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I've moved!

Check out my new blog at The Faster Times.

Winning hearts and minds

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I hope my fitness for living in the United States is never judged on what YouTube videos I've ever watched.

Has "driving while Arab" entered the vernacular yet?

They took turns driving north until they reached Goose Creek, S.C., where the police pulled them over for going 60 miles an hour in a 45-m.p.h. zone. One of two deputies involved said he had become suspicious when the men quickly put away a laptop; a recording of the traffic stop captured the officer saying, "I think they’re part of the Taliban."

Nadler to hold state secrets hearings

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This is welcome news.

Rep. Jerry Nadler (D-NY), who chairs the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary committee, will host hearings Thursday to examine how to curb abuse of the [State Secrets] privilege, while protecting true state secrets.

Nadler has been on top of this issue for quite a while [shameless self-promotional link]. And action is needed even more quickly now that the White House is apparently working with Senators to increase state secrets privileges:

The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009 -- that literally has no purpose other than to allow the government to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." As long as the Defense Secretary certifies -- with no review possible -- that disclosure would "endanger" American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.

Joe Lieberman would be involved in this, wouldn't he.

Some questions for the President

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Today's speech from President Obama was kind of like his presidency so far: at least 75% impressive, heartening, and inspiring to watch...and about 25% really disturbing. He has been rightly applauded for decisively rejecting the ludicrous fear-mongering around the transferring of Gitmo detainees to American prisons. He also made some great statements about transparency (information should be released unless there's a compelling reason not to), about presidential power (decisions on detainees shouldn't rest with one person), and about why Gitmo makes us less safe.

But he also, for I believe the first time, explicitly made the case for a system of indefinite detention for certain detainees - a truly radical proposal, made even more insidious by its couching in soaring rhetoric about the Constitution. And he pledged that no one who could be dangerous to the U.S. will be released - something he can't personally guarantee unless he retains the power to be the sole arbiter of certain detainees' fates. So here are some questions I hope someone will ask the President and/or his representatives as soon as possible:

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-About military commissions, you say:

They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Could you describe exactly what sources and methods could not be adequately protected in a federal court in, for instance, an in camera hearing with a judge? How would participants not be safe and secure in a federal court? And could you describe exactly the kind of evidence that cannot be effectively presented in federal court and why not? And how does all this jibe with your assertion that the nation's courts are quite capable of trying terrorists and have done so in the past?

-Could you please describe in detail what legal framework you envision that could make indefinite detention of people of your choosing Constitutionally and legally permissible?

-You pledged in your speech that any system of indefinite detention would be subject to judicial and congressional review. What exactly would be the system of judicial review?

-Do you intend to continue to assert the state secrets privilege during this review process, and if so, how can we be assured that the judge(s) will have adequate evidence to evaluate the case?

-You say there will be Congressional oversight. What form will this take? Under the Bush administration, Congressional "oversight" meant informing 4 senior members of Congress of a decision, who were then not allowed to discuss the information with anyone, not even their staffs. Will you devise a system of Congressional oversight that allows members of Congress to make informed judgments about your proposals and have some recourse by which to protest those proposals?

-You've pledged that no one who is a danger to America will be released. If judicial or Congressional review finds you don't have the grounds to hold a detainee you believe to be dangerous, will you disregard those findings?

-You spoke of our deepest values in your speech. Isn't habeas corpus, with us since the Magna Carta, the fundamental basis of a free society? And in order to keep your pledge not to release anyone you deem dangerous, won't you have to dispense with habeas corpus?

-Your point about the need for the government to keep certain information and evidence secret is well-taken. But in the case, for instance, of the photos of detainee abuse the release of which you are now opposing, aren't you essentially asking the American people just to trust your assertions that these are photos of isolated incidents for which people have already been held accountable? Why should we, when we've been repeatedly lied to about such issues in the past?

-If your answer is that you are fashioning a way for Congress and the courts to review your decisions on these matters, can you give details on what that oversight mechanism will be?

-You said in your speech that your administration is nearing completion of a thorough review of use of the state secrets privilege, which you say you want to be limited. If so, why have you sought actively to have several lawsuits dismissed under that privilege, instead of asking for a continuance while you finish your review - a continuance the plaintiffs were happy to give you?

-If one of your concerns about looking into the actions of the previous administration is that inevitable partisan rancor will obstruct your legislative goals, why do you want the inquiries of Congressional committees - all run by Democrats - to continue, instead of supporting an independent commission that would take the investigations out of the hands of partisan political players?
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One final thought on these matters. I think it's a little crazy that, in a speech in which he so eloquently laid out why Guantanamo is bad for our national security precisely because it undermines our values, President Obama called out those of us who advocate for full disclosure and transparency as absolutists who would put transparency over national security. We advocate for getting all the information out because we believe that knowing what our government is doing - or in the cases where we can't know everything, ensuring that there is oversight of the actions of the executive - is precisely what keeps us safe.

When Obama makes his argument that, for instance, the detainee abuse photos shouldn't be released because they'll inflame sentiment abroad, one of the reasons this doesn't scan is that people abroad already know what we do. Thousands of people from all over the Middle East (mostly Iraq and Afghanistan) have gone through our detention system, from Abu Ghraib to Bagram to Guantanamo to the CIA black sites. The only people who don't know what's going on in our detention system are Americans. And we can't advocate for our government to stop doing things that hurt our national security (by, for instance, cycling thousands of people through our detention sites) if we don't know about them.

How much is 1/7?

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Apparently, it's a lot. The big headline this afternoon is that, according to an as-yet-unreleased Pentagon report, 1 in 7 detainees released from Guantanamo have "returned" to terrorism. First of all, you can't "return" to terrorism if it's never been proved you were involved in it in the first place. Second, this is about the 12th number the government has released or leaked about how many released detainees have turned to terrorism, all debunked, and I am loath to trust this number any more than the other ones.

But for the sake of this post, let's say they're right. Am I the only one who finds this number pretty low? Obviously, it's much larger than the desired number of zero. But consider that, in addition to the people who were actually terrorists when we picked them up, we've surely created a few with our fine, fine detention system. And consider that, more than halfway into the Times story, we get this:

The Pentagon has so far provided no way of authenticating its 45 unnamed recidivists, and only a few of the 29 people who are identified by name can be independently verified as having engaged in terrorism since their release. Many of the 29 are simply described as associating with terrorists or training with terrorists, with almost no other details provided.

So even assuming the Pentagon is right about all 74 former detainees, what does it mean to be "associating" with terrorists? I "associated" with some people in college who dealt drugs. That makes me neither a drug dealer, nor even a buyer of drugs. But I digress.

As the Times also points out, the 14% Guantanamo recidivism rate (a term that in itself falsely implies that all the people in there were proven terrorists) is far below that of American prisons, which "can run as high as 68 percent three years after release." If anything, I'd say (though I'm obviously no expert) that the Guantanamo recidivism rate suggests lots of the detainees were never involved in terrorism in the first place.

But in any case, the fact that some released detainees may engage in terrorism should not be surprising. It's incredibly unfortunate and scary, but not surprising. And if we're going to be upset with anyone, let's be upset with the Bush administration that a) may have created terrorists where there were none by showing lots of young foreign men just what American power looks like, and b) made prosecuting many of the detainees who are guilty impossible through its extra-legal methods.

So here's where it would be really useful to have a president who could explain to us that, much though we may abhor the thought of possibly dangerous people going free, we don't have any choice. We're a nation of laws and international agreements, in which people are guaranteed certain rights, and the very foundational idea of this country is that its leader can't disregard those laws whenever he wants...even if he has a really really good reason.

But unfortunately, President Obama has embraced the Bush administration idea that the executive ought to have extra-legal powers...such as the power to detain people of its choosing indefinitely (a position lamentably validated by a federal judge yesterday). The problem with this positioning is that it kind of undermines Obama's case for closing Guantanamo in the first place. If it's Obama's stance that he has the power to do whatever he wants with detainees, then his choice to close Guantanamo and try detainees in various ways is just that - a choice. And so he's wide open to the argument that he ought to choose to keep Guantanamo open, because that would be safer.

This is not to deny the eloquent case Obama has made for why Guantanamo itself doesn't make us safer. But eloquent or no, when up against a Congress that is currently competing to see who can be more afraid of terrorists, Obama's opinion isn't nearly as strong a case as is the fact that he and Congress are bound by law, whether they like it or not, and that's what makes us America.

Missing detainee, source of bogus Iraq intel, located in Libya

...and two weeks later, he's been found dead, according to reports:

A former CIA high-value detainee, who provided bogus information that was cited by the Bush administration in the run-up to the Iraq war, has died in a Libyan prison, an apparent suicide, according to a Libyan newspaper.

A researcher for Human Rights Watch, who met Ibn al-Sheikh al-Libi at the Abu Salim prison in Tripoli late last month, said a contact in Libya had confirmed the death.

Libi was captured fleeing Afghanistan in late 2001, and he vanished into the secret detention system run by the Bush administration. He became the unnamed source, according to Senate investigators, behind Bush administration claims in 2002 and 2003 that Iraq had provided training in chemical and biological weapons to al-Qaeda operatives. The claim was most famously delivered by then-Secretary of State Colin L. Powell in his address to the United Nations in February 2003.

According to Michael Isikoff and David Corn, Libi made the claims under torture in Egypt and recanted them after being returned to CIA custody in 2004. He's been officially missing ever since...until a Human Rights Researcher reported meeting him in a Libyan prison two weeks ago. Now,

The Libyan newspaper Oed reported Sunday that Libi was found dead in his cell after killing himself, but added that friends of the 46-year-old former preacher, who ran a terrorist training camp in Afghanistan, questioned the alleged cause of death.

First of all, I agree with Human Rights Watch that the death should obviously be investigated. But Libi's story, resurfacing with his reported death, is a timely reminder of the dangers of intelligence gained through torture. As I wrote last month,

One wonders if we're looking at something of a self-perpetuating feedback loop: we torture people to get information about al Qaeda and Iraq, they cough up all kinds of dubious stuff under torture - plots they'd vaguely hatched in their own heads, say - which makes its way back to Washington, upping the fear of more terror attacks, and then more torture is ordered. This would seem to be yet another argument against using torture: it's not just that information given under duress is often false - but that information then has repercussions when officials treat it as a genuine threat.

Or, in the darker reading of the intersection of torture and Iraq war intel, the use of torture allows officials to get the intel they want to advance the policies they seek to implement.

JFK counsel takes torture memo lawyers to task

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A nice little tidbit from the weekend:

Ted Sorensen, former special counsel to US President John F. Kennedy, said in a commencement address [Lincoln Journal Star report] at the University of Nebraska College of Law [official website] Saturday that lawyers from the Department of Justice (DOJ) [official website] who authorized the use of enhanced interrogation techniques had "disgraced not only their country but their profession." Addressing law school graduates, Sorensen focused on the legal rationales put forward by Bush administration lawyers to justify the decisions of other officials, saying that "[i]n a country based on the rule of law, in which no man is above the law, whatever his rank or title, no man can undertake, authorize or immunize unlawful conduct." Sorensen argued that the use of enhanced interrogation techniques eroded the "moral high ground" of the US, weakened US standing with allies and promoted the recruitment efforts of terrorist organizations, thereby weakening national security...

Well worth reading the excerpts in the Jurist piece. My personal favorite is this excerpt, in which he eviscerates the most insidious and widespread defense of torture:

One apologist for those mindless Justice Department opinions authorizing and justifying torture said by way of excuse: “Remember it was a time of high danger.”

High danger? Almost 47 years ago, the President of the United States learned that the Soviet Union had suddenly, secretly rushed nuclear intermediate-range missiles onto the island of Cuba, 90 miles from our shores, with the apparent intent of using them for either nuclear obliteration or nuclear blackmail; and we entered a period that historians have subsequently called the most dangerous 13 days in the history of mankind. President Kennedy did not seek or claim extraordinary emergency legal authority. He did not order the imprisonment, much less the torture, of all Communists or Cubans in our country, nor have their telephones tapped without a warrant. Mindful of international law, he took America’s case to the United Nations and the Organization of American States, and he redesigned a proposed blockade of Cuba into quarantine against offensive weapons, carefully balancing deterrence and
defense with dialogue and diplomacy, thereby avoiding both nuclear war and a diminution of our security or our adherence to international law.

Or, put another way,

And our leaders now keep saying, "Oh this is the most terrifying time ever!" Fuck you. That time was pretty fucking scary. You know what they would do? They would come to my elementary school with films to show me how to protect myself from a nuclear fuck holocaust. They would show this giant nuclear fucking bomb just blowing the shit out of everything. Dogs and monkeys flying everywhere! The windows of the elementary school blown out, the teacher banged up against the fucking blackboard. ... Every two weeks when I was nine, my elementary school would have an air raid drill. I guess to remind me I could die at any minute!