Tag: glenn greenwald

Obama Administration Wins in State Secrets Case

A split panel of the 9th Circuit Court of Appeals decided, on a 6-5 vote, that a lawsuit filed by extraordinary rendition and torture victims is barred by the State Secrets Privilege. Over a year ago, a three-judge panel ruled that the case should proceed with traditional application of the Privilege — individual pieces of evidence would be excluded based on their secret nature, but other evidence would remain available for litigation.

Robert Chesney has some thoughtful commentary on how the current state of the law deals with rule of law versus individual justice concerns. By any measure this is, as Glenn Greenwald notes, a broad victory for the government and further evidence of continuity between the Bush and Obama administrations’ approaches to terrorism.

Cato Unbound: The Digital Surveillance State

In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.

But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?

Constitutional lawyer and columnist Glenn Greenwald argues in this month’s Cato Unbound that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger.

Commenting on Greenwald’s essay will be Professor John Eastman, of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties. Please stop by through the rest of this month for a discussion of one of our country’s most pressing issues in both civil liberties and national security.

Obama, Civil Liberties, & the Left

A confession: For all my innumerable policy disagreements with Barack Obama, on election night 2008, I found myself cheering with the rest of the throng on U Street. I fully expected to be appalled by much of his agenda – but I had also spent years covering the Bush administration’s relentless arrogation of power to the executive in the name of the War on Terror, its glib invocation of “national security” to squelch the least gesture toward transparency or accountability, its easy contempt for civil liberties and the rule of law. However fitfully, I thought, we could finally hope to see that appalling legacy reversed. And that seemed worth celebrating even if little else about the declared Obama agenda was.

As you might guess, I had a lot of disappointment coming – and not just with Obama.  There were, of course, principled civil libertarians on the left, like Salon’s Glenn Greenwald and Firedoglake’s Marcy Wheeler who kept banging the drum with undiminished fury. But many progressives seemed prepared to assume that Bush’s War-on-Terror policies would be out the door close on the heels of their author – conspicuously muting their outrage even as the reasons for it persisted. Meanwhile, the right – disappointingly if not entirely surprisingly – managed to fuse a penchant for breathless Stalin analogies with an attitude toward expansive surveillance powers and arbitrary detention authority that ranged from indifference to endorsement.

So it’s a little encouraging to see evidence over the last few weeks that burgeoning progressive disenchantment with Obama along a number of dimensions seems to be bringing these issues back into sharper focus. In a recent interview in Der Spiegel, Daniel Ellsberg of Pentagon Papers fame (described by the paper as a “lefty icon”) blasted Obama for “continuing the worst of the Bush administration in terms of civil liberties.” ACLU director Anthony Romero declared himself “disgusted” with the president, and Kevin Drum of Mother Jones catalogued a slew of reasons to agree with that appraisal. The real test of an issue’s salience, however, is whether it makes The Daily Show, and so perhaps the most significant bellwether is Jon Stewart’s decision to devote an unusually long and blistering segment to Obama’s failure to live up to his rhetoric on civil liberties and executive power:

The Daily Show With Jon Stewart Mon - Thurs 11p / 10c
Respect My Authoritah
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

Democrats have spent most of the past decade playing defense against “soft on national security” attacks from the right, on the assumption – borne out thus far – that the base wasn’t going to punish them for folding on civil liberties issues. But while many progressive complaints now being aired are themselves the product of an unrealistic view of presidential puissance, this really is one sphere where the president has enormous latitude to unilaterally affect policy. It’s therefore also a set of issues where scant progress can’t easily be blamed on Republican obstructionism.

During the Bush era, we saw the brief emergence of a small but hardy left-right “strange bedfellows” coalition opposed to the FISA Amendments Act. Now I find myself wondering: If progressive grumblings on this front continue and grow louder, will the Tea Party movement that’s sprung up in the intervening years realize that their own rhetoric logically commits them to the same position? And if they do, will civil libertarians on the left be open to resurrecting that odd alliance?

War and the Intellectuals

Apologies in advance for the epic-length post.

There’s been a fair bit of wailing and garment-rending about war on the op-ed pages.  In addition to the cloying and tiresome Mark Helprin piece to which David links below, E.J. Dionne, Glenn Greenwald, and Fred Hiatt have all touched on the subject in recent days.  One common theme is the idea that Americans are insulated from the costs and benefits of war, and that this is a problem.

To their credit, some of the writers offer proposals for redressing matters: Helprin suggests American citizens should force congressional declarations of war characterized by “extraordinary, penetrating debate” in order to ensure that decisions to go to war have been “ratified unambiguously by the American people through their constitutional and republican institutions.”  (Do we also owe the troops good decisions?)  Further, citizens must recognize that it is “unacceptable” to “starve the means to fight” in order to defray the costs of war.  “If the general population  must do with less, so be it, for the problem is only imagined.”

What planet does Helprin live on?  The ways in which citizens and legislators behave when it comes to war are shaped by the incentives each group faces.  Helprin – and the other writers – should try to think about those incentives if they actually care about solving these problems.

Why, for example, has the U.S. Congress, since its last declaration of war (against Romania during World War II), insisted on “delegating” the prerogative to go to war to the Executive in spite of its clear obligation under the U.S. Constitution?  Because it’s in their interests to do so.  In this way, Congresspeople can position themselves to take credit when wars go well but blame the Executive when they go badly.  The requirement that Congress declare war was designed in part to force the hand of the legislator, to put him on the record, in an effort to localize the costs and benefits of wars on those launching them.  But then Congress ingeniously figured out that it could shirk this responsibility by delegating authority up to the Executive, at which point it could claim credit for victories and point fingers after defeats.  (Recall the Democratic legislators who absurdly claimed of the Iraq war resolution that they didn’t think President Bush actually intended to use the congressional resolution to take the country to war…)

And what about the voters?  Greenwald writes that

One significant cause of America’s indifference to the wars we are waging is that those wars have virtually no effect on the overwhelming majority of Americans (at least no recognized effect), while they impose a huge cost on a tiny sliver of the population:  those who fight the wars and their families.

Rational choice theory has taken a beating in the wake of the financial meltdown, but it would be dumb to throw its central insights.  Helprin, Hiatt, Dionne, et al, should think about the views of a notional Rational Voter.  Why should he or she care enough about America’s wars to do something about them?

I care about U.S. foreign policy a lot, and I think it’s deeply mistaken and destructive.  But even I would have a hard time telling most utility-maximizing Americans why they should care enough about our military spending and our wars – rather than other political issues – to mobilize their elected officials to do something about them.  As the Beloved Founder of one of America’s most vital institutions has been known to remark, the U.S. tax code “treats us like so many gerbils. Do this and you’ll get some sugar water. Do that and you’ll get an electric shock.”

And it turns out people really like sugar water and hate electric shocks!  If you want a voter to respond, either zap him or give him a coke.  (Politicians seem to prefer the latter, as do voters.)  For most voters, the implications of the wars are neither refreshing and delicious nor directly painful.  Given this, how could war and peace possibly become as salient as other policies that directly impact people’s lives on a daily basis?  Unemployed?  Have a mortgage?  Taxes too high?  Poised to collect Social Security or Medicare?  Employed in or consuming health care or financial services?  Can the intellectuals above get their rhetoric cranked up high enough that they can make people put aside these sorts of direct material concerns in order to carry on a sustained and probing debate about foreign wars?

As this discussion demonstrates, the problem for non-interventionists is how to get voters to care enough about America’s crazy foreign policy to stop it.  Keep in mind that it’s unlikely that material constraints will force us to rein in our ambitions any time soon.  America is blessed by geography and an economy that seems impossible to defeat, despite our rulers’ best efforts.  Given the unlikelihood of severe costs like conquest or bankruptcy, in all likelihood the American Goliath will keep lumbering along.  And the pundits will keep carping.

Citizen Shahzad

Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad.  First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights.  In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.

Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:

“Did they Mirandize him? I know he’s an American citizen but still,” King said.

Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.

From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups.  The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group?   As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime.  If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”

Free Speech in Canada

Free speech isn’t exactly free in Canada, and even Glenn Greenwald and Mark Steyn agree on this point. When conservative commentator Ann Coulter (who can be uncivil, but shouldn’t be muzzled by the state for it) tried to give a speech at the University of Ottawa, she was warned by the political correctness police not to hurt anyone’s feelings:

I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.

You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind… .

So much for inalienable rights.

Steyn highlights the view of the lead investigator of Canada’s “Human Rights” Commission: “Freedom of speech is an American concept, so I don’t give it any value.”

I would offer a rebuke, but Ezra Levant has done it better than I ever could. Crank your volume up, sit back, and enjoy: