Author Archive
One Nation Under Double Jeopardy
The Senate is about to vote on Defense Department funding with an expanded federal “hate crimes” bill. This well-intentioned piece of legislation threatens to make violations of the fundamental right against Double Jeopardy a routine practice, as federal courts will now have the power to re-prosecute defendants for what are traditionally state crimes.
The House removed language that the Senate put in place to ensure that the “hate crimes” provisions did not stretch to encompass free speech, threatening to attach criminal liability to core rights of free expression.
This expansion of federal jurisdiction guarantees that high profile cases will be retried until a guilty verdict is obtained to satisfy political factions. This politicization of justice will only harm our courts and our freedoms. The Senate should vote down this threat to the fundamental rights of all Americans.
Now for some quick background reading:
- “Welcome to the new age of Double Jeopardy.”
- Why hate-crime legislation won’t work.
- Podcast: How hate-crime legislation undermines federalism.
Department of Bias
The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?
The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” – identified by the department as those who are Democrats and almost exclusively black.
The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.
This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.
Filed under: Government and Politics; Law and Civil Liberties
Good News on Medical Marijuana
The Department of Justice is changing its long-standing policy of ignoring state laws that allow marijuana use for medicinal purposes. This federalism question played out several years ago in the Supreme Court in the Raich case; Cato’s amicus brief is available here.
Cato hosted Rob Kampia of the Marijuana Policy Project in March, and you can view the event here. Glenn Greenwald wrote an influential study for Cato on the successful decriminalization of drugs in Portugal. Greenwald notes that he gets more invitations to speak on the subject now than he did when it was published.
A good first step. Fourteen states permit medical marijuana dispensaries; I suspect more are on the way now that this hurdle has been cleared.
Federal Cyberbullying Law: ‘Worth a Try’?
On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.
Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.
The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”
The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.
Other problems plague the proposed statute. A Congressional Research Service report highlights some of the constitutional issues, but the discussion at the hearing brought others to the fore. States that have passed their own cyberbullying sanctions have overwhelmingly done so with misdemeanor, not felony, charges. The felony problem is compounded by the fact that this is a statute intended to apply largely to the conduct of teenagers. A felony charge is both excessive and complicated by the fact that there are no long-term federal juvenile detention facilities — they are referred to state facilities instead.
University of Virginia law professor (and former university president) Robert O’Neil said, in spite of all those concerns, that the proposed law could be tweaked to avoid the feared demerits. In his written testimony, O’Neil notes the difference between offensive political speech and “true threats,” the latter not receiving constitutional protection. He proposes using Intentional Infliction of Emotional Distress (IIED), a traditional state tort claim, as the legal basis for justifying the proposed law. This is an odd foundation for a federal criminal law — no state defines IIED as a crime, and many states require a showing of physical harm for a plaintiff to recover. When Rep. Gohmert pressed him on this, O’Neil said that in spite of the lack of legal foundation for a federal crime based on IIED, it was “worth a try.”
No thanks. Let’s not try. Let’s keep our liberties intact and not do further damage to the law.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Cyberbullying Bill on the March
Federal prosecutors moved to criminalize internet harassment last year by prosecuting Lori Drew. Lori Drew, as you may recall, is a Missouri woman who created a fictional MySpace profile named “Josh” and started an online relationship with Megan Meier, a teenage girl who may have spread gossip about Drew’s daughter at the local high school. After “Josh” broke up with her, Megan Meier killed herself.
While this is despicable conduct, Missouri prosecutors found that Drew had broken no criminal statute and could not be prosecuted.
Enter Thomas O’Brien, U.S. Attorney for the Central District of California. O’Brien filed charges against Drew based on alleged violations of the Computer Fraud and Abuse Act (CFAA). O’Brien alleged that by violating MySpace’s policy requiring factual information in the user profile and affirming the click-to-agree contract, Lori Drew had committed a crime akin to hacking or unauthorized access of computer data. Because of MySpace’s ties to the Central District of California, Lori Drew was haled into court halfway across the country.
Though the jury convicted Drew and reduced the felony charges to misdemeanors, District Judge George Wu threw out the conviction because the statute would allow the prosecution of nearly anyone on the internet. The decision is available here. The government has since filed a notice of appeal. Orin Kerr notes that the appeal may face additional hurdles – the line of cases that the government used to interpret the statute so broadly has been overturned by the Ninth Circuit.
Several members of Congress have since jumped on the Named Victim Act bandwagon, sponsoring the Megan Meier Cyberbullying Prevention Act. The Act goes far beyond the issue of unauthorized access, criminalizing any rude speech delivered via the internet, cell phone, or text message:
‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
‘(b) As used in this section–
‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and
‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.
The scope of this law is breathtaking. Had a rough breakup with your significant other? Engaged in a flame war on a website’s comment section? We’ve got a law against that, you know.
The House Judiciary Committee will be holding a hearing on this law tomorrow. Cato Adjunct Scholar Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, will be testifying. Silverglate will also be at a book forum on Thursday at Cato, which can be watched live here.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Three Felonies a Day
Harvey Silverglate’s new book, Three Felonies a Day: How the Feds Target the Innocent, is receiving a good bit of press. L. Gordon Crovitz has a good piece up at the Wall Street Journal discussing federal overcriminalization and how it impacts information technology. National Review Online has an audio interview with Silverglate discussing how federal law often strays from traditional notions of criminal intent, making innocent activity potentially criminal.
Silverglate will be speaking at Cato on Thursday at a book forum with Tim Lynch. Tim’s recent book In the Name of Justice looks at the evolution of strict liability statutes and other developments in criminal law with chapters from prominent legal thinkers. Washington Times columnist Tony Blankley will be serving as guest moderator. Admission is free; registration information is available here, and the event can be watched live at the link.
PATRIOT Act Provision Used for Drug Cases
The PATRIOT Act contained a number of tools that expanded the power of federal law enforcement officials. One of these, the “sneak and peak” warrant, allows investigators to break into the home or business of the warrant’s target and delay notification of the intrusion until 30 days after the warrant’s expiration. This capability was sold to the American people as a necessary tool to fight terrorism.
In Fiscal Year 2008, federal courts issued 763 “sneak and peak” warrants. Only three were for terrorism cases. Sixty-five percent were drug cases. The report is available here.
Ryan Grim has more on this, including video of Sen. Russ Feingold (D-WI) grilling Assistant Attorney General David Kris.
The Strategic Corporal
Retired Generals Charles Krulak and Joseph Hoar have an op-ed over at the Miami Herald making some important arguments against using “enhanced interrogation techniques.” Krulak served as Commandant of the Marine Corps and Hoar served as CENTCOM Commander. CENTCOM is short for Central Command, the regional military command responsible for the Middle East.
Krulak and Hoar endorse the Interrogation Task Force’s recommendation that all future detainee interrogations be conducted within the guidelines in the Army Field Manual on Interrogation. In doing so, they make a point that may be difficult to see unless you have been a leader in the military: condoning torture, or any mistreatment of prisoners, erodes discipline in a military organization.
Rules about the humane treatment of prisoners exist precisely to deter those in the field from taking matters into their own hands. They protect our nation’s honor.
To argue that honorable conduct is only required against an honorable enemy degrades the Americans who must carry out the orders. As military professionals, we know that complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. Moral equivocation about abuse at the top of the chain of command travels through the ranks at warp speed.
Krulak is no stranger to this topic. In a 1999 article, The Strategic Corporal: Leadership in the Three Block War, Krulak highlighted the difficulty of deploying to low-intensity conflicts and the challenges that enlisted Marines (and soldiers) will face. In a single conflict, a unit could be engaged in humanitarian aid on one block, quelling a riot on the next, and fighting pitched urban combat on the third. Small units led by a corporal may have to take on captain-sized problems. Krulak stressed the importance of leadership and character at the lowest level so that when an officer is not present, low-level leaders will act with the necessary initiative and decision-making skills. The cornerstone for all of this is character.
Honor, courage, and commitment become more than mere words. Those precious virtues, in fact, become the defining aspect of each Marine. This emphasis on character remains the bedrock upon which everything else is built. The active sustainment of character in every Marine is a fundamental institutional competency — and for good reason.
Torture apologists may be found aplenty inside the Beltway, but those who have worn the uniform know better.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
McCarthy’s World
The NYC/Denver terrorism investigation has Andy McCarthy all riled up.
In this article at National Review, McCarthy says that the risks associated with terrorism require a domestic preventive detention regime where investigators can go to a court with something less than probable cause and detain individuals without charge until they can gather the evidence for an indictment.
This is a pretty bold proposition, given the fact that he lays out in this post on The Corner the power that investigators already have to detain material witnesses while gathering evidence. Not to mention the power to detain allegedly dangerous individuals picked up on relatively minor charges such as lying to federal agents, the current disposition of the NYC/Denver suspects.
Then McCarthy comes full circle in this post, claiming that if this is the fault of a “law enforcement” mindset in counterterrorism, it may be time to consider a domestic intelligence agency akin to Britain’s MI-5. He also blasts the use of non-coercive interrogation “that the Left insists are just as reliable in a ticking-bomb situation as the CIA’s coercive methods.”
There are several problems with this take on domestic counterterrorism.
The first is that the decision to involve a New York imam in the investigation, a step that compromised the operation and forced investigators to make early arrests before all of the co-conspirators could be identified, was made by an intelligence organization, the NYPD’s Intelligence Division. This is not the cops of the Counterterrorism Bureau, the law enforcement officers that work with the FBI in the Joint Terrorism Task Force, but a separate intelligence department run by a former CIA official who is openly hostile to the Bureau. The same type of folks that McCarthy wants to put in charge of domestic counterterrorism.
Second, McCarthy’s plug for coercive interrogation is the path advocated in the early years of the Bush administration. This has the deleterious effect (beyond statutory bans on torture and constitutional rights prohibiting the same) of making anything you get from the “third degree” inadmissible in court. To get around this you would have to ask courts to generate a doctrine that allows for evidence collected as a result of coercive interrogation to be admitted in spite of clear constitutional violations. I don’t see any way that this does not seep into general law enforcement, where any potential future crime justifies beating information or confessions out of suspects. This is rolling back civil liberties a hundred years or so.
Third, a domestic prevention regime is destined to run into the problems that the British encountered in Northern Ireland. IRA detainees that were subjected to “special interrogation techniques” and held without charge staged a hunger strike to protest being treated as criminals instead of detainees; their jailers had taken away their civilian clothes and made them wear prison uniforms. As former FBI Agent and counterterrorism expert Mike German says in his book, Thinking Like a Terrorist:
The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti-Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.
If you fear Islamic terrorists, let investigators do their job and find the people who would harm the public. This is a problem that will be solved over decades of diligent investigation, sitting on wiretaps, infiltrating cells, and prosecuting dangerous people. Distorting the domestic criminal justice system out of hysteria over potential attacks will make martyrs out of detainees and torture victims and encourage a broader spectrum of people to violence.
Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Fixing Detention in Afghanistan
The Obama administration is currently revising detainee procedures in Afghanistan. Bagram Airfield, located north of Kabul, is home for roughly 600 detainees. The Department of Defense plans to institute new review boards patterned on the ones at Guantanamo Bay, allowing detainees to challenge the basis of their detention and present evidence supporting their release.
The Bagram Theater Internment Facility has long used Unlawful Enemy Combatant Review Boards to determine who should remain in custody. These boards provided minimal process and, consequently, minimal ability to determine if the detainees were militants or intelligence operatives fighting the government. The detainee was not allowed to attend the hearing.
The shift in policy is an improvement, but a better model has been proposed by the Heritage Foundation’s Cully Stimson, Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War. Stimson proposes that detention hearings follow the model used to determine the status of Salim Hamdan, Usama bin Laden’s driver. A military judge heard arguments for and against a finding that he was an unlawful enemy combatant, taking procedures for Hamdan’s appeal straight from Article V of the Geneva Conventions. This clearly meets American obligations under international law and decisions made in this forum are more likely to survive review in a federal court.
The change in policy also comes on the heels of a Marine General’s report that 400 of the 600 detainees in Bagram pose no threat to the Afghan government or to American forces. We did a better job with detention in Iraq, isolating hardcore foreign fighters, providing job training and community support to the local flunkies who took potshots at American forces for a quick buck, and prosecuting as many detainees as possible in the Iraqi Central Criminal Court. We should follow a similar template in Afghanistan.
For related discussion of the merits of the American presence in Afghanistan, watch today’s policy forum at Cato, Should the United States Withdraw from Afghanistan? It streams live at noon today, featuring Malou Innocent, Ted Galen Carpenter, and Christopher Preble.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Wichita Witch Hunt
That’s the only appropriate term for the investigation of pain relief advocate Siobhan Reynolds. She is the widow of Sean Greenwood, a victim of a debilitating connective tissue disorder.
Greenwood’s doctor, William Hurwitz, prescribed the medicine that allowed him to function in spite of the condition until Hurwitz was indicted in 2003 for “illegal drug trafficking.” Greenwood could not find another doctor to prescribe his medication; doctors had been bullied into submission by vague federal statutes and aggressive prosecutors. Greenwood died three years later of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.
Siobhan Reynolds founded the Pain Relief Network, highlighting the plight of those afflicted with debilitating conditions who are unable to get the appropriate pain medication because of federal anti-drug efforts that make targets of doctors and patients alike.
The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynold’s advocacy. The presiding judge denied the gag order.
Now Treadway is investigating Reynolds for obstruction of justice. She has subpoenaed Reynolds and the Pain Relief Network for communications pertaining to the Schneider prosecution, and Reynolds is now being fined $200 a day for not complying with the subpoenas.
How Much for a Schlub?
Over at The Corner, Rich Lowry put up a post on detainee interrogations that I responded to. Follow-up posts are available here and here.
Jay Nordlinger steps in to offer the view that, with terrorists, the difference between a “schlub” and a “monster” isn’t much. A pathetic radical can cause a lot of damage with just a little bit of luck.
This may be true, but there is a valuable ends-means calculation that must be considered (also addressed in Julian Sanchez’s post here).
How many times must we use coercive interrogation and get nothing, suffering the inevitable backlash in public opinion and enemy recruiting, for each intelligence success? If you are willing to torture a dozen/hundred/thousand men for each schlub, you will motivate a sufficient number of monsters to make a small tactical victory a pyrrhic one at best, and a strategic debacle at worst.
The big picture trends against torture, or any use of force that crosses the line between mutual combat and violating human rights, or the use of indiscriminate force. The attack on September 11, 2001 crossed that line, and we justifiably responded with military action. The use of “enhanced interrogation techniques” (EIT’s) crossed that line, and the enemy used it as propaganda fodder.
The British faced a parallel situation in Northern Ireland in 1971. After employing mass arrests that stoked the fires behind the IRA, the Brits employed “special interrogation techniques.” Former FBI Special Agent and successful terrorist group infiltrator Mike German covers this in his book, Thinking Like a Terrorist (citing Armed Struggle: The History of the IRA):
Among the methods used on the internees were the “five techniques”: placing a hood over the head; forcing the internee to stand spreadeagled against a wall for long periods; denying regular sleep patterns; providing irregular and limited food and water; and subjecting people to white noise in the form of a constant humming sound.
Sound familiar? Violence in Northern Ireland increased as a result of these practices. The Brits crossed the line again on Bloody Sunday when they fired into a crowd of peaceful protestors (possibly a response to IRA gunfire at British paratroopers). The tide shifted in favor of the IRA until they broke the unwritten rules of the game on Bloody Friday, detonating twenty-two bombs in Belfast that killed nine people. Tactically masterful, but a political disaster.
The Bush administration changed tactics in its second term in office, discarding EIT’s and moving away from physical coercion of detainees. This was a sensible decision, and there is no reason for the Obama administration to change course.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Lowry and Interrogation
Veronique de Rugy put up a post at The Corner referencing Rich Lowry’s defense of “enhanced interrogation techniques” and my response. Rich has since responded.
With regard to the apprehension of Uzair Paracha, an Al Qaeda facilitator in New York, it seems likely that the apprehension of Majid Khan in Pakistan four days after Khalid Sheikh Mohammed’s (KSM) apprehension came from material picked up with KSM and not from interrogation. The key here is that when Majid Khan was in Pakistan, Paracha was pretending to be Majid Khan in communications with immigration officials. Detective work was probably what brought this guy under the microscope.
However, I’m willing to lay that aside because, as Rich points out, there is probably more to the story that shouldn’t be declassified. As I said on Bill O’Reilly’s show, we cannot end this argument until we have declassified all of the dead ends we pursued, which has some serious strategic drawbacks. The CIA recently asserted in court that it cannot reveal any more without compromising sources and methods.
Rich also says that my preferred method of interrogation is “dangling the promise of reduced sentences.”
This is not my preferred method, but it is one that ought to be available to interrogators. Under the Army Field Manual, an interrogator cannot promise anything in the court system. As Matthew Alexander points out in his book, the Iraqi Central Criminal Court has the death penalty attached to almost all of what we consider “material support of terrorism.” I am saying that the Prisoner’s Dilemma is an effective tool if a lesser included offense is on the table so that the first to squeal gets a few years and the others get the noose.
But let’s not discount the lawful interrogation techniques. When I attended SERE, the psychological techniques were far more compelling than the physical ones. We were all young and tough, but the mind tricks that turned brothers in arms against each other were downright disturbing.
Filed under: Foreign Policy and National Security; 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.
Filed under: Foreign Policy and National Security; 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.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
U.S. Boots NOT on Congo Ground
Michael O’Hanlon has an op-ed in today’s Washington Post that proposes we create a volunteer “peace operations division” to deploy to third-world crisis spots, particularly to stabilize Congo. O’Hanlon spent time in Congo a generation ago in the Peace Corps, and believes that there is a moral imperative to fix the situation.
O’Hanlon probably realizes that the significant number of American troops still in Iraq and increasing commitments in Afghanistan mean that Congo is far down on the Obama administration’s list of priorities. He probably expects someone to respond in impolite terms that this is an unnecessary and unwise deployment of Americans into harms way in a potential quagmire with no discernable national security interest, allowing him to take the moral high ground and speak of how our military should make the world a better place for everyone.
Okay, I’ll bite. I haven’t spent any time in the Congo or in the Peace Corps, but my time in the Infantry and Special Forces tells me that this is exactly the kind of idea we should avoid.
Let’s go by the numbers.
The notion is this: Ask for volunteers to join a peace operations division for two years. They would begin their service with, say, 12 weeks of boot camp and 12 weeks of specialized training and then would be deployable. They would receive the same compensation and health benefits as regular troops, given their age and experience. Out of a division of 15,000 troops, one brigade, or about 3,000 to 4,000 soldiers, could be sustained in the field at a time.
Creating a force of amateurs trained at a level far below that of the all-volunteer force is asking for American blood to be spilt unnecessarily. The career officers and NCO’s in today’s force mean that experienced leaders keep troops alive and doing their job. Military service isn’t service in the Peace Corps; let’s not confuse the two. Either you are in for following the lawful orders of the Commander-in-Chief and the officers appointed above you, or you aren’t. Don’t sign up for politically correct missions. Sign up because you want to be in the military – or not at all.
Amateur Hour at DHS
The controversial Department of Homeland Security (DHS) report Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment stirred criticism that the DHS had turned away from monitoring real terrorism plots and was now labeling veterans, pro-life groups, and limited government advocates as threats to national security. Consider those fears vindicated.
Americans for Limited Government (ALG) filed a Freedom of Information Act request for the documents and correspondence that supported the DHS report. The result: DHS sent a letter and list of the sources used to assess a significant number of innocent Americans as potential terrorists.
Seriously, read the whole thing. This collection of open source material amounts to an afternoon of internet browsing. Several arrests and indictments are mentioned, but newspapers and blogs are used instead of primary documents such as actual arrest reports and indictments that are available over the internet.
When a government agency charged with the physical security of the nation’s borders is running around on the internet looking for accusations of racism instead of using actual law enforcement and intelligence reports to justify its threat assessments, we are all in trouble. As Jeffrey Rosen has said, the biggest problem with DHS is that it was “a bureaucratic and philosophical mistake.”
Create a bureaucracy designed to inflate fears and issue color-coded threat levels, and that is what you will get. But don’t be surprised when TSA agents at the airport decide to go beyond their aviation security mission and get rebuked by a federal judge. Expect people lawfully traveling with cash to get detained without probable cause or even reasonable suspicion that they are breaking the law or pose a threat to airline safety. Anticipate that the “no-fly” list will become a “no-rights” list when a politician can seek political advantage by advocating that anyone designated for double-secret probation be denied their Second Amendment rights.
In related news, Jonathan Turley highlights the fact that English comedian Paul O’Grady was held on suspicion of being an illegal alien from Cuba because of his “funny accent.”
Your tax dollars at work.
The Folly of Hate Crime Laws
That’s the title of Richard Cohen’s op-ed in yesterday’s Washington Post. Cohen highlights the futility of using a hate crime to prosecute the Holocaust Museum shooter:
In von Brunn’s case, the hate-crime counts are an obscenity. To suggest that the effects of this attack were felt only by the Jewish or the black communities — and not, for instance, by your average Washington tourist — ghettoizes both its real and purported victims. It’s a consequence that von Brunn himself might applaud.
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