," even though torture is illegal and a war crime. (emphasis added)
Sen. McCain (R-AZ) voted against the ban although he'd earlier said of waterboarding, "all I can say is that it was used in the Spanish Inquisition, it was used in Pol Pot’s genocide in Cambodia, and there are reports that it is being used against Buddhist monks today ... it is not a complicated procedure. It is torture." (McCain sponsored the 2006 Detainee Treatment Act which prohibited waterboarding; nevertheless, the Bush administration, as the Washington Post put it, "maintained that the law did not apply to the CIA and other intelligence agencies, leading to today's vote.")
Yet today, McCain chose the "presidential" path and reversed himself.
And so here we are. There are some in Congress, such as Sen. Feingold (D-WI), who still have clarity of thought and character.
On the torture ban: I made my position clear. I could not support the CIA’s program on moral, legal, or national security grounds. When I was finally fully briefed on the program, it was clear that what was going on was profoundly wrong. It did not represent what we, as a nation, stand for, or what we are fighting for in this global struggle against Al Qaeda. And it was not making our country any safer .... I also concluded that if the American people knew what we in the Intelligence Committee knew, they would agree.
And from Sen. Dodd (D-CT) on warantless wiretapping legislation:
I have seen some dark days in this chamber; in my mind, one of the worst was September 28, 2007: the day the Senate voted to strip habeas corpus and tolerate torture. Today, February 12, 2008, is nearly as dark: the day the Senate voted to ensure secrecy and to exempt corporations from the law. Frankly, I’ve seen a lot of darkness in recent years, as one by one our dearest traditions of Constitutional governance have been attacked.
And from Scott Horton, lawyer, Columbia Law School lecturer, and Harper's contributer: If things proceed on the course now set by the Bush Administration and its shortsighted collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach.
How did we get to this point? Fear, I suppose, is the leading explanation, the one suggested by Sen. Leahy. But it isn't just the fear of another terrorist attack only, it's fear of political opposition, fear of the rhetorical skills of persuasion ("soft on terror") by one's opponents, fear of businesses with unholy lobbying clout.
Ultimately, though, these explanations serve to mask something darker--the cowardice and, essentially, contempt of the political class for its own and the nation's integrity.
Tuesday, February 12, 2008
US Response To Islamist Insurgencies: Seriously Deficient
The NY Times reported yesterday that the US Army buried a Rand Corporation report that offered a "wide-ranging critique of the White House, the Defense Department and other government agencies [which] was a concern for Army generals, and the Army has sought to keep the report under lock and key."
As Rand concluded, "the report finds that large-scale U.S. military intervention and occupation in the Muslim world is at best inadequate, at worst counter-productive, and, on the whole, infeasible. The United States should shift its priorities and funding to improve civil governance, build local security forces, and exploit information — capabilities that have been lacking in Iraq and Afghanistan."
This is quite an indictment following several years of questionable "progress" by the US in Iraq and Afghanistan. The report, titled "War by Other Means: Building Complete And Balanced Capabilities For Counterinsurgency," states what should be obvious: Military force is but one instrument of COIN [counterinsurgency] available for use in such contests, and it ought to be subordinate to a political strategy of offering the people a government deserving of their support. Improvements in local governance, legal systems, public services, and economic conditions may be at least as important as military operations, though the former often depend on the success of the latter.
That the report was buried tells us much about transparency, or lack of it, in the US government. One would think that the Rand report would be welcomed by no less than Defense Secretary Robert Gates, who has spoken at length of the need to reinvigorate the so-called soft power piece of a multi-pronged effort to bring stability to insurgency-convulsed regions: One of the most important lessons of the wars in Iraq and Afghanistan is that military success is not sufficient to win: economic development, institution-building and the rule of law, promoting internal reconciliation, good governance, providing basic services to the people, training and equipping indigenous military and police forces, strategic communications, and more – these, along with security, are essential ingredients for long-term success.
From Rand: "four of the strongest statistical predictors of successful insurgency exist in today’s Muslim world: populations excluded from politics and estranged from the state; authoritarian, unresponsive, inept, and corrupt government; insurgents committed to destroying such government; significant popular sympathy for insurgents."
How is that substanitally different from what Secretary Gates has concluded?
The letter from the Chairman of the House Committee on Armed Services, Rep. Ike Skeltion (D-MS), to Army Secretary Pete Geren stresses an important point, that the US Army, and military generally, ought to be above internal, domestic politics in an effort to accomplish the tasks set before it: "The United States Army has a long and honorable tradition of carrying out the nation's business in a professional, nonpolitical, and extremely competent manner. This makes it all the more important that when the Army finds itself involved in a situation that has not gone according to expectations, it undertake a critical assessment of what went wrong, even if that assessment reflects poorly on the Army, the Department of Defense, the Executive Branch, or Congress. We cannot improve future results without studying past failures any more than we can wish that the war in Iraq had proceeded as outlined in some of the rosier scenarios laid out before the war started."
This past Sunday at the Munich Conference on Security Policy, Defense Secretary Gates said, "we have learned that war in the 21st century does not have stark divisions between civilian and military components. It is a continuous scale that slides from combat operations to economic development, governance and reconstruction – frequently all at the same time."
This ought to be obvious to all parties. That the Rand report was buried because it stated the obvious is disgraceful and clearly contrary to any reasonable notion of transparency, and destructive to the effort to create an effective counterinsurgency strategy.
Isn't responsive government, a lack of corruption, competency and transparency the proper prescription for succeeding at our "war on terror"? A buried report, buried because it illuminates a failing strategy, is precisely contrary to what ought to be US policy at home, and no less abroad.
As Rand concluded, "the report finds that large-scale U.S. military intervention and occupation in the Muslim world is at best inadequate, at worst counter-productive, and, on the whole, infeasible. The United States should shift its priorities and funding to improve civil governance, build local security forces, and exploit information — capabilities that have been lacking in Iraq and Afghanistan."
This is quite an indictment following several years of questionable "progress" by the US in Iraq and Afghanistan. The report, titled "War by Other Means: Building Complete And Balanced Capabilities For Counterinsurgency," states what should be obvious: Military force is but one instrument of COIN [counterinsurgency] available for use in such contests, and it ought to be subordinate to a political strategy of offering the people a government deserving of their support. Improvements in local governance, legal systems, public services, and economic conditions may be at least as important as military operations, though the former often depend on the success of the latter.
That the report was buried tells us much about transparency, or lack of it, in the US government. One would think that the Rand report would be welcomed by no less than Defense Secretary Robert Gates, who has spoken at length of the need to reinvigorate the so-called soft power piece of a multi-pronged effort to bring stability to insurgency-convulsed regions: One of the most important lessons of the wars in Iraq and Afghanistan is that military success is not sufficient to win: economic development, institution-building and the rule of law, promoting internal reconciliation, good governance, providing basic services to the people, training and equipping indigenous military and police forces, strategic communications, and more – these, along with security, are essential ingredients for long-term success.
From Rand: "four of the strongest statistical predictors of successful insurgency exist in today’s Muslim world: populations excluded from politics and estranged from the state; authoritarian, unresponsive, inept, and corrupt government; insurgents committed to destroying such government; significant popular sympathy for insurgents."
How is that substanitally different from what Secretary Gates has concluded?
The letter from the Chairman of the House Committee on Armed Services, Rep. Ike Skeltion (D-MS), to Army Secretary Pete Geren stresses an important point, that the US Army, and military generally, ought to be above internal, domestic politics in an effort to accomplish the tasks set before it: "The United States Army has a long and honorable tradition of carrying out the nation's business in a professional, nonpolitical, and extremely competent manner. This makes it all the more important that when the Army finds itself involved in a situation that has not gone according to expectations, it undertake a critical assessment of what went wrong, even if that assessment reflects poorly on the Army, the Department of Defense, the Executive Branch, or Congress. We cannot improve future results without studying past failures any more than we can wish that the war in Iraq had proceeded as outlined in some of the rosier scenarios laid out before the war started."
This past Sunday at the Munich Conference on Security Policy, Defense Secretary Gates said, "we have learned that war in the 21st century does not have stark divisions between civilian and military components. It is a continuous scale that slides from combat operations to economic development, governance and reconstruction – frequently all at the same time."
This ought to be obvious to all parties. That the Rand report was buried because it stated the obvious is disgraceful and clearly contrary to any reasonable notion of transparency, and destructive to the effort to create an effective counterinsurgency strategy.
Isn't responsive government, a lack of corruption, competency and transparency the proper prescription for succeeding at our "war on terror"? A buried report, buried because it illuminates a failing strategy, is precisely contrary to what ought to be US policy at home, and no less abroad.
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