Obama and Military Tribunals
Yesterday, Obama’s attorney general, Eric Holder, held a press conference and announced that Khalid Shaik Mohammed (KSM) would be prosecuted for war crimes before a military tribunal. It’s probably fair to say, as some newspapers have noted, that the idea of bringing KSM to New York City to be tried in civilian court for the 9/11 atrocity was Holder’s “signature” decision since becoming attorney general–and that that idea is now dead. However, Obama and Holder conceded a place for tribunals more than a year ago and they could never really offer a good explanation as to why some persons would go to civilian court and why others would go before tribunals. Like Bush, Cheney, and Rumsfeld, Obama and his people would just sorta decide case-by-case.
Conservatives are chortling over Obama’s apparent embrace of Bush policies, such as keeping Guantanamo open and reviving trials before tribunals. Like the escalation of the war in Afghanistan, however, Obama has not stumbled on to the correct path. He has instead shown exceptionally poor judgment yet again. Two questions are now looming on the horizon. First, prosecutors are anxious to have a lengthy 9/11 trial, but what if KSM calls the tribunal a farce and decides to skip the trial, plead guilty, and then demands to be executed so he can become a martyr? The tribunal might grant the wish, but the legitimacy of the military system may be called into question again–especially in the Muslim world. Second, the Pentagon has made it pretty clear that anyone acquitted by a tribunal will remain a prisoner at Guantanamo (pdf). There may be a legal rationale for that, but, again, how is that going to be perceived by the world? As a start, one might consider how we would react if an American were acquitted by a court abroad, but was nonetheless returned to his prison cell to be detained indefinitely.
There is no need to go there. Obama should close Gitmo and transfer the prisoners to Bagram and hold them there, but with full transparency. The Bush policies of secret prisons, secret interrogation methods, and secret trials before special military courts were wrongheaded and remain so.
For additional background, go here.
Good News and Bad on PATRIOT Reform
Late last week, Attorney General Eric Holder sent a letter to Senate Judiciary Committee Chair Patrick Leahy (D-VT) in which he agreed to implement an array of policies designed to check abuse of USA PATRIOT Act powers. These include more thorough record keeping and more disclosures to Congress, prompt notification of telecommunications companies when gag orders have expired, and updated retention and dissemination procedures to govern the vast quantities of information obtained using National Security Letters.
In itself, this is all to the good. But civil libertarians should pause before popping the champagne corks. Last year, the fight over the reauthorization of several expiring PATRIOT provisions opened the door to the comprehensive reform that sweeping legislation sorely needs to better balance the legitimate needs of intelligence and law enforcement against the privacy and freedom of Americans. Despite serious abuses of PATRIOT powers uncovered by the Justice Department’s Office of the Inspector General, no such major changes were made. Instead, Congress opted for a shorter-term renewal that will require another reauthorization this February—in theory allowing for the question of broader reform to be revisited in the coming months.
Many of the milder reforms proposed during the last reauthorization debate now appear to have been voluntarily adopted by Holder. Unfortunately, this may make it politically easier for legislators to push ahead with a straight reauthorization that avoids locking in those reforms via binding statutory language—and entirely bypasses the vital discussion we should be having about a more comprehensive overhaul. If that happens, it will serve to confirm the thesis of Chris Mooney’s 2004 piece in Legal Affairs, which persuasively argued that “sunset” provisions, far from serving as an effective check on expansion of government power, often make radical “temporary” measures more politically palatable, only to create a kind of policy inertia that makes it highly unlikely those measures will ever be allowed to expire.
With the loss of Sen. Russ Feingold (D-WI), who whatever his other faults has been the Senate’s most vocal opponent of our metastasizing surveillance state, the prospects for placing more than cosmetic limits on the sweeping powers granted since 2001 appear to have dimmed. If there’s any cause for optimism, it’s that the recent fuss over intrusive TSA screening procedures appear to have reminded some conservatives that they used to believe in limits on government power even when that power was deployed in the name of fighting terrorism.
A Response to Intel Abuses at Last?
As I explain in yesterday’s BloggingHeads dialogue with Eli Lake, I’m chary of relying too much on legislative “sunset” provisions to check abuse of power, especially in the shadowy world of intelligence. (For the fleshed-out version of the argument, see Chris Mooney’s 2004 piece in Legal Affairs.) After all, in January, the Office of the Inspector General had released an absolutely damning report showing that for years, FBI agents systematically manipulated their incredibly broad National Security Letter authorities to get information about Americans telephone usage without following any legitimate legal process at all. To cover those abuses, officials compounded their crimes by lying to federal courts and refusing to use an auditable computer system for their information requests. The report was released amid debate over what reforms should be included in the reauthorization of several controversial Patriot Act provisions, with proposed changes to the NSL statutes front and center—not least because several courts had found constitutional problems with the gag orders accompanying NSLs. Yet just a month later, Congress consented to an extension of those Patriot provisions without implementing any of the various rather mild changes that had won approval in the House or Senate Judiciary Committees. If a sunset-inspired review didn’t yield any real consequences then, I thought, what would it take?
Today, however, I see a there are glimmers of interest in something more closely resembling serious oversight. In a letter to Attorney General Eric Holder, sent last month but released yesterday, Senate Judiciary Committee Chair Patrick Leahy (D-VT) urges DOJ to implement many of the reforms in the SJC’s bill voluntarily—above all procedures to guarantee a detailed record of the grounds on which various types of information sought, and to govern the retention, use, and distribution of information obtained. Leahy also signals his intent to ask department watchdogs to conduct audits of the use of Patriot authorities, as the Senate’s bill had stipulated. These are all, needless to say, good ideas—provided we don’t accept voluntary and mutable internal guidelines as a substitute for statutory limits with teeth.
Meanwhile, Rep. Jerry Nadler (D-NY) is holding Wednesday morning hearings on the abuses detailed in the Inspector General’s report. FBI General Counsel Valerie Caproni and IG Glenn Fine are slated to testify. (There are links to their prepared testimony already, though the documents themselves aren’t there yet as I write.) Extrapolating from past performances, I predict Caproni will allow that the abuses described were Very Serious Indeed (though, really, perhaps not quite as serious as all that…) but all cleaned up now. Nobody should be satisfied with this, and if Fine doesn’t broach the subject himself, somebody really ought to ask Caproni about some minimization procedures for the 25,000–50,000 National Security Letters the department issues annually. As Fine noted in recent testimony, the Bureau has been promising this for years now:
In August 2007, the NSL Working Group sent the Attorney General its report and proposed minimization procedures. However, we had several concerns with the findings and recommendations of the Working Group’s report, which we discussed in our March 2008 NSL report. In particular, we disagreed with the Working Group about the sufficiency of existing privacy safeguards and measures for minimizing the retention of NSL-derived information. We disagreed because the controls the Working Group cited as providing safeguards predated our NSL reviews, yet we found serious abuses of the NSL authorities.
As a result, the Acting Privacy Officer decided to reconsider the recommendations and withdrew them. The Working Group has subsequently developed new recommendations for NSL minimization procedures, which are still being considered within the Department and have not yet been issued. We believe that the Department should promptly consider the Working Group’s proposal and issue final minimization procedures for NSLs that address the collection of information through NSLs, how the FBI can upload NSL information in FBI databases, the dissemination of NSL information, the appropriate tagging and tracking of NSL derived information in FBI databases and files, and the time period for retention of NSL obtained information. At this point, more than 2 years have elapsed since after our first report was issued, and final guidance is needed and overdue.
Way, way overdue—much like some kind of serious congressional response to the Bureau’s NSL Calvinball.
Manhattan Says No to Terror Trials
Today, Politico Arena asks:
Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?
My response:
On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems. He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan. But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down. We await the line of congressmen saying “Bring the trial to my district.”
How could it be otherwise? The administration’s law-enforcement approach to terrorism has been unserious and folly from the start. In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need — not to prosecute terrorists, but to prevent future terrorist attacks. The most telling revelation in Hayden’s piece came at the end, however. In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report. Was the HIG called in to interrogate the Christmas Day bomber? No — it has yet to be formed. But the interrogations of CIA officers are proceeding apace. So much for the administration’s priorities. Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?
Red Team, Blue Team
In a report on Attorney General Eric Holder’s approach to seeking the death penalty, NPR reports:
A few months after Holder made that statement, he authorized a capital prosecution in Vermont, a state that does not have the death penalty. When Ashcroft brought a federal death penalty case in Vermont seven years ago, the mayor of Burlington called it “an affront to states’ rights” and “not consistent with the values of a majority of Vermonters.” But this time, there was hardly any outcry.
So the former antiwar movement doesn’t complain about President Obama’s expansion of the wars in Iraq and Afghanistan. And opponents of capital punishment don’t protest the Obama administration’s seeking the death penalty in liberal Vermont. It’s beginning to look a lot like the Bush years, when conservatives put up with a great deal from a Republican administration that would have sent them into apoplexy if it had been done by Democrats.
Khalid Shaikh Mohammed on Trial
The Council on Foreign Relations’ Steven Simon makes a difficult case, and he makes it well, regarding the Justice Department’s decision to try Khalid Shaikh Mohammed in a civilian court in New York City. I agree with his bottom line:
no trial can provide closure for the traumas of that day. But a judgment in New York, where the greatest suffering was inflicted, will remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.
I say again, this is not an easy case to make, and not just because of the emotions involved. Most people have already made up their mind that 1) KSM is undeserving of such treatment (the same could be said of most mass murderers); 2) that the risks posed to national security by a public trial (including the possibility of an acquittal and the potential disclosure of sensitive information) are not outweighed by the benefits; and 3) that AG Eric Holder made this decision in a haphazard manner, and for all the wrong reasons.
But I think that Simon renders a great service in making Holder’s argument, and, indeed, in making it better than the AG did.
My objectivity can be called into question: Steven has spoken at Cato a few times, and he was and is a participant in our ambitious counterterrorism project. I have enormous respect for his expertise on such matters.
But I submit that anyone who reads Simon’s op-ed with an open mind must concede at least some of his points, and therefore further conclude that some of the criticisms of the decision are unfair. That does not mean that Simon will ultimately change a lot of minds. One might still conclude that, on balance, the DoJ’s decision was unwise, and that KSM should have been tried by a military tribunal, or merely detained forever. In truth, I was leaning in that direction before I read the piece.
But, on reflection, my confidence in our system of government and in the rule of law leads me to believe that Simon has it right. To the extent that KSM is given a forum for propagandizing on behalf of al Qaeda, the net effect of his rantings will be to remind the entire world that AQ is nothing more than a bunch of self-important, murderous SOBs who kill innocent people.
Nothing more, nothing less.
Gitmo Prisoners to NY for Trial
Today, Attorney General Eric Holder announced that he plans to move five prisoners from Guantanamo to New York for a civilian trial. Holder says the prisoners masterminded the 9/11 attacks and will now face the death penalty.
Some journalists and commentators are calling this move a wholesale repudiation of the Bush policy. Actually, no. Holder also announced that five other Gitmo prisoners will soon be put on trial before a military commission. Thus, the Bush framework essentially remains in place. The Executive will decide on a case-by-case basis who will be held prisoner (overseas, Gitmo, here in the USA), and who will be tried in civilian court, and who will be tried before a military commission.
By way of background, these prisoner controversies (habeas corpus, waterboarding, trial by commissions) fall into three basic categories: (1) detention/imprisonment; (2) treatment (including interrogation practices); and (3) trial issues. Today’s announcement concerns trials.
If there is to be a trial for persons accused of terrorism, it ought to be in civilian court. Courts martial are for persons actually in the U.S. military (the Fort Hood shooter). Military “commissions” are a hybrid that is nowhere mentioned in the Constitution. It is mistake for Obama to retain the commission system because it is (a) dubious to begin with, and (b) can be whimsical with respect to the people that end up there. Even the former Gitmo prosecutor has voiced his objections to the system!
Bin Laden and his cohorts murdered some 3,000 people on 9/11. It is lamentable that they did not all go down fighting at Tora Bora. But we do have to have policies in place for captures. Boiled down, the U.S. should follow the Geneva Convention for prisoners and, for trials, the procedures set out in the Constitution.
Attorney General Tries to Silence School Choice Ad
This, finally, is too much: Eric Holder, Attorney General of the United States, walked up to former DC Councilman Kevin Chavous at an event and told him to pull an ad criticizing the administration for its opposition to the DC school voucher program. The Attorney General of the United States!
This is as outrageous and shameful as it is consistent with other administration hostilities toward free speech (see also here) and freedom of the press.
There is a deep revulsion to such behavior in this country. It is not a Republican or a Democratic revulsion, it is an American one. Obama administration officials seem not to understand that, but voters will help them get the message the next time they go to the polls.
Fact-checking Drug Czar Barry McCaffrey
I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general. There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.
I was really astonished by the doubletalk coming from McCaffrey. Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.
Doubletalk: Example One:
Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”
Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”
Zero truth? Fantasy? This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt: ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”
This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal. Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials. The feds called them “drug dealers.” When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors. Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.” Both men were convicted and jailed.
This report from the New York Times tells readers about the death of Peter McWilliams. The feds said he was a “drug dealer.” McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition. Excerpt: “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.” The late William F. Buckley wrote about McWilliams’ case here.
Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!
State Secrets, State Secrets Are No Fun
Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.
That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.
That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.
Prosperity in Washington
The current Attorney General, Eric Holder, left DC’s Covington and Burling to return to the Justice Department, where he held a senior post during the Clinton years. Holder’s mission is to supposedly ”rein in the free market excesses of the last eight years.” Bush’s people are done with their own crackdown and are now returning to DC’s big law firms to warn their client business firms about the coming crackdown by Holder’s prosecutors. This is sorta like the GOP legislators who are now trying to lodge complaints about Obama’s spending. Despite the rhetoric, both sides aggrandize federal power and then enrich themselves (pdf) while advising businesspeople on how to comply with myriad regulations from the alphabet agencies.
TLJ: Holder Advocates Some Constitutional Principles
I’m a long-time reader and fan of TechLawJournal. Dogged reporter David Carney produces an amazing amount of content about technology-related goings-on in Washington, D.C. and the courts. Subscription information is here.
I also appreciate his editorial style, which often betrays a dose of concern for civil liberties and healthy skepticism about power. A wonderful example follows, reprinted with permission:
Holder Advocates Some Constitutional Principles
Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in “our current struggle against international terrorism”.It was a plea for adherence to Constitutional principles. However, it was as significant for what he said — about detention of people in places like Guantanamo Bay — as for what he did not say — about interception of communications and seizure of data.
He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.
But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.
Holder (at right) said, “And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes.”
He said that “we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger — it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”
This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.
He did make one statement that may pertain to electronic surveillance and data. He said that “many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars”.
He did not reference the state secrets privilege, or the government’s assertion of it in legal proceedings involving warrantless wiretaps.
On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA’s warrantless wiretap program.
The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.
The Electronic Freedom Foundation (EFF) stated in a release that “These are essentially the same arguments made by the Bush administration”.
This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.
Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder’s speech that “It’s disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like ’1984′ than 2009.”
Black continued that “President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents.”
“The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured”, said Black. “But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights.”
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