Topic: Law and Civil Liberties

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.

Enhanced Justification Techniques

Over the last few days the right has been trying to rehabilitate the use of “enhanced interrogation techniques” on detainees, claiming that the ends justified the means. For a sample, click here, here, here, and here.

Don’t be fooled by these “enhanced justification techniques.” (H/T NonSequitur, who coined the term in response to Charles Krauthammer’s justifications for torture, something I have also fisked)

Peter Bergen breaks down the facts and chronology of what information we gleaned from Abu Zubaydah and Khalid Sheikh Mohammed (KSM) over at Foreign Policy.

Most interesting tidbit:

The CIA inspector general’s report on al Qaeda detainees also concluded that based on a review of KSM’s plots aimed at the United States, it “did not uncover any evidence that these plots were imminent,” but it did find that KSM “provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen who Khalid Shaykh Muhammad planned to use to smuggle explosives into the United States; Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks [redacted]. Khalid Shaykh Muhammad’s information also led to the investigation and prosecution of Iyman Faris, the truck driver arrested in early 2003 in Ohio.”

The man identified by the CIA inspector general as “Saleh Almari, a sleeper operative in New York” who KSM supposedly gave up to his interrogator appears, in fact, to be Ali Saleh Kahlah al-Marri, who was arrested on Dec. 12, 2001, in Peoria, Ill., a year and a half before KSM was captured.

I’ve written extensively about al-Marri, an Al Qaeda sleeper agent that the FBI picked up shortly after September 11, 2001. His arrest had nothing to do with KSM’s statements. This was FBI agents doing police work like we would hope they do. His indictment for credit card fraud and lying to federal agents may not be prosecution for conducting a terrorist attack, but that’s okay — if you can bust him on something else before he blows up a building, then it’s a win all around. Terrorism inherently breaks laws, and prosecuting aspiring terrorists for those crimes neutralizes them.

As former FBI counterterrorism agent Mike German says:

As an FBI agent my counterterrorism investigations never resulted in anyone being charged with terrorism. The terrorists I arrested were charged with specific criminal offenses; possessing and transferring illegal firearms and explosive devices, illegally using firearms and destructive devices, conspiring to use illegal firearms and destructive devices, and conspiring to violate civil rights. Terrorists use these crimes to accomplish their political goals. Once I had evidence of their illegal activities, I could bring charges against them. Certainly the motive behind their conduct came into play to prove they had the requisite criminal intent, but the laws I enforced had absolutely nothing to do with the terrorists’ ideology.

Al-Marri’s criminal prosecution should have been a success story that shows how law enforcement plays a critical role in counterterrorism. Instead, the Bush administration used him as justification for domestic military detention of suspected terrorists, a practice that it claimed would be lawful in the case of an American citizen apprehended on the streets of Anytown, U.S.A.

The rest of the information gained from KSM also fails to justify the blowback from exceeding the lawful limits of interrogation:

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.

Of the terrorists, alleged and otherwise, cited by the CIA inspector general as being fingered by KSM during his coercive interrogations, only Ohio truck driver Iyman Faris was an actual al Qaeda foot soldier living in the United States who had serious intention to wreak havoc. However, he was not much of a competent terrorist: 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 does a good job of putting torture in context and how little utility it actually had. Read the whole thing.

We Need a New Church Committee

The Church Committee was a post-Watergate congressional committee that investigated allegations of lawbreaking by the executive branch, including the CIA and FBI. The committee’s report was incredibly important in helping the public understand the depth and breadth of Cold War lawlessness during the previous three decades. When Cato asked me to pen the chapter on electronic surveillance in this year’s edition of the Cato Handbook on Policy, I included a recommendation that Congress should launch a modern-day successor to the Church Committee.

In the last few months, I’ve been pleased to see that people smarter than me have been having the same idea. The latest is the Nation’s Chris Hayes, who has a great cover story calling on Congress to launch a wide-ranging investigation of executive branch lawbreaking.

We have lots of evidence that members of the Bush administration broke laws related to torture, wiretapping, and the Patriot Act. But because these reports are based on press reports and heavily-redacted Freedom of Information Act requests, we don’t know the full nature and extent of these crimes. Given that Barack Obama has fallen short of the transparency pledges he made during the campaign, Congress is likely the only institution in the United States with the resources and the political clout to produce a complete accounting of the civil liberties abuses of the last three decades.

I think the most important point Chris makes is this one:

Since the committee began in the wake of Nixon’s resignation and revelations about his deceptions, abuses and sociopathic pursuit of grudges, Church and many Democrats had every reason to believe they would be chiefly unmasking the full depths of Nixon’s perfidy. Quickly, however, it became clear that Nixon was a difference in degree rather than a difference in kind. Kennedy and Johnson had, with J. Edgar Hoover, put in place many of the illegal policies and programs. Secret documents obtained by the committee even revealed that the sainted FDR had ordered IRS audits of his political enemies. Republicans on the committee, then, had as much incentive to dig up the truth as did their Democratic counterparts.

As historian Kathy Olmsted argues in her book Challenging the Secret Government, Church was never quite able to part with this conception of good Democrats/bad Republicans. Confronted with misdeeds under Kennedy and Johnson, he chose to view the CIA as a rogue agency, as opposed to one executing the president’s wishes. This characterization became the fulcrum of debate within the committee. At one point Church referred to the CIA as a “rogue elephant,” causing a media firestorm. But the final committee report shows that to the degree the agency and other parts of the secret government were operating with limited control from the White House, it was by design. Walter Mondale came around to the view that the problem wasn’t the agencies themselves but the accretion of secret executive power: “the grant of powers to the CIA and to these other agencies,” he said during a committee hearing, “is, above all, a grant of power to the president.”

A contemporary Church Committee would do well to follow Mondale’s approach and not Church’s. It must comprehensively evaluate the secret government, its activities and its relationship to Congress stretching back through several decades of Democratic and Republican administrations. Such a broad scope would insulate the committee from charges that it was simply pursuing a partisan vendetta against a discredited Republican administration, but it is also necessary to understand the systemic problems and necessary reforms.

This is a case where political expedience and justice point in the same direction. A thorough investigation will undoubtedly uncover numerous examples of abuses of power under the Bush administration. But Bill Clinton was hardly a civil libertarian himself. Thoroughly investigating abuses of power under Clinton (and under Reagan and Bush I) will serve two important purposes. First, of course, it will help to deflect spurious charges that the investigation is a partisan witchhunt. But more importantly, it will likely underscore the point that abuses of power are a bipartisan phenomenon. The problem is not just that George W. Bush was too secretive or power-hungry (although of course he was). The problem is that presidents are almost always secretive and power-hungry, and our system of government needs better checks and balances to ensure that presidential attempts to evade accountability do not succeed. The abuses of the Bush/Cheney years may provide the political momentum we need to fix the problem. But the problem is bigger than any one administration.

Argentina Decriminalizes Personal Drug Consumption

Following in Mexico’s footsteps last week, the Supreme Court of Argentina has unanimously ruled today on decriminalizing the possession of drugs for personal consumption.

For those who might be concerned with the idea of an “activist judiciary,” the Court’s decision was based on a case brought by a 19 year-old who was arrested in the street for possession of two grams of marijuana. He was convicted and sentenced to a month and a half in prison, but challenged the constitutionality of the drug law based on Article 19 of the Argentine Constitution:

The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.

Today, the Supreme Court ruled that personal drug consumption is covered by that privacy clause stipulated in Article 19 of the Constitution since it doesn’t affect third parties. Questions still remain, though, on the extent of the ruling. However, the government of President Cristina Fernández has fully endorsed the Court’s decision and has vowed to promptly submit a bill to Congress that would define the details of the decriminalization policies.

According to some reports, Brazil and Ecuador are considering similar steps. They would be wise to follow suit.

Kristof on the Drug War

New York Times columnist Nicholas Kristof cites the Cato report about Decriminalization of Drugs in Portugal by Glenn Greenwald.  Here’s an excerpt:

Above all, it’s time for a rethink of our drug policy. The point is not to surrender to narcotics, but to learn from our approach to both tobacco and alcohol. Over time, we have developed public health strategies that have been quite successful in reducing the harm from smoking and drinking.

If we want to try a public health approach to drugs, we could learn from Portugal. In 2001, it decriminalized the possession of all drugs for personal use. Ordinary drug users can still be required to participate in a treatment program, but they are no longer dispatched to jail.

“Decriminalization has had no adverse effect on drug usage rates in Portugal,” notes a report this year from the Cato Institute. It notes that drug use appears to be lower in Portugal than in most other European countries, and that Portuguese public opinion is strongly behind this approach.

A new United Nations study, World Drug Report 2009, commends the Portuguese experiment and urges countries to continue to pursue traffickers while largely avoiding imprisoning users. Instead, it suggests that users, particularly addicts, should get treatment.

Senator Webb has introduced legislation that would create a national commission to investigate criminal justice issues — for such a commission may be the best way to depoliticize the issue and give feckless politicians the cover they need to institute changes.

Good stuff.  Read the whole thing.

“If You’re Not Having Fun Advocating for Freedom, You’re Doing it Wrong!”

The health care debate has catalyzed a wonderful national clash of cultures centering on freedom versus control. Here’s one example that’s both complex and delightful.

Progressive site TalkingPointsMemo ran a story yesterday about a man named “Chris” who carried a rifle outside an event in Phoenix at which President Obama appeared. “We will forcefully resist people imposing their will on us through the strength of the majority with a vote,” Chris said.

To many TPM readers, this kind of thing is self-evidently shocking and wrong: Carrying a weapon is inherently threatening, Second Amendment notwithstanding. And vowing to resist the properly expressed will of the majority—isn’t that an outrageous denial of our democratic values?

Well, … No. Our constitution specifically denies force to democratic outcomes that impinge on freedom of speech and religion, on bearing arms, and on the security of our persons, houses, papers, and effects, to name a few. Our constitution also tightly circumscribed the powers of the federal government. Those restrictions were breached without abiding the supermajority requirements of Article V, alas.

There are many nuances in this clash of cultures, and it’s fascinating to watch the battle for credibility. One ugly issue is preempted rather handily by the fact that Chris is African-American.

Next question, taken up by CNN: Was the interview staged? Hell, yeah! says Chris’ interviewer. And they know each other—big deal.

Finally, they were laughing and having a good time. Isn’t this serious? Yes, it is serious, says Chris’ interviewer, but “If you’re not having fun advocating for freedom, you’re doing it wrong!”

It’s a great line—friendly, in-your-face advocacy that might just succeed in familiarizing more Americans with the idea of living as truly free people.

Today Talking Points Memo is charging that the man who interviewed Chris was a prominent defender of a militia group in the 90s, some members of which were convicted of crimes. I know nothing of the truth or falsity of this charge, and I had never heard of the militia group, the interviewer, or his organization before today.

This struggle over credibility is all part of the battle between freedom and control that is playing itself out right now. It’s an exciting time, and a chance for many more Americans to learn about liberty and the people who live it.

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