Volunteers for a Better America

Uncle Sam Wants Your Records

Today's news, hardly covered at all on CNN and other popular television news channels, is that the U.S. government is asking internet companies to retain records of ordinary Americans' web-surfing activity for law enforcement use.  See Saul Hansell & Eric Lichtblau, U.S. Wants Internet Companies to Keep Web-Surfing Records, New York Times, June 2, 2006, at A17.

Privacy and individual rights seem to have gone down the drain, starting with the original enactment of the so-called Patriot Act and extending through the myriad measures that the Bush Administration has taken to enhance executive power and tie military and domestic spying activities together.  We have learned that the NSA has been gathering phone records without following the law that was enacted to stop abuses that occurred during the Nixon administration.  We know that the Defense Department is still gathering data for its massive database on ordinary citizens, and we know that the Administration has utilized its powers under the disastrous Patriot Act to gather library records.  Now Justice's Gonzales is proposing that Americans should give up their freedom to surf the Web without government intrusion, in order to possibly aid law enforcement against child pornographers. 

Let's face it.  Law enforcement would love to have a rule that every citizen has to wear a collar that relays exact location and activities 24/7.  That would certainly cut down on crime and would help police eliminate sex trafficing, child pornography, robberies and murders.  But we have always drawn a line that protects people from that kind of Stalinesque government intervention in our daily lives.  We would be utterly foolish to let a terrorist incident like 9/11 be used to strip us of our ability to explore ideas over the internet without being traced by some government snoop.  This proposal is a bad idea.  It represents the worst of the Bush Administration's propensity to put purported efforts to make us more secure above every precious individual liberty.  Congress should not go along with the proposal, and let us hope that the Supreme Court will have the gumption to stand up for individual liberties if the Justice Department decides to go ahead without enabling legislation.

Time for Censure

A letter to the editor from Linda Beale supporting Feingold's censure motion appeared in the Champaign News-Gazette on April 18, 2006.  The letter notes the "mockery of American law" represented by taxpayer-funded partisan propaganda, refusal to comply with international laws respecting the human rights of prisoners, and violation of laws against domestic spying that were enacted specifically to prevent presidential overreaching.  It concludes with praise for the Senator as a "courageous patriot."

Alito Nomination

As we approach the vote in the Senate on the Alito nomination, America stands at a crossroads. It is just slimly possible that Samuel Alito's nomination to the Supreme Court of these United States of America can be stopped by a filibuster when the vote comes on Monday, if enough senators will stand up for principle against confirming a Justice whose core values support principles that are inimical to a sustainable democracy.

Alito's radical right-wing views are well known.  He has described himself in job applications and talks, and there is a significant body of judicial opinions from which to judge what kind of Justice he would be.  In particular, Alito's known positions on unconstrained presidential powers, lack of protection for individual privacy rights, lack of protection for the environment and favoritism towards entrenched corporatist views of government and wealthy/corporate control of government will mar our country's democracy for decades to come if he is confirmed.

The New York Times has it right in its January 26 editorial, Senators in Need of a Spine.  Here's an excerpt.

Judge Samuel Alito Jr., whose entire history suggests that he holds extreme views about the expansive powers of the presidency and the limited role of Congress, will almost certainly be a Supreme Court justice soon. His elevation will come courtesy of a president whose grandiose vision of his own powers threatens to undermine the nation's basic philosophy of government - and a Senate that seems eager to cooperate by rolling over and playing dead.

It is hard to imagine a moment when it would be more appropriate for senators to fight for a principle. Even a losing battle would draw the public's attention to the import of this nomination.

Domestic Spying (2)

The February 9, 2006 New York Review of Books includes a letter to Congress from 14 constitutional law professors and former government officials (including David Cole, Walter Dellinger, Ronald Dworkin, Richard Epstein, and Kathleen Sullivan) expressing their assessment of the Justice Department's defense of the National Security Agency's domestic spying program.  See Curtis Bradley et al, On NSA Spying: A Letter to Congress, at 4.  The authors note that the Justice Department's defense "fails to identify any plausible legal authority for such surveillance.  Accordingly, the program appears on its face to violate existing law."  Id.  Their arguments are summarized, with some direct quotations, below.

1) The 1978 law enacted by Congress specifically to cover all domestic electronic surveillance doesn't permit the Bush spying program.

Congress clearly has authority to regulate domestic wiretapping by federal agencies under its Article I powers. Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 after extensive deliberation as the comprehensive regulation of electronic surveillance in the United States.  Wiretapping is possible only on the basis of sufficent showings and approval by a court, with exceptions for warrantless domestic surveillance only during the first fifteen days of a war.  The act specifically establishes that it is the exclusive means for authorizing domestic electronic surveillance, and any such activity that is not authorized by statute is criminal.  FISA expressly prohibits the type of domestic electronic spying undertaken by the Bush administration.

2) The 2001 law enacted by Congress to authorize military force against al Queda after 9/11 doesn't permit the NSA domestic spying program.

Congress enacted the Authorization for Use of Military Force (AUMF) on Sept. 18, 2001. It authorizes the President to use "all necessary and appropriate force against" al Queda. The Department of Justice (DOJ) argues that it is impliedly authorized to conduct domestic electronic surveillance as a fundamental incident of war under that authorization.  But there can be no implied authorization when there is an explicit statute directly on point that denies such authority (the only wartime spying without the court procedure is during the first 15 days of a declared war) and that has not been explicitly repealed. 

The principle that statutes should be interpreted to avoid serious constitutional questions also weighs against the interpretation advocated by the DOJ.  "The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight." Id.  It was those Fourth Amendment concerns that led Congress to enact FISA in 1978.  Nor would the "special needs" exception excuse the judical process and individualized suspicion requirements--it applies "only where those requirements are impracticable and the intrusion on privacy is minimal." Id. 

The Administration did not try to amend FISA because it thought Congress would reject the amendment.  DOJ cannot argue that it didn't amend FISA because Congress would reject such an amendment, yet claim that Congress impliedly included provisions equivalent to such an amendment in its approval of AUMF!  Id.

The Supreme Court's consideration of the case of Yusef Hamdi, which permitted the Executive Branch to detain enemy combatants captured on a battelefield abroad as a "fundamental incident of waging war", cannot be extended to cover this case.  That dealt with individuals who supported hostile forces and were engaged in armed conflict against the United States in Afghanistan, not domestic electronic surveillance.

3) Construing FISA to prohibit warrantless domestic wiretapping doesn't create constitutional problems, whereas construing AUMF to permit it does. 

The statutory scheme is not ambiguous, and the FISA limitations are consistent with the President's executive role.

"To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. ... As Justice Jackson famously explained ..., 'Presidental powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.' "  Id. (citing Youngstown Sheet & Tube Co.).

If the Attorney General's interpretation of FISA were to apply, the President would have extraordinarily broad reach to wiretap domestically, since a person who merely received a message from another person who was thought to have worked with an organization that is "supportive" of al Queda could be subject to wiretapping.  That is a 3rd or 4th order of removal from actual involvement or participation in a terrorist group, and could ensnare many innocent Americans without providing the protections required by the Fourth Amendment.

The letter concludes with a powerful statement regarding the limitations on executive authority in a constitutional democracy.

"One of the crucial features of a constitutional democracy is that it is always open to the President--or anyone else--to seek to change the law.  But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."  Id.

Domestic Spying

Concern about an administration intent on creating an all-powerful executive that does not understand the important and co-equal functions of the courts or Congress continues to mount. Bush has defended his wiretapping program as a tool in the fight against terrorism that relies on inherent powers of the presidency to permit him to circumvent the secret court whose function it is to issue warrants in intelligence cases and additionally claims that it was implicitly authorized under the 2001 Congressional resolution that permitted military action against Al Queda.  See this Washington Post story about Gonzales' response to Congress' request for the legal rationale.

Bush's use of those two shaky legal authorities (the Commander-in-Chief function assigned to the President in the Constitution and the Congressional authorization for military action as a followup to the 9/11 terrorist attacks) are especially suspect because of new evidence that he authorized extralegal wiretapping before 9/11, in the early days of his administration.  See this article at TruthOut.

Al Gore gave a tremendously important speech to the American Constitution Society on Martin Luther King Day, available at this Alternet link.  As Gore noted, domestic surveillance has been used historically as a means to undercut political opponents.  Martin Luther King was illegally wiretapped as were various anti-war groups in a later era.  Gore expressed the concerns of all Americans committed to a sustainable democracy in the following paragraphs.

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution -- our system of checks and balances -- was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution -- an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."  Id.

Regretably, the White House responded to Gore's speech with its typical gunslinger approach.   Caught redhanded violating the surveillance law after claiming in public that no surveillance was done without a warrant, the White House used their typical everybody-else-does-it defense.  Scott  McClellan accused Gore of hypocrisy, calling attention to warrantless searches conducted in the Aldrich Ames spy case during the Clinton administration.  See Washington Post story, White House Disputes Gore on NSA Spying.  What McClellan failed to say is that those were physical searches, not illegal wiretaps, and that physical searches were not included in the surveillance act until a change was enacted and signed by Clinton.  McClellan also arrogantly dismissed the ACLU and CCR suits as "frivolous", demonstrating that this White House does not understand the importance in a democracy of having the support of the people. Congress should recognize the gravity of these actions and immediately establish an independent investigation and in-depth analysis of the Bush Administration's wiretapping and data-gathering operations.

The ACLU and Center for Constitutional Rights have already filed separate lawsuits calling for an injunction against the wiretaps.  See this story in the San Diego Post and this summary posted on the CCR website. CCR's complaint calling for injunctive relief is at this link.  The lawsuits assert that Bush exceeded his authority and violated the Fourth Amendment guaranteed against unreasonable searches and seizuers when he ordered National Security Agency domestic surveillance. 

Economic inequality, CIA spying, and Presidential Power

Let me start by quoting at length from a book by Suzanne Mettler about the post-war transition from Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation.

"As the United States entered the 1970s, the nation seemed ever closer to becoming the fully inclusive and highly participatory democracy implicit in its highest ideals.  At that very juncture, however, circumstances coalesced that rattled the very underpinnings of the American polity.  Beginning with the first oil shock in 1973, the economy, which had been growing at a rapid pace throughout the postwar decades, slowed considerably.  Jobs that had long guarnteed strong wages and benefits to less highly educated workers began to disappear.  Over the next couple of decades, lower-and middle-income families saw little real growth in their incomes, while the wealthiest reaped considerable advantage.  At the same time, a conservative political coalition began to gather steam, advancing a political philosophy that treats government itself as the problem.  Thus, by contrast to those who governed in the middle of the twentieth century, public officials of recent decades have been largely unwilling to use public socialprovision to ameliorate growing inequalityh.  Many public programs have been left to wither, and government has become considerably less present in the lives of ordinary Americans, particularly the young.  As a result, economic inequality, which had remained relatively low since about 1950, began to escalate and has continued to do so, returning American society to the disparities that marked the Gilded Age.  Further, the fault lines of the new inequality have reinforced manyof the old racial and gendered cleavages that the rights revolution had meant to eradicate.  Granted, today women and African American men who are highly educated professionals occupy positions in society that would not have been conceivable in the postwar era.  For the vast majority, howegver, growing economic inequality has sharply curtailed hopes of equality."

The last five years have exacerbated those trends, with tax cuts designed to benefit the wealthiest 20 percent of the income distribution and program cuts designed to cut into the safety net for the remaining 80 percent.  Not unsurprisingly, the United States is falling behind in programs that it should be excelling in, because we are not devoting adequate resources to basic public goods such as education.  See, e.g., Fareed Zakaria, We All Have a Lot to Learn, Jan.9, 2006 Newsweek, at 37 (noting that China has increased spending on colleges and universities tenfold in the past 10 years, with Peking University having created state of the art semiconductor fabrication facilities that "outshine anything in the United States"). 

"Unless [an American is] comfortably middle class or richer, ...you get an education that is truly second-rate by any standards.  Apart from issues of fairness, what this means is that you never really access the talent of poor, bright kids.  They don't go to good schools and, because of teaching methods that focus on bringing everyone along, the bright ones are never pushed. ... The good news for Ameirca is that the peaks are getting higher.  But the valleys are getting deeper, and many of them are also in the United States."  Id.

One effect of this growing economic inequality is growing political and social powerlessness.  The poor and increasingly the true middle class are disparaged and left without government protections.  In this Republican-controlled government, groups with money are able to buy legislation, as super-lobbyist Jack Abramoff now admits doing, see story here and here, in his high-flying days as a lobbyist and power broker.   Legislators revel in luxurious restaurants and golfing trips to Scotland, paid for by lobbyists' money, and then follow through by providing political services for the lobbyists' clients.  Such cozy relationships between legislators, lobbyists and their corporate cronies, apparently at stake in the case of DeLay of Texas and Ney of Ohio, corrupt the political process and prevent Congress from acting as a check against the power of the executive.  The obstruction of justice charges against Cheney chief of staff Scooter Libbey (and the involvement of Bush right-hand man Karl Rove in the outing of Plame as a smear campaign against Wilson) were, it seems, just the tip of the iceberg.  There is a climate of corruption that views liberty rights of individuals as meaningless against the backdrop of ambitions for power.  (Fitting this trend, recently it was revealed that various administrative agencies track users activities, some even inserting "cookies" in users' computers.  See story here.  The NSA claimed that its use of cookies was unintentional.)

These changes, and the tightening vise of the neo-conservative ideology on government, have coincided with the development of a "fear society" that has permitted an executive branch obsessed with restoring status to the presidency to grab unprecedented power, cloak government actions in secrecy, and stifle the deliberative dialogue that is the core of democracy.  As more information comes out about the covert eavesdropping authorization, it is clear that this White House sees no bounds on its ability to assume power during a time of war, even one of its own creation under misleading rationales.  Further, it equates the ever-present struggle against terrorism, which has accompanied human civilization in one form or another since its founding, with nation-to-nation war, and seeks to justify radical departures from civil protections as wartime powers under the Commander-in-Chief authority provided in the Constitution. 

The Washington Post reports that the spy programs authorized by Bush have "grown into the largest CIA covert action program since the height of the Cold War, expanding in size and ambition despite a growing outcry at home and abroad over its clandestine tactics."  Dana Priest, Covert CIA Program Withstands New Furor.  The administration relies on a small group of legal advisers and refuses to consult broadly with Congress on actions.  It claims that "the battlefield is worldwide, and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001 when it passed a resolution authorizing 'all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks.' "

With this thin claim of support in the law, this administration has authorized illegal secret prisons, extraordinary rendering of prisoners to countries that torture, illegal interrogation techniques like waterboarding and sleep deprivation that constitute torture, and illegal eavesdropping on domestic telephone calls that violate the FISA provisions for protection of U.S. citizens from government spying, and illegal assassinations.  The Post article indicates that George Tenet was permitted to decide if someone should be killed--e.g., assassination of an Al Queda leader with a missile fired from a remote-controlled drone--an action banned by law in this country, except that White House lawyers decided that it could be classed as self-defense and not assassination.  Id.  And various people targeted as al Qaeda officials (and bystanders) have been taken out in that way.

"Time and again the administration asked government lawyers to draw up new rules and reinterpret old ones to approve activities once banned or discouraged under the congressional reforms beginning in the 1970s."  Id.

"The Bush administration did not seek a broad debate on whether commander-in-chief powers can trump international conventions and domestic statutes in our struggle against terrorism." Id.

For a sobering commentary from John Dean, Nixon's legal counsel who first warned of the "cancer on the presidency" that grabs for power and coverups represent, see George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably.

This series of abuses of power must stop, and they must stop through a deliberative process in which Congress investigates and receives information about the details of the administration's actions here and abroad.  It is time for the Congress to act to rein in this imperial presidency.  Congress should impeach Mr. Bush, else we will be saddled with an executive that acknowledges no bounds to its powers under the Constitution or the statutes.   

Elections, Eavesdropping, Padilla, and Lawrence Wilkerson

Clean Elections, Jobs for Justice, Volunteers for a Better America and Giving Generously

One thing the current national scene should do is convince each and every one of us to become more involved locally.  Here in Central Illinois, there are several groups that are generally interested in promoting social justice.  Surely, each one of us can find one group that is "close enough" to our own particular set of values that we can become involved as an active participant in the struggle to recapture our democracy.  Clean Elections, Jobs for Justice, Volunteers for a Better America--each of these groups has potential to make real differences for individuals in ways big and small.  Just think what this world would be like if we established a state fund that paid for election campaigns and took the millionaires and corporate money out of the elections!  No more "bought" legislation, no more paying attention to the rich guys while poor families go without heat, health care, and education.  Think if we all dedicated ourselves to ensuring that each person had a decent job that could pay for food, shelter and even health care and retirement.  What if we all volunteered to inform our neighbors, encourage dialogue, engage in civic projects, and work for peace and justice each day?  Couldn't it be a better world?

Did you read the story in the Chicago Tribune today about the shortfalls in food banks in Chicago, New York, Los Angeles.  People have topped out in donations.  But remember the earlier posting on A Taxing Matter, that wealthy people are far less generous with their incomes than people in lower income brackets?  Let's go out there and press everyone to ante up before the end of the year to help those who are less fortunate.

Surveillance and More Surveillance (and Alito)

"Nation's Phones Tapped: Government analyzing massive amount of calls, e-mail traffic" screams the Chicago Tribune on  the front page, Christmas Eve 2005, as the story of the Bush Administration's widespread data-mining operation becomes better understood.  Not just a few dozen calls based on specific traces to particular overseas terrorist suspects, but "large volumes of telephone and internet communications flowing into and out of the United States" "collected by tapping directly into some of the American telecommunication system's main arteries."  Id.   The Administration even arranged for foreign-to-foreign traffice to pass through U.S.-based switches, and telecommunications companies willingly obliged in scanning that traffice for "patterns" and passing it along to the government.   All of this data-mining of private communications has been done, without the ordinary warrant requirement, in a context of warm cooperation between the Bush Administration and our quasi-public telecommunications utilities and media companies. 

"'All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area,' said [a] former ... telecommunications expert."  Id.

The Administration claims, see this story by Eric Lichtbau, that FISA doesn't provide sufficient flexibility in this age of terror.  Yet it did not then go to Congress and work out a law that protects liberties while providing the kind of rules necessary.  Instead, it determined that it would just not abide by the law on these matters and "arranged with top officials of some of the nation's largest telecommunications companies to gain access to important switches." Id.  Interestingly, Colin Powell is on record, here, as saying he supports the exercise of the authority, that he doesn't understand why the Administration did not seek authorization under the law since it would not have been difficult, and that there will be a great debate over the warrantless eavesdropping.  As always, Powell is trying to do the impossible--be loyal to Bush and be loyal to the values for which this country stands.

It may be that products of this data-mining have then been used by the Bush Administration to justify further surveillance of particular targets under the FISA court's very secretive processes.  This is reported to be one of the reasons that Judge Robertson, an appointee to the FISA court, stepped down to protest the Bush policies.

By Christmas Day, we could peruse the Justice Department memo to the chairs and vice-chairs of the Senate and House Intelligence Committees, linked here.  The legal rationales offered are disturbing in a country that purports to be the leader of the free world.  Bush, buttressed by a vice president and staff member who have explicitly stated that they wish to increase the brute power of the office of the presidency, essentially claims that the Constitutional authority to command the armed forces in the time of war give him the right to do whatever he deems necessary in the interests of national security, without courts or Congress having any check upon that power.  In addition, the memo claims that the authorization to invade Afghanistan was an implicit exception to the strict requirements of the Foreign Intelligence Surveillance Act.

Not unsurprisingly, Supreme Court nominee Alito argued as far back as the 1980s that government officials who violate the law in ordering illegal wiretaps should be considered immune from lawsuits (though he did not think his arguments should be tested in court).  Remember that Alito's memos were written in the context of the aftermath of Watergate and the indictment and ultimate imprisonment of Attorney General John Mitchell for obstruction of justice.  (Yes, those same charges that are applicable to Scooter Libby in the outing of Valerie Plame.) If government officials are above the law, what constraint is there to ensure that they act for the public good rather than for their personal aggrandisement or power?   This is another reason for filibustering Alito's nomination.  His ideological extremism would support an immensely powerful executive and decreased rights for women and minorities.

Meanwhile, we also learn of widespread radioactivity monitoring by the government, apparently by driving vehicles into private parking lots adjacent to homes, mosques and stores. See this report by Matthew L. Wald in the Dec. 24, 2005 New York Times reporting "thousands of searches" over the last three years.  The Council on American-Islamic Relations issued the following statement.

"This disturbing revelation, coupled with recent reports of domestic surveillance without warrant, could lead to the perception that we are no longer a national ruled by law, but instead one in which fear trumps constitutional rights.  All Americans should be concerned about the apparent trend toward a two-tiered system of justice, with full rights for most citizens, and another diminished set of rights for Muslims."  Id.

Federal agents have asserted they have violated no constitutional rights.  One is quoted as saying "If you can drive a car into the parking lot near the shopping mall, we [with our sophisticated spying equipment] can go there."  Id.  This nonchalance of government agents to privacy invasions confirms that privacy rights have deteriorated amazingly since the 1965 Terry v. Ohio case that concluded that Americans have no expectations of privacy in their automobiles.  Make no mistake about it--this is a grab for immense discretionary power over citizens who have in no way provided probable cause or even reasonable suspicion of commiting treason.  It is essentially a right of the executive to be above the laws created for others in this country, and to choose to apply those laws as that person sees fit.

Meanwhile, a lone Republican senator blocked authorization of the intelligence bill, in what the meda reported, here, as an attempt to thwart the efforts of Ted Kennedy and John Kerry to require detailed national intelligence updates to Congress about secret detention sites overseas and reports on prisoner treatment and conditions.  Why is it that Republicans and Wall Street are so supportive of secret detentions, extraordinary renderings, and torture?  Surely they must know that those behaviors go against every tradition of liberty.

Jose Padilla:  now you've got him, you don't want him? 

Remember that Padilla is an American citizen who was seized on U.S. soil and then imprisoned for years in a military brig on Bush's decision to label him an enemy combatant who, according to Bush, intended to detonate a "dirty bomb" in the United States.  We have no way to know whether Padilla is innocent or guilty, because his case has never come before a court, in spite of the writ of habeas corpus and the 14th amendment due process rights.  The Fourth Circuit Court of Appeals, a court heavily laden with Republican appointees that leans heavily to the right in almost all its decisions, essentially held that American citizens can be held as enemy combatants whenever a President says that wartime exigencies require it.  See the September 2005 decision, here.  Since Padilla was arrested on American soil as a civilian and held for three and one-half years (and counting) in a military brig, that is an enormously worrisome conclusion in a regime that seems bent on maintaining a perpetual state of war to support the military-industrial expansion that ordinarily accompanies it. 

The Bush Administration apparently was worried about being able to uphold any kind of case against Padilla.  After winning the right to treat him as an enemy combatant held by the military based on the assertion that his release would threaten national security, the Administration decided it would prefer to release Padilla from military custody.  The Administration may not have wanted to face the Supreme Court's decision with O'Connor still on the bench and right-wing ideologist Alito not yet--and maybe never--appointed.  It requested that the Fourth Circuit moot its ruling and permit Padilla to be turned over to civilian custody for some comparatively petty criminal accessory charges. 

To put it mildly, last week's Fourth Circuit opinion, here and New York Times description, here, reflected the anger of being used and the concern that the Administration was toying with the judicial system.  It noted the irony of a request for release of a person that it had just argued must be held in military security.  It questioned the absence of information about Padilla's purported taking up arms with Afghanistan fighters against the United States, and the timing of an "emergency application" for transfer to civilian custody just days before the district court would hear evidence on whether Padilla, a citizen, had been properly classified as an enemy combatant and days before briefings were due in the Supreme Court on Padilla's appeal of the Fourth Circuit decision. Conservative Judge Michael Luttig (considered by Bush for the Supreme Court), used scathing language to indicate a concern that "the government may be attempting to avoid consideration of [the Fourth Circuit] decision by the Supreme Court" even though the case clearly "warrant[s] final consideration" because it "presents an issue of suchy especial national importance."  The court concludes with a frank observation that the Administration's conduct of the Padilla case could be seen as casting doubt on its integrity and hence its credibility before the courts--either Padilla may have been held for almost four years by mistake, or the powers the Administration has asserted it requires are not really necessary in the fight against terrorism.

The Wall Street Journal, the editorial pages of which lately seem to operate as Bush-Cheney lackeys, immediately came out with an editorial reminding the country that Bush hasn't been aggressive enough, having caved to McCain on "torture" (in quotes, so that you know they don't think torture is a serious subject), settling for a piddling six-month extension of the Patriot Act (this was before the House reduced it to five weeks), and now abandoning its enemy combatant case against a U.S. citizen.  Why, to read the Wall Street Journal, you would think that excessive military power over ordinary Americans' lives, the use of torture, excessive corporate subsidies, giveaway tax cuts for millionaires, and an FBI, CIA or NSA agent in the driveway, attic and basement of every home was the ideal American dream that our courageous soldiers fought so hard for in World War II!  The Journal's editorial makes a few errors.  It claims that "Padilla has become a liberal icon--an 'innocent' man who has been held 'illegally.'"  Padilla is a liberal icon, but not because he is necessarily innocent.  He may well be guilty of planning to detonate a dirty bomb, but Americans who treasure liberty are not comfortable with a one-man monkey court declaring him evil and putting him away without due process of law.  The Journal goes on to say that the debate has been caught up in "one man's rights" and missed "the right of the rest ofus to be protected from enemy attack." 

Of course, that argument misses on several points.  Each person's rights are, in fact, every other person's rights--we cannot think about rights in the aggregate, societal rights, "freedom" or "democracy" in the abstract, if those abstract rights do not translate to real protections for each and every individual. The reason our criminal system declares that individuals are "presumed innocent" is that only in that way can each person's right be realized.   The rule of law is based first and foremost on this fundamental principle--that each individual shall be judged on his or her own actions, on the merits of the information, without prejudice.  The individual cannot be lightly executed just to simplify protection of those who remain.  If an individual can be subject to arbitrary process today, then any other individual may be subject to that same arbitrary process tomorrow.  This was the lesson learned by the world in a most difficult way during Hitler's Third Reich.  It is dictatorships that declare the power to judge and execute citizens on the sheer whim of the dictator.   And no person who escapes the ax one day has any rest that he or she will be free from it the next.

Lawrence B. Wilkerson, speaking out

Wilkerson, former chief of staff for Secretary of State Colin Powell and retired Army colonel, has begun speaking out about the Bush Administration.  He notes the secretive approach of the Administration, and its incompetence both at home and abroad.  He asserts that Powell was too involved with damage control to do the work he should have done.  He accuses Cheney and Rumsfeld of running a cabal that makes the critical decisions on issues for a president who "is not versed in international relations and not too much interested in them either."  See the story in the New York Times, Dec. 24, 2005, at A4.  He laments the Administration's condoning of torture and setting policies that led to abuses like Abu Ghraib. 

FISA Court Calls Bush to Account

Bush has claimed that he had power, as commander-in-chief and under the authorizing language for launching a war against Afghanistan, to circumvent the constitutional protections against warrantless searches of American citizens because he deemed it necessary. Cheney claims that he has supported actions from the beginning with the intent of building a stronger executive weakened by Vietnam and Watergate revelations of presidential excesses, such as Nixon's enemies list.  See this story in the Washington Post.

After learning about torture memos, extraordinary renderings, black site prisons, and illegal government propaganda at home and abroad, last week Americans were informed of one more power grab by the current occupant of the White House.  We learned that Bush has authorized domestic spying since 2001 that circumvents the Foreign Intelligence Surveillance Act procedures.

The White House claims that it made the program known to sufficient Congressional and judicial personnel to provide any needed oversight.  Several of those in Congress that were informed have voiced their doubts about the legality of the program and noted that the way they were informed prevented them from performing any kind of oversight function, because they were prohibited from sharing any information with others or seeking advice of legal counsel. 

The White House apparently informed only the head of the FISA court.  Other judges learned about the activities only when the Washington Post broke the story. One FISA judge has already resigned, apparently because of his view that the program may be illegal.  According to the Washington Post, here, because of the many concerns expressed by most of the other FISA judges, the chief FISA judge has now arranged for the Justice Department and National Security Agency to explain to the court how the program has worked, why the FISA court was bypassed, and what the claimed legal basis for the program is.

Congress should also pursue an investigation into these matters, including not only this surveillance but also the Pentagon's database on American citizens and the FBI's incident files on anti-war, environmental, and other organizations.   This should be a part of Congress's in-depth review of the various excessive provisions in the so-called "Patriot Act" during the six-month extension agreed upon today.  A government's decision to spy on its own citizens is a stark signal of repression that has no merit in a true democracy.   And no matter what the security threat, a presidential claim to unrestrained power is unacceptable.

More on Domestic Spying

America is reeling with Thursday's revelations that Bush authorized domestic spying on Americans that does not conform to the legal requirements under the Foreign Intelligence Surveillance Act (FISA).  See, as one example, the discussion in the Dec. 20, 2005 New York Times, here. 

This is a frightening moment in America's recent plunge into a world of limited civil liberties and expanding military presence across the globe and domestically.  It is a Constitutional crisis of unprecedented proportions in our recent history--a president who claims that he is above the law in almost any area of contention, and whose military-corporatist chronies (including Cheney and the other neo-cons) are intent on establishing global hegemony and control of resources.

Remember that this new revelation comes on the heels of various situations where Bush already claims that the Constitutional authority as "commander-in-chief" of the armed forces provides extraordinary powers. This president has claimed that the power includes (i) rounding up thousands of people based on their ethnicity and deporting them in the aftermath of the September 11 attack, (ii) picking up American citizens on American soil engaged in ordinary activity and holding them for years in a military brig without access to counsel or family on the say-so of an executive who labels them as an "enemy combatant", (iii) permitting the military, in both Iraq and Afghanistan, to raid homes to gather in individuals, carry them off to prisons and holdthem for months without any due process, in a manner reminiscent of the dictator the military had presumably replaced, (iv) engage in covert propaganda abroad, including "buying" journalists and stories in Iraq (and possibly using those planted stories as justification for activities to people at home in the U.S.), (v) detaining people at Guantanamo as terrorists but offering no process--or, in some cases, only military-run tribunals--to contest the determination, (vi) permitting the military and intelligence agencies to develop a policy of leniency towards torture and murder at Guantanamo and at military prisons in Afghanistan and Iraq, and at "black site" prisons secretetd around the globe and operated outside the purview of Congressional oversight or knowledge of the American people, (vii) engaging in unprecedented instances of "extraordinary rendering" of suspects to foreign governments known for their use of torture for interrogation, upon the mere "promise" that there would be no torture, and (viii) authorizing and encouraging FBI spying on domestic organizations engaged in political dissent, such as Quakers and other anti-war organizations.

The Administration's feeble legal defense of its grab for power is amazingly short on substance.  First, the Administration claims that the power of commander-in-chief of the armed forces authorizes the President to do whatever the person in that office considers necessary to "protect Americans."  This is a bald assertion of dictatorial power.  If the Commander-in-Chief power can be carried to authorize domestic spying on civilians without any judical check to substantiate even mere suspicion of improper activity, then it can authorize almost any action desired to be undertaken as long as there is some "war" involving U.S. forces going on somewhere around the globe.  The purported "war" on terrorism provides a perfect foil for overreaching executive powers.  The Administration has said that it expects the purported "war" on terrorism to be a near-permanent fixture.  Under this analysis, near-dictatorial powers of the presidency would also be a near-permanent fixture, even though terrorists come and go for different reasons, from different states, with different targets. 

Attorney General Gonzales, the person most concerned with protecting our cherished democratic heritage through upholding the laws of the land--including the separation of powers provisions of the Constitution--, has in fact turned out to be the most willing excuser of executive overreach.  He played a role in the development of the "torture memos" that purported to provide legal cover to Administrative excesses in permitting cruel and inhumane treatment of detainees.  Those memos twisted the language of the law to exempt from the definition of torture anything short of lethal injury and claimed that the Geneva Conventions, international law generally, and US law in particular didn't apply to those that the President deems to be "enemy combatants"  on his mere say-so.  Now, Attorney General Gonzales claims that Bush's actions authorizing abrogation of FISA was authorized by Congress because Congress passed a resolution authorizing the invasion of Agfhanistan with a "whereas" clause in the Preamble stating that "all necessary and appropriate force" should be used.  As Senators Feingold, Reed and Levin pointedly noted in a press conference last night (televised on C-Span), this is grasping at straws.  Settled law gives no affirmative legal authority to statutory preambles, and that settled law is even more clearly applicable here, where Congress's intent was clearly to authorize a military invasion of Afghanistan and not warrantless domestic spying on Americans.

Gonzales also claims the program is acceptable because it is "limited in scope" since eavesdropping is authorized only on international calls.  The claimed limitation to just "some Americans" (those who make international calls) does nothing to assuage concerns.  This argument is like claiming that residents of California shouldn't be concerned about illegal government searches and abrogation of civil liberties that only take place in, say, Alaska.  It is a crass attempt to get Americans generally to accept loss of civil liberties so long as it appears to be limited to other people or other concerns.   Free speech and free association rights are direly threatened:  once any such unilateral executive power is accepted, it becomes easy to extend the "limited scope" to other groups.

Gonzales and Bush also claim that this action is adequately checked because some selected people in Congress had been informed.  The idea that informing a few pre-selected members of Congress amounts to a proper check on executive power is ludicrous.  Even those few informed (and we do not, of course, have a list but know that a number of members of concerned congressional committees were not informed) did not have enough information to evaluate the program.  John D. Rockefeller IV released a handwritten letter sent to Cheney on July 17, 2003 complaining that he could not assess the program without being able to consult with staff or counsel, "much less endorse these activities."  See id.

The Administration argues that it was necessary to avoid FISA and authorize executive wiretappings of American citizens because of the need for speed in responding to issues.  Bush cited the changes in terrorism in the last few decades that make it necessary to respond to a "two-minute phone call."  But FISA was enacted to expedite warrant  processes through a special court, one that is even authorized to issue after-the-fact warrants in appropriate circumstances. many civil libertarians have complained that the FISA procedures already short-circuit necessary protections of civil liberties.  In the thousands of instances of federal use of FISA authority, the court has only found a handful to be improper.  The Administration made no effort to ask Congress to update FISA to deal with their purported concerns about lack of agility in responding to wiretap needs.  Instead, the Administration decided to act contrary to the law that it is charged with enforcing!  Perhaps the most ominous concept here is the view that the chief executive of the United States can unilaterially decide not to comply with a U.S. law merely because the executive branch considers it to be outdated. 

The Justice Department has developed two legal memoranda outlining its case for the legality of the wiretap authorization.  Id. Not unexpectedly for this highly secretive administration that shuns openness like a vampire shuns sunshine, Attorney General Gonzales refused to release those opinions.  One has to wonder what reason there could be for withholding a well-argued legal opinion for supporting an unprecedented action that threatens to precipitate a Constitutional crisis.  Could it be a suspicion that the arguments will be found by legal scholars around the country to be as flimsy and self-serving as the arguments made in support of contravening the Geneva Conventions on torture?

Pentagon Overreach

MSNBC's Nightly News with Brian Williams featured a story, Is the Pentagon Spying on Americans?, that should make all of us uneasy and should provide even more reason for moderate Representatives and Senators to call a halt to the overreaching powers provided by the so-called "Patriot" Act.

The story discusses a secret database established by the Pentagon, which is combing all available files for information on specific individuals and groups, supposedly in the hunt for domestic "terrorists."   The Pentagon's post-9/11 beefed up domestic monitoring on behalf of "national security" includes a number of peaceful groups organized to protest war and military recruiting.  One such group included in the "suspicious" persons database  is a peace group that met at the Quaker Meeting House in Lake  Worth, Florida, a year ago to plan an activist campaign opposing military recruitment at high schools!

"A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period."

This database, and the rationales offered to justify it, are forebodingly reminiscent of the types of activities condoned by J. Edgar Hoover and Joe McCarthy at the height of the McCarthy era's attack on civilian dissent.  Freedom of association doesn't exist if the daughter of a friend who happens to be along when someone gets arrested can be strip-searched (Alito supports that approach) and anyone attending a meeting to protest actions of the military-industrial complex is treated as a traitor and enemy of the country (the database suggests this is the basis for the notion of "threats", in line with Ari Fleischer's scary pronouncement shortly after 9/11 that those who didn't support the Administration's militaristic and anti-civil-liberties stance were unpatriotic supporters of the "enemy").

The Pentagon, of course, seldom responds to criticism with open information to allow ordinary Americans to pass judgment on the reasonableness of its action. It operates as a secretive and highly politicized division of the executive branch of government, claiming a right to hold U.S. citizens in its military brigs beyond the reach of press, counsel, or court.  Not unexpectedly, it response to the news about the discovery of the 400 page document revealing its far-flung domestic spying on dissent undermining freedom of speech and association with typical mellifluous claims of acting honorably.  (The military doesn't condone torture, remember--it just does it.)

"A spokesman said that all domestic intelligence information is 'properly collected' and involves 'protection of Defense Department installations, interests and personnel.' "

Of course, the notion that the military can collect whatever domestic intelligence it wants so long as its purpose is to protect "Defense Department ...interests" is a broad one indeed.  The Defense Department has already shown that it doesn't like dissent.  Rumsfeld and Cheney have openly attacked dissent as unpatriotic.  Mr. Bush has proclaimed that we Americans should view him first and foremost as a "War President" and suggested that label gives him unprecedented powers over us and our rights to know and to dissent.  If domestic spying were acceptable so long as the Defense Department believes it is protecting its OWN interests and not the interests of the American people, then a database on every single American who has ever voiced criticism of military installations, recruitment, strategies and actions would be legitimate and free speech would be essentially a dead letter of the law.

This Pentagon view of dissent as a "threat" is typical of dictatorships like Saddam Hussein's, not democracies.  Democracy is, in fact, not sustainable without an informed and active government opposition that constantly brings pressure on government officials to act for the public good rather than for the special interests of the few, the rich, and the connected.

Groups like our own VoBA are, in fact, the quintessential feature of a real democracy--local, grassroots efforts to be informed and to inform others about the issues that matter in sustaining our values, our environment, and most of all our cherished liberties.  VoBA members have participated in anti-war rallies, protested media consolidation, informed each other and our local community about excess corporate greed, rallied in support of military families left suffering an unfathomable loss because of a pre-emptive war of choice, protested the despicable, pervasive military and intelligence use of torture, highlighted the untoward treatment of the poor by federal agencies, decried corrupt cronyism that threatens the core values of democracy, and objected strenuously to White House and Defense propaganda that intends to pull a curtain down over truthtelling in American and international media.  If that is a threat to the military, then the military itself is a threat to American democracy.

Why "Some" Torture Can't Work

Senator McCain has proposed legislation that would ban any cruel, inhumane or degrading treatment by any U.S. persons of any U.S. prisoners anywhere around the globe at any time.  But inside the Beltway has been abuzz with rumors of a "compromise" with the Cheney-Bush position that torture is sometimes ok, at least if it's done by the CIA. 

Our view is clear--there can be no compromise here.  If we participate in, arrange for, or make possible treatment of prisoners that involves "waterboarding", naked pyramid schemes, dog baiting, shackling from the ceiling in untenable positions for hours on end, starving or other treatment that degrades humans, we have not only violated international and U.S. law but we have betrayed the very essence of the values we stand for. 

Surely John McCain knows this, after his time as a torture victim.  Surely he will not yield to the demands of the likes of Dick Cheney, who said he had "more important things to do" than go to war in Vietnam, or George Bush, who managed to convert a cushy job in the national guard into an even cushier political job and legacy appointment.

The military and intelligence forces' abusive practices under the Bush Administration are something we will be ashamed of as a nation for decades to come.  Think of the way we've used the power of the state against individuals since 9/11.  Thousands of immigrants were held in New York prisons for months without process and then deported, without process.  Thousands of people were (and are) detained in Iraq and Afghanistan, in much the same way that Saddam's forces had detained people in the past, by entering their homes and taking them in the middle of the night to prisons where their relatives might eventually locate them, or not, months later.  Thousands of those declared by one prone-to-error person, George W. Bush, to be "enemy combatants" were shipped to wire enclosures on the island of Cuba and held there for years without due process.  Korans were desecrated.  Deaths took place in suspicious circumstances; beatings, shacklings, waterboarding and other techniques were approved.  The practices developed at Guantanamo were shipped to Iraq, and Abu Ghraib was one result.  The military has acknowledged at least 29 murders of detainees, and of course we have no way to know how many more there may have been.  We know that at least two U.S. citizens were held in military brigs as "enemy combatants" without any of the rights to which citizens are entitled under the Constitution.  Do we know for sure that no other citizens are being held incognito, without access to counsel, in a military brig or "black site" somewhere around the globe?  Can we trust anything this administration tells us about the treatment it provides to any detainee anywhere, given this administration's awful track record on forthrightness?  Two years after Abu Ghraib, we continue to practice "extraordinary rendering" of suspected terrorists--they are merely suspects, and at least some of them have proven to be entirely innocent.  We maintain secret "black sites" around the globe where U.S. personnel may well be committing war crimes of the most grievous nature against suspected terrorists (also not proven guilty through any legitimate process).   

Meanwhile, the Iraqis have picked up where Uncle Sam and Dictator Saddam left off.  In mid-November, a secret prison was discovered in the Interior Ministry building in Baghdad with 169 badly treated "inmates" victims of the "new" "democratic" "Iraqi" regime.  Now we learn about another secret torture center in Iraq with more than six hundred poorly treated detainees.  Read the Knight Ridder story here.  A sampling of the information from the report follows.

Former Iraqi Prime Minister Allawi:  "People are doing the same thing as Saddam's time and worse."  Allawi has indicated that these are primarily Shiite death squads who have taken up the activities formerly handled by Saddam's Sunni henchmen.

An unnamed interrogator who "punched several people in front of the reporter":  "Don't talk to me about human rights.  When security settles down, we'll talk about human rights.  Right now, I need confessions."

Gen. Al-Samaraaee, formerly of the Interior Ministry, "said torture and extrajudicial killings were rampant while he was at the ministry" and "secret prisons ... are run by militia groups."

Abu Saad, a prisoner, showed a fingernail that had been torn off and said he had been hung upside down, blindfolded for 40 days, allowed to use a toilet only once every three days, and saw seven other detainees die.

Is this the legacy of freedom and democracy that thousands of young Americans and tens of thousands of Iraqis are dying for?   

Eugene McCarthy

Saturday marked the death of a "gentle" Senator who became the conscience of the nation, Eugene McCarthy, 1916-2005, reported here and here.  Eugene McCarthy was a quixotic figure who was both erudite and down to earth, a sometimes stirring speaker and an often reluctant politician. 

He did two extraordinarily brave things during his career.  In 1952, he stood up to Joe McCarthy, the Senator from Wisconsin who terrorized most of the country with his fake communist-hunting investigations in which he brandished empty pages or old data as a sword to cut people from their careers, their friends, their families, and sometimes their lives.  Eugene McCarthy met him head-on in a debate on foreign policy that should have shown the nation Joe McCarthy's lack of substance. The debate was months before Edward R. Murrow would run his first show exposing McCarthy, depicted superbly by David Strathairn in Good Night, and Good Luck.  It was several years before Joe Welch would finally bring McCarthy down with his famous "Have you no shame" line at the investigative hearings (a film clip of which is seen in the movie).

In 1968, Gene McCarthy galvanized the youth of the nation in an anti-war movement that tried to speak truth to power.   We were in college and we were frightened by the draft that could take fathers, friends and brothers away.   Unlike this war of choice where the journalists are "embedded" with the military and where there are so few independent reporters who dare to explore the world beyond their computer, in that war journalists ventured all to bring pictures of the war into people's homes.  We saw the photographs on television on the news every night--flaming helicopters, "advisers" dropped into a war zone.  Johnson withdrew his candidacy for the presidency after McCarthy's campaign began, and Robert Kennedy took up the campaign only after McCarthy had shown the possibility.  Although the war killed on for seven more violent years of napalmed children, blazing monks, and agent-oranged jungles under Nixon, McCarthy had brought it to front and center stage and forced everyone to think about this commitment to a winless war in a place that did not want us for a cause that didn't exist in a manner that stole the life out of a country, a people and our own nation.

McCarthy must have wondered at the twists of fate that have brought us to our present circumstances.  In response to a real danger, we have a context of smear and fear that has taken away civil rights for everyone, resulted in detentions and deportations of thousands on mere suspicion or association or dissent, and permitted military imprisonment of American citizens without due process yet has done very little to address the muddled intelligence that continues to threaten our ability to deal with real terrorism.  At the same time, we have an imperialistic war of choice that is again gobbling young lives and in which we are again dropping hundreds of thousands of pounds of ordinance on villagers and maiming old men and young children.

It is thus with great sadness that I note the passing of Gene McCarthy.  There are few people who have the courage to speak against power.  He did so, and he helped to bring understanding, for a while, to an entire nation.

More on Alito

Remember how the radical right-wing base of the Republican party called for Harriet Miers to step down before any vote could be taken?  They were worried that she might not prove to be a right-wing ideologue who could be counted on to vote in Supreme Court cases their own radically right-wing views.  Since those views are not the views of the majority of the people in this country on issue after issue, they were afraid that she would understand that the Constitution is document for the ages, one that must be interpreted to further both liberty and equality through a democratic institutional framework that denies overall power to any one branch in order to better protect the ordinary American from the development of oligarchy or dictatorship.

It is beginning to be clear why that same right-wing base now makes contented cooing sounds whenever the current nominee Alito is mentioned.  He is, quite clearly, their man. 

It is no accident that he is a man and not a woman, for his ideologies have been quite unmistakenly anti-feminist, anti-minority, and pro-entrenched power from early on. Little guy beware, if this man takes on the lifetime power of a Supreme Court Justice.  He will likely vote to restrict or eliminate the rights of women to control their own reproductive capacity.  His decisions will likely erode the fundamental right to privacy that we Americans had thought the most traditional and natural of the rights reserved to individuals under the Ninth Amendment of the Bill of Rights.   His own description of his political philosophy makes that clear.  See this posting.

Equally worrisome is his likely continued rejection of rights for those condemned to be killed by the state in the name of (rough) justice.  Governor Ryan's commutation of the sentences of all those facing the death penalty in Illinois was just the starkest indication of the fundamental injustice of the death penalty.  Innocent persons clearly are condemned to die throughout this great country of ours, sometimes on well-intended testimony of eyewitnesses whose memories of events turn out to be clouded by the way in which they have come to tell their stories and sometimes on intentional misstatements by witnesses who submit to pressure, perceived or real, to invent a story to gain leniency for themselves.  Incompetent lawyers with no preparation for the case fall asleep at trials.  Tainted juries and vindictive judges sit in judgment.  How this country can continue to participate at all in retributive executions in this modern age is hard to comprehend, given the hefty weight of enlightened opinion throughout the developed world that such punishment is inhumane and beneath the dignity of the human race.

But we do still have death penalties, and we do still have enormous errors in death cases.  So the role of the Supreme Court in serving as the literal court of last resort is tremendously important.  We should not lightly put a person on that bench who has little apparent understanding of the importance of preventing fundamental miscarriages of justice that occur when innocent persons are executed by the state.  Alito's past again gives rise to grave concerns, as reported in this commentary by Boalt Hall Law Professor Goodwin Liu in the LA Times about Alito's record in five controversial death penalty cases.

"In every one of these five contested cases, Alito voted against the inmate and issued an opinion.  Individually and especially as a whole, these opinions show a troubling tendency to tolerate serious errors in capital proceedings.  Whatever one may think of the death penalty, Alito's record should give pause to all Americans committed to basic fairness and due process of law."

* * *

  "[I]t is precisely in the most contentious cases that Alito has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness."

Does a judicial nominee's ideology matter or should we merely be concerned with whether the nominee has demonstrated adequate legal knowledge and mental agility to deal with the pressing issues that come before the Supreme Court?  The advise and consent function of the Senate serves as a check on the executive branch's ability to pack the Court with cronies who will simply rubber stamp the executive's actions and view of the world.  It also provides an opportunity for the more deliberative of the two legislative chambers to consider how a nominee will approach the law during their lifetime sinecure on the bench and to assess whether that nominee's probable path on the bench resonates, in particular, with the current values and understanding of protective civil rights guaranteed by the "living" Constitution. 

And make no mistake about it, both the right and the left understand that the ideology of the persons who sit on the Supreme Court matters.  That is why the radical right was up in arms about the Miers nomination and calmed by the Alito nomination.  That is why the radical right is now supporting ads that push all their core groups' buttons--asserting that Alito's opponents want to take God out of government, permit gays to marry, support late-term abortions, and sanction burning of the American flag.  See this story in Sunday's Washington Post.

As progressives who care about equal treatment of all under the law and protection of the individual civil liberties that are threatened by the post-9/11 turn to greater police powers, we consider that it is becoming ever clearer that Alito adheres to an extreme right-wing ideology that would turn the clock back to a pre-New Deal era of Lochnerian economic rights and attenuated civil rights.  He is not the right man for this time.

Alito's Past

A David Kirkpatrick report in the Nov. 27, 2005  New York Times on Samuel Alito's background, From Alito's Past, a Window on Conservatives at Princeton, raises some genuine concerns about his understanding of civil liberties and his dedication to equal justice for all.  Alito was a member of Concerned Alumni of Princeton, an alumni-sponsored group founded initially to protest admission of women.  Until its demise in 1987, the group fought change at Princeton, "charging repeatedly that the administration was lowering admission standards, undermining the university's distinctive traditions and admitting too few children of alumni." 

The position of the group smacks of racism and sexism.  The undesirable groups that were being admitted instead were African Americans, Latinos, and women.  Concerned Alumni issued a pamphlet suggesting that racial tensions and loose campus life were causing campus crime to surge. Another brochure condemned the administration's goal of increasing women and minorities because it would "vitiate the alumni body of the future."  Id.  Even Senator Bill Frist (a 1974 Princeton graduate) considered Concerned Alumni's position "distorted, narrow and hostile."  Id.   The group went on to defend Princeton's socially exclusive eating clubs against administration plans to create general dining halls, claiming that the demise of the eating clubs was an effort to end de facto segregation.

Alito, in applying for a Reagan administration promotion in 1985, provided his membership in Concerned Alumni as evidence of his proper conservative ideology.   This evidence of his values is not reassuring--in fact, it suggests that he would not bring to the Court a proper understanding of the Court's role in protecting the very groups that the Concerned Alumni so resented as invading their traditional Princeton domain.

The So-Called Patriot Act and Rights of Individual Citizens

When you get on a public bus, you expect to ride to your destination without being disturbed by the police.  That, at least, was the case until 9/11 seemed to make all private rights disappear in a national quest for security that has emboldened police to act as though they have a right to stop and search ordinary citizens in any situation without any suspicions whatsoever.  Deborah Davis, a commuter in Colorado, has been arrested for refusing to show her ID when police got on a public commuter bus and demanded identification of every person riding the bus.  See her website, here.   See a discussion about the right to request identification and the question of whether there should be a "national identity card" on the Homeland Security website, here.  The Supreme Court ruled that states can treat failure to provide identification as a crime in cases where the request for identification is based on reasonable suspicion.  See a discussion and link to the Supreme Court case here.

Meanwhile, Congress is working on extending the Patriot Act.  The House passed an extension of the act that was sought by the White House, see NPR here and CNN here.  But the Senate passed a less expansive version, intended to provide somewhat stronger civil liberties protections, see here.  A deal fell through right before Thanksgiving, especially because of concerns about extending the provisions for too many years, as reported in the Boston Globe here, the Salt Lake paper's reprinting of an Orlando Sentinel editorial here, and the Los Angeles Times here.  The negotiators will return in earnest after the Thanksgiving break.  This act--with its egregious invasions of privacy through secret searches of bank records, library records, bookstore purchases and even homes--has removed almost the last vestiges of privacy from search without reasonable cause that was the cornerstone of civil rights provided under the Constitution.   Congress should take a step back and consider how to add additional safeguards for ordinary Americans before extending any of the provisions.

At the same time, the FBI is conducting clandestine intelligence of US residents without doing the required paperwork or submitting to proper oversight.  Sometimes that surveillance goes on for years.  Sometimes the FBI neglects to get authority for seizing bank records and even conducts "unconsented physical searches."  See this story from October 24, 2005's Washington Post.  And the Pentagon is reaching further and further into domestic affairs, establishing deep databases on ordinary American citizens under the guise of protecting us from potential terrorist attacks.  See this story in the Washington Post this week. 

"Kate Martin, director of the Center for National Security Studies, said the data-sharing amendment would still give the Pentagon much greater access to the FBI's massive collection of data, including information on citizens not connected to terrorism or espionage."

"The measure, she said, "removes one of the few existing privacy protections against the creation of secret dossiers on Americans by government intelligence agencies." She said the Pentagon's "intelligence agencies are quietly expanding their domestic presence without any public debate." "

One by-product of the constant hype about a "war" on terrorism is a related White House reach for power.  The executive branch claims the right to set the rules and determine the appropriate course of action for any actions related to the struggle against terrorism.  The Sunday New York Times carries an in-depth report by Adam Liptak, here, on the inconsistency in decisions to treat individuals suspected of terrorism as criminals entitled to due process protections through trial or enemy combatants held without charges or due process rights in military brigs.

The events of 9/11 were tragic, yet this response is even more tragic, since it strips this country of its defining essence as a haven for freedom from dictatorial authority.  Congress must wake up to the necessity of re-creating a strong legislature that fully realizes the separation of powers built into the Constitution.   All of this suggests a need for much tighter congressional oversight, not more lax rules that permit military and intelligence groups even greater leeway.

Detainees Rights (2)

The Senate has passed a bill, sponsored by Republican Lindsay Graham, that fits right in the Bush Administration's executive control pocket--removal of habeas corpus rights to judicial process in U.S. courts--for detainees at Guantanamo.  Habeas review is the most basic due process right that permits a person being held to challenge the grounds for his or her detention.  In the case of detainees from the Administration's so-called "war on terror,"  courts would review whether the Administration's decision to treat a detainee as an "enemy combatant" is appropriate.  That categorization entails a number of consequences, and under the Administration's apparent views towards use of cruel, degrading and inhumane treatment, worrisome concerns about possible rendering to other countries for torture or seclusion in a "black site" somewhere around the globe. 

The following is a letter from the President of the American Bar Association condemning the Senate's action in removing this most basic liberty right from people who may be entirely innocent and whose labelling as enemies has been handled by a military that has proven itself incompetent to protect basic rights and incapable of appreciating the importance of speedy trial determinations.

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Michael S. Greco 321 N. Clark St. Chicago, IL 60610-4714 (312) 988-5109 FAX: (312) 988-5100 AMERICAN BAR ASSOCIATION President

November 15, 2005 The U.S. Senate last week adopted with no hearings and with little debate Senator Lindsey Graham's proposal to eliminate habeas corpus rights for Guantanamo detainees, denying them access to federal courts. The American Bar Association urges the senators to reconsider and defeat that enormous change to our fundamental legal system. Throughout our nation's history, starting with the defense by lawyer, later president, John Adams of Massachusetts, of the British soldiers who fired on patriots in the Boston Massacre, it has been our commitment to basic principles of justice, even for the most unpopular among us, that has allowed us to maintain the high moral ground in the world, the most strategically important territory for us to occupy as we struggle with the enemies of freedom. Our influence in the world is directly affected by our actions with respect to those we detain. The prisoners in Guantanamo have been held there, largely incommunicado, for four years. That fact alone offends our heritage of due process and fairness. The writ of habeas corpus was developed precisely to prevent the prolonged detention of individuals without charge, by allowing those held to petition the federal courts. To eliminate the right of habeas corpus would be shocking to our nation. As Senator Graham himself has stated repeatedly, in the battle against terrorism we cannot allow ourselves to become like the enemy. Adoption of his amendment would undermine the very principles that distinguish us from our enemies. Michael Greco, President

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After complaints from Americans across the country, a "compromise" has been worked out in the Senate.  The compromise still removes habeas rights, but at least does allow a detainee who has had a military tribunal hearing a right of appeal of that decision to the D.C. Circuit Court of Appeals. 

The compromise itself falls far short of the legal process that we should provide to anyone that we have detained.  It assumes the accuracy of the military's categorization of a person as an enemy combatant, and does not permit challenges to that categorization through the judicial process.  The evidence is clear that the government has held hundreds (counting Iraq, thousands) of persons for months and years without verifying their status as enemies.  More than 500 prisoners have finally been released from Guantanamo.  Among those, many are not charged in their home country--all evidence would suggest that they were innocent of terrorism and merely inadvertently caught up in the dragnet of anti-terrorist fervor.  These are the people who will have no redress from the courts if they cannot go to court to challenge their status, as determined on the ultimate sayso of the person holding the office of President of the United States.  The power of dictators is based on removal of rights such as these.  We should not move down that slippery slope by our actions towards those detained in Afghanistan, Iraq and even within our own borders as in the case of citizen  Pareda who was stowed away in a military brig.

This news comes as Congress prepares to extend the so-called "Patriot" Act without making substantial changes to remove the noxious provisions threatening the liberty of every American.  Military access to book purchases, library information-seeking and military databases storing concentrated information on ordinary American citizens are a significant threat to Democracy.  Congress should bury most of those provisions and restore the liberty that true patriots have fought for throughout our history.

This Congress, and this person holding the office of President, have so far shown an inability to understand the importance of the most basic due process rights.  Let's hope that they can get the message now.

Secret Police and Torture

Today's New York Times carries an interesting article on the "Heavy Hand of the Secret Police Impeding Reform in Arab World."  It discusses the many ways that the role of governmental police )the mukhabarat, in Arab societies) in protecting national security can become a role of the government in using "preventive" arrests to stifle dissent and prevent democratic discussion of everything from ideas about ideal government to problems with corrupt governments.

Recall Ari Fleisher's early post-9/11 comment that those who express dissent or disapproval of actions after 9/11 are aiding the enemy.  Mr. Bush recently reiterated that theme in a speech to Veterans intended to recast himself as the "Warrior" president making the right decisions to protect us during the "war on terror."   Cheney, who most directly linked Saddam to 9/11 and continued claimed "certainty" that Saddam had WMD long after the invasion had substantiated that he had not, is actively lobbying against the bill (already passed by the Senate) that would make it clear that the United States does not treat prisoners cruelly, degradingly or inhumanely.

Let's hope that Congress reads the Times.  The current push for a President with enormously enhanced executive powers, including the "right" for the CIA to torture detainees who the President alone determines represent a threat to our national security and the potential control of the military over emergency responses to disasters in the country (from terrorist attacks to major weather emergencies) is a cause for grave concern. 

Cheney's Dark Side

As we all know now, we hold many prisoners at Guantanamo, where they have little redress and little hope of a decent life.  We hold many others in prisons in Iraq, where there have been stories of people getting lost in the bureaucracy, and stories of prisoners being murdered.  We've seen the pictures of abuse in Abu Ghraib, and heard tales of similar abuse at Guantanamo, including desecration of the Koran, and at other prisons we run (or our hired mercenaries run) throughout our Middle Eastern colonies.  We ordinary Americans have said that it must stop, but the White House and military chiefs claim it is just a few rotten bad apples.  They continue to claim this, despite the abundant evidence of a policy permitting torture and encouraging sadistic treatment of prisoners.  Waterboarding has turned up as a sanctioned activity in every military prison for terrorist suspects that we know anything about.

Dana Priest's Washington Post story revealed even more about our treatment of prisoners during this period of undermining the due process that is the foundation of our country.  Read about the CIA's "black sites" at an earlier post here.

Congress is finally facing up to the shame that the United States has brought upon itself through its treatment of prisoners taken in its invasions of Iraq and Afghanistan.  John McCain and 89 other Senators have sent a clear message to Rumsfeld and Bush that torture will no longer be tolerated.   The bill provides a blanket ban against "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

But Bush and Cheney have refused to accept that verdict.  Cheney, in fact, is actively campaigning against Congress' anti-torture bill.  He wants to be sure that at least the CIA is exempted.  Cheney, that is, believes that the CIA should have the right to commit torture--inhumane treatment of prisoners--whenever it wants to.  He believes Americans should "work, though, sort of the dark side ... in the shadows in the intelligence world."  See this Nov. 7 Washington Post story by Dan Fromkin.  Cheney's argument, apparently, is that the bad guys do bad things so we should to, using "any means at our disposal, basically, to achieve our objective."  Id.

We might have hoped that after Abu Ghraib Mr. Bush would have recognized the American people's disgust with the idea of American torturers.  Or at least that he would acknowledge the advice of experts in interrogation that information obtained through torture is inevitably less credible than information obtained through more patient, legal methods of questioning.  Or at a minimum that he would see that his stance favoring torture garners negative attention throughout the Arab world.  If he has any doubts, he should read Richard Cohen's editorial in the November 8 Washington Post about the views of a Muslim driver in Jordan named Bassam.  Cohen calls Cheney "the unashamed lobbyist for torture." Id.

Mr. Bush, however, seems as usual to be under the influence of his powerful VP.  The Nov. 7 Washington Post story by Dan Fromkin reports this response to a query about holding prisoners in secret prisons, without Red Cross access, and Mr. Bush's general support for a CIA exemption from the proposed ban on torture. (he has threatened to veto the McCain bill).

"The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people.  And we are aggressively doing that.  We are finding terrorists and bringing them to justice.  We are gathering information about where the terrorists may be hiding.  We are trying to disrupt their plots and plans.  Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law.  We do not torture."

There was a time when the phrase "bringing them to justice" meant that people who were suspected of having committed heinous crimes would be brought to trial so that their case, and the case against them, could be heard in an impartial tribunal and judged according to clear principles of law.  Mr. Bush appears to use the phrase to imply mere capture and detention on his say-so. 

Furthermore, Mr. Bush makes it clear that he thinks "anything we do...any activity we conduct" is automatically within the law.  It is as though Mr. Bush believes the defensive arguments devised several years ago by his counsel's office, suggesting that as Commander-in-Chief he can take any actions whatsoever and those actions will be per se lawful.  With that world view, it is easy to see how he can utter such an apparently contradictory statement of being able to "do anything" yet "not commit torture."  It is clear that Mr. Bush thinks that the anything he is entitled to command done includes torture, whenever he thinks it appropriate.  Why else would he and Cheney seek an exemption from a ban on "cruel and degrading treatment" unless they thought they might use it.  Yet he can in the same breath aver that nothing illegal will be done, since his underlings have convinced him that any action he takes during war is legal.

No wonder he appears to want us to be in a perpetual state of war.  In his view of things, that apparently means perpetual power for the military-industrial complex.  And no one asking those pesky questions about how the military and the CIA are treating the people they have locked up in brigs and prison camps around the world.

Anti-War March on DC

The March on DC involved many people from all over the country.   Nick Mann has his photos displayed here. 

One of the most moving stories was Cody's, an eleven-year-old who sat behind me on the bus trip.  Cody had found out about the anti-war march and decided that he had to take action.  He talked his mom into making the trip, and brought along a friend as well.  Here's a photo of Cody Bralt-Kelly and his friend Micaela at the rally.   (You can right click on the pictures to enlarge them.)

Ken Yates shared several of the pictures he took of the rally early on, showing the many different posters and costumes that protestors wore to make their point about the ignominy of war.

                                                                                 

Chuck Minne got a good shot showing the support for the anti-war movement from all across the spectrum.

And Ireka Carney took several photos of the crowd.

Hundreds of Thousands Protest Bush Iraqi War and Occupation

by Linda Beale

Last Friday, two buses left Champaign-Urbana, Illinois with 98 people bound for Washington DC.  We took the well wishes of many more from this area who could not attend.

Our goal was simple:  speak truth to power.  The Bush administration started a war of choice in Iraq with misleading information about the potential aggressiveness of a dictator that we helped put in place.  That war itself violated the most fundamental international principles of non-aggression to which this Nation subscribes.  The administration and its corporate cronies in the military-industrial complex then began a bungled occupation that has now lasted for years, providing ever more fodder for terrorism and anti-Americanism all across the Middle East and beyond.

Speakers at the rally were forthright and clear in their call for Bush to end the war now and focus resources on US and world poverty instead of wasting them on military expansion (such as Rumsfeld's revised strategies for strategic preemptive nuclear strikes) and contracts for corporate cronies like Halliburton.  Ramsey Clark, for example, spoke articulately of the international laws to which the US has agreed and that have become