Hope is not a plan

The three-judge panel ruled that President George Bush had the power to detain Mr Padilla, based on the resolution authorising military force which was approved by Congress in the aftermath of the 11 September attacks.

But the government says such detentions are necessary to prevent terrorism in the US.

The BBC story

I'll have to look into this to see how fuzzy the concept of "closely associated" is.

Rosa Parks will lie in honor in the Capitol Rotunda. She will be the first woman to receive this honor.

The BBC story
The CNN story

As reported in this BBC article and many other places, Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee yesterday in an attempt to defend the legality of domestic surveillance carried out without consulting the Foreign Intelligence Surveillance Court, as required by the Foreign Intelligence Surveillance Act.

The Attorney General's defense of this avoidance of FISA's requirements is that the war authorization given to the president vis-a-vis hunting down Al Qaeda necessarily gives him the authority to ignore FISA and place domestic wiretaps. When he was challenged to explain whether this reasoning means that in time of war the executive can trump any laws, he waffled. The specific example presented to him was whether or not the Congress has the authority to require that members of the United States military not torture prisoners. It's telling and unsettling that Gonzales attempted to leave room here for the executive to override even this requirement. Gonzales also added several non sequitur remarks about how the true problem was the revelation of this program in the first place, and that our enemies were probably very pleased by that.

This is just as puerile as the President's assertion that we don't have time to wait around for the FIS court to authorize warrants. Both arguments are misdirects. By the logic of Gonzales, America's enemies must also be laughing at all our due process requirements -- after all, you still need probable cause to kick down a physical door in this country, even if you're sure the room on the other side houses an Al Qaeda cell. In fact, I agree that militants are pleased by due process and other self-imposed limitations we have in the U.S. -- but we wouldn't be us without them, so it's truly disingenous to say that the fact that any subset of due process pleases our opponents means it must be discarded. They're probably also pleased that we don't track down and torture the extended families of suspected criminals, but that doesn't mean we should start doing that.

What's sad about all this is that it is chiefly a grab for power for the sake of power, without an empirical analysis of the value of that power. Is it worth the trouble of breaking the law and hiding it to have a marginal gain in speed and flexibility over the legal option? I doubt it, just as sincerely as I doubt it occurred to anyone in the current administration to even make that evaluation.

As an added note: The illegal route does also mean no FISA paper trail, but that hardly matters, as there will be an NSA paper trail.

The Federal government plans to archive DNA samples from suspects detained by Federal authorities, following new rules instituted by DoJ in January of this year. This represents as change from previous policy, which only allowed archiving of DNA samples from convicts.

Naturally, this is upsetting to many, including folks from the ACLU. Carol Fredrickson, legislative office director for that group, made two good points, one of which I hadn't thought of before:

"DNA is far more than a simple fingerprint.

"The huge backlog of rape kits waiting to be tested will continue to grow as the government collects DNA from hundreds of thousands or even millions of individuals arrested or detained."

The former point will be more and more true as we gain more understanding about the genetic basis of many medical conditions and medical proclivities. Will your insurance company be able to issue a claim for access to DNA collected when you were held by the Park Service after failing to acquire a proper camping permit? Can they then change your rates based on that information?

The second point is very important. Have we checked to make sure we have the capacity to process all the new samples this will produce? Will evidence from violent crimes get absolute priority over processing the latest sample taken from a would-be illegal border crosser?

For the moment, we'll just have to wait and see how it's managed. A similar policy went into effect in California with the passage of Prop 69 in 2004. You can check on its status at the Office of the Attorney General by clicking here. According to their third quarter 2006 report, they have 827,066 samples on file, received 50,947 submissions in that quarter and have achieved 2,949 hits since their inception, aiding 3,191 investigations. According to the January, 2007 monthly report, they were able to cut their sample backlog from 176,220 to 158,546 and had 261 hits in that month. Given that they did that backlog clearance along with covering an additional 19,000 samples that came in that month, it looks good for them to be up to speed by 2008.

Of course, there's no indication if or how this may be impinging on other forensic DNA lab tasks.

al Jazeera article

From the AP:

Nearly 60 countries signed a treaty on Tuesday that bans governments from holding people in secret detention, but the United States and some of its key European allies were not among them.

State Department spokesman Sean McCormack declined comment except to say that the United States helped draft the treaty, but that the final text "did not meet our expectations."

Lest you get too caught up in the fact that we haven't signed on, consider everyone else who also declined to commit: Britain, Germany, Italy, Spain...

Notably, various Americans are currently being prosecuted (in absentia) or considered for prosecution in at least two of those countries for renditions carried out within their borders. Of course, inasmuch as the EU member states appear, based on documents from meetings with the US, to have agreed to the policy of allowing these renditions, the pending legal proceedings represent the people in those countries disagreeing with the official policy of their respective nations.

Or, in other words, carrying on a dialogue that will strengthen their respective democracies.

Everyone in charge ends up being a little suspect from time to time, don't you think?

A series of constitutional changes that will make it easier to exclude religious groups from government and that include a number of "anti-terrorism" measures were voted into effect in Egypt this week in what was, by almost all accounts, a tremendously shady voting process.

The Egyptian justice ministry placed the turnout at an already low 27.1%, but conflicting observations from various NGOs put the actual turnout at 3-9%. Rights-oriented groups were not happy with the outcome:

Amnesty International describes the changes as the greatest erosion of human rights in 26 years.

Human Rights Watch said the amendments "effectively remove basic protections against violations of Egyptians' rights to privacy, individual freedom, security of person and home and due process"

To clarify just how shady the actual voting was, consider the following:

Ayman Mohyeldin, an Al Jazeera correspondent, said he spoke to voters who did not understand why they were voting and even found people who voted though they were ineligible to vote.

There is no guarantee that the ballot will be tallied but the incident highlights major loopholes in the voting system, Mohyeldin said.

al Jazeera article

Judge Thomas Hogan of the DC District Court has dismissed a lawsuit against Donald Rumsfeld and others on the grounds that nine people who were tortured on Rumsfeld's watch did not have American constitutional rights, and that Rumsfeld was immune to such lawsuits anyway.

Hogan simultaneously accepted that the evidence demonstrated that the nine men -- five Iraqi, four Afghan -- had, indeed, been tortured while being held in American facilities. This torture included:

• Being hung upside-down and beaten unconscious
• Being stabbed
• Being electrocuted
• Sleep deprivation
• Being attacked by dogs
• Sexual humiliation

I have no idea if courts elsewhere care about things being on the record in the US, but it's there now. The case was dismissed on expected procedural grounds, but the torture evidence was firm enough to convince a judge.

BBC article

Time online has an article about oft-reclassified "terror" suspect Jose Padilla, whose case is now going to trial.

Padilla has been shuffled around quite a bit, and was used as a scary emblem of the "terrorist threat" as long as George Bush could get away with it. Faced with the problem of actually making a case against Padilla, the administration suddenly reclassified him as an "enemy combatant," despite his being an American citizen, picked up on American soil. That was very late in 2001. Ahead of Supreme Court review of his illegal detention, the administration shifted Padilla over to civil custody and charged him the normal way, in Federal court.

But in pre-trial motions, Padilla's attorneys have consistently tried to steer attention to what happened to Padilla during his three years and eight months in military detention — and to some degree Cooke has allowed them to do that. They contend that Padilla was tortured: fed LSD and other drugs, exposed to extreme temperatures, shackled in "stress positions" and deprived of sleep. The torture, they argue, made Padilla mentally unfit to stand trial and so undermined his constitutional right to a fair process that the whole case should be thrown out.

What prosecutors are left with, then, is an underwhelming case involving cryptic evidence of a murder and terrorist conspiracy that lacks names, places or pretty much any other specifics. Even if they manage to pull off a conviction, we still won't know whether Padilla really was the Dirty Bomber. And if they don't? The government has the option of reclassifying him as an enemy combatant, which, believe it or not, could start the process all over again.

Jose Padilla's case is representative of all that is most grotesque about George Bush and his facilitators. He is not John walker Lindh, picked up in the middle of open warfare in Afghanistan. He is an American citizen, taken into custody at an American airport, then denied the basic Constitutional protections that were put in place at the founding of our nation to prevent exactly this kind of abuse.

Some pertinent quotes. Bonus points if you know where they come from off the top of your head:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Excuse me for a moment as I dip into profanity for one sentence:

This asshole just lost his cruel, harassing lawsuit against some unfortunate immigrants who may now well hate America forever. From the BBC article:

A US judge has lost a $54m (£27m) claim against a South Korean dry-cleaning firm which lost a pair of his trousers.

Legal groups have said the case, which has dragged on for two years and involved thousands of hours of legal investigative work, has damaged the image of the US judicial system.

No kidding. The Chungs have indicated that they're considering going back to South Korea. Seriously, who can blame them? Why try at the American dream when some idiot in a position of a authority can destroy your lives because he's got nothing else going on with his? Hell. You can get that anywhere else in the world.

The National Labor Relations Board is calling for Roy Pearson to be debarred, so he can no longer be a judge.

It's kind of sad when your whole life in the legal profession results in a Wikipedia entry about you being a complete schmuck.

Although it's what I expected, I'm glad that our legal system is not so broken as to allow this idiot to win his case. It is broken enough that the poor folks he sued can only now get out from under two years of stress and legal fees.

The government of the golden land of Myanmar has taken the popular totalitarian tack of blaming external agents provacateurs -- specifically, the "neo-colonialist" kind -- of inciting all that unpleasantness that's been going on for the past week or so in their country. Although late last week they were blaming the BBC and Radio Free Asia for spreading misinformation, it's notable that this week they finally caved to how information is really being spread and largely shut down internet access and mobile services within the country.

They've also been killing protesters, beating and jailing monks, and, apparently, assassinating foreign journalists. Along with an uncounted number of Burmese citizens, Japanese journalist Kenji Nagai was killed -- on camera, no less. It's looking suspiciously like he was not a random bystander, but was specifically targeted for killing by government troops. The Japanese government has not yet decided what to do -- it's in the odd position of having very little it can refuse to send to Myanmar, as it's already limiting itself to purely humanitarian aid.

The government propaganda site I linked to at the top helpfully tells me that protesters are using "catapults" against police, and that monks are threatening people into protesting. Seriously:

Some monks and people enter homes Saboteurs threaten families demanding them to join protest if not provide cash, kind Authorities urge people to make complaints in person or on line to Ward PDCs, Township PDCs or local authorities against intimidations, extortions, coercion

Yup. Cash extortion. Apparently that's just how the Buddhist monks roll in Myanmar's propaganda imaginariverse.

Mr. Bush -

In response to the discovery that DoJ went ahead and authorized torture even in the wake of your fatuous declaration that our country does not torture (as, indeed, it never should), your spokesperson had this to say:

White House Spokeswoman Dana Perino confirmed the existence of the February 2005 opinion, but she says all procedures used by U.S. interrogators are tough, safe, necessary, and lawful.

Perino says she will not comment specifically as to whether simulated drowning constitutes torture because discussing any specific interrogation techniques would allow the enemy to train against them.

I quote here from Voice of America, a source I hope you have the sense to trust is not conspiring against you.

Ms. Perino's answer is, in truth, no answer at all. She can't comment on whether something is or is not torture because people may train against it if she does? Seriously?

Maybe I should switch to a new career as a criminal defense attorney. When someone asks if my client is guilty of murder, I'll say that I can't comment on that nor can it be openly discussed, as it might inform others about the practice of murder (or not -- after all, if I don't comment, who's to know what my imaginary client did?).

Shoving someone's head under water until they nearly drown is torture, you dim, immoral excuse for a man. Marching Ms. Perino out and sticking her with the unfortunate job of trying to deflect an all-too-deflectable press corps is a sad, yet accurate, commentary on how little you have in common with the American citizens you regularly endanger by tarnishing our country's reputation for freedom and justice with your tawdry pretense of national defense.

Your answer, as told by Ms. Perino, was no answer at all. Try again.

(Sent today.)

Voice of America article

In an interview on BBC radio yesterday, Associate Supreme Court Justice Antonin Scalia, when asked about the legality of torture, pulled up everyone's favorite example of the "terrorist who knows where the nuclear bomb that's going to destroy Los Angeles is hidden" (otherwise known as any episode of 24). He suggested that it would be ridiculous to limit people in what they could do, under these circumstances, to extract information from that person. From there, he reasoned that there's a sort of sliding scale, whereby you can abuse someone more if their information is more critical.

No.

There may someday be this situation, where thousands to millions of lives are at stake, and someone on our side is confident that the person they have in custody, right now, knows enough information to prevent a disaster. They may even make the decision to torture that person to get that information.

And if and when they make that decision, I want them to make it knowing that they will go to jail for doing it.

I want the bar for torture to be "Am I willing to go to jail for this?"

After all, ask me any day of the week, and I will happily go to jail for two to four years (that's for assault with bodily injury, under California law) to save thousands or millions of lives. I believe that our police officers and Federal agents would make that same decision. And I really want them to have to.

There can be no sliding scale. Sometimes, the bar simply must be set at jail time. If you're willing to trade a few years of your freedom for the outcome, then you may have possibly given enough thought to what you're about to do to another human being. We don't want it to be any easier than that.

Former SS prison guard Michael Seifert was extradited last week from Canada to Rome, where he will serve the remainder of his life in custody following his conviction for World War II-era murder. Seifert was convicted in absentia eight years ago by an Italian military tribunal for his role in killing and torturing people during his time as a guard at a prison camp in Bolzano. He was arrested in 2002 at the request of the Italian government, and his attempts to prevent his extradition finally failed this year.

Seifert's extradition has been welcomed by groups campaigning for Nazi war criminals to be brought to justice.

"It sets an example for other war criminals, not only Nazi war criminals, but war criminals related to Rwanda, Bosnia, Darfur or any other genocide," he said.

Once again, this is one of the good signs of our times, much like the trials of former Khmer Rouge leaders and the prosecution of former South American government officials involved in operation Condor. Every time we do this, we reaffirm that there is no statute of limitations on crimes against humanity.

BBC article

This week BBC South released the results of its investigation into the use of special surveillance powers by local councils in southern England. These powers -- that allow active surveillance, phone monitoring and email interception by local councils to combat crimes -- were created to help in the fight against domestic terrorism and similar serious offenses withing the United Kingdom. In practice, however, the BBC found that many local councils have spent a significant amount of time putting their constituencies under surveillance in the hunt for comparatively trivial offenses.

Highlights include:

• A family being under constant surveillance, including people casing their home and following them, to determine if they actually lived in the school district into which they were enrolling their children
• In-depth undercover investigations to prevent dog fouling (that is, people letting their dogs poop in public parks)
• Catching people harvesting clams from unauthorized sites

The concept of your city or county government actually tailing you, wiretapping you, and reading your email just to find out if you're letting your dog mess up the local park likely seems patently ridiculous to an American reader, but it's an excellent example of power creep. It's mostly human nature. If you're given a plate full of food, you eat it, and if you're given a tool, you feel strange letting it sit around unused.

This is why the arguments in the US that torture should be legal under some circumstances are so dangerous and corrosive. If a tool is approved for use some of the time, both the opportunity and the pressure are there to apply the tool to other situations.

It is ridiculous to think of using active surveillance teams to check that someone isn't fibbing about which school district their kids belong in, but nonetheless, that happened. You really don't want to be the person who disappears one day off the street on your way to work because an administrator decided that they haven't made a warrantless seizure of someone in a while -- and that's why it's best that these tools never, ever be legal.

BBC article