Torture and American Values

The guy who argued that torture is perfectly legal

Last year, the Senate Select Committee on Intelligence put out its report on the use of torture by the CIA in the years after the 2001 attacks. The executive summary of the report runs more than 300 pages, not including the notes, and lays out in excruciating detail the process by which the CIA -- the Government in general -- decided to torture more than 100 people over three years, and the methods used in the torture.

I am most interested in how we decided to abandon our traditional values and our stated policies and laws to behave in such systematically depraved ways. As the Senate report makes clear, many people, even within the CIA (not the most squeamish of entities) were made physically sick by what the "special interrogators" were doing. All the way up the chain of command, CIA and White House people explained the legal and moral problems with these "enhanced" methods. FBI investigators tried to convince the CIA that torture was unnecessary and even counterproductive. So why did the program go forward?

There appear to be two basic answers. First, the Office of Legal Counsel, led by John Yoo, convinced leadership that the methods did not contravene international or US law. People in the position to decide were too cowardly to resist the argument that because we were attacked, we had the right to do whatever we wanted, and Yoo gave them bureaucratic cover. Once the Washington Post got wind of certain practices and threatened to report them, these craven, immoral government hacks panicked and went back to OLC to be reassured that they would not be held accountable for their actions. Yoo promised they would be OK.

Second, two sadistic creeps masquerading as psychologists misapplied training given them by the Air Force to act out their own sick fantasies of power. John Mitchel and Bruce Jessen had been taught how to resist certain nasty interrogation techniques in the Air Force SERE program, but used that training in the opposite way, to be nasty themselves. Mitchell, misunderstanding the consequences and applications of "learned helplessness," decided that they could be used to get information from prisoners.

The two sadistic morons who conducted the CIA's torture program.

Mitchell was wrong, not just morally but factually and theoretically. That makes him an idiot as well as a sadist. That Jessen went along only means he became sidekick to a fool -- and what does that make him?

Our system, though, is supposed to prevent small-minded men like these from coming to positions of sufficient power to commit the evil they did. That's where we failed.

Sound Familiar?

As long as we are on the subject, does this remind you of anyone?

He has no record of public service, but wants to gain the most powerful position in the country. He gains in popularity by tapping into the anger and resentment of an ethnic population that feels recently dispossessed of its cultural birthrights. He calls for the exclusion and prosecution of ethnic minorities within his country. His rhetoric emphasizes a patriotism of collective past greatness, and the need to return to that greatness. He has no particular policy proposals that make any sense, just grandiose and impractical declarations. He says that the system needs an outsider to tear it down and star again. The politicians around him are so embarrassed by his stridency and the notoriety it brings that they will not stand up to him and call him out for his practices.

      

Now, I know I will raise the ire of a whole lot of people by making this comparison, but it's time to shake off the political correctness Trump and his followers so detest and call things as  they are.

So far, only because Trump has gained no power, he has done no serious damage. He probably would not and could not commit the atrocities executed by Hitler.

But Trump is following the playbook of the worst and most dangerous kind of demagogue. Taking him lightly is foolish. He needs to be put in his place by the Republican Party so we do not slip closer to the harm he could bring.

Have any doubts? I recommend to you Hannah Arendt, from Origins of Totalitarianism:

It has frequently been pointed out that totalitarian movements use and abuse democratic freedoms in order to abolish them. This is not just devilish cleverness on the part of the leaders or childish stupidity on the part of the masses. Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are respected by groups or form a social and political hierarchy…
            Indifference to public affairs and, neutrality on political issues, are themselves not sufficient cause for the rise of totalitarian movements. The competitive and acquisitive society of the bourgeoisie had produced apathy and even hostility toward public life not only, and not even primarily, in the social strata that were exploited and excluded from active participation in the rule of the country, but first of all in its own class…Both the early apathy and the later demand for monopolistic dictatorial direction of the nation of the nation’s foreign affairs had their roots in a way and philosophy of life so insistently and exclusively centered on the individual’s success or failure in ruthless competition that a citizen’s duties and responsibilities could be felt to be a needless drain on his limited time and energy…

Why, Exactly, Should We Care What Bibi Netanyahu Thinks?

Bibi Netyanyahu does not like President Obama's deal with Iran. We should not be surprised, since he has opposed any negotiations with Iran all along. Fair enough.

So what?

Israel has been, in some cases, an ally of the United States in a region of the world in which the US needs as many allies as it can get. It is a democracy, it is not Islamist, and it has extensive cultural ties to the US, especially in the form of millions of Jews who play an important role in American politics. For these reasons, President Obama ought to pay attention to what Israeli leaders say.

On the other hand, Netanyahu himself has not done a lot to promote American interests in the Middle East. His heavy-handed treatment of Palestinians, both in and out of Israel, continues to provide motivation and opportunity for terrorist recruitment. He has done little, if anything, to help settle the conflicts created by the Arab Spring, in part because he does not like the idea of strong Muslim democracies -- or democracies at all, come to think of it. He has deliberately inserted himself into American politics in violation of all diplomatic protocols, especially between allies.

And, again, the United States needs as many allies in the region as possible. Iran is no friend of ISIS, and Saudi Arabia has been reluctant to help out on that front, at times. Israel is not exactly overextending itself in stopping the spread of a menace far more dangerous to it than to the US, but neither has it been appreciative of US efforts there.

In sum, Bibi can say what he wants, but I don't know why anyone should listen to him.

The Best Single Source of Information on Drones

The American Security Project offers a comprehensive description of US security policy as it relates to drone strikes. The advantage to this site, as I see it, is that it does not take an immediate position on whether drones are good or bad for foreign policy.

"Reasonable Certainty" Kills Two Hostages

By many standards, the Obama Administration behaved decently and cautiously when it bombed the compound in Pakistan where Warren Weinstein and Giovanni Lo Porto were being held hostage in January. They conducted weeks of surveillance on the site to ensure that the men they wanted to kill were there, and that they were the only ones there.

Even after the strike, the CIA, of all organizations, were far from callous in their approach to the bombing. When they saw that six, not four bodies were removed from the building they had just wrecked, they investigated. They spent weeks "poring over drone video feeds, satellite data, electronic intercepts of cellphone conversations and informants’ reports" to analyze the evidence from the rubble, and then quizzed people on the ground about who those extra bodies belonged to. 

Once they realized they had killed two "Westerners," and that one was an American (bad) and another not (embarrassing), the Obama Administration did not cover up the ugly truth, but faced it. President Obama apologized even before anyone else called him on it. 

    Haji Mujtaba/Reuters  http://www.nytimes.com/2015/04/25/world/asia/cia-qaeda-drone-strikes-warren-weinstein-giovanni-lo-porto-deaths.html

It's not despite this meritorious conduct, but because of it, that the drone program is a problem. Any time one man -- even a conscientious, intelligent, and deeply moral man like President Obama -- takes it upon himself to be prosecutor, judge, and executioner, he is likely to kill innocent people. No standard to which he can hold himself will be a sufficient protection against results as bad as these.

Today's Adolph Hitler

As the self-styled Islamic State of Iraq and Syria pushes its offensive further south through Kurdish Iraq, it makes clearer its fundamental nature. It is not a religious movement, nor even a political movement fueled by religious values. Instead, it is a totalitarian movement reminiscent more of Adolph Hitler than Osama bin Laden. Its leader, Abu Musab al-Zarqawi is an armed thug with very little religious intent. His goal is total control over a population, and he is willing to use fabricated Islamic law to get what he wants. 

Abu Musab al-Zarqawi: more Hitler than bin Laden
from Wikipedia

As Scott Stewart wrote for the website Stratfor, the Islamic State has managed to build itself into a formidable fighting organization, but it has forsaken any practical efforts to govern or gain popular support.

Stewart writes that 

So far, the Islamic State has been able to claim its battlefield successes as proof of Allah's blessing. However, it has not yet received the global recognition and acceptance it hoped its declaration of a caliphate would produce. The number of jihadist groups swearing allegiance to the Islamic State has remained quite limited to date.

Zarqawi rapes and enslaves women, executes Shi'ites and Yazidis, destroys infrastructure and rejects any suggestion that its actions might be destructive. Zarqawi is a bully in the largest sense, just as Hitler was, using his willingness to be audaciously atrocious as his favorite tool. Fear is his most effective weapon, and he preys on the ignorance of his own people to convince them that he stands for something bigger than his own power.

President Obama's decision to bomb ISIS positions over the weekend was a start, and while I sympathize with his desire to exercise restraint, this really is the first Munich since 1938. This group needs to be stopped.

Putin, Law, and Truth

Vladimir Putin built his brutal Russian regime on lies. Like all dictators, Putin prefers to be see as a legitimate ruler, governing in the name of his subjects. Since that story cannot withstand even the briefest scrutiny, he must fabricate some information and obscure the rest. Control of all media outlets therefore lies at the heart of his power, because Russians must only receive news he selects or they would very quickly become angry and unmanageable.

The rest of the world is not under his thumb, however, and neither is empirical reality. This fundamental truth always proves to be the death of dictatorship and totalitarianism in the end. In the case of Malaysian Airlines Flight MH 17, Putin wants to maintain the fiction that he and his minions bear no responsibility for the deaths of hundreds of civilians flying 30,000 feet over the Ukrainian war zone, that any suggestion that they are at fault comes from a worldwide conspiracy to weaken Russia, and that the cause of truth and justice depends on Russia and its supporters. By many indications, Russian citizens, consuming Putin's own version of events, buy this narrative and continue to support Putin. But European and American citizens and their governments have access to the truth, and so demand that Putin behave more like a decent human being.

As a result, Putin is in trouble. As Stratfor analyst George Friedman writes, since the airplane was shot down "Putin then moves from being an effective, sophisticated ruler who ruthlessly uses power to being a dangerous incompetent supporting a hopeless insurrection with wholly inappropriate weapons. And the West, no matter how opposed some countries might be to a split with Putin, must come to grips with how effective and rational he really is." At some point, the real world intrudes on even the most tightly controlled places, and it has come rushing into Moscow in the last few days. we can only hope that it forces serious change in Russia relatively quickly.

The "Islamic State" is Neither

At the core of Muhammad's life was the quest for an all-in-one society, in which politics, religion, art, and economics all flow from one, central authority derived from the word of God. It is not anti-Muslim or anti-Islamic to say that Muhammad did not seek freedom of religion or pluralism; he believed he had found the answer, and he wanted to apply it.

For the "hyper-violent" adherents of the group called the Islamic State to call for such a thing, then, is deeply rooted in the traditions and philosophy of Islamic culture. Muhammad did the same, and he fought more than one serious, literal battle to achieve its creation. That he succeeded in doing so is one of the things that sets Islam apart from other world religions, and it infuses the faithful with a distinct, though not unique political mindset (one not at all different from that of most Israelis.)

But what would the government of such a group look like? For one, it would erase or diminish the lines drawn more-or-less arbitrarily by the Sykes-Picot Agreement of the early years of the last century. It would be exclusively Sunni, as Iran is fully aware, and authoritarian at least. It would not be open to diversity, and it would not be an especially willing partner with the United States in maintaining Western interests.

So far, IS has spent all its time rebelling against the status quo, and so has not established anything like a state as yet. It governs nothing, eve as it expands the reach of its military domination and intimidation. Most commentators assume that it will be takfiri and brutal. Al Qaeda itself has disavowed many of its methods as too nasty, and while that group has ulterior motives for such remarks, it's still saying a lot that Zawahiri flinches at their violence.

http://www.eiilir.eu/

If these rebels act anything like takfiris elsewhere, they are not leading in the tradition of Islam. Muslim tradition allows excommunications and attacks on apostates, but Muhammad was a statesman as well as a profit, and he impose strict rules of evidence and procedure on such practices. Here is the Q'uran itself:

O you who believe! When you go (to fight) in the Cause of God, verify (the truth), and say not to anyone who greets you (by embracing Islam): "You are not a believer"; seeking the perishable goods of the worldly life. There are much more profits and booties with God. Even as he is now, so were you yourselves before till God conferred on you His Favours (i.e. guided you to Islam), therefore, be cautious in discrimination. God is Ever Well-Acquainted with what you do. (4:94)

That is, one can not simply wander around the desert killing people on his own initiative, as these people have done. Until they prove themselves to be true Muslims, then, they will gain no legitimacy, and no statehood.

Who We are Now: The United States and Counterinsurgency

In 2009, the US Army, motivated by the disastrous occupation of Iraq in 203, published its Field Manual in Tactics in Counterinsurgency. The problem, as the authors saw it, was that Army commanders did not know what do to once they had occupied a country using traditional military strategy and tactics. The manual describes how commanders should aid in the reconstruction of a society and a polity destroyed by the invasion.

The first basic assumption of the manual -- an idea ignored or abandoned by the doctrine of Rumsfeld's military in 2003 -- is that an American invasion will create animosity and opposition in at least some segment of the population of the conquered nation (referred to in the manual, somewhat euphemistically as the "Host Nation," or HN). As a result, soldiers will have to combat an insurgency for some time after the invasion is over. The second assumption of the manual is that soldiers are not automatically equipped or trained to work like that; they are trained to kill the enemy efficiently and comprehensively, not govern a chaotic situation.

The first two chapters serve as a remarkable textbook on practical human geography. They describe the physical and social manifestations of a people's values (and make careful distinctions between the values of a society and its interests -- concepts that deserve very further thoughts at all levels of government.)

I say it is "practical human geography" because this is a field manual; its purpose is to instruct soldiers on what to do, on a day-to-day basis, when they are an occupying force in a foreign place. The soldiers need to understand their Host Nation well enough not offend its inhabitants and thereby strengthen the Army's opponents.  They must provide security in its most basic form while also improving infrastructure and the faith in the rule of law.

These are enormously complicated and complex undertakings, and the book emphasizes the need for soldiers to adhere to legal and political restrictions in the conduct of open war. It teaches methods of detainment, search and seizure, interrogation, interaction with NGO's and government agencies. It urges restraint and observation while also describing the best way to establish effective kill zones for an ambush in an urban area.

In other words, the people of the United States, through its military, have become the guarantors of the rule of law in parts of the Middle East. If we did not know that already, we can see it in the rapid disintegration of Iraq once the Army left.

Now is the time to have a careful, reasoned debate about the consequences and implications of this fundamental fact. I wish we were capable of having it.

On the Assassination of Anwar al-Awlaki

In 2011, President Obama ordered the killing of an American citizen living in Iraq. His name was Anwar al-Awlaki, and he was suspected of orchestrating or inspiring at least three terrorist attacks on American soil. Using an unmanned drone, the CIA vaporized al-Awlaki without submitting his case to a court or convicting him of any crime. In other words, Obama carried out an extra-judicial execution -- the kind of thing generally frowned upon under the rule of law (unless you are John Yoo.)

The problems with this sort of thing are obvious. If the president unilaterally can order the death of a US citizen, there is very little he cannot do. Our system of checks and balances, if it was designed to do anything, was intended to prevent this kind of drastic action being taken without any sort of due process. More specifically, there seem to be direct legal prohibitions on this sort of thing, as legal scholar Kevin Jon Heller pointed out even before the killing.

Recently, the Obama Administration released the memo written to the president explaining why this targeted assassination was legal and justified. Essentially, it invokes the 2002 Authorization for the Use of Military Force (AUMF) and asserts that the government could "reasonably conclude" that al-Awlaki was a member of al Qaeda. The facts behind this conclusion are redacted, with the permission of a federal judge who ordered the release of the memo, so we can't know why they think he was a member of the one specific terrorist organization reached by the AUMF.

In other words, the executive gave itself permission to conduct an assassination based on information known only to the executive.

Where is Ted Cruz when you need him? Why is this OK when Obamacare is a crazy overreach?

What Does it Mean to be an Ally?

The State if Iraq in Syria (ISIS) is a nasty outfit, and if you don't believe me, ask Bashar al-Assad and Ayman al-Zawahiri. Assad has made himself as infamous as his father by defending his right to gas his own people; Zawahiri is the current head of al-Qaeda, an organization not known for its squeamishness in the face of violence. These men have condemned both the methods and the bloody objectives of ISIS, and, along with the government of Iran, has agreed to share intelligence and personnel in the effort to kick ISIS out of Iraq.

All of these people, as well as the state of Israel and the government of the United States, are banding together to defend the map, as it is constructed below. The status quo, with all of its economic and political implications, reflects a secret process of map drawing conducted by French and English diplomats in the first years of the 20th century. That is still exists is a testament to the extraordinary quantities of blood and treasure governments have been willing to expend in its defense.

http://www.oilempire.us/new-map.html

What ISIS wants to do is erase all these lines and consolidate the entire region under one, repressive Islamic state based on its blatant misreading of the Koran and in conflict with most modes of fundamental morality. ISIS is mean and ought to be eradicated.

stratfor.com

On one level, therefore, it is not at all surprising that so many states would get together to eliminate ISIS. These entities have been at war themselves, however, in nasty ways of their own. For Iran and the US to acknowledge publicly that they are sharing information, therefore, is stunning. It goes to show that we may have more in common that is often recognized.

Muslims Did Perpetrate the Attacks of September 11, 2001 -- and it's OK to say so

Islam does not cause terrorism. It did not cause the attacks on the World Trade Center in 2001.

The people who perpetrated those attacks did claim, however, to be doing it in the name -- and for the cause -- of their warped, misinformed view of Islam. Osama bin Laden and the leaders of al Qaeda who planned the attacks declared war on the United States because it threatened their vision of what the world ought to be like: a constricted, misogynistic, brutal theocracy.

Most Muslims do not, and never did, support the policies and actions of the terrorist group. They do not recognize as their own the message that bin Laden espoused.

When we say that Muslims attacked Manhattan, and they did so out of misplaced religious zeal, we are not condemning all Muslims and we certainly are not condemning Islam. We are telling the story as it happened.

That's why the objections to a short (approximately seven-minute) video at the September 11 Museum in Manhattan are badly misplaced. People worry that visitors to the museum will mistakenly believe that all Muslims are to blame if Islam is mentioned at all. If that's true, then we have problems (and I am sure we do), but they are not ones that can be solved by excluding the information.

I suppose that the purpose of "interfaith panels" like the one lodging the complaint is to reflect sensitivities like these. But I do not understand  -- and find a bit distasteful -- the position that we should not mention the stated motives of the people who staged the attacks. It seems fundamentally dishonest, and therefore not what museums should do.

Betim Kaziu and the First Amendment

Until Thursday, I had never heard of Betim Kaziu.The I took a class to Manhattan to see the Second Circuit Court of Appeals, and we heard oral arguments in his case.

Betim Kaziu

In 2009, the government indicted Kaziu, a Brooklyn resident, for conspiring to travel abroad to fight against US interests. According to the indictment, Kaziu

took steps to continue on to Pakistan to obtain training and other support for violent activities. Kaziu also attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported Al Qaeda and which has been designated as a terrorist organization by the United States Department of State. In addition, Kaziu made efforts to travel to Afghanistan, Iraq, and the Balkans to fight against U.S. armed forces. To that end, Kaziu attempted on multiple occasions to purchase weapons in Egypt. Ultimately, Kaziu traveled to Kosovo, where he was arrested by Kosovar law enforcement authorities in late August 2009.

Note that at no time did Kaziu succeed in any of these plans. The charge was solely that he conspired to do certain things.

In 2011, a jury returned a conviction, and in 2012 Kaziu was sentenced to 27 years in prison. At the sentencing, federal judge John Gleason excoriated Kaziu for showing insufficient remorse for wanting to be a "jihadist."

In his appeal, Kaziu's attorney made two arguments: first, that the government had insufficient evidence, as a matter of law, to convict Kaziu; and second, that he had a First Amendment right to do what he did.

Essentially, the First Amendment argument is that Kaziu never really did anything. He walked around saying that he wanted to do a thing -- kill American soldiers abroad -- but never demonstrated any actual capacity to execute these wishes. Everywhere he went, he failed even to find and join groups that might facilitate his desires. He was arrested in Albania after he made a "martyrdom video," which his attorneys say was "in jest."

That last part is a problem. If law enforcement is to have the ability to prevent terrorist attacks, it probably has to be allowed to intercede once somebody says they are on their way to martyr himself. And claiming that it's all just a joke, after months of travelling around trying to find the chance to become a martyr, is not going to fly.

But I don't feel especially confident about the worthiness of this conviction.* Kaziu is young and an idiot. Foolishness is not a defense, of course, but did the government show that he was a real threat? It does not seem so to me. And the judge's lecture from the bench only sounds like a cranky old man.

*There are other problems, aside from the 1st Amendment claim, that I will get to later.

 

Why International Law Matters, Too

Maybe you're a "realist" -- you think pragmatism, not abstract principle ought to dictate our actions, especially in the international theater. Law, you figure, matters less than the application of influence and power in the greater national interest. And maybe you are right, in the end. But if you think that the rule of law is somehow not pragmatic, consider these two stories.

Fueled by information from Edward Snowden, The New York Times and the The Guardian have reported extensively on the widespread, even pervasive, snooping conducted by the NSA.


Edward Snowden

Now, the Agency itself is facing the consequences of its actions. In this piece by Scott Shane, who has been the lead reporter on this story, the spies consider the downside to breaking rules in the pursuit of power. The information gained may or may not be of any real value: do we really need the NSA to give us an economic advantage over Brazil? But, it turns out, our allies do not much like learning that the US government steals everything it can get its hands on. Turns out, theft undermines trust.

Not only that, but it's difficult to rally support allies against rogues like China when the US government itself sees no reason to limit its own behavior.

Likewise, the gunning down of people we do not like, even scumbags like Taliban leaders, can have unintended negative consequences. Sure, Hakimullah Mehsud was a rotten human being. He was brutal and self-centered and mean. He intended to harm American citizens and American interests. He was a liar. But his death at the hands of the US government -- really, at the hands of the President himself -- in a drone strike, may not help much in the long run.

Mehsud, from NYTimes

Just because we can kill people does not mean we ought to do so.

The underlying reasoning behind an adherence to the rule of law is that it provides long-range benefit at short-range cost. When we arrogate to ourselves the privilege of settling scores on our own, we separate ourselves from the larger community. As long as we are the biggest bully on the block, capable of defending ourselves unilaterally, that works for us, if for no one else. But what if we need help? What if we can't go it alone? How do we ask for the aid we need, and if we can we expect to get it?

So be pragmatic, if you like. Just don;t think you can do anything you want and get away with it forever.

Democracy, Transparency and Foreign Policy

As Robert D. Kaplan wrote for Stratfor Glogal Intelligence Reports a couple of days ago, good foreign policy is not always entirely honest. In "Syria and Byzantine Strategy," Kaplan criticizes the Obama Administration for showing too many of its cards in the matter of Syria intervention. "Never tell your adversary what you're not going to do!" he says,  "Let your adversary stay awake all night, worrying about the extent of a military strike!"


http://superradnow.wordpress.com/2012/09/19/spy-vs-spy/

That's probably right. But in democratic governments, secrecy and deception are also problematic. In order for Obama to deceive Bashar al Assad, he would also have to deceive the American public and most of Congress, too. That's not really what he's supposed to do. Maybe that's why dictatorships -- like the Byzantine Empire Kaplan praises in the piece -- execute foreign strategy more effectively.

Obama's strength is his weakness: he's an honest man, fundamentally, and he prefers to talk straight. Such an approach to life is not helping him here. 

Syria and "Politics"

I don't watch CNN or Fox News or any of that 24-hour-news-cycle junk, but I have caught wind of the bizarre perceptions of the Syria problem just by looking at Facebook once a day. One person wanted to know why the president was "stalling." Another lauded him for following the democratic process by consulting Congress even if it did make him look weak. Another predicted that whatever Obama would do would fail, and that he would blame it on "someone else, just like he always does."

The question of whether to bomb or attack or leave Syria alone has profound consequences. Assad's use of chemical weapons on his own people is a serious breech of every norm of international law. As the most powerful military force in the world, the United States can not simply claim moral neutrality in the matter and walk away. But the alternatives to Assad may be nasty, too. One opposition group just posted a video of its most recent execution. And whether the United States can have any positive impact on the situation is not at all obvious.

That is to say, this is a problem for politics. We need to engage in a serious discussion, through legitimate political processes, about what to do as a nation. Tea Party isolationism may be a fair position to take, just as Republican interventionism or Democratic interventionism may be.

What's not helpful or productive or even justifiable is glib mudslinging or name calling. This is serious. If you don't have something serious to say, pipe down and let us work it out.

Donald Rumsfeld, for example, whose entire career has been a series of disgraceful miscalculations and cynical manipulations, should get no air time at all, especially if he is just going to be insulting.

FISA and the Independent Judiciary

All the executive-branch access to phone records and whatnot only concerns me a little. The fact is that we live in public, and efforts to guarantee that all our conversations -- though held while walking down the street -- are perfectly secret are misplaced.

On the other hand, these things do need to be watched carefully, and we have people in place with the legal and constitutional authority to do all the necessary watching: judges. As long as we require the executive to ask a judge before wiretaps are secured or records are collected, we should be fine ... as long as the judges do their jobs. If the judges see themselves not as independent arbiters but as extensions of the executive, we do have a serious problem.


The courts established by the Foreign Intelligence Security Act have blurred that important line. The very fact that their decisions are secret and that they do not have to publish their rationale is a problem. Courts should never operate in secret. Whether the judges like it or not, when they work out of the public eye, they are more liable to be considered "rubber stamps" for the government.

Now concerns arise about how judges get the job in the first place. While Republicans block nominations by the President all the time, they have no say over FISA court appointments; Chief Justice Roberts makes those appointments, and recent analysis suggests that he puts people on the court who are even more likely than most to approve of government surveillance.

FISA courts ought to operate within very narrow parameters. Mostly, open court proceedings are better. But even within those confines, they need to work under the system of checks. What they are doing now is not good enough.

How to Avoid Imprisoning People? Kill Them.

The problem with the US prison at Guantanamo Bay is that it has been allowed to lie outside the ordinary system of justice. Prisoners captured by the CIA, by military intelligence, and even by militias just barely allied with the United States have been hauled to Cuba because there is no legally usable evidence against them, and the American government has denied that the Geneva Conventions apply to them.

from the Guardian.com

Jess Bravin (from that hotbed of radicalism, The Wall Street Journal) described in his book The Terror Courts: Rough Justice at Guantanamo Bay the failure of the system of military commissions designed by a group of cynical men in the second Bush Administration. The courts collapsed under the weight of the negligence of the people who made it. Dick Cheney, John Yoo and others so totally disdained the concept of the rule of law that they deliberately placed incompetent judges on the courts, says Brevin, so defendants could not get a fair trial. Even when people within the administration protested, these bizarrely un-American men railroaded though a series of deliberately dysfunctional procedures.

Turns out that this kind of thing does not work. Our legal system does work, though imperfectly. We can convict bad guys while also defending their rights. Security and ordered liberty are not incompatible.

Now, I understand the problem with closing Gitmo. The people in there really do want to kill us now, whether they did before or not. Arbitrary, nasty imprisonment over 12 years radicalized them, and now we can not in good conscience free them to wreak havoc on the population.

But why is it better to just off the bad guys instead? I'm not sure I fully believe the claim that Obama is using drone strikes solely because he can't close Guantanamo. Still, the correlation is ugly.

Trust Our Courts

America's strength lies in our deep-seated belief in the value of the rule of law. At the core of that belief is a faith that questions of guilt or innocence are best resolved in a court of law, run by a judge and adjudicated, in part, by a jury.

Now we have a number of Americans, many of whom consider themselves great patriots, who argue that our system of justice can't handle its fundamental purpose. For example, John McCain and Lindsey Graham say that terrorists and other criminals, like Dzhokar Tsarnaev, should not be tried, but should be held indefinitely as "enemy combatants." "Our goal at this critical juncture," they said in a joint release "should be to gather intelligence and protect our nation from further attacks." Graham later added, “The last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" 

These comments reflect a serious -- and tragic -- misunderstanding of the principles of justice underlying our system. This is not "Law and Order," in which some heinous criminal goes free on an arbitrary ruling from a character actor. Federal judges know their business, and federal prosecutors seldom lose cases they pursue. Not only that, but the rights of the accused do not hinder prosecution or impede justice. Quite the opposite is true: by ensuring a fair trial, courts increase the likelihood that convictions will "stick" and that sentences will be fulfilled.

McCain's comments are especially sad. This is a man who, rightfully, has argued for years against the use of torture because it reflects badly on Americans and endangers our soldiers. Why can't he see the implications of his position here/

"Guns Don't Kill People, Immigrants Kill People"

Chuck Grassley wants us to be safe. To prevent the kind of behavior that led to the Boston Marathon bombings, he wants to change the way we regulate immigration. Speaking before the Senate Judiciary Committee this week, Senator Grassley wondered

How can individuals evade authorities and plan such attacks on our soil?How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?

What we know now is that one of the suspected bombers was a nineteen-year-old who graduated from Cambridge Rindge and Latin, a remarkably successful public school. He was a college kid who tweeted about doing laundry. Grassley may not have been able to know these details when he made his comments, but that's no excuse for the silliness of his message.

The speech is silly because just before he delivered it, he helped kill the Obama Administration's proposed gun-control bill. Why? Because it would have made owning and trading assault rifles more difficult for "law abiding citizens."

Of course Dzhokar Tsarnaev was a law-abiding citizen right up to the moment when he filled a backpack with explosives, walked to Copley Square, and detonated a bomb that killed an eight-year-old boy, among others. And the police officers he killed did not die from the explosions. They died because Tsanaev and his brother had guns and ammunition designed to kill people.

Grassley and his ilk cannot have it both ways. If they support the 2nd Amendment, they must face the fact that, if the right to own guns is a fundamental right it is so because the founders wanted to permit occasionally violent dissent against the government. Place the 2nd Amendment between the 1st and the 3rd and take the group as seriously as Grassley and that whack-job Wayne LaPierre want to do, and you get armed opposition to the government.

Like the Tsarnaevs.