Glenn Greenwald's Blog, page 130

Anatomy of a journalistic smear job

One long-standing -- and justifiable -- progressive grievance is that whenever ordinary Americans allow their personal plight to enter the public sphere in a way that advances a liberal political goal, they are gratuitously probed and personally smeared by the Right.  The most illustrative example is the Frost family, who allowed their 12-year-old son Graeme to deliver a moving radio address explaining the benefits he received from the CHIP program when he was in a serious car accident, only to be promptly stalked and smeared by Michelle Malkin, among others.  Today, The Nation -- a magazine which generally offers very good journalism -- subjects John Tyner to similar treatment, with such a shoddy, fact-free, and reckless hit piece (by Mark Ames and Yasha Levine) that I'm genuinely surprised its editors published it.  Beyond the inherent benefit of correcting the record, this particular article is suffused with all sorts of toxic though common premises that make it worth examining in detail.

The article is headlined "TSAstroturf: The Washington Lobbyists and Koch-Funded Libertarians Behind the TSA Scandal," and is devoted to the claim that those objecting to the new TSA procedures -- such as Tyner -- are not what they claim to be.  Rather, they are Koch-controlled plants deliberately provoking and manufacturing a scandal -- because, after all, what real American in their right mind would do anything other than meekly submit with gratitude and appreciation to these procedures?  Let's just look at the paragraphs written to "justify" this accusation.  Here's the article's first paragraph:

Does anyone else sense something strange is going on with the apparently spontaneous revolt against the TSA?  This past week, the media turned an "ordinary guy," 31-year-old Californian John Tyner who blogs under the pseudonym "Johnny Edge," into a national hero after he posted a cell phone video of himself defending his liberty against the evil government oppressors in charge of airport security.

So the article begins with a claim about what the authors "sense" to be true -- "something strange" going on -- followed by innuendo, achieved through the slothful use of scare quotes,  that Tyner is something other than an "ordinary guy."  One will search the article in total futility for a shred of evidence that supports this accusatory, smearing opening paragraph.  It continues:

While this issue is certainly important -- and offensive -- to Americans, we are nonetheless skeptical about how and why this story turned into a national movement.  In fact, this whole campaign feels a bit like déjà-vu: As the first reporters to expose the Tea Party as an Astroturf PR campaign funded by FreedomWorks and Koch-related front groups back in February, 2009, we see many of the same elements driving the current "rebellion" against the TSA: Koch-related libertarians, Washington lobbyists and PR operatives posing as "ordinary citizens," and suspicious fake-grassroots outrage relentlessly promoted in the same old right-wing echo chamber. 

They follow up their evidence-free innuendo in the opening paragraph with even stronger accusatory claims in the second:  Tyner, they strongly imply without directly accusing him, is a "Koch-related libertarian" (whatever that means) and a "Washington lobbyist and PR operative posing as [an] 'ordinary citizen'," and his outrage over what was done to him is "fake."  The implicit accusations and innuendo are piling up while the evidence remains non-existent.  It continues (emphasis in original)

So far, all we know about "ordinary guy" John Tyner III, the freedom fighter who took on the TSA agents, is that, according to a friendly hometown profile in the San Diego Union-Tribune, "he leans strongly libertarian and doesn't believe in voting.  TSA security policy, he asserts 'isn't Republican and it isn't Democratic'." [emphasis added]

Tyner attended private Christian schools in Southern California and lives in Oceanside, a Republican stronghold next to Camp Pendleton, the largest Marine Corps base on the West Coast.  

These two paragraphs -- the heart of the case against Tyner -- are insidious.  By their own admission, this is "all [they] know" about Tyner:  he has failed to swear his loyalty to one of the two major political parties, a grievous sin worthy of deep suspicion.  He refuses -- correctly -- to view TSA extremism as the by-product of either party.  Worse, he doesn't believe in voting -- a fringe and radical position in which he's joined by merely half of the entire American citizenry (65% in midterm years), 130 million voting-age Americans who -- surveying the choices -- also apparently see no reason to bother voting.  What kind of strange person would fail to find great inspiration from one of America's two Great Political Parties or refuse to see the world exclusively through a Democrat v. GOP prism?  More suspiciously still, he went to "private Christian schools" as a child and resides in a community that has a lot of Republicans in it; why, his neighborhood is even near a Marine base!  This is clearly no "ordinary guy."  

As for his standing accused by The Nation of suspicion on the grounds of his avowed libertarianism, consider what he wrote several weeks before the TSA incident.  In a post responding to this question -- "When's the last time you were seriously inconvenienced or injured by something that big government did?" -- Tyner wrote:

Gay rights [infringements], TSA body scanners, highway checkpoints, the PATRIOT Act, warrantless wiretaps, extra-judicial assassinations, indefinite detentions, inflation, etc. Don't tell me that (some of) these don't affect me.  When one person's rights are trampled, everybody's are, and that's just at the federal level.

What a right-wing monster!  If only Democratic Party leaders -- who support most of the serious rights infringements he condemns -- were this monstrous.  Or consider what he wrote about the statements of Juan Williams and Bill O'Reilly which conflated Muslims with Terrorists:

These two statements properly deserve all of the outrage, in my opinion.  Millions of Muslims do not accept violence and enable jihad.  The U.S. government, itself, says that there are probably less than 100 Al-Qaeda members fighting in Afghanistan. It admits that many are probably hiding in Pakistan, but even being generous would probably place the total number under 1,000. Muslims make up almost a quarter of the world's population.  If they all really supported violence and jihad, even if merely millions of them supported it, they would have destroyed the U.S., whose military only numbers about 1.4 million, quite decisively a long time ago.  In fact, most (the percentage of "radical" Muslims is almost infinitesimal, but still prevents one from saying "all") Muslims are peaceful, preach peace, and abhor the violence perpetrated in their religion's name.

With a Koch-related mind like that, the next thing you know, Tyner will be calling for endless war in the Muslim world, escalated civilian-slaughtering drone strikes, a covert war in Yemen, war crimes trials for child soldiers, and due-process-free life imprisonment and presidential assassinations.  Then maybe he'll decide he can become a Good Democrat and will be able to remove the cloud of suspicion that, in the eyes of these Nation writers, hangs over him.

So far, there is zero evidence -- or even a pretense of evidence -- to justify The Nation's accusations.  Other than including a quote from Tyner in which he categorically states that "he doesn't belong to any libertarian organizations and did not have any contact with anyone mentioned in this article" before the incident -- claims which The Nation does not and cannot dispute -- here are the only other two paragraphs that even mention Tyner:

At least one local TSA administrator wondered if Tyner hadn't come to the airport prepared to create a scandal. Tyner switched on his recording device before even entering the checkpoint -- and recorded himself as he refused to go through the body scanner. Most importantly, Tyner recorded himself saying "If you touch my junk, I'm gonna have you arrested!" -- which quickly morphed on blogs into the more media-savvy tagline, "Don't touch my junk!"

According to the Union-Tribune, when asked if the TSA was set up by Tyner, the local administrator coyly replied, "I don't know that it was an actual set up -- but we are concerned that this passenger did have his recording (on) prior to entering the checkpoint so there is some concern that it was an intentional behavior on his part."

So The Nation quotes an anonymous TSA official who "wonders" -- without a shred of evidence -- if Tyner provoked the incident.  That's both ludicrous and totally irrelevant.   He posted the entire audio online, which demonstrates that he was unfailingly polite throughout; it was TSA officials acting imperiously, threateningly, and thuggishly -- not Tyner.  And how could Tyner have possibly provoked TSA agents to include him in what it insists is its random selection process for passengers who receive the new screening procedures?  Moreover, even if he did prepare his videocamera before entering the checkpoint area and provoke his selection, so what?  He has the absolute right to do so, and given his obvious concern with government rights infringements, that's a completely sensible and civic-minded step to take.

What's really going on here is clear.  These are Tyner's actual crimes in the eyes of these Nation writers, at least judging by the accusations they make:  (1) he's not a good, loyal Democrat; (2) he did something that politically harmed Barack Obama; and, most and worst of all (3) he failed to submit meekly and quietly to Government orders like any Good, Patriotic "ordinary American" would and should do.  That is what has created their "sense" that he's something other than an "ordinary guy" -- a "fake."

The article highlights three other individuals who object to the TSA procedures (out of the dozens -- at least -- who have complained) who also have (cue the ominous overtones) libertarian ties.  That's not surprising.  In order to do what Tyner did -- firmly assert one's rights against government agents and then vocally and publicly complain about rights infringements -- one has to take one's liberty seriously.  After all, to do something like that is to risk being threatened by the Federal Government and smeared by journalists loyal to those in power.  It's hardly surprising that many of the people willing to take that kind of a risky stand have incorporated the concept of individual liberty into their political identity.  The Nation may want to ask someone what the "L" in the "ACLU" stands for.  

And therein lies the most odious premise in this smear piece:  anyone who doesn't quietly,  meekly and immediately submit to Government orders and invasions -- or anyone who stands up to government power and challenges it -- is inherently suspect.  Just as the establishment-worshiping, political-power-defending Ruth Marcus taught us today in The Washington Post, objecting to what the Government is doing here is just immature and ungrateful; mature, psychologically healthy people shut up and submit.  That's how you prove that you're a normal, responsible, upstanding good citizen:  by not making waves, doing what you're told, declaring yourself a loyal Republican or Democrat and then cheering for your team, and -- most of all -- accepting in the name of Fear that you must suffer indignities, humiliations and always-increasing loss of liberties at the hands of unchallengeable functionaries of the state.  I don't really care what political label John Tyner applies to himself:  we need far more of his civil resistance in our citizenry and far less of the mindless obedient drone behavior which these Nation writers seem to venerate.

I spoke with Tyner several days ago and he was very worried that his public stance would jeopardize exactly the ordinariness which The Nation claims is fake:  his job, his family, his reputation, and the cost from government recriminations.  This highly irresponsible, evidence-free Nation attack demonstrates how valid those concerns were.  It may be that several vocal opponents of the new TSA process are Koch-funded -- that wouldn't surprise me -- but that has absolutely nothing to do with Tyner, and The Nation, for which I have high regard, owes him an apology and retraction for the innuendo it smeared on him without a shred of evidence.  It's difficult enough for ordinary citizens to take a principled stand like this against the Government; knowing that they're going to be subjected to this sort of baseless hit job makes it less likely that other citizens will be willing to do so. 

Government yells "Terrorism" to justify TSA procedures

(updated below)

The public fury over the new TSA airport security measures intensified this week, with harrowing stories of a breast cancer survivor forced to show her prosthetic breast and a male passenger whose urostomy bag leaked urine all over him when it was roughly manhandled by airport agents during a "patdown." So what does the Federal Government do to address this growing public anger? That's easy: the playbook is well established:

White House: Terrorists Have Discussed Use of Prosthetics to Conceal Explosives

U.S. intelligence has picked up terrorists discussing the use of prosthetic or medical devices to conceal explosives, sources tell ABC News.

The revelation about the intelligence, which is not new but relevant to debate over new security measures at airports, comes as the White House today acknowledged that the implementation of the security procedures has not gone perfectly.

This is the all-justifying, cure-all solution for every problem: government officials run to the nearest media outlet they can find and anonymously scream "TERRORISM." No evidence is needed; the anonymity precludes all accountability; fear levels are quickly ratcheted up; and everything the Government wants to do then becomes justifiable in its name. That's the frightened, authoritarian society we've allowed ourselves to become. Speaking of journalists who dutifully disseminate whatever fear-mongering claims their anonymous government friends tell them to write . . . .

The New York Daily News today excitedly trumpets the debut appearance of . . . . The Next Anwar al-Awalki:

Jamaican Imam Abdullah el-Faisal wants to be next terror big, U.S. fears

Counterterrorism agents in New York and Washington are keeping tabs on a Jamaican imam whose death-spewing sermons in English raise fears he'll radicalize American Muslims.

The NYPD intelligence division, CIA and FBI are concerned Sheikh Abdullah el-Faisal is becoming a new Anwar al-Awlaki, the Yemeni Al Qaeda cleric who went from preaching to plotting.

"El-Faisal is focused on propaganda," one U.S. counterterror official in Washington told the Daily News. "But the last few years, he's dabbled in operational things like recruitment and facilitation."

He also inspired Times Square bomber Faisal Shahzad and failed airplane underwear bomber Farouk Abdulmutallab.

"His reach goes far beyond Jamaica," the U.S. official said. "He's trying to expand his network in Africa and Asia". . . .El-Faisal is charismatic like Awlaki, but "willing to say things that would make even Awlaki turn pale," said terror expert Evan Kohlmann.

For those of you who support Obama's assassination program aimed at Awlaki: what do you think? Have we read enough anonymous government claims in the newspaper yet about how "he's dabbled in operational things like recruitment and facilitation" to cheer for his eradication, or do we still need a couple more articles like this one anonymously accusing him of being a Real Terrorist? Maybe we need Leon Panetta going on the TV to decree that he's guilty in order to really persuade us, followed by a couple of incriminating Wikipedia entries, and then the President is good to go: drones away? That's how we now determine guilt, isn't it?

Note that the government official to whom these intrepid, adversarial reporters gave anonymity accused the new Awlaki of being guilty of exactly that which has been repeatedly been blamed on the Old Awlaki: "He also inspired Times Square bomber Faisal Shahzad and failed airplane underwear bomber Farouk Abdulmutallab." Maybe that can just be the all-purpose accusation which justifies a whole litany of assassinations: anytime we want to kill someone, we just have a government official anonymously claim in the newspaper that he inspired the Undewear Bomber and Fort Hood Shooter. After all, there's no limit on how many people can "inspire" someone.

All of this underscores the ambivalence I've had in watching the TSA controversy unfold. In one sense, this has all the ingredients of the last decade's worth of Terrorism exploitation: fear-based increases in pointless though invasive government power, surveillance and privacy infringements; further training the citizenry to mindlessly and meekly submit to directives from government functionaries; and, most of all, sleazy Washington influence-peddlers who spend time in Government ratcheting up fear levels and then return to the private sector to profit from that fear (Michael McConnell is the poster child for that behavior, but in this case, it's Michael Chertoff). As a result, my first reaction was that the public backlash could be productive in finally drawing a line the citizenry will not permit the Government to cross with these manipulative tactics.

But I now believe that optimism was unwarranted. That's because there's no real principle being vindicated here: with a few noble exceptions, it's all just deceitful posturing.

In one corner we have the American Right, magically re-discovering their alleged belief in privacy and government restraint now that they see an opportunity to politically harm Obama by waving that flag once again. These, of course, are the very same people who spent the last decade cheering on every radical expansion of unchecked government authority and privacy destruction when it was their Party doing it -- ones far, far worse than these airport screening measures -- and who will undoubtedly do exactly the same thing the next time a Republican occupies the White House.

I have no doubt -- none -- that if there were a Republican President in office now, these very same people would not only be defending the TSA in the name of Staying Safe, but maligning critics as Privacy Fetishists, Civil Liberties Extremists, and Friends of The Terrorists. Nobody has less credibility to march under a privacy and civil liberties banner than that right-wing faction (and see Darren Hutchinson on just some of the out-of-control government powers they cheer on domestically). And that's to say nothing of their real agenda: to privatize airport security, the way our prison system has been -- as though having Blackwater or the Paragon of American Authoritarianism, Rudy Giuliani, take over from the TSA will preserve our liberties and privacy.

In the other corner, we have the Democrats, who -- in perfect unison -- would be screaming bloody murder about these methods and waving the Flag of Civil Liberties if George W. Bush were still President, as they would smell partisan advantage from doing so. But since it's Barack Obama who is President, they are -- with a few exceptions -- meekly raising concerns, though more often acquiescent to the TSA when they aren't outright supportive.

And then we have the indignant, put-upon American People. They're not angry that the Government had adopted inexcusably invasive and irrational security measures. They're just angry that, this time, it's being directed at them -- rather than those dark, exotic, foreign-seeming Muslims who deserve it, including their own fellow citizens. And if there were a successful bombing plot against a passenger jet, many of those most vocally objecting now would be leading the way in attacking the Government for not having kept them Safe, and would be demanding even more invasive measures -- just directed at those Other People, the Bad Dark People over there. Eugene Robinson is exactly right when he wrote today in The Washington Post:

What the critics really mean is not that the TSA should let underwear bombers board planes. What they're saying is: Don't search me, and don't search my grandmother. Just search the potential terrorists.

In other words, they want profiling. That's a seductive idea, I suppose, if you don't spend a lot of time worrying about civil liberties. But it couldn't possibly work. Our terrorist enemies may be evil, but they're not stupid.

This isn't to say that there aren't legitimate, principled objections to the TSA's policy across the political spectrum; there are. And there have been genuinely heroic, principled protests, such as the one which galvanized much of this controversy by John "Don't Touch My Junk" Tyner (who, it turns out, unsurprisingly I suppose, is a regular reader here). I wish there were a genuine unified uprising on the part of Left, Right and everyone else to draw an inviolable line, to declare that not everything is justifiable in the name of fear and Absolute Safety, which are age-old manipulated concepts, against which other competing values must be weighed. Such an uprising is long, long overdue.

But the American Public, on the whole, is perfectly content with increasingly invasive government surveillance. They've proven that they will submit to virtually anything before the scary specter of Terrorism: putting people in cages for life without charges, torturing innocent people, invading and destroying other nations that haven't attacked us, assassination hit lists free of due process, to say nothing of the merciless domestic Prison State that eats up the lives of millions of their fellow citizens for no good reason, fills them with Taser-delivering electric shock at will, and degrades their communities and basic liberties with a deliberately endless and corrosive Drug War -- almost all of which has a disproportionate impact on minorities. Indeed, polls show that, despite all the uproar and horror stories thus far, majorities in America are still supportive of these TSA procedures (though the trend is toward rising opposition).

I still would like to believe that what can change public thinking on such matters is having these measures finally start burdening a majority of Americans, rather than being confined to isolated, marginalized, demonized minorities. Human beings are self-interested, and unfortunate though it may be, it's a fact of life that it's difficult (though not impossible) to induce widespread public passion over injustices that aren't affecting most people. If the growing anger over these TSA invasions helps change -- or least moderate -- how Americans think about Fear of Terrorism and Privacy as competing values, then at least some good will come of it. But it seems more likely that Americans will be just as supportive of future expansions of government power just as long as the Right People are targeted.

UPDATE: Firedoglake has produced an excellent document advising passengers of the risks of airport screening procedures and their rights vis-a-vis the TSA. It's in .pdf form and anyone can print it out -- either for themselves or to distribute at airports.

Various matters

(1) With roughly 80% of my book now turned in and the final 20% to be turned in on Monday, it will be a few more days before I can return my full attention to writing here.  The book's title was chosen from the reader contest I held online here a couple months ago -- With Liberty and Justice for Some:  How the Law Is Used to Destroy Equality and Protect the Powerful -- and I'll shortly dig through the comment-section suggestions to determine the identity of the winner (and reveal the glorious prize). 

The book's central theme -- the legal immunity which political and financial elites have bequeathed to themselves even for egregious illegality, contrasted with the merciless system of punishment and coercion imposed on ordinary citizens  -- was potently highlighted by two very recent events and necessitated substantial work to include them:  (1) the mortgage/foreclosure fraud scandal and the political class's reflexive attempts to immunize the banks from the consequences of wrongdoing (see Professor Joseph Stiglitz's short article, entitled "Justice for Some," on how both the scandal and the reaction to it illustrate the death of the rule of law in America, as well as Georgetown Law Professor Adam Levitin's testimony this week that "the prime directive coming out of Treasury is 'protect the banks'"); and (2) the DOJ's announcement that it was ending its investigation into the CIA's destruction of torture videos without any charges; that episode was one of the most flagrant acts of Bush-era lawbreaking, which is obviously saying a lot -- even the two co-Chairmen of the 9/11 Commission all but branded it "obstruction of justice" -- and the fact that there will be no prosecutions even for such blatant crimes underscores the breadth and depth of elite immunity from the rule of law.

 

(2) In a New York Times Op-Ed today, Yemen expert Gregory Johnsen explains why the depiction of Anwar al-Awlaki as some sort of dangerous, important Terrorist operative is pure fear-mongering fiction.  "Contrary to what the Obama administration would have you believe," he writes, "in truth Mr. Awlaki is hardly significant in terms of American security."  Moreover, "making a big deal of him now is backfiring." 

That last part about "backfiring" appears to be true in terms of Terrorism recruitment in Yemen, but "making a big deal of him" provides an important value to the administration:  that's how he's being exploited to entrench what even a Bush-43 federal judge recently described as the "extraordinary and unique" power of the President to order American citizens assassinated without due process.  That false depiction of Awlaki in turn causes far too many people who should know better to continue to cheer for that lawless power because they've become convinced -- by unchecked, unscrutinized, mostly anonymous, evidence-free government leaks -- that Awlaki is some sort of Threatening Terrorist Mastermind who deserves a presidentially-imposed death penalty:  the ultimate expression of acting as Judge, Jury and Executioner.

 

(3) Daphne Eviatar explains why the ongoing demands by former Bush official Jack Goldsmith and Brookings "scholar" Benjamin Wittes for imprisonment without charges would not only deface basic principles of justice but also subvert the very national security goals they claim to defend.  And just as a reminder, here's what Barack Obama said on this topic in May of last year when he placed himself in front of the U.S. Constitution to give us a lecture on the principles and guarantees in that document:

In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.

A year-and-a-half later, "prolonged detention" is exactly that which he vowed it should not be; his official policy is that no charges are needed, and no trials or even military tribunals required, in order to imprison someone forever.   Few things are less meaningful in our current political culture than the words and commitments that come out of Barack Obama's mouth.  In writing my book, I re-visited the gory details of how Obama emphatically vowed in October, 2007 (when he was seeking the  Democratic nomination) that -- as his spokesman put it -- he "will support a filibuster of any bill that includes retroactive immunity for telecommunications companies," only to turn around eight months later (once he had secured the nomination) and not only vote against the Dodd/Feingold filibuster of the FISA bill that vested retroactive telecom immunity, but also then voted for the underlying bill itself.  Also:  when he issued his statement "justifying" his breaking of his pledge, he vowed that once in office, he would use the power of the Presidency to fix the abuses and flaws in the eavesdropping bill he was supporting:

I do so with the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

Don't worry:  it's only been two years.  I'm sure he's getting to that.  In retrospect, this was the pre-election event that proved to be most revealing about the type of "leader" he would be.

 

(4) If anyone possesses any lingering doubt that Michael Goldfarb -- aide to John McCain and Bill Kristol, among others -- is one of the most deranged individuals in our political culture, please review this message he sent out on Twitter two days ago:

Goldfarb has a long history of spouting purely authoritarian, morally repellent statements, but this one sinks just a bit lower than the rest.  Murdering detainees in cold blood is the hallmark of the most monstrous regimes and deranged psychopaths in history.  If one endorses that, one has sunk to the lowest levels of sociopathic sickness.  But the real issue is that this will not prevent Goldfarb from being hired by some GOP presidential campaign; it likely will even enhance his prospects.  That says all one needs to know about the complete collapse of norms and mores in American political culture, driven largely -- though not exclusively -- by fear-mongering over (and the malicious conflating of) Muslims and Terrorists.

(5) The Obama administration is apparently planning to lavish Israel with extremely expensive subsidies to purchase billions of dollars worth of F-35 stealth aircraft simply in exchange for a 9o-day settlement freeze.  Obama officials apparently believe that this massive bribe is necessary to induce Netanyahu's cabinet to agree to the freeze.  Why isn't the $30 billion aid package we give them -- and what ought to be the threat of its diminution or cessation along with termination of the countless other means of support we provide -- sufficient to induce this extremely minor concession, one which we insist is vital for our own security?  And just in case you were wondering:  yes, it is still true that if you question American policy toward Israel or criticize "pro-Israel advocates" in America, you will be immediately smeared as an Israel-hating anti-Semite by right-wing polemicists who strangely still appear to believe that these sad, discredited tactics will intimidate people and suppress such debate. 

 

(6) Two relevant items about Afghanistan:  first, this unsurprising survey about the perceptions of Afghans regarding our war there, and secondly, this grotesque glimpse into how some American military  officials think about the side benefits of violence brought to Afghan civilians.

 

(7) I believe I've mentioned this before, but the ongoing series at Balloon-Juice -- in which readers provide simple testimonials of how they came to adopt/rescue their pets, typically accompanied by photographs -- offers powerful insight into why doing so is so rewarding.  Read the last two -- here and here -- to see what I mean.  They have also produced a calender with over 600 photos from their readers' pets, and all proceeds from the sale of those calenders -- every dime -- goes to an animal rescue organization.

The Ghailani verdict and American justice

A federal jury in New York yesterday returned a guilty verdict against accused Terrorist Ahmed Ghailani on one count of conspiracy to blow up a government building, a crime which entails a sentence of 20 years to life, but acquitted him on more than 280 charges of murder and conspiracy relating to the 1998 bombings of the U.S. embassies in Kenya and Tanzania.  Last month, the federal judge presiding over the case, Lewis Kaplan, banned the testimony of a key witness because the Government under George Bush and Dick Cheney learned of his identity not through legal means but instead by torturing Ghailani (and also possibly coerced the testimony of that witness).  The verdict will provoke predictable, fact-free, fear-mongering attacks on the American judicial system and on President Obama for using it in this case -- renowned legal scholar Liz Cheney and heralded warrior Bill Kristol wasted no time spewing these trite accusations -- but this outcome actually proves the opposite.

Initially, it should be noted that the verdict in this case -- no matter what it was -- would be largely inconsequential in terms of Ghailani's imprisonment.  He has already been imprisoned without charges for six years, including two years at a CIA "black site," and yesterday's verdict means he will spend decades more in prison.  

But even had he been acquitted on all counts, the Obama administration had made clear that it would simply continue to imprison him anyway under what it claims is the President's "post-acquittal detention power" -- i.e., when an accused Terrorist is wholly acquitted in court, he can still be imprisoned indefinitely by the U.S. Government under the "law of war" even when the factual bases for the claim that he's an "enemy combatant" (i.e. that he blew up the two embassies) are the same ones underlying the crimes for which he was fully acquitted after a full trial.  When he banned the testimony of the key witness, Judge Kaplan, somewhat cravenly, alluded to and implicitly endorsed this extraordinary detention theory as a means of assuring the public he had done nothing to endanger them with his ruling (emphasis added):

[Ghailani's] status as an "enemy combatant" probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

Most news accounts are emphasizing that trying Ghailani in a civilian court was intended by the Obama DOJ to be a "showcase" for how effective trials can be in punishing Terrorists.  That's a commendable goal, and Holder's decision to try Ghailani in a real court should be defended by anyone who believes in the rule of law and the Constitution.  But given these realities, this was more "show trial" than "showcase" since the Government would simply have imprisoned him, likely forever, even if he had been acquitted on all counts.

Then there is the false premise -- found at the center of every attack on the Obama DOJ's conduct here -- that the key witness would not have been excluded had Ghailani had been put before a military commission at Guantanamo.  That is simply untrue.  The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do.  Anyone who doubts that should simply read Rule 304(a)(1) and (5) of the Military Commissions Manual, found on page 205 of the document:

[304(a)(1)]  No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment. . . . whether or not under color of law, shall be admissible in a trial by military commission . . . .

[304(a)(5)] Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection . . . .

The only exceptions to those exclusionary rules are essentially identical to those used in the judicial system, which were applied by Judge Kaplan but found to be inapplicable ("the evidence would have been obtained even if the statement had not been made; or [] use of such evidence would otherwise be consistent with the interests of justice").  As The New York Times' Charlie Savage pointed out this morning, "Judge Kaplan strongly suggested in a footnote that a military commission judge would have excluded that testimony, too, pointing to restrictions against the use of evidence obtained by torture in military trials."  Savage went on to note:  "still, arguments over the factual details of the case were overshadowed by the political dynamics of the verdict" -- meaning that nobody is going to let the facts get in the way of a nice right-wing, fear-mongering, liberty-attacking orgy.  (And all of that's entirely independent of the fact that civilian trials have proven far more effective [if not more just] at punishing accused Terrorists than military commissions have been.).

But the most important point here is that one either believes in the American system of justice or one does not.  When a reviled defendant is acquitted in court, and torture-obtained evidence is excluded, that isn't proof that the justice system is broken; it's proof that it works.  A "justice system" which guarantees convictions -- or which allows the Government to rely on evidence extracted from torture -- isn't a justice system at all, by definition.  The New Yorker's Amy Davidson made this point quite well today:

Let's be clear: if time in the extra-judicial limbo of black sites, and the torture that caused some evidence to be excluded, makes prosecutors' jobs harder, the problem is with the black sites and the torture, and not with the civilian trials that might eventually not work out quite the way everyone likes. It's a point that bears some repeating.  Our legal system is not a machine for producing the maximum number of convictions, regardless of the law.  Jurors are watching the government, too, as well they should. Ghailani today could be anyone tomorrow.

It's supposed to be extremely difficult for the Government to win the right to put someone in a cage for their entire lives, or to kill them.  Having lived under a tyranny in which there were very few barriers impeding the leader's desire to imprison or otherwise punish someone -- and having waged a war to escape that oppression -- the Founders designed it this way on purpose.  And they did so with the full knowledge that clearly guilty and even extremely evil people would sometimes receive something other than the punishment they deserve.  Here's how Thomas Jefferson weighed those considerations, as expressed in a 1791 letter:  "I would rather be exposed to the inconveniencies attending too much liberty than those attending too small a degree of it."

That courageous declaration -- and not the desperate, eager desire to sacrifice safeguards in single-minded, fearful pursuit of Security -- was the central calculus that drove the American Founding, shaped the U.S. Constitution, and formed the political identity which Americans claimed to embrace for the next two centuries.  As usual, the people who are now screaming the loudest over the need to defend American Freedom are the ones who believe least in the values that were intended to define it and the principles that were intended to safeguard it.

Gates v. Eisenhower and Obama v. Justice

The Hill, yesterday:

Secretary Gates: On deficit, Defense Department is 'not the problem'

Defense Secretary Robert Gates took a swipe on Tuesday at the proposal from the co-chairmen of President Obama's deficit commission to slash the Pentagon budget by $100 billion.

Gates said that such drastic cuts could devastate the military's force structure without any big impact on the nation's red ink.

"The truth of the matter is when it comes to the deficit, the Department of Defense is not the problem," Gates said at The Wall Street Journal's CEO Council on Tuesday. "I think in terms of the specifics they came up with, that is math not strategy."

Inter-Press Service, May 28, 2010:

The United States continues to lead the world in defense spending, according to a new report released Thursday by the Center for Arms Control and Non-Proliferation, a U.S.-based non-partisan research organization.

In fact, the U.S. outspends Russia, the next highest spender, by more than 800 percent.

In 2008, the most recent year for which figures are available, the U.S. expenditure was 696.3 billion dollars, followed by Russia's 86 billion and China's 83.5 billion.

The U.S. defense budget is 15 times that of Japan, 47 times that of Israel, and nearly 73 times that of Iran.

Not only does U.S. spending dwarf that of other nations, but it has also grown in recent years.

The budget for fiscal year 2011 is 720 billion dollars, up 67 percent from 2001's 432 billion, accounting for inflation.

President Dwight D. Eisenhower, "The Chance for Peace," speech given to the American Society of Newspaper Editors, Apr. 16, 1953 (h/t Hume's Ghost):

Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some fifty miles of concrete pavement. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people.

I don't have very many good things to say about the Bowles-Simpson deficit-cutting proposal, but its inclusion of surprisingly serious cuts in military spending (including the substantial reduction of American overseas bases) definitely qualifies as a good thing, for forcing such issues into the debate if nothing else.  

And, as always, few things underscore how far to the Right our political spectrum has shifted than reading something expressed by Eisenhower, who today would not be considered a moderate Republican but, at least in some instances, marginalized as a Far Leftist or, at best, a Crazy Pacifist-Isolationist.  That passage above -- like his prescient, strident warnings about the dangers of the military-industrial complex -- sounds like what one hears at a Code Pink rally or a Ron Paul gathering, but not many other places.  Then again, all Eisenhower knew was the insignificant conflict of World War II and the menace of Soviet intercontinental ballistic missiles with nuclear warheads aimed at multiple American cities; I'm sure he would have thought differently had he known the True, Unprecedented, Existential Threat of cave-based Islamic Terrorists trying to blow up an airplane or a nightclub once every few years, or the frightening threat posed by the Persian Hitlers (our military budget is only 73 times larger than those expansionist, belligerent mullah-monsters and we're only occupying two of their bordering countries for close to a decade now with hundreds of thousands of troops and other personnel; can you believe how aggressive and threatening they are?).

Also from the Department of Glaring Contrasts, we have this:

New York Times, yesterday:

Britain to Compensate Former Guantánamo Detainees

Bidding to restore the reputations of MI5 and MI6 and to rebuild damaged intelligence links with the United States, the British government said on Tuesday that it had agreed to pay compensation running into millions of dollars to 15 former detainees at Guantánamo Bay and one man still held there who have accused Britain's intelligence agencies of colluding in their torture in the American-run detention system. . . .

They have said in their lawsuits that agents of MI5 and MI6 worked closely with the C.I.A. and other American agencies involved in their interrogation, and must have known about the torture and mistreatment. They said they suffered so-called stress techniques like sleep deprivation; subjection to extremes of noise: heat and cold, beatings and death threats.

CBS News, January 6, 2007:

The [Canadian] prime minister apologized Friday to a Syrian-born Canadian [Maher Arar] and said he would be compensated $8.9 million for Ottawa's role in his deportation by U.S. authorities to Damascus, where he was tortured and imprisoned for nearly a year. . . . Arar's case was an example of rendition, a practice in which the U.S. government sends foreign terror suspects to third countries for interrogation.  He was exonerated in September after a two-year public inquiry led by Associate Chief Justice of Ontario Dennis O'Connor.

 The Washington Post, today:

The [British] settlement represents the first time any Guantanamo Bay detainee, of 779 who have passed through or are still held at the military prison in Cuba, has received a financial settlement because of his incarceration. . . . The George W. Bush and Obama administrations, as well as the federal courts, have rejected the idea of compensation. . . .

A number of former Guantanamo detainees have tried to sue in the United States. The courts have dismissed every case on the grounds that the government agencies and officials named have immunity from such civil lawsuits. . . .

The Bush and Obama administrations have also invoked the "state secrets" privilege to end a number of lawsuits that charged that various government and private entities were complicit in torture.

"The Obama administration continues to shield Bush-era torturers from accountability in civil proceedings by blocking judicial review of their illegal behavior," said Steven Watt, a staff attorney for the American Civil Liberties Union. "To date, not a single victim of the Bush administration's torture program has had his day in a U.S. court. The U.S. can no longer stand silently by as other nations reckon with their own agents' complicity in the torture program" . . . .

But another former U.S. military officer praised the British action. "Without getting into whether they are good guys or bad guys, there is a global obligation that we don't condone torture, and the U.S. has done everything to avoid its duty under domestic and international law to prevent and atone for torture," said retired Air Force Col. Morris D. Davis, the former chief military prosecutor at Guantanamo Bay, who resigned in 2007 after alleging political interference in the military's legal process.

It was clear from that start that, standing alone, Obama's steadfast devotion to protecting and shielding all Bush crimes from any form of accountability -- and his active blocking of all victims from obtaining compensation or any form of justice in a court of law -- seriously mars his record, his legacy and his character.  That other nations are providing exactly the accountability that Obama has desperately sought to prevent makes that even more apparent.  The British are acting with less than pure motives here -- they are particularly concerned that allowing these lawsuits to proceed will expose their intelligence agencies to judicial scrutiny -- but the fact that their political and legal system (and Canada's and Sweden's and others') does not permit a total whitewash of these crimes while ours eagerly does speaks volumes about comparative notions of justice and the rule of law -- especially since, first and foremost, they are American crimes.  Leaders of the Free World.

Two presidents and their justifications

The real finalization process on my book leaves me very pressed for time today, but I wanted to note these two brief though highly illustrative items:

First, relating to the story I reported last week about the warrantless border seizure of the laptop and cellphone of a Bradley Manning supporter for the crime of visiting Manning in prison, The New York Times today editorializes in favor of greater restrictions on such searches and writes:

There is also a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits. . . .

The George W. Bush administration first authorized border agents to seize and view the contents of laptops, smartphones, and other devices and copy and share data with other government agencies without need for any individualized suspicion of wrongdoing.

The Obama administration has tweaked the policy, requiring approval from supervisors to hold a seized device for more than five days, for example. The fundamental flaw remains: it permits the government to engage in indiscriminate and invasive fishing expeditions.

I actually laughed audibly when I read that because, on reflection, it so perfectly expresses the Change -- sorry, "tweaking" -- that Barack Obama has brought to the nation in these areas:  we're going to keep in place and aggressively enforce George Bush's unfettered laptop seizure policy for Americans, but our Goodness is reflected by our new requirement that some low-level unaccountable "supervisor" somewhere give their approval if we want to keep the citizen's seized property for more than five days.  Well, just as long as some unseen "supervisor" agrees that my seized, searched and downloaded laptop can be permanently stolen by the Federal Government and all its data permanently stored and shared even in the absence of a whiff of suspicion that I've done anything wrong, then I'm satisfied.

The Editorial also notes that legislation has been introduced by the now-defeated Russ Feingold to (a) ban all border laptop searches and seizures except where there is reasonable suspicion of wrongdoing;  (b) require a probable cause warrant from a court in order for a laptop and other electronic devices to be seized and kept by the Government; and (c) limit the ability of Homeland Security to share the information it obtains.  That illustrates why, despite his flaws, Feingold's re-election was one of the very few this year about which I cared enough to advocate.  That bill has three remaining Senate co-sponsors, all Democrats (Akaka, Wyden, Cantwell), but if the Tea Party candidates were even minimally genuine about their professed belief in liberty and limited government, shouldn't they vocally support such limitations on the Federal Government's unfettered power to invade, seize and then forever keep your laptops, cellphones and other instruments of communication and thought?  Who can simultaneously support that power and claim with a straight face to be an advocate of individual liberty and limited government?

Second, The Washington Post Editorial Page today furrows its forehead, scratches its chin, and wonders -- as its headline puts it -- "Why George W. Bush can confess to approving torture," despite the fact that, as they note, "waterboarding . . . had been considered a crime by the U.S. government for at least 90 years."  They're referring to the 43rd President's new book where he proudly confesses to having ordered waterboarding, among other torture techniques ("Damn right," he eloquently writes using his best cowboy-tough-guy falsetto).  The Post comes up with this answer:

Yet Mr. Bush feels free to confess to authorizing its use against three al-Qaeda leaders. That's because senior lawyers in his administration - most of them political appointees - provided him with secret memos declaring waterboarding and other standard torture tactics legal.

Actually, the fact that he got his own lawyers to write permission slips for him to break the law and torture people is not why he feels free to run around confessing to these war crimes.  It's because our media and political class is filled with people like Washington Post Editorial Page Editor Fred Hiatt, who last year urged that there be no criminal investigations or prosecutions, and wrote:

 On the one hand, this is a nation of laws. If torture violates U.S. law -- and it does -- and if Americans engaged in torture -- and they did -- that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can't ask less of itself.

Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle. . . .

There is a better, though not perfect, solution, one that the administration reportedly considered, rejected and should consider again: a high-level, respected commission to examine the choices made in the wake of Sept. 11, 2001, and their consequences. . . .

[A] fair-minded commission -- co-chaired by, say, former Supreme Court justices Sandra Day O'Connor and David Souter -- could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.

The alternative, for Obama, is a series of debilitating revelations, prosecutions and arguments that could drip-drip-drip through the full length of his presidency.

An O'Connor-Souter Commission!  That'll teach people never to torture again.  Sure, Hiatt acknowledged with a yawn, we're "a nation of laws" and we can't simply "forget" when our most powerful political officials commit the most serious war crimes, etc. etc. etc..  But criminal investigations are so terribly messy, uncivil, uncouth, distracting and disruptive.  Prosecutions are for those dirty rabble on the street selling drugs to other adults whom I sometimes see from the window of my car, not for our upstanding, Serious political leaders.  When they commit grievous crimes, we should have an impotent Commission of other upstanding, Serious political leaders politely look at what happened, issue a pretty Report, and then call it a day.  That is why George W. Bush feels so free to run around beating his chest and boasting of his war crimes:  because Fred Hiatt and his media comrades, masquerading as watchdogs over the politically powerful, have deliberately created the climate where such crimes can not only be committed, but publicly confessed and heralded, with total impunity.

Two vignettes

The real finalization process on my book leaves me very pressed for time today, but I wanted to note these two brief though highly illustrative items:

First, relating to the story I reported last week about the warrantless border seizure of the laptop and cellphone of a Bradley Manning supporter for the crime of visiting Manning in prison, The New York Times today editorializes in favor of greater restrictions on such searches and writes:

There is also a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits. . . .

The George W. Bush administration first authorized border agents to seize and view the contents of laptops, smartphones, and other devices and copy and share data with other government agencies without need for any individualized suspicion of wrongdoing.

The Obama administration has tweaked the policy, requiring approval from supervisors to hold a seized device for more than five days, for example. The fundamental flaw remains: it permits the government to engage in indiscriminate and invasive fishing expeditions.

I actually laughed audibly when I read that because, on reflection, it so perfectly expresses the Change -- sorry, "tweaking" -- that Barack Obama has brought to the nation in these areas:  we're going to keep in place and aggressively enforce George Bush's unfettered laptop seizure policy for Americans, but our Goodness is reflected by our new requirement that some low-level unaccountable "supervisor" somewhere give their approval if we want to keep the citizen's seized property for more than five days.  Well, just as long as some unseen "supervisor" agrees that my seized, searched and downloaded laptop can be permanently stolen by the Federal Government and all its data permanently stored and shared even in the absence of a whiff of suspicion that I've done anything wrong, then I'm satisfied.

The Editorial also notes that legislation has been introduced by the now-defeated Russ Feingold to (a) ban all border laptop searches and seizures except where there is reasonable suspicion of wrongdoing;  (b) require a probable cause warrant from a court in order for a laptop and other electronic devices to be seized and kept by the Government; and (c) limit the ability of Homeland Security to share the information it obtains.  That illustrates why, despite his flaws, Feingold's re-election was one of the very few this year about which I cared enough to advocate.  That bill has three remaining Senate co-sponsors, all Democrats (Akaka, Wyden, Cantwell), but if the Tea Party candidates were even minimally genuine about their professed belief in liberty and limited government, shouldn't they vocally support such limitations on the Federal Government's unfettered power to invade, seize and then forever keep your laptops, cellphones and other instruments of communication and thought?  Who can simultaneously support that power and claim with a straight face to be an advocate of individual liberty and limited government?

Second, The Washington Post Editorial Page today furrows its forehead, scratches its chin, and wonders -- as its headline puts it -- "Why George W. Bush can confess to approving torture," despite the fact that, as they note, "waterboarding . . . had been considered a crime by the U.S. government for at least 90 years."  They're referring to the 43rd President's new book where he proudly confesses to having ordered waterboarding, among other torture techniques ("Damn right," he eloquently writes using his best cowboy-tough-guy falsetto).  The Post comes up with this answer:

Yet Mr. Bush feels free to confess to authorizing its use against three al-Qaeda leaders. That's because senior lawyers in his administration - most of them political appointees - provided him with secret memos declaring waterboarding and other standard torture tactics legal.

Actually, the fact that he got his own lawyers to write permission slips for him to break the law and torture people is not why he feels free to run around confessing to these war crimes.  It's because our media and political class is filled with people like Washington Post Editorial Page Editor Fred Hiatt, who last year urged that there be no criminal investigations or prosecutions, and wrote:

 On the one hand, this is a nation of laws. If torture violates U.S. law -- and it does -- and if Americans engaged in torture -- and they did -- that cannot be ignored, forgotten, swept away. When other nations violate human rights, the United States objects and insists on some accounting. It can't ask less of itself.

Yet this is also a nation where two political parties compete civilly and alternate power peacefully. Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle. . . .

There is a better, though not perfect, solution, one that the administration reportedly considered, rejected and should consider again: a high-level, respected commission to examine the choices made in the wake of Sept. 11, 2001, and their consequences. . . .

[A] fair-minded commission -- co-chaired by, say, former Supreme Court justices Sandra Day O'Connor and David Souter -- could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.

The alternative, for Obama, is a series of debilitating revelations, prosecutions and arguments that could drip-drip-drip through the full length of his presidency.

An O'Connor-Souter Commission!  That'll teach people never to torture again.  Sure, Hiatt acknowledged with a yawn, we're "a nation of laws" and we can't simply "forget" when our most powerful political officials commit the most serious war crimes, etc. etc. etc..  But criminal investigations are so terribly messy, uncivil, uncouth, distracting and disruptive.  Prosecutions are for those dirty rabble on the street selling drugs to other adults whom I sometimes see from the window of my car, not for our upstanding, Serious political leaders.  When they commit grievous crimes, we should have an impotent Commission of other upstanding, Serious political leaders politely look at what happened, issue a pretty Report, and then call it a day.  That is why George W. Bush feels so free to run around beating his chest and boasting of his war crimes:  because Fred Hiatt and his media comrades, masquerading as watchdogs over the politically powerful, have deliberately created the climate where such crimes can not only be committed, but publicly confessed and heralded, with total impunity.

The "pro-Constitution=pro-terrorist" canard

(updated below)

Hauling out a decades-old zombie canard that will probably never die -- namely, that a lawyer who advocates for the Constitutional rights of a Bad Person is acting improperly or even subversively -- Andrew Sullivan, in a post entitled "Defending an Active Terrorist," writes:

The decision of the ACLU and CCR (the Center for Constitutional Rights) to represent Anwar al-Awlaki, even as he continues to emit clear death threats to writers and cartoonists, seems to me to cross a line.

I'd really love to know:  which "line" would this be?  Even Bush-43-appointed federal judge John Bates -- who presided over the 3-hour hearing on the request by the ACLU and CCR for an injunction against Awlaki's assassination -- repeatedly acknowledged that the American-citizen-targeted assassination power Obama is asserting is extraordinary, and the DOJ's unrestrained executive power theory invoked to justify it is unprecedented.  Does Andrew really believe that it's the duty of every Good, Patriotic American lawyer to refuse to participate in a judicial adjudication of these critical Constitutional questions?  It's preferable to simply cede this power to the Government without any judicial review or ruling as to its propriety or Constitutionality -- just allow the Government the power to compile hit lists of American citizens far from any battlefield without even having to defend the Constitutionality of those actions in court?  What conception of patriotism calls for that?  Which "line" compels abstention from such proceedings?

How could it ever "cross a line" for a civil liberties lawyer to represent an American citizen in an American court arguing that the Government is transgressing the limits of the U.S. Constitution?  The only thing that crosses a line is to insinuate that there's something improper about that.  This has been the favorite right-wing smear for years against anyone -- including torture opponents -- arguing that the Government's "War on Terror" conduct is unconstitutional or otherwise illegal:  you're being "pro-Terrorist" and crossing a line.

That's what is particularly strange about reading this argument from Sullivan of all people:  he himself has repeatedly defended Terrorists by protesting the interrogation methods to which they are subjected.  His anti-torture protests serve the interests not only of captive Terrorists, but of active, uncaptured ones as well, who -- if Sullivan has his way -- will be treated more humanely if they are apprehended.  Using Sullivan's reasoning, he himself could be -- and often has been -- accused of being pro-Terrorist by virtue of his moral and legal objections to the treatment to which Terrorists are subjected, and by demanding limits on that treatment.  What's the difference?  

Does Sullivan believe that those who represented actual Terrorists in court by suing Bush officials for damages arising out of torture and rendition -- including some who are now free -- have also "crossed a line?"  How about lawyers who defend child rapists, knowing that if they win, the defendant will be freed, perhaps raping and killing more children?  Or lawyers who sued the Bush administration demanding that they not eavesdrop on Americans -- even "active  Terrorists" -- without the FISA warrants required by law?  Or the scores of lawyers who successfully represented actual Communists in the 1950s and 1960s -- including many who advocated violent overthow of the U.S. Government -- and who thereby established many of our most basic modern liberites?  Have they all crossed this line, too?

To bolster his accusation, Sullivan cites an article detailing the objections of a single CCR board member to this lawsuit:

Karima Bennoune, a law professor at Rutgers school of law, Newark, New Jersey, has gone public with her misgivings at the CCR's decision, reflecting a debate within human rights groups on how to deal with Islamist fundamentalists.

"I support the important work the centre has done on torture and extraordinary rendition," said Bennoune, "but I expressed grave concern at CCR offering to represent Awlaki's interests pro bono. Anwar al-Awlaki is not a detainee; he is still at liberty and able to gravely harm others by inciting and advocating murder."

No matter how much people like Karima Bennoune wish it weren't true, it nonetheless is true that the Supreme Court has emphatically held in Brandenburg v. Ohio that the First Amendment bars the Government from punishing people even for explicit advocacy of violence except where it's designed and likely to result in "imminent" (i.e., basically immediate) violent acts.  All reviewable evidence that has been publicly disclosed about Awlaki regards clearly protected speech.  If there's evidence that goes beyond protected advocacy into criminal acts -- as there very well might be -- then it would be easy to indict him on those crimes.  And when that happens, it's up to these institutions we call "courts," in adversarial proceedings we call "trials" -- complete with lawyers representing the accused -- to determine whether he is actually guilty: not the President acting alone without any checks or oversight while issuing unilateral, due-process-free death penalty decrees.

And if the President really does have that unreviewable assassination power under the Constitution -- based on some sort of Cheneyite War theory or anything else --  then that, too, is for courts to decide.   Stigmatizing those who take part in that process and who seek judicial rulings on the Constitutionality of government acts is itself a direct assault on our basic system of government -- rather ironic for someone who purports to enforce lines of patriotism.  That's how Constitutional rights are vindicated:  by dedicated lawyers defending those whose rights are under assault (usually the most despised and marginalized among us:  at least at first).  Lawyers who defend our Constitutional rights pro bono (i.e., for free) by representing such individuals are acting with particular nobility and deserve extra gratitude, not scorn; that's how our core liberties are preserved.

Are we really back at the point where those lessons need to be recited?  And worse, are we back at the point where those who defend the Constitutional rights of accused Terrorists -- thereby defending the Constitutional rights of everyone -- are going to be smeared as being pro-Terrorist or breaching some sort of ill-defined patriotism "line"?

 

UPDATE:  One other question for Andrew Sullivan and anyone who agrees with him:  In 1770, John Adams defended two British soldiers accused of murdering several Americans when they fired indiscriminately into a crowd of civilians, as part of the Boston Massacre.  Adams called his decision to defend them "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."  Was Adams right, or did he "cross the line"?

Also, when Liz Cheney and Bill Kristol launched their despicable campaign to brand various Obama DOJ lawyers as the "Al Qaeda 7" for having represented "Terrorists' right," Sullivan accused them of "gutter McCarthyism" and wrote:  "The Cheney-Kristol faction reveals once again their contempt for core American values: they endorse torture and they demonize lawyers who represent unpopular clients."  Indeed.

Democrats and the rule of law

On November 13 of last year, Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four co-defendants would be put on trial in a New York federal courthouse and tried for perpetrating the 9/11 attack.  This produced a shrill and predictable backlash from the Right as well as from many leading national Democrats, who argued that civilian trials were unnecessary because Mohammed could simply be held indefinitely under "the law of war" or at least put before a military tribunal at Guantanamo.  But virtually all liberal commentators vehemently defended the administration's decision as compelled by the Constitution, the rule of law and our values. 

As but a few examples, The Washington Monthly's Steve Benen wrote that "it's always reassuring when the Obama administration, knowing that intense far-right blowback is inevitable, does the right thing anyway," and weeks later, Benen added that giving civilian trials for accused terrorists is merely "following the rule of law." Barbara Morrill of Daily Kos hailed the decision to try Mohammed in a civilian court this way: "the Attorney General announced that the United States follows the rule of law."  Responding to opponents of Holder's announcement, Josh Marshall asked: "am I so alone in having confidence in this country and what it stands for?"  The day Holder's decision was announced, Marshall proclaimed that a civilian trial "vindicates our system of justice and values" and that a refusal to grant trials comes from "voices of cowardice and fear." He also wrote:

What we seem to be forgetting here is that trials are not simply for judging guilt and meting out punishment. We hold trials in public not only because we want a check on the government's behavior but because a key part of the exercise is a public accounting and condemnation of wrongs. Especially in great trials for the worst crimes they are public displays pitting one set of values against another.

I could spend all day citing similar defenses from the liberal commentariat defending the Obama administration on the ground that by giving Mohammed a civilian trial, they were merely obeying the dictates of our Constitution, the rule of law, and our values.  And Obama himself voiced similar defenses to justify Holder's decision, leading The Washington Post's Greg Sargent to note "what an epic cave it would be if Obama" reversed Holder's decision (and that's to say nothing of the hordes of Democrats in the political and media class during the Bush years who dramatically condemned imprisonment-without-charges as the embodiment of tyranny, creating a "legal black hole," "shredding the Constitution," etc. etc.).

But that was back when civilian trials for the 9/11 defendants was the official position of the Obama administration.  Shortly thereafter, it was reported that Obama had taken away decision-making authority from the Attorney General on this issue and would re-consider Holder's decision, and now we have this, from yesterday's Washington Post:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters. . . .

The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment. 

If it were true -- as most Obama defenders argued -- that giving civilian trials to accused Terrorists is not merely a good option, but required by the Constitution, the rule of law, and our values, then isn't it logically and necessarily true that Obama's refusal to grant such trials constitutes a violation of our Constitution, our rule of law and our values?  And if so, doesn't this require rather severe condemnation from the same people who defended civilian trials as necessary under our system of government?  After all, if the President is violating our Constitution, the rule of law, and our values, isn't that cause for some rather serious protest and denunciation, no matter his motives?

It's true that this Post article relies on anonymous administration officials and notes that a final decision has not yet been made, but at some point, keeping Mohammed in a cage without a trial for a long enough time constitutes lawless, indefinite imprisonment whether the President formally announces it or not.  We're clearly at that point.  And, of course, it's long been reported that the President has decided to hold at least 50 other detainees at Guantanamo indefinitely without a trial or even a military commission.  Imprisoning people without trials or even military tribunals is clearly the policy of this President.

It's also true that there is substantial political opposition to giving civilian trials to the 9/11 Defendants -- even Andrew Cuomo, safely elected as New York's Governor, has now joined other leading Democrats by announcing his opposition to trials in New York -- but the Federal Government doesn't need the permission of local authorities to use its own courthouses, and more important, the mandates of the Constitution and the rule of law aren't supposed to be waived for political expediency.  That premise was the centerpiece of the Obama campaign -- remember?  As Sargent wrote:

One of Obama's most powerfully stated principles has been his rejection of the Cheney world view -- his insistence that the choice between upholding American legal traditions and the rule of law and maintaining our national security is a false one.  If Obama does decide to try Mohammed in a military tribunal, won't the implicit message to the public be that there just may be something to what the Cheneyites have been arguing all along?

But now, it appears Obama isn't even merely putting Mohammed "in a military tribunal," but far worse, simply imprisoning him indefinitely with no process at all, based on the same "war" theories that Bush and Cheney used to defend the same policy, to such great controversy and outrage.  Indeed, the claimed power to put people in cages basically for life without charging them with any crimes, even though they were captured far from any real "battlefield," was the crux of the Bush/Cheney civil liberties assault.

But what I'm interested in for the moment are those who defended Holder's decision last year on the ground that civilian trials were compelled by the Constitution, the rule of law and our values.  I still vividly recall what happened when Obama reversed himself on the issue of complying with court orders to release torture photos.  When he originally announced that he would release those photos, virtually every Democrat and liberal defended him from the Liz-Cheney/Bill-Kristol-led right-wing attacks by insisting that such transparency was crucial for our democratic values.  But when Obama reversed himself two weeks later and announced that he would conceal these photos, many Democrats reversed right along with him and suddenly began arguing what Cheney and Kristol had been saying two weeks earlier:  that concealment of the photos was justified by the imperative of National Security and Protecting Our Troops (I asked many times but never got an answer:  was there a single Democrat who defended Obama's ultimate concealment of those photos who, based on their pro-concealment reasoning, had joined with Kristol and Cheney in criticizing Obama's original decision to release them?). 

It's when the Obama administration reverses itself -- such as with the torture photos -- that one's intellectual honesty is most conclusively tested:  one's beliefs and principles can't shift with Obama's reversals if they're to be meaningful or credible.  The same issue applies here:  shouldn't anyone who defended Holder's original decision on the ground that it was compelled by the Constitution, the rule of law and our values now vocally denounce Obama for his profound violations of those same doctrines?  If the Obama administration merited praise last November for upholding the Constitution, the rule of law and our values with civilian trials, then it must be true that they're now violating the Constitution, the rule of law and our values by denying them.  Isn't that a rather serious offense?

Eric Cantor's Pledge of Allegiance

Soon-to-be GOP House Majority Leader Eric Cantor met on Wednesday with Israeli Prime Minister Benjamin Netanyahu -- the same day when the actual U.S. Secretary of State met with Netanyahu -- and vowed that he and his GOP colleagues would protect and defend Israeli interests against his own Government.  According to a statement proudly issued by Cantor's own office:

Regarding the midterms, Cantor may have given Netanyahu some reason to stand firm against the American administration.

"Eric stressed that the new Republican majority will serve as a check on the Administration and what has been, up until this point, one party rule in Washington," the readout continued. "He made clear that the Republican majority understands the special relationship between Israel and the United States, and that the security of each nation is reliant upon the other."

Leave aside the absurdity of believing that Israel needs to be protected from the extremely deferential and devoted Obama administration.  So extraordinary is Cantor's pledge that even the Jewish Telegraph Agency's Ron Kampeas -- himself a reflexive American defender of most things Israel -- was astonished, and wrote:

I can't remember an opposition leader telling a foreign leader, in a personal meeting, that he would side, as a policy, with that leader against the president.  Certainly, in statements on one specific issue or another -- building in Jerusalem, or somesuch -- lawmakers have taken the sides of other nations.  But to have-a-face to face and say, in general, we will take your side against the White House -- that sounds to me extraordinary.

As Kampeas notes, Cantor's office quickly disputed his understanding, but this is hardly the first time Cantor has violated supposedly sacred political conventions in order to side with Israel over his own country.  Last August, Cantor led a GOP delegation to Israel and while in Jerusalem -- which happens to be "foreign soil" -- he condemned his own President and American policy for opposing the expansion of Israeli settlements in the West Bank.  Criticizing America while on Dreaded Foreign Soil is supposed to be one of the most extreme taboos in American politics:  Al Gore was bitterly denounced as a borderline-traitor for a 2006 speech in Saudi Arabia criticizing American foreign policy, and Gore at the time was merely a private citizen, not a leading political official.  But American political figures like Cantor feel free to do exactly that -- criticize America on foreign soil -- when it comes to Israel; recall the same thing being done by by Mike Huckabee.

That's because, in general, all the rules change -- are completely reversed -- when it comes to Israel.  As Cantor's behavior demonstrates, the rules that apply to "foreign countries" are inapplicable to Israel because in mainstream American politics, Israel is not considered and therefore is not treated as a "foreign country" at all.  Many Israel devotees actually tried to expand the "no-criticizing-the U.S.-on-foreign-soil" rule by suggesting there was something wrong with Obama's criticism of Israel while in Indonesia; apparently, it's fine for American officials to criticize the U.S. while in Israel, but not for the U.S. President to criticize Israel while on foreign soil.  And for the past two years, leading Democrats who would never dare publicly criticize Obama for anything have bitterly and publicly denounced him for the crime of opposing Israeli policy.  And, of course, there is far greater unity in the U.S. Congress for Israeli wars than for America's own wars; that's just a fact.

Last night on Twitter, I wrote:  "Imagine if a leading Democratic Congressman told a leader of a foreign country he'd side with them against the GOP US President" and "Imagine John Kerry, 2006, to French President Jacques Chirac: 'I'll safeguard French interests against President Bush'."  In reply, The Washington Examiner's David Freddoso wrote:  "No need to imagine.  It happened in 02."  He's presumably referring to Rep. Jim McDermott's trip to Iraq to oppose America's imminent attack on that country.  That's hardly comparable -- McDermott wasn't in the leadership of his party and he was opposing that war out of allegiance to the U.S., not to Iraq -- but even so, it created a major media backlash in which McDermott was routinely denounced as a traitor and to this day is mocked as "Baghdad Jim."  Needless to say, Cantor's actions will spawn nothing comparable.  That's the point.

What makes Cantor's behavior all the more remarkable is that the Israeli-Palestinian conflict which the Obama administration is ostensibly attempting to resolve is, as Gen. David Petraeus himself pointed out, a direct threat to U.S. interests and security.  But no matter; those concerns are plainly not Cantor's priority.

One other revealing and fascinating aspect to all of this.  The two co-Chairmen of Obama's Deficit Commission, Erskine Bowels and Alan Simpson, last week unveiled a plan that would entail drastic cuts in most areas of American life, including Social Security and Medicare.  Whatever else is true, American citizens are going to experience severe cut-backs in all sorts of benefits and economic security.  Meanwhile, the U.S. continues to shovel billions of dollars every year to Israel -- a country which, unlike the U.S., enjoys a booming economy and universal health care coverage.  The Bowles/Simpson proposal would not cut any of that, but it at least calls for a reduction in the rate of growth in foreign aid, which would encompass the numerous foreign countries to which the U.S. transfers such money, with Israel leading the list and its neighbor Egypt in second place (which buys Egyptian stability and peace with Israel). 

Anticipating that the extreme austerity measures which his party is demanding might sweep up foreign aid -- and therefore threaten the billions of dollars every year in taxpayer money transferred to Israel -- Cantor last month proposed that money to Israel not be classifed any longer as "foreign aid" -- in order to shield it from all cuts.  In other words, Cantor wants American citizens to sacrifice in the extreme, to lose all sorts of benefits and security in the name of austerity, but wants to shield Israel -- with a higher standard of living -- from those cuts.  Put another way, Americans should give up Social Security and Medicare benefits so that they can continue to transfer billions of dollars every year to Israel, a foreign country which offers far more of a safety net to its own citizens.  But don't you dare accuse Eric Cantor of haboring allegiance to Israel and subordinating U.S. interests to this foreign country.  That would be extremely wrong of you to insinuate.