Topic: Law and Civil Liberties

Turning Our Back on Torture

NRO’s Rich Lowry just weighed in on the torture debate with some false assumptions and already-debunked assertions. He says that the Obama administration turned its back on “life-saving intelligence-gathering” techniques.

In point of fact, the United States turned its back on “Enhanced Interrogation Techniques” (EIT’s) a long time ago. American soldiers used waterboarding to gain intelligence in the Philippines occupation immediately after the Spanish-American War. The response? President Roosevelt, who led the Rough Riders up San Juan Hill, demanded that the soldiers employing the “water cure” be prosecuted. American soldiers who employed waterboarding in Vietnam were likewise court-martialed. A previous post at NRO’s The Corner makes this clear.

The bottom line? The Geneva Conventions apply to the modern battlefield, asymmetric or not. The Supreme Court said so in 2006, so a new memorandum from the OLC finding that the Geneva Conventions do not apply is out of the question. Re-authorizing EIT’s is a legal impossibility. While the Right tries to argue their efficacy in a partisan fight to prevent prosecution, this is an argument limited to a political rehabilitation, not a legal one.

Lowry also exaggerates the importance of corroborating information that Khalid Shaykh Mohammed (KSM) gave under EIT duress:

According to the IG report, KSM’s cooperation led to the arrest of a truck driver in the U.S. named Iyman Faris who was plotting attacks on New York landmarks; of a sleeper operative in New York named Saleh Almari; of an operative named Majid Khan who had easy entree into the U.S.; and of two Pakistani businessmen whom KSM “planned to use to smuggle explosives into the United States.”

“Saleh Almari” appears to be Ali Saleh Kahlah al-Marri. I’ve written extensively about al-Marri, who was apprehended in December, 2001, long before KSM was in custody. Here is the indictment.

As Peter Bergen points out, Iyman Faris won’t make the terrorist all-star list any time soon. “In 2002 he researched the feasibility of bringing down the Brooklyn Bridge by using a blowtorch, an enterprise akin to demolishing the Empire State Building with a firecracker.”

Bergen also sheds some light on the collars of Majid Khan and the Parachas (the “two Pakistani businessmen”):

The Parachas are a father-and-son team; the former, arrested in Thailand in the summer of 2003, is being held at Guantánamo and has yet to face trial, while his son was convicted in 2005 of providing “material support” to al Qaeda.

Majid Khan was arrested in Pakistan only four days after KSM was captured, suggesting that this lead came not from interrogations but from KSM’s computers and cell phones that were picked up when he was captured.

The only valid criticism that Lowry levels is with regard to the limitation of the new High-Value Detainee Interrogation Task Force, but not in the way you might think. While limiting interrogations to the techniques in the Army Field Manual keeps brutality off the table, certain law enforcement techniques such as the Prisoner’s Dilemma are valid and ought to be used. Terrorist networks are more like crime syndicates than an infantry battalion in organization; if promises of reduced sentences can get terrorists to talk about their comrades then by all means use them.

Hillary: The Movie

The Supreme Court is soon to hear a case that may drastically roll back campaign finance regulation in the United States:

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

The right position for the Court is that McCain-Feingold, and all other campaign finance regulation, constitutes unconstitutional limitation on free speech. This means reversing the Court’s 1974 Buckley v. Valeo decision, which held that government limits on campaign spending were unconstitutional but limits on contributions were not.

This distinction is meaningless. If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire’s views, so that this other person can run for office?

More broadly, campaign finance regulation is thought control: it takes a position on whether money should influence political outcomes. Whether or not one agrees, this is only one possible view, and freedom of speech is meant to prevent government from promoting or discouraging particular points of view.

It would be a brave step for Court to reverse Buckley, but it is the right thing to do.

For more background on the case, watch this:

C/P Libertarianism, from A to Z

Anti-Sex School for Johns?

In a novel approach to punishing men who attempt to hire prostitutes, Nashville and other cities are sending first-time offenders to a one-day class where they learn from former prostitutes, health experts, psychologists and law enforcement officers about “the risks of hiring a prostitute.”

This is a waste of time.

Prostitution is “the oldest profession” for a reason: sex is a biological imperative. A day of anti-sex school will have no effect on the demand for prostitution.

The better approach is to legalize.

Under legalization, the vast majority of men would patronize legal establishments. This would also allow quality control, since competition would encourage prostitution services to certify their employees as free from STDs and above the age of consent. Legalization would help the women who serve as prostitutes by reducing the violence they suffer from johns and pimps. In particular, legalization would mainly eliminate forced prostitution.

The claim that prostitution encourages sexual assault does not pass the sniff test. Many countries, plus Nevada and Rhode Island, allow legal prostitution to varying degrees, but no evidence suggests they have a higher incidence of violence toward women.

C/P Libertarianism, from A to Z

Why Is Marijuana Still Illegal?

According to Rasmussen Reports, a majority of Americans believe that alcohol is more dangerous than marijuana:

Pot or not, that is the question.

Fifty-one percent (51%) of American adults say alcohol is more dangerous than marijuana, according to a new Rasmussen Reports national telephone survey. Just 19% disagree and say pot is worse.

But 25% say both are equally dangerous. Just two percent (2%) say neither is dangerous.

Younger adults are more likely than their elders to view alcohol as the more dangerous of the two.

Fifty-three percent (53%) of women say alcohol is more dangerous than marijuana, compared to 48% of men. Men by a two-to-one margin over women say pot is riskier, but women are more inclined to say both are dangerous.

Unmarried adults are more critical of alcohol than those who are married. Those with children at home think alcohol is more dangerous than those without kids living with them.

So why are pot users still being tossed into jail?

There are lots of good reasons why people shouldn’t use drugs.  But making drug use illegal only compounds the social consequences, turning a moral and health problem into a legal and criminal problem.  The result is the worst of both worlds:  all of the problems of drug use plus all of the problems of prohibition.  Unfortunately, those consequences flow overseas, further undermining fragile societies such as Afghanistan, Colombia, and Mexico and ultimately American security objectives as well.

It’s time to call off the Drug War.

Costa Rican President Calls for New Constitution

President Oscar Arias of Costa Rica has joined the trend in Latin America of calling for a new constitution that would expand executive powers and get rid of “unnecessary checks” on the president’s authority. Although Arias has less than 9 months left in office and can’t run for reelection, his brother and current minister of the presidency — a primer minister of sorts — has openly said he’s interested in running for president in 2014. A new constitution with expanded executive powers would fit him just fine.

Arias’ call has been received with broad skepticism. La Nación, Costa Rica’s leading newspaper, said that trying to make the government more efficient through a constitutional convention was like “killing a mouse with cannon fire.” The newspaper also said that the idea of dismantling the checks and balances on executive power sounds like an effort to create an “imperial presidency.” Maybe we should send our colleague Gene Healy to study the case.

However, the most disturbing aspect of Arias’ call was his harsh criticism of the media. Borrowing from the script of Rafael Correa in Ecuador and Hugo Chávez in Venezuela, Arias described news outlets as “corporations interested in making a profit” that don’t necessarily pursue the “public good.” He asked the media to “tone down” its criticism of government officials, and said that journalists “should understand their role within a higher framework.” He complained that news outlets claim to represent the public interest, without any control or accountability.

That a politician with a thin skin complains about media criticism is hardly news. However, the fact that Arias did it while calling for a new constitution that would change the institutional and legal framework of Costa Rica (including the role of the media) should be interpreted as a threat to freedom of the press.

Most people outside Costa Rica see Arias as an accomplished democrat who won the Nobel Peace Prize for his efforts to bring peace to Central America during the 1980s. Most recently he attempted to mediate the conflict in Honduras after Manuel Zelaya was (legally) removed from office. However, many people in Costa Rica fret about what they perceive as an increasingly controlling style of governing by Arias and his brother, intimidating the media, bullying the opposition, crowding key government posts with allies and cronies, and now hoping for a dynastical succession in 2014.

Fresh OLC Memos

The Justice Department just released some more Office of Legal Counsel memoranda. As you may already know, these legal interpretations facilitated the worst of the Bush administration’s approach toward terrorism — forget the lawful tools that we have on hand; let’s craft a whole new legal regime that tosses out barriers to executive authority and upends the rule of law. Posse Comitatus and the First Amendment got you down? No problem. Non-Detention Act preventing you from detaining American citizens as enemy combatants? Whatever. Geneva Conventions, War Crimes Act, and Convention Against Torture barring coercive interrogation? Crank it to eleven.

Jack Balkin has a good summary with some highlights. On Iraq:

On October 21st, 2002, five days after Congress authorization of the use of military force against Iraq, John Yoo explains why it was legally irrelevant that Congress authorized the Iraq War, noting that the President could have attacked Iraq without anyone’s permission. Delightfully, Yoo cites President Clinton’s use of force in Bosnia, which Yoo himself had questioned when the Republicans were out of power. But perhaps being in power gave him a different perspective.

Yoo sums up his argument this way: “There is no expression in the Constitution of any requirement that the President seek authorization from Congress prior to using military force. There is certainly nothing in the text of the Constitution that explicitly requires Congress to consent before the President may exercise his authority as Chief Executive and Commander in Chief to command U.S. military forces.” I’m glad we straightened that out.

This should not be surprising. The same claim of unitary executive authority was bandied about in the run-up to the Gulf War. Guess who said this:

It was my view at the time [that] we were absolutely committed to getting Saddam Hussein out of Kuwait one way or the other, no matter what we had to do. We had to have the Saudis as allies in that venture, but if no-one else had been with us if it had just been the United States and Saudi Arabia, without the United Nations, without the authorisation of the Congress, we were prepared to go ahead. I argued in public session before the Congress that we did not need Congressional authorisation. That in fact we had the Truman precedent from the Korean crisis of 1950 that the Senate and all ratified the United Nations charter. By this time the UN Security Council had authorised the use of force back in November saying that we could do it by January 15th if he wasn’t out by then and that legally and from a constitutional stand point we had all the authority we needed.

I was not enthusiastic about going to Congress to ask for an additional grant of authority.

The Founders made an inherently inefficient form of government as a check against arbitrary use of the power of the state. The President doesn’t declare war, Congress does. When we allow the government to write itself a waiver to constitutional limitations that are part and parcel of its contract with the people, it’s time for the people to let the government know who the boss is in this employer-employee relationship.

Timothy Lee’s idea is looking better all the time.