Further notes on the slippery slope to tyranny

One aspect of Dave & Paula & Jack & Jill that has received little attention (yet is the actual story) is the extent to which the FBI ransacked the email accounts of four Americans without a shred of probable cause.  Glenn Greenwald wrote about it, of course, and Rachel Maddow (that perspicacious observer of subtle story lines) said something, too, for which she deserves much praise, for after all this is Obama the Great's Justice Department of which we speak..  But for the most part, the complete and utter disregard of the Fourth Amendment of the Bill of Rights continues unimpeded by so much as a whimper from the Mainstream Media or the political establishment. 

For example, our Constitutional scholar President might have risen to the defense of his CIA Director by murmuring the following:  General Petraeus's emails were hacked into by the FBI by the following chain of logic:  an FBI agent with the hots for Jill Kelley, the Tampa party girl and military groupie, responded to Jill's damsel-in-distress routine about emails received from Paula Broadwell, which apparently were to the effect of "back off, bitch," or something along those high school-rivalry lines.  This agent, along with others at the FBI, could not really find anything in these emails from Broadwell to Kelley which were actionable; there were no threats of bodily harm, no warning that Jill's house would be burned down, nothing.  Nevertheless, the FBI then began pawing through Paula Broadwell's emails and discovered that she was having an affair with Petraeus.  This led to reading all of the CIA Director's emails, and then the agents discovered among the emails of Jill Kelley (which they of course began reading, far beyond the scope of the Broadwell "threat" emails) the voluminous emails from General John Allen to Jill Kelley.

The only activity that is even remotely improper, as far as the four targets of the FBI were concerned, was General Allen's affair (if there was one) with Kelley, which would violate the rules of the Uniform Code of Military Justice.  But UCMJ rules are not within the purview of the FBI.  Petraeus's affair is not criminal in any way, since he was a civilian (CIA Director) at the time his liaison with Broadwell occurred.  More importantly, as of the time the FBI began its wholesale invasion of the privacy of these four Americans, there was no indication that any crime had been committed, since the point of entry for the Bureau was the Broadwell to Kelley email traffic.  Unless the FBI found an initial basis for believing (reasonably) that a crime had been committed, anything else it discovered would be inadmissible as "fruit of the poisonous tree," as we used to quaintly call the doctrine before the repeal of the Fourth Amendment.

The FBI paid a kind of faint tribute to the rules of search-and-seizure by arguing, ex post facto, that the Bureau was "concerned about breaches of security," thus betraying the FBI's cognizance that it had no business rifling through the private lives of four Americans without a predicate crime on which to base its investigation.  This "national security" stuff (involving the Petraeus-Broadwell affair) came to light only after the initial violation of the Fourth Amendment.

As I say, if we had other than an Empty Suit President (with the election behind us and a greater danger averted, we can go back to the plain truth), the real issue here would be part of the public discourse.  But Obama, while still a Senator, completely reversed himself on the issue of telecom immunity for cooperating with violations of the FISA law and warrantless searches, despite his campaign promise that he would "never" vote for immunity.  He didn't until it became politically expedient to do so.

President O doesn't want to dredge all that up into the public consciousness again, so he will, as usual, do nothing.  Which, as we have been warned by wise men, is all that is necessary for evil to thrive.

Roadblogs to Governance?

Recently (on Groundhog Day) Robert Wright wrote an Op-Ed for the New York Times in which he argued, on a basis I didn't completely understand, that the world of blogging and the Internet in general was making the country "ungovernable" for Obama, citing (I think) the ease of organizing public opinion into pressure groups in a "frictionless, low cost way" that makes it impossible to navigate policies to successful fruition in Washington.

The open forum nature of the Internet does make it possible for an overwhelming array of opinions on everything to enter, instantaneously, the bloodstream of national discourse. Of course, for probably 99.999% of all such blogging, that's about where it begins and ends. Talk. Most of it sheds more heat than light. I do think that the best of the blogs offer analysis and factual reporting that is simply unavailable in the mainstream media. The rest of it (perhaps me included) is just another form of the "e-mail forwards" that were all the rage during the culture shock years of the early Bush Administration. That's actually why I started doing it. It didn't seem fair, or even polite, to impose an opinion on someone just because they were in my address book. Just put it out there as an exercise of First Amendment rights.

The coverage of the Christmas Day bomber is an excellent case illustrating the usefulness of the Internet in rounding out the analytical picture, as accomplished by the blogs. The fracas here centers around whether Abdulmutallab should be treated as a "criminal" or an "enemy combatant." Similarly, an inchoate "national conversation" followed the decision to try Khalid Sheikh Mohammed in New York City, in federal district court, which the Obama Administration is now backing away from. If I were to derive all of my information and legal framework from the usual national media (cable and network news, conventional press, radio), and I had no legal background of my own, I would probably not know that there is, after all, an existing statutory and Constitutional structure under which these issues are supposed to be decided. Very similar to this issue is the question whether Khalid Sheikh Mohammed (KSM) should or should not be tried in federal district court in New York, as opposed to before a military commission in Guantanamo.

Jane Mayer in The New Yorker does her usual excellent job of chronicling the sequence of events which led to the decision to try KSM in New York, the resulting firestorm of criticism, and then the waffling by Eric Holder and the Justice Department. It's worth reading at http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer. What's evident from this account is that the Obama Administration's equivocation has to do solely with political considerations, and many of those calculations emanate from Rahm Emanuel, the White House Chief of Staff. Emanuel feels Obama "needs" the cooperation of Sen. Lindsey Graham of South Carolina to close Guantanamo, and he can't get that cooperation without trying KSM in front of a military tribunal. Mayer notes in passing that Emanuel is a "non lawyer."

Yeah, and that's kind of the point. We are supposed to be a nation of laws, not men. That was the most important principle in the founding documents of this country. The Patriots (the original New England Patriots, not the gridiron version) had had their fill of arbitrary English decisions handed down by King George III and Parliament. They wanted, most of all, a reliable, predictable legal structure. As we phase out strict adherence to the Bill of Rights, that is what we are moving away from, and that is very, very dangerous.

For example, we should simply figure out and act consistently about this "civilian trial," "crime paradigm" versus "war on terror" argument. It should not be decided by mob rule, even if members of the mob are Rudy Giuliani and Lindsey Graham. What's it gonna be? The argument now usually takes the form of rhetorical questions: What shall we do, give Osama bin Laden his Miranda rights? For Jim DeMint, Mitch McConnell, Sarah Palin (and Dianne Feinstein), the argument is won simply by posing this question. But that doesn't actually answer the question. "Liberals" are being frightened away from bedrock principles of civil liberties by browbeating and accusations that they are "soft on terror." Barack Obama is not soft on terror, and neither is Eric Holder. But the political climate (and not the one created by the Internet) is apparently forcing them (so they say) to make up rules on the fly in order to stay ahead of the increasingly lawless trends in this country.

That's not what we need. Here's what the Authorization for Use of Military Force dated September 18, 2001, actually says about the President's authority to use the military apparatus to deal with the threat of terror:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

So the general consensus of opinion is that al-Qaeda was responsible for the attacks, and the Taliban was complicit in harboring and aiding. So there's a starting point. So how do we determine when someone is an "enemy combatant" under this AUMF and when they're a common criminal, thus becoming a "person" within the meaning of the 5th and 14th Amendments? (And the term "person," as recognized by the Bush Administration in giving civilian trials to Richard Reid, the Shoe Bomber, and Zacarias Moussaoui, the "20th hijacker" and a member of al-Qaeda, applies to everyone in U.S. civilian custody, not just to American citizens.)

The problem, of course, is in formulating a clear, Constitutional rule. Do we want to say that any Muslim who engages, or attempts to engage, in an act of terror or asymmetrical warfare against the United States is an "enemy combatant?" That's actually how we enforce the concept, if you think about it. Whether they are a member of "al-Qaeda" is often pretty hard to tell. Were the 19 hijackers of 9-11 members of al-Qaeda? It seems likely that the ringleaders, Mohammed Atta and Marwan al-Sheihi, were actually radicalized through connections to the Egyptian jihadist movement known as the Muslim Brotherhood, and then went over another line into full-scale terrorist planning as the result of "exposure to the West" in Hamburg, Germany. Congress, the White House, and all the mainstream opinion-makers don't know if they can come up with a satisfactory statement of policy which doesn't seem (a) overtly racist or sectarian or (b) unconstitutional. So the response is to make it up as they go along, referring to the AUMF (as Bush did) as if it answered anything, which it doesn't, not really. Is this Christmas Day bomber in the same category as the 9-11 hijackers because they can connect his training to al-Qaeda in Yemen nine years after 9-11? What is al-Qaeda, exactly? I think it's an organizational structure that we superimpose on Muslim groups which may or may not have anything to do with each other in order to keep them within the framework of the AUMF.

Bush denied habeas corpus rights to the enemy combatants at Guantanamo, using the AUMF as the legal basis for the designation of the detainees there as enemy combatants, but that didn't work out when tested by the Supreme Court (which was the same result in the Hamdan case regarding the constitutionality of the Military Commissions Act procedures).

The whole thing is a mess, but the real danger is in the arbitrary nature of the responses by government officials and the complete politicization of civil liberties, which are supposed to be decided by legal principles, not mob rule. I think the real position taken by the government (both Bush & Obama) is as I've stated: a Muslim jihadist engaged in terror activities will be treated as an enemy combatant, because the war on terror is a war, not a crime-fighting exercise. It just isn't much like any other war we have fought: no uniforms, no specific national allegiance of the enemies or backing of a specific foreign power, no entity capable of "surrender" or signing a peace treaty. And no end in sight. Whether everyone (and everyone on the Internet) agrees with the wisdom of such a statement, it is nevertheless vital to enunciate the principle so we don't get too used to deciding things as King George III did a long time ago.

Opinions on such matters, expressed by individuals on the Internet, don't produce a country which is "ungovernable." They simply fill out the picture and keep the discussion from being cast solely in terms of the "manufactured consent" of a narrow bandwidth of the "opinion elite," who increasingly decide everything solely in terms of the next election cycle. I guess it's a jealous guarding of such "horse race" politics that the New York Times feels is threatened. Call guys like Glenn Greenwald, the lawyers at Balkinization and Cenk Uygur "roadblogs" and we're good to go.

Obama, Barack Obama: Shaken, Not Stirred

Director of National Intelligence Dennis C. Blair testifying to Congress on Wednesday:

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. Citizen must get special permission...He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include "whether that person is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved."

The special permission must come from the President or someone like that, which is definitely reassuring. It's not from a court, however, which makes it less so. There's that whole Due Process Clause, after all. No one shall be denied life, liberty or property without...hey, it's the very first one. It seems that President Obama has been given a License to Kill, which previously had been granted, other than in a time of declared war, only to agents with a Double O rating. Now the Obama Administration has decided the 9/11 AUMF (Authorization for Use of Military Force) is good enough. Man, that piece of paper has been given a workout. Anyway, here's some mood music: http://www.youtube.com/watch?v=Ii1tc493bZM. If you open that in a separate window, you can listen along while you're reading.

Well, now that I see how things are, let me make a couple of things clear. I'm NOT a member of al-Qaeda, never have been. I don't like the guys. Hate 'em. Wish I could put that in a meta-tag, so the NSA would be sure to find it. I used to know how to do some basic HTML, but I can't remember, for the life of me, how to do it now. An unfortunate turn of phrase, I guess.

Look, President O(O), I get a little grumpy, but it's only because I'm disappointed, you know? I lo-o-o-ve this country, love it, love it, love it. I'm definitely no threat at all, not to Americans most of all. And a member of an organized group? I'm a Democrat! So that deals with that.

Just for a couple of points of clarification: when Mr. Blair talks about Americans trying to "attack" "us," I'm going to assume that the attack part refers to physical attack. Am I right? And the "us," he means the whole of America, right, and not some, you know, particular ideological group or in-crowd or power elite or nothin' like that? I'm sure that's what he means. See, because once you go outside the Constitutional framework of the 5th and 14th Amendments (that Due Process thing - but look who I'm talking to! A Con law prof!), and start making up rules based on language that clearly is not in that 9/11 AUMF, and not in any federal statute, and not in the Constitution, and further, the rule you're making up is that you can gun down an American based on the suspicion (and it's only that, because there's certainly been no trial, hearing, nothing) the American is part of a group that threatens America ---

Okay, just for a moment here I'm feeling a little like Captain Mandrake when he realizes why the world has to end, after all. Back to what I was trying to say: I'm sure you'll do fine with this new power, right, license, whatever it is. I'm glad it's you, if it has to be somebody. (It has to be somebody, right? Okay.) I admit I didn't see this one coming, and I'm a little surprised no one in Congress really said anything. Is this Standard Operating Procedure now? We wake up one day and discover the President has the right to put out a hit on an American citizen anywhere in the world (or shoot the guy himself, which would be cooler, more Bondian - you look great in a tux, by the way, Prez! Is the music still running?) and no one says a thing? So the whole rigmarole the Bush Administration went through with Padilla -- you've got a more efficient way to deal with that now?

Look, I'm just trying to understand. I don't have a problem with it, obviously, given my extreme patriotic nature. Count me in as one of "us," you know? Oh, and one olive or two?

Men, Not Laws, Part 2

I mean, don't get me wrong. The most disappointing thing to me about Obama's adoption of Bushian Doctrine on Guantanamo, military commissions, "preventive detention," and escalation of the war in Afghanistan, state secrets (which he has actually expanded), and shielding from prosecution any violations of FISA or the Convention Against Torture, is that the most predictable result of such passivity and acquiescence has now come to pass.  Since Barack is a liberal hero, he has succeeded in educating the half of the country which resisted Bush's depradations against the Bill of Rights and lawless approach to governing that it was, after all, okay.  You can feel it in the air. Except for a few holdouts, such as the American Civil Liberties Union and Center for Constitutional Rights, promotion of the Bill of Rights is seen as part of a "leftist agenda."  The most dangerous thing about Obama's enthusiastic adoption of the Cheney doctrine of "preventive detention without trial and without charges" (which so clearly violates the 5th Amendment rights of "any person" (not just Americans) is that it now vests in people the final decision on whether someone is set free or imprisoned.  Not a set of laws.  Not a predictable system of procedures.  The say-so of a politician.

A long time ago I wrote about the real meaning of the Jose Padilla case.  I saw it as Cheney's experiment.  He was curious whether he could arrest an American on American soil and imprison him indefinitely without charges and detain him in an American brig without (a) a public outcry and (b) Congressional interference.  He succeeded on both counts.  That's the thing you have to concede to Dick: he thinks big.  It was a test case to determine whether the Democrats in the House and Senate were the pussies he thought they were.  I watched and listened for that impassioned speech, that convening of hearings by Harry Reid or Nancy Pelosi, which would spell out why the Padilla case was so outrageous and outside the bounds of ordinary American judicial procedure.  Never happened.

"9-11 changed everything."  So the self-protective solons in Congress were not going to do anything to make themselves look soft on terrorism.  Never mind that Padilla was never charged with the crime he was arrested for, the "dirty bomb" plot which Rumsfeld made up.  Instead, he was driven nuts through years of solitary confinement and abuse so that he could not effectively participate in his own defense in a conspiracy case he was sucked into down in Florida.

Could that happen to you or me?  Well, let's see.  If you're reading this, you're probably an American citizen, although it's probably worse for you if you're in America and you're not. Maybe you're on American soil right now.  And you haven't participated in a dirty bomb plot either.  Thus, so far, you're pretty much exactly where Jose Padilla was.  You're certain, however, that it won't happen to you and regard the suggestion that it might as paranoid.  You're probably right.

The Sons of Liberty in the late 18th Century in this country, however, didn't look at things that way.  One of their biggest gripes against King George III was his practice of "executive preventive detention" and abridgement of legal process.  It's right there in the Declaration of Independence, which hangs on my office wall:  "For depriving us in many cases of the benefits of trial by jury."  They weren't going to stand for that, because that's a tyrannical power, to declare the freedom or imprisonment of individuals on the basis of "executive decision."  And they included the 5th Amendment in the Bill of Rights:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I understand the counter-argument: the world is now too dangerous for Constitutional rights. It's better to abridge liberties in the case of the individual in order to ensure the safety of the larger citizenry.  It seems to me, however, that if we're going to do that, we should amend these charter documents.  There is no serious argument that Padilla, for example again, was held beyond the "48-hour" period of permissible detention before presenting charges against him.  He was held for years with no charges.  He was denied his right to counsel.  He was denied his right to a speedy trial, and he was deprived of his life and liberty, for years, without due process of law.  

What is vexing about Obama's decision to make the Padilla treatment standard procedure is that I'm almost certain George W. Bush was unaware that the Bill of Rights existed.  I'm sure he never read them.  Barack, on the other hand, studied them and taught them.  He's aware of what he's doing.  And what is it that he's doing?  I think he wants to be taken seriously as a guy who's just as tough as Dick Cheney.  I think that's the image he and his handlers are working on. And one has to admit that it looks mighty tough to do unconstitutional things to protect the country.

So I said yesterday that Barack's preventive detention scheme looked "silly" and inconsistent when you compared it to the fate of terrorist suspects who are actually tried and convicted and given determinate sentences and ultimately released, and someone asked me what I meant. So to spell it out: presumably there will be Guantanamo inmates who are tried and convicted, one way or another, and given sentences which they outlive.  This has already happened in the very few cases which have actually gone to trial in the 7 years Guantanamo has existed.  So these convicted terrorists will then be eligible for release into the wide, wide world.  At least I assume they will be.  So we then would have these two categories of terrorist detainees: the Category 5 detainees who have never been charged because they can't be convicted but are considered too "dangerous" to release; and terrorists who have actually been convicted, proved guilty, and are now eligible for release.

That seems completely crazy to me.  It's the sort of arbitrary, nonsensical thing that begins to happen when you start operating outside the rules because of "special circumstances."  This kind of lawless approach spreads like a contagion until the system is no longer reliable or fair. Thomas Jefferson and John Adams understood such things; I'm not sure there are many people around today who still do.

A nation of laws

I was probably as surprised as the next bleeding heart liberal that it would be Barack Obama, a Constitutional law professor, who would come up with the idea of formalizing our "perpetual preventive detention without charges or trial" policy for dealing with terrorist suspects.  I shouldn't say "suspects," actually; maybe "suspicious individuals" or "suspicious Muslims" would be closer to the mark.  In his recent speech, delivered ironically enough in front of a mural of the Constitution at the National Archives, Prez O outlined the 5 categories of individuals detained by the U.S. held at Guantanamo and elsewhere.  That actually would be a good movie title for Michael Bay or Ang Lee or one of those guys who concoct movies for teenage boys, mainly using an Apple computer instead of a camera.  "The Fifth Category."  That's not bad.  In fact, instead of writing this blog...

Anyway, the Fifth Category is defined as a bad guy who can't be tried for war crimes, or violations of U.S. law, either in a civilian court (U.S. federal district court) or a military commission (juris macropus rufus), because no conviction is obtainable. Thus, it follows that there's no sense in charging such a person with a crime.  What you might think follows from that is that you let the guy go, but not so fast.  If the Executive Branch concludes that such a person, while more or less immune from the legal process, is nevertheless "dangerous," then he's simply detained indefinitely.  For how long?  Well, the President hasn't really said, except to say that his version of the Great War on Terror (GWOT) should probably last at least another, oh, ten years.

This seems to imply that a Category 5 Detainee will be held until the GWOT is over.  However, as much as I respect President Obama's intellect, it seems to me he has made a fundamental error in logic here.  To declare the GWOT over, I suppose we have to be assured that no terrorists anywhere pose any threat to the United States whatsoever.  If we don't mean that, what could we mean?  The existence of even one Category 5 detainee (and let's face it, there are going to be a lot more than one), means that a corps of hardcore, dangerous terrorists remain alive.  If you let them out when the GWOT is declared over, then you've started the GWOT all over again. Suppose there were 19 Cat-5 Detainees.  Well, that's just the right number for another 9-11, isn't it?

So you can't let them out ever.  That's not fanciful, that's logic directly connected to the policy Obama announced.  So that leads to the next logical conclusion.  Why are we keeping dangerous Muslims alive in U.S. custody?  We can't try them, because we can't prove they've committed any crime, even in a rigged court room run by the Department of Defense and staffed with soldiers where hearsay is allowed and evidentiary rules are "relaxed" in favor of conviction (the Military Commission route).  We can't let them out because they're dangerous.  We can't set a release date because that is a contradiction in terms with the end of the GWOT.  

So wouldn't the most logical handling of dangerous detainees who can't be convicted in any forum simply be summary execution?  Isn't that what Pinochet did?  Hitler?  Stalin? Mao?  Of course that's what they did, because a dangerous dissident or troublemaker is most effectively put out of commission by killing him.  Then when the GWOT is finally over for good, no residual corps of terrorists remains in custody subject to release, except for the Supermax or military brig prisoners actually convicted with determinate sentences, but that's a logical problem which makes the whole idea of Category 5 a little silly and we don't want to do that.  We're being serious here.  Introducing all the logical inconsistencies in a piece of Right Wing pandering by the President is not my intention.

Or, alternatively, we could use the Due Process Clause of the Fifth Amendment to the United States Constitution, which really is more than just a backdrop for a pretty speech eviscerating civil liberties.  It's worked for a very long time.  Why not give it another shot?