Legal Issues in the War w Islamic Fascism, Epidemic, Quarantine, and Doxxing

[Crafty_Dog]

WSJ:

The Gitmo Distraction
By DAVID B. RIVKIN, JR. and LEE A. CASEY
July 9, 2007; Page A15

Reports suggest that President Bush's top advisers are again wrestling with whether to close the detention facility in Guantanamo Bay, Cuba. There is no doubt that holding captured al Qaeda and Taliban fighters at that facility has become a significant diplomatic liability.

But the potential foreign policy benefits of moving war on terror prisoners must be weighed against the very real strategic, tactical and legal costs that this decision would entail. After looking at these, it is difficult to avoid the conclusion that maintaining the Guantanamo Bay facility is not only justifiable but necessary.

 
Perhaps the most important cost of closing Guantanamo would be strategic. From the start of this conflict, al Qaeda's strategy for victory has been to take maximum advantage of Western sensibilities and institutions, including public opinion and legal rules which limit what states can do in their own defense. The Bush administration sought to minimize the impact of this type of strategy by itself adopting a wartime legal paradigm, declaring a war against terror and using the full force of the United States military -- rather than relying primarily on American law-enforcement resources -- against al Qaeda and its allies. Detaining captured al Qaeda and Taliban operatives as enemy combatants at Guantanamo Bay was, and remains, a central aspect of that policy and there is little doubt that abandoning it will be seen by al Qaeda as a failure of American nerve and a vindication of their strategic vision.

Closing Guantanamo would also be a victory for al Qaeda because the other alternatives for detaining captured jihadis either give terrorists a legal advantage. The status quo is the best option we have.

There are three basic alternatives to Guantanamo: First, transferring the detainees back to U.S. bases in Afghanistan (such as Bagram Air Base) or elsewhere in the world; second, bringing them to the U.S. to be housed, still as captured enemy combatants, at federal military or civilian prison facilities; or last, having brought them to American soil, processing the detainees through the criminal justice system as civilian defendants, much like the "20th" 9/11 hijacker Zacarias Moussaoui.

The first alternative, moving the detainees to a different overseas location, would incur considerable expense (the current facilities would have to be more or less replicated in another location) and would almost certainly provoke a constitutional crisis between the president and the Supreme Court. The justices have already ruled in Rasul v. Bush (2004) that Guantanamo Bay, based on its unique status as Cuban territory subject to the U.S.'s exclusive authority, is subject to federal court jurisdiction.

Although this case was wrongly decided in light of the court's other precedents, withdrawing detainees from Guantanamo now would prompt the Supreme Court to consider another expansion of federal judicial power, effectively following the detainees wherever they are moved. And, given swing Justice Anthony Kennedy's uncertain temper in war on terror cases, a five-justice majority may well find a pretext to do just that. The president would then be placed in the unenviable position of accepting judicial oversight not merely at Guantanamo Bay, but also in active, foreign theaters of war -- or ignoring the court's ruling.

The second alternative, bringing the detainees into the U.S., also would be no panacea. This too would be costly, involving creation of new maximum-security prison space in an already overcrowded federal system. Relocation to the homeland would also raise the potential for escapes into the civilian population and would open vast new litigation vistas for the detainees and their American lawyers -- including challenges not merely to their classification as enemy combatants, but to the ongoing conditions of their confinement as well. Although Congress could attempt to avoid this projected litigation explosion by statutorily limiting detainee rights -- as it did in the 2005 Detainee Treatment Act and 2006 Military Commissions Act -- there is no guarantee that these or similar provisions will withstand constitutional scrutiny once detainees are in the U.S. and subject to the U.S. Constitution.

This is especially true with regard to proposals for the creation of a type of administrative detention that would permit the most dangerous detainees to be held indefinitely -- without criminal trial in either civilian or military courts. Despite the rhetoric of the administration's critics, the detainees are not now subject to indefinite detention. Under the laws of war, they may be held until the armed conflict is over, at which time they must be tried or set free. The laws of war do not provide a basis for post-conflict preventative detention, and the constitutional basis for such detention is far from obvious. To date, the courts have accepted truly preventative detention in only very limited circumstances, generally involving cases in which the prisoner has a mental disease or defect.

Thus, even assuming that congressional Democrats would accommodate the administration's request for such legislation -- and they do not appear to be in an accommodating mood -- the government may still lose the inevitable legal challenges. These are likely to be even more difficult than the one arising in the Guantanamo context which the justices have docketed for next fall. The administration could find itself having to charge the detainees as civilian criminal defendants or watch the courts release them onto America's streets.

This frightening possibility is real enough, because the final option -- processing the detainees in the civilian court system -- is also not possible. Some of the detainees would not be subject to trial in the United States at all because, unless they have actively opposed U.S. forces or otherwise directly targeted U.S. nationals, they are not obviously subject to American criminal laws. Attacking U.S. allies is not necessarily an adequate basis for jurisdiction. However, even if the underlying statutory framework were available to prosecute most of the detainees as civilian criminals, the government would be fatally handicapped in presenting its case.

Leaving aside the fact that evidence against the detainees has not (and could not have) been collected at overseas battlefields in accordance with normal exacting police procedures, the Constitution requires that every element of a criminal charge be proved beyond a reasonable doubt by admissible evidence presented in open court. This would require the compromise of classified, national security information being used as the price of a conviction. Although proponents of a criminal law approach to al Qaeda often claim that the Classified Information Procedures Act (CIPA) answers this objection, it does not.

CIPA permits the government to protect classified information throughout the pre-trial, including the "discovery," phase of a criminal prosecution. In addition, it allows the court to consider whether there are acceptable evidentiary alternatives to the admission of classified material at trial. However, if the court does not accept those alternatives, or if it concludes that the defendant would not receive a fair trial without the use of classified information, the government must accept the disclosure of that information (damaging the war effort) or see the case dismissed. Meanwhile, as was the case with the indefinite administrative detention option, any statutory restrictions on a defendant's right to have the evidence against him presented in open court -- another legislative option allegedly contemplated by the administration -- is neither likely to be adopted by Congress nor blessed by the courts.

Finally, in addition to these costs, the potential benefits of closing Guantanamo are illusory. The most commonly articulated reason for this step is to improve relations with our allies, especially in Europe. However, Europe's real objection is not to the detainees' location at a U.S. Naval Base in Cuba, but to their confinement as enemy combatants in the first place. By and large, Europe has never accepted that there is a "war" on terror. Moving detainees to Afghanistan or the U.S. will not change this.

To obtain any "public diplomacy" advantage from closing Guantanamo, the president must be prepared to declare an end to military operations against al Qaeda, and a return to the pre-9/11 policy mixture of law enforcement, diplomacy and surgical strikes against al Qaeda outposts that failed miserably. This is also why lesser changes at Guantanamo, such as inviting European allies to participate in both the operation and review of continued detentions, are impractical. Those allies simply do not believe there is a war in which these fighters can legally be held.

Just as nothing short of total U.S. withdrawal from Iraq would appease the administration's opponents, the critics of Guantanamo Bay will not be satisfied with anything other than abandonment of the war against al Qaeda. If, as the president says, a U.S. withdrawal from Iraq would be a key defeat in the war on terror, ending that war itself -- leaving al Qaeda bruised, but very much in possession of the global battlefield -- would be an even greater calamity.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

[Crafty_Dog]

Unlikely Adversary Arises to Criticize Detainee Hearings
By WILLIAM GLABERSON
NY Times
Published: July 23, 2007
NEWPORT BEACH, Calif. — Stephen E. Abraham’s assignment to the Pentagon unit that runs the hearings at Guantánamo Bay, Cuba, seemed a perfect fit.

A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel. His posting, just as the Guantánamo hearings were accelerating in 2004, gave him a close-up view of the government’s detention policies.

It also turned him into one of the Bush administration’s most unlikely adversaries.

In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.

Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.

“Nobody stood up and said the emperor’s wearing no clothes,” Colonel Abraham said in an interview. “The prevailing attitude was, ‘If they’re in Guantánamo, they’re there for a reason.’ ”

The curtain on the hearings had been pulled back a bit previously, when the Pentagon, under pressure, released some transcripts. But by stepping forward, Colonel Abraham gave the Supreme Court and the public a look from an insider at a process that remains heavily shielded.

He expanded on that account in a series of recent conversations at his law office here, offering a detailed portrait of a system that he described as characterized by superficial efforts to gather evidence and frenzied pressure to conduct hundreds of hearings in a few months.

Most detainees, he said, have no realistic way to contest charges often based not on solid information, but on generalizations, incomplete intelligence reports and hints of terrorism ties.

“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.

Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.

Pentagon officials have dismissed his criticisms as biased and said he was not in the position to have seen the entire process work.

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.

He has been called a whistleblower and a traitor. On July 26, he is to testify before a House committee.

His road to notoriety, he says, is entirely of a piece with his biography. A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.

“It is my duty,” Colonel Abraham said of his decision to come forward.

Pentagon officials say his account indicates that he misunderstood the purpose of the hearings, known as combatant status review tribunals or C.S.R.T.’s, which the officials say “afford greater protections for wartime detainees than any nation has ever provided.”

A Pentagon spokesman, Lt. Cmdr. Chito Peppler of the Navy, said that Colonel Abraham’s “apparently biased insinuations” did not indicate bad faith or improper behavior by military officials.

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“In his capacity as database manager during his brief stint on active duty several years ago,” Commander Peppler said, “Lieutenant Colonel Abraham was not in a position to have a complete view of all the evidence used in the C.S.R.T.’s, as well as the process as a whole.”

Colonel Abraham arrived at the Office for the Administrative Review of the Detention of Enemy Combatants during a chaotic period in September 2004.

The plan for the hearings had come from the highest levels of the Pentagon after two Supreme Court rulings on June 28, 2004, put the Bush administration on the defensive over its detainee policies.

One ruling suggested that detainees would be entitled to hearings “before a neutral decision maker.” The other said detainees could have federal courts review their detentions. Nine days later, Paul D. Wolfowitz, then deputy defense secretary, issued an order creating the C.S.R.T.’s.

Colonel Abraham had already served a year on active duty after the 2001 terrorist attacks. At Pearl Harbor, he had been cited for exceptionally meritorious service as “lead counterterrorism analyst,” burnishing a record that included a citation for leading a counterespionage operation in the 1980s that ended with the detention of three Soviet agents.

A divorced father of a 7-year-old daughter, he was not looking for a posting. But a commander suggested that his skills were needed: the hearing program was entering its busiest period, with more than 200 people gathering evidence and running the hearings at an office near the Pentagon and in Guantánamo.

It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”

Many detainees implicated other detainees, he said, and there was often no way to test whether they had provided false information to win favor with interrogators.

He said he was prohibited from discussing the facts of cases. But public information, much of it obtained through lawsuits, includes examples of some of the points he made.

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp.

The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.

At another hearing, later reviewed by a federal judge, a Turkish detainee, Murat Kurnaz, was said to have been associated with an Islamic missionary group. He had also traveled with a man who had become a suicide bomber.

“It would appear,” Judge Joyce Hens Green wrote in 2005, “that the government is indefinitely holding the detainee — possibly for life — solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted or undertook himself.”

In a third hearing, an Afghan detainee said he had indeed been a jihadist — during the 1980s war against the Soviet Union, when a lot of Afghans were jihadists. Was that what the accusation against him meant, he asked, or was it referring to later, during the American war?

“We don’t know what that time frame was, either,” the tribunal’s lead officer replied.

During one of the recent interviews, Colonel Abraham said that the general accusations that detainees were jihadists without much more alarmed him.

“As an intelligence agent, I would have written ‘junk statement’ across that,” he said.

Critics of the administration’s detention policies have questioned the hearings’ fairness, noting that detainees are not permitted lawyers and cannot see much of the evidence. Pentagon officials have said such criticism is not meaningful because a combatant status hearing “is not a criminal trial.” They note that 38 of the 558 cases ended in decisions favorable to the detainees.

But Colonel Abraham said that in meetings with top officials of the office, it was clear that such findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”

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Page 3 of 3)



He said his concerns about the fairness of the hearings had grown as time passed. “The hearings amounted to a superficial summary of information, the quality of which would not have withstood scrutiny in any serious law-enforcement or intelligence investigation,” he said.

While in Washington, he stayed with a sister, Susan J. Borschel, a real estate lawyer. Last week, she recalled Colonel Abraham’s saying that he was troubled by the way the Pentagon was running the hearings. It was a notable observation, she said, from a “law and order” man.

Soon, Colonel Abraham said in one of the conversations, he began to worry that involvement in the process might be improper for a lawyer because there were so many shortcuts. “There were too many assumptions. Too many presumptions,” he said. He said he had expressed his concerns to supervising officers.

His law partner, Steven Fink, said that would not have been unusual. “You will get his opinion whether you want it or not,” Mr. Fink said.

Colonel Abraham’s misgivings reached a peak in December 2004.

On Dec. 10, he wrote a letter to Rear Adm. James M. McGarrah, who was running the hearings operation. In the letter, a copy of which he provided to The New York Times, Colonel Abraham asked to be released from his assignment, saying participation “may be in conflict with my obligations as an attorney.” He said he had never received an official response.

He finished his tour, which ended in March. He came back to his life in Newport Beach and, he said, more or less forgot about Guantánamo.

As it turned out, lawyers at his sister’s firm, Pillsbury Winthrop Shaw Pittman, began representing detainees in 2006. Though she is not involved, she mentioned that her brother had worked on the hearings.

Last month, one of the lawyers, Matthew J. MacLean, a former Army lawyer, called Colonel Abraham and asked him to look at an affidavit filed in May by Admiral McGarrah.

Colonel Abraham said the admiral’s affidavit, describing the hearing process as orderly and considered, had convinced him that he had to step forward. He began to describe his experience.

“This was it,” Mr. MacLean said last week, “the first evidence of how these tribunals operated from the inside.”

Mr. MacLean called Colonel Abraham for the first time on June 8. The detainees’ lawyers filed his seven-page affidavit in court on June 22. It was sharply critical of the hearings and the evidence they used, saying “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” On June 29, the Supreme Court announced that it would hear the detainees’ case.

One of the tribunals the lawyers have learned more about since then was the one on which Colonel Abraham sat. Documents they have gathered show that he was assigned to the panel in November 2004. The detainee was a Libyan, captured in Afghanistan, who was said to have visited terrorist training camps and belonged to a Libyan terrorist organization.

By a vote of 3 to 0, the panel found that “the detainee is not properly classified as an enemy combatant and is not associated with Al Qaeda or Taliban.”

Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”

Colonel Abraham was never assigned to another panel.

[Crafty_Dog]

Second post of the morning:

Speak and Be Sued
July 23, 2007; Page A14
A rider of New York City's subways would have to have his nose stuck way deep in his morning newspaper to avoid seeing the anti-terrorism placards urging: "If you see something, say something." Now, if some Democrats in Washington have their way, the signs will need to be amended to read, "If you see something and say something, prepare to be sued."

That's the message the six "flying imams" tried to deliver in November when suspicious behavior got them thrown off a US Airways flight from Minneapolis -- and the passengers who blew the whistle on them threatened with lawsuits. And that's the message endorsed by Democrats in Congress who are pressuring a conference committee to remove language from the final homeland security bill that would confer civil immunity on citizens who "in good faith" report suspicious behavior to authorities.

This "John Doe provision" passed the House in March by a bipartisan vote that included every Republican and 105 Democrats. Opponents argue that it "could invite racial and religious profiling," as Senator Patrick Leahy said last week.

When it looked like Democrats would use a technicality to strip the John Doe provision out of the bill, Republicans forced a vote last week by adding it as an amendment to the education bill. The amendment was rejected on procedural grounds in a late-night session Thursday by a vote of 57-39, three short of the supermajority needed to pass. Democrats voting in favor of the provision included New York Senators Hillary Clinton and Chuck Schumer.

The fate of "John Doe" now falls to the conference committee, headed by Senator Joe Lieberman, who supports the provision, and Rep. Bennie Thompson, who opposes it. This week the committee is expected to release the final version of the homeland security bill, implementing the remaining recommendations of the 9/11 Commission. Leading Democrats -- including Senate Judiciary Chairman Leahy, Majority Leader Harry Reid, and House Judiciary Chairman John Conyers -- continue to work behind the scenes to scuttle the immunity clause, throwing up procedural obstacles and insisting that other committees must have a say.

New York's Metropolitan Transportation Authority said last week that the subway tipline had received 1,944 reports in 2006. We'll never know precisely how many terrorist acts may have been prevented because of those workaday whistleblowers. But as the Fort Dix plot -- uncovered by a retail clerk -- proves, vigilance works.

Rep. Peter King, the New York Republican who drafted the John Doe provision, asks how Democrats "can possibly say they're passing 'the ultimate comprehensive homeland security bill' while eliminating the provision that protects people who report terrorist activity." Good question.

WSJ

[Crafty_Dog]

stratfor.com

PAKISTAN: A high-ranking pro-Taliban tribesman was killed today after Pakistani forces surrounded him in the southwestern part of Balochistan province, an Interior Ministry spokesman told Reuters. Abdullah Mehsud was accused of kidnapping two Chinese engineers not long after being released from Guantanamo Bay detention center in 2004.

[Crafty_Dog]

WSJ
Wiretap Debacle
How politics has gutted the terrorist surveillance program.

Friday, July 27, 2007 12:01 a.m. EDT

The U.S. homeland hasn't been struck by terrorists since September 11, and one reason may be more aggressive intelligence policies. So Americans should be alarmed that one of the best intelligence tools--warrantless wiretapping of al Qaeda suspects--has recently become far less effective and is in danger of being neutered by Congressional Democrats.

President Bush approved this terrorist surveillance not long after 9/11, allowing intelligence officials to track terrorist calls overseas, as well as overseas communications with al Qaeda sympathizers operating in the U.S. The New York Times exposed the program in late 2005, and Democrats and antiwar activists immediately denounced it as an "illegal" attempt to spy on Americans, à la J. Edgar Hoover.

Democratic leaders were briefed on the program from the first and never once tried to shut it down. But once it was exposed, these same Democrats accused Mr. Bush of breaking the law by not getting warrants from the special court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. Mr. Bush has rightly defended the program's legality, but as a gesture of compromise in January he agreed to seek warrants under the FISA process.

This has turned out to be an enormous mistake that has unilaterally disarmed one of our best intelligence weapons in the war on terror. To understand why, keep in mind that we live in a world of fiber optics and packet-switching. A wiretap today doesn't mean the FBI must install a bug on Abdul Terrorist's phone in Peshawar. Information now follows the path of least resistance, wherever that may lead. And because the U.S. has among the world's most efficient networks, hundreds of millions of foreign calls are routed through the U.S.
That's right: If an al Qaeda operative in Quetta calls a fellow jihadi in Peshawar, that call may well travel through a U.S. network. This ought to be a big U.S. advantage in our "asymmetrical" conflict with terrorists. But it also means that, for the purposes of FISA, a foreign call that is routed through U.S. networks becomes a domestic call. So thanks to the obligation to abide by an outdated FISA statute, U.S. intelligence is now struggling even to tap the communications of foreign-based terrorists. If this makes you furious, it gets worse.

Our understanding is that some FISA judges have been open to expediting warrants, as well as granting retroactive approval. But there are 11 judges in the FISA rotation, and some of them have been demanding that intelligence officials get permission in advance for wiretaps. This means missed opportunities and less effective intelligence. And it shows once again why the decisions of unaccountable judges shouldn't be allowed to supplant those of an elected Commander in Chief.

When the program began, certain U.S. telecom companies also cooperated with the National Security Agency. But they were sued once the program was exposed, and so some have ceased cooperating for fear of damaging liability claims. We found all of this hard to believe when we first heard it, but we've since confirmed the details with other high-level sources.

Director of National Intelligence Michael McConnell more or less admitted the problem last week, albeit obliquely, when he told the Senate that "we're actually missing a significant portion of what we should be getting." That's understating things. Our sources say the surveillance program is now at most one-third as effective as it once was.

The Bush Administration bears much of the blame for this debacle. White House officials hoped that by agreeing to put the wiretaps under FISA authority, they could lower the political temperature and reach an accommodation with Congress. But no Administration has ever conceded that FISA trumps a President's Constitutional power to place wiretaps in the name of national security. The courts have also explicitly upheld this Presidential power. Mr. Bush was making a needless concession that Democrats have used against him as they refuse to compromise.

The Administration wants Congress to modernize FISA in two crucial ways: First, by allowing NSA to track on a real-time basis these foreign calls that may be routed through the U.S., and in some cases allowing warrants to be sought after the fact. Our spooks would still be accountable, but they'd also be able to act quickly to defend the country. Second, the White House is requesting liability protection for telecom companies that cooperate with the wiretap program. Neither of these changes should be at all controversial--and we're confident they'd have overwhelming public support if the issues were understood.

Yet for six months Senate Democrats have resisted these legal changes to make Americans safer. Incredibly, they are fronting for their trial lawyer campaign donors in blocking liability protection. Their counteroffer is to have the federal government supplant the companies as the defendants in any wiretapping lawsuits, as if any such lawsuits were justified. Why are Democrats letting trial lawyers interfere with a vital intelligence operation?

Meanwhile, Senate Judiciary Chairman Patrick Leahy is holding any wiretap legislation hostage to his demand for Administration documents related to the program. This is part of the Democrats' political exercise to claim that Mr. Bush has somehow broken the law by allowing the wiretaps. Backed by grandstanding Republican Arlen Specter, in short, Mr. Leahy is more interested in fighting over how the program began than in allowing it to continue today.

At least a few Democrats realize they may be setting themselves up for trouble if there's another terrorist attack. House Intelligence Chairman Silvestre Reyes wrote to Mr. Bush last week saying he was "very concerned" about the program and urging the Administration to "devote all the resources necessary to ensure that we are conducting maximum surveillance of the terrorist target abroad."

Mr. Reyes went on to note that "FISA does not require a warrant for communications between two individuals outside the United States. If clarifications to the law are necessary, we are prepared to deal with this." That'll serve Mr. Reyes well as political cover if the next 9/11 Commission asks who ruined the terrorist surveillance program. But if he's serious about national security, he should send his next letter to Senate Democrats.

Six months is too long for Mr. Bush to cater to Pat Leahy while Americans are put at risk. The President should announce immediately that he is rescinding his concession to put these foreign wiretaps under the FISA court. He should say he is doing so as an urgent matter of national security as Commander in Chief because Congress has refused to respond in good faith by modernizing the law to let the U.S. eavesdrop on terrorists who wish us deadly harm. Then let Democrats explain why they're willing to put partisanship above the safety of America.

[Crafty_Dog]

WSJ

AL QAEDA WATCH

The Real Wiretapping Scandal
Our Terrorist Surveillance Program isn't as effective it was a few months ago. Where's the outrage?

BY DAVID B. RIVKIN, JR. AND LEE A. CASEY
Monday, July 30, 2007 12:01 a.m. EDT

Last Tuesday's Senate Judiciary Committee hearing--at which Attorney General Alberto Gonzales was insulted by senators and ridiculed by spectators--was Washington political theater at its lowest. But some significant information did manage to get through the senatorial venom directed at Mr. Gonzales. It now appears certain that the terrorist surveillance program (TSP) authorized by President Bush after 9/11 was even broader than the TSP that the New York Times first revealed in December 2005.

It is also clear that Mr. Gonzales, along with former White House Chief of Staff Andrew Card, tried to preserve that original program with the knowledge and approval of both Republican and Democratic members of key congressional committees. Unfortunately, they failed and the program was narrowed. Today, the continuing viability of even the slimmed-down TSP--an indispensable weapon in the war on terror--remains in serious doubt.

The administration's most immediate concern since 9/11 has understandably been whether al Qaeda sleeper agents, already inside the U.S., would carry out additional catastrophic strikes. To counter this real and continuing threat, President Bush authorized the National Security Agency (NSA) to intercept a full range of al Qaeda communications, presumably on a global basis.

The TSP was not implemented pursuant to the Foreign Intelligence Surveillance Act (FISA), which permits a special federal court to issue surveillance orders when Americans and others are targeted for intelligence gathering inside the U.S. Rather than utilizing FISA's cumbersome and restrictive procedures, the administration relied on the president's inherent constitutional authority as commander in chief to monitor enemy communications in wartime, as presidents have done since Lincoln's day.

In addition, the administration correctly relied on Congress's Sept. 18, 2001, authorization for the use of military force against al Qaeda. In 2004, the Supreme Court ruled that this statute authorized the president to employ all the "fundamental incident\[s\] of waging war." This, by any reasonable standard, would include secretly listening in on the enemy's phone calls, and reading their faxes, emails and text messages.





At least, that is what one would have thought. In December 2005, however, a firestorm of controversy erupted when The New York Times published a story describing the TSP. Although it was clear from the beginning that the program targeted al Qaeda--a particular communication was intercepted based on the presence of a suspected al Qaeda operative on at least one end--and not directed at ordinary Americans going about their daily routines, the administration's critics quickly wove the TSP into their favorite overarching anti-Bush narrative. They cited it as just one more example of a supposedly power-hungry president, the new "king George," chewing up our civil liberties.
Administration officials, including Attorney General Gonzales, repeatedly explained the TSP to Congress and the public, presumably to an extent consistent with continuing national security imperatives. In particular, they said that only communications where at least one party to the conversation was outside of the U.S. were intercepted; purely domestic calls were not in play. But after months of congressional pressure, and having failed to secure new legislation that would have fundamentally revised FISA, the administration announced in January this year that it had reached an agreement with the special FISA court to bring the TSP under judicial auspices.

The administration also claimed that the program remained as encompassing as before, so that no national security interest had been compromised by the new arrangement. The TSP's defenders were skeptical. Given how FISA orders are normally sought and granted, it is difficult to believe that they could be used to surveil all conversations of legitimate security interest--such as those involving people who are not full-fledged al Qaeda members, but who are its witting or unwitting supporters. Intercepting the full spectrum of al Qaeda communications is indispensable to obtaining a full picture of its activities, and protecting the American people from attack.

And while the FISA concession put new restrictions on a program that had successfully protected America from attack since 9/11, it did not dampen the TSP controversy. In May, former Deputy Attorney General James Comey described--before a far more congenial Senate Judiciary Committee--a dramatic late night confrontation in March, 2004. It involved Mr. Comey, FBI Director Robert Mueller, Mr. Gonzales and Mr. Card, all gathered in the hospital room of then Attorney General John Ashcroft. Mr. Ashcroft, who must have signed off on, or at least have known about, the TSP years before, had transferred his authority to Mr. Comey for the duration of his gallbladder surgery. Mr. Comey refused to re-approve the program (which was expiring the next day) because of legal concerns, and the White House wanted Mr. Ashcroft to overrule him.

Mr. Ashcroft, however, now sided with Mr. Comey. Reportedly, he and others even threatened to resign if Mr. Comey did not get his way. The matter quickly reached the president, who authorized Mr. Comey to revise the TSP. The result, it should be emphasized, was the restructured TSP, which was subsequently revealed and vociferously attacked by the administration's critics in December 2005. Those critics, in and out of Congress, immediately seized upon Mr. Comey's May 15 testimony as proof that Mr. Gonzales had lied to Congress when he stated earlier that there was no disagreement at Justice regarding the TSP's legality.

Last Tuesday, however, the circumstances of this midnight drama and the nature of the issues at stake got a lot clearer. Mr. Gonzales, who obviously is still trying to explain things without revealing TSP details that remain classified, noted that the emergency visit to Mr. Ashcroft came after a meeting with White House personnel and the so-called "gang of eight"--the heads of various congressional intelligence committees--who agreed that the TSP had to continue. (Predictably, a number of "gang of eight" Democrats dispute this consensus, but they were clearly aware of the program and presumably White House logs can verify their meeting attendance.)

What now seems equally indisputable is that Mr. Gonzales did not lie to Congress--top Justice Department officials had all approved the 2005 TSP to which he was referring. The disagreement described by Mr. Comey involved the original TSP, in place from 2001-2004. This also explains Mr. Gonzales's statement Tuesday, which prompted calls for the appointment of a special counsel to investigate him for perjury, that the White House meeting with congressional leaders was devoted to discussion of "other intelligence activities." In the language of congressional intelligence oversight, even minimal differences between one program and another can constitute "other" distinct intelligence activities. In this context, Mr. Gonzales was clearly referring to the original TSP, the details of which remain classified, and not the 2005 TSP. Although it is impossible to know for sure, it is a good bet that the original TSP--to which Mr. Comey objected--was broader than the 2005 program and that it permitted interception of al Qaeda communications entirely within the United States (and may also be connected in some manner to datamining efforts, as suggested in Sunday's New York Times).

Such interceptions, unlike the monitoring of international wire traffic, could not be plausibly claimed to fall outside of FISA's language, although they could certainly be justified based on the president's wartime authority to spy on the enemy. Evidently, Mr. Comey didn't think so--or at least was unprepared to issue a compliance certification on the point. Reasonable minds can disagree here, but there was nothing inappropriate about White House officials trying to have Mr. Comey overruled by his boss. John Ashcroft certainly could have reassumed his authority as attorney general, even in his hospital bed.

What has gotten lost in all of this increasingly sordid game of political gotcha is the viability of a critical program in the war on terror. The TSP was brought under the FISA court's jurisdiction this January, allegedly without impairing its effectiveness. But FISA orders are not permanent. They must be periodically reissued, and FISA judges rotate. As an editorial on the facing page of the Journal first reported Friday, well-placed sources say that today's FISA-compliant TSP is only about "one-third" as effective as the 2005 version--which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.

The problem is particularly acute because FISA's 1978 framework has been rendered dysfunctional by the evolution of technology. FISA was enacted in a world where intercepts of purely foreign communications were conducted overseas, and were entirely exempt from the statutory strictures. Only true U.S. domestic communications were intercepted on U.S. soil and these intercepts were subjected to FISA's prescriptive procedures. Yet, with today's fiber optic networks functioning as the sinews of the global communications system, entirely foreign calls--say between al Qaeda operatives overseas--often flow through U.S. facilities and can be most reliably intercepted on American soil. Subjecting these intercepts to FISA strictures is absurd.

Moreover, the very fact that the intelligence community operates in a state of continued uncertainty about what precise surveillance parameters would be allowed in the future--instead of having the collection efforts driven entirely by the unfolding operational imperatives--is both unprecedented in wartime and highly detrimental. In past wars, as fighting continued, valuable battlefield experience was gathered, causing weapons systems, military organization and combat techniques to improve consistently. In this difficult war with al Qaeda, by contrast, the key battlefield intelligence-gathering program has been repeatedly emasculated.





Congress' obsession with the TSP's legal pedigree has become the major threat to its continued viability, rivaling in its deleterious impact the infamous "wall," much criticized by the 9/11 Commission, which prevented information sharing between the Justice Department's intelligence and law-enforcement divisions. It is hypocritical for those in Congress who preach fidelity to the 9/11 Commission recommendations to behave so dramatically at odds with their spirit. The question Judiciary Committee members should have been asking Mr. Gonzales was not whether he had misled them--he clearly did not--but whether the TSP is still functioning well. The question the public should be asking those senators--and with not much more civility than the senators showed Mr. Gonzales--is what are they going to do about it if the answer is no.
Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

[Crafty_Dog]

'Get Smart' in Washington
Democrats pretend to be serious about intelligence.

Friday, August 3, 2007 12:01 a.m. EDT

Imagine this scenario: U.S. intelligence against al Qaeda has declined by two-thirds because of court restrictions, and President Hillary Rodham Clinton is asking Congress to fix the problem. But Senate Republicans refuse to cooperate until the White House turns over executive branch documents, and because they won't protect phone companies from lawsuits for cooperating on the wiretaps.

Do you think President Clinton would be denouncing Congress? Or that there might be a political uproar? Or that the press corps would assail Republicans for endangering national security?

Yet this is precisely what is now happening in Washington--albeit with the political party roles reversed--and almost nobody seems to care. President Bush is mum while his aides beg Congress to do something, and Democrats claim they want to help but keep adding legal roadblocks that would continue to limit U.S. intelligence. The only person showing any alarm is Pete Hoekstra of Michigan, the ranking Republican on the House Intelligence Committee, but he's in the minority and so is ignored by the press.

As we reported last week, Director of National Intelligence Michael McConnell has been working behind the scenes for weeks to restore what even Democrats now concede is declining U.S. ability to eavesdrop on terrorists abroad. The phone companies have limited their cooperation due to the risk of lawsuits following the New York Times exposure of the wiretap program in 2005.





Mr. Bush's January decision to subject these wiretaps to the supervision of the special FISA court has eroded intelligence even further. In many cases, the National Security Agency now needs a warrant to tap even foreign-to-foreign contacts that happen to be routed through U.S. telephone switches. No wonder Osama bin Laden thinks America is a "weak horse." Our politicians are behaving with all the gravitas of Don Adams listening to the phone in his shoe in "Get Smart."
Democrats are the worst actors here because they won't even agree to mere six-month legal fix before they leave town this weekend for their August vacation. The White House has already compromised far too much and is only asking for two main temporary changes: Allow foreign-to-foreign calls to be tapped without a warrant. And if Democrats won't give the phone companies retroactive liability protection, then at least give them prospective immunity so they can cooperate from now on.

But even this is proving to be too much for Democratic leaders, who are apparently worried more about MoveOn.org than they are about another intelligence failure. They say they want to fix the foreign-to-foreign problem. But they're worried that a suspected foreign terrorist might call someone in the U.S., either a citizen or permanent resident, and so they have been insisting that any wiretap on that terrorist's communications require a warrant from the FISA court.

Thus if Ayman al-Zawahiri calls a terror cell in Detroit to give the green light for an operation, the NSA had better get a warrant before it listens in. Warrants for wiretaps on such calls originating overseas have never been required on FISA, for the obvious reason that foreign enemies don't deserve the same due process protections as U.S. citizens. What Democrats are seeking is an entirely new restriction on the executive branch's ability to gather intelligence during wartime.

By our deadline yesterday evening, Democrats were also still insisting on limiting warrantless wiretaps to known "foreign terrorists." Admiral McConnell, the DNI, wants to be able to listen in to the larger universe of "foreign targets" as well, because America's enemies include state actors and others who may not be terrorists or linked to al Qaeda. In other words, Democrats want the NSA to get a warrant even to listen to, say, North Korean spies.

And all of this, keep in mind, would only be for a six-month fix. If Mr. Bush wants a permanent fix for the next President, the White House would still have to deal with Democratic demands for documents related to the origins of the warrantless wiretap program after 9/11. Judiciary Chairman Pat Leahy has been blocking any wiretap compromise until the White House discloses documents that may well be protected under executive privilege. Mr. Leahy's purpose isn't to sort out the right policy but to score partisan points by claiming the Bush Administration has broken the law. Never mind that every President has claimed the Constitutional power to wiretap our enemies without a warrant in the name of national security.
This episode is most distressing for what it reveals about the unseriousness of our political class. Democrats so loathe the Bush Administration that they are willing to throw away one of our best weapons in the war against al Qaeda. It's long past time the President stopped pleading with Congress, and started explaining this outrage to the American people.

WSJ

[Crafty_Dog]

NYTimes

Britain Asks to Take Back 5 Guantánamo Detainees
 
By RAYMOND BONNER
Published: August 8, 2007
LONDON, Aug. 7 — In a shift in policy, Britain on Tuesday asked the United States to release five detainees at Guantánamo Bay, Cuba, who have resided in Britain but are not citizens.

Back Story With The Times’s Raymond Bonner (mp3)The Bush administration has said it has been looking for ways to reduce the Guantánamo population, and ultimately close the detention center there, which the request by the British might advance.

“We saw this as an opportunity to achieve ultimately the closure of Guantánamo,” a British official said, speaking on the customary condition of anonymity.

Under former Prime Minister Tony Blair, the government had insisted that it had no obligation to assist the men because they were not British citizens, though all had legal residence status here.

A senior American official said the impetus for the policy shift had come from a lawsuit in Britain in which some of the remaining British detainees sought to force the government to intervene on their behalf.

The State Department appeared to welcome the move, which American and British officials said had been under discussion for several months, including during talks in July between the British foreign secretary, David Miliband, and Secretary of State Condoleezza Rice. The Bush administration has been working with other countries to reduce the detainee population at Guantánamo, the State Department spokesman, Sean McCormack, said in Washington on Tuesday. The base at Guantánamo now holds about 385 detainees.

At the same time, Mr. McCormack flagged a potentially contentious issue: what restrictions, if any, will be placed on the detainees if they are returned to Britain. Before releasing them, the United States wants assurances that they “would be secured, meaning that they wouldn’t be allowed to walk free,” he said.

A Pentagon spokesman, Cmdr. J. D. Gordon, said conditions set by the United States for the release of any Guantánamo detainee to a host government include providing “credible assurances that they will be treated humanely” and guarantees “that the countries will take steps to mitigate the threat that these individuals pose to the United States and its allies.”

Commander Gordon said 420 detainees had been released from Guantánamo, 38 of whom were no longer viewed as “enemy combatants.” Commander Gordon said about 80 more detainees had been cleared for departure.

The British Foreign Office said in a statement that if the men were returned, they would be subject to the same security considerations “as would apply to any other foreign national in this country.” It said talks between the United States and Britain about the men’s release “may take some time.”

Nine British citizens were released from Guantánamo in 2004 and 2005. The Bush administration had expected those men to be tried and incarcerated for some period, and was dismayed when they were allowed to go free. Several have gone on to become near-celebrities here.

One sticking point has been the conditions that the United States wants imposed on any detainees returned to Britain.

In the lawsuit here on behalf of some of the British detainees, British officials said that if the men were to be returned, the United States wanted them to be jailed for a period of time. Upon their release, the United States wanted them to be closely monitored, including communications intercepts, according to statements by David Richmond, the director general for intelligence at the Foreign Office, and William Nye, the director of counterterrorism at the Home Office. The statements were filed last year in a case brought by two of the five detainees whose transfer is now being considered.

Such conditions would be illegal under British and European human rights laws, and would require an onerous commitment of British intelligence resources, the British officials have said.

Clive Stafford Smith, a lawyer who represents the five men, said, “We’d be willing to submit to any reasonable restrictions.”

Referring to Gordon Brown, the new prime minister, Mr. Stafford Smith said the British move was “a sign that the new Brown administration recognizes that human rights are important in the battle against terrorism.”

One of the five men on the list Britain submitted Tuesday, Jamil el-Banna, was approved to leave Guantánamo by the American military authorities in May, but is still being held because the British would not take him.

Mr. Banna was seized by the Central Intelligence Agency in 2002 in Gambia, where he had gone on a business trip. British intelligence agencies had been monitoring him because of his ties to Islamic radicals here and had alerted the C.I.A. of his travel to Gambia. But the agency had specifically requested that he not be arrested, according to a recent British government report.

The four other men are Shaker Aamer, Omar Deghayes, Binyam Mohamed and Abdennur Sameur.

Several Bush administration officials said that particular scrutiny would be given to Mr. Aamer and Mr. Mohamed, who are considered more serious threats than the others.

Mr. Mohamed, a gangly Ethiopian who had lived in Washington for two years as a teenager before his family moved to Britain, was seized in Pakistan in April 2002 and turned over to the Americans. His was one of the early cases of rendition, the Bush administration’s policy of secretly moving suspected terrorists to third countries for interrogation.

Mr. Mohamed was taken to Morocco, Mr. Stafford Smith said, where he was held and interrogated for 18 months. According to the accounts he gave to his lawyer, he was brutally abused there. American officials initially said he was an accomplice of Jose Padilla in a plot to detonate a dirty bomb in the United States. That charge against Mr. Padilla was eventually dropped. Mr. Mohamed has not been formally charged.

Mr. Deghayes, who moved to Britain from Libya in 1986, was seized in Pakistan in January 2002. He has been held in Guantánamo as an enemy combatant, and military officials have contended that he traveled from Pakistan to Afghanistan under the guidance of Al Qaeda, and that he had a good relationship with Osama bin Laden.

The American evidence against him also included a photograph that was said to show him in Chechnya. At Mr. Deghayes’s administrative review board hearing at Guantánamo in 2005, he generally denied links to Al Qaeda and introduced testimony from a expert that he was not the person in the picture.

Mr. Deghayes has been a leader of hunger strikes at Guantánamo, as has Mr. Aamer, a native of Saudi Arabia. He has denied American accusations that he had ties to Al Qaeda.

The fifth detainee, Mr. Sameur, is an Algerian who fled his country in 1999 and was granted political asylum in Britain. In 2001 he went to Afghanistan, where American officials have accused him of training at a Qaeda camp, which he denies. He fled Afghanistan in October 2002, and was picked up by the Pakistani Army and turned over to the Americans.

Thom Shanker contributed reporting from Washington.

[Crafty_Dog]

Second post of the morning:

WSJ

Reason and Wiretaps
What the terrorist surveillance fight is really all about.

Wednesday, August 8, 2007 12:01 a.m. EDT

To hear the critics tell it, the warrantless wiretapping law passed by Congress this weekend is an immoral license for a mad President Bush and his spymasters to eavesdrop on all Americans. For those willing to believe such things, mere facts don't matter. But for anyone still amenable to reason, the deal is worth parsing for its national security precedents, good and bad. The next Democratic President might be grateful.

The good news is that the new law will at least allow the National Security Agency to monitor terrorist communications again. That ability has been severely limited since January, when Mr. Bush agreed to put the wiretap program under the supervision of a special court created by the 1978 Foreign Intelligence Surveillance Act (FISA). The new law provides a six-month fix to the outdated FISA provision that had defined even foreign-to-foreign calls as subject to a U.S. judicial warrant.

The first duty of Director of National Intelligence Michael McConnell is to prevent the next terrorist attack, and it's disgraceful that some have vilified him for trying to revive our intelligence ability in that cause. His effort has been no different, and no less honorable, than a general arguing for more troops.





But it's important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn't merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror. For a flavor of this strategy, spend a few minutes on the ACLU's Web site.
In that regard, even the weekend deal is far from encouraging. For example, the new law does not offer explicit liability protection for telecom companies that cooperate with the wiretap program. Instead, the most Democrats would accept is language to "compel" the cooperation of these companies going forward. The Administration hope is that this "I had no choice" claim will be an adequate defense against future lawsuits, but in the U.S. tort lottery that is no sure thing.

Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn't merely to open another rich target for the tort bar. It is to use lawsuits to raise the costs for private actors of cooperating with the executive branch. Even if they lose at the ballot box or in Congress, these antiwar activists still might be able to hamstring the executive via the courts.

That's also the explicit strategy in trying to expand the reach of the special FISA court to all wiretaps, foreign and domestic. The left is howling that the NSA will no longer need a FISA warrant for each wiretap (of which there were 2,176 in 2006). That's the best part of the bill. But the Administration did concede to let FISA judges review the procedures for wiretapping up to 120 days after the fact. If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.

This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.

The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.

In the weekend deal, the Bush Administration grants the FISA court power to review procedures even for foreign communications, which is unprecedented. Under Article III of the Constitution, the courts are granted the power to settle disputes. The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation's judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.

As for the possibility that Presidents will abuse this power, fear of exposure is an even more powerful disincentive than legal constraint. The political costs of being seen as spying on Americans for partisan ends would be tremendous. Congress, on the other hand, is only too happy to use the courts to squeeze executive power, in part because this allows the Members to dodge responsibility themselves. If there's another terror attack, the President still gets the blame even if some unelected judge refused a warrant. Congress can blame everyone else.

This is a statutory version of Senator Jay Rockefeller's famous decision to write a letter to Dick Cheney objecting to the warrantless wiretap program after he'd been briefed on it, but then sticking the letter (literally) in a drawer. Only after the program was exposed did he unearth the letter to show he'd objected all along, though he'd done nothing at all to stop it.





The weekend law expires in six months, and it would be nice to think enough Democrats would put aside this ideological obsession to work with Mr. Bush on a more permanent wiretap statute. Given the current state of Beltway rationality, we aren't optimistic.
As negotiations unfold, we hope the President resists any deal that compromises the ability of his successors to defend the country. In 18 months, Mr. Bush will be leaving office, but the terrorist threat will continue. The stakes are too large for any President to accept new judicial limitations on his ability to track terrorists at home or abroad. Rather than accept such limits, Mr. Bush could use Congressional recalcitrance as an opportunity to withdraw the terrorist surveillance program from FISA authority, and thus toss the issue squarely in the middle of the 2008 Presidential campaign.

[Crafty_Dog]

The Padilla Verdict
August 17, 2007; Page A12
It took a Miami jury merely a day and a half to convict Jose Padilla, alias Abdullah al-Muhajir, and two co-defendants of terrorism charges that carry a sentence of life imprisonment.

The quick verdict yesterday suggests that the prosecution's evidence in the three-month trial was overwhelming and unambiguous. It ought to quiet opponents of the war on terror who claimed that the reason Padilla was originally held as an enemy combatant -- because he was believed to have been involved in a plot to set off a radioactive "dirty bomb" in a U.S. city -- was a figment of President Bush's or John Ashcroft's imagination.

Of course, it won't. Watch instead as they cite Padilla's conviction as evidence for another favorite claim: that the civilian criminal-justice system is adequate to the task of preventing terrorism, and thus the military shouldn't be holding enemy combatants at all.

In fact, Padilla's case demonstrates the opposite. Before yesterday's verdict, war foes were sneering that prosecutors weren't even charging him in the dirty-bomb plot. That is true, but the reason he wasn't charged for that crime is that the case was procedurally deficient: The military didn't read Padilla his Miranda rights or provide him a lawyer when it interrogated him. Padilla was convicted instead of conspiracy to murder, kidnap and maim people overseas. That means that if war opponents had their way, and if Padilla had been guilty only of planning to kill Americans on U.S. soil, he would walk free today.

This problem may be remediable in a similar future case. No doubt the next time a terrorist is picked up at O'Hare International Airport, FBI agents will read him his rights and make sure to honor them. But it is unreasonable to expect soldiers, Marines and intelligence officers on foreign battlefields to follow police procedures at the same time they're dodging bullets and trying to extract information to prevent attacks on Americans back home. The Padilla decision is reassuring in many respects, but it is not a model for the future handling of enemy combatants.

WSJ

[Crafty_Dog]

 
 
   
     
   
 
 

 
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Jose Padilla Makes Bad Law
By MICHAEL B. MUKASEY
August 22, 2007; Page A15

The apparently conventional ending to Jose Padilla's trial last week -- conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization -- gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent.

 
Jose Padilla, in an undated driver's license photo
He will be sentenced -- likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.

It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.

Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.

Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive -- a device known as a dirty bomb.

However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.

The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned -- but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.

Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.

Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.

The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.

The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.

The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.

In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled -- as it is in all cases that charge conspiracy -- to turn over a list of unindicted co-conspirators to the defendants.

That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.

Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.

The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.

Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and -- except for two who had cooperated -- executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.

In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.

Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement -- made without benefit of legal counsel -- could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.

The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.

First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates -- beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001 -- criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules -- in a case it has agreed to hear relating to Guantanamo detainees -- that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation -- a practice, known as rendition, followed during the Clinton administration.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.

There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.

These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11 -- and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.

Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.

Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.

 
WSJ

[Crafty_Dog]

Marines’ Trials in Iraq Killings Are Withering
By PAUL von ZIELBAUER
Published: August 30, 2007

CAMP PENDLETON, Calif., Aug. 29 — Last December, when the Marine Corps charged four infantrymen with killing Iraqi civilians in Haditha, Iraq, in 2005, the allegation was as dark as it was devastating: after a roadside bomb had killed their buddy, a group of marines rampaged through nearby homes, massacring 24 innocent people.

Status of the Cases In Iraq and in the United States, the killings were viewed as cold-blooded vengeance. After a perfunctory military investigation, Haditha was brushed aside, but once the details were disclosed, the killings became an ugly symbol of a difficult, demoralizing war. After a fuller investigation, the Marines promised to punish the guilty.

But now, the prosecutions have faltered. Since May, charges against two infantrymen and a Marine officer have been dismissed, and dismissal has been recommended for murder charges against a third infantryman. Prosecutors were not able to prove even that the killings violated the American military code of justice.

Now their final attempt to get a murder conviction is set to begin, with a military court hearing on Thursday for Staff Sgt. Frank D. Wuterich, the last marine still facing that charge. He is accused of killing 18 Iraqis, including several women and children, after the attack on his convoy.

If the legal problems that have thwarted the prosecutors in other cases are repeated this time, there is a possibility that no marine will be convicted for what happened in Haditha.

Nor is it yet clear whether officers higher up the chain of command than Sergeant Wuterich will be held responsible for the inadequate initial investigation.

At least one of the four Marine officers charged last December for failing to investigate the civilian deaths appears to be headed to court-martial. That officer, Lt. Col. Jeffrey R. Chessani, commander of Third Battalion, First Marines, “did not take personal action to fully investigate the actions leading to civilian deaths,” concluded Col. Christopher C. Conlin, the officer who examined the evidence.

But the case against Capt. Randy W. Stone, the battalion lawyer charged with failing to find out why so many civilians had been killed, was thrown out by Lt. Gen. James N. Mattis, whose decisions in the Haditha prosecutions are final. Charges against First Lt. Andrew A. Grayson, an intelligence officer, are in limbo because of his argument that the Marine Corps has discharged him.

In a wide range of cases involving abuses by American troops in Iraq and Afghanistan, prosecutions have tended to focus on enlisted men and noncommissioned officers — those accused of having personally committed the acts — not on officers who commanded the units. And while there have been numerous convictions, there have also been many cases in which plea arrangements allowed for lesser punishments, or in which charges were dropped or found not to be warranted.

The sole officer to face criminal charges in the abuses of prisoners at Abu Ghraib, Iraq, was convicted Tuesday on only one minor charge and will be reprimanded, Reuters reported, quoting an Army announcement. The officer, Lt. Col. Steven L. Jordan, faced five years in prison and dismissal from the Army, but a court-martial decided on the milder penalty, the Army said.

The court-martial acquitted him of the charge of being responsible for cruel treatment of detainees at Abu Ghraib.

Experts on military law said the difficulty in prosecuting the marines for murder is understandable, given that action taken in combat is often given immunity under the Uniform Code of Military Justice.

“One could view this as a case crumbling around the prosecutor’s feet, or one could see this as the unique U.C.M.J. system of justice in operation,” said Gary D. Solis, a former Marine judge who teaches the laws of war at Georgetown University Law Center and at West Point.

Prosecuting the Haditha case was especially difficult because the killings were not thoroughly investigated when they first occurred. Months later, when the details came to light, there were no bodies to examine, no Iraqi witnesses to testify, no damning forensic evidence.

On the other hand, some scholars said the spate of dismissals has left them wondering what to think of the young enlisted marines who, illegally or not, clearly killed unarmed people in a combat zone.

“It certainly erodes that sense that what they did was wrong,” Elizabeth L. Hillman, a legal historian who teaches military law at Rutgers University School of Law at Camden, said of the outcomes so far. “When the story broke, it seemed like we understood what happened; there didn’t seem to be much doubt. But we didn’t know.”
=======
Page 2 of 2)



Walter B. Huffman, a former Army judge advocate general, said it was not uncommon in military criminal proceedings to see charges against troops involved in a single episode to fall away under closer examination of evidence, winnowing culpability to just one or two defendants.

Status of the Cases When Sergeant Wuterich, the soft-spoken squad leader who faces the most extensive murder charges in the Haditha matter, walks into court here on Thursday, “all the prosecutorial attention is now going to center on him,” Mr. Solis said.

Sergeant Wuterich’s lawyers have an uphill legal fight. First, unlike the other marines who faced murder charges, Sergeant Wuterich is charged with the close-range killing of five unarmed men who were ordered out of a vehicle that rolled up near the scene.

Also, as a noncommissioned officer and the ranking member of the squad, Sergeant Wuterich may be used by prosecutors to argue that he had a greater responsibility to discern proper targets and avoid civilian casualties. He also led the attack against or was present in every house where civilians were killed.

But the earlier cases show that the defense has some opportunities, too.

The presiding officer, Lt. Col. Paul J. Ware, is the same Marine lawyer who conducted hearings for Justin L. Sharratt and Stephen B. Tatum, two other lance corporals accused of killing a total of five Iraqis in three homes in Haditha.

Colonel Ware later recommended dismissing the charges against those two men, and he has said the killings should be viewed in the context of combat against an enemy that ruthlessly employs civilians as cover. He warned that murder charges against marines could harm the morale of troops still in Iraq.

General Mattis’s statements expressing sympathy for the plight of other enlisted marines whom he cleared of wrongdoing in Haditha may indicate his willingness to see Sergeant Wuterich’s case in a similar light.

Regardless of what happened to charges against the other defendants, there is still great public pressure on the Marine Corps to investigate and punish any wrongdoing in a case in which so many civilians died.

“We can’t say those guys didn’t commit a crime,” said Michael F. Noone Jr., a retired Air Force lawyer and law professor at Catholic University of America. “We can only say that after an investigation, there was not sufficient evidence to prosecute.”

[Crafty_Dog]

Listening In
September 8, 2007; Page A12
When the German government announced arrests this week in a terrorist plot against American and German targets inside Germany, one telling detail got little notice: Two of the suspects were identified, in part, based on telephone conversations intercepted by American intelligence.

Let's replay that. U.S. intelligence intercepted cell phone calls made by German nationals in Pakistan. The U.S. passed that information to the German government, which proceeded to roll up a plot to blow up targets that may have included Ramstein Air Base and the Frankfurt airport.

 HOT TOPIC

 
Debate Turns to Telecom ImmunityThis week, by unhappy coincidence, the House Judiciary Committee began hearings on the National Security Agency's al Qaeda wiretapping program. That program was given a six-month reprieve last month. But Democrats in Congress are trying to prevent a further extension, if they can muster the votes to oppose a program that continues to protect American lives, a la this week in Germany.

If they lack the votes, liberals are already working on a Plan B, which is to try to scare U.S. telecommunications companies from cooperating with the NSA. This would be accomplished by denying them immunity from civil lawsuits. Verizon and AT&T are among the companies already sued, and they face billions of dollars in potential liability.

The Protect America Act that passed last month gave the phone companies protection from civil liability for the six-month duration of the law, but it offered no protection for their earlier cooperation in the aftermath of 9/11. The White House requested such retrospective immunity, but it was blocked by Democrats. A cynic might conclude this is one more example of Democrats doing the bidding of their tort lawyer financiers. But let's assume their motives aren't that ugly.

That still leaves Democrats tacitly endorsing a strategy of using lawsuits to gut the wiretapping program. Director of National Intelligence Mike McConnell has said that the potential liabilities are of an order of magnitude sufficient to bankrupt some of our biggest telcos. And even if the suits are ultimately deemed meritless in court, they could well involve sufficient costs to make the companies wary of cooperating in the future. It has already been reported that at least some phone companies are contemplating suing the government to block the enforcement of any wiretapping law that does not immunize them. That's how seriously they take the liability risk.

In this context, this week's debate on Capitol Hill was often out of this world. For example, Florida Democrat Debbie Wasserman-Schultz took the mic to pose a hypothetical. Suppose her child was emailing with a child in Iraq. Wouldn't current law allow the NSA to read those emails? Former Congressman Bob Barr, who was a witness, allowed that this possibility "ought to be a very major concern for certainly all of us."

University of Virginia Professor Robert Turner -- a rare voice of reason during the House hearing -- replied that that "If we say [the NSA] can't look at anything that's got [a] U.S. person involved without a warrant, we're going to give [Osama bin Laden] the easiest way to immunize his whole communication system." In other words, all a terrorist would have to do to mask his communications would be to cc: an American email address, putting it off limits to American surveillance.

Which brings us back to those Germans and their cell phones in Pakistan. Critics of the surveillance program will argue that they have no problem with America eavesdropping on Germans making phone calls to terrorists, so the example is irrelevant to the controversy. But suppose those Germans were calling their fellow-travelers in America, to plot an attack not against Ramstein, but against Fort Bragg. Does anyone really think that phone call would be less important to intercept than those in Germany?

If Democrats want to vote against warrantless wiretaps, they should do so openly and accept the political consequences. What they shouldn't be able to do is hide their opposition behind lawsuits or the judiciary in such a way that guts the program without having to take any responsibility for doing so.

WSJ

[Crafty_Dog]

Jose Padilla Makes Bad Law
Terror trials hurt the nation even when they lead to convictions.

BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT

(Editor's note: This morning President Bush nominated Mr. Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site Aug. 22.)

The apparently conventional ending to Jose Padilla's trial last week--conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization--gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent. He will be sentenced--likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the Supreme Court of the United States.

It may be claimed that Padilla's odyssey is a triumph for due process and the rule of law in wartime. Instead, when it is examined closely, this case shows why current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism.





Padilla's current journey through the legal system began on May 8, 2002, when a federal district court in New York issued, and FBI agents in Chicago executed, a warrant to arrest him when he landed at O'Hare Airport after a trip that started in Pakistan. His prior history included a murder charge in Chicago before his 18th birthday, and a firearms possession offense in Florida shortly after his release on the murder charge.
Padilla then journeyed to Egypt, where, as a convert to Islam, he took the name Abdullah al Muhajir, and traveled to Saudi Arabia, Afghanistan and Pakistan. He eventually came to the attention of Abu Zubaydeh, a lieutenant of Osama bin Laden. The information underlying the warrant issued for Padilla indicated that he had returned to America to explore the possibility of locating radioactive material that could be dispersed with a conventional explosive--a device known as a dirty bomb.

However, Padilla was not detained on a criminal charge. Rather, he was arrested on a material witness warrant, issued under a statute (more than a century old) that authorizes the arrest of someone who has information likely to be of interest to a grand jury investigating a crime, but whose presence to testify cannot be assured. A federal grand jury in New York was then investigating the activities of al Qaeda.

The statute was used frequently after 9/11, when the government tried to investigate numerous leads and people to determine whether follow-on attacks were planned--but found itself without a statute that authorized investigative detention on reasonable suspicion, of the sort available to authorities in Britain and France, among other countries. And so, the U.S. government subpoenaed and arrested on a material witness warrant those like Padilla who seemed likely to have information.

Next the government took one of several courses: it released the person whose detention appeared on a second look to have been a mistake; or obtained the information he was thought to have, and his cooperation, and released him; or placed him before a grand jury with a grant of immunity under a compulsion to testify truthfully and, if he testified falsely, charge him with perjury; or developed independent evidence of criminality sufficiently reliable and admissible to warrant charging him.

Each individual so arrested was brought immediately before a federal judge where he was assigned counsel, had a bail hearing, and was permitted to challenge the basis for his detention, just as a criminal defendant would be.

The material witness statute has its perils. Because the law does not authorize investigative detention, the government had only a limited time in which to let Padilla testify, prosecute him or let him go. As that limited time drew to a close, the government changed course. It withdrew the grand jury subpoena that had triggered his designation as a material witness, designated Padilla instead as an unlawful combatant, and transferred him to military custody.

The reason? Perhaps it was because the initial claim, that Padilla was involved in a dirty bomb plot, could not be proved with evidence admissible in an ordinary criminal trial. Perhaps it was because to try him in open court potentially would compromise sources and methods of intelligence gathering. Or perhaps it was because Padilla's apparent contact with higher-ups in al Qaeda made him more valuable as a potential intelligence source than as a defendant.

The government's quandary here was real. The evidence that brought Padilla to the government's attention may have been compelling, but inadmissible. Hearsay is the most obvious reason why that could be so; or the source may have been such that to disclose it in a criminal trial could harm the government's overall effort.





In fact, terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence. For example, in the course of prosecuting Omar Abdel Rahman (the so-called "blind sheik") and others for their role in the 1993 World Trade Center bombing and other crimes, the government was compelled--as it is in all cases that charge conspiracy--to turn over a list of unindicted co-conspirators to the defendants.
That list included the name of Osama bin Laden. As was learned later, within 10 days a copy of that list reached bin Laden in Khartoum, letting him know that his connection to that case had been discovered.

Again, during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.

The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.

Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.

In any event, Padilla was transferred to a brig in South Carolina, and the Supreme Court eventually held that he had the right to file a habeas corpus petition. His case wound its way back up the appellate chain, and after the government secured a favorable ruling from the Fourth Circuit, it changed course again.

Now, Padilla was transferred back to the civilian justice system. Although he reportedly confessed to the dirty bomb plot while in military custody, that statement--made without benefit of legal counsel--could not be used. He was instead indicted on other charges in the Florida case that took three months to try and ended with last week's convictions.





The history of Padilla's case helps illustrate in miniature the inadequacy of the current approach to terrorism prosecutions.
First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.





What is to be done? The Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 appear to address principally the detainees at Guantanamo. In any event, the Supreme Court's recently announced determination to review cases involving the Guantanamo detainees may end up making commissions, which the administration delayed in convening, no longer possible.
There have been several proposals for a new adjudicatory framework, notably by Andrew C. McCarthy and Alykhan Velshi of the Center for Law & Counterterrorism, and by former Deputy Attorney General George J. Terwilliger. Messrs. McCarthy and Velshi have urged the creation of a separate national security court staffed by independent, life-tenured judges to deal with the full gamut of national security issues, from intelligence gathering to prosecution. Mr. Terwilliger's more limited proposals address principally the need to incapacitate dangerous people, by using legal standards akin to those developed to handle civil commitment of the mentally ill.

These proposals deserve careful scrutiny by the public, and particularly by the U.S. Congress. It is Congress that authorized the use of armed force after Sept. 11--and it is Congress that has the constitutional authority to establish additional inferior courts as the need may be, or even to modify the Supreme Court's appellate jurisdiction.

Perhaps the world's greatest deliberative body (the Senate) and the people's house (the House of Representatives) could, while we still have the leisure, turn their considerable talents to deliberating how to fix a strained and mismatched legal system, before another cataclysm calls forth from the people demands for hastier and harsher results.

Mr. Mukasey was the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.

WSJ

[G M]

The WSJ has it exactly right. The legal system isn't designed to fight this war.

[Crafty_Dog]

Another previous article by Mukasey from this morning's WSJ:

The Spirit of Liberty'
Before attacking the Patriot Act, try reading it.

BY MICHAEL B. MUKASEY
Monday, September 17, 2007 2:00 p.m. EDT

(Editor's note: This morning President Bush nominated Judge Mukasey as attorney general. This article appeared in The Wall Street Journal and on this Web site May 10, 2004.)

Learned Hand, among the last century's greatest judges, defined the spirit of liberty 60 years ago as "the spirit which is not too sure that it is right." We must consider what message we can take from those words today.

We are now in a struggle with an extremism that expresses itself in the form of terror attacks, and in that we face what is probably the gravest threat to this country's institutions, if not to its physical welfare, since the Civil War. When one tries to assess people who can find it in themselves to fly airplanes into buildings and murder 3,000 of us in a single morning, whatever else you can say about such people, they are very sure that they are right; and wouldn't it be music to their ears to hear that our spirit says we're not too sure that we are right?





What measures we should take to protect ourselves, both abroad and at home, is now the subject of heated debate as we participate in a war against extremism, not so much to make the world safe for democracy as to achieve a more modest-sounding but, I would suggest, no less important goal--to make the world safe for us. Regrettably, like many debates, our current one already has seen its share of half-truths and outright falsehoods.
They began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide. That is not many when you realize that they investigate not only terrorism, but also every other federal crime aside from counterfeiting, tax evasion and mail fraud; that they share responsibility for drug investigations with the Drug Enforcement Administration--a pretty hefty set of assignments--and that they had numerous leads as to those responsible for the attack on Sept. 11. Under those circumstances--with many leads to work on and relatively few agents to do that work--does it really stand to reason that they spent their time rounding people up based on nothing other than religion and ethnicity?

No doubt there were people taken into custody, whether on immigration warrants or material witness warrants, who in retrospect should not have been. If those people have grievances redressable under the law, those grievances can be redressed. But we should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either overinclusive or underinclusive. There are consequences both ways. The consequences of overinclusiveness include condemnations. The consequences of underinclusiveness include condolences.

More recently, a statute called the USA Patriot Act has become the focus of a good deal of hysteria, some of it reflexive, much of it recreational.

My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.

First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.

In addition to the library association, many towns and villages across the country, notably Berkeley, Calif., and Amherst, Mass., have announced that they will not cooperate with any effort to gather evidence under the statute. A former vice president has called for the statute's repeal, and a former presidential candidate has called the act "morally wrong," "shameful" and "unconstitutional."





I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law "Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism." You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.
Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists. Recall that when Saddam Hussein was captured, he had with him $750,000 in $100 bills.

The statute also breaks down the wall that has separated intelligence gathering from criminal investigation. It allows intelligence information to be shared with criminal investigators, and information that criminal investigators unearth to be shared with those conducting intelligence investigations. I think many people would believe this makes sense, although a series of bureaucratic decisions and a stark misreading of the Foreign Intelligence Surveillance Act for years made this impossible, and thus prevented the government from fulfilling its most basic responsibility under the Constitution: "to provide for the common defense [and] promote the general Welfare."

What difference would this make? Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.

The provisions in the law that have generated the most opposition have to do with investigative techniques, including electronic surveillance and the gathering of business records. The electronic surveillance provisions give investigators access to cable-based communications, such as e-mail, on the same basis as they have long had access to telephone communications, and give them access to telephone communications in national security cases on the same basis on which they already have such access in drug cases.

I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.

The statute also codifies the procedure for issuing and executing what are called "sneak and peek" warrants that allow agents, with court authorization, to enter premises, examine what is there and then leave. These warrants had been issued by courts before the Patriot Act was passed, including my own court--although I have never issued one myself--on the fairly simple logic that if it is reasonable under the Fourth Amendment to enter premises and seize things, it should also be reasonable to enter premises and not seize things. The statute permits agents to delay disclosure of their presence to the person who controls the premises, again with court authorization. Here too, the logic seems obvious: If you leave behind a note saying "Good afternoon, Mr. bin Laden, we were here," that might betray the existence of an investigation and cause the subjects to flee or destroy evidence. There are analogous provisions that were in existence long before the Patriot Act permitting a delay in notifying people who are overheard on wiretaps, and for the same reason.

What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.

Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11--the case of the "Unabomber," Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library--a devastating bit of corroborative circumstantial evidence.

Like any other act of Congress, the Patriot Act should be scrutinized, criticized and, if necessary, amended. But in order to scrutinize and criticize it, it helps to read what is actually in it. It helps not to conduct the debate in terms that suggest it gives the government the power to investigate us based on what we read, or that people who work for the government actually have the inclination to do such a thing, not to mention the spare time.





As we participate in this debate on what is the right course to pursue, I think it is important to remember an interesting structural feature of the Constitution we all revere. When we speak of constitutional rights, we generally speak of rights that appear not in the original Constitution itself, but rather in amendments to the Constitution--principally the first 10. Those amendments are a noble work, but it is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on, the part you will never see mentioned in any flyer or hear at any rally, that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.
A bill of rights was omitted from the original Constitution over the objections of Patrick Henry and others. It may well be that those who drafted the original Constitution understood that if you give equal prominence to the provisions creating the government and the provisions guaranteeing rights against the government--God-given rights, no less, according to the Declaration of Independence--then citizens will feel that much less inclined to sacrifice in behalf of their government, and that much more inclined simply to go where their rights and their interests seem to take them.

So, as the historian Walter Berns has argued, the built-in message--the hidden message in the structure of the Constitution--is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt. If we keep that in mind, then the spirit of liberty will be the spirit which, if it is not too sure that it is right, is at least sure enough to keep itself--and us--alive.

Mr. Mukasey is chief judge of the U.S. District Court, Southern District of New York. This is adapted from a speech he gave last Wednesday, on his acceptance of the Learned Hand Medal for Excellence in Federal Jurisprudence.

[rogt]

http://www.latimes.com/features/books/la-et-rutten19sep19,0,334744.story?coll=la-home-middleright

DAILY BOOK REVIEW
'The Terror Presidency' by Jack Goldsmith
A one-time insider details the Bush administration's legal deliberations on terrorists and presidential power.
By Tim Rutten
Los Angeles Times Staff Writer

September 19, 2007

On the long shelf of books written from inside President George W. Bush's administration, none is more fundamentally significant, nor as challenging to the preconceptions of left and right, as Jack Goldsmith's "The Terror Presidency: Law and Judgment Inside the Bush Administration."

Goldsmith, now a law professor at Harvard University, is one of those rare legal scholars who write with unforced clarity. He is also a committed philosophical conservative in the American tradition, deferential to precedent and custom, reverential toward democratic institutions as expressed in the Constitution and deeply learned in the history of presidential power exercised in the face of wartime exigencies.

That such a man could survive only eight months inside the Bush administration is the most severe indictment of this government's conduct yet leveled.

Goldsmith, then on leave from the University of Chicago law school, was serving as legal advisor to the Defense Department in October 2003 when he was asked to head the Justice Department's Office of Legal Counsel, which advises the White House on the legality of the president's proposed actions. Goldsmith was a surprise choice for the post, and his name surfaced only after conservative legal scholar John Yoo's nomination was vetoed by then-Atty. Gen. John Ashcroft, who distrusted Yoo as too close to the White House and, particularly, to Vice President Dick Cheney's staff.

At the time of his own nomination, the administration's inner circle knew little of Goldsmith beyond that he was a conservative -- often linked mistakenly in scholarly publications with his then-friend Yoo.

There were, however, significant differences in their legal analysis of presidential wartime powers, an issue that preoccupies this administration. Yoo believes the chief executive's wartime powers derive from a so-called "unitary theory" of executive powers and are inherent in the office. There are no serious scholars of the Founders and their era who share Yoo's views on this issue.

Goldsmith, by contrast, has long been concerned -- from a conservative perspective -- with the potential infringements of international agreements on American popular sovereignty. He also has read and reflected deeply on the wartime presidencies of Abraham Lincoln and Franklin D. Roosevelt. While readers may differ from the conclusions he draws concerning those presidents and their wartime conduct, his arguments are clear, formidable and authoritative.

All of this quickly made Goldsmith anathema inside the Bush White House. By the time he resigned as head of the Office of Legal Counsel, he had withdrawn more legal opinions rendered by his predecessors than all previous counsels combined. Among those were Yoo's now-infamous memos justifying the use of torture to interrogate suspected terrorists. As Goldsmith writes, he came to believe those opinions rested on legal foundations "sloppily reasoned, overboard, and incautious in asserting extraordinary constitutional authorities on behalf of the president."

One of several crucial areas illuminated by this book is the role the Bush administration and, particularly, Cheney have found for a relatively small cadre of zealots, who have acted as enablers for an unprecedented expansion of presidential powers that has been characterized as conservative but is in fact authoritarian. Yoo, of course, is one of these, and so too is Cheney's former legal counsel, now chief of staff, David Addington.

When Goldsmith went to the White House to deliver his first opinion as head of the Office of Legal Counsel, he argued that the Fourth Geneva Convention, which governs the conduct of occupying powers, did in fact cover the U.S. treatment of Iraqi insurgents. Addington exploded, "The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision."

On another occasion, in spring 2004, Goldsmith was asked to evaluate an "important counterterrorism initiative." When he told the White House that "the Justice Department could not support the initiative's legality," Addington reacted "in disgust," snapping, "If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands."

Still, in his entirely measured way, Goldsmith muses that "Addington was. . . not on entirely thin ice in thinking that President Bush, like Franklin Roosevelt and Abraham Lincoln, had the power under the Constitution to do what was necessary to save the country in an emergency. But Addington took this idea further than Roosevelt and Lincoln" in his categorical assertion that Congress never need be consulted by the executive:

"Lincoln claimed and exercised similar emergency powers, but he too was sensitive to Congress' prerogatives and constitutional propriety. He invoked the emergency power to exercise powers reserved for Congress. But he did so only until Congress could meet in session and, at Lincoln's invitation, either ratify or reject his actions.

"Addington had no such instincts. To the contrary, long before 9/11 he and his boss had set out to reverse what they saw as Congress' illegitimate decades-long intrusions on 'unitary' executive power. . . . This underlying commitment to expanding presidential power distinguishes the Bush Administration from the Lincoln and Roosevelt administrations. . . . Vice President Cheney and David Addington -- and through their influence, President Bush and Alberto Gonzales --. . . shared a commitment to expanding presidential power that they had long been anxious to implement."

Goldsmith concludes that Bush's "accomplishments will likely always be dimmed by our knowledge of his administration's strange and unattractive views of presidential power. The American people know better today than during the Civil War and World War II that Lincoln and Roosevelt, in [Arthur] Schlesinger's words, regarded 'executive aggrandizement as but a means to a great end, the survival of liberty and law, of government by, for, and of the people,' and that 'they used emergency power, on the whole, with discrimination and restraint. . . .' We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln's and Roosevelt's tenets of democratic leadership in crisis."

The rhetorical impulse is to end on that quote, congenial as it is to the reviewer's own opinions on the matter. Goldsmith's entire approach to these vital questions, however, is a rebuke to the narrowly ideological or merely rhetorical impulse and all the props of zealotry that have become central to our politics.

"The Terror Presidency" is an important book -- and a genuine service to the national interest -- on several levels, none more pressing than its implicit demand for a sober consideration of the current historical moment in all its complexity. As Goldsmith said in a recent interview:

"Usually the restrictions on liberties during wartime are temporary. The fight against al Qaeda and its affiliates may last a long time. As a country we need to figure out a way to give the presidency the extraordinary authorities it needs to keep us safe, while at the same time minimizing unnecessary intrusion on our liberties. That is, of course, easier said than done."

timothy.rutten@latimes.com

[G M]

Nothing President Bush has done begins to compare with what Lincoln or FDR did to preserve the US at times of war.

[rogt]

The difference I see between W and Lincoln/Roosevelt is here:

The American people know better today than during the Civil War and World War II that Lincoln and Roosevelt, in [Arthur] Schlesinger's words, regarded 'executive aggrandizement as but a means to a great end, the survival of liberty and law, of government by, for, and of the people,' and that 'they used emergency power, on the whole, with discrimination and restraint. . . .' We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln's and Roosevelt's tenets of democratic leadership in crisis."

Would you honestly characterize Bush's exercise of emergency war powers as "with discrimination and restraint"?

[G M]

Bush has done less than he should have, not more. Militarizing the borders should have started 9/12/2001. Aviation security still essentially sucks, despite the billions of dollars spent, due to political correctness.

Liberal icon FDR had Americans of Japanese ancestry rounded up into camps for the duration of the war. Give me something done by this president that even begins to approach that.

[rogt]

Woof GM,

I certainly won't defend FDR's internment of Japanese Americans, but how do you suppose you would have felt about it had you been around back then?  Are you saying you would've opposed it?  Or would you have been one of the people accusing it's opponents of risking our security for "political correctness" (or whatever term they would have used back then)?  It's likely that our previous experience with internment is the only reason Bush hasn't ordered something like it today.

There are a few things Bush has done that are pretty well beyond what any other wartime president has ordered, but above all I would argue that establishing secret (and not-so-secret) prisons outside the jurisdiction of US laws solely for the purpose of torturing "suspects" (who have no means of challenging their detention or even letting anybody know they're there) is worse than our internment of Japanese Americans.

Rog

[G M]

I had a conversation with a friend in the days after 9/11, we both agreed how we now understood how the internment of American citizens happened in WWII. Funny enough, J. Edgar Hoover was a strong opponent of the internment, but FDR overruled him.

The Clinton administration started the policy of "rendition". http://www.fas.org/irp/offdocs/pdd39.htm  http://www.fas.org/irp/offdocs/pdd-62.htm

I quote that right wing group, the ACLU:

URL: http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html
 
Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where -- in the CIA's view -- federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards. This program is commonly known as "extraordinary rendition."

The current policy traces its roots to the administration of former President Bill Clinton. Following the attacks of September 11, 2001, however, what had been a limited program expanded dramatically, with some experts estimating that 150 foreign nationals have been victims of rendition in the last few years alone. Foreign nationals suspected of terrorism have been transported to detention and interrogation facilities in Jordan, Iraq, Egypt, Diego Garcia, Afghanistan, Guantánamo, and elsewhere. In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."

Administration officials, backed by Department of Justice legal memoranda, have consistently advanced the position that foreign nationals held at such facilities, outside U.S. sovereign territory, are unprotected by federal or international laws. Thus, the rendition program has allowed agents of the United States to detain foreign nationals without any legal process and, primarily through counterparts in foreign intelligence agencies, to employ brutal interrogation methods that would be impermissible under federal or international law, as a means of obtaining information from suspects.

The Department of Justice's arguments notwithstanding, the extraordinary rendition program is illegal. It is clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment, ratified by the United States in 1992, and by congressionally enacted policy giving effect to CAT. As Congress made clear, it is the policy of the United States not to:

expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
Foreign Affairs Reform and Restructuring Act of 1998, ("FARRA"), Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (Oct. 21, 1998), reprinted in 8 U.S.C. § 1231, Historical and Statutory Notes (1999) (emphasis added).

Congress has recently reaffirmed this policy, providing in an amendment to the Emergency Supplemental Appropriations Act for the Iraq War and Tsunami Relief, 2005 (P.L. 109-13) that it will not authorize the funding of any program that "subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." P.L. 109-13, § 1031 (2005). The President, too, has confirmed that it is the policy and practice of the United States neither to use torture nor to hand over detainees to countries that use torture. See www.whitehouse.gov/news/releases/2005/04/20050428-9.html.

[Crafty_Dog]

GM:

That point about rendition beginning under Clinton is very interesting.  I didn't know that.

Marc

[Crafty_Dog]

Big Terror Trial Shaped Views of Justice Pick
 
 
By ADAM LIPTAK
Published: September 20, 2007
On Jan. 17, 1996, after a nine-month terrorism trial and a rambling 100-minute lecture from a blind sheik found guilty of conspiring to wage war against the United States, Judge Michael B. Mukasey had had enough.

With a few terse, stern and prescient remarks, he sentenced the sheik, Omar Abdel Rahman, to life in prison. Judge Mukasey said he feared the plot could have produced devastation on “a scale unknown in this country since the Civil War” that would make the 1993 bombing of the World Trade Center, which had left six people dead, “almost insignificant by comparison.”

Long before most Americans had given deep consideration to the terrorist threat from radical Islam or to whether the criminal justice system is the right forum for trying people accused of terrorism, Judge Mukasey received an intensive education on those topics.

The vivid lessons Judge Mukasey took away from the trial — notably that the urgency of the threat requires tilting toward protecting national security even at some cost to civil liberties — have echoed through his speeches and writings. Now, as President Bush’s choice for attorney general, he is poised to put those lessons into practice.

Mr. Abdel Rahman and nine other men were convicted of plotting a “day of terror” that would have included blowing up the United Nations Building, the George Washington Bridge and the Lincoln and Holland Tunnels.

The trial, which remains the longest and most complex international terrorism case ever presented in a United States court, involved almost the entire array of national security issues that Judge Mukasey would face if confirmed as the Bush administration’s third attorney general. Those issues include the proper balance between security and liberty, between intelligence gathering and criminal prosecution, and between government secrecy and accountability.

In his writings, Judge Mukasey has made clear that, although the issues are difficult ones, he is inclined to favor security, intelligence and secrecy over the competing values.

Rules applicable in ordinary criminal cases, Judge Mukasey wrote last month in The Wall Street Journal, “do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.”

Although Judge Mukasey’s handling of the trial received praise from the appeals court and from some — but hardly all — of the lawyers involved, his writings and public remarks show that the case left him shaken and deeply skeptical about the ability of civilian courts to try people accused of terrorism without compromising national security.

Mary Jo White, the United States attorney in Manhattan at the time, said the trial was a master class for all concerned.

“I’m certain that his views were influenced by what he learned in that trial, both substantively and procedurally,” Ms. White said, referring to the detailed information presented about the nation’s enemies and the difficulty of addressing the threat in a criminal prosecution.

Ronald L. Kuby, a defense lawyer in the case, said he did not know if the trial shaped Judge Mukasey’s thinking. But he said it certainly illuminated the judge’s approach.

“He was violating the rights of Arabs before it was popular,” Mr. Kuby said. “It was very much like trying a case with two prosecutors, one of whom was wearing a black robe and who was considerably more intelligent than the one hired for the job.”

Judge Mukasey removed Mr. Kuby from the case over what the judge said were conflicts of interest. Other defense lawyers generally praised Judge Mukasey’s handling of the case.

“He ran the tightest ship you ever saw,” said Roger L. Stavis, another defense lawyer. “He’s a very kind, generous man, but also a tough law-and-order guy.”

But Mr. Stavis also wondered about whether a conventional trial was capable of addressing the charges in the case. “It doesn’t fit,” he said. “You cannot get at the problem in a discrete trial in an American courtroom.”

The case was unusual from the start. It relied, for instance, on a Civil War-era seditious conspiracy statute that made it a crime to plot to levy war on the United States.

“The tools we had to charge terrorism were appallingly bad,” said Andrew C. McCarthy, the lead prosecutor. Partly by happenstance, then, the case brought the metaphor of terrorism as a war into an American courtroom.

Judge Mukasey was concerned throughout about balancing the defendants’ rights against national security. He ordered an array of potential evidence to be disclosed to the defense, for instance, but drew the line at information he said would needlessly compromise intelligence operations.

In his Wall Street Journal article, he wrote that terrorism prosecutions “risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized.”

The risk, he wrote, is not theoretical. A list of unindicted co-conspirators provided to the defense in the 1995 trial, including Osama bin Laden, reached Mr. bin Laden in Khartoum, Sudan, within 10 days, Judge Mukasey wrote, “letting him know that his connection to that case had been discovered.”

Judge Mukasey has complained bitterly about the porous nature of criminal proceedings in other settings, too.

When Mr. Kuby, the defense lawyer, applied for a security clearance for a later trial, Judge Mukasey met with a Federal Bureau of Investigation agent to argue against the idea, saying he was convinced that Mr. Kuby had leaked sealed documents to Newsday and The New York Times.
=====

(Page 2 of 2)

“Mukasey stated that he could not imagine anyone who would be less trustworthy with sensitive information than Kuby,” a special agent’s summary of the interview said. Mr. Kuby, who did not receive the clearance and denied leaking the documents, obtained the summary through a freedom of information request.

Mr. McCarthy, the prosecutor, said the problem of unauthorized disclosures was widespread and pernicious. “The F.B.I. was leaking, too,” he said.

In remarks at the Brooklyn Law School in 2000, Judge Mukasey was also critical of the news organizations for contacting former jurors after the nine-month trial. For the jurors’ security, Judge Mukasey had allowed them to serve anonymously. “The court tries at all costs to keep that information secret,” he said.

The case also gave Judge Mukasey early exposure to the Foreign Intelligence Surveillance Act, a 1978 law that required warrants from a secret court to monitor international communications involving people in the United States.

The 1995 trial involved surveillance of four defendants based on six warrants from the secret court. Judge Mukasey ordered that the surveillance tapes be disclosed, though he denied a defense request for documents related to the warrant applications.

“Disclosure of the conversations,” the judge reasoned in a 1994 decision, “does not disclose the strategies, capabilities and techniques of those who gather information.”

As if anticipating a debate that would arise after 9/11, he added that it should be perfectly permissible to use foreign intelligence information in criminal investigations and prosecutions. “There is no contradiction, indeed there is probably often a congruence, between foreign intelligence information and evidence of criminal wrongdoing,” Judge Mukasey wrote in 1994.

His understanding of the law, at least in 2000, was imperfect. “If warrants are granted,” he said, according to a transcript of his remarks published in The Journal of Law & Policy, “an appeal can be taken to an ad hoc court.”

But F.I.S.A. litigation is a one-sided affair. When applications are granted, the government has won and would have no reason to appeal. The proceedings are kept secret from the subjects of surveillance, who do not participate and have no way to appeal. Indeed, the F.I.S.A. appeals court said in 2002 that it was hearing its first appeal — filed by the government, after a government loss. It is not known to have heard any appeals since.

Mr. McCarthy, the lead prosecutor in the 1995 trial, said the lawyers, the jury and the judge had all emerged from it transformed.

Going in, he said, “there was a great impulse, certainly in the Justice Department but also in the courts, that we had best show to the world that we can take our own worst enemies and give them due process.”

That view, Mr. McCarthy said, has turned out to be naïve, and he has proposed the creation of a new national security court to address the problem. In his Wall Street Journal article last month, Judge Mukasey said Mr. McCarthy’s proposal and similar ones “deserve careful scrutiny.”

[SB_Mig]

Senate bars bill to restore detainee rights
Wed Sep 19, 2007 5:43pm EDT

By Susan Cornwell

WASHINGTON (Reuters) - The Senate voted on Wednesday against considering a measure to give Guantanamo detainees and other foreigners the right to challenge their detention in the U.S. courts.

The legislation needed 60 votes to be considered by lawmakers in the Senate, narrowly controlled by Democrats; it received only 56, with 43 voting against the effort to roll back a key element of President George W. Bush's war on terrorism.

The measure would have granted foreign terrorism suspects the right of habeas corpus, Latin for "you have the body," which prevents the government from locking people up without review by a court.

Congress last year eliminated this right for non-U.S. citizens labeled "enemy combatants" by the government. The Bush administration said this was necessary to prevent them from being set free and attacking Americans.

The move affected about 340 suspected al Qaeda and Taliban captives held at the Guantanamo Bay naval base in Cuba. It also affects millions of permanent legal residents of the United States who are not U.S. citizens, said one of the sponsors of the bipartisan measure, Democratic Sen. Patrick Leahy of Vermont.

"Any of these people could be detained forever without the ability to challenge their detention in federal court" under the changes in law Congress made last year, Leahy said on the Senate floor. This was true "even if they (authorities) made a mistake and picked up the wrong person."

"This was a mistake the last Congress and the (Bush) administration made, based on fear," Leahy said.

But Sen. Lindsey Graham, a South Carolina Republican opposing the measure, said lawmakers should not allow "some of the most brutal vicious people in the world to bring lawsuits against their own (U.S.) troops" who had picked up the detainees on the battlefield.

Giving habeas corpus to Guantanamo detainees would "really intrude into the military's ability to manage this war," Graham said, adding that it was "something that has never been granted to any other prisoner in any other war."

"Our judges don't have the military background to make decisions as to who the enemy is," Graham told the Senate.

Congress eliminated habeas rights as part of the Military Commissions Act, which also created new military tribunals to try the Guantanamo prisoners on war crimes charges.

Congress was led by Republicans when the act was rushed through, shortly before new elections put Democrats in control.

Sen. Arlen Specter, another sponsor of the bill and a Pennsylvania Republican, noted that the right to habeas corpus was a protection against arbitrary arrest enshrined in the U.S. Constitution and dating back to the English Magna Carta of 1215.

Later this year, the U.S. Supreme Court is expected to hear arguments from lawyers from Guantanamo prisoners challenging the law to eliminate the habeas right.


I've always been a bit nervous about suspending habeas corpus as it might lead to questionable practices in the future regardless of who the detainee is. Crafty, as a lawyer, do you have a opinion re: habeas in this situation?

[G M]

Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.

[rogt]

Who here thinks the founding fathers would be OK with blacks not being slaves? 

[G M]

Quite a few, actually. The conflict over slavery almost scuttled the formation of the US. It was left unresolved in the interest of dealing with the primary issue of gaining independance from Britain.

[SB_Mig]

Who here thinks the founding fathers would have wanted jihadists to enjoy constitutional protections? "Lawfare" will be the death of us.

Sen. Arlen Specter...noted that the right to habeas corpus was a protection against arbitrary arrest enshrined in the U.S. Constitution and dating back to the English Magna Carta of 1215.

Is this a "few broken eggs" argument? Maybe we mess up a couple of times but at least we are safe the majority of the time?

My biggest beef is that habeas is suspended based on who the government decides is the bad guy. I'm not saying let the bad guys go, I'd just like to see some accountability. We seem to be holding a ton of individuals and not garnering a whole lot of convictions.

What safeguards prevent application of "non-habeas" to our own population?

[G M]

Why Civilian Trials for Terrorists are a Bad Idea   
By John Perazzo
FrontPageMagazine.com | February 6, 2007

On November 13, 2001 — two months after 9/11 — President Bush signed an Executive Order authorizing the U.S. government to try accused terrorists in military tribunals (a.k.a. military commissions) rather than in civilian courts. The president’s decision was swiftly and widely condemned by the political Left, which accused him of trampling on the civil rights and liberties of defendants who, the critics said, should be entitled to all the rights and protections afforded by the American criminal court system — where the standards that govern the admissibility of evidence are considerably stricter than the counterpart standards in military tribunals. The indicted al-Qaeda operative and U.S. citizen Jose Padilla — who was initially accused of plotting to detonate a radioactive bomb and to blow up multiple high-rise apartment buildings in an American city — became a cause celebre for the anti-tribunal chorus.

Then in June 2006 the Supreme Court ruled, with a five-Justice majority, that President Bush’s military tribunals were not authorized by federal law. This did not mean that tribunal rules were flawed or unconstitutional in any way, but only that those rules needed to be formally voted into law — or formally rejected — by Congress. In response to this decision, five months later Congress passed the Military Commissions Act of 2006, formally authorizing the adjudication of war crimes and terrorism cases in military courts. The House of Representatives vote was 253 to 168 (Republicans voted 219 to 7 in favor, Democrats 160 to 34 against); the overall Senate margin was 65 to 34 in favor.

According to the Defense Department, military tribunals, where military officers serve as the judges and jurors, are designed to deal with offenses committed in the context of warfare — including pillaging; terrorism; wilfully killing or attacking civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.

The issue of whether it is appropriate to try someone accused of the aforementioned transgressions in a military court depends upon how one answers a single overriding question: Is terrorism a matter of war, or is it a legal issue where redress should be pursued via the criminal-justice system — like robbery, vandalism, or murder? To answer this question, it is useful to have an operational definition for the term “terrorism.” The FBI places terrorism in a category clearly distinct from the crimes traditionally handled by civilian courts, defining it as the “unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

By sending American troops into Afghanistan to overthrow that nation’s al-Qaeda-sponsoring Taliban regime, President Bush signaled clearly that he considered the atrocities of 9/11 to be acts of war that merited a military response; that is, he did not view the hijackings as mere violations of criminal codes by a band of 19 outlaws, but as acts of terrorism. It would not be enough, he decided, to merely track down whoever may have personally conspired with the hijackers and try them in federal court. Fifteen years earlier, President Reagan had responded similarly to the deadly bombing of a Berlin discotheque frequented by American soldiers. Once U.S. intelligence authorities had gathered convincing evidence that Mu'ammar al-Qadhafi’s Libyan government had sponsored the attack, Reagan deemed it an act of war and, rather than standing pat until redress could be achieved in a court of law, he ordered carrier-based warplanes to strike targets in Tripoli.

The Left largely rejects the notion that the current War on Terror is a legitimate, or even an actual, war — characterizing it instead as a contrived pretext for American imperialism (and oil-grabbing) abroad, and for the erosion of civil liberties domestically. Attorneys Spencer J. Crona and Neal A. Richardson suggest that many Americans have accepted this perspective because metaphorical references to “war” abound in contemporary vernacular — references to such endeavors as the “war on poverty,” the “war on drugs,” the “war on AIDS,” and the “war on hunger.” As a result, say Crona and Richardson, people may be inclined to view the war on terror as yet another social-justice or law-enforcement undertaking that, while it might warrant some financing, certainly does not merit military action.

In addition, a significant proportion of Americans fail utterly to understand the nature of the enemy that has declared war on them. As the late Ayatollah Khomeini (a Shi’ite) of Iran announced in the wake of the 1979 hostage-taking at the U.S. Embassy in Tehran, “We are at war with infidels…I ask all Islamic nations…to join the holy war.” Today Osama bin Laden (a Sunni) preaches a similar doctrine of death. In 1996 he issued his Declaration of War Against the Americans Occupying the Land of the Two Holy Places, and two years later he set forth a Declaration of Jihad Against Jews and Crusaders. Whatever hatreds the Shi’ites and Sunnis feel toward one another, they are united by their shared commitment to wage war on America. Yet leftists choose to pretend that a state of war did not exist until President Bush deployed U.S. troops to Afghanistan and Iraq. Khomeini himself viewed such self-deceivers with the greatest contempt when he sneered: “Those who know nothing of Islam pretend that Islam counsels against war. Those who say this are witless. Islam says: Kill all the unbelievers just as they would kill you all! Kill them, put them to the sword and scatter their armies.”

But opponents of military tribunals argue that even if radical Islamists have in fact declared war on America, the U.S. Congress, which has sole authority to make formal declarations of war, has not done so in this case — and that the use of such tribunals is therefore logically unjustifiable. There is in fact considerable precedent, however, for trying accused war criminals in military courts even in the absence of a Congressional declaration of war: President Abraham Lincoln used military commissions extensively to sentence Confederate terrorists for such crimes as seizure, arson, and the destruction of transportation, communication or other systems of infrastructure during the American Civil War.

In all of American history, Congress has made formal declarations of war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But as Henry Mark Holzer points out, presidents acting in their capacity as commanders-in-chief have sent troops into battle at least 130 times in the absence of such declarations. Sometimes those military conflicts, while not formally declared wars, were explicitly authorized by Congress. Among these were the Vietnam War (authorized by a vote of 88-2 in the Senate, and 418-0 in the House); the 1991 Persian Gulf War (52-47 in the Senate, 250-183 in the House); the 2001 invasion of Afghanistan (98-0 in the Senate, 420-1 in the House); and the 2003 invasion of Iraq (77-23 in the Senate, 296-133 in the House).

In other cases the U.S. has engaged in combat against a particular form of enemy aggression, even though our country was not officially at war with the nation from which the aggressors hailed. A good example of this was the 1801 Talbot v. Seeman Supreme Court case, which involved French privateers who were preying on American commercial shipping. In its decision, the Court affirmed Congress’s right to declare a “partial war” against the transgressors. Chief Justice John Marshall wrote at the time: “The whole powers of war being, by the Constitution of the United States, vested in Congress…Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial war, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” The parallel with the current war on terror, where intelligence and military forces seek to combat saboteurs and killers from a number of nations that are not formally at war with America, is obvious.

If we accept the premise that terrorism cases can rightfully be categorized under the heading of war, a secondary consideration in determining if military tribunals are the proper venue for their adjudication involves the question of whether a given defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al-Qaeda fails even to come close to satisfying these conditions. In the 1942 Ex parte Quirin case, the U.S. Supreme Court spelled out the implications of such failure:

[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

“Our government, the Court added, “by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed and distinctive emblems.’”

If a terror suspect does not even qualify for designation as a lawful combatant, giving him access to the civil rights protections of the American jury system can properly be defined as an act of madness.

In recent years a Geneva Protocol relaxed the foregoing criteria in recognition of guerrilla fighters as legitimate combatants in what are nominally “wars of national liberation,” even though they neither wear uniforms nor bear arms openly at all times. But even under this lower standard, the designation of “lawful combatant” requires one to eschew indiscriminate attacks against civilians and to bear arms openly during military deployment and engagement — requirements that al-Qaeda operatives do not fulfill. As Crona and Richardson write, “A casually attired driver of a van carrying a concealed bomb does not fit anyone's definition of a lawful combatant.”

Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.” Crona and Richardson explain the profound significance of this:

A relaxation of the hearsay rule might become critical in a prosecution for terrorism where it may be impossible to produce live witnesses to an event which occurred years earlier in a foreign country. For example, the indictment in the Pan Am Flight 103 case details the alleged purchase of clothing, by Libyan intelligence agent Abdel Bassett, for placement in the suitcase with the bomb. The clothing was used to disguise the contents of the suitcase containing the bomb, which was placed inside a radio-cassette player. Under the rules of evidence applicable in U.S. District Court, the prosecution would have to produce in person the Maltese shopkeeper to identify Abdel Bassett as the man who allegedly purchased the clothing back in 1988, as opposed to producing the investigator who tracked down the shopkeeper and showed him a photograph of Abdel Bassett. Even if we assume that the shopkeeper could be located six years or more after the fact, we recognize that it is nearly impossible to secure involuntary testimony from a witness who is a citizen of a foreign country, especially one that historically has been less than sympathetic to the United States. The reach of a federal court subpoena simply does not extend to Malta.

[G M]

The rules governing the admissibility of coerced testimony and hearsay have a direct bearing on the case of Jose Padilla, who is now being tried in a civilian court. In June 2004 the Justice Department released a declassified document enumerating Padilla’s various terrorist plans and his al-Qaeda connections. The information therein came not only from Padilla’s own admissions, but also from a number of additional al-Qaeda detainees who independently confirmed (sometimes through coerced testimony) the details that Padilla gave, particularly about the plots to detonate a “dirty bomb” and to blow up apartment buildings. But none of this evidence will be admissible in Padilla’s current trial. Consequently, he is being formally charged with offenses of far less gravity than those detailed in the aforementioned Justice Department document. As The New York Times explains:

[C]onstrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during [coercive] interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al-Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy. … Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002. But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel — whether or not he was mistreated, as his lawyers claim — would not be admissible in court. And it is unlikely that information obtained during the harsh questioning of Al-Qaeda detainees would be admissible, either....

Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop: “Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.” Dealing with terrorists under such a set of rules is analogous to participating in a shootout where only the enemy’s weapon is loaded. Moreover, it signals to the watching world that Americans have become consumed by guilt vis a vis the allegedly irredeemable flaws of their own culture and, as a consequence, do not possess the requisite courage for dealing aggressively with those who would seek to destroy their country.

Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them. This obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who would undoubtedly choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised. As John Dean writes, “Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source — be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source.” By contrast, military tribunals permit incriminating evidence to be presented to the judge and jury, while being kept secret from the public as well as from the defendant and his attorney.

Critics commonly suggest that, given the foregoing ground rules, military tribunals are little more than kangaroo courts where defendants have no chance of receiving a fair hearing. This may well have been true in Stalin’s Russia, but by no means has it been the case where Western democracies are concerned. Consider the post-World War II Nuremberg trials of the most important captured leaders of Nazi Germany, architects of the Holocaust. The International Military Tribunal at Nuremberg acquitted three of the twenty-two major defendants; sentenced four others to twenty years in prison or less; and sentenced three to life in prison. In other words, nearly half of those accused were spared the death penalty. Similarly, United States military tribunals, which were composed solely of American judges, tried 177 other Nazi officials and members of the SS, convicting 142 and executing only 12. It can be reasonably argued that military jurors are less likely than their civilian counterparts to render decisions rooted in “inflamed passions” rather than in solid evidence. Finally, we must acknowledge that those who serve as jurors in the civilian trials of accused terrorists may, if they render “guilty” verdicts, be extremely vulnerable to violent retribution from affiliated terrorist and militia groups — another argument against civilian trials for terrorists.

For those who are concerned about legal precedent, it must be understood that the use of military tribunals for the adjudication of war crimes is in no way a departure from past practices. As noted earlier, military commissions were used commonly during the Civil War. Prior to that, General George Washington employed such tribunals during the American Revolution in the late 18th century. In the era following the ratification of the U.S. Constitution, military tribunals were first convened by Major General Winfield Scott during the Mexican-American War of 1846-48, to adjudicate the alleged war crimes of American troops and Mexican guerrilla fighters alike. World War II also saw the use of military courts, the most famous case involving eight marines of the Third Reich (one of whom was an American citizen named Herbert Haupt) who rode a Nazi U-boat to the east coast of the United States, where, laden with explosives, they disembarked and set off toward various locations with the intent of bombing railroads, hydroelectric plants, factories, department stores, and defense facilities across the country. The saboteurs were wearing no military uniforms or identifying emblems when they were captured, meaning that they were, in the eyes of the law (as defined by the Supreme Court in Ex parte Quirin, quoted earlier in this article), “unlawful combatants.” Refusing to grant the perpetrators civilian jury trials, President Franklin D. Roosevelt quickly created a secret military commission to hear their cases. All eight were convicted and sentenced to death, though two turncoats later had their sentences commuted to life in prison.

Notwithstanding (or perhaps because of) the indisputable fact that trials by military commissions would permit the United States to prosecute terrorism cases much more quickly and effectively than would civilian trials, the political Left overwhelmingly condemns such tribunals, calling instead for greater civil liberties safeguards for suspected terrorists. Columbia University historian Alan Brinkley calls the use of military tribunals “one of the most extraordinary assaults on civil liberties” in American history. Senator Harry Reid, D-NV, complains, remarkably, that the Military Commissions Act of 2006 “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” And Senator Chris Dodd, D-CT, a presidential candidate for 2008, has introduced legislation that would give habeas corpus protections to military detainees; prohibit the introduction of evidence that was gained through coercive methods; authorize military judges to exclude hearsay evidence they deem to be unreliable; and narrow the definition of “unlawful enemy combatant.”

Such is the mindset of the Left — ever prepared to defend the supposed rights and liberties of every last terrorist, as if the Constitution of the United States were nothing more than a suicide pact for the American people.

Sources:

* Spencer J. Crona and Neal A. Richardson, “Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism” (Summer/Fall 1996)
* John Dean, “The Critics Are Wrong” (November 23, 2001)
* John Dean, “Appropriate Justice for Terrorists” (September 28, 2001)
* John Dean, “Military Tribunals: A Long And Mostly Honorable History” (December 7, 2001)
* Michael C. Dorf, “What Is an ‘Unlawful Combatant,’ and Why it Matters” (January 23, 2002)
* Henry Mark Holzer, “Who’s Who Among American Terrorists” (October 17, 2002)
* Henry Mark Holzer, “The Fifth Column’s Legal Team” (June 18, 2002)
* Mitchell L. Lathrop, “A Realistic Look at Terrorism Trials” (November 2001)
* Michelle Malkin, “No More Jury Trials for Terrorists” (October 24, 2001)
* Deborah Sontag, “In Padilla Wiretaps, Murky View of ‘Jihad’ Case” (January 4, 2007)
* Jonathan Weisman, “Battle Looms in Congress over Military Tribunals” (July 13, 2006)
* “U.S. Supreme Court: Holtzman v. Schlesinger, 414 U.S. 1304” (1973)

[G M]

Mig,

You know that circumstantial evidence is admissible in standard criminal trials, right? As an example, the Lacy Peterson murder case was based primarily on circumstantial evidence.

[G M]

http://www.criminal-law-lawyer-source.com/terms/direct-evidence.html

Direct Evidence

One of the most important characteristics of evidence is its reliability . The two types of evidence used in court proceedings are direct evidence and circumstantial evidence. While one or the other can be valuable solely in the conviction of a criminal, the presence of both can solidify a case.
Circumstantial evidence is evidence that doesn't establish guilt in a straightforward sense, but it gives a rise to an inference of guilt. For example, a receipt for purchasing a gun is direct evidence that a certain person owned the gun but indirect that he used it in committing a crime. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.
As its name suggests, direct evidence relates immediately to the allegation being tested. If the direct evidence is true, the allegation is established. Direct evidence, on the other hand, is evidence of a fact based on a witness's personal knowledge or observation of that fact. An example of direct evidence would be the surveillance video of a person robbing a convenience store, or a witness who saw a person stealing a car. A person's guilt of a charged crime may be proven by direct evidence alone, if that evidence satisfies a jury beyond a reasonable doubt of the defendant's guilt regarding that crime.
The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Direct evidence or circumstantial evidence may be enough to establish guilt beyond reasonable doubt, depending on the facts of the case as the jury finds them.
Direct evidence can have varying degrees of clout depending on the actual witness delivering the testimony. Direct evidence from a legitimate, trust-worthy source will have a stronger bearing on the jury than that of a shady character, even under oath. Bending the truth a little here and there can skew direct evidence and is common with defense testimony.
Whether direct evidence or circumstantial evidence is the basis for testimony, the jury must be able to determine what facts were proven, if any at all. Any facts, upon which an inference of guilt can be drawn, must be proven beyond a reasonable doubt. After the facts have been determined, the jury can decide what inferences can be drawn from those facts. Direct evidence alleviates the majority of inferential thinking because it is based on the sole observation of the fact, and not on the basis that "this is probably what happened because of this."

[Crafty_Dog]

Just a quick yip here to respond to SB Mig's question to me:

Part of the concern over habeas corpus I believe to be due to some comments made by recently departed AG Albert Gonzales which left even me looking like a Jewish Don King.  Sen. Spector's comments quoted by SB Mig IIRC were in response to AG AG's comments on HC.

IMHO there has been considerable smoke blown on the matter that is the subject of this thread.  The Bush team's approach I think could have been much better and has in some cases generated some of the concerns.  This I suspect to have been due in part to that portion of the opposition who simply loathes Bush, loathes the War, doesn't think there is a war or a danger to us, wants us to lose, etc.   IMO some of this opposition has gotten right up to the line of treason when it reveals military secrets concerning  funding Iraqi journalists, following enemy financial flows and the like.  In return the Bush people have simply figured WTF, nothing we explain will ever satisfy these people-- whom at the moment have been busy drawing the enemy's attention to the fact that many calls between countries other than the US are actually routed through the US and that we have been listening in.  I find it quite absurd to call this "spying on American citizens" or even to call listening to foreign enemy jihadis calling America "spying on American citizens".

One result of all this is to concern unecessarily good-hearted American people who quite properly wish to be vigilant about our freedoms-- we are in times where the inherent dynamic can easily lead us astray!  With so much smoke, surely there must be fire!  An example of unnecessary concerns would be SB Mig's concerns over circumstantial evidence-- an utter non-issue as so ably described by GM's post.

Overall I think GM is doing an outstanding job of presenting clear analysis of a most vexing problem. 

SB Mig's central question though does remain: "What safeguards prevent application of "non-habeas" to our own population?"

SB, what did you think of the two Mukasey articles which I posted above?

[Crafty_Dog]

 
 
 
   
     
   
 
 

 
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Surveillance Showdown
By DAVID B. RIVKIN JR. and LEE A. CASEY
September 24, 2007

Would any sane country purposefully limit its ability to spy on enemy communications in time of war? That is the question Congress must answer as it takes up reform of the Foreign Intelligence Surveillance Act (FISA) this week. Privacy activists, civil libertarians and congressional Democrats argue that both foreign and domestic eavesdropping must be subject to judicial scrutiny and oversight, even if this means drastically reducing the amount of foreign intelligence information available to the government, without ever acknowledging the costs involved. It is time the American people had an open and honest debate on the relative importance of privacy and security.

 
FISA, of course, is the law regulating the government's interception of "electronic communications" for foreign intelligence purposes. Earlier this year the special FISA court narrowed dramatically the National Security Agency's (NSA) ability to collect overseas intelligence under the law, so Congress passed a six-month amendment before its August recess to allow current surveillance programs to continue. That amendment should be made permanent.

When FISA was enacted in 1978, most of this foreign intelligence collection was accomplished by NSA satellites and "listening posts" located outside of the United States. That enabled that agency to acquire, without any judicial involvement, vast quantities of global communications. The fact that foreign targets contacted Americans was of no legal consequence. Even the strongest congressional proponents of FISA's regulation of surveillance activities recognized that intelligence gathering was a key executive function, and the U.S. needed as much foreign intelligence as possible. This bipartisan consensus -- that FISA compliance should not impede foreign intelligence collection -- was all the more notable coming amidst the congressional reaction to Watergate and at a time when the Cold War threats to national security, while formidable, did not require real-time surveillance of numerous nonstate actors.

Today, primarily because of the communications technology revolution, much of the same foreign intelligence information, focused on non-U.S. persons overseas, passes along U.S.-based fiber optics systems. Unfortunately, much of the Democratic congressional leadership says this new world requires more stringent regulation than in the past because of the risk to the privacy of innocent Americans. But this problem is one inherent in all surveillance schemes whether they're overseen by courts or not.

All suspects, whether garden-variety criminals or terrorists, whether surveilled with or without a warrant, invariably contact numerous innocents. Requiring the government to obtain a judicial order for all overseas surveillance whenever an American's communications might be intercepted will not solve this problem.

The government does utilize a series of "minimization" procedures governing how foreign intelligence information is handled to prevent its inappropriate use or disclosure. As explained by CIA Director Michael Hayden in 2006, referring to the post-Sept. 11 terrorist surveillance program before it was subjected to FISA: "if the U.S. person information isn't relevant [without foreign intelligence value], the data is suppressed." The fact that senior U.S. government officials (unlike their counterparts in other countries) do not routinely have access to the unredacted surveillance-generated information about American citizens, and that the system is operated largely by career civil servants, provides an additional layer of privacy protection.

Warrantless surveillance is also constitutional. The Fourth Amendment prohibits only "unreasonable" searches and seizures. Although today's privacy advocates routinely claim that warrantless searches are inherently unreasonable, that position is insupportable. The Supreme Court has repeatedly approved numerous warrantless searches, balancing the government's interests against the relevant privacy expectations. Thus drivers can be subjected to sobriety checkpoints and international travelers are liable to search at the border.

The key in such cases has generally been the presence or absence of a "reasonable expectation of privacy." If there is no reasonable expectation of privacy associated with a particular location or activity, then a warrantless search is not unreasonable. Whether Americans have a reasonable expectation that their international communications -- which may be routed through any number of foreign countries and are routinely subject to capture by foreign intelligence services -- will not be incidentally intercepted by the U.S. government is debatable. But foreign nationals communicating abroad have no reasonable expectation of privacy vis-à-vis the NSA simply because their conversations are electronically transmitted through American switching stations.

On the other side of the scale, of course, is the government's obligation to protect the American people. Because the U.S. faces a dispersed, shadowy, and ideologically committed enemy -- in circumstances where defectors are rare and the CIA's ability to penetrate the hostile networks is extremely limited -- the most proactive electronic surveillance operations are essential. Requiring judicial orders for the collection of foreign intelligence anytime an innocent American's communications may also be intercepted would cripple U.S. intelligence gathering. Obtaining orders against many foreign targets about which comparatively little may be known, including their true identities or the precise modalities of their involvement with jihadist entities, would be impossible.

The privacy advocates claim that surveilling without traditional warrants, albeit still with substantial judicial involvement, "purely" foreign-to-foreign communications is enough. But many of the NSA's most valuable overseas targets routinely contact Americans. Moreover, if the Democratic-leadership authored FISA reform -- which requires judicial involvement once a foreign surveillance target reaches a certain number of communications with the U.S. -- were to pass, every foreign terrorist and spymaster would communicate with the U.S. enough to be enrolled in the warrant-driven surveillance program. As a result, the only people overseas who could still be surveilled warrantlessly would be the ones with the least intelligence value.

The privacy advocates also criticize the NSA's efforts to collect vast quantities of information, claiming that more targeted, individual-specific surveillance is both more privacy-friendly and better protects America's safety. However, unlike the Cold War-era -- when the NSA was focused largely on a few state entities, and had a pretty good idea of who the targets were -- today targeted surveillance alone is not enough. Thousands of individuals participate in various ways in jihadist activities, and even more individuals possess valuable information about them. All of them seek to blend into society, benefiting from the anonymity of modern life and ease of travel and communications. Because their behavior differs in subtle ways from the conduct of law-abiding citizens around them, NSA-led broad surveillance, backed up by various pattern-recognition programs, can identify the right targets.

Indeed, privacy advocates seek to ban the NSA's overseas-focused broad surveillance programs -- and require warrants whenever overseas targets have a number of contacts with the U.S. -- precisely to decrease dramatically the total number of foreigners tracked by the NSA. Their logic is unimpeachable -- the fewer foreign targets are reached by the NSA, the fewer innocent Americans would be caught up in the surveillance net. But this fervent commitment to protecting the privacy of Americans from all intrusions comes at a very high cost; for the first time in history, the U.S. is asked to collect less intelligence about the enemy while prosecuting a war.

Those who want to subject all government surveillance activities to a warrant requirement should honestly acknowledge that this approach would dramatically shrink the stream of foreign intelligence available.

Let's be clear here: Privacy is an important value. American society cannot afford, however, to elevate privacy concerns beyond all other considerations. Being suspicious about governmental power is consistent with our constitutional values -- the Framers certainly were so inclined -- but being paranoid about one's own government is not.

Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Ronald Reagan and George H.W. Bush.

[G M]

The core issue is that the American legal system is not structured to fight the global jihad. The Clinton administration tried to indict al qaeda into submission. I think 9/11 demonstrated how unsuccessful that strategy was. The criminal justice system and the military both have roles in fighting the war, but we have to fight the war by aggressive, intelligence driven strikes. Just as they use asymmetrical tactics against us, we must use asymmetrical tactics against them. The way to fight and win is by hunting them down, capturing and killing their networks. You don't do that by trying to appease the ACLU.

We could never teach the jihadists to love us, we can however teach them to fear us. They have no legal standing under the rules of law. We can catch them, interrogate them and kill them as needed. We should not hesitate to do so.

[Crafty_Dog]

I can't remember why, but when this Treaty first came up for confirmation years ago I was against it.

I have mixed feelings about Co-author James Baker, but George Shultz is someone who I've respected greatly over the years.

============

Why the 'Law of the Sea'
Is a Good Deal
By JAMES A. BAKER III and GEORGE P. SHULTZ
September 26, 2007; Page A21

The Convention of the Law of the Sea is back. It will be the subject of Senate hearings this week. If the U.S. finally becomes party to this treaty, it will be a boon for our national security and our economic interests. U.S. accession will codify our maritime rights and give us new tools to advance national interests.

The convention's primary functions are to define maritime zones, preserve freedom of navigation, allocate resource rights, establish certainty necessary for various businesses that depend on the sea and protect the marine environment. Flaws in the deep-seabed mining chapter that prevented President Reagan from supporting the convention were fixed in 1994. Both President Bill Clinton and George W. Bush have supported accession. Yet, the U.S. remains one of the few major countries not party to the convention.

Our participation would increase our ability to wage the war on terror. The convention assures maximum maritime naval and air mobility, which is essential for our military forces to operate effectively. It provides the stability and framework for our forces, weapons and materials to be deployed without hindrance -- ensuring our ability to navigate past critical choke points throughout the world.

Some say it's good enough to protect our navigational interests through customary law. If that approach fails, then we can employ the threat of force or the use of it. However, because customary law is vague, it does not provide a strong foundation for critical national security rights. Meanwhile, the use of force can be risky and costly. Joining the convention would put our vital rights on a firmer legal basis, gaining legal certainty and legitimacy as we operate in the world's largest international zone.

This is why the U.S. military has been a strong advocate of joining the Law of the Sea Convention. This point was reinforced in a recent letter sent by the Joint Chiefs of Staff to Sen. Joe Biden, chairman of the Senate Foreign Relations Committee, calling on the Senate to support U.S. accession because "t furthers our National Security Strategy, strengthens the coalition, and supports the President's Proliferation Security Initiative."

The convention also provides substantial economic benefits to the United States. It accords coastal states the right to declare an Exclusive Economic Zone -- an area where they have exclusive rights to explore and exploit, and the responsibility to conserve and manage, living and non-living resources extending 200 nautical miles seaward from their shoreline. Our nation's EEZ is larger than that of any country in the world -- covering an area greater than the landmass of the lower 48 states. This zone can be extended beyond 200 nautical miles if certain geological criteria are met. This has potentially significant economic benefits to the U.S. where its continental shelves may be as broad as 600 miles, such as off Alaska, an area containing vast natural resources.

Further, as the world's pre-eminent maritime power with one of the longest coastlines, the U.S. has more to gain and to lose than any other country in terms of how the convention's terms are interpreted and applied.

Accession would increase our influence by allowing us to nominate experts for the technical bodies that apply the convention's terms, address proposals to amend the convention from within (rather than from the sidelines), and increase our credibility as a leader in international ocean policy.

As we speak, international deliberations for rights to energy- and mineral-rich areas in the Arctic beyond the traditional 200-mile EEZ are proceeding without U.S. input. Just recently, Russia placed its flag on the North Pole's ocean floor. While seen as largely symbolic, the part of the Arctic Ocean claimed by Russia could hold oil and gas deposits equal to about 20% of the world's current oil and gas reserves. If the U.S. was party to the treaty, we would strengthen our capacity to influence deliberations and negotiations involving other nations' attempts to extend their continental boundaries.

As a non-party, however, the U.S. has limited options for disputing claims such as these and is stymied from taking full advantage of resources that could be under U.S. jurisdiction. Similarly, lack of participation in the convention is jeopardizing economic opportunities associated with commercial deep-sea mining operations in international waters beyond exclusive economic zones -- opportunities currently being pursued by Canadian, Australian and German firms.

The continuing delay of U.S. accession to the convention compromises our nation's authority to exercise its sovereign interests, jeopardizes its national and economic security, and limits its leadership role in international ocean policy.

Given President Bush's public statement of support for the convention, the support of prior presidents and their administrations and the strong, bipartisan and diverse support it has from all major U.S. ocean industries, the environmental community and national security experts, it is clearly time for the Senate to act by supporting accession to the Convention on the Law of the Sea.

Messrs. Baker and Shultz are former secretaries of state.

[Crafty_Dog]

Aha!  Here are the reasons against!

=====

“Time was, Ronald Reagan’s 600-ship Navy gave us freedom of the seas. But if Joe Biden and the Senate have their way, we’ll need the permission of 21 judges in Hamburg. On Thursday, presidential wannabe Biden will chair hearings intended to lead to the ratification of the quarter-century-old Law of the Sea treaty (LOST), a document that would severely restrict our ability to use oceans to defend ourselves and would turn over control of 70% of the world’s surface to a U.N. bureaucracy. Supporters say we must be a signatory to guarantee our share of the resources to be found under the world’s oceans and to avoid situations like the race to claim the sea bed under the Arctic between Russia, Canada and other states. But experience suggests a Law of the Sea tribunal won’t protect interests we should be protecting ourselves. LOST would create an International Seabed Authority (ISA) with the power to regulate and tax things like seabed mining, fishing rights and deep-sea oil exploration. The ISA would decide who gets access to the sea’s resources, and the companies granted these rights would pay a royalty to the ISA. When he refused to sign ISA in 1982, President Reagan rightly decided the U.S. shouldn’t be a part of this global resource grab and redistribution of wealth. It’s in the area of national security that LOST is most dangerous. The [Bush] administration cites military support for the treaty because of its uniform limit on territorial waters and its establishment of ‘rules of the road’ for littoral waters. But current international law already protects nonaggressive passage of military ships. When Reagan vetoed the treaty, the U.S. Navy had 594 warships. We could protect our own right of passage. Today the fleet has withered to 276 vessels. Is that why we need the treaty? The answer is to build more warships. Our access to the seas should be guaranteed by the Navy and not a U.N. bureaucracy.” —Investor’s Business Daily

[G M]

http://hotair.com/archives/2007/09/28/why-fisa-needs-to-be-updated-or-scrapped/

FISA kills.

[Crafty_Dog]

The NY Times is always a caveat lector source, but that said, this piece troubles me greatly.
==============

By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN
Published: October 4, 2007
This article is by Scott Shane, David Johnston and James Risen.


WASHINGTON, Oct. 3 — When the Justice Department publicly declared torture “abhorrent” in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

The classified opinions, never previously disclosed, are a hidden legacy of President Bush’s second term and Mr. Gonzales’s tenure at the Justice Department, where he moved quickly to align it with the White House after a 2004 rebellion by staff lawyers that had thrown policies on surveillance and detention into turmoil.

Congress and the Supreme Court have intervened repeatedly in the last two years to impose limits on interrogations, and the administration has responded as a policy matter by dropping the most extreme techniques. But the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.

A White House spokesman, Tony Fratto, said Wednesday that he would not comment on any legal opinion related to interrogations. Mr. Fratto added, “We have gone to great lengths, including statutory efforts and the recent executive order, to make it clear that the intelligence community and our practices fall within U.S. law” and international agreements.

More than two dozen current and former officials involved in counterterrorism were interviewed over the past three months about the opinions and the deliberations on interrogation policy. Most officials would speak only on the condition of anonymity because of the secrecy of the documents and the C.I.A. detention operations they govern.

When he stepped down as attorney general in September after widespread criticism of the firing of federal prosecutors and withering attacks on his credibility, Mr. Gonzales talked proudly in a farewell speech of how his department was “a place of inspiration” that had balanced the necessary flexibility to conduct the war on terrorism with the need to uphold the law.

Associates at the Justice Department said Mr. Gonzales seldom resisted pressure from Vice President Dick Cheney and David S. Addington, Mr. Cheney’s counsel, to endorse policies that they saw as effective in safeguarding Americans, even though the practices brought the condemnation of other governments, human rights groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency into an arm of the Bush White House, undermining the department’s independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as the government’s most authoritative interpreter of the law. “In my experience, the White House has not told me how an opinion should come out,” he said in an interview. “The White House has accepted and respected our opinions, even when they didn’t like the advice being given.”

The debate over how terrorist suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries. It adopted the new measures without public debate or Congressional vote, choosing to rely instead on the confidential legal advice of a handful of appointees.

=======

Page 2 of 5)



The policies set off bruising internal battles, pitting administration moderates against hard-liners, military lawyers against Pentagon chiefs and, most surprising, a handful of conservative lawyers at the Justice Department against the White House in the stunning mutiny of 2004. But under Mr. Gonzales and Mr. Bradbury, the Justice Department was wrenched back into line with the White House.


After the Supreme Court ruled in 2006 that the Geneva Conventions applied to prisoners who belonged to Al Qaeda, President Bush for the first time acknowledged the C.I.A.’s secret jails and ordered their inmates moved to Guantánamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring water over a bound prisoner’s cloth-covered face to induce fear of suffocation.
But in July, after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas. The executive order was reviewed and approved by Mr. Bradbury and the Office of Legal Counsel.

Douglas W. Kmiec, who headed that office under President Ronald Reagan and the first President George Bush and wrote a book about it, said he believed the intense pressures of the campaign against terrorism have warped the office’s proper role.

“The office was designed to insulate against any need to be an advocate,” said Mr. Kmiec, now a conservative scholar at Pepperdine University law school. But at times in recent years, Mr. Kmiec said, the office, headed by William H. Rehnquist and Antonin Scalia before they served on the Supreme Court, “lost its ability to say no.”

“The approach changed dramatically with opinions on the war on terror,” Mr. Kmiec said. “The office became an advocate for the president’s policies.”

From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics. While President Bush and C.I.A. officials would later insist that the harsh measures produced crucial intelligence, many veteran interrogators, psychologists and other experts say that less coercive methods are equally or more effective.

With virtually no experience in interrogations, the C.I.A. had constructed its program in a few harried months by consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture. The agency officers questioning prisoners constantly sought advice from lawyers thousands of miles away.

“We were getting asked about combinations — ‘Can we do this and this at the same time?’” recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.’s Counterterrorist Center from 2001 to 2003.

Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said. He recalled agency officers asking: “These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?” Or “Do I have to do the less extreme before the more extreme?”

The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills.

That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. “You think you’re making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, ‘Well, that guidance was a little vague, and the inspector general wants to talk to you,’” he recalled. “We couldn’t tell them, ‘Do the best you can,’ because the people who did the best they could in Peru were looking at a grand jury.”

======

Mr. Kelbaugh said the questions were sometimes close calls that required consultation with the Justice Department. But in August 2002, the department provided a sweeping legal justification for even the harshest tactics.

That opinion, which would become infamous as “the torture memo” after it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled.
Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or “even death.” A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.

Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture. A C.I.A. spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr. Little said the program “has been conducted lawfully, with great care and close review” and “has helped our country disrupt terrorist plots and save innocent lives.”

“The agency has always sought a clear legal framework, conducting the program in strict accord with U.S. law, and protecting the officers who go face-to-face with ruthless terrorists,” Mr. Little added.

Some intelligence officers say that many of Mr. Mohammed’s statements proved exaggerated or false. One problem, a former senior agency official said, was that the C.I.A.’s initial interrogators were not experts on Mr. Mohammed’s background or Al Qaeda, and it took about a month to get such an expert to the secret prison. The former official said many C.I.A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.

Other intelligence officers, including Mr. Kelbaugh, insist that the harsh treatment produced invaluable insights into Al Qaeda’s structure and plans.

“We leaned in pretty hard on K.S.M.,” Mr. Kelbaugh said, referring to Mr. Mohammed. “We were getting good information, and then they were told: ‘Slow it down. It may not be correct. Wait for some legal clarification.’”

The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside.

Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith, who left the Justice Department soon afterward, first spoke at length about his dissenting views to The New York Times last month, testified before the Senate Judiciary Committee on Tuesday.

Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: “Torture is abhorrent both to American law and values and to international norms.”

A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal. But the opinion was unmistakably a retreat. Some White House officials had opposed publicizing the document, but acquiesced to Justice Department officials who argued that doing so would help clear the way for Mr. Gonzales’s confirmation as attorney general.

If President Bush wanted to make sure the Justice Department did not rebel again, Mr. Gonzales was the ideal choice. As White House counsel, he had been a fierce protector of the president’s prerogatives. Deeply loyal to Mr. Bush for championing his career from their days in Texas, Mr. Gonzales would sometimes tell colleagues that he had just one regret about becoming attorney general: He did not see nearly as much of the president as he had in his previous post.

Among his first tasks at the Justice Department was to find a trusted chief for the Office of Legal Counsel. First he informed Daniel Levin, the acting head who had backed Mr. Goldsmith’s dissents and signed the new opinion renouncing torture, that he would not get the job. He encouraged Mr. Levin to take a position at the National Security Council, in effect sidelining him.

Mr. Bradbury soon emerged as the presumed favorite. But White House officials, still smarting from Mr. Goldsmith’s rebuffs, chose to delay his nomination. Harriet E. Miers, the new White House counsel, “decided to watch Bradbury for a month or two. He was sort of on trial,” one Justice Department official recalled.

Mr. Bradbury’s biography had a Horatio Alger element that appealed to a succession of bosses, including Justice Clarence Thomas of the Supreme Court and Mr. Gonzales, the son of poor immigrants. Mr. Bradbury’s father had died when he was an infant, and his mother took in laundry to support her children. The first in his family to go to college, he attended Stanford and the University of Michigan Law School. He joined the law firm of Kirkland & Ellis, where he came under the tutelage of Kenneth W. Starr, the Whitewater independent prosecutor.

[Crafty_Dog]

Part Two

Page 4 of 5)



Mr. Bradbury belonged to the same circle as his predecessors: young, conservative lawyers with sterling credentials, often with clerkships for prominent conservative judges and ties to the Federalist Society, a powerhouse of the legal right. Mr. Yoo, in fact, had proposed his old friend Mr. Goldsmith for the Office of Legal Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his top deputy.


“We all grew up together,” said Viet D. Dinh, an assistant attorney general from 2001 to 2003 and very much a member of the club. “You start with a small universe of Supreme Court clerks, and you narrow it down from there.”

But what might have been subtle differences in quieter times now cleaved them into warring camps.

Justice Department colleagues say Mr. Gonzales was soon meeting frequently with Mr. Bradbury on national security issues, a White House priority. Admirers describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought from 10 years of corporate practice a more pragmatic approach to the job than Mr. Yoo and Mr. Goldsmith, both from the academic world.

“As a practicing lawyer, you know how to address real problems,” said Noel J. Francisco, who worked at the Justice Department from 2003 to 2005. “At O.L.C., you’re not writing law review articles and you’re not theorizing. You’re giving a client practical advice on a real problem.”

As he had at the White House, Mr. Gonzales usually said little in meetings with other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury also often appeared in accord with the vice president’s lawyer.

Mr. Bradbury appeared to be “fundamentally sympathetic to what the White House and the C.I.A. wanted to do,” recalled Philip Zelikow, a former top State Department official. At interagency meetings on detention and interrogation, Mr. Addington was at times “vituperative,” said Mr. Zelikow, but Mr. Bradbury, while taking similar positions, was “professional and collegial.”

While waiting to learn whether he would be nominated to head the Office of Legal Counsel, Mr. Bradbury was in an awkward position, knowing that a decision contrary to White House wishes could kill his chances.

Charles J. Cooper, who headed the Office of Legal Counsel under President Reagan, said he was “very troubled” at the notion of a probationary period.

“If the purpose of the delay was a tryout, I think they should have avoided it,” Mr. Cooper said. “You’re implying that the acting official is molding his or her legal analysis to win the job.”

Mr. Bradbury said he made no such concessions. “No one ever suggested to me that my nomination depended on how I ruled on any opinion,” he said. “Every opinion I’ve signed at the Office of Legal Counsel represents my best judgment of what the law requires.”

Scott Horton, an attorney affiliated with Human Rights First who has closely followed the interrogation debate, said any official offering legal advice on the campaign against terror was on treacherous ground.

“For government lawyers, the national security issues they were deciding were like working with nuclear waste — extremely hazardous to their health,” Mr. Horton said.

“If you give the administration what it wants, you’ll lose credibility in the academic community,” he said. “But if you hold back, you’ll be vilified by conservatives and the administration.”

In any case, the White House grew comfortable with Mr. Bradbury’s approach. He helped block the appointment of a liberal Ivy League law professor to a career post in the Office of Legal Counsel. And he signed the opinion approving combined interrogation techniques.

Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not to endorse the opinion. But the attorney general made clear that the White House was adamant about it, and that he would do nothing to resist.

Under Mr. Ashcroft, Mr. Comey’s opposition might have killed the opinion. An imposing former prosecutor and self-described conservative who stands 6-foot-8, he was the rare administration official who was willing to confront Mr. Addington. At one testy 2004 White House meeting, when Mr. Comey stated that “no lawyer” would endorse Mr. Yoo’s justification for the N.S.A. program, Mr. Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey shot back: “No good lawyer,” according to someone present.

But under Mr. Gonzales, and after the departure of Mr. Goldsmith and other allies, the deputy attorney general found himself isolated. His troublemaking on N.S.A. and on interrogation, and in appointing his friend Patrick J. Fitzgerald as special prosecutor in the C.I.A. leak case, which would lead to the perjury conviction of I. Lewis Libby, Mr. Cheney’s chief of staff, had irreparably offended the White House.

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Page 5 of 5)



“On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,” said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington.


Mr. Comey provided some hints of his thinking about interrogation and related issues in a speech that spring. Speaking at the N.S.A.’s Fort Meade campus on Law Day — a noteworthy setting for the man who had helped lead the dissent a year earlier that forced some changes in the N.S.A. program — Mr. Comey spoke of the “agonizing collisions” of the law and the desire to protect Americans.

“We are likely to hear the words: ‘If we don’t do this, people will die,’” Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.

“It takes far more than a sharp legal mind to say ‘no’ when it matters most,” he said. “It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.”

Mr. Gonzales’s aides were happy to see Mr. Comey depart in the summer of 2005. That June, President Bush nominated Mr. Bradbury to head the Office of Legal Counsel, which some colleagues viewed as a sign that he had passed a loyalty test.

Soon Mr. Bradbury applied his practical approach to a new challenge to the C.I.A.’s methods.

The administration had always asserted that the C.I.A.’s pressure tactics did not amount to torture, which is banned by federal law and international treaty. But officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.

Now that loophole was about to be closed. First Senator Richard J. Durbin, Democrat of Illinois, and then Senator John McCain, the Arizona Republican who had been tortured as a prisoner in North Vietnam, proposed legislation to ban such treatment.

At the administration’s request, Mr. Bradbury assessed whether the proposed legislation would outlaw any C.I.A. methods, a legal question that had never before been answered by the Justice Department.

At least a few administration officials argued that no reasonable interpretation of “cruel, inhuman or degrading” would permit the most extreme C.I.A. methods, like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow, the State Department counselor, who was working at the time to rein in interrogation policy.

“If Justice says some practices are in violation of the C.I.D. standard,” Mr. Zelikow said, referring to cruel, inhuman or degrading, “then they are now saying that officials broke current law.”

In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.

Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.

In a frequent practice, Mr. Bush attached a statement to the new law when he signed it, declaring his authority to set aside the restrictions if they interfered with his constitutional powers. At the same time, though, the administration responded to pressure from Mr. McCain and other lawmakers by reviewing interrogation policy and giving up several C.I.A. techniques.

Since late 2005, Mr. Bradbury has become a linchpin of the administration’s defense of counterterrorism programs, helping to negotiate the Military Commissions Act last year and frequently testifying about the N.S.A. surveillance program. Once he answered questions about administration detention policies for an “Ask the White House” feature on a Web site.

Mr. Kmiec, the former Office of Legal Counsel head now at Pepperdine, called Mr. Bradbury’s public activities a departure for an office that traditionally has shunned any advocacy role.

A senior administration official called Mr. Bradbury’s active role in shaping legislation and speaking to Congress and the press “entirely appropriate” and consistent with past practice. The official, who spoke on the condition of anonymity, said Mr. Bradbury “has played a critical role in achieving greater transparency” on the legal basis for detention and surveillance programs.

Though President Bush repeatedly nominated Mr. Bradbury as the Office of Legal Counsel’s assistant attorney general, Democratic senators have blocked the nomination. Senator Durbin said the Justice Department would not turn over copies of his opinions or other evidence of Mr. Bradbury’s role in interrogation policy.

“There are fundamental questions about whether Mr. Bradbury approved interrogation methods that are clearly unacceptable,” Mr. Durbin said.

John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners.

“I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better,” Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.

“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.

[Crafty_Dog]

Supreme Court Refuses to Hear Torture Appeal
NY Times- caveat lector         
 
By LINDA GREENHOUSE
Published: October 10, 2007
WASHINGTON, Oct. 9 — The Supreme Court on Tuesday refused to hear an appeal filed on behalf of a German citizen of Lebanese descent who claims he was abducted by United States agents and then tortured by them while imprisoned in Afghanistan.

Text: 4th Circuit Opinion (El-Masri v. U.S.) (pdf)Without comment, the justices let stand an appeals court ruling that the state secrets privilege, a judicially created doctrine that the Bush administration has invoked to win dismissal of lawsuits that touch on issues of national security, protected the government’s actions from court review. In refusing to take up the case, the justices declined a chance to elaborate on the privilege for the first time in more than 50 years.

The case involved Khaled el-Masri, who says he was detained while on vacation in Macedonia in late 2003, transported by the United States to Afghanistan and held there for five months in a secret prison before being taken to Albania and set free, evidently having been mistaken for a terrorism suspect with a similar name.

Mr. Masri says he was tortured while in the prison. After prosecutors in Germany investigated the case, a court there issued arrest warrants in January for 13 agents of the Central Intelligence Agency. The German Parliament is continuing to investigate the episode, which has become a very public example of the United States government’s program of “extraordinary rendition.”

Mr. Masri, represented by the American Civil Liberties Union, brought a lawsuit in federal court against George J. Tenet, director of central intelligence from 1997 to 2004; three private airline companies; and 20 people identified only as John Doe. He sought damages for treatment that he said violated both the Constitution and international law.

Shortly after he filed the lawsuit in December 2005, the government intervened to seek its dismissal under the state secrets privilege, asserting that to have to provide evidence in the case would compromise national security. That argument succeeded in the Federal District Court in Alexandria, Va., which dismissed the case without permitting Mr. Masri’s lawyers to take discovery. The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld the dismissal in March.

In their Supreme Court appeal, El-Masri v. United States, No. 06-1613, Mr. Masri’s lawyers argued that these rulings allowed the state secrets doctrine to become “unmoored” from its origins as a rule to be invoked to shield specific evidence in a lawsuit against the government, rather than to dismiss an entire case before any evidence was produced.

The Supreme Court created the doctrine in a 1953 decision, United States v. Reynolds, which began as a lawsuit by survivors of three civilians who had died in the crash of a military aircraft. In pretrial discovery, the plaintiffs sought the official accident report.

But the government, asserting that the report included information about the plane’s secret mission and the equipment that it was testing, refused to reveal it. The Supreme Court upheld the government, ruling that evidence should not be disclosed when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

Mr. Masri’s lawyers argued that this decision, which the court has occasionally invoked but has not revisited, did not justify dismissing a case before any evidence was requested. Ben Wizner, Mr. Masri’s lawyer at the civil liberties union, said in an interview that the courts had permitted the doctrine to evolve from an evidentiary privilege to a broad grant of immunity, a way for the executive branch to shield itself from judicial scrutiny.

In this case, Solicitor General Paul D. Clement offered to let the justices see, “under appropriate security measures,” the classified declaration that the government filed in the lower courts to support its claim of privilege. The court evidently did not think that step was necessary.

The court will soon have other opportunities to revisit the state secrets issue. Last week the A.C.L.U. filed an appeal that raises the issue as part of a challenge to the National Security Agency’s program of wiretapping without court warrants.

[Crafty_Dog]

The Surveillance Law That Matters
The president is bound by the Constitution, not the whims of Congress.
WSJ
BY ROBERT F. TURNER
Wednesday, October 24, 2007 12:01 a.m. EDT

I have never met Judge Michael Mukasey, and I have no strong feelings on who should be our next attorney general. But after four decades studying and writing about national security aspects of our Constitution, I believe Congress and the American people must understand that some of the issues raised in Mr. Mukasey's confirmation hearings are far more complex than they may initially appear.

Take, for example, Sen. Pat Leahy's question to Mr. Mukasey about whether the president has the power to violate the Foreign Intelligence Surveillance Act (FISA). I know that statute well, having worked in the Senate when it was enacted in 1978, and later serving as the senior White House lawyer under President Reagan charged with overseeing the implementation of FISA and other intelligence laws.

The real issue here is not whether the president is "above the law," but rather which "law" he must see "faithfully executed" when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: "an act of the legislature repugnant to the Constitution is void." From the earliest days of our history until FISA was enacted, it was understood by all three branches that the Constitution had left the president (to quote Federalist No. 64) "able to manage the business of intelligence as prudence might suggest."

When Congress passed the first wiretap statute in 1968, it expressly declared that nothing in it would limit "the Constitutional power of the President" to collect foreign-intelligence information. Every administration from FDR to (and including) Jimmy Carter engaged in warrantless foreign-intelligence wiretapping in the belief that this was one of the "exceptions" to the Fourth Amendment's warrant requirement. Others include border searches and searches of commercial airline passengers and their luggage (not to mention the requirement, imposed by Congress, that citizens entering a congressional office building to exercise their constitutional right to petition their government for redress of grievances must submit to a warrantless search absent the slightest probable cause).

In 1978, Carter administration Attorney General Griffin Bell told the Senate that FISA "does not take away the power of the President under the Constitution"; but he explained that the statute could nevertheless work because President Carter was "agreeing to follow the statutory procedure." That was Mr. Carter's prerogative as it is President Bush's--but neither they nor Congress may take away the constitutional power of future presidents.

The Foreign Intelligence Surveillance Court of Review (composed of federal appeals court judges) noted, in a unanimous 2002 opinion, that every federal court to decide the issue held the president has constitutional power to authorize warrantless foreign-intelligence electronic surveillance. The opinion added: "FISA could not encroach on the President's constitutional power."





The Supreme Court has had at least six opportunities to limit presidential power in this area. In the 1967 Katz case that first required a warrant for wiretaps, the Court expressly exempted "national security" wiretaps from its holding. When it required a warrant for national security wiretaps of purely domestic targets in 1972, it exempted electronic surveillance of the "activities of foreign powers and their agents" in this country. On four other occasions it declined to hear cases on appeal where it had the opportunity to impose a warrant requirement on foreign-intelligence electronic surveillance.
Much contemporary debate over presidential claims of power to ignore "laws" fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential "signing statements" in recent decades. On June 11, 1976, Sen. Robert P. Griffin (R., Mich.) inserted a lengthy statement I'd drafted into the Congressional Record explaining why "legislative vetoes" of executive agency actions were unconstitutional. Seven years later, the Supreme Court echoed those arguments in reaching the same conclusion in the Chadha case. The congressional response? It has since enacted more than 500 new unconstitutional legislative vetoes.

Mr. Mukasey rightly promised to resign rather than violate his oath of office if the "president proposed to undertake a course of conduct that was in violation of the Constitution" and could not be dissuaded. For precisely the same reason, he was also right to refuse to be bound by unconstitutional acts of Congress like FISA that usurp presidential power. Any senator who elects to vote against him because of this issue has a duty to explain to the American people by what theory an unconstitutional statute has suddenly taken on a superior position to the Constitution itself.

Mr. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where he cofounded the Center for National Security Law in 1981. He is a former three-term chairman of the American Bar Association's Standing Committee on Law and National Security.

[Crafty_Dog]

Second post of the morning, caveat lector its the NYTimes:

News Analysis
Mistrial Is Latest Terror Prosecution Misstep for U.S.
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By ADAM LIPTAK and LESLIE EATON
Published: October 24, 2007
There was a time when federal prosecutors would consistently win terrorism prosecutions.

Skip to next paragraph
 
Fred R. Conrad/The New York Times
Sheik Omar Abdel Rahman, the blind cleric found guilty in 1995 of conspiring to wage war against the United States.

Related
U.S. Prosecution of Muslim Group Ends in Mistrial (October 23, 2007) From 1993 to 2001, prosecutors in Manhattan convicted some three dozen terrorists through guilty pleas and in six major trials.

Since the Sept. 11 attacks, the government’s track record has been decidedly spottier, and its failure to obtain a single conviction on Monday in its terrorism-financing prosecution of what was once the nation’s largest Islamic charity was another in a series of missteps and setbacks.

The comparisons are in some ways unfair, as the earlier prosecutions were for completed acts of violence — like the first World Trade Center attack or the 1998 bombings of American embassies in Africa — or for conspiracies that were relatively close to fruition.

The recent ones have often relied on the less colorful charge that the defendants had given “material support” to a terrorist organization. That shift is itself reflective of a conscious change in Washington’s law enforcement strategy, to prevention from punishment.

But some scholars and former prosecutors say the government should have known better than to bring some of its recent failed cases and that a lack of selectivity and judgment, along with a reliance on stale evidence and links to groups not at the core of the current threat, may be harming the effort to combat terrorism.

The pre-9/11 cases brought in Manhattan, said Peter S. Margulies, a law professor at Roger Williams University in Rhode Island, “reflected U.S. attorneys and federal prosecutors at their best, using their discretion, bringing cases when they had strong cases and declining to bring them when they were weak.”

How successful the more recent prosecutions have been depends on what is being counted. In cases trying to prove material support for terrorism, the government’s success rate is “pretty reasonable,” said Robert M. Chesney, a law professor at Wake Forest University.

From the Sept. 11 attacks to last July, the government started 108 material-support prosecutions and completed 62, according to an article by Professor Chesney that is to appear in The Lewis & Clark Law Review. Juries convicted 9 defendants, 30 defendants pleaded guilty, and 11 pleaded guilty to other charges. There were eight acquittals and four dismissals.

“They do lose sometimes,” Professor Chesney said. “But they win more often than they lose. It’s not one loss after another.”

Material-support cases are just a small fraction of what the Justice Department counts as terrorism prosecutions, and in the larger picture the government is not doing nearly as well. According to the Center on Law and Security at the New York University School of Law, the government has a 29 percent conviction rate in terrorism prosecutions overall, compared with 92 percent for felonies generally.

In the trial that ended on Monday with a mix of acquittals and deadlocks, the Holy Land Foundation and several of its officials were charged with giving money to Hamas, the militant Palestinian organization designated a terrorist group by the United States in 1995. The Federal Bureau of Investigation started looking into Holy Land in 1993.

Legal experts said it could be hard to prosecute cases in which some of the evidence was quite old. Indeed, much of the evidence had been available to prosecutors in the Clinton Justice Department, and the material support law was enacted in 1996. But those prosecutors did not pursue the matter.

“There are some of these cases that we did not push — certainly aggressively, sometimes not at all — because we were in a different mindset before 9/11,” said Andrew C. McCarthy, who led the 1995 prosecution of Sheik Omar Abdel Rahman, the blind cleric convicted of conspiring to wage war against the United States.

William Neal, a juror in the Holy Land case, complained that the government’s evidence “was pieced together over the course of a decade — a phone call this year, a message another year.”

Instead of trying to prove that the defendants knew they were supporting terrorists, Mr. Neal said, prosecutors “danced around the wire transfers by showing us videos of little kids in bomb belts and people singing about Hamas, things that didn’t directly relate to the case.”

Mr. McCarthy said he did not envy the Holy Land prosecutors. “It’s very hard,” he said, “even if your evidence is not ambiguous, to sell to a jury that they need to do something that you failed to do something about for years.”

The case was, moreover, about support for Hamas, which jurors are not likely to think poses the sort of direct threat to American security that groups like Al Qaeda do, Mr. McCarthy said.

Civil liberties groups said the Holy Land case was one in a line of misguided prosecutions. They pointed to the collapse of a case against men once accused of being part of a terrorism sleeper cell in Detroit, to the combination of acquittals and deadlocks in the trials of a Saudi student in Idaho and a Palestinian professor in Florida and to the convictions of two men on relatively minor charges in February after a three-month terrorism trial.

“You would think that juries would be eager to convict given the way these guys were painted,” said Jules Lobel, a law professor at the University of Pittsburgh and an author, with David Cole, of “Less Safe, Less Free: Why America Is Losing the War on Terror.”

Juries “are demanding strict proof” these days, said Thomas M. Melsheimer, a former federal prosecutor.

The Holy Land case, which prosecutors have promised to retry, is a particularly curious one, as the government had long ago put the group out of business, said Matthew D. Orwig, a lawyer in Dallas who was until recently United States attorney for the Eastern District of Texas.

“I think the government won when it froze the assets and shut down the organization,” Mr. Orwig said. “Then it piled a loss on top of a win because it lost the prosecution, in an arguably superfluous action.”

Leslie Eaton reported from Dallas.

[Crafty_Dog]

Judges vs. Jihadis
By DAVID B. RIVKIN JR. and LEE A. CASEY
November 8, 2007; Page A23

Advocates of a "law enforcement" approach to fighting transnational terror claimed vindication last week when 21 of 28 accused terrorists were convicted in Madrid. Prime Minister José Luis Rodríguez Zapatero described the Oct. 31 verdicts as "justice" and urged Spain to "look to the future." It is, of course, the future that is at issue.

Spain has every right to celebrate the capture, trial and conviction of these 21 individuals either implicated in helping to organize the March 11, 2004, train bombings in Madrid that killed 191 people, or otherwise associated with terrorism. Yet there is little reason to believe that the verdicts will have any measurable deterrent effect on jihadists, who remain determined to strike at the West's civilian populations whenever opportunity allows. Prevention remains key to defeating this threat.

 
Here, the justice system will be of limited utility because -- whether organized under the Civil Law (like Spain and most of Europe) or the Common Law (like the U.S.) -- it is not designed to anticipate and stop criminal behavior before it takes place. At least since the Enlightenment, Western judicial institutions have focused on dealing with society's deviants, rather than on meeting the threat of foreign attack, and have sought to prevent criminal behavior by inculcating a dread -- in the form of an individual's respect for, rather than terror of, the law.

As the great Italian legal scholar and reformer Beccaria wrote in the 1760s, to prevent crime, "make sure that men fear the laws and only the laws." Where respect fails, of course, there also is fear of punishment under the law -- deterrence. The system breaks down, however, when the criminals neither have respect for the law nor fear its potential punishments.

This is exactly the situation in which the West now finds itself. The followers of violent jihad do not respect the laws of democratic governments, but claim a superior legitimacy in the form of their own interpretation of Islam's Quran and Shariah law. Many of them also do not fear punishment. If proof of this were needed, it can be found both in the very nature of al Qaeda's Sept. 11, 2001, attacks on the U.S. by suicidal operatives, and the self-immolation of the seven ringleaders who masterminded the 2004 attacks on Madrid. When Spanish police closed in on their safe house outside that city, these men blew up the house -- and themselves.

To be sure, since 9/11 a number of European countries -- some experienced in fighting home-grown terror movements such as the IRA in Britain and the ETA in Spain -- have made their judicial systems more capable of meeting the challenge. Britain, Denmark, France, Germany, Italy, the Netherlands and Spain have all adopted new or expanded counterterrorism legislation. They've all taken one or more of the following actions: establishing or broadening the offense of terrorism to include membership in a terrorist organization; approving sometimes long pretrial detention for terror suspects; banning organizations with terrorist connections; and legalizing the use of deportation and expulsion of suspected terrorist suspects in some cases.

However, although Europe has had some notable successes in preventing terror plots -- largely through the use of national intelligence agencies -- the record of convictions has been less promising. As the U.S. State Department diplomatically concluded in its 2006 "Country Reports on Terrorism" with respect to Germany: "German laws and traditional procedures, as well as the courts' longstanding and expansive view of civil liberties, sometimes limited the success of cases prosecutors brought to trial."

Even the successful Spanish prosecutions did not include one of the individuals -- now jailed on terror charges in Italy -- believed by the government to have orchestrated the Madrid attacks. Rabei Osman, an Egyptian, was acquitted. Many March 11 victims were not satisfied with the outcome.

This, ultimately, is the problem. The criminal justice system is not infinitely elastic. It can be changed only so much before it becomes unrecognizable. Although the Civil Law system is marginally better suited than the Common Law system for antiterror prosecutions -- permitting more closed proceedings and less technically demanding evidentiary standards -- both are built upon the assumption that it is better to let the guilty go free than to convict the innocent.

That is an appropriate balance when a society is dealing with its own reprobates. It is not so obviously correct when the threat is a foreign movement whose purpose is to cause death and destruction on a grand scale.

If further proof were needed of the judicial system's inability to bear the primary burden of meeting (and defeating) transnational terror, it could be found in the scenes last Wednesday in Madrid. When the judge's decisions were handed down, the courthouse was surrounded by security forces -- including helicopters buzzing protectively around the building. Courts do not make good fortresses.

It's likely that these very limitations, at least in part, prompted the Bush administration to eschew a policing response to the 9/11 attacks, and to declare a war against terror. The result has been one of the sharpest trans-Atlantic divisions in postwar history, a division that probably will not end anytime soon. Regardless of whether the next American president is a Democrat or Republican, he or she is likely to continue the war on terror in practice, if not in rhetoric.

Only the law of armed conflict permits the flexibility needed to disrupt al Qaeda's operations on an international level. Had the Bush administration followed a law-enforcement path, and sought the judicial assistance of Afghanistan's Taliban, Osama bin Laden would still be secure in his bases and training facilities, far more capable of planning and executing future attacks.

Al Qaeda and its allies believe that they are at war with the West and have acted on that belief. Even with the best intentions, the West cannot prevail by ignoring this stark and unbending fact.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush, and were members of the U.N. Sub-Commission on the Promotion and Protection of Human Rights from 2004-2006.

WSJ

[Crafty_Dog]

Washington Protects the Terror Masters
by Daniel Pipes
Jerusalem Post
November 15, 2007
http://www.danielpipes.org/article/5124

[JP title: Washington's conflicting signals]

The Bush administration's counterterrorism policies appear tough, but inside the courtroom, they evaporate, consistently favoring not American terror victims, but foreign terrorists.

Consider a civil lawsuit arising from a September 1997 suicide bombing in Jerusalem. Hamas claimed credit for five dead and 192 wounded, including several Americans. On the grounds that the Islamic Republic of Iran had financed Hamas, five injured Americans students sued it for damages.

Expert testimony established the regime's culpability during a four-day trial, leading Judge Ricardo M. Urbina, under the Flatow Amendment of the Foreign Sovereign Immunities Act, to fine the Iranian government and its Revolutionary Guard Corps US$251 million in compensatory and punitive damages.

The plaintiffs looked for Iranian government assets in the United States to seize, in accord with the little-known section, 201a of the Terrorism Risk Insurance Act of 2002, which states that "Notwithstanding any other provision of law … in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism … the blocked assets of that terrorist party … shall be subject to execution."

 
An ancient Iranian fragment similar to the ones in legal dispute in a terrorism case.
 
 
Finding Iranian assets, however, proved no easy task, as most of them had been withdrawn by the Iranian authorities after the embassy hostage crisis of 1979-81. Therefore, the victims' lead lawyer, David Strachman of Providence, R.I., devised some creative approaches, such as intercepting the imminent return of ancient Iranian clay tablets on loan to the University of Chicago for up to seventy years.

Strachman found just one significant cache of Iranian government money: approximately $150,000 at the Bank of New York, in an account belonging to Bank Melli, Iran's largest bank and a fully-owned subsidiary of the regime. However, when the plaintiffs sued for these funds, BoNY filed a federal lawsuit asking for a legal determination what to do with its Bank Melli assets.

The victims' task in this case may have appeared easy, given that the U.S. government (1) views Bank Melli as an "wholly-owned instrumentality" of the Iranian government and it (2) considers that government a "terrorist party."

But no, the U.S. Department of Justice "entered this case as amicus curiae in support of Bank Melli." It did so, explained a spokeswoman for the Treasury Department, "to vindicate a correct reading" of the U.S. regulation. Its amicus brief appears decisively to have influenced the trial judge, Denise Cote, who adopted the joint Bank Melli-Justice Department position in toto and ruled in March 2006 against the funds being awarded to the victims. The latter appealed to the Second Circuit Court, but it too sided with the Justice Department, dismissing the suit in April 2007.

Its funds then in the clear, Bank Melli immediately removed them all from BoNY and transferred them beyond U.S. jurisdiction.

The story does not end there. On October 25, the State Department announced that Bank Melli would henceforth be cut off from the U.S. financial system because it "provides banking services to entities involved in Iran's nuclear and ballistic missile programs" by facilitating "numerous purchases of sensitive materials." Further, it found that Bank Melli "was used to send at least $100 million" to Iran's terrorist fronts, including those which had trained the Hamas members who perpetrated the 1997 Jerusalem bombing.

This incompetent outrage – Washington first helping Bank Melli, then sanctioning it – fits a larger pattern of federal agencies advocating in court on behalf of terrorists.

Justice tried to shield Tehran from victims' claims in the University of Chicago case.
It opposed the attachment of a mere $10,000 of Iranian funds to one 1997 victim family; and, when the family won in district court, it appealed the verdict.
It interceded in Ungar v. Hamas to prevent the orphaned victims' attachment of $5 million belonging to the Holy Land Foundation, a Texas organization prosecuted as a Hamas front.
In Ungar v. PLO and PA, the State Department rescued the Palestine Liberation Organization when the Ungars tried to enforce their $116 million judgment against a PLO-owned office building in Manhattan.
Is there not something deeply flawed about the U.S. government consistently siding with terrorists and, according to Strachman, "never once supporting terrorism victims to collect their judgments in court"? One hopes it will not require a new terrorist catastrophe to fix these misguided policies.

Other items in category Arab-Israel conflict & diplomacy
Other items in category Counter-terrorism
Other items in category Terrorism
Other items in category US policy

[Crafty_Dog]

Gitmo Goes to Court
The judiciary has no business managing how we fight wars abroad.

BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Thursday, December 6, 2007 12:01 a.m. EST

The Supreme Court heard a spirited argument yesterday on whether foreign enemies, captured and held overseas, are entitled to the protections of the United States Constitution. Since the founding of our republic, the answer to that question has always been an unequivocal "No."

If, after hearing Boumedienne v. Bush, the court makes up new rules, it will mark an unprecedented expansion of judicial power into areas--the conduct of foreign affairs and war making--the Constitution reserves to the president and Congress, the elected representatives of the American people. The Boumedienne case is as much about the Supreme Court's willingness to constrain its own power as it is about detainee rights.

This latest challenge to the Bush administration's war policies was brought by enemy combatants held at the Guantanamo Bay Naval Station, who claim the right to a habeas corpus hearing--to determine the legality of their detention--before the federal courts. Congress attempted to foreclose such claims in 2005, when it passed the Detainee Treatment Act (DTA), creating an elaborate administrative process through which detainees can contest their classification as "enemy combatants," with an appeal to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. All other federal court jurisdiction was withdrawn at that time.

Nevertheless, because the Supreme Court wanted to clarify that the new system applied to pending, as well as future, cases, the court permitted these challenges to go forward in its 2006 decision in Hamdan v. Rumsfeld. Congress responded immediately, passing the Military Commissions Act (MCA) and overruling Hamdan.





The MCA established a system of military tribunals to try the Guantanamo detainees, again with appeals to the U.S. Court of Appeals in Washington, D.C., and the Supreme Court. The law also stated with remarkable clarity that these procedures excluded all other judicial review for detainee claims, past, present and future. As one judge wrote in dismissing Mr. Boumedienne's case after the MCA was enacted--"it is almost as if the [congressional] proponents of these words were slamming their fists on the table shouting 'When we say 'all,' we mean all--without exception.'"
Last April, the Supreme Court appeared to agree, refusing to revive the appeals. Unfortunately, it changed its mind in June, agreeing to consider whether Congress can constitutionally refuse the Guantanamo detainees--who are not U.S. citizens or held on U.S. territory--access to habeas corpus rights. This is not a close question. When the framers adopted the Constitution to "secure the Blessings of Liberty to ourselves and our Posterity" they were not talking about enemy aliens overseas engaged in a war against the republic they founded.

That, certainly, was the Supreme Court's conclusion in Johnson v. Eisentrager (1950), which involved similar claims by Germans arrested by U.S. forces in China, and then imprisoned in occupied Germany. Their habeas claims were rightly rebuffed.

As Justice Robert Jackson wrote for the court, "Such extraterritorial application of organic law [the Constitution] would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment." Such a rule would, indeed, have been bizarre--handicapping the U.S. in its foreign relations and putting it at a permanent disadvantage compared to every other country on earth.

That was true in 1950, and it remains true today. To grant constitutional rights to the Guantanamo detainees, the Supreme Court must ignore its own settled precedent--on which the president and Congress were entitled to rely--and rewrite the Constitution itself.

The consequences would be disastrous. Such a decision would bring judges to the battlefield. As Justice Jackson warned, permitting foreign enemies to haul American officials into court "would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."

Because the Constitution does not apply to foreigners overseas, the procedural rights accorded to the Guantanamo detainees are a matter exclusively for the political branches. Subjecting them to constitutional scrutiny would overstep the judiciary's legitimate power, making it the ultimate arbiter of U.S. foreign policy. Moreover, if the court were to grant constitutionally based habeas rights to aliens overseas, there is no principled means of avoiding extension of the entire Constitution anywhere in the world where U.S. forces (or officials) may go.

For the first time in American history, an entire panoply of the federal government's overseas actions directed at foreigners, including surveillance and even use of deadly force, would become subject to constitutional strictures. This would transform the U.S. into a Gulliver, bound by its own judicial strings, on the international stage.

The Constitution grants the Supreme Court a limited original jurisdiction, and leaves Congress free to define its appellate authority and the judicial power of the lower federal courts. Here, Congress has determined that detainees will have certain administrative means of challenging their detention, and a review by the D.C. Circuit and Supreme Court. That is all Congress deemed appropriate here--and, needless to say, this is more than other captured enemy combatants have received in the past.





Even if habeas corpus applied--and there is no precedent for its application (either in British or American practice) to foreigners held overseas--the processes established by Congress in the DTA and MCA would constitute an adequate substitute. The Supreme Court has long recognized that, even with respect to Americans held in the U.S., habeas review is limited in scope. If focuses on questions of law rather than a detailed analysis of the factual record. Many different procedures are sufficient to meet any constitutional habeas requirement.
In these cases, the factual inquiry detainees are accorded under the Pentagon's "combatant status review tribunals" are an adequate substitute for habeas. They are modeled on the review legitimate prisoners of war would receive under the Geneva Conventions in accordance with the Supreme Court's 2004 decision in Hamdi v. Rumsfeld, and linked with the right of appeal to the D.C. Circuit and Supreme Court on procedural and constitutional standards. This fact alone is more than sufficient for the court to uphold the MCA, without ever reaching the underlying constitutional issues involved. Justice Anthony Kennedy--a potential decisive vote in this case--seemed sympathetic to this argument.

After years of public debate, with many of the key issues playing a prominent role in the presidential and congressional elections, Congress and the president have created a system that allows enemy combatants to challenge their detention, and to achieve a limited judicial review in U.S. courts. This is sufficient. The Supreme Court should not reject the law merely because it might disagree with the policy results adopted by the elected branches of government.

The court has already meddled more in this area in the last several years than in all of prior history. It has no right to demand more.

Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Ronald Reagan and George H.W. Bush.

WSJ

[Crafty_Dog]

Terrorist Tort Travesty
By JOHN YOO
January 19, 2008; Page A13

War is a continuation of politics by other means, the German strategist Carl von Clausewitz famously observed in his 19th-century treatise, "On War." Clausewitz surely could never have imagined that politics, pursued through our own courts, would be the continuation of war.

Last week, I (a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.

 
José Padilla
The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.

On Thursday, a federal judge moved closer to sentencing Padilla to life in prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000. American officials stopped him at Chicago O'Hare airport in 2002, based on intelligence gained from captured al Qaeda leaders that he was plotting a dirty bomb attack.

President Bush declared Padilla an enemy combatant and ordered him sent to a naval brig in South Carolina. After a federal appeals court rejected Padilla's plea for release, the government transferred him to Miami for trial for al Qaeda conspiracies unrelated to the dirty bomb plot. Federal prosecutors described Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists.

Now Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. They claim that the government cannot detain Padilla as an enemy combatant, but instead can only hold and try him as a criminal. Padilla alleges that he was abused in military custody -- based primarily on his claim that he was held in isolation and not allowed to meet with lawyers.

But enemy prisoners in wartime never before received the right to counsel or a civilian trial because, as the Supreme Court observed in 2004, the purpose of detention is not to punish, but to prevent the enemy from returning to the fight.

Under Padilla's theory, the U.S. is not at war, so any citizen killed or captured by the CIA or the military can sue. In November 2002, according to press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen desert. One was an American, Kamal Derwish, who was suspected of leading a terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's survivors could sue everyone up the chain of command -- from the agent who pressed the button, personally -- for damages.

Padilla's complaints mirror the left's campaign against the war. To them, the 9/11 attacks did not start a war, but instead were simply a catastrophe, like a crime or even a natural disaster. They would limit the U.S. response only to criminal law enforcement managed by courts, not the military. Every terrorist captured away from the Afghanistan battlefield would have the right to counsel, Miranda warnings, and a criminal trial that could force the government to reveal its vital intelligence secrets.

America used this approach in the 1990s with al Qaeda. It did not work. Both the executive and legislative branches rejected this failed strategy. In the first week after 9/11, Congress passed a law authorizing the use of military force against any person, group or nation connected to the attacks, and recognized the President's constitutional authority "to deter and prevent acts of international terrorism against the United States."

In the spring of 2002, I was a Justice Department lawyer asked about the legality of Padilla's detention. There is ample constitutional precedent to support the detention of a suspected al Qaeda agent, even an American citizen, who plans to carry out terrorist attacks on our soil. During World War II, eight Nazi saboteurs secretly landed in New York to attack factories and plants. Two of them were American citizens.

After their capture, FDR sent them to military detention, where they were tried and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the detention and trial by military authorities of American citizens who "associate" with "the military arm of the enemy" and "enter this country bent on hostile acts." If FDR were president today, Padilla might have fared far worse than he has.

None of that matters to the anti-war left. They failed to beat President Bush in the 2004 elections. Their efforts in Congress to repeal the administration's policies have gone nowhere. They lost their court challenges to Padilla's detention. The American public did not buy their argument that the struggle against al Qaeda is not really a war.

So instead they have turned to the tort system to harass those who served their government in wartime. I am not the only target. The war's critics have sued personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and other top government officials for their decisions in the war on terrorism. Other lawsuits have resorted to the courts to attack the telecommunications companies that helped the government intercept suspected terrorist calls.

It is easy to understand why CIA agents, who are working on the front lines to protect the nation from attack, are so concerned about their legal liability that they have taken out insurance against lawsuits.

Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.

The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.

Mr. Yoo is a professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of "War By Other Means" (Grove/Atlantic 2006).

[G M]

If the dems win the white house and end the war against the global jihad, my only hope is that the blue states bear the brunt of the CONUS attacks. I'm sure in the aftermath, it'll all be Bush's fault somehow. Maybe after they have to sweep up body parts in the bay area, they'll find a new support for the military and law enforcement. No, probably not....

[Crafty_Dog]

Listening to the Enemy
By ROGER PILON
January 28, 2008; Page A15

Today the Senate takes up a bipartisan surveillance authorization measure that's already passed the Intelligence Committee. The clock is ticking. This Friday a temporary law called the Protect America Act will expire. If Congress does not act before then, the president's statutory power to prevent terrorist attacks will be seriously compromised.

This dangerous situation should never have arisen. From the beginning, presidents have exercised their Article II executive power to gather foreign intelligence -- in war and peace alike, without congressional or judicial intrusion. As our principal agent in foreign affairs, the president is constitutionally bound to protect the nation. For that, intelligence is essential.

Intelligence is essential on the domestic side as well, where law enforcement is the president's main function. Yet not until 1967 did the Supreme Court require warrants for electronic surveillance. Congress codified that a year later. But both the court and Congress expressly exempted foreign-intelligence gathering from the warrant requirement.

Unfortunately, the exception was not to last. Following the Vietnam War, Congress increasingly inserted itself into foreign affairs, as with the 1973 War Powers Act. With the Foreign Intelligence Surveillance Act, passed in 1978, Congress began micromanaging foreign intelligence gathering. That produced the "wall" between foreign and domestic intelligence gathering -- with foreign-intelligence agents focused on security, and domestic agents on prosecution and hence on obtaining "admissible" evidence. Neither side talked to the other. Many believe the resulting communications failures played a role in 9/11.

In the aftermath of 9/11, believing FISA to be hopelessly inadequate, President Bush instituted his terrorist surveillance program (TSP) -- but not before advising key members of Congress. Nevertheless, a firestorm ensued when the New York Times made the program public in December 2005. The controversy continued until January 2007, when the White House announced that henceforth it would gather intelligence under FISA's antiquated restrictions.

Cooler heads in Congress grew concerned after Director of National Intelligence Michael McConnell testified in July that "we're actually missing a significant portion of [the intelligence] we should be getting." That led to last August's six-month fix, which expires this week.

Obviously, this is no way to conduct the serious business of foreign intelligence. The ever-changing rules -- criminalizing transgressions -- leave officials playing it safe in a world of risks.

The Senate bill would be an improvement, not least because it provides retroactive liability protection for telecom companies that allegedly assisted the government after 9/11. But the deeper problem is the very idea of congressional micromanagement.

The Senate bill would require showing probable cause before targeting even U.S. persons abroad, dramatically increasing the role of the FISA court. As Judge Richard Posner wrote on this page two years ago, FISA may be valuable for monitoring communications of known terrorists, "but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist."

The technical impediments to legislating are even greater. We're long past alligator clips on copper wires. Today, electronic communication is broken into discrete packets that travel along independent routes before being reassembled. As K.A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, has written, "even targeting a specific message from a known sender requires intercepting (i.e., scanning and filtering) the entire communication flow." Yet the Senate bill requires that intelligence analysts count the people in the U.S. whose communications were "reviewed," an all but impossible distraction for analysts already stretched.

Privacy concerns are not trivial. The Constitution protects against "unreasonable" searches. But even with law enforcement, where the main function is ex post prosecution, not ex ante protection, there are numerous exceptions to the Fourth Amendment's warrant requirement. Yet Congress insists still on micromanaging the president -- and he, by failing to assert his authority early on, is now reduced to bargaining with Congress over minutia that will soon be as obsolete and dangerous as the underlying act is today.

John Locke, no sometime civil libertarian, put it well when he observed that the foreign affairs power "is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive." The Federalist's authors, James Madison, Alexander Hamilton and John Jay, all agreed. The remedy for executive incompetence or recklessness in foreign affairs is political -- not legislative, much less legal. Congress, to say nothing of the courts, can no more manage such affairs than it can the economy. What better evidence than these surveillance fits and starts?

Mr. Pilon holds the Cato Institute's B. Kenneth Simon Chair in Constitutional Studies.
WSJ