Tag Archives: Bush administration

MIA: the rule of law

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What is happening in this country?  Do you think that, in a nation that purports apply the law to all citizens equally, that a citizen seized by the government within the United States should have a right to have he claims of torture by US personnel at least heard in court? I certainly do.

But Jose Padilla apparently is not entitled to such a hearing. A Federal judge yesterday refused to allow his claims to be heard.

A federal judge on Thursday threw out a lawsuit brought by a man convicted of plotting terrorism and who alleged he was tortured at a Navy brig in South Carolina, saying a trial would create “an international spectacle.”

U.S. District Judge Richard Gergel ruled Jose Padilla, arrested as an enemy combatant, had no right to sue for constitutional violations and that the defendants in the case enjoyed qualified immunity.

Padilla claimed he was illegally detained as an enemy combatant and then held in a brig near Charleston where he was tortured. His lawsuit named government and brig officials, including Defense Secretary Robert Gates and former Defense Secretary Donald Rumsfeld.

So, because a trial could cause a “spectacle,” government officials and former government officials are granted immunity? What protection does any citizen have when governmental abuse cannot be taken to court?

Glenn Greenwald is on the case. Here is an excerpt, but his entire essay is a must read.

… our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law.  It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution.  That’s the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals — from Obama’s refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks.  With very few exceptions — yesterday’s ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla’s lawsuit against John Yoo for having authorized his torture (that decision is on appeal) – Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

There are legalistic questions involved in cases such as the one brought by Padilla — i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a “Bivens” claim) and whether such officials should enjoy “qualified immunity” for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) – but one key fact is not complex.  Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard.   If an American citizen can’t even sue political officials who lawlessly imprison and torture him in his own country — if political leaders are vested with immunity from a claim of this type — what rational person can argue that the rule of law or the Constitution binds our government officials?

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There they go again

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Our friends at the Department of Homeland Security have somewhat quietly introduced yet another assault on the civil liberties of American citizens. This time in involves not an assault on the person, but rather an assault on the person’s data.  Glenn Greenwald provides some startling information over at Salon.

For those who regularly write and read about civil liberties abuses, it’s sometimes easy to lose perspective of just how extreme and outrageous certain erosions are.  One becomes inured to them, and even severe incursions start to seem ordinary.  Such was the case, at least for me, with Homeland Security’s practice of detaining American citizens upon their re-entry into the country, and as part of that detention, literally seizing their electronic products — laptops, cellphones, Blackberries and the like — copying and storing the data, and keeping that property for months on end, sometimes never returning it.  Worse, all of this is done not only without a warrant, probable cause or any oversight, but even without reasonable suspicion that the person is involved in any crime.  It’s completely standard-less, arbitrary, and unconstrained.  There’s no law authorizing this power nor any judicial or Congressional body overseeing or regulating what DHS is doing.  And the citizens to whom this is done have no recourse — not even to have their property returned to them.

When you really think about it, it’s simply inconceivable that the U.S. Government gets away with doing this.  Seizing someone’s laptop, digging through it, recording it all, storing the data somewhere, and then distributing it to various agencies is about the most invasive, privacy-destroying measure imaginable.  A laptop and its equivalents reveal whom you talk to, what you say, what you read, what you write, what you view, what you think, and virtually everything else about your life.  It can — and often does — contain not only the most private and intimate information about you, but also information which the government is legally barred from accessing (attorney/client or clergy/penitent communications, private medical and psychiatric information and the like).  But these border seizures result in all of that being limitlessly invaded.  This is infinitely more invasive than the TSA patdowns that caused so much controversy just two months ago.  What kind of society allows government agents — without any cause — to seize all of that whenever they want, without limits on whom they can do this to, what they access, how they can use it:  even without anyone knowing what they’re doing?

With only one or two exceptions, neither the Democrats or the Republicans in Congress seem to be particularly interested in addressing this issue. It is one more significant erosion to the Fourth Amendment.  If reading the Constitution at the beginning of the House’s first business day this year was more than a grandstanding effort, why is no real effort at protecting liberty underway?

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How we stay “secure”

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Tom Englehardt describes the US security state:

Of course, the U.S. national security state has quite a different formula for engendering safety in America: fight the Afghan war until hell freezes over; keep the odd base or two in Iraq; dig into the Persian Gulf region; send U.S. Special Operations troops into any country where a terrorist might possibly lurk; and make sure the drones aren’t far behind. In other words, reinforce our war state by ensuring that we’re eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that we’re in imminent danger, that shoe, underwear, and someday butt bombers will destroy our country, our lives, and our civilization. Insist that a single percent of risk is 1 percent too much when it comes to terror and American lives, and then demand that those who feel otherwise be dealt with punitively, if they won’t shut up.

(via Daring Fireball)

Obama administration actively fought torture probe

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One of the items revealed in the Wikileaks document dump is that the Obama administration (and several prominent Republicans) actively intervened in Spain to block a probe of American torture policy under the Bush Administration as it was applied to several Spanish citizens. Shameful and amazing.

Diplomats routinely monitor and report on legal cases that affect national interests. These cables show that the U.S. embassy in Madrid had far exceeded this mandate, however, and was actually successfully steering the course of criminal investigations, the selection of judges, and the conduct of prosecutors. Their disclosure has created deep concern about the independence of judges in Spain and the manipulation of the entire criminal justice system by a foreign power.

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“Looking forward” on torture

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David Cole, writing in the New York Review of Books, explains why Obama’s effort to “look forward” and not backward on the torture committed by the Bush administration, will fail and that a full accounting, at a minimum, is necessary to purge the damage done by this country’s official policy of torture under Bush.

The torturers—President Bush, Vice President Cheney, Attorney General John Ashcroft, Director of Central Intelligence George Tenet, and Justice Department lawyers John Yoo and Jay Bybee, to name just a few—are not held responsible. They remain free to travel the lecture circuit and publish books bragging about their crimes. It is the families of victims of the embassy bombings who must pay the price—in foregone justice—for the crimes the Bush administration perpetrated in its “war on terror.”

It turns out that looking forward, not back, will never resolve the torture legacy. Until we own up to and provide a reckoning for the moral and criminal wrongs committed by officials at the very highest levels of the former administration, the fact that we tortured will continue to fester—and cause problems for its successor. The prevailing view in Washington seems to be that we should move on, but such wrongs cannot be forgotten.

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Bush tax cuts ≠ economic growth

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David Leonhardt in today’s New York Times:

Why should we believe that extending the Bush tax cuts will provide a big lift to growth?

Those tax cuts passed in 2001 amid big promises about what they would do for the economy. What followed? The decade with the slowest average annual growth since World War II. Amazingly, that statement is true even if you forget about the Great Recession and simply look at 2001-7.

The competition for slowest growth is not even close, either. Growth from 2001 to 2007 averaged 2.39 percent a year (and growth from 2001 through the third quarter of 2010 averaged 1.66 percent). The decade with the second-worst showing for growth was 1971 to 1980 — the dreaded 1970s — but it still had 3.21 percent average growth.

By all means, extend tax cuts for the middle class. But if we are serious about deficit reduction, we cannot afford to extend the Bush tax cuts for the wealthy.

Film a cop, go to jail, part 2

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Back in July, I posted the story and video of a motorcyclist who recorded a video of his arrest for speeding, and the claim by state officials that such a recording was a violation of the state wiretap law.

Well, it turns out, the judge strongly disagreed:

“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” Circuit Court Judge Emory A. Plitt Jr. wrote. “When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.”

***

“Under such circumstances, I cannot, by any stretch, conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society wold be prepared to recognize as reasonable.”

Government officials who object to the public’s right to film or photograph public actions of such officials seem blind to the irony of their position.  In the US, there has been a constant movement since 9/11 toward more intrusive governmental surveillance of citizens. This includes everything from so-called “national security letters” to warrantless tracking of automobiles and cellphones to claims that all communications encryption must have a governmental backdoor to warrantless email wiretapping. Despite all these privacy attacks by the security apparatus of the state, the state objects to citizens quite properly reviewing and recording the actions of the state.

Gimme a break. Judge Plitt gets it absolutely right in his opinion.

Quis custodiet ipsos custodes?

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America falls for a trap

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You have to read this op-ed by Ted Koppel in Washington Post. I think it nails it on every point. Excerpt below, but the full piece is worth your time.

The goal of any organized terrorist attack is to goad a vastly more powerful enemy into an excessive response. And over the past nine years, the United States has blundered into the 9/11 snare with one overreaction after another. Bin Laden deserves to be the object of our hostility, national anguish and contempt, and he deserves to be taken seriously as a canny tactician. But much of what he has achieved we have done, and continue to do, to ourselves. Bin Laden does not deserve that we, even inadvertently, fulfill so many of his unimagined dreams.

***

… the insidious thing about terrorism is that there is no such thing as absolute security. Each incident provokes the contemplation of something worse to come. The Bush administration convinced itself that the minds that conspired to turn passenger jets into ballistic missiles might discover the means to arm such “missiles” with chemical, biological or nuclear payloads. This became the existential nightmare that led, in short order, to a progression of unsubstantiated assumptions: that Saddam Hussein had developed weapons of mass destruction, including nuclear weapons; that there was a connection between the Iraqi leader and al-Qaeda.

***
Perhaps bin Laden foresaw some of these outcomes when he launched his 9/11 operation from Taliban-secured bases in Afghanistan. Since nations targeted by terrorist groups routinely abandon some of their cherished principles, he may also have foreseen something along the lines of Abu Ghraib, “black sites,” extraordinary rendition and even the prison at Guantanamo Bay. But in these and many other developments, bin Laden needed our unwitting collaboration, and we have provided it — more than $1 trillion spent on two wars, more than 5,000 of our troops killed, tens of thousands of Iraqis and Afghans dead. Our military is so overstretched that defense contracting — for everything from interrogation to security to the gathering of intelligence — is one of our few growth industries.

We have raced to Afghanistan and Iraq, and more recently to Yemen and Somalia; we have created a swollen national security apparatus; and we are so absorbed in our own fury and so oblivious to our enemy’s intentions that we inflate the building of an Islamic center in Lower Manhattan into a national debate and watch, helpless, while a minister in Florida outrages even our friends in the Islamic world by threatening to burn copies of the Koran.

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Political quote of the day

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It can fairly be said that the Bush administration made torture the law of the land and the Obama administration is making impunity for torture the law of the land.

– Ben Wizner of the ACLU. He represented the plaintiffs in the recently-decided Ninth Circuit case upholding the state secrets privilege to block claims of torture.

Ninth Circuit upholds “state secrets” privilege

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Marc Ambinder, politics editor of of The Atlantic, highlights the disturbing actions of the Ninth Circuit Court of Appeals in precluding a recovery for victims of torture under the Bush Administration. Of course, it is the Obama Administration that asserted so-called “state secrets” to block a judgment.  Ambinder outlines the huge and growing number of individuals with power to classify actions as “secret” so as to block future judicial inquiry into the validity of the actions.

Today, the Ninth Circuit court of appeals essentially conceded that law and precedent do not give, and should not give, the judiciary branch an equal claim to determine whether the government correctly classified information. They did so in an en banc ruling in the case of five men, including Binyan Mohammed, who alleged that Jeppesen Dataplan, a flight logistics company, helped the CIA render them to other countries where they were tortured. The U.S. government had asserted the State Secrets Privilege. The plaintiffs insisted the government asserted the privilege to cover up its complicity in torture. The court today held that, in essence, it does not matter if the information in the case was used to cover up torture, so long as the privilege was properly asserted.

So what does the court have to say about who gets to make that judgment? By way of background, judges have routinely, in recent years, been asking to at least see the classified information that the government insists is so sensitive that even the protections afforded to classified information in other trials are not sufficient. It says very little. The majority cites previous decisions that are, essentially, fist shakers: the government must not use the privilege capriciously; courts must regularly review the underlying information; the executive branch is not the “sole” determinant of whether information is properly classified. But at the same time, the court acknowledges, or, rather, asserts, based on precedent, that only the executive branch is capable of making that determination. So the effect is that the government will almost always have a trump card.

You should also read Jane Mayer’s piece in The New Yorker about the case and the crimes covered up.

Much has been written about the denial of due process for the five plaintiffs who claim to have been victims of the extraordinary-rendition program. But equally disturbing is the message that this verdict sends to individual American citizens, like the former Jeppesen employee, who felt a call to conscience that made him speak out, even at the risk to his own future employment, because he believed that secret kidnapping and torture were crimes in a country founded on the idea that all people, not just Americans, have inalienable rights, including protection from cruel and inhumane punishment. That his allegations could receive a public hearing in the press, but not a legitimate hearing in the American system of justice—even under an Administration headed by a former professor of constitutional law—is a daunting reflection of the clout wielded by the national-security bureaucracy in Washington, in the age of the Long War.

Glenn Greenwald has more.

And today’s New York Times editorial: Torture is a Crime, Not a Secret.

All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

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ACLU challenges border seizures

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The ACLU has filed a lawsuit challenging the seizure of electronic devices (cellphones, computers, cameras, etc.) from persons entering the United States. Such seizures occur even from individuals who are not suspected of any wrongdoing whatsoever.

The government has claimed the authority to undertake these suspicionless searches and seizures of electronic devices under a policy issued in August 2009 by the Secretary of Department of Homeland Security, Janet Napolitano. This policy is a rewording of the same policy that came into effect during the Bush administration. Between October 1, 2008, and June 2, 2010, over 6,500 people were subjected to this policy — nearly 3,000 of them U.S. citizens.

We are not saying that the government can never search or seize electronic devices at the border, but only that border agents should have some suspicion that the search will turn up evidence of wrongdoing before looking through all the private information that people have stored in their devices. Americans travel internationally more than in the past, and usually with private information and intimate details of our lives condensed in small, electronic devices. We hope that the court will recognize that Americans don’t give up their right to privacy at the border, and strike down the DHS’s policy as unconstitutional.

This has to stop. If you travel for work purposes and want to be sure that confidential business information stays that way, be sure to securely wipe your devices before returning to the US.

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The intervention worked

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The New York Times highlights a report from two prominent economists that indicates that the various Federal actions in the wake of the economic collapse substantially improved the situation.

In a new paper, the economists argue that without the Wall Street bailout, the bank stress tests, the emergency lending and asset purchases by the Federal Reserve, and the Obama administration’s fiscal stimulus program, the nation’s gross domestic product would be about 6.5 percent lower this year.

In addition, there would be about 8.5 million fewer jobs, on top of the more than 8 million already lost; and the economy would be experiencing deflation, instead of low inflation.

The paper, by Alan S. Blinder, a Princeton professor and former vice chairman of the Fed, and Mark Zandi, chief economist at Moody’s Analytics, represents a first stab at comprehensively estimating the effects of the economic policy responses of the last few years.

Another take on the report is available from David Leonhardt.

This is good news for Democrats heading into this fall’s election. However, the deniers on the right will no doubt refuse to accept any validity in the report.

Torture quote of the day

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They [George Bush and Dick Cheney] should have been indicted. They absolutely should have been indicted for torturing, for spying, for arresting without warrants. I’d like to say they should be indicted for lying but believe it or not, unless you’re under oath, lying is not a crime. At least not an indictable crime. It’s a moral crime.

– Fox News host Judge Andrew Napolitano.

Shameful quote of the day (updated)

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Yeah, we water-boarded Khalid Sheikh Mohammed. I’d do it again to save lives.

–Former President George W. Bush, speaking in Grand Rapids, Michigan, on Wednesday.

It is amazing to me that a former president of the United States can speak so openly and proudly of violating US law, US treaty obligations, and general human decency.  It is far past time for the Obama Administration to open a full review of the treatment of prisoners by the United States during the prior administration (and this administration as well).

Update: More from Jonathan Turley and Think Progress.

Obama = Bush Light

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The Obama Administration continues following the lead of the Bush Administration in regards civil liberties and pursuit of what used to be called the “war” on terror. Most recently, the Obama DOJ argued successfully that foreign nationals held by the United States in prison at Bagram Air Base in Afghanistan have no habeas corpus rights in the US courts.

In Maqaleh v. Gates, which involved two Yemenis and a Tunisian held at Bagram, the Obama Administration, echoing the Bush Administration’s position, argued that federal courts lacked jurisdiction to hear these detainees’ challenges because of the Military Commissions Act of 2006.

The government arguments in the appeal mirror those made earlier by the Bush Administration.

And, further compounding error, the Obama Administration also has failed to investigate prior claims of torture by the US. In the latter case, the model for Obama, rather than his current posture of sweeping crimes outside the view of the public, is the incoming coalition government, led by the Conservatives, in the UK.

A judge will investigate claims that British intelligence agencies were complicit in the torture of terror suspects, William Hague, the [UK] foreign secretary, said tonight.

The move was welcomed by civil liberties campaigners and may put pressure on the Labour leadership candidate and former foreign secretary David Miliband, who was accused by Hague, while in opposition, of having something to hide.

Miliband has repeatedly rejected the accusation and broadly indicated that he or his officials may have been misled by foreign intelligence agencies about the degree of British complicity.

Hague’s remarks appear to have caught the Foreign Office by surprise, as no details were yet available on how the inquiry will be conducted, its terms of reference or when it will start work.

* * *

Philippe Sands QC, professor of law at University College London, said tonight: “To restore trust in government, both here and abroad, and to get to the truth, the inquiry needs to be deep and broad and as open as possible. It should address, in particular, who authorised what and when and why, what the relevant legal advice said, and how it related to any change in US practice in 2002 and 2003.”

Sunshine is the best disinfectant.