Categories
Barack Obama Criticism Law Politics The Opinionsphere

Conservative Empathy

Doug Kendall and Dahlia Lithwick take on the conservative attacks on empathy by pointing out the hypocrisy of the position:

Every time Justice Antonin Scalia writes a habeas opinion that begins with the depiction of a gruesome murder, he is evincing empathy toward the victim. When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white “victims” of affirmative action. It’s a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. And smart advocates on either side, knowing that, seek out “sympathetic plaintiffs” for litigation precisely because they are attempting to appeal to some part of the court’s lizard brain; the part that does more than mechanically apply the law to the case.

I think that’s about right.

Categories
Barack Obama Financial Crisis Law Politics The Opinionsphere

Obama and the Rule of Law


[digg-reddit-me]Right-wingers and some conservatives are trying out a new approach in their attacks on Obama – as you can see from the growing meme on the right that Obama has no respect for the Rule of Law. I’ve come across this meme in a George Will column, a Wall Street Journal editorial, and in a blog post by Jim Manzi for the National Review / The American Scene all last week. All three authors have focused on one particular event – Obama’s role in the Chrysler sale/bankruptcy/bailout. I for one am glad to see the National Review and Wall Street Journal finally coming around to accepting the importance of the Rule of Law after eight years of promoting George W. Bush’s blatant disregard for the law – but I digress.

The past eight years have demonstrated to many Democrats and liberals the vital importance of the respect for the Rule of Law to a well-functioning state – as President Bush concentrated more and more power in the White House and asserted authorities both beyond and over the law – which is why an accusation that President Obama is not respecting the Rule of Law must be taken seriously.

It is hard though to take the example all three authors use seriously – Obama’s intervention in the Chrysler mess. I can understand why people might object to what Obama did – if you consider unions to be a malevolent force, you certainly don’t want them helped out – and it is unseemly that they donated so much to Obama only to be rewarded now (of course, the creditors also gave Obama a great deal of support.) But neither of these objections is based on Obama disrespecting the Rule of Law.

Certainly, even these authors are not accusing Obama of disrespecting the Rule of Law in the same manner as George W. Bush – who did not believe he was bound by law when acting to protect Americans. The unitary executive theory he accepted and Cheney, Addington, and others used, is a direct assault on the idea that the president is bound by the law. Obama does not take this position.

These authors make a big point of the fact that Obama is abrogating contracts – but this objection is a bit silly. Obama is not a party to these contracts – and thus has no obligation to honor them personally. The Contracts clause of the Constitution – the Law which it is being alleged Obama has broken – was meant to constrain the individual states rather than the President or even the Congress. Congress was in fact given the power to abrogate contracts through bankruptcy proceedings in the Constitution. Obama – in intervening in the case of Chrysler – helped to negotiate an out-of-court settlement of the matter. Out-of-court settlements happen all the time – and are welcomed by overburdened judges who see it as better to allow all sides to come to an agreement rather than having to order them to agree.

To call this a violation of the Rule of Law is disingenuous at best.

What these authors are right to be concerned about is the concentration of power that undermines the system of the Rule of Law – as the government’s role in backstopping the finance and auto industries leaves it with enormous leverage. But their fears should be allayed by the fact that most of these interventions are temporary. (Of course, George Will is on the record disbelieving this based on the old adage – as are all of Will’s beliefs – that once government has taken a power, it will not give it up.)

Liberals have continued to voice a different set of concerns about Obama’s respect for the Rule of Law – pointing to the many Bush administration positions Obama has accepted. But they key difference between Bush and Obama is that even as Obama may be putting forward positions on these issues which are controversial, Obama has given the sense he will concede if his legal means of asserting these claims are defeated. Bush in at least one instance refused to end a clearly illegal program despite the fact that his own Justice Department had declared it illegal. 

I do find a few areas of concern. The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law. And it is this that conservatives and right-wingers seem to be ojecting to – but their rhetoric about the Rule of Law being disregarded is hyperventilationist – and for those who did not likewise say the same of our previous president, hypocritical.

But by far the most disturbing manner in which Obama is undermining the Rule of Law is in how his administration is keeping Bush’s policies on the matter of Bagram. The Supreme Court’s ruling on the rights of detainees to certain basic rights at Guantanamo was in a large part based on the idea that our government should not be able to deprive an individual of rights merely by moving them to a particular location. But this is exactly what the Obama administration is claiming with regards to the detainees brought to Bagram from around the world. Our nation’s freedoms are grounded in our traditions. This includes a respect for contracts, a balance of various powers, and an energetic chief executive – but at it’s base, our traditions are grounded in a single, fundamental restriction on the state. To quote Winston Churchill:

The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist.

Categories
Criticism Law National Security Politics The Opinionsphere The War on Terrorism

The Amnesia of the Right

Hilzoy (h/t Andrew Sullivan):

Something about 9/11 seems to have produced a kind of amnesia among some people on the right. It’s as though they think that we have never before had to figure out such questions as: how can we hold dangerous people in detention safely? When someone has served his time and we think he might go on to do something bad, how might we monitor him to ensure that he doesn’t? Suppose we have captured someone who might be guilty of a violent crime, but we do not have enough evidence to charge him: what should we do? 

These are not problems that we confronted for the first time after 9/11. They have been with us from the founding of our country. We somehow managed to face down the world’s most powerful empire, survive a brutal civil war, defeat Hitler, and live for about forty years with an immense arsenal of thermonuclear weapons pointed at our cities, and do all that without giving up on the rule of law. But let nineteen guys with boxcutters fly planes into our buildings and, apparently, we face a Brand New Existential Threat that causes our entire legal history to fly out of our collective heads.

Amen.

Categories
Barack Obama Criticism Law National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Andrew C. McCarthy’s Self-Righteous Sophistry

[digg-reddit-me]Andrew C. McCarthy was a prosecutor on a few terrorism-related cases back in the 1990s. But it wasn’t until after September 11, 2001 that he found his true calling – writing opinion pieces for the National Review and Commentary. As a prosecutor, McCarthy had to go through that exhausting process of finding evidence to back up his case – and use that evidence to convince a skeptical audience that his case was right. As an opinion writer for two right-wing publications, McCarthy is free from both constraints as he preaches to the converted. McCarthy – who previously had a career as a criminal prosecutor – now uses this background to give him added credibility when discussing the two issues he cares most about: detainee policy in the War on Terrorism and torture. This is a man who said of McCain’s Anti-Torture legislation that it was “two parts grandstanding and one part suicide” and declared that McCain by supporting it, had “no business serving in a government whose first obligation is the security of the governed.” Of course, McCarthy found it necessary to support McCain over Obama in 2008 – because Obama was “disqualified” from office because of his ties to America-hating leftists – and because his policies were even more suicidal(!) than McCain’s. Yet, even so, over McCarthy’s strongly worded objections, America elected Obama.

You’ll never guess what happened next. Obama – being the partisan, leftist, America-hating, suicidal guy that he is – invited Andrew C. McCarthy to be part of a panel that advised him on the issue which McCarthy had been most vocal – the detention and torture of suspected terrorists. McCarthy, of course, would have none of it – and declined to join the force – taking the unusual step of releasing his letter of declination to the press and writing about it in an opinion piece in the National Review

All’s fair in love and politics – you might say. But it’s clear McCarthy has gone soft from years of presenting his arguments to those already agree with him.

Let’s look at a few of the premises to McCarthy’s piece:

Obama’s Bad Faith. McCarthy knows that Obama – in instructing the Justice Department to determine if any laws had been broken in instituting the torture policy of the Bush administration is acting in bad faith.

“[Obama] has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it…Any experienced prosecutor would know there is no criminal case here.” And what nefarious purpose does Obama have for bullying such upstanding citizens? ” McCarthy explains Obama’s prime motivation: “To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers.”

Obama’s Bad Faith (II). McCarthy also knows that Obama is acting in bad faith in creating this task force to advise him.

McCarthy clearly has divined Obama’s intentions as he declares that “the exercise known as the ‘President’s Detention Policy Task Force’ is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists.”

Bush’s Good Faith. Because McCarthy is so good at divining the intentions of people in the news, he also knows that the legal advisors to the Bush administration – including those who issued binding legal opinions for the Office of Legal Counsel at the Justice Department – were acting in good faith when they issued opinions in contravention of every precedent in American history.

“Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably…Bad legal advice given in good faith is not an ethical violation.”

McCarthy doesn’t explain why he knows these men were acting within the legal definition of “good faith.” And for what it’s worth, Jack Goldsmith, a Republican who replaced Jay Bybee, one of the lawyers McCarthy is defending, as head of the Office of Legal Counsel, wrote of the torture memos that they were designed with the purpose of providing a “golden shield” to the interrogators, had “no foundation in prior OLC opinions, or injudicial decisions, or in any other source of law” and were deliberataly biased. That sounds like an acknowledgment of bad faith to me.

Criminalizing Advice. McCarthy – being an expert in national security law apparently – also knows that while the Office of Legal Counsel’s binding legal opinions “are controlling on questions of law within the Executive Branch” [pdf], they are also no different from any advice any lawyer gives. 

That’s why “If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges.”

Criminalizing Policy Disputes. McCarthy also apparently believes that if an administration sets a policy that is criminal, no one should be held responsible. So, now that it is clear that war crimes were committed – and that any nation in the world can now prosecute those American officials responsible thanks to Ronald Reagan’s Convention Against Torture. The only way to prevent other nations from bringing up Americans on charges of war crimes is to have our own investigation. McCarthy sees all this – yet maintains that instituting a policy of torture is a mere policy decision. Would McCarthy continue to hold this position if the war crime were genocide instead? If the Office of Legal Counsel declared genocide legal, the president ordered it be done, and other carried it out – would it still be a policy dispute that shouldn’t be criminalized? McCarthy’s point about not prosecuting torture only holds then if you first buy his declaration that “torture” isn’t illegal – or at least it shouldn’t be.

Mitigating Circumstances. Despite the fact that these lawyers provided advice that McCarthy still considers sound and McCarthy testifies were acting on good faith, McCarthy still wishes to qualify that these men gave these opinions in “wartime service to the country” under “the emergency conditions that followed the 9/11 attacks.” These facts don’t matter if you believe as McCarthy does that we should still agree with them now – but by bringing them up, the indicate, perhaps a single humanizing glimmer of doubt.

A few odds and ends.

The Uighurs. McCarthy speaks of how Obama is preparing to unleash the Uighurs who are “trained jihadists” who, once released, will be “plotting to menace and murder us” onto American soil! For those ignorant of the plight of the Uighurs, this can sound quite alarming. The facts are a bit less so. The Uighurs have been cleared of any charges as of five years ago, and it was declared that they “pose no terrorist threat” and have “not [been] charged with fighting or plotting against the United States.” Which brings us to the question: Why haven’t we repatriated them to their home country as the Bush administration did with hundreds of detainees? Because they are Chinese seperatists who China has vowed to execute if they return. Why not to a outside state? Because China has made threats against any nation that accepts them. (Albania accepted some of the Uighurs a few years ago – and since has faced threats from China.) McCarthy though – knowing the facts – decides to obfuscate all these “technicalities” – so he can focus on the core “truth” – that Obama wants to unleash trained jihadists in your neighborhood!

The standards of justice. Finally, is a throwaway point McCarthy makes as he concludes his feat of sophistry. He blames Obama for the fact that he has “no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system.” Those with critical faculties might wonder – why is it that these terrorists can’t be tried in a manner consistent with American traditions of justice? McCarthy himself prosecuted terrorists – and wannabe terrorists – it’s his claim to fame. So why can’t these men who participated in a far worse crime be tried now?

And here we return to the beginning – because our justice system has accepted the long-held truth – that confessions tainted by torture are likely to be untrue – and so are ignored. Thus, these men who attacked America – who killed Americans – who McCarthy is opposed to – can never be brought to justice according to our traditions.

McCarthy does have some good advice for the man he considers unfit for public office – a leftist, America-hating, dangerous man who is aiding our enemy. McCarthy advises Obama: “We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.”

Perhaps – but you can’t write for the National Review with that attitude these days.

Categories
Barack Obama Law Political Philosophy Politics The Opinionsphere

Replacing Souter

There’s a few different schools of thought on how Obama should go about replacing Justice David Souter. Dahlia Lithwick – a few months ago – called on Obama to make his next appointment “a hero, a bomb-throwing, passionate, visionary, liberal Scalia.” Others are just calling for Obama to place someone liberal enough to counter-balance the extreme conservatives appointed by Bush. Conservatives and right-wingers are calling on Obama to appoint someone “moderate” – though given the political circumstances, it is almost guaranteed that they will not accept any appointment, no matter how “moderate.” All of this is based on a rather direct analysis of the Supreme Court – presuming that decisions are and will be made based on political viewpoints. 

I’m not trying to say that we should accept Justice Roberts’s oft-cited analysis of the judge as umpire – just calling the law as he sees it. I thought Obama made an excellent point back in July 2007 when he critiqued this view:

 When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. You know, he’s good to his dog. He’s so well qualified.”

I said, well look, that’s absolutely true and … in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

Ed Whelan over at the Corner is trying to make a big deal out of what he’s calling Obama’s lie – which is that judicial philosophy is unimportant. He cites the above quote as proof Obama thinks judicial philosophy is unimportant – but he doesn’t seem to have read it closely, as you can clearly see Obama say:

[I]t’s those five percent of the cases that really count.

The person Whelan really should be attacking – if he believes judicial philosophy is unimportant – is Justice Roberts who sought to minimize the role of politics in his decisions (at least in his pre- and post-appointment rhetoric.)

But what I’m interested most in is a justice who can move the other members of the Court – either through personality or their compelling understanding of the law. One historical type that has moved the Court would be a politician – such as Sandra Day O’Connor or Earl Warren – whose personality drew other justices to accept some of their decisions, and gradually shaped the Court over time. This is why I think it’s a bad idea to appoint a liberal version of Justice Scalia – whose personality actually hurt his politics. Jennifer Granholm is a good possibility on this front. As would Hillary Clinton or Al Gore if they were only younger.

In the alternative, Obama could appoint an ideologically interesting thinker – who is liberal, but nevertheless, thinks outside of the box. The two people that come to mind on this score are Cass Sunstein and Lawrence Lessig. Lessig is probably too young yet – and Sunstein has not only encountered surprising resistance to his appointment to an obscure position, but he probably would like an opportunity to take a crack at enhancing that position and testing his theories on libertarian paternalism. 

Finally, I like Harold Koh for the post – even though it is unlikely he fits into any of the above two categories. He’s national security thinker with a great resume. I don’t know his record on most issues – but I’ve heard him speak on national security law – my main interest – and he has strong, nuanced positions, viewing our national security apparatus as a whole system rather than as a series of isolated issues. He would be a strong voice in reigning in an executive branch that has barely pulled back in terms of it’s assertions of power in the national security arena.

Categories
Law Morality National Security Politics The Bush Legacy The War on Terrorism

Name, Rank and Serial Number

[digg-reddit-me]Our enemies do not subscribe to the rules of the Marquis of Queensbury. “Name, rank and serial number” does not apply to non-state actors but is, regrettably, the only question this administration wants us to ask.

Porter Goss, former director of the CIA, in the Washington Post.

Right-wingers from the National Review to Rush Limbaugh to Porter Goss has repeated this line ad infinitum – this constant suggestion or occasionally accusation that opponents of torture only want to ask members of al Qaeda for their “name, rank and serial number.” This is a distortion of the position many opponents of torture take – that the Geneva Conventions do apply even to terrorists. A commenter called salubrius provides a decent breakdown:

There are two standards for interrogation in the Geneva Convention. One standard applies to POWs or prisoners of war. These prisoners have a preferred status in that they may not be coerced to provide information other than their name, rank and serial number. The other standard applies to those who do not qualify as POWs. These are also referred to as unlawful enemy combatants. The Supreme Court in 1942 referred to this classification of lawful and unlawful combatants. 

Terrorists and suspected terrorists are still protected under the Geneva Conventions – though not to the extent of prisoners of war or civilians. Geneva provides certain mininimal protections for “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Namely, Geneva provides that such persons “shall nevertheless be treated with humanity” and “shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.” This is the position held by most if not all of those who insist that Geneva still applies to terrorists.

Proponents of torture try to mislead those not following the political conversation closely by disingenously claiming that their opponents consider asking anything more than “name, rank, and serial number” to be torture. In fact, the most successful interrogators of terrorists so far have also been opponents of torture – from Ali Soufan of the FBI to Matthew Alexander of military intelligence.

Categories
Law Mexico National Security Pakistan Political Philosophy

The Soft Underbelly of the Modern State

[digg-reddit-me]In other periods of history, opponents of a state would assassinate leaders to force changes in policy. The leader was invested with such power that removing him or her from his position would create an opportunity to change a government’s policies and overall posture towards the world. Today, although assassination is still a tool, the focus of opponents of the state – who are mainly identified as terrorists today – is to attack the Rule of Law. The Rule of Law – the primacy of laws over all individuals, including those in power, a principle which prevents authoritarianism, the arbitrary use of power, and anarchy – is perhaps the most valuable and vulnerable asset a state can have. Without it, there can be no democratic discourse or free elections and no free market. Yet the Rule of Law is especially vulnerable as it relies upon a wide range of institutions and conditions – all of are required to achieve the public trust needed: an independent judiciary; a professional police corps; a relative peace; the transparency of laws and law-making; the right of every individual to be given a fair hearing if they are being held by the state; a sense of basic justice within the society. A single rogue cop, a corrupt judge, or an unjust law undermines the Rule of Law – and if it is not well-established, can destroy it.

Reading about Mexico and Pakistan – the two major nations the U.S. Joint Forces Command listed as major nations that could suddenly collapse in the next year – one is confronted again and again with what each has in common: the Rule of Law is being deliberately subverted by major groups within these nations. If either nation is not able to maintain some semblance of the Rule fo Law within it’s borders, they will have effectively collapsed.

In Mexico, the Rule of Law has been undermined for years but is perhaps now finally reaching a tipping point. As Marc Lacey reported in the New York Times:

The cartels bring in billions of dollars more than the Mexican government spends to defeat them, and they spend their wealth to bolster their ranks with an untold number of politicians, judges, prison guards and police officers — so many police officers, in fact, that entire forces in cities across Mexico have been disbanded and rebuilt from scratch.

Steve Fainaru and William Booth reported in the Washington Post that:

The government is attempting to vet and retrain 450,000 officers, most at the state and municipal levels, employing lie detectors, drug tests, psychological profiling and financial reviews to weed out corruption and incompetence. Nearly half of the 56,000 officers vetted so far have failed.

Police corruption is clearly endemic in Mexico. It is for this reason that President Felipe Calderón has tasked the military with taking on the drug cartels – and it is also for this reason that many local police forces are now run by former military officers. But as the Lacey article makes clear, even the military is compromised – both from within by informants paid off by the cartels – and by the army-sized force of former soldiers that works for the cartels:

Although Mexico’s military is regarded as significantly less corrupt than the country’s police forces, defense officials estimate that 100,000 soldiers have quit to join the cartels over the past seven years.

As evidence that Mexico is even more compromised, Lacey reports that:

The reach of the drug kingpins has even the army fearful. Many soldiers cover their faces while on patrol to avoid being identified and singled out by the drug cartels. The army also recently began allowing soldiers to grow their hair longer, because military-style crew cuts were believed to be putting off-duty soldiers at risk.

Sam Quinones writing for Foreign Policy described how thoroughly Mexico had changed in the past decade, recounting anecdotes about the flagrancy of the cartels’ violation of laws.  Mayor José Reyes Ferriz of Ciudad Juárez lives across the border in Texas because he is not safe in the town he was elected to govern. The cartels have brought Mexico almost to a breaking point because they have undermined the Rule of Law through large portions of the country. The law is obviously a barrier to their illegal activities. Fainaru and Booth reported a senior advisor to President Calderón explained the motivation behind the desire to use the military to attempt to combat the cartels:

The executions, the decapitations, the confrontations between the drug gangs. There was a perception in society of lawlessness, that there was no state.

This perception is enough to destroy a nation – which is why the Mexican government has taken such drastic measures to combat it. At the same time, the steps taken by President Calderón – using the military – have themselves undermined the Rule of Law. As Monte Alejandro Rubido, a senior public security official explained the tradeoff:

It can be traumatic to have the army in control of public security, but I am convinced that we don’t have a better alternative, even with all the risks that it implies.

It is good that Calderón realizes that there is a tradeoff. His judgment remains that this is the least worst option – and his goal is one that we in America must share – the restoration of the Rule of Law in our neighbor. 

Similarly, in Pakistan, the Rule of Law has been undermined by the central government – as former President Musharaff disbanded the Supreme Court, as President Zardari refused to restore Chief Justice Iftikhar Muhammad Chaudhry for a time and seemed to use the Court for partisan purposes – while at the same time, the Rule of Law is being directly attacked by the religious extremists who have now taken to attacking police academies.

The Rule of Law is a nation’s most valuable asset – and unfortunately it is also most vulnerable. It faces threats from government overreaction, from rogue forces within the government, from unjust laws, from corruption, and from extremists who violently oppose the state itself. Mexico and Pakistan are becoming destabilized because large groups are attacking the Rule of Law – and each government’s own reaction to these groups additionally undermines the Rule of Law.

Categories
Barack Obama Law National Security Politics The Bush Legacy The War on Terrorism

A Summary of the Civil Libertarian Case for a “War” Against Terrorism

[digg-reddit-me]Liberals and those concerned about civil liberties should embrace the term “war” and policies consistent with some form of a war against terrorism. Bush’s War on Terror has largely discredited this idea because he abused the term, used it as a political wedge issue, and used it as a cloak for his attempts to remove checks to his power. But Obama has a chance to create a framework for a rational and effective war against terrorism – by redefining the aims of this war from aggrandizing the power of the president to preserving the rule of law and our way of life.

Bush’s War on Terror too quickly evolved from a struggle against terrorism to an attack on the rule of law and on any other checks on the president’s power – a war planned in advance of September 11, but justified in the aftermath by a fear of terrorism. The goal of this war was to ensure maximum flexibility for the executive to act which distracted the president from determining and taking the most effective actions. Bush focused on whether he could use torture rather than on whether torture was effective; he wanted the power to detain any individual without any oversight – without taking into account that this would hurt our war aims; he wanted the authority to wiretap and otherwise intercept communications without any limits, and so he authorized the commission of felonies based on a wacky legal theory that expanded his power rather than asking the law to be changed. Bush declared War on Terror but waged war on any checks to his power.

Obama must continue to fight the Wars Against Terrorism ((I think the term “War on Terror” is misleading and vague. We need a new formulation. I’m not crazy about “Wars Against Terrorism” but for the moment, it’s the best I’ve got. It conveys both the multiple fronts of the war as well as the primary enemy, a tactic that strikes at the Achilles heel of our society.)) while reversing Bush’s war against checks on presidential power. Obama must focus on strengthening our society and its’ instutions (including our civil liberties and the rule of law); he must take measures to protect America from catastrophic events and attacks; and he must focus on creating resilient structures that can bounce back after an attack.

Some have asked if war is the right model to achieve these goals. They usually suggest a law enforcement approach instead.

I believe war is the right approach – as war is how a society has always responded to violent existential threats. Terrorism is such a threat. The term war has evolved over time to cover different state responses to these violent existential threats – and in this case it must evolve again. As part of our strategic approach to this war, we must aim to preserve the rule of law and create a more resilient society after an attack. 

At the same time, civil libertarians should realize that if we were to declare the war over, we would leave our society’s values vulnerable in the aftermath of the next attack – as perhaps, Americans shaken and vulnerable, seek a return to war footing, as they sought after September 11, and those liberties granted in peacetime will be once again revoked.

Instead, we must continue this war; but rather instead of seeing the rule of law as an obstacle, preserving it must be our fundamental war aim.

Categories
Law National Security The Bush Legacy The War on Terrorism

Congressman Pete King Wants Club Med Investigated For Human Rights Violations Just Like Guantanamo

[digg-reddit-me]He must have had a bad experience with Club Med. 

Military.com reports that:

Rep. Peter King, R-N.Y., who led a group of congressmen to Guantanamo, told the New York Post the facility was like a Club Med for terrorists.

Club Med? The most reasonable explanation is that Congressman Pete King (my congressman and likely 2010 Republican Senate candidate) was treated very badly at this resort chain, and I’ve contacted Club Med inquiring about this. If Pete King is saying that Club Med is like Guantanamo, he is apparently alleging that they have treated their guests similar to how the prisoners at Guantanamo were treated. So, what types of things happen at Club Med, according to Pete King? Here’s a few examples:

Captives at Guantánamo Bay were chained hand and foot in a fetal position to the floor for 18 hours or more, urinating and defecating on themselves, an FBI report has revealed.

The Guardian.

Spc. Sean D. Baker, 38, was assaulted in January 2003 [at Guantanamo Bay] after he volunteered to wear an orange jumpsuit and portray an uncooperative detainee. Baker said the MPs, who were told that he was an unruly detainee who had assaulted an American sergeant, inflicted a beating that resulted in a traumatic brain injury…

[Pentagon] officials conceded that he was treated for injuries suffered when a five-man MP “internal reaction force” choked him, slammed his head several times against a concrete floor and sprayed him with pepper gas…

As he was being choked and beaten, Baker said, he screamed a code word, “red,” and shouted: “I’m a U.S. soldier! I’m a U.S. soldier!” He said the beating continued until the jumpsuit was yanked down during the struggle, revealing his military uniform.

The Los Angeles Times.

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions…

Bob Woodward in the Washington Post.

The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion “tantamount to torture” on prisoners at Guantánamo Bay, Cuba.

The New York Times.

Then there’s the fact that Khadr claims to have confessed under torture. Videos of him weeping during an interrogation surfaced last year and served only to remind the world that he was a teenager confined at Guantanamo among “the worst of the worst.” Khadr was allegedly shackled in stress positions until he urinated on himself, then covered with pine solvent and used as a “human mop” to clean his own urine. He was beaten, nearly suffocated, beset by attack dogs, and threatened with rape. In May 2008, the Supreme Court of Canada ruled in Canada v. Khadr that the detention of Khadr at Guantanamo Bay “constituted a clear violation of fundamental human rights protected by international law…” We need to start to make amends for the fact that children in our custody were tortured.

Dahlia Lithwick in Slate.

Mohammed al-Qahtani, detainee No. 063, was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran.

That much is known. These details were among the findings of the U.S. Army’s investigation of al-Qahtani’s aggressive interrogation at Guantanamo Bay, Cuba…

[Later h]e was interrogated for 18 to 20 hours per day [using coercive rather than sexually humiliating methods, including waterboarding, stress positions, sleep deprivation, and extreme temperatures], for 48 of the next 54 days, according to an Army investigative report. On Dec. 7, 2002, he had to be revived at the detainee hospital when his heart rate fell to 35 beats per minute, according to a log of the interrogation published by Time magazine. Then the interrogation continued.

FBI agents at Guantanamo joined the opposition. A Nov. 27 FBI “legal analysis,” since reported by Newsweek, labeled several parts of the plan as “coercive interrogation techniques which are not permitted by the U.S. Constitution.” It also warned that several of the proposed tactics could constitute torture, depending on how a judge viewed the intent of the interrogator.

MSNBC.

Clearly, if Club Med is anything like Guantanamo is, it should be investigated for torture, prisoner abuse, child abuse, and various violations of international treaties. I’m awaiting a response from Morgan E. Painvin, Club Med’s listed press contact, as to whether Pete King has any substantiation for his apparent allegations of torture and human rights abuses at Club Med.

An alternate and plausible explanation would be that Pete King has been involved in sadomasochism for too long and that it has warped his sense of pleasure and pain. Of course, it’s brave of a suburban politician to admit such a fetish. So I must commend him for his honesty if this is his way of coming out.

I’m not sure I can think of any other reasonable explanations for this statement by Congressman King without calling him delusional, a liar, incredibly ignorant, or a propagandist.

[Photo licensed under Creative Commons courtesy of Ed your don.]

Categories
Barack Obama Law National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Andrew Sullivan’s Warning Shot

I agree Andrew Sullivan and Glenn Greenwald on this:

Glenn is absolutely right to remind us that the whole point of our resistance to the war crimes of the last seven years was not to rely on our subjective beliefs about the moral integrity of a lone man in the Oval Office. It is to restore a maximally transparent, lawful and effective policy against Jihadist terrorism under the rule of law and the Constitution. Obama needs to be held to exactly the same standards as Bush. And if he thinks we will give him a pass, he needs to think again.

The point of my previous post is that Obama may agree that we must force him to be accountable as well. It is better for the coequal branches of government to check the president’s power than for these branches to defer to the president’s renunciation of certain powers.