Friday, February 29, 2008

Friday fishblogging

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Will someone in the maladministration finally start wearing stripes?

For reference, blackbar soldierfish, Barbados, December 15, 2007, Nikon D70s with twin Ikelite DS-125 strobes, 105mm macro Nikkor lens, 1/125th @ F/18 [click picture for larger image]

Dubya's consigliere knows his job....

Attorney General Mukasey does his master's bidding and stiff-arms Congress:
Attorney General Michael Mukasey refused Friday to refer the House's contempt citations against two of President Bush's top aides to a federal grand jury. Mukasey said White House Chief of Staff Josh Bolten and former presidential counsel Harriet Miers committed no crime.


Mukasey said Bolten and Miers were right in ignoring subpoenas to provide Congress with White House documents or testify about the firings of federal prosecutors.

"The department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers," Mukasey wrote Pelosi.
Good going, Chuck and Dianne. You put him in there. We can take heart in the fact that you're "disappointed", Chuck.

The crime is "contempt of Congress", Mukasey. Look it up.

Speaker Nancy Pelosi fires back:
“By ordering the U.S. Attorney to take no action in response to congressional subpoenas, the Bush Administration is continuing to politicize law enforcement, which undermines public confidence in our criminal justice system.

“Anticipating this response from the Administration, the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly. The American people demand that we uphold the law. As public officials, we take an oath to uphold the Constitution and protect our system of checks and balances and our civil lawsuit seeks to do just that.”
Another approach would be to just send the Sergeant at Arms out to arrest the two and lock them up....


Prof. Marty Lederman has a link to Mukasey's letter, and some more commentary over at the Balkinization blog...

Maybe I'm being dense, but....

... I'm not sure I understand the what the big deal is with Pastor John Hagee's close ties with John McCain. Glenn Greenwald feels it's worth a couple of columns (see the links), but isn't it more like a lion bites zebra story?!?!? Hatred and bigotry are what the Republicans are, it's in their nature, that's what they do.... Ever since Nixon's "Southern Strategy", all the bigots and haters have gravitated to the "Party of Fear and Hatred", the Republican party, and so you have folks like Strom Thurmond there, Trent "Gosh, would have been better if Strom had won" Lott, Tom "I'd be taking the place of some worthy N*gg*r in Vietnam" DeLay, anonanonanonanon.... Such bigotry is in fact not only expected but relied on to stir up votes. Even if McCain is personally opposed to such type bigotry and hatred, to get the base rolling, he has to tip his hat to such folks, and the Catholics (and eveyone else) be damned; such 'minorities' are not where the Republican (red) meat is, and that's certainly not where the money is.

What is needed is to point this undeniable fact out to everyone. If that's what Glenn is doing, I can understand his point.

Thursday, February 28, 2008

The maladministration lies ... and in other news, dog bites man

From the official White House web pages, this 'background' briefing:
SENIOR ADMINISTRATION OFFICIAL: Okay, that's what the Foreign Intelligence Surveillance Act of 1978 did, and that is what the legislative history specifically says, and that's what the Foreign Intelligence Surveillance Act says. I can get you the actual text. We can furnish that to you. I mean, it's plain as day. I could pull up the quote right now that says this law specifically exempts the international signals intelligence activities conducted by the National Security Agency.

What it said, though, is if you're doing your mission here in the United States you need a court order. So if you're targeting a U.S. person here in the United States, to intercept their communications you need to get a court order. That was the balance that was struck in 1978.
[my emphasis]

This is what 50 USC § 1801(f)(1) provides:

(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

In 1978 -- let me divide the worlds of communications into wire and wireless -- 1978, wireless communication; radio and satellite, primarily for our international communications system. Fast-forward to today -- 90 percent I think, or so of the international communications systems carried in a glass pipe; a wire, for purposes of FISA. So we've had a huge shift from what was radio and satellite in 1978 now to wire, to fiber optics -- a huge, massive shift....

The international communications system is also routed through the United States in many cases. Extraordinarily cheap to use this fiber optic system, a large price advantage over other types of wireless communication.

What caught us -- what got us caught up was, in 1978, when they did the law, when they thought of wire, they thought of privacy, and if you're on the wire that is what they use to define when we would need to get a court order, exempting this international activity by exempting out the radio and satellite communications mission that we do.

So we had this shift. I think in this debate, I think everyone has agreed now that FISA needs to be modernized to reflect the technologies of today; that they wrote FISA in 1978 to reflect the way the technology was then. I think everyone is basically on board with the fact that we need to have FISA modernized.

That brings us to the Protect America Act and the passage of the Protect America Act. The Protect America Act said, if you are targeting a foreigner overseas, you do not need a court order. But it went one step further than what was even in the 1978 act. It said, for your targeting procedures, to intercept that foreign communication you need to have those procedures submitted to the FISA court and approved by the FISA court. In 1978, our mission to target international communications, the FISA court had no role in that.

We did submit those targeting procedures in August. The FISA court approved those in January of this year.
A substantial portion of the international traffic was conveyed on cables back then too. It would make no sense back then to give more protection to those people whose calls were routed (without any choice on their part) over "wires" and less to those phone calls which were transmitted in part via satellite (radio) links. The section that purports to cover "radio communications" (as opposed to "wire communications") is § 1801(f)(3) [link above]:

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;

This section talks about "sender" and "all intended recipients", and applies to the case where the intended communications is purely domestic. But there is no "sender" for telephone calls; they are between two specific people generally with both of them "sending" and "listening", and the word "intended" seems to indicate a passive and optional role for "recipients", so to talk about "all intended recipients" clearly implies that this section referred to broadcast radio transmissions (such as HAM and other short-wave) with a single sender and multiple (or even no) listeners. Such broadcast is not usual (and not even possible) for phone conversations.

Contrary to the suggestions of the maladministration (and others) that this "radio" versus "wire" distinction allowed the NSA to snoop on satellite phone calls because they were "international" back then and happened to be carried on one leg by radio, but not the smaller number of cable phone calls, what makes a lot more sense is to consider the "wire" communications to be what it always has been: people's phone calls, which are essentially all conveyed at least in part over "wire" (to/from the switch office, over domestic long-distance links, etc.). It is theoretically possible that the NSA (or others) carefully crafted and inserted a linguistic "loophole" in FISA by which they could snoop on [some of] the international calls of U.S. persons in the U.S. by the fortuitous routing of these calls via satellite ... but other than providing such a loophole (and assuming that Congress wanted to leave in such a loophole with a nod and a wink), it's really hard to read and interpret the law as doing such.

The maladministration argument, that the "radio communication" provision -- by dint of excluding from FISA restrictions the intercept of any such communications where even a single "party" was foreign -- allowed all U.S.-to-foreign communications to be snooped (as long as we weren't specifically "targeting" a "U.S. person"), thanks to the lucky "fact" that supposedly most of the international calls at the time were via satellite, just doesn't hold water. Thus, the argument that FISA itself didn't intend to protect the international communications of person in the U.S. also doesn't hold water, nor does the plea that we need to "modernize" FISA because the nature of the traffic (undersea fibre and cable, versus satellite radio) has changed.

The remaining clause of the 1978 FISA law covers the interception of "wire communications" to and from persons in the U.S. regardless of the location of the target, if the interception was done in the U.S. Here's § 1801(f)(2) [link above]:

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;

This restriction was probably intended to address the fact that such domestically instituted interceptions are likely to pick up mostly domestic traffic (and note that it specifically encompasses such purely domestic calls, as well as those that have one party located internationally). If the intercept is done abroad, it's likely that at least one party to the call is foreign, and § 1801(f)(1) prevents the tapping of specific domestic "targets" without a warrant even if done on foreign soil. Thus, with this provision, any foreign taps should result only (or at the least, mostly) in the acquisition of international calls and the targeting of "non-U.S. persons", even if some domestic parties have their conversations recorded by dint of being the "associate" to the international "target" under investigation.

Perhaps not the best-written law, but the maladministration's strained interpretation of the original FISA really is not plausible. If they want to argue that we ought to be back to tapping all U.S.-to-foreign traffic without warrants or supervision, because someone in the U.S. (but we don't know who) might be talking with <*gasp!*> Terra-ists, let's put that rationale up front and argue that proposition. Let's not pretend that's the way it's always been.
Obviously, lots of concerns about some of the language of the Protect America Act. For the past six months, we worked very closely with the Senate on their bill. That bill responds to a lot of concerns raised by the public and by members. It expands the role of the FISA court even more in the foreign targeting procedures. Not only does it say that these foreign procedures -- that the procedures that we're going to use to target foreign people overseas have to go to the FISA court, but now the documents signed by the Attorney General and DNI that authorized this acquisition activity have to go to the FISA court. And in addition, something called "minimization procedures" are now going to have to be approved by the FISA court. None of this was part of the balance struck in 1978.
A bunch of malarkey. The FISA law used to require warrants (or, more accurately, FISA court orders) for certain types of U.S.-to-foreign taps. Now they don't. The "documents" are not warrant applications (or court orders). They don't specify who is to be tapped, and why they should be tapped. That loosening of the protections of FISA was in fact the impetus for the changes made in the Protect America Act (PAA). And FISA itself had "minimization" provisions; in fact, stonger than those of the PAA.
Let me pause and talk one minute about this word "minimization" that you've heard. Somebody is going to ask me the question: But when you're targeting a foreigner, don't you get a U.S. person sometimes? And the answer is, yes. And the answer is, for many decades we have encountered information to, from, or about a U.S. person when we're doing our overseas foreign intelligence mission. The way we deal with that is a process called "minimization." That's a whole separate briefing that Dana probably does not want me to give, but what that basically means is that we minimize the information concerning the U.S. person. And there's elaborate procedures that are a part of that.
The whole idea of PAA is to look at who in the U.S. is talking with foreigners (at least foreigners in certain countries), and what they're saying. And to do it without showing to the FISA court that the foreigners are in fact "foreign agents" worthy of wiretapping.
That is not anything new. Minimization procedures are mentioned in the FISA -- in the act of 1978. It's something that was recognized would be a part of our intelligence community process.
The minimization of inadvertent intercepts required under the 1978 FISA law required notification of intercepts if nothing showed up (when such would no longer affect actual ongoing operations), and destruction of the material collected. This is no longer the case.
So we are trying to basically restore the balance that was struck in 1978 through this legislation. That is the goal. In fact, what we've restored -- yes, we've restored the balance, but we have a greatly enhanced role for the FISA court, compared to anything that was done in 1978. And certainly the Senate bill expands on that role, in addition to a whole set of oversight procedures and reporting requirements that are in that.
Bovine scat. Covered above.
This brings us to immunity and the issue of immunity. The bills have prospective liability protections, so going forward with our activities. Then there's the issue of what to do about retroactive liability protection. And this involves the program that the President spoke about on December 17, 2005, in his radio address.

The Senate committee report is perhaps the best source of information about this. I would commend all of you to read it. They did an exhaustive analysis of this. The bill passed out of the Senate Intelligence Committee 13 to 2. Of course, you know it passed the Senate with 68 votes.

What do they say in that report? They say it's absolutely vital to our intelligence community mission that we have the cooperation of the private sector. It says that their help is indispensable to the safety of the nation. It also says -- it goes through what they call the unique historical circumstances after the attacks of September 11th, the fact that the private parties were given documentation showing that the President had authorized the program, and showing that the legality of the program was also certified by high-level administration officials. It said that they had a good-faith basis for cooperating with the government. It does not make a judgment about the ongoing discussions about the respective powers of the Congress and the President, and make an ultimate legal determination about that program.
If there was a "legal basis" for the co-operation, then the telecoms don't need immunity. The AG could have certified the "legality", and the telecoms would be off the hook. But the maladministration couldn't even be troubled with that.
What is it from the perspective of the private parties? What are those who are alleged to have assisted with this caught up in, and what is the problem? Well, first, they can't defend themselves. And you say, well, that's our fault because we have asserted state secrets in various lawsuits. And the answer is, we have. And the reason we've done that is because the only way to defend yourself is to go out and describe the exact activities that I am talking about, and that would be a very bad idea if we want to continue to gain vital information, particularly in the counterterrorism arena. Second, they did act in good faith, in reliance on the documents that they received and are discussed in the Senate committee report.
They can defend themselves just fine. They can produce the paper that says that the AG has certified the legality of the programs that they engaged in.

There is no requirement that they "describe the exact activities", and to the extent any such account of the activities is necessary, any filing can be sealed to prevent disclosure of legitimate secrets (as opposed to law-breaking by the maladministration).
With that, I guess I would just leave you with -- kind of in summary, if I had to reduce this and try to make it simple about what we're trying to do, three basic principles that the Director has always acted on: One, no court order to do our foreign intelligence mission. Let us do our foreign intelligence mission targeting foreigners overseas without a court order. That was fine in the Cold War of 1978; today we face, frankly, a more dynamic enemy than we faced in 1978 in terms of their ability to exploit our technology and to change their procedures, compared to the Soviet Union that we faced.
No court orders, eh? "We doan need no steenkin' warrants...." It was not "fine" in 1978, and that was what FISA was all about. And if it was "fine" in 1978, then what's the freakin' push to amend the 1978 law?!?!?

As for the "more dynamic enemy", does he really want us to believe that a bunch of terrorists is a greater threat to the U.S. than was a nuclear-armed Soviet Union that could turn us into a glass parking lot?
Second, a court order for targeting Americans. Something that is overlooked in the Senate bill, for the first time a court order is required if we are targeting an American anyplace in the world. That was not deemed appropriate in 1978; now the Senate has deemed it to be appropriate. That would be a large change. Prior to -- frankly, the way it is today, we go to the Attorney General to authorize those activities abroad targeting an American. The Senate bill would change that.

And finally, we need to have liability protection for the private sector, both prospective and retroactive, and we need the ability to compel their cooperation.
The law itself compels co-operation, ongoing, that is. At least if the request is legal. Which is the only excuse for "liability protection". If the telecoms were knowingly violating the law and snooping on thousands if not millions of Americans, they ought to be held to account. The only thing we encourage by providing retroactive immunity from illegal activities is encouragement to break even the newly amended and loosened law again....

We've gotcher eedjits!.... Part Deux

Republicans without brains (yeah, I know, that's kind of redundant and repetitive). Some moron Republican got his Obama-sliming "talking points" but didn't have the requisite two neurones to figger out how to use them:
On MSNBC’s Live With Dan Abrams last night, Rep. Jack Kingston (R-GA) said it was okay to “question” Sen. Barack Obama’s (D-IL) patriotism because he doesn’t regularly wear an American flag lapel pin. Kingston claimed that “everybody” in politics “wears them.” Asked by Abrams if he was wearing one, Kingston had to admit he wasn’t, saying, “I will wear one and I have worn one.” Kingston then feigned ignorance about the irony between his criticism of Obama and his own lack of a lapel pin.
Only complaint that I have with ThinkProgress's account here is that I think there's good reason to believe that Kingston didn't have to "feign[] ignorance".

Unclear on the concept....

House Republicans are resisting the creation of an independent and (hopefully) nonpartisan panel to investigate ethics complaints against Congressional representatives:
The House is expected to vote on the task force’s proposal on Thursday. Even though this committee will be independent and nonpartisan, the GOP is already resisting. In an attempt to dissuade Democrats from voting for the ethics office, senior House Republican aides are drawing up a hit list of 10 Democratic lawmakers who would be pursued with ethics investigations if the measure passes. National Journal reports (sub. req’d):

Senior House Republican aides are drawing up a list of Democrats to target if the House votes Thursday to create an independent panel to weigh ethics complaints against lawmakers.

In a move that one top Democratic lawmaker called “political extortion,” House GOP aides said Tuesday the names of more than 10 Democrats are likely to end up on the list and that investigations would be pursued against all of them.

It is not clear how much support House Republican leaders are giving to the staff effort, but several GOP leadership aides who were asked about the list said they were aware of it.

Democratic lawmakers on the GOP list include John Murtha (PA), Jim Moran (VA), and John Conyers (MI), among others.

Pursuing investigations against lawmakers is one thing. But holding off on the investigations to blackmail lawmakers is another. “If they have legitimate ethics concerns about any member, why wouldn’t they bring it forward now?” wondered Rep. Michael Capuano (D-MA), who chairs the ethics task force.

Indeed. One might say that the attempted blackmailing of representatives to vote against the creation of the panel is itself a bit of an ethics violation.

Tuesday, February 26, 2008

Physician, heal thyself!

Ralph Nader, to the great surprise of exactly nobody, announced that he was going to run for president again.

Here's the money quote from Saint Ralph:
"If the Democrats can't landslide the Republicans this year, they ought to just wrap up, close down, emerge in a different form...."
Do you think this "one percenter" narcissist might have just enough self-reflection to apply those words to himself? Oh. Yeah, right. This is Nader.....

Time to invoke the 25th Amendment

Dubya, obviously drugged or incapacitated, speaking to Republican governors (the few that remain, that is):
One of the principles by which I have been operating is this: I believe in an Almighty, and I believe a gift of that Almighty to every man, woman and child is freedom. And I believe it is in the interests of the United States of America to free people from disease and hunger and want and tyranny. It is in our interests to make sure that we defeat the ideologues of hate with an ideology that has worked throughout the centuries. I believe 50 years from now, people will look back at this period of time, and say, thank God the United States of America did not lose its faith in the transformative power of liberty to bring the peace we want for our children and our grandchildren. (Applause.)
Translation from RepublicanSpeak into English: "... with an ideology that has worked throughout the centuries": "Invading, converting, and killing those who don't, has a long and venerable history in Western thought".

Another translation: "... the transformative power of liberty to bring the peace we want": "The transformative power of massive military firepower to bring 'peace' ... at least to those that are dead in its wake".

Can we impeach the Em-Eff now? Please? He's bat-sh*te insane.

(h/t to ThinkProgress)

Let the sliming begin -- Part Quatre

So Barack Obama was wearing a Somali outfit..... My, my, my!

And the Obama campaign is slinging accusations at the Clinton campaign, and they're firing back.

But waiddaminnit!!!: Where did this all first show up?!?!?

Why, on the well-known lefty Obamaist Hillaryite news site, the Drudge Report!!!!:
The picture showing Obama in a turban during a visit to Kenya in 2006 first appeared on the Drudge Report website yesterday. The [Drudge] site said it was circulated by Clinton's staffers and quoted one saying: "Wouldn't we be seeing this on the cover of every magazine if it were [Clinton]?"
[emphasis added]

And then the "contoversy" catapults this all over the media (heard RW talk radio discussing this momentously important problem this morning) and the blogosphere.

This is like free money for the RW foamer slime machines! Drudge cites some supposed Clinton "staffers", and tries to blame Clinton (while getting all the publicity ... and reaping the reward of getting the picture into circulation without any "blame" for engaging in some sliming himself). Maybe it was some stoopid Clinton "staffers" (but maybe not; see below), but this is just what the RW Slime Machine wants: Get the two Democratic candidates sniping at each other and in the meanwhile get out their own 'message' free. What 'message', you say? What 'message' was that? Even if we assume arguendo that it was some inept Clinton staffers that were trying to circulate the picture (but who, for some reason, completely failed to do so until Matt Drudge 'gave them a hand'), are the Clinton staff going to try race-baiting?!?!? Yes? No? What would that gain the Clinton camp, when all the racist scum are in the Republican fold?

I'll tell ya: Here is the 'message' that someone was trying to convey by publicising (and drawing attention to) the picture. This was pre-emptive sliming of Obama ... done by the Republican Noise Machine, and done for free.

And neither the Obama or the Clinton camp has the brains to point fingers at Drudge and the rest of the RW foaming battalions. Well, I do.

Previous editions of "Let the sliming begin" here and here and here.


Glenn Greenwald documents the M$M (main-stream media) sliming Obama with "patriotism" crapola here. They're essentially repeating pretty much verbatim the RW slime points about him not wearing a flag pin and not holding his hand on his heart for the national anthem. What's next? Some viral e-mail claiming he swears the oath of office on a Koran? Oh. Yeah. Forgot....

Update 2

Tom Tomorrow catches CNN piling on top of the scrum.

Update 3

Roger Hitchcock, on KSFO (San Francisco RW talk radio) this weekend (Mar. 2nd) stated outright that, yes, he's going to "Swift-boat" Obama. He characterises it as "just telling the truth", which is to say, translated from Republican into English, "repeating ad nauseam the RW slime points over and over....", including calling him "Barack Hooo-SAYYNNN Obama"....

Thursday, February 21, 2008

Gone fishin....

Actually, going skiing for the weekend. C'ya all on Tuesday!

Let the sliming begin -- Part Troix

Whole lotta sliming goin' on....

Gotta start another one; just too much going on too quickly.

Chris Muir of "Day by Day" (the favourite cartoon of Star Trek "Cap'n Ed" Morrissey) swings for the fence on this one (really, you gotta click and check it out, trust me ... bring a barf bag).

(h/t to Sadly, No!)

Well, in that case, I feel a whole lot better....

The maladministration to their buddies in the U.K.: "Sorry, we lied to you and made you look foolish.... Dem's da breaks."

Britain had previously said that it hadn't been used by the U.S. in the "special rendition" (read: "outsourcing torture") program:
The British government had previously insisted it was not aware of any British territory being used to transfer terrorism suspects outside normal extradition procedures since U.S. President George W. Bush took office in 2001.
But.... Turns out they said this because the U.S. had assured them it was true. "Fooled ya! Ha-ha!" The maladministration lied, and is now apologising for it:

WASHINGTON (Reuters) - The United States said on Thursday it had expressed regret to close ally Britain over inaccurate information Washington gave about U.S. planes carrying terrorism suspects that refueled on a British island.

"We came up with fresh information that in short order we shared with the British government," said State Department spokesman Sean McCormack. "We regret that there was an error in providing initially that inaccurate information to a good friend and ally," he told reporters.

U.S. Secretary of State Condoleezza Rice telephoned Britain's Foreign Secretary David Miliband on Wednesday to express U.S. regret over the error, he told reporters.

Miliband told Britain's parliament earlier on Thursday that contrary to earlier U.S. assurances, two planes used for "rendition flights" in 2002 had refueled at a U.S. base on the British Indian Ocean island of Diego Garcia.
"Will you still love me in the morning?"

The best part of this little fluff-up between friends was this admission by CIA Director Michael Hayden:
Hayden said neither of the individuals on board the two U.S. flights was part of the CIA's "high-value terrorist interrogation program."
Oh. Well, that makes it all better. We were 'renditioning' "low-value" schmucks through British territory to be tortured for the information needed to Save The World From Terra-ism ... oh ... waidaminnit....

Wednesday, February 20, 2008

"You have a right to be tortured, ..."

"... you have no right to be silent,
you have a right to talk to our attorneys,
if we can't afford to let you have the one you want,
we will appoint one to pretend to represent you...."

In a breathless display of chutzpah, the maladmininstration (with their Mighty Wurlitzer RWA minions sure to be singing along shortly) is flacking the upcoming 'trials' of the six alleged al Qaeda top dogs as giving them an "extraordinary set of rights".:

With an eye to the verdict of history, the Defense Department said Monday that the alleged Sept. 11, 2001, plotters would be given an "extraordinary set of rights" when they go on trial before military tribunals at Guantanamo Bay, Cuba


"So it's an extraordinary set of rights that we're providing to the accused," Air Force Brig. Gen. Thomas Hartmann told a Pentagon press conference Monday.

But the tribunals will be run by the U.S. military, with military lawyers and military judges. Even Defense Secretary Robert Gates has said that trials at the island prison would carry "a taint."
Yes, you heard that, we're giving them an "extraordinary set of rights". I guess I should agree and admit that the "rights" afforded are by any measure, quite "extraordinary", being far from the normal procedures we've developed from our Constitution and Bill of Rights, and refined over the last couple centuries, for the trial of those accused of even the most heinous acts, such as serial killers and murdering pederasts.

But are we giving them extraordinary rights? No. Any "rights" they won were hard-fought (in many cases right up to the U.S. Supreme Court).

The maladministration's original scheme (such as it was, consisting in part of executive directives establishing "military tribunals") was knocked down by the U.S. Supreme Court in the Hamdi case.

The maladministration, in response to the Hamdi case, then pushed for (and got) the Detainee Treatment Act (DTA), which supposedly provided Congressional authorisation for the military commissions that Dubya wanted so badly.

But the Supreme Court struck down the DTA at least in part, in the Hamdan case, so the maladministration went on to the third iteration, the Military Commissions Act (MCA) [PDF file]. Court cases on aspects of the MCA are winding their way up the pipe, but for now, it is the MCA that "gives" these accused terrorists their "rights" in the prescribed "military commissions".

Wasn't it so kind of the maladministration to give them these "extraordinary [...] rights"? No. The maladministration was kicking and screaming the whole way while various detainees fought in court for their rights (and won some along the way). But the larger issue is that "rights" are not some thing to be bestowed as a kindness by the gummint, in some kind of noblesse oblige. They are a thing that inheres in all the people in a country based on law and human rights: "We hold these rights to be self-evident...." and so on.

The maladministration contends that these high-profile prisoners are being given more "rights" than were the Nazi defendants in Nürnberg or the accused Abraham Lincoln assassins (from the news article):
They will receive more rights than the top Nazis tried at Nuremberg, Germany, military officials pointed out, and far more than the plotters in the assassination of Abraham Lincoln, who were hanged within three months.
Not quite sure on what basis they make this claim; the maladministration has hardly come forward with an explanation of how they arrived at such a conclusion. But that hardly matters; what matters is what today's laws here require under the present circumstances.

One thing is certain: We didn't torture confessions out of the Nazi war criminals.

But what does the MCA permit (and what "rights" does it so generously bestow)?

I did this post a while back. But let's step through it again:

Right to a lawyer? You get a military defense counsel. The military defense counsel must be a "judge advocate" (read: U.S. military officer):
    `(c) Military Defense Counsel- Subject to subsection (e), military defense counsel detailed for a military commission under this chapter must be a judge advocate (as so defined) who is--
      `(1) a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; and
      `(2) certified as competent to perform duties as defense counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member.
You might get a civilian defence counsel ... but ... you will have a military defence counsel. Nice of them to provide one, eh?

Will you get the civilian defence counsel you want? Maybe ... if the gummint wants to allow them. They may deign to deny you one that doesn't have proper "security clearance" (or perhaps they just won't let them see any classified evidence).

Any stipulations on counsel? And restrictions (outside the above)? Any thing that might interfere with their duties?:
    `(4) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information and may not divulge such information to any person not authorized to receive it.
    `(5) If the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel.
So.... your counsel might see classified evidence ... maybe ... but if you're not authorised to see it (and how many Gitmo prisoners are?), he can't share it with you ... and you still have to deal with the obligatory lawyer they assigned you (and see here for what that might entail).

Coerced evidence? The act permits convictions based on evidence that was literally beaten out of a witness, or obtained through other abuse by either the federal government or by other countries:

`Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

    `(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
    `(b) Exclusion of Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.
    `(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
      `(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
      `(2) the interests of justice would best be served by admission of the statement into evidence.
    `(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
      `(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
      `(2) the interests of justice would best be served by admission of the statement into evidence; and
      `(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.
So if it's a "reliable" confession or admission obtained by "cruel, inhuman, or degrading treatment" (CIDT), it can be used (except if obtained after Congress stepped in and banned CIDT, and said that evidence from such [now-"illegal"] CIDT could not be used. But the stuff from before? Well, no problem there.

And notice the careful definition of what's excluded, and compare with what the maladministration now is claiming is not "torture" and is merely "CIDT"; they want the waterboarding evidence done back in 2002 to be admissible. But as explained by Professor Balkin at Balkinization, even "CIDT" was and is banned by treaty in any case. In the eyes of the maladministration though, it's only "bad" evidence (as well as obtained illegally) if done after Congress stepped in and said that it goes beyond the pale. Still the same act of coercion, though.

Rules of evidencce? The normal Article III court Rules of Evidence are disposed of. Here's the new ones:
    `(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions:
      `(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.
      `(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.
      `(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
      `(D) Evidence shall be admitted as authentic so long as--
        `(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and
        `(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.
      `(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.
      `(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.
      `(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed--
        `(i) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or
        `(ii) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

No Fourth Amendment.

No Fifth Amendment.

No exclusion of "hearsay evidence" if someone [read the gummint's appointed judge] thinks it is "probative". What's the problem with "hearsay evidence", you say? One of the Fifth Amendment's rights is the right to face your accuser. This boils down to the right to cross-examine them and to poke holes in their story, find out about conflicts of interest, character and reliability of the witness, etc. To get such "hearsay evidence" tossed in a military commission, you have to "demonstrate" that it is "unreliable". But that's what cross-examination is supposed to afford. And if what you have is "hearsay evidence", how can you ask the original source of the evidence about how he got it, what were the circumstances, how observant he was, etc.? It's allowing in the gummint's testimony as unchallengeable fact, and then laying the burden on you to prove that the facts are otherwise.... The gummint may (but is not required to) provide the "general circumstances under which the evidence was obtained", but even this may be "constrained" by the gummint's privilege to withhold "classified information".

And, just in case, they can keep out your evidence if it causes "confusion of the issues"....

What about classified materials?:
    `(f) Protection of Classified Information-
      `(1) NATIONAL SECURITY PRIVILEGE- (A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.
      `(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that--
        `(i) the information is properly classified; and
        `(ii) disclosure of the information would be detrimental to the national security.
      `(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.
        `(A) ALTERNATIVES TO DISCLOSURE- To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--
        `(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission;
        `(ii) the substitution of a portion or summary of the information for such classified documents; or
        `(iii) the substitution of a statement of relevant facts that the classified information would tend to prove.
        `(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES- The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.
        `(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL- During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review of trial counsel's claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.
      `(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS- A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
      `(4) ADDITIONAL REGULATIONS- The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60 days before the date on which such regulations or modifications, as the case may be, go into effect.
So, if they want to, the gummint can "edit" evidence to exclude "classified information", including (but not limited to) "sources, methods, or activities by which the United States acquired the evidence", as long as the gummint thinks the "evidence" is "reliable". But, for those weenies out there that think this might be a tad unfair, "[t]he military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence". They don't have to, though. And no specifics, mind you. I mean, nothing to hang your hat on if you want to impeach the evidence, how it was obtained, or how reliable it is....

How about the right to summon witnesses and to get exculpatory information?:
`Sec. 949j. Opportunity to obtain witnesses and other evidence
    `(a) Right of Defense Counsel- Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense.
    `(b) Process for Compulsion- Process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence--
      `(1) shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and
      `(2) shall run to any place where the United States shall have jurisdiction thereof.
    `(c) Protection of Classified Information-
    `(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--
      `(A) the deletion of specified items of classified information from documents to be made available to the accused;
      `(B) the substitution of a portion or summary of the information for such classified documents; or
      `(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.
    `(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.
      `(d) Exculpatory Evidence-
      `(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).
      `(2) In this subsection, the term `evidence known to trial counsel', in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.
    So you can get compulsory process for witnesses within U.S. jurisdiction ... but if they're -- 'conveniently' -- over in Afghanistan or Timbuktu, wherever, you're just SOL.

    And if the witness you seek happens to have a "classified" job -- ohhhhh, say, like being a CIA agent... -- then the production of the witness may reveal classified "sources, methods, or activities" and maybe -- just maybe -- all you'll get is a summary, if the judge looks on you kindly: "The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence."

    And if the exculpatory evidence itself is "classified", all you get is a "summary". From the maladministration that thinks that OLC white papers, not to mention Karl Rove's e-mails, are Sooper-Dooper Tippy-Toppy Sensitive Secrets.... What a deal!

    And what to make of this?: If there's classified information, the gummint may instead provide "the substitution of a statement admitting relevant facts that the classified information would tend to prove." Does the gummint get to decide what facts it wants to "admit"? Or must it admit any facts at issue in favour of the defendant if it doesn't otherwise provide the information on discovery (or some sanitized "summary" thereof). Not specified, but hardly something one can reassure oneself would be done.

    Do the detainees really have it better than the Nürnberg defendants? The Nürnberg defendants didn't have to contend with coerced confessions, or with the withholding of classified information (and just having a "summary" presented, without the ability to challenge the specifics, or inquire as to the methods, and thus the reliability of the "evidence" used for such summaries). They got to face their accusers.


    These trials are indeed "extraordinary". Why they should be "extraordinary", and not an ordinary trial by long established procedures considered fair, is something the maladministration has not explained in any convincing manner. Maybe we can find out why....


    Here's Ross Tuttle, writing in The Nation, on the MCA "trials":
    Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials have been rigged from the start. According to Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions, the process has been manipulated by Administration appointees to foreclose the possibility of acquittal.

    Colonel Davis's criticism of the commissions has been escalating since he resigned in October, telling the Washington Post that he had been pressured by politically appointed senior Defense officials to pursue cases deemed "sexy" and of "high interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I concluded that full, fair and open trials were not possible under the current system," he wrote. "I felt that the system had become deeply politicized and that I could no longer do my job effectively."

    Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions' bias--a revelation that speaks to fundamental flaws in the Bush Administration's conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else.

    When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

    "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

    "I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

    Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
    "Judge Dredd", indeed.

    From later in the article:
    Currently, in his capacity as Pentagon general counsel, Haynes oversees both the prosecution and the defense for the Guantánamo commissions.
    Gives you the warm fuzzies, doesn't it?

    More in the article. Read it.

    Update 2

    The maladministration is flogging this "Better than Nürnberg" meme on its buddies overseas:

    WASHINGTON - The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terrorist attacks by recalling the executions of Nazi war criminals after World War II.

    A four-page cable sent to U.S. embassies and obtained Tuesday by The Associated Press says that execution as punishment for extreme violations of the laws of war is internationally accepted and points to the 1945-46 International Military Tribunals as an example. Twelve of Adolf Hitler's senior aides were sentenced to death at the trials in Nuremberg, Germany, although not all were executed in the end.
    Wonder if they're buying it? Oh, maybe the Brits will ... they're easy marks. ;-)

    More on this cable here:
    Despite the confidence of military prosecutors, the case has been clouded by revelations that the key suspect, Khalid Sheikh Mohammed, the suspected mastermind of the attacks in which hijackers flew planes into buildings in New York and Washington, was subjected to interrogation tactics that critics call torture.

    The cable refers specifically to this and instructs diplomats to advise foreign governments that the tribunal will not accept evidence obtained through torture and that the defendants can raise objections to any statements they argue they made under coercion. Those decisions will be up to the judge, it says.

    But it notes a distinction between torture and "cruel, inhuman and degrading treatment" that was outlawed by legislation sponsored by Sen. John McCain, R-Ariz, now the leading Republican candidate for the 2008 presidential nomination and a former prisoner of war during Vietnam.

    The cable informs diplomats that statements made by defendants under such conditions before the passage of the Detainee Treatment Act of 2005 may be considered by the court.
    As I was saying above....

    If anyone has a link to the text of the cable, drop me a comment, thanks!

    Update 3

    DDay at Digby's Hullabaloo blog has more.

    Update 4

    More from Col. Morris Davis:
    My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

    Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue — efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

    At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.
    (h/t to the indefatigable researcher "sysprog" over on Glenn Greenwald's blog)

    Gonzales tries to out-do Dubya and Rove

    We have this now from ThinkProgress:
    Yesterday, former attorney general Alberto Gonzales gave a speech at Washington University, for which he was compensated $30,000. Gonzales agreed to answer only pre-approved questions and closed the talk to the press.

    The Washington University student paper, however, printed an account of Gonzales’s address, noting that he compared his time in the Bush administration with the presidency of Lincoln:

    During his speech, Gonzales repeatedly made references comparing himself and the Bush administration to the presidency of Abraham Lincoln, suggesting that Lincoln was highly criticized during his presidency and is now highly revered.

    According to Gonzales, the truths about his actions will be revealed in years to come.

    “There is a difference between what you do and what people say you do. It’s going to take years for the entire story to be told,” said Gonzales. “If you worry about criticism you end up paralyzed and do nothing.”

    The Bush-Lincoln comparison is quickly becoming one of the administration’s favorite talking points. In a recent interview with Fox News, Bush repeatedly tried to link himself with Lincoln, (falsely) claiming that the country “hated” Lincoln when he was leaving office.

    Yeah, Dubya's delirious, and Rove's a hack and an eedjit, but "Seedy" wants to beat each of them at all these things simultaneously.

    "[O]nly pre-approved questions"....

    No press....

    My. What country does that remind you of?

    19%! Ponies all around!! Whee!!!

    A new poll comes close to breaking the glass floor for Dubya's approval ratings:
    George W. Bush's overall job approval rating has dropped to a new low in American Research Group polling as 78% of Americans say that the national economy is getting worse according to the latest survey from the American Research Group.

    Among all Americans, 19% approve of the way Bush is handling his job as president and 77% disapprove. When it comes to Bush's handling of the economy, 14% approve and 79% disapprove.
    Atrios has a pony for Holden, but everyone ought to get one this month.

    This brings up the interesting question: Is it possible for his approval ratings to go below zero? Can poll respondents, say, "borrow" on future or past positive ratings, and use these credits to really express what they think?

    (h/t to ThinkProgress too)

    William Kristol thinks we should trust our gummint....

    As ThinkProgress reports, neocon and Dubya flack William Kristol thinks we're just too damn suspicious of our gummint:
    Kristol said it was “unbelievable” for lawmakers to question the judgment of administration officials. Instead, he argued, Congress should just give them the “benefit of the doubt”:
    I think it’s kind of unbelievable, frankly. It’s a judgment call. We don’t know. Not to give the administration the benefit of the doubt when they have career people, military people, intelligence people like Mike McConnell and Mike Hayden, and the attorney general, Mike Mukasey — I mean, these are not political hacks. These are not ideological people.

    When they say this is important for our national security, the Congress — to block this legislation I find pretty amazing.
    Of course. They're not in the least political hacks. They never lie to us. And I'm not even linking the departed sack'o'sh*te "AG" Gonzales who was both in spades....

    Yes, when the noted lib'ruls Comey, Ashcroft, Mueller, and Goldsmith all threatened to resign unless the maladministration stopped doing what they were secretly doing, of course we should trust Dubya's consiglieres and thugs to "do the right thing" without any oversight....

    Tuesday, February 19, 2008

    I agree with Andrew Napolitano

    Andrew Napolitano, in a L.A. Times op/ed, says:
    The 4th Amendment was written in response to the Colonial experience whereby British soldiers wrote their own search warrants, thus literally authorizing themselves to enter the private property of colonists.

    The amendment has been uniformly interpreted by the courts to require a warrant by a judge; and judges can only issue search warrants after government agents, under oath, have convinced the judges that it is more likely than not that the things to be seized are evidence of crimes. This standard of proof is called probable cause of crime. It is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, surely so that no Congress, president or court could tamper with it.

    FISA also created the bizarre, constitutionally questionable procedure in which federal agents could appear in front of a secret court and, instead of presenting probable cause of a crime in order to obtain a search warrant, would only need to present probable cause that the target of the warrant was an agent of a foreign government. The foreign government could be friendly or it could wish us ill, but no illegal or even anti-American behavior need be shown. Subsequent amendments to this statute removed the "agency" requirement and demanded only that the target be a person physically present in the U.S. who was not born here and is not an American citizen, whether working for a foreign government or not.

    The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

    Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

    Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.
    Hear, hear. Well said. I've been saying the same for years. You want to snoop, get a freakin' warrant!!! No exceptions!!!

    (FWIW, I disagreed with Napolitano back in the Clinton years on the legal issues of the Elian Gonzales case)

    More Wall Street Journal eedjitcy

    A signed opinion piece by Dubya speechwriter and RW flack William McGurn does the ol' "even Dubya's sh*te smells like roses to me" routine. Some aromatic pieces:
    Let me put this in context with three contentious issues -- one economic, one cultural, and one on foreign policy. In each case, President Bush took a clear stand. In each case, he was accused of stupidity or stubbornness and sometimes both....
    Well, yeah. There is a reason for that....
    ... In each case, the facts on the ground increasingly bear the president out, sometimes dramatically. Yet the beat goes on -- with no sense of the great irony that it may be our writers and pundits who are stubbornly clinging to old assumptions.

    Start with taxes. In the first three years of his administration, the president signed into law a series of tax cuts. They helped families by lowering rates, doubling the child credit, and reducing the marriage penalty. They helped small businesses, by increasing the incentives for investment and lowering the rate at which most small businesses pay taxes. And they put the death tax on the road to extinction.


    We now know that "jobless recovery" in fact produced the longest period of consecutive job growth in our history. We now know that the tax cuts that were supposed to blow a hole in the federal budget deficit actually contributed to economic growth that has in turn yielded record tax revenues.
    The economy's a shambles, the Dow's at about what it was when Dubya started, the national debt increased by $4 trillion, and the "jobless recovery" is far more anemic (barely keeping up, if that, with even the growth in the work force) than Clinton's 8 years of growth (while tripling the Dow and producing a balanced budget to boot).
    Or take stem cells. Shortly after taking office, the president had to make a tough decision about federal funding for embryonic stem cell research that holds out hope for life-saving treatments. The problem was that getting the stem cells requires destroying embryos. In July 2001, Mr. Bush announced a reasonable compromise. The solution was that the federal government would support embryonic stem cell research, but would not support the creation of life just to destroy it.

    For more than six years, the critics have reacted by suggesting America was regressing into a new Dark Ages. "An act of self-serving political Houdinism" said one columnist. A later editorial after a presidential veto ran under the headline "The President's Stem Cell Theology." The science reporter for ABC News put it this way: "We talk to a lot of scientists who believe nothing will change until the next inauguration in 2009."

    Well, we didn't have to wait until 2009 for something to change. Last November, scientists discovered a way to reprogram adult skin cells to act like embryonic stem cells. In other words, we now have the potential to cultivate adult cells with the same pluripotent qualities that make embryonic cells so valuable -- and without having to destroy human life. That sure sounds like a welcome development. So let me ask: How many stories or editorials have you read giving the president his due?
    A total crock. I addressed this nonsense here. Dubya and "thinking about science" in the same sentence is a category error.
    Finally there is Iraq. By the end of 2006, sectarian violence was tearing Iraq apart, the terrorists were getting away with spectacular acts of murder, and our strategy plainly was not working....
    Yes, there is ... Iraq. Four years into it, and finally someone in the maladministration figgered out it wasn't going to be a "cakewalk" and they weren't going to be throwing flowers and kisses at our troops. This is some mark of brilliance?!?!?

    But FWIW, we're nigh on 4000 dead troops (and a half million Iraqis dead) and $1 trillion dollars down the tube ... with no end in sight and no "exit plan"....
    ... For a man said to resist unpleasant truths, the president acted boldly. He replaced his defense secretary, replaced his commanders on the ground, and completely overhauled his strategy. Granted, it would have been better had it come earlier....
    No. It would have been "better" if he invaded Iraq in the first place, and hadn't squandered 3000 U.S. troops because of incompetence (amongst other failings).
    ... But it was a tough thing to do, he did it -- and he did it knowing full well that the critics would jump all over him.
    As well they should. The guy makes the Three Stooges look like Einstein.
    The president announced the surge in a nationally televised address in January 2007. A conservative columnist accused the president of offering nothing but "salesmanship and spin." A cable TV host went on a rant declaring "the plan fails militarily, the plan fails symbolically, the plan fails politically." Columnists and commentators either hedged their bets or predicted disaster ahead, with allusions to Vietnam sprinkled in for good measure.

    Yet the surge went ahead. In Anbar Province, Marines were sent in to take advantage of a popular Sunni revolt against al Qaeda -- and by April the capital city of Ramadi was being taken back from the terrorists. By September, U.S. and Iraqi forces were clearing out Baquba, a one-time al Qaeda town in Diyala Province. And though Gen. David Petraeus says that the gains can still be reversed, sectarian killings are down, civilian deaths are down, and the people of Baghdad are getting a taste of normal life. Surely the president deserves a little credit here.
    For what? I count 877 dead troops since the "surge", and no end in sight.
    President Bush hasn't always been right. But he's been right on the things that matter most, and he's been willing to take the heat. I, for one, admire him for it.
    Well, yes, he deserves credit for the things he did right. Let's see, there's ... ummm, yeah, there was ... ummm, well, there was ... ummm-hmmm. Right. He hasn't done anything right.

    So Mr. McGurn, this new "star" of the WSJ opinion page, is a News Corporation executive, eh? So, Bancroft family, that's what you get for selling to Murdoch and those jerks....

    The Wall Street Journal spreads more FISA lies

    The Wall Street Journal opinion page, ever a font of RW propaganda, is busy with it once again, flacking the maladministration spin on the Protect America Act reauthorisation:
    For the next 9/11 Commission, we nominate the first witness: Silvestre Reyes, Chairman of the House Intelligence Committee. He's the man now telling everyone to chill out, take it easy, there's nothing to worry about, after his fellow Democrats last week scuttled a bipartisan compromise on warrantless wiretapping of al Qaeda.
    Why not put up the Heritage Foundation "countdown to terrorist attack" clock too (see first update)? Oh, yeah, nevermind. It hit "T - zero" ... and nothing happened.
    "It is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago," Mr. Reyes wrote in a letter to President Bush. By "actions" he means the cooperation with U.S. intelligence by private telecom companies after 9/11, for which the companies now face more than 40 lawsuits.
    By "actions", we mean felony criminal and civil violations of the law, specifically 50 USC §§ 1809 and 1810.
    Mr. Reyes's letter is a political keeper -- all the more so because it is so divorced from intelligence reality. Nearly every other professional says that Friday night's expiration of the wiretap law will do significant security harm.
    Not so. See here, and here, and most damningly, here; even Dubya said FISA was enough ... until he got caught violating the law.
    Intelligence Chairman Jay Rockefeller, a Democrat, on the Senate floor last week: "What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunications companies lose interest."
    As they "lose interest"?!?!? WTF???
    Intelligence-gathering has changed since the end of the Cold War. We live in a world of fiber optics and packet switching....

    Nonetheless, as Glenn Greenwald points out, FISA has been updated repeatedly, and even in the aftermath of 9/11 back in October of 2001.
    ... The National Security Agency can't get what it needs merely by scanning the airwaves for telephone calls and code words....
    So? They couldn't back in 1978 either. That's why there was a FISA provision [50 USC § 1801(f)(2)] for "wire communications". But that FISA provision said you need a court order to spy on people in the U.S.
    ... Terrorists communicate through the Internet. To eavesdrop on those communications, the NSA needs the help of private companies, which voluntarily cooperated after 9/11 when Mr. Bush and the Attorney General asked them to do so.
    The point is not their "cooperat[ion]". It is their following the law. Their "cooperat[ion]" is required by law ... if the gummint requests them to do so in a legal fashion.
    We've long held that a President doesn't need a court order under the Constitution to order such wiretaps....
    What the WSJ opinion page editors "hold" is of no legal significance. They are not courts charged with upholding the FISA law that did require " a court order ... to order such wiretaps".
    ... But the reality is that, because of these lawsuits, the telephone companies now won't cooperate without the legal protection of a court order. That's how pernicious these lawsuits are.
    Yes, they are not required to break the law. They are supposed to do this only under specific circumstances, one of which is that for certain snoops, a court order is required, and if they do so without this, they are subject to civil and possibly criminal penalties. Let's hope they stop.
    We asked one phone company executive what he'd do, after Friday's expiration, in response to a government request for cooperation. His answer was blunt: "I'm not doing it. If I don't have compulsion, I can't get out of court [and those lawsuits]. . . . I'm not going to do something voluntarily." Having talked to telecom executives, we can tell you this view is well-nigh universal.
    "Volunt[eering]" to help break the law is not something that should be encouraged, in my book. If this one executive says that he won't do so again, I'm afraid I don't see what the problem is.
    What we have here is a remarkable display of the anti-antiterror minority at work. Democrats could vote directly to restrict wiretapping by the executive branch, but they lack the votes. So instead they're trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies. Then if there is another terror attack, they'll blame the phone companies for not cooperating.
    No. That would be the RW foamers and Rethuglicans like the WSJ here who are just waiting for a terror attack, so you can run around screaming, blaming the Democrats. Sorry, na ga happen....

    Karl Rove, world's most tireless flack for Dubya

    Karl Rove, "Bush's Brain", "boy geen'yus", never one to give up, digs deep into his bag of tricks, and pulls out another zinger that will have pundits and political watchers agape:
    “But I think that people will look back at the Iraq war and say ‘Thank God, he had the courage to do what he did.’ I think we’re seeing the emergence of a potentially stable democracy in the heart of the Middle East.” ...
    ... say, unlike Dubya's friends in Saudi Arabia ... or Kuwait ... or the UAE. Maybe all they need is a little invasion, and we could have "democracy" flowering all over the Arabian peninsula ... might even get some oil out of the deal as well....

    But I thought the real rush to invade was because of all those WoMD....
    He disputed a reporter’s reference to the war becoming a quagmire. “The military is succeeding, the violence is down.”
    We'll hit four thousand dead U.S. soldiers by the end of March, and no end in sight. Not to mention a cool $1 trillion down the rathole. At that rate, we can democratise the world for the price of only a couple decades U.S. GDP.

    (h/t to ThinkProgress)