Brad DeLong Takes a Stand

Brad DeLong, econ professor at Berkley (and respected blogger) has written a letter to the school's administration requesting that it terminate the employment of law professor John Yoo. I thank him for it, and hope others will join him. I've found it quite disturbing for several years now that Yoo has been treated as a respectable and important member of the legal academia. The man should count himself lucky that he is not in prison for war crimes and have the good sense to otherwise remain out of sight. DeLong's letter is well worth reading. The actions Yoo took for the Bush administration were blatantly unethical, and a lot of people suffered and died behind the bogus legal cover he provided the administration. He is an embarrassment to the school and the profession. And that's to say nothing of Jay Bybee sitting on the 9th Circuit.

Hayden and the NSA

An update to my previous post. Indeed, House Republicans are not thrilled with the Hayden nomination. High-profile hearings on Hayden's time at the NSA are not what they'd prefer to have the nation focused on as the election season warms up. Unfortunately for them, the NSA domestic spying story just got a lot worse.

What Are They Thinking?

It appears that the Bush administration is poised to nominate NSA director Gen. Michael Hayden to replace Porter Goss at the CIA. Hayden, of course, presided over the illegal NSA wiretap program. The wiretap program that Democrats wanted to see investigated by Congress and that Russ Feingold tried to censure the President over. And the administration wants to put Hayden through confirmation hearings. In an election year.. Good on them. We needed a more pubic airing of the wiretap program, and now we're going to get one. The Senate may actually confirm the guy, as only a third of senators actually have to face the voters in November, but here's guessing that House Republicans are not going to be happy..

Glad We Got to the Bottom of That

You can all rest easy now. After months of investigation into the story that the CIA had secret overseas prisons where prisoners were being held incommunicado and possibly subject to torture, we've finally gotten to the bottom of this story. The CIA agent who leaked this information has been found and fired by the CIA. No word on whether the agent will be subject to further legal action. Hallelujah, go USA! Now you'll have to pardon me while I go sick up.

Re: Putting Numbers on Surveillance

I think generally that the amount of tortured logic we've seen from this administration in their legal justifications for a lot of things is fairly astounding. This definition of surveillance is par for the course. Respect for the law is obviously a foreign concept to these folks. It seems more like a game to them. If you want to read a great legal analysis of the NSA flap, a bunch of well-known legal academics and former high-level legal officials have written a very thorough and detailed piece for the New York Book Review.

Putting numbers on surveillance

The Washington Post has an article today that for the first time reveals the extent of the domestic surveillance program initiated by the NSA. In the past four years, some 5000 Americans have had "international" emails or phone calls intercepted. The administration claims that American lives have been saved because of this program, although there is no way to verify this. As it stands now, surveillance of purely domestic phone calls or emails still requires a warrant.

The article also provides some explanation as to why the administration circumvented FISA. Because this program has been of such low yield for information, it would easily be shown to be an unreasonable search given its unreliability. Hence, a violation of the 4th amendment.

In another insidious use of logic, NSA rules define surveillance as only occurring when a human examines surveillance data directly. The NSA is using more and more automated, computerized filtering systems that have the ability to scan large volumes of communications in the hopes of picking up information or patterns that could signal terrorist activity. Yet, only the hits that are actually examined by a human would be considered subject to possible legal protection.

This is a very slippery slope we are on. Intercepting terrorist communications is clearly important, but we can not allow it to come at the expense of speech and privacy. If it does, then the terrorists have already won. There needs to be an informed public debate about this, and it does not require divulging all details of current programs. If the government is listening in on me, I want to know about it.

A Spirited Debate on Civil Rights

I happened across this Legal Affairs magazine debate on the Patriot Act between Chicago Professor Geoffrey Stone (against) and Judge Richard Posner (for). Both make some good points and fire off some nice jabs. My favorite exchange:

Posner: "My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless."

Stone: "Let's see, how does it go: A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC."

A Cool Response to the PATRIOT-ACT

Slashdot pointed out this story about a feature coming soon to a library near you: anonymous library cards. Instead of giving the library your personal information, you'd just a make a cash deposit that would serve as collateral for any books you check out. Slick, clever, sticks it to the Man. I like it.

Real Damage from Prisoner Abuses

There were a trio of interesting articles on CSM today. First, this story on the marked decline of class mobility in America. A troubling trend that underscores, again, the danger in relying on capitalism to deliver social justice. There tends to be an implicit assumption that in a free market everyone gets what they deserve. If there are structural barriers to class mobility, that assumption becomes less valid.

The next story, a happy one for a change, discusses various much-needed efforts at reforming the jury system. As the article notes, there is a great deal of variation among the states (and some are doing nothing at all). Hopefully some of these programs will prove successful and spread to other states.

The story I most wanted to comment on, however, discusses the frightening perceptions among Arabs of our treatment of prisoners in the war on terror. The story focuses on recently leaked pictures of Saddam in his underwear. It also comments on the Newsweek Koran flushing story and the recent NYT story on abusive treatment leading to the deaths of two prisoners, as well as the light sentences and lack of high level accountability for Abu Ghraib. While the Newsweek retraction provided a high profile opportunity for the scoring of political points, I hope that we haven't lost sight of the very real problem that our cavalier treatment of prisoners is creating. These are not isolated incidents. University of Miami law professor Michael Froomkin has been keeping a watch for torture stories on his blog. A sampling:

- U.S. takes hostages to coerce relatives into surrendering
- Guantanamo prisoner claims to have suffered violent sexual assaults and near drowning during his captivity.
- Guantanamo prisoner claims that Gitmo tapes would be as explosive as the Abu Ghraib photos
- Guantanamo prisoner claims innocence, details physical mistreatment
- Guantanamo prisoner claims prisoners were handcuffed naked and attacked by dogs
- 15-year-old Guantanamo detainee claims abuse
- Pentagon inquiry confirms use of sexual tactics in interrogations
- Military lawyers at Gitmo try and fail to end physical abuse of prisoners.
- Afghan prisoner, left exposed to the elements by the CIA freezes to death.
- Gitmo prisoner claims torture, assault, near-suffocation
- Mother Jones story details many claims of torture at hands of U.S.
- Navy disgusted by abusive treatment at Gitmo.
- Terror prisoners claim to have been beaten and abused at New York's Metropolitan Detention Center.
- Iraqi prisoner hung from the wrists until dead (Abu Ghraib related)

These are stories that may not get much play in the U.S., and to be fair, many of them are unconfirmed allegations. However, they almost certainly draw attention from Al-Jazeera and other Arab outlets. As the CSM story notes, U.S. treatment of prisoners is having a strong impact on Arab public opinion. It is difficult to believe that high level decisions (such as the DoD memos exposed after Abu Ghraib) within the administration are not fostering such treatment. Unless I've been grossly misinformed, these sorts of actions do not typify American treatment of prisoners in past conflicts. Moreover, it is difficult to see what we gain from all of this. There have been few claims that we've gained critical intel from this abuse, and many claims to the contrary. I simply don't understand why we aren't doing anything about this. Abu Ghraib never got any real reaction within the administration or the DoD, and all of these stories roll by without attracting any significant attention. Aside from the fact that this treatment is shameful in view of Americans' generally shared values of human rights and human dignity, it seems ruinous from a strategic PR standpoint. But no one in the administration, and few in the press, are paying attention. Whatever stupid things Newsweek may have done, that's the real story here.

Torture Just Ain't What It Used To Be

Slate has this article entitled, "The Plain Meaning of Torture? Literary deconstruction and the Bush administration's legal reasoning." I recommend it (although I have to admit I have never heard the phrase, "PMR" before).

Re: What Next for Guantanamo

The Washington Post has an editorial that is a reasonable synthesis of Dahlia Lithwick's analysis from yesterday, and my remarks of Jan 21 on Judge Bork's WaPo column. The courts are not the best place to be figuring these things out, but as long as the administration fails to engage Congress on them, there's not much alternative.

What Next for Guantanamo?

Dahlia Lithwick on Slate contrasts yesterday's ruling with another district court ruling by Judge Richard Leon whose ruling ran almost completely contrary with Judge Green's In re Guantanamo Detainee Cases decision. What fun for the appellate courts...

Back to the Drawing Board

There's Big News in the courts today as district court judge Joyce Hens Green ruled that the special military trials being given to the Guantanamo prisoners are not good enough. Decision here. Washington Post coverage here. Probability of appeal: 1.

Leadership By Default

I was rather struck by this Washington Post column by Robert Bork and David Rivkin arguing that the court should stop managing the War on Terror. On the one hand, their arguments are entirely plausible. The Hamdi case serves as a perfect example. The court knew that something needed to be done, but they could hardly create a detailed policy directive as to how to treat enemy combatants. So they issued some vague requirements and left the government to figure out what the court was after through trial and error. It is hardly an ideal solution.

On the other hand, for the court to take a hands-off approach as Bork and Rivkin suggest would be even more absurd. The problem here is that Congress apparently doesn't give a crap about the War on Terror, and if the executive has an actual plan, they refuse to say a word as to what they are doing or why. The courts shouldn't be in a leadership position on this, but they have no choice. Nobody else will do it.

If the Administration would explain what exactly it is they're doing, their rationale, what sort of limits they place on themselves, and how they're enforcing those limits, then the courts would have a sound basis to grant them broad discretion. However, we have none of that, and instead have Abu Ghraib, a proposal for a jurisdiction-free-zone in Cuba, documents suggesting that the Geneva Conventions are quaint and torture is ok. How could the courts not intervene?

Bork and Rivkin attempt to write off these various indiscretions as abuses that "inevitably occur in war". I don't buy it. This morning I attended a presentation by reporter Donovan Webster, who recently wrote an article for Vanity Fair called "The Man In the Hood" (the article is not online, but there's a brief summary here, and an Aljazeera article about it here). Webster visited Iraq twice last fall and conducted 60 hours of interviews with former Iraqi detainees, visited detention sites, and spoke with the military personnel there. Webster contends (fairly convincingly) that the abuses famously exposed at Abu Ghraib were widespread, and continue to this day, and that no serious changes resulted from the initial round of publicity. This is an administration in desperate need of adult supervision, and it would be a horrific abdication for the courts to back down.

Not Learning the Lesson

Apparently, back in March, even as the Abu Ghraib story was breaking, and even as the administration was trying to distance itself from the Justice Department's prior statements that international laws on torture didn't apply to the US, the Office of Legal Counsel was hard at work releasing an opinion stating that the CIA could remove prisoners from Iraq in contravention of the Geneva Convention, even as they acknowledge that this action constitutes a grave breach and a war crime under the terms of the convention. The Post article cites international law experts as calling the reasoning in the memo "unconventional and disturbing". These guys just don't take a hint...

A Waste of Time

Since the early days of the War On Terror, when Camp X-Ray was created at Guantanamo Bay, many charges have been leveled that the conduct there violates humans rights standards and many American and international legal standards. The Bush administration has consistently answered such charges in the press and in the courtroom by claiming that the actions they have taken are a necessity in their efforts to make the world secure from terrorism. Now Lieutenant Colonel Anthony Christino, a military intelligence officer, is claiming in a new book by David Rose, that the interrogations held at Guantanamo Bay have yielded no useful intelligence. Christino states that not a "single terrorist attack" has been prevented by these interrogations.

Re: Doh, Our Bad

The Washington Post has picked up the story with an editorial today asking what in the hell is going on here. They don't say it, but I think they're wondering (and I'm wondering if they're not), will Ashcroft get tagged in this? As if we didn't have enough high level investigations of conduct in the executive branch under way already. Thank you, George Bush, for restoring "honor and dignity to the White House".

DOJ: Doh, Our Bad

The Department of Justice says it is calling for new trials and dropping terrorism charges against three already convicted sleeper cell suspects after an internal investigation finds that in the initial trial prosecutors concealed key evidence from discovery, going so far as to release documents "with misleading inferences that such material did not exist". Oops.

Ashcroft: I Am The Law!

This is sort of old news, but I'm trying to get caught up here. So let me get this straight: The justice department evaluates the powers of the executive branch under the circumstances of the "War on Terror", and determines (what good luck for them) that the powers of the executive are unlimited and unrestricted by any law or convention. They can do whatever they damned well please, hurrah! They write a number of memos outlining this fact and documenting other useful bits of knowledge, including penning a definition of torture that would have exempted most of the Nazi doctors who experimented on concentration camp victims. These are then sent to the President, and, lo and behold, some number of months later egregious prisoner abuses are uncovered. Apparently there is still at least one person in the government in possession of a conscience (or more likely, an axe to grind), and the memos are leaked to the press. In view of events these memos appear to be fairly significant and worthy of some scrutiny, so the Senate decides they ought to take a look and request that they be given copies. Ashcroft declines, and rather than citing executive privilege or any legal basis for this denial, claims some sort of lawyer-client privilege between the president and the entire Justice Department. The Senate Judiciary Committee is apparently too dumbfounded by the absurdity of this claim to take any immediate action. Surely the public ridicule will convince Ashcroft to concede. But wait! Mere weeks later, in considering Vice President Cheney's refusal to turn over documents relating to the energy committee, the US Supreme Court vindicates Ashcroft by stating that rather than have awkward moments in which the various branches of the government have to check one another's power, we should just delegate to the executive whatever power they want so that we can avoid conflict. Long live the King! Am I pretty much on track here?

This is getting beyond absurd. In the immortal words of Barf from Spaceballs, "They've gone to plaid!" Are we generating some outrage yet? At what point do we get to the rioting in the streets? This is where we need a Democratic presidential candidate who can do outrage, and who can raise hell and make some waves. If this isn't a moment to point out just how dangerously far off the track we've gone, what is? And where's our candidate? Making minor campaign stops and lulling crowds to sleep all across the country, staying mostly out of the spotlight under the theory that the less the public sees him, the better he'll do. Thank god for Michael Moore. At least there's one person with the good sense to be royally pissed off by all this.

Documents on Interrogation Tactics Available at WP

The WP has scanned the documents that were released yesterday by the Bush administration. They include the 2002 memo by now-judge Bybee (who sits on the 9th Circuit Court of Appeals) and several memos by White House General Counsel Gonzales. I am sure there will be lots of stories cropping up today on these memos (and I plan to make more comments when I have the time to go through those documents), but I found one scanned document particularly interesting right off the bat.

On November 27, 2002, William Haynes II recommended to Secretary Rumsfeld that certain interrogation techniques be available for detainees at Guantanamo--and Rumsfeld approved his recommendations. Among the techniques that were approved in the memo [PDF] include:

a. Category I techniques. During the initial interrogation the detainee should be provided a comfortable chair and the environment should be generally comfortable. The format of the interrogation is the direct approach. The use of rewards like cookies or cigarettes may be helpful. If the detainee is determined by the interrogator to be uncooperative, the interrogator may use the following techniques:

(1) Yelling at the detainee (not directly in his ear or to the level that it would cause physical pain or hearing problems)
(2) Techniques of deception:
(a) Multiple interrogator techniques.
(b) Interrogator identity. The interviewer may identify himself as a citizen of a foreign nation or as an interrogator from a country with a reputation for harsh treatment of detainees.

b. Category II techniques. With the permission of the GIC, Interrogation Section, the interrogator may use the following techniques.

(1) The use of stress positions (like standing), for a maximum of four hours.
(2) The use of falsified documents or reports.
(3) Use of the isolation facility for up to 30 days. Requests must be made to through the OIC, Interrogation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.
(4) Interrogating the detainee in an environment other than the standard interrogation booth.
(5) Deprivation of light and auditory stimuli.
(6) The detainee may also have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.
(7) The use of 28-hour interrogations.
(8) Removal of all comfort items (including religious items).
(9) Switching the detainee from hot rations to MREs.
(10) Removal of clothing.
(11) Forced grooming (shaving of facial hair etc...)
(12) Using detainees individual phobias (such as fear of dogs) to induce stress.

The same memo also approved one item from "Category III": "Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing."

When Secretary Rumsfeld signed off on the above techniques, he added a written notation that reads:

However, I stand for 8-10 hours a day. Why is standing limited to 4 hours? DR