a citizen’s journal by Thomas Nephew

Forward — to drones on their own

Posted by Thomas Nephew on 3rd October 2012

(From United States Air Force Unmanned Aircraft Systems Flight Plan 2009-2047, Note the
planned capabilities of the MQ-Lc, far right: “Modular, Autonomous,” “Strategic Attack,” “Global Strike.”  Similar features
are envisioned for “medium,” fighter-sized version MQ-Mc’s.


What could be better than unmanned aerial vehicles raining death on Pakistan in a ratio of three children to one terrorist leader by remote control?  Why, the same thing on autopilot, of course.  J. Michael Cole of “The Diplomat” reports:

…although the use of drones substantially increases operational effectiveness — and, in the case of targeted killings, adds to the emotional distance between perpetrator and target — they remain primarily an extension of, and are regulated by, human decisionmaking.

All that could be about to change, with reports that the U.S. military (and presumably others) have been making steady progress developing drones that operate with little, if any, human oversight. For the time being, developers in the U.S. military insist that when it comes to lethal operations, the new generation of drones will remain under human supervision. Nevertheless, unmanned vehicles will no longer be the “dumb” drones in use today; instead, they will have the ability to “reason” and will be far more autonomous, with humans acting more as supervisors than controllers.

(Via digby at “Hullabaloo”).  Sure, there are concerns and glitches, Washington Post’s Peter Finn notes:  “Some experts also worry that hostile states or terrorist organizations could hack robotic systems and redirect them. Malfunctions also are a problem: In South Africa in 2007, a semiautonomous cannon fatally shot nine friendly soldiers.” 

But the deeper concern is that a war-fighting process already on institutional and public opinion autopilot would now simply go on a computerized one.  Americans think they know what’s going on in Afghanistan, Pakistan, and elsewhere, but they don’t.  As the authors of Living Under Drones: Death,Injury,and Trauma to Civilians From US Drone Practices in Pakistan put it,

In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling “targeted killing” of terrorists, with minimal downsides or collateral impacts.  This narrative is false.

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It’s lawfare, and we’re losing

Posted by Thomas Nephew on 3rd January 2012

As is well known, President Obama has added his signature to another civil liberties setback – the National Defense Authorization Act (NDAA) and its provisions for indefinite military detention of persons accused of terrorism.  Much has been written about what’s wrong with the NDAA, and I won’t rehearse those arguments here.*

Instead, I want to just observe Benjamin Wittes’ post “In Praise of the Signing Statement” in his “Lawfare” blog, in which he pats Obama on the head for his signing statement — and after a failing grade last year:

…this year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. […]  Maybe it’s just that I’m feeling mellow following a week in Maui, but I’m not inclined to criticize the administration over its handling of this one.

This kind of condescending approval might seem like sheer arrogance to most, but Wittes’ writings and opinions unfortunately command wide attention.  The “Lawfare” blog he maintains with former Bush OLC chief Jack Goldsmith and others more or less serves as the blog of the Bush/Obama legal consensus legal policies with respect to counterterrorism (occasional forays by guest bloggers notwithstanding) — the negative pole to positive ones like Glenn Greenwald.

In Lawfare’s first blog entry, Wittes attempts to put his own spin on what I think is the discreditable concept of “lawfare”:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.

The first option is the common one, the second is Wittes’ admittedly editorial comment — no one but him thinks of ‘lawfare’ this way, but as in much else, Wittes may succeed in blurring the meaning of a word to his advantage.

And that’s the project in a nutshell.  To me, a key secondary attribute of ‘lawfare’ is embodied in NDAA’s detention provisions.  That attribute is purposeful confusion and vagueness — plausible deniability — about what the laws are and how they will be enforced.  Learned folk can debate whether the new law threatens indefinite detention of Americans despite — or because of — passages unctuously proclaiming “no requirement” to do so with respect to Section X, yet not for Section W.  They can argue whether language asserting that ‘nothing in any of this changes existing US law’ is a reassuring affirmation of the Bill of Rights, or an ominous reference to the past decade’s steadily growing power of the executive branch and supine legislative and judicial branches.

They miss the point; the vagueness is the point.  What a President O nobly forswears (or claims to),  a President R or G will gladly seize, and both will point to the NDAA’s language in support.  Instead of law — bright lines protecting our liberties — we get lawfare: blurry lines keeping all of President X’s options open… and abrogating habeas corpus by misdirection.

To me, that’s the opposite of what “the law” should do — or what a government charged with upholding the Constitution should do. But — unlike Mr. Wittes’ views, I’m afraid — my views don’t matter much.  The usual way this kind of ‘lawfare’ manifests is in secrecy about the very nature of laws or their enforcement, but it occasionally becomes plainer (in a manner of speaking, like a visible smokescreen instead of simple cover of darkness) when statutes like NDAA’s detention provisions are debated and passed.

Wittes to the contrary, the things that are actually depressing about civil liberties debates are that he’s depressed about them – and that he’s winning them all the same.  And that he and his allies are winning them with the kind of ‘angels dancing on the head of a pin’ arguments designed to charm yet another arrogant man, working in an oval office across town. Perhaps his ‘praise’ was a misstep in that respect; one can only hope, though it’s too late to do any good with the NDAA.

* For my part, I’ve protested  against the NDAA a couple of times at an Obama campaign office in Maryland, and have appended a “further reading” list to the end of one account.

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Do-it-yourself torture accountability

Posted by Thomas Nephew on 19th March 2010

On Tuesday evening I listened to a panel sponsored by the Bill of Rights Defense Committee (BORDC) titled “Understanding U.S. Torture and Executive Accountability,” and hosted by the Institute for Policy Studies.

The panelists

Shahid Buttar, BORDC; Jesselyn Radack, former
Department of Justice ethics attorney; Matthew
Alexander, former U.S Army interrogator.
Originally uploaded by Thomas Nephew

I knew the panelists — Shahid Buttar, Matthew Alexander, and Jesselyn Radack — would be interesting, having read about them or read their own writing as I’ve followed these issues.  But what also interested me was one short sentence at the end of the e-mail:“The speakers will present concrete action opportunities to promote torture accountability, with a discussion to follow.”

Here is what they said.

“File bar complaints” – Jesselyn Radack
Jesselyn Radack, a former Department of Justice ethics attorney, blew the whistle on Department of Justice efforts to conceal her objections and counsel concerning the improper use of evidence gained in interrogations of “American Taliban” John Walker Lindh — and has paid for it with a long legal battle and placement on the no-fly list.*

Scott Horton’s recent Harper’s Magazine interview with her,  Justice’s Vendetta Against a Whistleblower: Six Questions for Jesselyn Radack, is a useful starting point for catching up with the story. As Radack points out there, her experience couldn’t be a starker contrast with that of Yoo and Bybee’s clean getaway from accountability for real wrongdoing:“I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism case–and my advice was to permit an American terrorism suspect to have counsel.”

Noting that “you don’t have to be a lawyer to file a bar complaint,” Ms. Radack hoped that would happen to John Yoo, Jay Bybee, and other lawyers implicated in authorizing torture. She clarified a question I had by saying you don’t have to live in the state where, say, John Yoo is admitted to the bar (Pennsylvania, as it happens), to lodge a complaint with that state bar association.

“Practice tolerance” – Matthew Alexander
Matthew Alexander, a former Army interrogator, has written a number of articles and editorials over the past few years rebutting claims that torture is necessary or effective.  One of the latest ones I’m aware of is a devastating review in Slate of former Bush staffer and current torture apologist Marc Thiessen’s ironically titled book “Courting Disaster.”  One of the first was a 2008 op-ed for the Washington Post, “I’m Still Tortured by What I Saw in Iraq.”**
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Department of followups

Posted by Thomas Nephew on 12th July 2009

An occasional review of further developments in stuff I’ve written about before.

Practice to deceive, 04/22/08 — This was a post about how several key figures like John Yoo, Douglas Feith, David Addington, and William Haynes II used outright deceit to advance the torture policies they favored. I argued that

“In each case, the deception was needed in order to grease the skids for an immoral and criminal policy, by either sidestepping persons or offices with inconvenient integrity, or by pretending to agree with them even as the diametrically opposite decision was taken. In each case above the deception itself answers the question, “was the torture policy advocate acting in good faith?”

That, in turn, arguably speaks to a so-called “consciousness of guilt“, which can be proven by showing such deceptions and which is admissible circumstantial evidence in criminal trials.

Eric Holder: Yes We Can

The question may well be on Attorney General Eric Holder’s mind.  A number of reports over the weekend have suggested that Holder is seriously considering a special prosecutor, at least of those actors who overstepped even the loose legal limits imposed by the flawed Yoo/Bybee and Bradbury OLC memoranda.  The memo writers themselves shouldn’t rest easy quite yet, either.  At the “Daily Beast,” human rights legal expert Scott Horton writes,

As he read through the latter two documents, my sources said, Holder came to realize the focal and instrumental role that Department of Justice lawyers had played in constructing the torture regime and in pushing it through when career lawyers raised objection. He also took note of how the entire process was orchestrated from within the Bush White House—so that more-senior lawyers in Justice, sometimes even the attorney general, did not know what was being done. And he noted the fact that the United Nations Convention Against Torture, to which the United States is a party, requires that a criminal inquiry be undertaken whenever credible allegations of torture are presented.

(See also Marcy Wheeler’s comments here.)

It’s by no means clear (to put it mildly) that Holder will call for a special prosecutor; while he values the independence of the Justice Department, it can’t hurt to remind him you have his back if he bucks the likes of the West Wing Weasels (TM, but please use widely) David Axelrod and Rahm Emanuel on this.  Please avail yourselves of the opportunity to do so using the ACLU button to the right or the Holder “Yes We Can” button on the left.  You can also visit the “AfterDowningStreet” site linked by the orange “Torture is a war crime! Prosecute” button at the upper right; David Swanson is currently asking people to call or write the Justice Department at 202-514-2001 or

Weymouth: What did I know and when did I know it?, 07/09/09 — Washington Post ombudsman Andrew Alexander had a lengthy post-mortem of the “pay to play” Post ‘salon’ proposal in the Sunday, July 12 edition. Calling it an “ethical lapse of monumental proportions,”, Alexander found that early scapegoat and Post business exec Charles Pelton had in fact tried to sound out “questions about ethics […] with both [CEO K. Weymouth and executive editor Marcus Brauchli] months ago.” For their part, the two seem to have believed that their underlings’ silence at a June 24 meeting signalled consent, when of course it merely signaled wanting to stay employed:

Several [newsroom employees] now say they didn’t speak up because they assumed top managers would eventually ensure that traditional ethics boundaries would not be breached. […] Neither Weymouth nor Brauchli can recall anyone raising concerns, although both say they wish someone had. […] In an interview, Brauchli said it was his responsibility to vet the concept and that it is “understandable” that no news managers at the meeting raised a caution. “When the publisher and the editor both appear to have signed off on an idea, I think it is perhaps true that a certain complacency sets in,” he said. For that reason, lower-level managers might be less inclined “to stand up and say: ‘Whoa, this is a bad idea.’ ”

Ya think? Alexander draws on interviews with Weymouth and Brauchli for the piece. Meanwhile, in “Veteran editors offer advice to the Post,” Northwestern media ethics professor Loren Ghiglione displays a keen eye for the main chance: “The board has audit, compensation and finance committees. Why not one focused on the company’s values and ethics, headed by an ethics prof?” Oh hell, why not.

On the irrelevance of “Balkinization in particular and the legal profession in general, 05/25/09 — In an irritated post I decried the growing irrelevance of the legal blog ‘Balkinization’ to ongoing, urgent issues such as torture, the abrogation of habeas corpus at Guantanamo and elsewhere, and other abuses of executive power — all matters that the blog had once been at the forefront of covering.

Of late, though, there have been a number of posts on precisely these subjects, including ones by Jack Balkin, (“The Inspector General’s Report and The Horse that is Already Out of the Barn Door“, “We believe that anyone suspected of war crimes should be thoroughly investigated“)  Sandy Levinson (“A further disappointment from the Obama Administration“, and newcomer Deborah Pearlstein (“Post-Acquittal Detention“).

While I don’t agree with all of what they have to say, I agree with a lot of it.  Regardless, it’s all worth reading — and it’s rarely wise to generalize too much along the lines of “the dog that didn’t bark” with blogs or the busy people who are taking time out to write them.  I shall meditate on my impatience.

NOTES: links to my posts are highlighted in gray and dated. Washington Post item via Yglesias.

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The 0.2 percent snag and the OLC

Posted by Thomas Nephew on 10th December 2008

The Legal Times’s Joe Palazzolo reports that Obama’s Department of Justice transition team has run into a little not unexpected difficulty:

A senior Justice Department official said today that “99.8 percent” of the department’s work with President-elect Barack Obama’s transition team has gone smoothly. The 0.2 percent snag: The department has reservations about granting the team’s request to review classified legal opinions related to secret CIA and National Security Agency programs.  […]

The opinions, some of which have been released to Congress in redacted form, contain the legal rationale of the NSA’s warrantless spying program and the CIA’s detention and interrogation policies, among other intelligence initiatives.

A reasonable guess about some of the documents involved can be gleaned from an October 2007 list of documents OLC chief Steven Bradbury refused to release in in response to an ACLU/EPIC lawsuit , summarized by ’emptywheel’ in “Warrantless Wiretap Memos Timeline.”*  Palazzolo continues:

In an unprecedented move, the Justice Department began providing provisional security clearances to Obama’s staff prior to the election. A select group was cleared for access to even more sensitive information, but [Attorney General] Mukasey said last week that some documents may not be made available to Obama’s staff until they take their oath of office.  […]

The Justice official said the dispute over access to the NSA and CIA opinions has made its way up to Williams & Connolly’s Gregory Craig, who earlier this month was named to be Obama’s White House counsel. Craig was expected to meet with current White House counsel Fred Fielding to discuss the issue, the official said. It’s unclear whether such a meeting has already taken place.

Given the past eight years, it’s hard not to be suspicious that the “99.8%” cooperation is the easy stuff, for public relations.  Meanwhile, that “0.2% snag” — stuff Obama’s transition team will have to wait until January 21st for — might also be relabeled “stuff Bush will pardon people for on January 20th.”  Still, it’s interesting and heartening to learn just who is on that transition team:

Obama’s Justice Department transition team is led by Wilmer Cutler Pickering Hale and Dorr’s David Ogden. Also on the team are OLC veterans Dawn Johnsen, a professor at Indiana University School of Law; Martin Lederman, a professor at Georgetown University Law Center; and Christopher Schroeder, a professor at Duke University School of Law.

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Off to Maine for a week

Posted by Thomas Nephew on 2nd August 2008

Blogging will be sparse at best. Meanwhile some items worth paying attention to:

Vital unresolved anthrax questions and ABC News (Glenn Greenwald) — Greenwald makes a pretty good case that the government’s case against Bruce Ivins (the Fort Detrick germ lab scientist who committed suicide), the m.o. of the anthrax terrorist, and ABC News’s false insistence at the time that lab results pointed to Iraq all add up to a case that urgently requires Congressional investigation. Whoever gave ABC the false “bentonite additive” story has a lot to answer for — very arguably the Iraq war.

Wal-Mart mobilizing against EFCA, pressuring “associates” on how to vote — That’s illegal, and that’s arguably what they’re doing by raising Obama’s support for the Employee Free Choice Act in in-store meetings. The charge is based on a Wall Street Journal article “Wal-Mart Warns of Democratic Win“:

The Wal-Mart human-resources managers who run the meetings don’t specifically tell attendees how to vote in November’s election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states.

The main link leads to “Americans Rights At Work,” where you can add your name to a petition urging the FEC to investigate Wal-Mart for potential election law violations.

Last and definitely not least, the ACLU is sounding the alarm about a jaw-dropping legislative initiative by Bush and Attorney General Mukasey:

After years of litigation, the Supreme Court recently ruled in Boumediene v. Bush that detainees held at Guantánamo have a right to challenge their detention through habeas corpus — the ancient freedom that protects people from being thrown in prison illegally, with no help, no end in sight and no due process. Habeas proceedings could allow detainees to bring up the fact that the evidence that the government has against them came from hearsay, or even torture and abuse. Courts could also release people who are detained indefinitely without charge. Attorney General Michael Mukasey wants to make sure neither of these things happen. That’s why he’s calling on Congress to authorize indefinite detention through a new declaration of armed conflict. He is also proposing that Congress subvert the right of habeas corpus with a new scheme to hide the Bush administration’s past wrongdoing — an action that would undermine the constitutional guarantee of due process and conceal systemic torture and abuse of detainees.

More here. Join the ACLU petition to your Representative and Senators here urging them to oppose this misbegotten idea. Thanks to Mick Arran and the Talking Dog for sounding the alarm as well. As Mick says: “Please let’s not give them this one.”

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Worth reading — Super Tuesday edition

Posted by Thomas Nephew on 5th February 2008

  • Democratic Debate in Los Angeles — I don’t get cable, so this will have to do. By all accounts it was a civil debate, and judging by the transcript it was actually a fairly substantive one as well. However, Juan Cole (“Informed Comment”) caught Hillary in a mistake about “Operation Desert Fox” — Saddam had not kicked out the inspectors to cause the three-day bombing campaign in 1998. (Rather, as I recall, he had failed to grant them full access to sites they were to inspect.) I agree with Cole that Obama got the better of this part of the debate.
  • Clinton, Obama, Insurance (Paul Krugman, New York Times) — Krugman continues to be skeptical of Obama:

    …new estimates say that a plan resembling Mrs. Clinton’s would cover almost twice as many of those now uninsured as a plan resembling Mr. Obama’s — at only slightly higher cost. […]

    If Mr. Obama gets to the White House and tries to achieve universal coverage, he’ll find that it can’t be done without mandates — but if he tries to institute mandates, the enemies of reform will use his own words against him.

    If you combine the economic analysis with these political realities, here’s what I think it says: If Mrs. Clinton gets the Democratic nomination, there is some chance — nobody knows how big — that we’ll get universal health care in the next administration. If Mr. Obama gets the nomination, it just won’t happen.

  • The Boom was a Bust for Ordinary People (Barbara Ehrenreich in the Washington Post) —

    It begins to sound a bit naughty — all this talk about the need to “stimulate” the economy, as if we were discussing how to make a porn film. I don’t mean to trivialize our economic difficulties or the need for effective government intervention, but we have to face a disconcerting fact: For years now, that strange stimulus-crazed beast, the economy, has been going its own way, increasingly disconnected from the toils and troubles of ordinary Americans.

  • The Lessons of ’94 (Ezra Klein, The American Prospect) — Klein contends that what went wrong with the Clinton healthcare plan was that they took too long to create it (a recession was all but over by the time it was unveiled) and perhaps more importantly tried to create an exquisitely crafted, take it or leave it package, which a Congress full of egos as jumbo-sized as Bill’s was quite happy to leave. The questions are, I suppose, is that really what happened, and does Hillary agree that’s really what happened?
  • The Problem with Bill 2.0 (Josh Marshall, “Talking Points Memo”) — “…it’s precisely because I’m looking forward to supporting her if she is the nominee that I hate seeing her being overshadowed by her spouse and having her husband bigfoot the process which diminishes her and makes me think her presidency could be a 4 year soap opera where Bill won’t shut up and let her have a shot at doing the job.”
  • The Commander in Chief at the Lowest Ebb (David Barron, Marty Lederman, Harvard Law Review, .PDF, about 1000 pages, OK, 116 pages) — This is liable to be important both in the near term, as Bush asserts yet more powers to do whatever he likes, and in the longer term, as a new administration hopefully charts a new, more lawful and less dictatorial path for the executive branch. Lederman is a former Office of Legal Counsel lawyer who contributes to the blog “Balkinization” — and who I suspect might not mind joining a new Democratic administration.I haven’t read it all, but I’ve started it and that should count for something. The title is taken from Justice Jackson’s 1952 Youngstown Sheet and Tube ruling, in which he held that executive branch discretion was at its lowest ebb when there were directly countervailing congressional statutes; thus, Truman couldn’t nationalize steel mills for the Korean war effort. Barron and Lederman are concerned with whether there is now some kind of new justification for Bush claiming he could ignore congressional limitations on troop rotations and other defense-related expenditures in time of war. Their short answer appears to be “no.” Their longer answer seems to be that “Commander in Chief” may ought to mean a good deal less than people these days think it means, something like “he who may delegate command decisions, but retains responsibility for them” rather than “he who may do anything he likes if he’s president and there’s a war on.” However, readers should consult actual constitutional lawyers before acting on this summary.
  • A Health Law with Holes (Robert Kuttner, American Prospect) *— Hmm. Using the Massachusetts “Commonwealth Connector” health insurance system as an example, Kuttner argues that Obama is right to oppose coercive mandates:

    …the reform helps a great many uninsured but compounds a crisis that Dr. Marcia Angell, former executive editor of the New England Journal of Medicine, calls “coverage without care.” As employers and insurers contain their costs by shifting them to individuals, more people find that their insurance fails to pay many expenses when they are sick. […] This idea of an individual mandate absent comprehensive reform – how to say this politely? – is nuts. It makes a social failure the problem of the individual. As Angell points out, “It gives the idea of government-sponsored universal coverage a bad name.”

Selected link dumps: clinton_hillary, obama, democratic_party, mccain, gop,impeachment, iraq, healthcare

* UPDATE, 2/5: The Massachusetts law was mentioned by many Maryland District 20 candidates in 2006 in discussing how or whether to fix “Fair Share Health Care,” a plan mandating large corporate (read Wal-Mart, in immediate effect) healthcare expenditures equal to 8% of payroll. In comments, eRobin pointed to “Eye on MA,” a column by Ezra Klein that essentially echoed Kuttner’s reservations (“not my ideal. It’s an individual mandate, which is better than an employer mandate, but worse than instituting government-sponsored health care”).

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DOJ to Senate: oversight helps the terrorists

Posted by Thomas Nephew on 5th January 2007

Senator Patrick Leahy, the incoming chairman of the Judiciary Committee, has been trying for years to get information from the Bush administration about how it sees itself complying with federal laws and treaty obligations concerning the human rights of its detainees. Among Leahy’s specific requests (emphases added):

  1. Please produce any and all directives, memoranda, and/or orders, including any and all attachments to such documents, regarding CIA interrogation methods or policies for the treatment of detainees, including but not limited to the directive signed by President Bush governing CIA interrogation methods, or allowing the CIA to set up detention centers located outside of the United States.
  2. Please produce any and all Department of Justice directives, memoranda, and/or guidance, including any and all attachments to such documents, regarding CIA detention and/or interrogation methods, including but not limited to the August 2002 Memorandum from the Department of Justice’s Office of Legal Counsel to the CIA General Counsel regarding CIA interrogation methods (the “2nd Bybee memo”).

In a reply dated December 22, 2006, the Department of Justice denied those and similar requests (emphases added):

Your letter seeks documents and information concerning the extremely sensitive operational details about the CIA program, including the specific interrogation techniques employed in the CIA program. The Department of Justice is not in a position to disclose such documents and information. […]

In his address to the Nation, the President acknowledged the existence of the CIA program, but there are many details about the program that he did not, and could not, share publicly. One example is the specifice interrogation techniques that were authorized for use on these high-value terrorists. As the President explained, to disclose that sensitive operational information would be to “help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. … Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them. We must avoid assisting their effort. […]

In addition, your letter seeks legal advice of the Department’s Office of Legal Counsel (“OLC”) concerning the CIA program. As the President explained to the Nation on September 6th, the Department of Justice “has reviewed the authorized methods [of the CIA interrogation program] extensively and determined them to be lawful. […] OLC opinions, as a general matter, consist of confidential legal advice, analysis, conclusions, and recommendations for the consideration of senior Administration decisionmakers. If such OLC opinions were subject to disclosure, the candor of that legal advice would inevitably suffer and separately, Executive Branch officials would be less likely to seek it. It is crucial to informed Executive Branch decisionmaking, and promoting compliance with all applicable legal requirements, that the confidentiality of this advice be preserved.

Via Marty Lederman (“Balkinization”) who writes (emphasis in original):

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch’s views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

Lederman has worked for the OLC, and acknowledges there’s a debate with people he respects there about the potential “chilling effects of sunshine,” to coin a phrase, on OLC legal advice. Here, I disagree with him: it’s a fallacy to even begin that debate. The point of the Constitution and of the U.S. government is not to provide a hermetically sealed legal affairs office environment for the executive branch to ponder its business. It is to give confidence to the people of the United States that their will is being done, and that they and their rights are being protected.

That can’t happen if arguments like the above by the Justice Department win out. A United States Senator has made a legitimate inquiry into the highly questionable activities and legal advice within the executive branch. It will not do to say he’s on the wrong committee, it will not do to say that future advice will be less candid.* And it will not do at all to say “the President has explained” that informing a United States Senator of executive branch actions can not be allowed because it will help the enemy, or that the CIA methods were “determined… to be lawful” — by people he can hire and fire at will.

I think that far from helping terrorists, oversight like Leahy wants to conduct could help this country regain its bearings. Viewed properly, the rule of law, respect for human rights, and a system of checks and balances are assets, not liabilities, in fighting terrorism; they gain us allies instead of enemies. It’s time to give our own core values a chance again.

*Taking the question of candid advice by itself, for a moment, it seems to me the question used to taunt civil liberties advocates is finally a fair one: if what the Bush administration is doing is legal, what do they have to worry about? We’re not talking about the rights of an individual here, but about the obligation of one branch of government to accept oversight by another.

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Joseph Onek on the NSA scandal and executive power

Posted by Thomas Nephew on 20th January 2006

I went to a Drinking Liberally (“promoting democracy one pint at a time”) gathering near Dupont Circle on Wednesday evening to listen to Joseph Onek, senior counsel to the Constitution Project. His topic was the issue of metastasizing executive branch power — illegal warrantless NSA wiretaps, “fingers crossed” presidential signing statements and the rest of it.

Onek — a former law clerk to Justice William Brennan, Senate staffer, and legal counsel to the Carter and Clinton administrations — was impressive, delivering a half hour or so ad lib summary of the legal issues involved, primarily focusing on the NSA revelations. I learned that the Supreme Court once held (1928) that wiretaps didn’t require a warrant under the 4th Amendment — it wasn’t a physical search. Only in 1967 did they decide (in Katz)* that the 4th Amendment protects people, not places, and shortly thereafter they held (Keith) that national security did not necessarily trump 4th amendment protections for American citizens.

Following Watergate, revelations of domestic spying led to the Church hearings, which culminated in the Foreign Intelligence Surveillance Act, or FISA. As is well known at this point, FISA set up a special court that could secretly issue warrants for wiretaps and electronic surveillance.

One thing I hadn’t understood is that some provisions of FISA closed privacy loopholes, so to speak, in the 4th amendment itself. If I followed Onek, the Supreme Court has ruled that “pen register” surveillance without a warrant — who is calling whom at what time, without actually listening in — is constitutional under the 4th amendment. FISA does require a warrant, but the government must only show that “reasonable suspicion” exists, a less demanding legal standard than the 4th amendment’s “probable cause” requirement.

Onek acknowledged that without knowing what the NSA program does in detail, opponents are at a disadvantage. While it may be “just” massive “traffic analysis” — who in region A called who in region B more often than expected, which call seemed to trigger other calls — that was probably not all that was going on, given that (a) you can get warrants for that kind of thing, too, under FISA, and (b) that Gonzales mentioned at his press conference that he was told legislative approval would not be forthcoming for this NSA program.

The Youngstown Sheet and Tube v. Sawyer case came up, too, of course; in this case, the Supreme Court held that Harry Truman couldn’t seize some steel mills facing a strike — despite needing steel for the Korean War — because there were specific laws about how to settle strikes that Truman’s action ignored. The most often cited formulation was that of Justice Robert H. Jackson. Wikipedia:

Jackson’s opinion took a similarly flexible approach to the issue, eschewing any fixed boundaries between Congress’ and the President’s power. Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying local governmental or congressional orders. He classified this case as falling within the third category.

Bush and the NSA’s actions would also seem to fall in the third category. Onek allows, as do most sensible folk, that there are conceivably Congressional resolutions and statutes that could and should be ignored by the president. In his thought example, a Congressional resolution demanding that the main invasion of Europe in World War II proceed via Sicily rather than Normandy could have been safely ignored by the president, because such a resolution would be too specific and direct an interference with the president’s military role as commander in chief. The FISA law, by contrast, is an instance of Congress weighing national security, 4th amendment, and privacy policy concerns and crafting a definitive balance.

As I understood him, Onek leans to the view that the Bush administration was really trying to simultaneously eavesdrop everyone within 6 degrees of pen-register separation, so to speak, of the original phone number or numbers famously found in records in Afghanistan. The mere fact of a phone contact with a phone contact with a phone contact etc. would or at least should not constitute “probable cause” allowing eavesdropping or even “reasonable suspicion” — hence, Onek believes, the Bush administration’s failure to seek judicial or legislative approval.

Before ending his remarks, Mr. Onek suggested what he’d like to see happen in Congress. Rather than just let Arlen Specter’s Judiciary Committee conduct a simple hearing that would turn into a Bush administration platform, he advocated demanding multiple hearings and a staff investigation of the NSA revelations. I agree; if you do, too, write your senators and representative about it.

Thanks to Mr. Onek for delivering his remarks, and to “Drinking Liberally” for arranging the talk.

* Any misinterpretations of the meanings of these cases are my own, based on my hurried notes. I invite corrections from knowledgeable sources, and comments from everyone.

UPDATE, 1/23: Mr. Onek also wrote about this issue just before Christmas at the American Constitution Society’s ACSBlog.

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The democratic case against Republican rule

Posted by Thomas Nephew on 26th July 2004

Jonathan Chait has written an important article documenting another one of the most important reasons — perhaps the most important one — for opposing Bush this November. In Power from the People, Chait writes:

Bush and his allies have been described as partisan or bare-knuckled, but the problem is more fundamental than that. They have routinely violated norms of political conduct, smothered information necessary for informed public debate, and illegitimately exploited government power to perpetuate their rule. These habits are not just mean and nasty. They’re undemocratic. […]

The proper indictment of the Bush administration is … not that he’s abandoning American democracy, but that he’s weakening it.

Chait assembles a list of examples (a number of which have been mentioned on this site): the case of suppressing the true cost of the Medicare bill; using public money to trumpet Bush’s role in tax cuts or the Medicare bill; how Congressional debate is squelched* under DeLay and rendered moot by House-Senate conference committee end-runs; the Texas redistricting saga and the attendant abuses of power via DeLay pressure on the FAA and AMICC. He might have mentioned others like the RAGA fundraising scam or the Westar payments for a “seat at the table” for the Bush energy bill.

Chait is willing to put some of the blame on the very constitutional structure of the nation: the disproportionate impact of small states on the electoral process, the winner-take-all structure of American elections.  While I happen to consider the electoral college a justifiable concept per se**, Chait is persuasive that right now it’s part of a kind of ‘perfect storm’ against American democracy, arguing that given the pro small state (i.e. Western state) bias, the Presidency and the Senate are inherently anti-majoritarian — and that the House is paradoxically more so by dint of ever more sophisticated, computer-assisted gerrymandering of state congressional districts.  Individually, any one of these vulnerabilities might be acceptable.  But together, in the hands of a disciplined, radical faction, the upshot is ominous:

At the beginning of 2001, the conventional wisdom held that Republicans would court a backlash if they exceeded their limited mandate. The common metaphor is a pendulum that, if tilted off center, inevitably swings back. The more apt (and less comforting) metaphor, however, may be a feedback loop. Facing a lack of public support, Bush and his allies circumscribe normal democratic procedures to enact their agenda. The Republican Congress, in turn, spares Bush from paying a price for his anti-democratic endeavors, and this protection only encourages further abuses by the White House.

The results over the last few years have been plain:

Bush is the first president since James Garfield not to veto a single bill. Whereas the Democratic Congress held hearings about Whitewater, it’s simply impossible to imagine today’s GOP Congress investigating Bush’s past business dealings. Even Republicans confess that their party has essentially abandoned its duty to oversee the executive branch. “Our party controls the levers of government,” GOP Representative Ray LaHood told Congressional Quarterly. “We’re not about to go out and look beneath a bunch of rocks to try to cause heartburn.”

(There’s a statement that’s nearly as shameless in its own way as a grinning thumbs-up in front of naked prisoners.)  Chait continues:

And so, where the Republicans have broken rules–say, using the Treasury department to disseminate political advertising, or employing conference committees to write laws from scratch–the enforcement mechanisms are essentially controlled by the perpetrators themselves. If Republicans stand together, there will be no investigations. (Or, at least, no serious investigations.) If there are no investigations, there is no process for the media to cover. If there’s no media coverage, there’s no public outrage to constrain the GOP. After the GAO ruled that the administration broke the law with its Medicare videos, Democrats in Congress demanded that the money spent on the ads be refunded. But Republicans simply ignored them, and the story disappeared.

In a civics class discussion, one might look to the news media on the one hand and an alert citizenry on the other as a last line of defense against undemocratic developments like these.  But as Bob Somerby documents over and over again on his web site, The Daily Howler, the American news media essentially aspire to become part of the political and economic class they purport to “cover.” Instead of doing their jobs as their supposed clients — their readers, viewers, or listeners — understand it, by reporting the news with energy and without favor, celebrity journalists all too often register their fealty to their betters and eachother with pat, consensus story lines about the issues of the hour.

Meanwhile, the American people are now in some part more concerned with outside threats to their safety than with internal threats to their political system and liberties.  The definitive abuse of this concern was in the ever shifting set of reasons advanced for attacking Iraq — some of which, for the record, I agreed with, and some of which I did not. As Chait put it,

During the run-up to the war, a large majority of Americans implicated Iraq in the September 11 attacks. Even if you supported the Iraq war (as I did), this fact must be considered a serious problem for American democracy. Bush did not obtain, or even seek, the rational, informed consent of the public.

The emphasis on security — any security, lots of it, as quick as possible — can lead to a “he’s a son of a bitch, but he’s our son of a bitch” principle, applied to domestic politics instead of foreign affairs, or it can help lead supporters to develop a nearly cultlike devotion to their supposed protectors (despite derelictions of duty from Tora Bora to looted uranium in Iraq to Abu Ghraib).

Such developments may be understandable, if not admirable, in the wake of 9/11 and the consensus that more attacks like it are inevitable.  But in the long run, if the country is to function, its citizens need a ship of state with a rudder that isn’t stuck on a starboard course.


* See particularly the Michael Crowley article “Oppressed Minority” in the linked post.
**Without the electoral college, presidential campaigns could completely ignore “flyover” America in favor of the coastal megalopolises. With it, they’re forced (or tempted, depending how you look at it) to fight for combinations of relatively cheap, small state wins. However, I think the electoral college is badly designed — I think states should get electoral votes in direct proportion to their populations, rather than the “representatives plus Senators” formula agreed to in an exhausted compromise over two hundred years ago.

EDIT, 7/26: Last sentence changed from “But in the long run, if the country is to function, they also rely on a self-correcting ship of state — one that may now have its rudder stuck on a starboard course.”

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