If there was a Nobel Prize for Double Standards, Britain’s chattering classes would win it every year. This year, following their expressions of spittle-flecked outrage over the detention of Glenn Greenwald’s partner David Miranda by anti-terrorism police at Heathrow airport, they’d have to be given a special Lifetime Achievement Award for Double Standards.
For the newspaper editors, politicians and concerned tweeters now getting het up about the state’s interference in journalistic activity, about what they call the state’s ‘war on journalism’, are the very same people – the very same – who over the past two years cheered the state harassment of tabloid journalists; watched approvingly as tabloid journalists were arrested; turned a blind eye when tabloid journalists’ effects were rifled through by the police; said nothing about the placing of tabloid journalists on limbo-like, profession-destroying bail for months on end; said ‘Well, what do you expect?’ when material garnered by tabloid journalists through illegal methods was confiscated; applauded when tabloid journalists were imprisoned for the apparently terrible crime of listening in on the conversations of our hereditary rulers.
For these cheerleaders of the state’s two-year war on redtop journalism now to gnash their teeth over the state’s poking of its nose into the affairs of the Guardianis extraordinary. It suggests that what they lack in moral consistency they more than make up for with brass neck.
Everything that is now being done to the Guardian has already been done to the tabloid press, a hundred times over, and often at the behest of the Guardian.
Posts tagged ‘detention’
I am happy to vociferously criticize the many shortcomings in US civil liberties. But one are where I can't agree with other civil libertarians is their frequent homage to Europe as the home of civil liberties enlightenment. Kudos, of course, to countries like Holland and more recently Portugal for reasonable drug laws. But Europeans have many problems we do not share, particularly in protecting, or not protecting free speech. Here is another example, from Sweden. Just because they have a reputation for sexual freedom does not make them a civil liberties paradise:
One of the prime arguments I have always made about the Assange asylum case is that his particular fear of being extradited to Sweden is grounded in that country's very unusual and quite oppressive pre-trial detention powers: ones that permit the state to act with anextreme degree of secrecy and which can even prohibit the accused from any communication with the outside world.....
Svartholm is now being held under exactly the pretrial conditions that I've long argued (based on condemnations from human rights groups) prevail in Sweden:
"Gottfrid Svartholm will be kept in detention for at least two more weeks on suspicion ofhacking into a Swedish IT company connected to the country's tax authorities. According to Prosecutor Henry Olin the extended detention is needed 'to prevent him from having contact with other people.' The Pirate Bay co-founder is not allowed to have visitors and is even being denied access to newspapers and television. . . .
"Since he hasn't been charged officially in the Logica case the Pirate Bay co-founder could only be detained for a few days.
"But, after a request from Prosecutor Henry Olin this term was extended for another two weeks mid-September, and last Friday the District Court decided that Gottfrid could be detained for another two weeks.
"To prevent Gottfrid from interfering with the investigation the Prosecutor believes it's justified to detain him for more than a month without being charged....
Unlike in the British system, in which all proceedings, including extradition proceedings, relating to Assange would be publicly scrutinized and almost certainly conducted in open court, the unusual secrecy of Sweden's pre-trial judicial process, particularly the ability to hold the accused incommunicado, poses a real danger that whatever happened to Assange could be effectuated without any public notice....
By the way, the whole sexual freedom thing? Uh-uh. Which is another reason Assange is worried, since women can pretty much retroactively any sex they later regret as a sexual assault.
While Sheriff Joe was pursuing a vendetta against County officials, chasing down Mexicans with broken tail lights, and raiding dry cleaners demanding immigration papers, over 400 sexual assaults were going under-investigated. According to the article, this was not an accident -- there was a real prioritization that put few resources in the special victims unit and put more and better staff on things like counter-terrorism (Phoenix being a well-known hotbed of terrorist activity).
The understaffing in the special-victims unit was due in part to the Sheriff's Office's priorities -- and the special-victims unit was not one of them, according to a half-dozen current and former sheriff's employees.
Despite a Maricopa County hiring freeze prompted by the faltering economy, the Sheriff's Office from 2005 through mid-2008 was hiring 45 to 50 new deputies annually and tackling initiatives that included counterterrorism and homeland-security enhancements. The office also embraced immigration enforcement, sending 60 deputies and 100 detention officers through a federal immigration-training program and creating a human-smuggling unit with at least 15 dedicated deputies.
Staffing in the special-victims unit remained unchanged during those years: four detectives....
The Sheriff's Office was allocated more than $600,000 in fiscal 2007 for six full-time positions for "investigating cases involving sexual abuse, domestic violence, abuse and child abuse." The Sheriff's Office now says the six new positions were to focus solely on child-abuse cases. In any event, they cannot say where those deputies went to work.
"We don't know," Chief Deputy Sheridan said. "We've looked, and we can't find any of those position numbers which were allocated for child-abuse cases."
This is due in part to the acknowledged misallocation of roughly $100 million in agency funds that had patrol deputies being paid out of an account designated for detention officers.
The department was almost certainly spending more on Joe Arpaio's PR than it was on the special victims unit. Dozens of cases showed no investigation at all, and hundreds showed that no contact had been made either with the victim or the suspect. Piles of case files were found random file cabinets and even one officer's garage.
This is simply an awful law. If you had asked me ten years ago if we would see the President (a Democrat yet) claiming the right to assasinate Americans and the Congress threatening to pass a bill requiring the indefinite detention, without trial, of people within our borders, I would never have believed it. At first I was excited to see that Obama was threatening a veto, but then I read that he was not upset about indefinite detention, but only that Congress was threatening to tie his hands and proscribe certain options. Obama wants to have the choice of whether to offer certain individuals due process or indefinite decision.
For more, see Rand Paul v. John McCain
Postscript: As usual, I am left flat by the debate over whether certain injustices, like indefinite detention, apply to all humanity or just foreigners. I have yet to parse anything in our founder's national rights arguments behind the Declaration of Independence and the Constitution that justify why folks born outside our borders have fewer rights than those born inside them.
Update: More here, including a lot from the ACLU. We are supposed to feel better because John McCain says that this only applied to Al Qaeda. But how in the hell do we know with any confidence that the folks the President locks up are Al Qaeda? Its bad enough to declare a whole new crime, that of being a member of a certain organization. The US, through its history, has been much better than most nations in avoiding banning certain parties and organizations. But even if we accept this law, doesn't there need to be some due process?
I suppose I understand that if I captured a guy in an SS uniform in WWII who 10 seconds ago was shooting at me, locking him up as a POW might not require a ton of due process. Last I checked, the AQ folks didn't have a uniform or anything. And most of them are not routinely shooting at us.
We didn't even pass this kind of horrible law at the height of Cold War anti-communist hysteria. Can you see Johnson or Nixon (or Hoover) being able to indefinitely detain anyone they thought was a member of the Communist Party?
Allowing this kind of hell to exist has got to be one of the worst systematic civil rights violations that still exist in this country
The U.S. Department of Justice recently released its first-ever estimate of the number of inmates who are sexually abused in America each year. According to the department’s data, which are based on nationwide surveys of prison and jail inmates as well as young people in juvenile detention centers, at least 216,600 inmates were victimized in 2008 alone. Contrary to popular belief, most of the perpetrators were not other prisoners but staff members—corrections officials whose job it is to keep inmates safe. On average, each victim was abused between three and five times over the course of the year. The vast majority were too fearful of reprisals to seek help or file a formal complaint.
Just to calibrate, the total number of sexual assaults reported outside of prisons in the US is something like 190,000 a year.
Sexual violence is not an inevitable part of prison life. On the contrary, it is highly preventable. Corrections officials who are committed to running safe facilities train their staff thoroughly. They make sure that inmates who are especially vulnerable to abuse—such as small, mentally ill, and gay or transgender detainees—are not housed with likely perpetrators. And they hold those who commit sexual assaults accountable, even if they are colleagues.
But many corrections administrators are reluctant to make sexual abuse prevention a top priority, preferring to maintain the status quo rather than acknowledge the role their own employees play. Others are actually fighting reform efforts, claiming, in spite of the evidence, that sexual violence is rare.
This resistance is reflected in the slow implementation of the Prison Rape Elimination Act, which Congress unanimously passed in 2003. The law mandated binding national standards to help end sexual abuse in detention. But almost eight years later, the Justice Department has yet to promulgate final standards.
Take California for example, where the prison guard union is among the most powerful in the country. Given how far in the tank legislators in that state are for their public unions, it is hugely unlikely this will get addressed any time soon
National security letters strike me as one of the worst Constitutional abuses to come out of the last 10 years, which is saying a lot given the post-9/11 theories of executive authority from torture to indefinite detention to even ordering people killed.
The national security letters deserve particular scrutiny because they evade the Fourth Amendment while building in a prior restraint on speech that prevents recipients from challenging the letters or even complaining about them. This is self-sustaining policy -- ie policy that prevents the dissemination of information that might prove it is a threat or a failure -- at its worst.
The Justice Department's inspector general revealed on March 9 that the FBI has been systematically abusing one of the most controversial provisions of the USA Patriot Act: the expanded power to issue "national security letters." It no doubt surprised most Americans to learn that between 2003 and 2005 the FBI issued more than 140,000 specific demands under this provision -- demands issued without a showing of probable cause or prior judicial approval -- to obtain potentially sensitive information about U.S. citizens and residents. It did not, however, come as any surprise to me.
Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.
Anyone want to bet how many of these things really are national security related, and how many are related to other investigations (particularly drugs)?
There are zillions of people involved in these major investigations. There is no good argument against adding one more who is in on the secret - ie a judge - and a lot of reasons to do so.
Sheriff Joe Arpaio constantly gets a pass for some of the most outrageous hijinx from Phoenix's conservative population that sees him as the last bastion between them and brown-skinned people. Tell someone he is above the law, and he is going to act above the law
As Maricopa County Sheriff Joe Arpaio crows this morning about how his agency busted a total of six illegal immigrants for using fake IDs so they could work at a Mesa dry cleaner, county budget officials unveiled the results of a six-month investigation into how his office is misspending your money.
If you pay taxes in Maricopa County, it's not pretty.
In total, the county finds that Arpaio and his cronies misspent $99.5 million over the last eight years, the majority of which came from the sheriff's detention fund.
"For eight years, you have been signing paperwork that says your budget is balanced, but it's not," County Supervisor Mary Rose Wilcox reportedly told sheriff's officials at this morning's meeting of the Maricopa County Board of Supervisors.
Budget officers reviewed payroll records for 5,700 sheriff's employee salaries from February 2004 to February 2011 and found that much of what employees were actuallydoing was not what they were getting paid to do.
I've warned before that this military detainment issue was a dangerous one, first in Gitmo, and now with Bradley Manning. I understand the administration and the Army are pissed at the guy for embarrassing them and potentially giving away secrets to hostile parties, but the guy has not been tried or convicted of anything. Hell, even if he had been convicted of something, I can't believe he would be sentenced to the punishments he is enduring in what is essentially pre-trial detention. We are all pissed at Jared Loughner but we haven't treated him this way in detention.
The military is NOT doing anything to improve their case that they should be allowed to handle indefinite detentions, such as at Gitmo, through their procedures rather than civil ones.
The Left seems upset and surprised that Obama would allow such a thing, given his rhetoric on the campaign trail. I was never surprised -- I wrote on inauguration day that candidates who want more transparency in politics and reductions in Presidential arbitrary authority generally change their tune once in office. As I wrote then, "It seems that creeping executive power is a lot more worrisome when someone else is in power." And if that wasn't enough, the Administration's about face on closing Gitmo was another reminder.
Most everyone knows that Al Capone was finally nailed for tax evasion, rather than murder, robber, extortion and all the more heinous crimes for which he was mostly likely guilty. For years, an unfortunately relatively small group of us here in Phoenix have tried to see Sheriff Joe Arpaio brought to justice, or at least removed from office, for his numerous abuses of power. Lacking the success so far, Arpaio may finally go down for fraud in his management of County funds.
In something that should be a surprise to no one, even his supporters, the supremely arrogant Arpaio did not like state law and the county supervisors rules on where he could spend different parts of his budget. So it appears he created a shadow payroll system that has only just been discovered that has been paying different people different amounts for different purposes than what shows up in the official County payroll systems, and has been doing so for over a decade.
Deputy County Manager Sandi Wilson and her staff in the Office of Management and Budget for months have worked to figure out how extensive financial problems are, and she expressed shock at the hidden system.
"They've developed a system that basically tracks where they are working versus where they are being paid, and they did not update the official database, which led to the potential problems," Wilson said. "I think they deliberately hid this info from us."
The employee-tracking database was in a secure criminal-justice computer system accessible only to the Sheriff's Office. Control of access to that system, known as ICJIS, has been the subject of a long-running and expensive legal battle during the past two years.
County administrators say they were puzzled by the sheriff's willingness to sue over what they viewed as minor issues related to control of the ICJIS system. The fight by the sheriff to block county access to the system has cost more than $1.6 million.
County officials believe Sheriff's Chief Deputy David Hendershott sought to limit access to the system to hide the shadow payroll records it contained. Those records showed that potentially hundreds of employees who did no work in the jails were being paid with detention funds.
"That's a reasonable conclusion to draw, but we don't know for sure," Irvine said. "From Maricopa County's perspective, the ICJIS dispute and lawsuit has made no sense."
County officials sent information on the payroll system to the U.S. Attorney's Office for review. That office is conducting a separate abuse-of-power probe of Sheriff Arpaio, his employees and others.
The article fails to mention it, but I believe that the county computer facility mentioned above was the same one that Arpaio sent armed deputies storming in to take over about a year ago. At the time, no one really bought his explanation that it was about protecting sensitive criminal information from prying eyes. I hypothesized it was to take control of an email server that had incriminating information about Arpaio, but now it turns out it may have been to protect his shadow payroll system.
I have had a bunch of people send me this article defending Arizona's SB1070, our now infamous immigration law. A couple of responses:
1. I have never been wildly worked up by SB1070 after it was amended a week or so after its initial passage. I have used the debate around SB1070 to reiterate my case, particularly to Conservatives, for more open immigration. Our immigration laws are prohibition redux, though in this case we are messing with people's desire to work rather than drink. As such, the laws to enforce the prohibition are less important to me than the fact of prohibition itself. IOur immigration laws are an incredible restriction on commerce, free labor markets, and even private property (SB1070 redefines trespassing as not having the government's, rather than the private owner's, permission to be on a piece of property), and this is true with our without SB1070.
I would likely have dropped SB1070 coverage a while ago had it not been for the rhetoric that is used by SB1070 supporters. When our governor is saying that the majority of Arizona's 500,000 illegal immigrants are all drug mules, that none of them are really looking for honest work, and that all they do is cause crime up to and including beheadings in the desert, I get angry to hear the same stupid arguments that many of our grandparents heard about their ethnic groups (though the beheading thing seems to lack historical precedent). (more on the immigration non-crime wave here).
2. The language of SB1070 has never matched the arguments supporting it. SB1070 mainly gives the police power to be more intrusive at certain traffic stops and harass day labor centers. What in the heck does this have anything to do with drug cartels and armed paramilitary gangs on the border? If, as our governor says, illegal immigrants are not really looking for legitimate work, then why is most of our enforcement via employers offering legitimate work?
3. When Kris Kobach says "In four different sections, the law reiterates that a law-enforcement official 'may not consider race, color, or national origin' in making any stops or determining an alien's immigration status," he is ignoring reality. The law asks police to make a determination (e.g. probable cause that one is an illegal immigrant) that is impossible for actual human beings to make without such profiling. It's like passing a law that says "police must drive their cars 30 miles a day but can't drive their cars to do so." The reality on the ground here in Arizona is that, illegal or not, Sheriff Joe Arpaio has been using racial profiling to make arrest sweeps for years, and his officers have become masters at finding some pretext to pull over a Mexican they want to check out (e.g. the broken tail light). Words in this law about racial profiling are not going to change anything.
4. Kobach makes much of the revision of the law, post-passage, to narrow the circumstances under which police can stop and check for immigration status
But Section 2 of S.B. 1070 stipulates that in order for its provisions to apply, a law-enforcement officer must first make a "lawful stop, detention, or arrest . . . in the enforcement of any other law or ordinance of a county, city or town or this state."
The original wording made reference to "lawful contact"; this was revised to "lawful stop, detention, or arrest" to make clear that officers could not stop someone simply on suspicion and ask for his papers.
There are folks, including most in the Obama administration, that are still criticizing the original "lawful contact" language and need to catch up. However, this seems a thin branch for Kobach to stand on in lashing out at the law's critics. Because in fact this over-broad language did pass and get signed into law, and only the immediate and vociferous public backlash against the language caused it to be changed. Kobach acts like it was changed based of some internal discussion or discovery of error, but in fact "lawful contact" was how Kobach himself helped write the law and wanted it to read, and was supporters like himself were forced to change it only after a lot of vocal opposition. Its disingenuous to use the modified language as defense against critics when it was only due to the critics that the modified language was inserted.
At this point, I am done criticizing SB1070. It is not a great law but it is not particularly worse, in its current form, than laws in some other states or federal law. I don't really anticipate that it will get struck down by the Supreme Court, though its enforcement may be enjoined through the hearing process.
However, I am not done criticizing our prohibitionist immigration regime nor am I done calling out those on the eliminationist side of the debate, like Jan Brewer, who are starting to show their true stripes as the debate proceeds. I know some of you are tired of it and to some disagree with me, such that I have lost about half my readers over this. But this debate has been an eye-opener to me.
For years I have taken many of the AZ politicians at their word that they had no problem with Mexicans per se but were concerned with the load on social services and other government budgets. I understand how the intersection of immigration and the welfare state causes problems, and have proposed solutions to deal with them. I am willing to have a friendly agree-to-disagree discussion with such folks. But when our leaders are talking about 500,000 drug mules and mysterious beheadings and crime waves that somehow exist in a state with rapidly falling crime rates, its clear to me something more insidious is driving some of the folks in the debate.
It sure looks like the Feds are bending over backwards to make sure R. Allen Stanford, accused of massive investment fraud, is not allowed to defend himself. The Feds are running the whole playbook at him, from onerous pre-trial detention requirements to asset forfeiture (the latter to the point that the Feds are working to make sure the insurance policy he had to pay for his defense in such actions is not allowed to pay him.) I understand that a guy who has substantial interest in offshore banking centers might be a flight risk, but this is absurd:
Mr. Stanford has been incarcerated since June 18, 2009 and was moved to the [Federal Detention Center] on September 29, 2009. Immediately upon his arrival at the FDC, he underwent general anesthesia surgery due to injuries that were inflicted upon him at the Joe Corley Detention Facility. He was then immediately taken from surgery and placed in the Maximum Security Section "” known as the "Special Housing Unit" (SHU) "” in a 7' x 6 1/2' solitary cell. He was kept there, 24 hours a day, unless visited by his lawyers. No other visitors were permitted, nor was he permitted to make or receive telephone calls. He had virtually no contact with other human beings, except for guards or his lawyers.
When he was taken from his cell, even for legal visits, he was forced to put his hands behind his back and place them through a small opening in the door. He then was handcuffed, with his arms behind his back, and removed from his cell. After being searched, he was escorted to the attorney visiting room down the hall from his cell; he was placed in the room and then the guards locked the heavy steel door. He was required, again, to back up to the door and place his shackled hands through the opening, so that the handcuffs could be removed. At the conclusion of his legal visits, he was handcuffed through the steel door, again, and then taken to a different cell where he was once again required to back up to the cell door to have his handcuffs removed and then forced to remove all of his clothing. Once he was nude, the guards then conducted a complete, external and internal search of his body, including his anus and genitalia. He was then shackled and returned to his cell. In his cell there was neither a television nor a radio and only minimal reading material was made available to him. He remained there in complete solitude and isolation until the next time his lawyers returned for a visit.
In short, Mr. Stanford was confined under the same maximum security conditions as a convicted death row prisoner, even though the allegations against him are for white collar, non-violent offenses. He is certainly not viewed as someone who poses a threat to other persons or the community, nevertheless, he has been deprived of human contact, communication with family and friends, and was incarcerated under conditions reserved for the most violent of convicted criminals. Officials at the FDC informed counsel that this was for Mr. Stanford's "own protection" and to minimize their liability. . . .
Remember, he has not been convicted -- this is pre-trial detention. The sole goal, legally, is supposed to be to keep him from fleeing before his trial.
I am sensitive to this from my climate work. My gut feel is that people who are truly confident in their case do not work overtime to make sure their opposition is not allowed to make their case.
The most important news, I suppose, is that Arizona has made its new immigration law more palatable with a few changes.
The first concerns the phrase "lawful contact," which is contained in this controversial portion of the bill: "For any lawful contact made by a law enforcement official or a law enforcement agency"¦where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person"¦" Although drafters of the law said the intent of "lawful contact" was to specify situations in which police have stopped someone because he or she was suspected of violating some other law "” like a traffic stop "” critics said it would allow cops to pick anyone out of a crowd and "demand their papers."
So now, in response to those critics, lawmakers have removed "lawful contact" from the bill and replaced it with "lawful stop, detention or arrest." In an explanatory note, lawmakers added that the change "stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state."
"It was the intent of the legislature for "˜lawful contact' to mean arrests and stops, but people on the left mischaracterized it," says Kris Kobach, the law professor and former Bush Justice Department official who helped draft the law. "So that term is now defined."
The second change concerns the word "solely." In a safeguard against racial profiling, the law contained the phrase, "The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin." Critics objected to that, too, arguing again that it would not prevent but instead lead to racial profiling. So lawmakers have taken out the word "solely."
"There were misstatements by the opponents of the law that this was written to permit some consideration of race in the enforcement of this law," says Kobach, "and that's not the case at all."
It is hard for me to separate in my mind whether the problem I have with what remains is really with this law or with the individuals whom I know to be tasked with its enforcement. Sheriff Joe Arpaio has a history of pulling over every Mexican he runs into with a broken tail light on his crime sweeps, so in actual practice, the requirement of there being some other crime involved doesn't do much to make me fear profiling any less. But its hard for me to say that checking immigration status of people arrested or detained is unreasonable, so it may be I am just uncomfortable with the overzealous enforcements and Sheriff Joe's patented crime sweeps. (I am still opposed to the socialist definition of property rights that conservatives have adopted in the law).
If the immigration problems in Arizona are really so serious that they merit deep intrusions upon the liberty of citizens who happen to resemble illegal immigrants, than they are serious enough to intrude on the liberty of everyone. Don't make the cops check the status of anyone who they "reasonably suspect" is illegal; make them check the status of everyone, no matter how blond-haired, blue-eyes, and fluent in standard American english they may be. If you forget your license at home, the police detain you, just like they detain anyone of mexican descent, while someone fetches it. If you can't produce a birth certificate, passport, or similar, then you wait in the pokey until they can verify your legal status. No police discretion. No profiling.
We can illustrate McArdle's point with an example, where our sheriff's descended on a local business and zip-tied and detained anyone who looked Hispanic until they could produce proof of immigration status. No Anglos at this location were treated the same way:
Deputies from the Maricopa County Sheriff's Office raided a Mesa landscaping company early Wednesday morning, arresting nearly three dozen people suspected of being in the country illegally.
The raid on offices of Artistic Land Management, on Main Street just west of Dobson Road, happened about 4:30 a.m., according to one worker who was handcuffed and detained before being released when he produced documentation that he was in the country legally"¦.
Juarez estimated about 35 workers were handcuffed with plastic zip-ties while deputies checked for documents. Those who could provide proof they were in the country legally were released, while others were put on buses and taken away.
This is something the bill supporters just don't want to deal with -- the ugly sight of all the brown skinned workers at a location separated out from their peers and zip-tied until they can produce the proper government papers.
Daniel Griswold of Cato offered what I thought was an excellent framework for thinking about immigration and immigration reform:
Requiring successful enforcement of the current immigration laws before they can be changed is a non sequitur. It's like saying, in 1932, that we can't repeal the nationwide prohibition on alcohol consumption until we've drastically reduced the number of moonshine stills and bootleggers. But Prohibition itself created the conditions for the rise of those underground enterprises, and the repeal of Prohibition was necessary before the government could "get control" of its unintended consequences.
Illegal immigration is the Prohibition debate of our day. By essentially barring the legal entry of low-skilled immigrant workers, our own government has created the conditions for an underground labor market, complete with smuggling and day-labor operations. As long as the government maintains this prohibition, illegal immigration will be widespread, and the cost of reducing it, in tax dollars and compromised civil liberties, will be enormous.
It turns out that after excoriating the Arizona law as being too intrusive, Democrats have responded with ... something even more intrusive.
Sometimes I just love the Democrats. After fomenting a near meltdown over the Arizona immigration law, with charges of nazism and cries of "show me you papers!" flying hither and yon, the Democrats introduce an immigration framework with what?
Improved papers, of course.
Yes, the Dems screwed the pooch and included a national ID card in their proposed legislation. And a biometric one at that. As someone characterized it, it's a "super Social Security card". Remember when you were assured that your SS card/number was not for identification purposes and never would be. Well Bunky, that was as true as most of the promises politicians make.
Democratic leaders have proposed requiring every worker in the nation to carry a national identification card with biometric information, such as a fingerprint, within the next six years, according to a draft of the measure.
As a final note, for years I have asked strong exclusionist conservatives how they square their opposition to immigration with their desire for freedom of contract and exchange. After all, if commerce is free, do I not have the right to hire anyone I want for a job, no matter where that person was born. Why do Conservatives want to require that all workers have government licenses before they can be hired? It turns out that the ACLU makes the same point in response to the above proposal (from the link above, emphasis added):
"Creating a biometric national ID will not only be astronomically expensive, it will usher government into the very center of our lives. Every worker in America will need a government permission slip in order to work. And all of this will come with a new federal bureaucracy "” one that combines the worst elements of the DMV and the TSA," said Christopher Calabrese, ACLU legislative counsel.
Note to Conservatives-- when the ACLU, founded by Marxists and which to this day resists recognizing property rights, gets out ahead of you on the rights to free exchange and commerce, you are in trouble.
On the day of Obama's inauguration, I wr0te:
I will be suitably thrilled if the Obama administration renounces some of the creeping executive power grabs of the last 16 years, but he has been oddly silent about this. It seems that creeping executive power is a lot more worrisome when someone else is in power.
I want to highlight two recent stories. First, via Popehat:
The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama's plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday.
Last summer, White House officials said they had ruled out seeking a "preventive detention" statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general "law of war" principles permitting detention of enemy combatants.
However, speaking at a news conference in Greenville, S.C., Monday, Graham said the White House now seems open to a new law to lay out the standards for open-ended imprisonment of those alleged to be members of or fighters for Al Qaeda or the Taliban.
That is a really, really bad idea. What would J Edgar Hoover had done with such a law? Would Martin Luther King have been declared a terrorist. And speaking of King, who the FBI kept under illegally deep surveillance for years, we have a second related story via Disloyal Opposition:
Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.
Yes, I blame Bush for getting the ball rolling on both these fronts, but wtf did we elect Obama for? Many libertarians held their nose at his interventionist economics in order to try to thwart what they saw as a scary trajectory for executive power and civil liberties. If we had wanted populist economic machinations combined with limitations on individual liberties, we could have voted for Pat Buchanon.
I would rather not have a trial of KSM than have the show trial it is shaping up to be. I didn't think anything could be more offensive to human rights than indefinite detention without due process but this may be worse.
The Washington Post writes, and Paul Cassell agrees, that the Administration screwed up by treating Umar Farouk Abdulmutallab (the underwear bomber) as a regular criminal, and should have considered some sort of administrative detention instead.
The analysis seems spot on to me. I can't for the life of me figure out why as a society we would want to give Miranda warnings to such a high-value suspect like Abdulmutallab. While there is debate about the extent to which Miranda warnings reduce the overall confession rate (I think it is significant, while others disagree), surely we can all agree that in the context of Abdulmutallab's interrogation such warning were not going to be helpful in obtaining information about, for example, where he trained and what other attacks might be planned.
Uh, OK, but the law of the land is to give arrested criminals on US soil Miranda warnings and an attorney. What legislative authority (I think we are supposed to be a nation of laws) exists to do otherwise? And if such a law did exist, what would the bright-line rule be that should be written in law so real human beings making arrests know when it is OK and when it is not to kidnap someone to Gitmo? I have struggled to find anyone who can write such a rule -- it always comes out sounding like the old definition of pornography, "I know it when I see it." Remember, the Patriot Act was used far more for drug and child porn cases than it ever has been for terrorism -- it is very, very hard to circumscribe new police powers, particularly when police so desperately want to keep and hold those powers.
I don't deny from a utilitarian point of view that being able to grab people off the street and lock them up without trial forever might prevent some terrorism, but wasn't it Conservatives, just the other day, that were arguing re: Citizens United that Constitutional protections can't be waived for utilitarian reasons? I agreed with them then, what changed here?
Discussions about Guantanamo still seem to focus on moving the prisoners to another facility. This is exactly the danger I warned about several years ago -- that focusing too much on Gitmo itself as a facility was missing the whole point. The problem was indefinite detentions without due process, not the facility per se. But since so much of the press latched onto Gitmo itself as the problem, it as allowed the administration to say that it is solving the problem by eliminating Gitmo and moving the prisoners (either to Illinois or Afghanistan, the plan keeps changing) while still clinging to the position that it should still have the power to detain people at the President's pleasure.
Dhalia Lithwick has a good article on just what a mess we have created at Gitmo. Are there potential, even past, terrorists there? Probably. But I could probably say that there are current or past criminals in any random 1000 people I might sweep off the street. That doesn't justify locking them up -- as a country, we have always said that it is better to free the innocent at the cost of potentially missing some of the guilty.
And please don't hammer me again in the comments with "there is a war on and these are just POW's." Sorry, they are nothing like traditional POW's. They were not caught on the battlefield, were not in uniform, in many cases were just turned in by other people for a bounty. I think I would accept that maybe slightly different rules apply to these folks than to a person arrested on 5th Avenue in New York, but on the other hand supporters of their detention need to admit that some extra scrutiny needs to exist vs. traditional POW rules, as in this case their very combatant status is unclear, something that was not the case in, say, with most POW's in WWII.
It is pretty amazing to me that 500 years after the Spanish Inquisition it is somehow a revelation that people who are being tortured will say about anything to make the torture (or the threats thereof) stop:
On Friday the government declassified an opinion in which U.S. District Judge Colleen Kollar-Kotelly ordered the release of a Kuwaiti held at Guantanamo since 2002, saying he was imprisoned based on coerced confessions that even his interrogators did not believe. Fouad Al Rabiah, a 50-year-old aviation engineer and father of four, was captured as he tried to leave Afghanistan in December 2001. He said he came to Afghanistan that October to help refugees, an explanation the judge found credible....
Later four Guantanamo inmates made several implausible accusations against Al Rabiah"”claiming, among other things, that the engineer, who had worked at Kuwait Airlines for 20 years, suddenly became a leader of the fight against U.S. forces in Tora Bora. Kollar-Kotelly noted that the charges were either inconsistent or demonstrably false. The Pentagon eventually stopped relying on these wild claims to justify Al Rabiah's detention, but by then interrogators had used the charges, along with sleep deprivation and threats of rendition to countries where he would be tortured or killed, to extract confessions from him. In the end, the interrogators concluded that Al Rabiah was making up a story to please them. "Incredibly," Kollar-Kotelly wrote, "these are the confessions that the government has asked the Court to accept as truthful in this case."
I have argued for years that indefinite detention of anyone, citizen or not, is an affront to the principles on which this country was founded. Just to make my position entirely clear, I am willing to risk letting 40 dangerous people go free (assuming we can't actually prosecute them) to avoid having one person detained wrongly. If you think this is naive or wrong, then you need to ask yourself what you think about our entire legal system, which is predicated on a similar presumption, that we would prefer some guilty or dangerous people go free rather than tilt the system such that innocent people rot in jail.
I almost never publish links posts. But I was really stuck when I read Radley Balko's Saturday Morning Links post because every one was awesome. Balko is not only one of the best bloggers out there, but a great journalist as well in a field of us pundits who put on pretensions of being pajama-clad investigators. So here are all of his morning links:
Why there are 60 minutes in an hour
Bloomberg takes the next step down the road toward anti-tobacco hysteria.
Zimbabwean newspaper prints billboards on paper made from the country's worthless currency.
Legless frogs epidemic probably not caused by pollution, but by dragonfly nymphs with a jones for frogs' legs.
Obama administration will support indefinite detention of terror suspects without a trial; drops the news late in the evening on a summer Friday.
TSA detains man for comic book script. Kicker: Scropt was about a guy who gets wrongfully harassed by the government for writing fiction about terror attacks that came true.
First an apology (a real apology, not one of my snarky non-apologies). On a number of occasions I have written that I thought torture accusations at Gitmo were overheated and a distraction from the real issue -- unlimited incarceration by executive order.
It turns out that what I would very much describe as torture has occurred at Gitmo.
Torture of detainees at Guantanamo Bay has been systematic, extensive and a matter of deliberate policy, says a report originally prepared in 2007 by the International Committee of the Red Cross. Obtained by journalist Mark Danner, the report, which detailed the complicity of medical personnel in the mistreatment of detainees, has been posted online (PDF) by the New York Review of Books.
Techniques practiced at Guantanamo and elsewhere on the 14 detainees examined in the 41-page report include suffocation by water, prolonged standing with arms chained above their heads, beatings, confinement in a box, sleep deprivation and other tactics that involve both physical and psychological abuse. While written in somewhat technical terms, the report emphasizes that the detainees' treatment "amounted to torture and/or cruel, inhuman or degrading treatment."
I am not unaware that the world is a dangerous place, and is filled with people who want to do us harm no matter how nice we are, precisely because we are nice (and rich of course). But there is a line we draw in a free society over which we do not cross, even at the risk of our own safety, because it imperils our own humanity. I believe the treatment described in this report crosses that line.
That being said, it is increasingly clear that I was right in one sense - the focus on torture has completely occluded the detainment issue, so much so that Obama appears to be getting away with actually adopting an even more onerous detainment policy than the Bush administration.
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.
Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.
For years I have complained that the opposition to the GWB administration was focused on the wrong things vis a vis the detention policy at Gitmo. There was too much focus on Gitmo itself as a lightening rod, and too much discussion of whether flushing a Koran down the toilet was torture. My point was that there didn't have to be torture for it to be wrong to hold non-uniformed suspected non-combatants in a non-declared war indefinitely, as if they were captured Nazi U-boat commanders. For example:
I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Justice Scalia argued that giving habeas corpus rights to enemy combatants during war time was unprecedented, but I responded:
I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine [that] the Supreme Court, encountering this new situation, sides with the individual over the government.
So now, just as I feared, the soil was fertile for a classic political bait and switch. Obama agreed to close Gitmo, the lightening rod of the controversy, thereby inspiring us to believe he is changing policy. When, at its heart, the real problem is still there:
Harvard Law Dean Elena Kagan, President Obama's choice to represent his administration before the Supreme Court, told a key Republican senator Tuesday that she believed the government could hold suspected terrorists without trial as war prisoners.
She echoed comments by Atty. Gen. Eric H. Holder Jr. during his confirmation hearing last month. Both agreed that the United States was at war with Al Qaeda and suggested the law of war allows the government to capture and hold alleged terrorists without charges.
If confirmed as U.S. solicitor general, Kagan, 48, will defend the administration's legal policy in the courts.
I assume she and Holder are toeing the Obama line on this, though they could be the bearers of a trial balloon and it may be Obama has not made up his mind. I hope so. Here is some more.
"Do you believe we are at war?" Graham asked.
"I do, Senator," Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
"Do you agree with that?" the senator said.
"I do," Kagan replied.
Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"
Kagan replied, "I think it makes sense, and I think you're correct that that is the law."
"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.
I may have missed it, but did the AUMF or whatever it was that Congress passed before we entered Afghanistan and Iraq actually declare we were at war with the organization named "Al Qaeda." Or does the president saying the words "war on terror" enough times in 8 years just make it so?
I am a bit late to this, having just gotten back in town, but this is extraordinarily good news:
In a stunning blow to the Bush Administration in its
war-on-terrorism policies, the Supreme Court ruled Thursday that
foreign nationals held at Guantanamo Bay have a right to pursue habeas
challenges to their detention. The Court, dividing 5-4, ruled that
Congress had not validly taken away habeas rights. If Congress wishes
to suspend habeas, it must do so only as the Constitution allows "” when
the country faces rebellion or invasion.
The Court stressed that it was not ruling that the detainees are
entitled to be released "” that is, entitled to have writs issued to end
their confinement. That issue, it said, is left to the District Court
judges who will be hearing the challenges. The Court also said that "we
do not address whether the President has authority to detain"
individuals during the war on terrorism, and hold them at the U.S.
Naval base in Cuba; that, too, it said, is to be considered first by
the District judges.
The Court also declared that detainees do not have to go through the
special civilian court review process that Congress created in 2005,
since that is not an adequate substitute for habeas rights.
During the17th and 18th century, as various western countries began to reign in autarchs, habeas corpus rights were high on their list of protections they demanded. There is just too much potential for abuse to allow the Executive Branch to hold people (of any nationality) indefinitely without any kind of judicial due process. I refuse to discuss the detentions in the context of their effectiveness in fighting terrorism just as I refuse to discuss immigration in terms of who will pick the lettuce. If there are valid and legal reasons for these guys to be in detention, then the President must allow the judicial branch to confirm them or the legislative branch to amend them.
Update: Powerline writes:
Justice Scalia characterizes the decision this way:
Today, for the first time in our Nation's history, the
Court confers a constitutional right to habeas corpus on alien enemies
detained abroad by our military forces in the course of an ongoing war.
It strikes me as odd to confer such a right, but then I haven't read Justice Kennedy's opinion yet.
I don't have enough law background to know if this is truly unprecedented in this way, but what it if is? One could easily argue that the nature of the "enemy" here, being that they don't have the courtesy to wear uniforms that indicate their combatant status and which side they are on, is fairly unprecedented as well. As is the President's claim that he has unilateral power to declare that there is a war at all, who this war is against, and who is or is not a combatant. I know from past posts on this topic that many of my readers disagree with me, but I think it is perfectly fine for the Supreme Court, encountering this new situation, sides with the individual over the government.
Update #2, via the Onion 9/11 issue:
Bush is acting with the full support of Congress, which on Sept. 14
authorized him to use any necessary force against the undetermined
attackers. According to House Speaker Dennis Hastert (R-IL), the
congressional move enables the president to declare war, "to the extent
that war can realistically be declared on, like, maybe three or four
Egyptian guys, an Algerian, and this other guy who kind of looks
Lebanese but could be Syrian. Or whoever else it might have been.
Because it might not have been them."...
U.S. Sen. John McCain (R-AZ), one of Congress' decorated war
veterans, tried to steel the nation for the possibility of a long and
"America faces a long road ahead," McCain said. "We do not yet know
the nature of 21st-century warfare. We do not yet know how to fight
this sort of fight. And I'll be damned if one of us has an inkling who
we will be fighting against. With any luck, they've got uniforms of
Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.
"We were lucky enough at Pearl Harbor to be the victim of a craven
sneak attack from an aggressor with the decency to attack military
targets, use their own damn planes, and clearly mark those planes with
their national insignia so that we knew who they were," Rumsfeld said.
"Since the 21st-century breed of coward is not affording us any such
luxury, we are forced to fritter away time searching hither and yon for
him in the manner of a global easter-egg hunt."
For the last couple of years, much of the debate about detention at Gitmo has focused on silly arguments about torture. Flushing a Koran -- Torture! Showing a picture of a naked girl -- Torture! The comfy chair -- Torture! As I wrote in this post,
Here is my fervent hope: If I ever find myself imprisoned by hostile
forces, I pray that they will torture me by sitting me in a chair and
having me watch them flush books down the toilet.
If I bought into the theory of Rovian infallibility, I might argue that this was all a clever trick to distract the country with the left hand while the right was really doing the damage. Whether planned or not, the media certainly fixated on the left hand, while the right was doing this:
In a series of probing and sometimes testy exchanges with a government
lawyer, two of three judges on a federal appeals court panel here
indicated Thursday that they might not be prepared to accept the Bush
administration's claim that it has the unilateral power to detain
people it calls enemy combatants....
"What would prevent you from plucking up anyone and saying, "˜You are
an enemy combatant?' " Judge Roger L. Gregory of the United States
Court of Appeals for the Fourth Circuit asked the administration's
lawyer, David B. Salmons.
Mr. Salmons said the executive branch
was entitled to make that judgment in wartime without interference from
the courts. "A citizen, no less than an alien, can be an enemy
combatant," he added.
The real threat to freedom and the American way here was always the Bush administration's incredible theory that it had a right to name anyone a combatant and then detain them forever, without any sort of independent review or appeal. Particularly in a "war" with no defined enemy. It's incredible to me that the Congress and courts have let this slide as long as they have, and good to see some scrutiny may finally be applied. Hat tip: Reason. More here, here, here. Looking back through my archives, I seem to have made this same point months ago:
One of the problems I have making common cause with many of the
civil rights critics of the Bush administration is that they tend to
hurt legitimate civil rights by exaggerating their claims into the
A good example is detentions at Gitmo. I believe strongly that the
Bush administration's invented concept of unlimited-length detentions
without trial or judicial review is obscene and needed to be halted.
But critics of Bush quickly shifted the focus to "torture" at Gitmo, a
charge that in light of the facts appears ridiculous
to most rational people, including me. As a result, the
administration's desire to hold people indefinitely without due process
has been aided by Bush's critics, who have shifted the focus to a
subject that is much more easily defended on the facts.
One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues. I have written a number of times about my concerns over the "war powers" this administration is taking upon itself. Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues. I can now put my concerns in two categories:
- The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure. This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework. Take surveillance activities. Its not unreasonable to think that terrorism demands new surveillance tools. But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods. Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power. (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far. However, at least we can debate it and there are Congressmen we can hold accountable).
- The second category of problem I have is with the open-ended nature of the war. Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff." If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against". If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."
In terms of civil liberties, the second point may be the most problematic. Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves. But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.
Take the example of detention of enemy combatants. Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII. And so we did. We were at war with Germany, so we detained German soldiers we captured until the end of the war. Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin. Few German detainees were held for much more than a year. By the way, it is interesting to note that even in WWII, we abused this notion. The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.
However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever."
Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments. Fine, but then it also needs new types of civil liberties checks. Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant; the uniform was a pretty good giveaway. However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.
If I read him right, Kling is saying something similar: Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:
On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.
One of the problems I have making common cause with many of the civil rights critics of the Bush administration is that they tend to hurt legitimate civil rights by exaggerating their claims into the ridiculous.
A good example is detentions at Gitmo. I believe strongly that the Bush administration's invented concept of unlimited-length detentions without trial or judicial review is obscene and needed to be halted. But critics of Bush quickly shifted the focus to "torture" at Gitmo, a charge that in light of the facts appears ridiculous to most rational people, including me. As a result, the administration's desire to hold people indefinitely without due process has been aided by Bush's critics, who have shifted the focus to a subject that is much more easily defended on the facts.
Interestingly, as I watch the Beeb this morning, Britain is having a similar debate. Its hard to figure the whole thing out from the TV coverage and sound bites, but apparently Britain has the ability to detain suspected terrorists for 90 days, and wants the power to extend this.
Many people have told me that I am an insanely naive Pollyanna for not accepting the need for indefinite detention without trial of suspected terrorists. I have explained in the past that we don't have the right to do this with our own citizens, but we also don't have the right to do this with any other human being (the short explanation: The individual rights we hold dear are our rights as human beings, NOT as citizens. They flow from our very existence, not from our government and not from the fact of our citizenship. In some ways, the government probably has less right to abuse non-citizens, not more).
Here is a test: If the government had always had this power, ie to detain indefinitely people it thought somehow "dangerous" to "someone" (with the government getting to define both these terms), how abused would it have been in the past. My answer is "very much". Who would J. Edgar Hoover have detained? Would Martin Luther King have spent his life in jail, much like Nelson Mandela?
By the way, I have no idea what Hamdan vs. Rumsfeld means for all this, since I haven't read it and pundits seem to disagree on what it means (unfortunately, this may be something we live with a while, a feature of the new muddled "Justice Kennedy compromise" we seem to have to live with on a number of decisions). If anyone thinks they have seen a definitive analysis, please link it in the comments.
I've gotten mail and comments on some of my surveillance- and detention-related posts, particularly this one here, that boil down to "but warrant-less national security eavesdropping is legal". John Hinderaker at Powerline makes this argument fairly compellingly. To which I can answer, fine, but whether it is narrowly legal or illegal is a topic for partisan blogs who want to score points for or against Bush. As one of those weird libertarian guys, my intention was to stand aside from the question of legality and instead pose the question of "yes, but is it right?"
Foreigners are People Too
It is interesting that I have to make this point more and more nowadays: Foreignors are human beings too. For example, this idea that non-US citizens have (or should have) the same rights we do was one I highlighted in my defense of open immigration:
The individual rights we hold dear are our rights as human beings, NOT
as citizens. They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds. We have the right to live
free of force or physical coercion from other men. We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work. We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud
Speech, commerce, property, association, and yes, privacy -- these are all rights we have as human beings, so that the fact of citizenship in the US should not have any bearing on whether our government should respect these rights (except in the case of war, which we get into in a while).
These issues are oh-so-much clearer when we flip our perspective. For Americans reading this, ask yourself:
- Does the government of Great Britain (or Russia, or Iran) have the right to wiretap your phone calls at will without warrant or review just because you are not a citizen of their country?
- Does the government of Great Britain (or Russia, or Iran) have the right to detain you indefinitely without access to a lawyer or embassy if a powerful person in their government declares you an enemy combatant?
If you answered "yes", then recognize that the 1979 capture of the US embassy staff in Iran was probably legal by your rules, as was nearly every other detention of American citizens by another country. If you answered "no", then you need to be worried about what the US is doing in the name of national security, for certainly both Bush and Clinton, among others, claim(ed) these rights. And if you answered "no" for all other countries but "yes" for us, presumably because you trust our guys but not theirs, I will admit you have some historical precedent, since the US for all its faults has generally acted more honorably than 99% of the other nations of the world over the last 100 years. But you do need to think about the meaning of the rule of law, and why its always a bad idea to give good men power that you don't want bad men to have.
By saying this, I realize that am I not only out of step with the US appellate courts (as Hinderaker points out) and with the Supreme Court (at least on the detention issue, since they haven't ruled on the warrant-less search powers) but also perhaps with the founding fathers. While most of the folks who wrote the Constitution understood the notion of rights that are derived from nature rather than from the state, the Constitution is mute on the laws of the US vis a vis foreign citizens (excepts where it comes to war). It is interesting to note that the Bill of Rights doesn't make any distinctions between citizens and non-citizens - there is nothing, for example, that modifies the prescriptions of the fourth amendment to apply only to searches of US citizens. One could easily interpret the Bill of Rights as proscribing the actions of the US government against any person of any nationality. Anyway, if I am in conflict with the founding fathers, so be it -- the Constitution is a fabulous document as totally ahead of its time as would be having 19th century India put a man on the moon, but it was not perfect.
The Magic Words: National Security
You may notice that defenders of these presidential powers tend to play a little verbal slight of hand (in addition to the one discussed here): They translate the president's powers as CinC to mean "carte blanch for national security issues". You hear this slight-of-hand so often, one starts to think its written that way in the Constitution, so it is probably good to remind ourselves what that document actually says:
The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States
That's it. The president can give orders to the military -- whether that means he can do anything he wants in the name of national security is a whole other issue. Folks also seem to want to argue that this CinC power cannot be modified or limited in any way, but that's silly. The third amendment is aimed solely at the limiting the power of the military. And certainly the folks who first adopted the constitution and the Bill of Rights believed that the 4th amendment applied to the military as well. In fact, they would have said especially the military.
The Right Way to do Searches
Here is how we have generally interpreted the 4th amendment: The legislative branch sets the ground rules, as followed by the Administration. The administrations selection of targets is reviewed by the Judiciary (warrants) and is also subject to later review at trial (via the admissibility of evidence). What we try to avoid is allowing the same person to set the rules, choose the target, and perform the surveillance, all in secret and without outside review. The problems with the NSA wiretapping program is not that it is wrong per se, but that it may violate this process. The administration is claiming the right to choose the target and perform the surveillance under the own rules and in secret with no possibility of review.
Declaration of War Needs to Mean Something Again
If there is any part of the constitution that has really gone by the wayside in the last 50 years it is the provisions around declaration of war. Over the past decades, president's have claimed the power to move forces into action, not just defensively but offensively, without a Congressional declaration of war. And Hinderaker sees the declaration of war, or the Authorization to Use Military Force
(AUMF) as irrelevant to the legality of warrant-less national security
searches. He is arguing that the President in his CinC power may search without warrant if it is substantially to fight an enemy. And, absent an AUMF or a declaration of war, who decides if a group or nation or person is an enemy? why, the President does. And, who determines if a surveillance is necessary to fight this enemy? Why, yes, the President does as well. And who reviews these decisions to make sure the President hasn't chosen to search or wiretap, under the pretext of national security, communists in Hollywood, Martin Luther King, or a self-generated "enemies list" -- no one, I mean, no Administration official in this country would ever do those things, would they?
I have increasingly come to the belief that the AUMF, or declaration of war, is supposed to mean something. (I am not a Constitutional scholar, and don't want to hear about how I don't understand such and such precedent* -- this is my own interpretation). If one goes back to my first argument above, that all people, not just citizens, are constitutionally protected from our government searching or detaining them without warrant, then the declaration of war is that formal step that is necessary to free the CinC from these restrictions vis a vis a certain named and defined enemy. The declaration of war, or AUMF, is effectively then the mass warrant, that gives the president the right in his role as CinC to attack those folks with our troops and detain them and spy on them, etc. And even then, this is not without limit, since none of us are very happy with the Japanese detention precedent in WWII. This view of the declaration of war is more consistent with the original notion of separation of powers than is the "administration can do anything to protect national security" view. It allows the President pretty free reign to fight an enemy, including the types of tactics under dispute, but only after the body the founders considered the most sober had approved the war and the enemy (by sober I mean as envisioned by the founding fathers, and not as demonstrated in recent supreme court nomination hearings).
This obviously makes a declaration of war a BIG DEAL, which it should be, rather than just a set piece vote ratifying what the president seems hellbent to do anyway or a statement of moral support, along the lines of a "we support the troops" resolution. It means that the Congress, god forbid, actually needs to treat the vote with some responsibility and understand the implications of what they are voting for, or else modify the AUMF or articles of war with specific limitations of scope. And it means Congress needs to think twice and maybe three times before authorizing war against something as nebulous as "A Qaeda" or "terrorism". And it means that GWB probably is doing nothing illegal, at least in the programs as discovered, but it doesn't mean that the courts or Congress can't change that in the future.
* Constitutional scholars live and die by the great god "precedent", and certainly the legal system would be thrown into disarray if court decisions did not provide precedents for later decisions. All predictability in the system would vanish. However, it is more than OK from time to time to go back to the original words of the Constitution to see if the march of serial precedent has somehow taken us off course. I often liken this to a copier machine. If you take a plain piece of paper, and copy it, and then copy the copy, and then copy that copy, etc. through twenty or thirty generations, you will end up with a paper that is supposed to be a copy of the original, but in fact is covered with spots and other artifacts that were not on the original. A series of court precedents can also create such artifacts that can only really be identified not from looking at the last precedent it was built on, but going all the way back to the original Constitution.