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The Obama Administration, Guantánamo, and Restoring America’s StandingLast week, Barack Obama was interviewed by Steve Kroft of 60 Minutes and the following exchange occurred: Kroft: There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?Obama’s statement was widely celebrated as evidence that he intends to act swiftly and decisively to end the Bush administration’s most controversial detention and interrogation policies. But that reaction overstates the meaning and importance of what Obama actually said. Obama’s response to the question that was asked was perfectly satisfactory as far as it went. He was asked whether he intends to close Guantanamo and “change interrogation methods” and he answered “yes” to both. It would have been rather shocking if he had answered any other way. Could one even imagine Obama proclaiming that he intends to leave Guantanamo open or that he intends to leave unchanged Bush’s interrogation programs? But his answers, adequate though they may be, actually tell us relatively little about how Obama intends to address the most vexing and important questions in these areas. The intention to close Guantanamo and to ban torture are not policies; they are mere generalities, concepts, aspirations. Even George Bush paid lip service to both goals: “I would like to close the camp and put the prisoners on trial," Bush said. "We do not torture," Mr. Bush told reporters. Obama’s 60 Minutes statement leaves unresolved many of the overarching questions about the policy changes he will mandate in order to reverse the most extreme Bush abuses, including:
As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.Yet since then, John Brennan, Obama’s top intelligence adviser (and until yesterday, the leading candidate to lead the CIA), explicitly questioned whether such a measure was desirable. Moreover, Obama was one of the few Senate Democrats who not only opposed the Military Commissions Act — which authorized Bush's military commissions — but also went to the floor of the Senate to sponsor amendments that would have limited its reach and, if passed, would have likely caused the Bush administration to veto it. Obama's opposition to these military commissions was thus reflected not only by his words, but also his past actions. Yet key Obama adviser Cass Sunstein has, in the past, expressed support for Bush’s military commissions. Perhaps most encouragingly of all, Obama was one of only 15 Senators who voted against the confirmation of Gen. Michael Hayden as CIA Director, a confirmation that passed the Senate with 78 votes. In opposing the nomination, Obama cited the fact that Hayden was “the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight” and that “this is a program that is still accountable to no one and no law.” Obama said he was voting against Hayden “to send a signal to this Administration that even in these circumstances President Bush is not above the law.” And, Obama explicitly told The Boston Globe’s Savage that the President does not have the authority to eavesdrop outside the parameters of FISA. Yet here, too, his leading advisers — including Sunstein and Brennan — have a history of supporting Bush’s wireptapping programs. With some significant exceptions — most notably his reversal on FISA and telecom immunity earlier this year — Obama has evinced very good instincts on issues of executive power, torture, Guantanamo, the rule of law, and related matters. Merely holding him to the vows he made during the campaign will go a long way to restoring America's standing in the world and reversing many of the worst Constitutional abuses of the last eight years. But closing Guantanamo should be the first step taken, and it should be taken very quickly and decisively. It is true that merely closing Guantanamo without further reforms — particularly the abolition of the military commissions — would be woefully insufficient. As the ACLU’s Anthony Romero put it recently in an interview I did with him: Shut it down, and shut down the military commissions, because it won't be good enough if you shut down Guantanamo, and then transfer the detainees and charge them under these trials, and use the same screwed-up rules of the military commission at Fort Bragg or Fort Myers or anywhere else. You've got to shut down the existing military commissions as well.Still, though it would be a symbolic step above all else, and would by itself be inadequate, closing Guantanamo is a powerful and necessary signal to the world about the path the U.S. intends to take under an Obama administration, and it is the one most easily and most quickly effectuated. As the ACLU’s Romero put it: First day in office, George Bush passed an executive order repealing the Clinton executive order and imposes a global gag rule. So we got it; while the tool is there, I think we ought not to mistake the power of the president being able to exert that power.There are many steps which President Obama will need to take to put the U.S. back on the path of basic liberties and human rights. But closing Guantanmo — decisively and immediately — will signal to the world that he is serious about fulfilling the multiple pledges he made to restore America’s standing in the world. Tags: Close Guantanamo
Constitution Day and the Conventions: A Glaring Contrast
Presidential nominating conventions enjoy icon status in American political culture. Images of intense floor fights, protests outside convention halls, vigorous intra-party debates over policies, platforms and strategies, and occasionally even physical confrontation — as when Dan Rather was famously punched while reporting from the floor of the 1968 Democratic Convention — have all traditionally symbolized the vibrant and sometimes disorderly and tumultuous clash of ideas that fuel any healthy democracy, and in particular serve as an important reminder of the fruits of the free speech and free assembly rights which the Founders guaranteed in the First Amendment. Conventions are, at least in theory, a once-every-four-years opportunity for Americans to assemble and debate critical issues as they select the standard-bearer for their political party.
But such democratic energy and free-wheeling political debate at conventions is now confined to the distant past, part of our national lore but not our current reality. For the last two decades, political conventions have become, by design, far more akin to meticulously choreographed television spectacles than democratic venues in which political disputes are vented and resolved. Inside the convention halls, spontaneous moments, let alone unscripted expressions of unapproved viewpoints, long ago ceased to exist. Those have been replaced by campaign-approved scripts, scheduled down to the last word and second in accordance with poll-tested themes and the prime-time television schedule. During the last several nominating conventions, the areas outside the convention hall have become increasingly subject to the same degree of micro-control as events on the inside. With each convention, the physical area of extreme control expands to a larger and larger perimeter. Justified by resort to the same rationale used to suppress liberties in general — vague invocations of "security" — both political parties are now able to relegate dissent, protests and disruptions to unseen and highly controlled environments, far removed from the conventions themselves and far out of sight from delegates, political figures, and the establishment media outlets which televises the convention. Any individual or group wishing to march or otherwise protest must -- long in advance -- obtain formal permission from city officials, who now routinely demand that protests be confined to areas far away from convention halls. Federal courts have increasingly deferred to alleged "security" concerns from municipal police departments in approving city-sponsored protest routes that are so far away from the convention action that they might as well be in a different city altogether. Such routes are negotiated weeks or even months in advance in federal court proceedings between city officials, lawyers for the groups seeking to protest (often represented by the ACLU) and federal judges, who are almost uniformly sympathetic to the claim that the protesters’ First Amendments rights are fulfilled as long as they are "allowed" to assemble and protest at all, regardless of where that might be or how far removed it is from the convention (and thus how unlikely it is for their message to be heard). Courts have even regularly approved so-called "free speech zones" — glorified cages far removed from the convention halls where those with unscripted, dissident messages must remain upon pain of being immediately arrested. To describe the climate both inside and outside the convention hall as "sterile" — devoid of any traces of political passion or authentic dispute — is to understate the case. These trends have been emerging for quite some, but when it comes to dissent-suppression, the events this year at both the Democratic Convention in Denver and the GOP Convention in St. Paul exceeded what had been seen before. In Denver, the security perimeter around the Pepsi Center, where the convention took place, was so large that older and mildly infirmed delegates had great difficult making the trek. One saw very little within a mile of the Pepsi Center other than heavily-armed and uniformed federal, state and local law enforcement agents; exhausted-looking delegates passively marching in line to the convention hall; and various VIPs being chauffered around in black SUVs with government-issued license plates. Though there were large numbers of people protesting and disparate groups marching against the Democrats, it was actually difficult to find anyone doing so even if one was were deliberately seeking that out. That was how effectively any trace of dissent or disagreement had been suppressed for the entire week of the Democrats' convention. Worse, outside private parties where top Democratic Party officials mingled with their largest corporate contributors, both Denver Police and private security officials worked in tandem to ensure that no interlopers were allowed anywhere near the festivities — including credentialed journalists seeking to report on with whom America’s most powerful political officials were meeting, and for what purposes. But while Denver was sterilized, St. Paul was overtly militarized. Beginning the weekend before the GOP convention began, many private homes in the Minneapolis/St. Paul area were raided by machine-gun-wielding, inter-agency SWAT teams, who forced everyone in the targeted houses to lay on the floor in handcuffs while the homes were searched, with the agents carting off laptops, journals and political pamphlets. Lawyers and journalists who were already on the scene or sent there were handcuffed. Advocacy groups having nothing to do with any planned protests were plainly targeted for these pre-convention raids — most notably I-Witness, a group of videographers who had videotaped police action during the 2004 GOP Convention in New York and helped to compel the dismissal of many criminal charges against arrested protesters and had traveled to Minneapolis to do the same. On the Sunday evening before the convention began, downtown St. Paul resembled the Green Zone in Baghdad far more than an American city. Brigades of law enforcement officers were, by design, extremely visible in the entire area near the GOP Convention, and were flamboyantly displaying their array of weapons, marching in military formation, and chanting. The tension and intimidation levels even before the Convention began were palpable, and the results — truly extraordinary even judging by the metrics of how militarized our police forces have become — were predictable. During the week of the GOP convention, over 800 people were arrested, including many who manifestly were engaged in no violence or illegality of any kind. Dangerous weapons, including tear gas, concussion grenades, rubber bullets, and various explosive devices were shot into crowds indiscriminately. Many of those arrested were charged with felonies, including the extremely vague and previously unused "conspiracy to commit riot" charge. Some were even charged with a state statute, analogous to the federal Patriot Act, that could increase their ultimate sentence by many years. Numerous credentialed journalists were swept up in mass arrests on the street, including, most notably, Amy Goodman of Democracy Now, whose shocking arrest was videotaped as she sought to speak to a Police Supervisor regarding the arrests of two of her producers hours earlier. Associated Press and Fox News journalists eventually were swept up as well. Though the establishment media largely ignored these extreme police actions as they were unfolding, The New York Times today — weeks later — finally got around to publishing a fairly detailed account of what took place, in an article headlined "Questions Emerge Over Police Conduct in St. Paul": But questions are now emerging about the tactics that the police used to control the many rallies and marches that took place. Last Wednesday city officials appointed two former federal prosecutors to review the planning and strategies used by the police before and during the convention. . . .The climate created in St. Paul, plainly by design, was one of extreme intimidation. Whenever one was near any protests or even near the Convention hall itself, the thought constantly entered one’s mind that it was quite possible to be swept up in mass arrests or even be targeted with police force simply by virtue of one’s proximity to those events. That undoubtedly deterred many people from going anywhere near the protests, implicitly intimidating them into remaining meekly and quietly at home rather than make themselves heard. Both in Denver and particularly in St. Paul, the level of police presence — more accurately, outright militarization — was something one does not expect to find in the United States. That is true even when one is quite conscious of the increasing militarization of our cities’ police forces, as a result of the recruitment of these forces into the nation‘s "War on Drugs" and, more recently, its "War on Terror." These were police state tactics finding their purest expression. As a result, what was once one of the few living symbols of vibrant American democracy — the political convention — has now instead become a symbol of how precarious so many of our core constitutional liberties have become, how severely they have been eroded and continue to erode. There was a premium placed on extreme security measures and a clear intent to suppress as much as possible any form of true dissent, free speech or assembly. Party officials collaborated with public and private security officials to create a vast no-rights zone in or near the conventions, and that was enforced with a show of force and coercion that was as intimidating and extreme as it was blithely put into action. The fact that it is no longer news to see hundreds of people, including lawyers, journalists and peaceful protesters being tear-gassed and mass arrested on American streets, outside of political conventions, may be the most noteworthy development of all. Constitution Day is designated for the commemoration of our core constitutional liberties, but what one observed at the 2008 Conventions raises the very real question of whether what is being commemorated is nothing more than a historic relic. Tags: constitutionvoter
Is Retroactive Telecom Immunity Unconstitutional?When Congress enacted and the President signed into law the FISA Amendments Act of 2008, some of the nation's largest telecommunications companies were given an extraordinary gift: full-scale immunity from the pending lawsuits brought by their customers, who had alleged that their privacy and other rights were violated by the telecoms' participation in the Bush administration's illegal spying program. There are, however, several reasons for believing that this telecom immunity provision is unconstitutional, violative of several different constitutional guarantees. The first and, in my view, strongest constitutional objection to telecom immunity is that it constitutes a usurpation by the Congress and the President of the "judicial power" which the Constitution assigns to the judicial branch. Article III, Section 1, provides that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," while Section 2 specifies that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States." The lawsuits brought against the telecoms by their customers were brought pursuant to the Constitution and the laws of the United States, as those suits allege that the telecoms violated both the constitutional rights of their customers and federal law. Thus, adjudication and resolution of those lawsuits are the definitive "judicial powers" which the Constitution assigns to courts, not Congress or the President. When immunizing the telecoms, Congress was not enacting a broad, generalized policy that falls into the scope of the "legislative power" constitutionally assigned to Congress by Article I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States"). Rather, what Congress was doing was deliberately intervening into pending lawsuits in order to resolve factual and legal issues in favor of one of the parties -- the telecom-defendants. Indeed, the chief Congressional advocate of telecom immunity, Senate Intelligence Committee Chairman Jay Rockefeller, repeatedly stated that he favored telecom immunity because, in his views, the telecoms had acted "in good faith" when cooperating with the Bush administration's requests to enable illegal spying. And the formal Report of Rockefeller's Committee repeatedly emphasized, when justifying its support for immunity, its belief that telecoms acted in "good faith" -- a finding they reached by examining precisely the evidence and other documents that the court (or a jury) would have examined in order to resolve the telecom cases:
But whether telecoms acted "in good faith" was precisely one of the key factual questions that would have been adjudicated in the telecom lawsuits. The 1978 FISA law already provided that telecoms would be immunized from liability if they acted in the "good faith" belief that what they were doing was legal (see 18 U.S.C. 2520(d)). Thus, the very issue which Sen. Rockefeller and the Congress generally purported to resolve when enacting telecom immunity -- namely, whether the telecoms acted "in good faith" by cooperating with the Bush administration's spying program -- was to be resolved by the court as part of the telecom lawsuits. If anything qualifies as a "judicial power," it is the resolution of those sorts of factual disputes that exist between adverse parties in a lawsuit by examining the relevant evidence. By purporting to resolve that question in favor of the telecom defendants, and by preventing the court from doing so, the Congress usurped a definitive "judicial power" that is reserved by the Constitution for the courts. Congress has simply denied the courts their central, constitutionally assigned role. A related ground for challenging the constitutionality of retroactive telecom immunity is a straightforward "Due Process" challenge under the Fifth Amendment, which provides that no citizen shall "be deprived of life, liberty, or property, without due process of law." Telecom customers who had their private communications turned over to the Government in violation of the law have clearly been deprived of property -- the right to sue telecoms -- without a smidgen of legal process. Instead, Congress has simply intervened in the lawsuit and ruled that the defendants are right and the plaintiffs are wrong. The Electronic Frontier Foundation's Cindy Cohn, counsel to plaintiffs in the telecom cases, said: "our clients have the constitutional right to have their cases decided in a court, not by Congress." Congressional intervention in pending lawsuits for the purpose of deciding the dispute in favor of one of the parties seems clearly to be the sort of denial of property without due process of law that the Fifth Amendment was designed to prohibit. Independently, it is worth noting here that several of the claims asserted by the plaintiffs in the telecom cases are constitutional in nature -- that telecoms have enabled violations of the Fourth Amendment and other constitutional rights of their customers. It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations. For this reason, Congress lacks the authority to enact statutes to deny remedies for constitutional violations. At the very least, the telecom immunity provisions should be held inapplicable to foreclose the plaintiffs' constitutional claims. There are, as well, substantial due process problems with the extraordinary secrecy provisions in the FISA Amendments Act. Section 802(c) of the telecom amnesty section actually provides that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal. So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. It is impossible to understand how such secret Star Chamber proceedings can be reconciled with basic precepts of due process. EFF's Cohn said: "Our clients have the right to know why their cases are being dismissed and what the rationale is for the dismissal." A further potential constitutional infirmity with telecom immunity is that it constitutes a "taking" without "just compensation" in violation of the Fifth Amendment. When they commenced their lawsuits against their telecom carries, the plaintiffs possessed something of clear value: namely, the right to sue under FISA and other laws for privacy violations and illegal spying. By retroactively removing those rights, the FISA Amendments Act have, in essence, deprived those plaintiffs of something of tangible value, a government "taking" which the Fifth Amendment allows only in exchange for "just compensation." The legal rationale and precedental support for this argument was comprehensively set forth in a Findlaw article by Professor Anthony Sebok at the Benjamin N. Cardozo School of Law. Professor Sebok points out that in other instances where the Congress sought to deprive citizens of existing legal rights -- such as when Congress sought to deprive 9/11 victims of the right to sue airlines and World Trade Center owners -- Congress provided an alternative form of relief to constitute "just compensation" (in the case of the 9/11 attacks, it created the 9/11 Victims Compensation Fund in lieu of being able to sue in court). As Professor Sebok reasoned: In fact, throughout the recent history of federal responses to various liability crises, the pattern has been the same: The elimination of causes of action has always been linked to some kind of quid pro quo, whether it took the form of a guaranteed payment, such as for the 9/11 victims' families, or access to a special court, such as in the case of childhood vaccines. . . . It has been widely assumed since enactment of the FISA Amendments Act of 2008 that dismissal of the telecom lawsuits is a fait accompli. But the ACLU and EFF intend to contend that the telecom immunity provisions of the Act are unconstitutional, and there are numerous grounds that enable a persuasive case to be made. This is a battle, both legally and politically, that is far from over. Tags: fisa
Glenn Greenwald: Growing Responsibility for the Bush Torture RegimeBy Glenn Greenwald, Salon.com Recent ACLU-compelled disclosures of previously concealed DOJ documents reveal many of the details of what has been long known: that the highest levels of the Bush administration secretly implemented an illegal torture regime. But while those torture programs began in secret, we have gradually learned more and more about them. The more time that goes by and the more we learn — particularly if we do nothing meaningful to stop it — the more the responsibility for these policies shifts from the administration to all of us collectively.
While there is much rhetorical protest over these torture programs in the halls of Congress and in our elite media institutions, there has been little real action in response. Indeed, it has long been known that we are torturing, holding detainees in secret prisons beyond the reach of law and civilization, sending detainees to the worst human rights abusers to be tortured, and subjecting them ourselves to all sorts of treatment which both our own laws and the treaties to which we are a party plainly prohibit. None of this is new. But our elite political institutions have decided, collectively, to do nothing about that. Quite the contrary, with regard to many of the revelations of abuse, our elected representatives — with some noble exceptions — have chosen to remain largely in the dark about what was done. When forced by court rulings or media revelations to act at all, they have endorsed and legalized this behavior — not investigated, outlawed or punished it. A 2006 ruling by the Supreme Court in Hamdan that the President's interrogation and detention policies violated the law led Congress, on a largely bipartisan basis, to enact The Military Commissions Act to legalize those policies. That enabling behavior followed a familiar pattern with other abuses: for instance, revelations that the President and telecom companies were breaking our surveillance laws led to the legalization of much of that program with the Protect America Act, and may soon lead to amnesty for the lawbreakers. With regard to all of the most severe acts of illegality, no criminal prosecutions have been commenced and no truly meaningful Congressional investigations have been pursued. Whether it's the war in Iraq or illegal surveillance or the abolition of habeas corpus and now the systematic use of torture, it's the Bush administration that conceived of the policies, implemented them and presided over their corrupt application. But it's Congressional leaders who were the key allies and enablers, never getting their hands dirty with implementation — and thus feigning theatrical, impotent outrage once each abuse was publicly exposed — but nonetheless working feverishly the entire time to enable all of it every step of the way. It is vital to emphasize here that these matters are not obsolete matters of the distant past — something we can all agree to leave behind in the spirit of harmoniously moving forward. The torture, detention and surveillance policies in question are still the formal and official position of our government — and thus can be applied with far greater vigor
not merely in the event of a new terrorist attack, but at any time. An October, 2007 New York Times article reported on the new disclosure of a 2005 memorandum authorizing various torture techniques and emphasized: [T]he 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.Although Democratic leaders in Congress have often issued dramatic statements condemning torture, there is ample evidence that many of them were aware of these programs long before the public was, and did nothing. In December, 2007, The Washington Post reported that the Bush administration, beginning in 2002, repeatedly briefed leading Congressional Democrats on the Senate and House Intelligence Committees — including, at various times, Jay Rockefeller, Nancy Pelosi, and Jane Harman — regarding the CIA's "enhanced interrogation methods," including details about water-boarding and other torture measures. With one exception (Harman, who vaguely claims to have sent a letter to the CIA), these lawmakers not only failed to object to these policies, but affirmatively supported them. Those political officials who were in a position to put a stop to these abuses but failed to do so have the greatest responsibility to take meaningful action now. And there are some mildly promising signs, including the testimony which House members have been seeking from John Yoo, David Addington and others as to the specifics of how this torture regime was implemented. But that must be but the first step, not merely a symbolic palliative to those demanding action. It isn't surprising or particularly revealing that there were not immediate consequences for these revelations. Our political system, by design, works slowly and methodically. The Founders purposely imposed significant hurdles to undertaking the most significant steps (such as criminal investigations of high Executive officials or impeachment) precisely to ensure that such actions were taken deliberatively, not impetuously. It took two-and-a-half years for the much simpler Watergate scandal to lead to what would have been the impeachment of Richard Nixon. The failure to impose immediate or even rapid consequences, while frustrating to many, would not really be a cause for legitimate complaint. But when it comes to Bush's torture policies and other examples of extremism and lawlessness, we're not imposing consequences slowly. We're not really imposing consequences at all. Quite the contrary, we've been moving in the opposite direction — when we're not affirmatively endorsing and providing protection for that conduct, we're choosing not to know about it, or simply allowing it to fester. And the more that happens, the less that behavior becomes the exclusive province of the Bush administration and the more it becomes our country's defining behavior. This could — and should — still all be reversed. The Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework. We always possess the choice — still — to take a stand for the rule of law and our basic national values, but with every new day that we choose not to, those Bush policies become increasingly normalized, increasingly the symbol not only of "the Bush administration" but of America. |
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