What to do, what to do... about Guantanamo?

By Carol Gee

Closing the Guantanamo Bay detention facility will be one of the most difficult challenges of the Obama administration. His own staff has been divided on how to do it. FBI Director Robert Mueller worries about detainees in U.S. prisons. Michele Flournoy, number three at the Pentagon, maintains that the U.S. must set the right example before our allies will accept detainees for repatriation. Rendition has been another matter, entirely, in the past when the Bush administration implemented the practice of rendering U.S. prisoners overseas to other countries where they were interrogated under torture.

How other law abiding countries handle suspected violent extremists offers a contrasting picture of how it is managed by the United States. The legal fallout over this has sent cases to court (in particular the Jeppesen/ACLU case). The Obama DOJ has asked a federal appeals court to block the case, claiming "state secrets" necessitate throwing out the case, taking up the claim of the previous administration. On June 22, federal judge Richard Leon ordered Abd al Rahim Abdul Rassak, a Syrian held by the U.S. for years, released because he was a victim of torture by al-Qaida. He "emphatically rejected the government's claims against Rassak. . . adding that U.S. officials are taking a position that defies common sense."

How will the U.S. continue to handle violent extremists? Earlier this month Glenn Greenwald analyzed the current practices of many countries, contrasting them with the administration's probable call for indefinite detention by the U.S. He concluded that, "numerous other countries are, with their actions, adhering to the values and principles which we, with words, righteously claim to embody." Now the White House has drafted an executive order reasserting presidential authority to incarcerate suspects indefinitely, bypassing Congress, according to The Washington Post's Peter Finn and ProPublica's Dafna Linzer. To quote the lead:

Such an order would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that bypassing Congress could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the U.S. military prison at Guantanamo Bay, Cuba, White House officials are growing increasingly worried that reaching quick agreement with Congress on a new detention system may prove impossible. Several officials said there is concern in the White House that the administration may not be able to close the facility by the president's January 2010 deadline.

Is Bush precedent Obama precedent? Zachary Roth at TPM Muckraker had this chilling conclusion to the news of the draft memo: "If the last eight years have taught us anything, it's that executive abuses, left to continue unchecked for many years, have a tendency to congeal into precedent." It need not be that way. The Constitution has been a powerful bulwark with plenty of capacity to sustain the rule of law, particularly with a president whose specialty has been Constitutional law.

(Cross-posted at South by Southwest.)

Connecticut Supreme Court legalizes same-sex marriage

By Michael J.W. Stickings

I used to think Connecticut was just the rectangular thing I had to drive through to get from New Jersey (where I used to live) to Boston (where I went to college), or vice versa. Sure, it has a lovely coastline, especially around Mystic (which did have some excellent pizza), and the Merritt Parkway is especially nice, but, beyond that, what? Hartford? Please. Maybe when they had the Whalers.

Well, allow me to heap some praise on the drive-through today.

The state Supreme Court has ruled 4-3 in support of same-sex marriage. Here's the Hartford Courant:

Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state's "understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection."

"Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice," the majority wrote. "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."

Needless to say, opponents are already frothing. And their goal, of course, is to amend the state constitution to outlaw same-sex marriage altogether.

For now, though, The Constitution State, or at least its highest court, or at least a narrow majority of that court, has proven to be a bastion of liberal constitutionalism and individual liberty.

I haven't been back to Connecticut in many years. But my respect for it has increased immensely.

Orange dissolution -- again

By MSS

(It has been a while since I exercised the posting privileges Michael kindly gave me. The following is cross-posted at Fruits & Votes, where I have followed Ukraine off and on since establishing the blog in 2005.)

For the second time since the Orange Revolution of late 2004, a coalition cabinet consisting of the parties of President Viktor Yushchenko and Yulia Tymoshenko, who led these coalitions as Prime Minister, has been formally dissolved.

While US media coverage has focused on divisions with respect to the recent Russia-Georgia conflict as underlying the split, the real cause is deeper still: the parties remain suspicious of one another and those suspicions, there all along, would only get worse as the 2010 presidential elections approach.

The one manner in which the Russia-Georgia conflict probably has realigned internal Ukrainian politics is that it is now harder to imagine the sort of coalition that initially followed the 2006 parliamentary elections: one between defeated 2004 presidential candidate Viktor Yanukovych's Party of Regions and Yushchenko's Our Ukraine.

Given that a government coalition must be proposed by a majority in parliament--there is no provision for the President to appoint a government or for the largest party to form a minority government tolerated if not actively supported by other parties--what options are left? A Tymoshenko-Yanukovych coalition? It is the only formula not yet tried.

Such a coalition does not seem to me as odd as it might at first appear. Tymoshenko has positioned herself--and often been perceived in the West--as the more radical firebrand relative to the more technocratic Yushchenko (who, as a former Central Bank president, is hardly the sort of politician one would ever have imagined having his name chanted by thousands of protesters!). Nonetheless, her electoral coalition spans east and west Ukraine to a greater degree than either of the other two, and the Russia-Georgia conflict revealed her to be somewhat more accommodating towards the government of the Russian Federation than Yushchenko would like to be.

A coalition between Tymoshenko and Yanukovych would be an odd one institutionally, however, in that it would exclude the party of a presidency that remains quite powerful, the legislative initiative in government-formation notwithstanding. One of the greatest powers of the presidency, however, would be neutralized by the Yulia-Regions coalition: a veto that required a two-thirds vote to override. The parties of Tymoshenko and Yanukovych together have over 70% of the seats.

And then, there is always the possibility of constitutional changes that would make the presidency weaker, and the first-linked news item notes that such a possibility actually was one of the triggers of the coalition collapse:

Our Ukraine quit after denouncing a vote to cut presidential powers in which Tymoshenko joined Yanukovich and his party.

Provisions of the constitution make calling an early parliamentary election difficult (though the president managed to find a way a year ago). Besides, new elections would be unlikely to do anything but reconfirm the tripartite division among these three major parties.

In other words, somehow the three titans of post-Orange Revolution Ukraine are going to have to muddle through. Or at least that is how it looks from here. While I follow Ukraine in the sense that I have visited and care a lot about the country, and use it as a case in some of my research and teaching, I do not claim to be an expert. Maybe someone who follows the country more closely can offer some other scenarios, but muddling through is about all I see. (Unless, of course, the Yulia-Regions coalition moves up the presidential election. Is that possible? Just a thought.)

Congress is back and what are they doing?

By Carol Gee

Elections, ethics and hearings are the stuff of the day as Congress tackles a short session before leaving again for the fall elections. Politico takes an in-depth look at 10 [races] . . . worth watching closely in "2008's hot House, Senate races," by Tim Grieve, 9/9/08. To quote: "Eight weeks from Tuesday, voters will elect 435 House members and 35 senators." Democrats have a real chance to increase the size of their majorities. But all those races will inevitably be influenced by the news of the day, both domestic and foreign.

In the past politics "stopped at the water's edge," when it came to foreign relations, but no more. The foreign relations problem of Russia vs. Georgia is something with Congress wrestles. The presidential candidates, however, are not terribly far apart on their positions, according to Politico.com:

The fallout from Russia’s conflict with Georgia is producing an unusual split in American politics — not between the parties so much as between the presidential candidates and their colleagues in Congress.

Congressional Committee Chairmen are staying busy. The Senate Judiciary Committee, chaired by Vermont Democratic Senator Pat Leahy, will be meeting to hear what the FBI Director has to say about his new surveillance guidelines. And Representative Charlie Rangel (D-NY) will continue his attempt to get off the hotseat. This all according to Matt Berman, who writes "The Daily Muck" (9/15/08) at TPM Muckraker. To quote:

The Justice Department proposed new FBI guidelines on Friday that would apply to national security and foreign intelligence threats. The guidelines, which would expand physical surveillance, have come under heavy criticism by the ACLU and some Democrats for possibly allowing for racial, ethnic, and religious targeting. FBI Director Robert Muller is set to testify to the Senate Judiciary Committee about the guidelines on Wednesday. (AP)

. . . Chairman of the House Ways and Means Committee Charlie Rangel (D-NY) has decided to hire a forensic accounting expert to assist him in his growing problems stemming from unreported income and unpaid taxes on his Dominican Republic beach house. The accountant, who is yet to be hired, will go through Rangel's finances and later deliver a report to the House ethics committee. (AP)

Legislation and more Bush administration scandal is looming -- There will not be enough time to pass much legislation, except perhaps something dealing with energy. A good story about this is in ProPublica, 9/11/08, by Paul Keil and is headlined, "Will Scandal Shake Up Offshore Drilling Bill?" To quote:

A series of inspector general reports alleging cocaine use and government regulators literally jumping into bed with Big Oil would make a splash regardless of when it came. But whether it was PR panache on the inspector general's part or a happy coincidence, yesterday's reports came just as Congress is set to debate expanding offshore drilling.

There will be hearings. And Speaker Nancy Pelosi (D-CA) has argued that "the allegations of illicit and unethical behavior...are directly related to the energy debate taking place in the Congress this week."

While it would seem that all is quiet in congress on the domestic surveillance front, civil libertarians, constitution lovers, nay-sayers, and disgruntled progressives are far from quiescent. In daily checking, my aggregator's "Investigative Faves" folder continues to bring important stories. Examples follow:

Former Attorney General John Ashcroft defended the Constitution, according to the ACLU blog's great little overview of the occasion. Glenn Greenwald at Salon.com writes at greater length, "What illegal "things" was the government doing in 2001-2004?" (Sept. 15, 2008). To quote:

. . . Barton Gellman's new book on the Cheney Vice Presidency, . . provides still more details . . . DOJ's refusal to certify the legality of the NSA's domestic spying activities. As has been known ever since Deputy Attorney General James Comey testified before the Senate in May, 2007, all of the top-level DOJ officials -- including Attorney General John Ashcroft, Comey and FBI Director Robert Mueller -- told President Bush they would resign immediately because Bush ordered the NSA surveillance program to continue even after his own Justice Department told him it was patently illegal.
. . . we almost certainly would have learned the answers . . . or, at the very least, obtained a judicial ruling that the Government broke the law -- had the telecom lawsuits been allowed to proceed. But thanks to the Congressional leadership of both parties, with the support of both major presidential candidates (though over the opposition of the Democratic Vice Presidential nominee), those lawsuits were killed, stopped in their tracks, when the telecom industry was retroactively immunized for their lawbreaking. At this point, it is extremely easy to understand why not only the White House and Congressional Republicans, but also the Democratic leadership, was so eager to ensure that this law-breaking remain concealed from the public and that there are never any consequences for it. It's because, as is true for so much of the Bush radicalism and lawbreaking over the years, top Democrats were fully aware of what was taking place and either explicitly endorsed the lawbreaking or, with full complicity, allowed it to continue. In his book, Gellman details a March 10, 2004 meeting convened by Dick Cheney regarding the DOJ's objections to the NSA surveillance programs -- in which various Bush national security officials were present along with "the four ranking members of the House and the Senate, and the chairmen and vice chairmen of the intelligence committees"
. . . Though there is dispute about whether these members of Congress expressly endorsed the continuation of the illegal program, there is no dispute that the meeting took place and that these members were repeatedly briefed on the spying program -- not only after 2004, but before 2004. This specific meeting described by Gellman, and the briefings generally, included Nancy Pelosi, Jane Harman, Steney Hoyer, and Jay Rockefeller -- all of whom voted to put an end to the telecom lawsuits (and thereby ensure that these crimes remain concealed), and the latter two of whom were, far and away, the key forces behind the new law that killed the lawsuits looking into these spying activities (and then joined Bush and Cheney at a festive, bipartisan White House signing ceremony to celebrate their joint victory).

And finally, some follow-up on telecom immunity, just so you know: "Justice Department Moving to Immunize Snooping Telcos," is from David Kravets at Wired - Threat Level, (9/12/08). To quote:

Two months ago, President Bush won congressional approval to immunize the nation's telecommunications companies from lawsuits accusing them of helping Bush funnel Americans' electronic communications to the National Security Agency without warrants -- all in the name of national security following the Sept. 11 terror attacks.

But the telecoms, facing 36 lawsuits commingled as one in a San Francisco federal court, still haven't been granted immunity in the lawsuits alleging they breached their customers' Fourth Amendment right to privacy. On Friday, however, Justice Department special counsel Anthony Coppolino said the government would comply with the immunity bill's procedural hurdles by Sept. 19 to seek blanket immunity on behalf of the companies.

. . . Among other things -- if the legislation stands -- the telecoms are off the hook if the Justice Department can prove, in sealed documents to the court, that the telecoms' assistance was, among other things, the result of a court order; or authorized under the Protect America Act of 2007 or was approved by the president and designed "to detect or prevent a terrorist attack, or in activities in preparation for a terrorist attack, against the United States, and the subject of a written request or directive."

Today in the history of the Constitution, on September 16 in 1787, Thomas Jefferson was traveling in Italy. And on the following day, September 17, 1787, the signing of the Constitution took place. So get ready to celebrate Constitution Day tomorrow with me as I write another post on the subject.

(Cross-posted at South by Southwest.)

CIVIL is as civil does

By Carol Gee

Please be civil -- Civil rights, civil liberties, civil society, civil vs. criminal, civil service, civil disobedience, all of these phrases have something to do with behaving oneself. For the past few days I have been reading a great deal of Internet material on "civil" issues, including the Hamdan trial at Guantanamo. It has been a fascinating exercise in maintaining my equilibrium despite what I have learned that is further evidence of the Bush administration's lack of ethics and frontal assault on the U.S. Constitution.

Google, move over -- In the process a happy accident happened. I discovered a very interesting new search engine named "Cuil," pronounced "cool." It returned very useful results in a brand new form. I used the search terms, "Domestic Spying," "search laptops" and got 1,538,151 results for the term "DNI Mike McConnell." One day I am sure my concentration on writing about the DNI will put me under suspicion in the NSA, but the number of "hits" make it clear that I am not the only one fascinated with the man.

In addition to Civil, "C" also stands for Contempt. This is the headline that reports an amazing administration defiance of recent court rulings about executive privilege vs. congressional oversight powers. "Defying Subpoena, DoD Orders Sexual Assault Program Chief Not To Testify Before Congress" by Andrew Tilghman - August 1, 2008 at TPM Muckraker. To quote from the post:

The Pentagon defied a Congressional subpoena yesterday by refusing to let the head of its sexual assault program testify at an oversight hearing about sexual assault in the military.

The House panel had issued a subpoena for Dr. Kaye Whitley, the director of the Defense Department's Sexual Assault Prevention and Response Office.

But Pentagon officials ordered her not to testify and instead sent her supervisor, Michael Dominguez, a principal deputy undersecretary for defense, in her place.

American Civil Liberties Union -- Blog of Rights. It is clear to me that the new FISA law will be challenged over and over again in court, perhaps for years. It is far too crucial to let it stand. A related headline says that the "Administration wants to block ACLU from wiretapping law litigation" by Andrew Tilghman (7/30/08) from TPM Muckraker. To quote:

The Department of Justice filed court papers yesterday seeking to block the ACLU -- and any other third party -- from submitting briefs to the Foreign Intelligence Surveillance Court, the classified forums that will be primarily responsible for translating the federal law signed last month into practice.

. . . Peter Swire, a law professor at Ohio State University and senior fellow at the Center for American Progress, supports the ACLU's position. He wrote a paper in 2004 calling for greater participation in the FISA court.

"The DOJ is taking an expansive view of executive power and narrow view of judicial power, Swire told TPMmuckraker in an interview today. "Under the government's view, the judges seem required to uphold an unconstitutional system because the judges are forbidden from getting briefing from anyone other than the executive branch."

While there is limited precedent for third-party involvement in the typically classified proceedings under the 1978 FISA law, the new technologies that prompted lawmakers to update the law law may also warrant new procedures, Swire said.

"The 1978 version of FISA targeted one individual at a time or sometime one terrorist organization. The new approach sweeps far more broadly and it looks more like an administrative system than a traditional judicial wiretap order."

Closed FISA Court? Ryan Singel at Wired: Threat Level, has another take on the same story. "Only government can argue in secret spy court, Feds say". To quote:

On July 10, the ACLU asked the secret court to let it participate when the Court was considering questions about the "scope, meaning and constitutionality" of this blanket surveillance program. The ACLU wanted to make the government file public versions of its legal briefs, allow the ACLU to file a brief and argue orally, and that the court issue public opinions (with classified info redacted). The ACLU made the request (.pdf) the same day it challenged the constitutionality of the newly passed FISA Amendments Act in federal district court.

The Bush Administration argues that the court's review of spying orders is far too secret to allow any outside party.

"The benefits of open proceedings are greatly outweighed by the potential harm that public access would cause to the national security and integrity of the FISC process," the brief (.pdf) argued. "Allowing third parties to use this Court as a general forum to present facial challenges to the Government's surveillance activities could cause a flood of litigation that would distract this Court from its important national security functions."

S/SW References -- Recently I have blogged about several of the most important civil liberties issues in the news. Links follow:

• "Why were they surprised?" -- Republicans walk out on DNI briefing
• "The kind of government we want" -- includes a segment on the recent Bush order for a national intelligence overhaul
• "Be careful what you ask for" -- The role of psychologists in the government's torture program
• "I pledge allegiance" -- Daniel Ellsberg interview on the Fourth Amendment
• "What about The Mikes?" -- Regarding news about DNI Mike McConnell and AG Mike Mukasey
• "FISA bill signing post mortem" -- a rant about the consequences of Congress caving in on FISA
• "Examining an obsession with civil liberties" -- mine!
  

(Cross-posted at South by Southwest.)

Celebrating the Fathers of the Constitution

By Carol Gee

The Thomas Jefferson Memorial at twilight illustrates today's post honoring one of the fathers of the U.S. Constitution.

Last week the United States Constitution won out over a determined Unitary Executive, our current president (OCP). The Supreme Court, in 5-4 decision, ruled in effect that "habeas corpus" was a kind of bedrock principle to which the United States of America must adhere except in extremely narrow circumstances.

The habeas corpus connection -- Benjamin Wittes, an expert (see *reference below) on the detainee situation, reminds us of the limits of the ruling, saying that the ruling does not say how that is to be applied in Guantanamo. It was another rebuke for our Unitary Executive, according to the New York Times. Justice Kennedy's decision only alluded to historical references including the Magna Carta; web2announcer reminded us that habeas corpus is 793 years old today.

The decision reverberated around the world.We have disappointed so many countries who looked up to us in the past as the beacon of freedom and human rights. Indi.ca, a Sri Lankan born in Canada, had this interesting take on the SCOTUS news (illustrated by a photo of the Magna Carta):

Terrorism works in that it scares nations into abandoning their values. Mature nations will resist this fear and insist on being themselves. Al Qaeda hasn’t actually killed many people (the LTTE has), but all these terrorist groups have - like viruses - hijacked their host nation’s very DNA - provoking an immune response out of proportion to the threat. Bush and Cheney wove Al Qaeda terror so deeply into American political consciousness that abandoning even obvious parts of the Constitution - like habeas corpus - became OK. Now, as that dark era of torture and incompetence ends, the Supreme Court has ruled that habeas corpus cannot in fact be suspended. That is, American detainees in Guantanamo or anywhere do have the right to a trial. What’s odd is that the dissenting opinions for Scalia and all take an ideological bent on what is really a simple legal issue. It’s like the response to “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” is “Look over there, terrorism!”

George W. Bush, The Unitary Executive, was in Rome, Italy at the time. The Voice of America reported that OCP spoke out against the decision. Mark my words, OCP is this day trying to figure a way around it. To quote:

While the president was meeting with Italian leaders, the U.S. Supreme Court handed down its latest ruling on Guantanamo.

The president said he disagrees. "We will abide by the court's decision. That doesn't mean I have to agree with it."

Speaking at a joint news conference with Prime Minister Berlusconi, Mr. Bush said the White House will study the narrow 5-4 court opinion to see if new legislation is needed.

"It was a deeply divided court. And I strongly agree with those who dissented," he said.

Immediately we civil libertarians thought about what the next president could do to the Supreme Court. An Australian blog, not too much, highlighted the ruling as "Justice 5; Brutality 4." The writer lamented that Australia's constitution is not as strong as ours and concluded with the reported reactions of our two presidential candidates:

. . . Australia's liberties are even more fragile, and largely unprotected by our constitution. We are endangered when, as did John Howard, our government decides to follow in the footsteps of a United States commanded by a imperialist fool. Australia's Anti-Terrorism Act 2005 places limits our habeas corpus rights, for example.

Obama issued a statement calling the decision "a rejection of the Bush administration's attempt to create a legal black hole at Guantánamo" that he said was "yet another failed policy supported by John McCain." "This is an important step," he said, "toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy." Obama voted against the Military Commissions Act "because its sloppiness would inevitably lead to the court, once again, rejecting the administration's extreme legal position."

McCain was one of among the chief architects of the Military Commissions Act of 2006, which denied detainees a right to challenge their status in civilian courts. Although he pressed the administration to ensure legal protection against torture, he also argued that the status-review tribunals gave detainees adequate rights to challenge their detention, an argument that the court has rejected.

What happens at Guantanamo now is the next big question. The Washington Post says that those now set for trial may not have access to the evidence against them for their defense. What happens to detainees not set for trial is covered in a separate WaPo article. The Post looks in depth at how the decision might play out in the Washington, D.C. District Courts, that again have jurisdiction over the remaining detainees covered. The Post also looks at a third very pertinent question -- what Senator McCain is likely to do about it if he is elected president. We must not forget this crucial piece in the glow of this week's victory. Our Constitution's fathers are counting on us not to mess this up again.

*Reference: See C-S pan's broadcast of the American Constitution Society 2008 National Convention: Justice for Detainees Panel Discussion : "The American Constitution Society holds its 2008 National Convention in Washington, DC. In this panel titled, "Ensuring Access to Justice for Detainees in the 'War on Terror'," participants discuss criteria for who should be detained, their treatment, policies on interrogation and the future of Guantanamo detainees."

This day in history -- At the Constitutional Convention, on June 15, 1787: William Paterson proposed "New Jersey Plan" of limited changes to Articles of Confederation.

(Cross-posted at South by Southwest.)

Death to the people, power to the junta

By Michael J.W. Stickings

Cyclone Nargis devastated Burma, but, for the totalitarians, the brutalization continues, with the military blocking foreign aid and relief workers from entering the country and reaching the areas hit by the storm, stealing food, and otherwise doing little (and nothing) to help the estimated 2.5 million people affected by the storm (with another one on the way).

Oh, and did you know that, with all this going on, they held a referendum on Saturday?

No joke.

Here's the Breaking News:

A new constitution proposed by Burma's military government has been overwhelmingly approved in a referendum, state media say.

Some 92.4% voted yes to the changes in a vote on Saturday.

The referendum was held in two-thirds of the country, but was postponed for two weeks in areas hit by the cyclone.

The constitution enshrines the junta's hold on power and excludes the main opposition leader, Aung San Suu Kyi, from office.

Yes, that's right, the totalitarians forced through a new constitution that effectively cements their hold on power -- and they did so through a sham of a referendum that was held as the country was dealing with the aftermath of a horrible natural disaster that may have killed as many as 128,000 people (Red Cross estimate) and that wasn't held in one-third of the country.

And it's a constitution that was drafted by the totalitarians themselves (and that has been sharply criticized around the world).

No wonder it received 92.4% of the vote. I'm sure the referendum was as "democratic" as any of the votes in the "democratic" Soviet Bloc satellites of Eastern Europe during the Cold War.

Vote Yes... or else.