the end of the rule of law

courtesy of John McCain and Joe Lieberman. Via OpenCongress:

One of Congress’s most notoriously hawkish duos, Sen. John McCain [R, AZ] and Sen. Joseph Lieberman [I, CT], recently introduced legislation in response to President Obama’s decision to try Umar Farouk Abdulmutallab, the Christmas Day airplane bomber, in a criminal court. Their proposal, which they are calling the Enemy Belligerent Interrogation, Detention and Prosecution Act, would empower the U.S. military to arrest anyone, U.S. citizen or otherwise, who is suspected of terrorist associations and detain them indefinitely, without right to a trial.

From the legislation itself:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3( c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

And the people eligible for such treatment:

(2) CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES- The regulations required by this subsection shall include criteria for designating an individual as a high-value detainee based on the following:

(A) The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States.

(B) The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States.

(C ) The potential intelligence value of the individual.

(D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda.

(E) Such other matters as the President considers appropriate.

The passage of this bill will mean the president can lock up anyone he wants for any length of time for any reason he deems sufficient. It does not matter if that person is a US citizen on US soil, or how many decades there are considered to be "hostilities," or even whether or not the person is in any way involved with terrorism.

For all of you consoling yourselves by figuring this will never survive judicial review, remember that only those people with "standing" can challenge a law in court. What this means is the ACLU can't just petition the Supremes to review any law they see fit; you can only challenge a law you have been personally punished by or will be imminently punished by. In this case, you have to have already been jailed by the military under this law to take the president to court.

Except you can't, of course, because this law explicitly denies you the right to a trial or a lawyer.

simple questions

From the Wall St. Journal:

WASHINGTON -- The Obama administration is weighing plans to detain some terror suspects on U.S. soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.

The proposal being floated with members of Congress is another indication of President Barack Obama's struggles to establish his counter-terrorism policies, balancing security concerns against attempts to alter Bush-administration practices he has harshly criticized.

Sen. Lindsey Graham (R., S.C.), who met this week with White House Counsel Greg Craig to discuss the administration's plans, said among the proposals being studied is seeking authority for indefinite detentions, with the imprimatur of some type of national-security court.

Sen. Graham said he wants to work with the administration to pass legislation to increase judicial oversight of military commissions, but noted the legal difficulties that would arise.

"This is a difficult question. How do you hold someone in prison without a trial indefinitely?" Sen. Graham said.

Eh, was that a rhetorical question? Because that issue seems pretty easily resolved.

it was all a lie

Those of us arguing that maybe perhaps torture was stupid and immoral even when applied to terrorists during the Bush Administration always had to answer for the case of Abu Zubaida, that high level Al Qaida operative that the CIA tortured for information they used to foil lots of potential plots and nab Khalid Sheikh Muhammad. How could we argue that torture doesn't get good intel? It got good intel from Abu Zubaida!

Except, we now learned, it didn't. From Washington Post reporter Dan Froomkin:

Abu Zubaida was the alpha and omega of the Bush administration's argument for torture.

That's why Sunday's front-page Washington Post story by Peter Finn and Joby Warrick is such a blow to the last remaining torture apologists.

Finn and Warrick reported that "not a single significant plot was foiled" as a result of Zubaida's brutal treatment -- and that, quite to the contrary, his false confessions "triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms."

Zubaida was the first detainee to be tortured at the direct instruction of the White House. Then he was President George W. Bush's Exhibit A in defense of the "enhanced interrogation" procedures that constituted torture. And he continues to be held up as a justification for torture by its most ardent defenders.

But as author Ron Suskind reported almost three years ago -- and as The Post now confirms -- almost all the key assertions the Bush administration made about Zubaida were wrong.

Zubaida wasn't a major al Qaeda figure. He wasn't holding back critical information. His torture didn't produce valuable intelligence -- and it certainly didn't save lives.

I was beginning to forget how George W. Bush makes my blood boil, how it felt to be ruled by police state conservatives. He and Cheney really were monsters.

first as tragedy, second as farce

From The New York Times:

In the Israeli parliamentary elections, to be held Tuesday, he is running on a vow to require Arab citizens to sign a loyalty oath. As his campaign slogan asserts with a sly wink at Jewish voters, Avigdor Lieberman “knows how to speak Arabic.”

Mr. Lieberman does not know Arabic and will not, by all polls and predictions, become the next prime minister. But his popularity has been climbing so steeply that his party is now expected to come in third, making him a likely power broker with an explosive and apparently resonant political message: Israel is at risk not only from outside but also from its own Arab population.

“It no longer matters whether Lieberman will get 19 seats, as some polls indicate, or merely 15,” noted the political commentator Sima Kadmon in Friday’s Yediot Aharonot newspaper. “He is the story of this election campaign.”

This guy made his Yisrael Beitenu party because Israel's far right, militarist Likud party wasn't right wing enough for him. He made a dehumanizing threat of violence against Arab Israeli citizens his campaign slogan. A central part of his "peace" plan is revoking their citizenship. And he may soon become one of the most powerful men in Israel.

Just what kind of high government official would he make? Here's a nugget of Lieberman's diplomatic wisdom for ya, in response to a volley of suicide bomb attacks:

"if it were up to me I would notify the Palestinian Authority that tomorrow at ten in the morning we would bomb all their places of business in Ramallah, for example."

Speaking of more right than right, if his party proves as successful in the election as polls indicate, Israel will have elected as its 3 main choices a right wing party, a centrist party, and an uber-right wing party. And we are committed to defending them no matter what.

What could possibly go wrong?

Bush: McCain's treatment not torture

Interesting. I can't believe I didn't think of that!

A few days later, the case against Ivins not looking nearly as good

Why am I not surprised? Glenn Greenwald:

The FBI's total failure to point to a shred of evidence placing Ivins in New Jersey on either of the two days the anthrax letters were sent is a very conspicuous deficiency in its case. It's possible that Ivins was able to travel to Princeton on two occasions in three weeks without leaving the slightest trace of having done so (not a credit card purchase, ATM withdrawal, unusual gas purchases, nothing), but that relies on a depiction of Ivins as a cunning and extremely foresightful criminal, an image squarely at odds with most of the FBI's circumstantial evidence that suggests Ivins was actually quite careless, even reckless, in how he perpetrated this crime...

The Washington Post Editorial page -- the ultimate establishment organ -- published its second Editorial yesterday calling for an independent investigation of the FBI's case against Ivins and pointed out just some of the numerous, critical holes in that case:

The case is admittedly circumstantial, and questions have been raised about the reliability of the FBI's scientific evidence, the inability to tie Mr. Ivins to the handwritten notes included with the mailed anthrax, the process by which the FBI excluded as suspects others who had access to the anthrax, and more.

The NYT today has an excellent Op-Ed from a microbiologist (the former Chief of Fort Detrick's bacteriology division) pointing out the numerous deficiencies in the FBI's scientific assertions. Critically, that Op-Ed describes the properties of the high-grade anthrax sent to Sen. Daschle and then notes: "It is extremely improbable that this type of preparation could ever have been produced at Fort Detrick, certainly not of the grade and quality found in that envelope."

I felt a little weird about that first big information dump on Bruce Ivins because of how much it focused on his psychological problems and fetishes. We saw the same sort of thing happen in the Kenneth Starr investigations and in various other trials, where the prosecutor would bombard us with stories about the defendant's peccadilloes and deviant tendencies to mask the thinness of their case.

Ivins appears to have been guilty of having a whole panoply of psychological problems, but evidence that someone is crazy doesn't actually prove that said person committed a given crime. In fact, it's not even particularly helpful in that regard.

I think it's still much too early for anyone to be rendering a verdict on this case one way or the other, but it's not looking good at this point.

TX-Sen: John Cornyn thinks you're an idiot

Or, perhaps, 11 years old.

Yeah, this is a serious ad, and yeah, this is about John Cornyn's intellectual caliber. Who wouldn't want to have a "brew or two" with the Bad Ass Christian Cowboy Senator? Especially the one who kinda looks like John Lithgow?

For those of you who don't remember the esteemed Senator from Dodge City Texas, he's one of Jack Abramoff's buddies who famously implied on the Senate floor that judges themselves, because of judicial activism, were to blame for a recent spate of violence against them. This was back in those dark days of l'Affair Schiavo, when there were widespread fears that militant social conservatives would take action against the judges who "killed" Terri.

He also had a classic exchange with Senator Russ Feingold of Wisconsin after the revelations of the Bush Administration's warrantless wiretapping. Cornyn says to Feingold:

"None of your civil liberties matter much after you're dead."

Feingold's reply?

"Give me liberty or give me death."

Greenwald on yesterday's Supreme Court decision

Read the whole thing. In among all the important points he makes is a key difference between the Crazy Train and Barack Obama:

The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.

The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.

Passage of the Military Commissions Act was spearheaded by John McCain, who was anointed by cowardly Senate Democrats to speak for them and negotiate with the White House. Once McCain blessed the Military Commissions Act, its passage was assured. Barack Obama voted against it, and once its passage appeared certain, Obama offered an amendment to limit it to five years. That amendment failed, rendering the MCA the law of the land without any time limits.

It never ceases to amaze me that these so-called "small government" conservatives only wag their fingers at "big government" when it tries to help poor people. When it comes to taking away the rights and power of individuals, on the other hand, no encroachment on popular sovereignty or the rule of law, no lurch toward authoritarianism, is too far for the modern Right. Their objections to government power are purely capitalistic, without a shred of concern for democratic principles. In fact, where such democratic principles are concerned, the Right opposes them.

Thus, the true moniker for the American successors of Strauss and Buckley: police state conservatives.

McCain flip flops, now supports Unitary Executive Theory

John McCain throws another keg of Bush Lite on the Crazy Train. From Wired:

If elected president, Senator John McCain would reserve the right to run his own warrantless wiretapping program against Americans, based on the theory that the president's wartime powers trump federal criminal statutes and court oversight, according to a statement released by his campaign Monday.

McCain's new tack towards the Bush administration's theory of executive power comes some 10 days after a McCain surrogate stated, incorrectly it seems, that the senator wanted hearings into telecom companies' cooperation with President Bush's warrantless wiretapping program, before he'd support giving those companies retroactive legal immunity.
...
McCain's new position plainly contradicts statements he made in a December 20, 2007 interview with the Boston Globe where he implicitly criticized Bush's five-year secret end-run around the Foreign Intelligence Surveillance Act.

What a maverick. I wonder, will pundits in our liberal media characterize this as a "flip flop" or ask if his foreign policy views are "serious?" Then again, perhaps this statement was pre-empted by the worst prebuttal speech ever.

Damn you Michael C. Hall!

Crime dramas bother me. In virtually every crime drama, the judicial system is actually an impediment to the struggle for justice because it is hamstrung by the Bill of Rights. Evil criminals slip through the fingers of the righteous policemen thanks to sissyfied civil rights and unctuous, amoral defense attorneys until the evidence finally proves their guilt, when suddenly their eyes narrow and they remorselessly and calmly lay out their evil machinations in minute detail, revealing their true, monstrous nature. The moral message of every other episode is: "Damnit! If only we didn't have habeas corpus and laws against illegal searches, then we could've saved that last victim!"

Dexter adopts this "moral" message and carries it even further, arguing not only that skirting civil rights makes for more efficient justice, but that it takes a serial killer to clean up the mess of criminals made untouchable by the Bill of Rights, that true justice is the western style, 2-in-the-noggin variety. Dexter is a more efficient and precise instrument of justice, we are told, precisely because he is unbound by the accused's civil liberties, and his justice is more enduring and complete because there is only one punishment.

Now if the damn show would just stop being so well written and acted, maybe I could stop loving it.

it happened to people like us

Wow. Go MTV!

coercing confessions, FBI-style

An amazing story here:

The long and the short of it was that an Egpytian national, Abdallah Higazy, was staying in a hotel in New York City on September 11 and the hotel emptied out when the planes hit the towers. The hotel later found in the closet of his room a device that allows you to communicate with airline pilots. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States.

So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back.

Can you believe this shit? Well, the good news is that he sues, and the judge rules that he is entitled to damages. However, then something strange happens after the opinion is posted online: the court has to take down the opinion and redact it, because the details of the FBI coercion are classified.

Imagine that.