Secret Court Document Finds Spy Techniques Unconstitutional

Justice Department Fights To Keep It Hidden

By Ryan W. Neal

The Justice Department may soon be forced to reveal a classified document that details unconstitutional surveillance of American citizens. The Justice Department has fought to keep the document secret for about a year, but a recent court order demands that they respond to a formal request filed by the Electronic Frontier Foundation by next week, June 7, 2013.

This document was first revealed last July by Sen. Ron Wyden, D-Ore., to call attention to an expansion of the Foreign Intelligence Surveillance Act in 2008 -- which then-Sen. Barack Obama voted for . According to Wyden, the Foreign Intelligence Surveillance Court ruled that the government violated the Fourth Amendment. The FISC mostly operates in secret, so the actual court decision remained classified. Wyden was only able to say the FISC decision existed; he was unable to disclose any details about the actual surveillance techniques that were deemed unconstitutional or how many Americans they affected.

The EFF took legal action to learn more about the FISC decision. An initial victory in a district court established in the public record that the Justice Department does possess an 86-page FISC decision on unconstitutional surveillance methods that was published Oct. 3, 2011. The decision found that some techniques were “unreasonable under the Fourth Amendment,” and that the court concluded that “on at least one occasion,” the Justice Department “circumvented the spirit of the law.”

The EFF’s next goal is to make the actual FISC decision public. The EFF had submitted a Freedom of Information Act request for the document to be declassified, but the Justice Department objected to the FOIA request on the grounds that making the FISC decision public would damage national security. It also argued that it didn’t even have the proper legal authority to release the FISC decision. A district court ruled in favor of the Justice Department and upheld the decision to keep the FISC document a secret.

The EFF decided to take its case directly to the FISC last week, and filed a motion to disclose the court records. On Friday, FISC Judge Reggie B. Walton ordered the Justice Department to submit any argument against the motion no later than 5 p.m. on June 7.

Of course, the Justice Department is likely to return with many of the same arguments as before. The difference, as Slate points out, is that this time the FISC, which has been under fire for its lack of transparency, will be deciding on the arguments. Sen. Dianne Feinstein, D-Calif., is working on a law that requires declassified versions of FISC decisions be made available to the public.

This could be an opportunity for the FISC to show that it is willing to be transparent. After all, it’s a decision it made nearly 20 months ago that was designed to protect the American people from unconstitutional intrusion by their government.

New technologies have made it easier for the Justice Department to spy on Americans, but others have fought back recently. Google has publicly fought against National Security Letters requesting user data, and more recently, a judge rejected and exposed an FBI proposal to use malware to turn a personal computer into a surveillance device. 

The So-Called Rule Of Law

Civilian Trials

By Glenn Greenwald
Tuesday, Jan 5, 2010 06:06 EST
Courtesy Of The Salon Media Group

I was wondering if someone could reconcile these three things:

From Obama terrorism adviser John Brennan, on this weekend's Meet the Press:

MR. GREGORY: Why isn't [Umar Farouk AbdulMutallab] being treated as an enemy combatant instead of a criminal?

MR. BRENNAN: Well, because, first of all, we're a country of laws, and what we're going to do is to make sure that we treat each individual case appropriately. In the past Richard Reid, the former shoe bomber; Zacarias Moussaoui; Jose Padilla; Iyman Faris; all of them were charged in criminal court, were sentenced some in -- in some cases to life imprisonment.

From The New York Times, September 24, 2009:

The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday.

Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban.

In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.

From CNN, November 13, 2009:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

So in order to justify giving a civilian trial to AbdulMutallab, John Brennan cites the fact that we are "a nation of laws." Progressives defending the decision to treat AbdulMutallab as a civilian criminal are similarly invoking "the rule of law." The Washington Monthly's Steve Benen, for instance, cites The American Prospect's Adam Serwer to argue that "'it's really remarkable that we've gotten to a point in American history where the Republican Party has managed to make fair trials for people who commit crimes 'controversial'" and adds: "that Brennan has to mount a 'defense' for following the rule of law, the same exact way the Bush administration did, suggests just how far the discourse has strayed from reality."

Benen is right that the Obama administration is essentially doing what the Bush administration did with regard to terrorism suspects, but what does that have to do with "the rule of law"? How can anyone possibly argue simultaneously that (a) the "rule of law" requires civilian trials and (b) the Obama administration is following the "rule of law," when: (c) the Obama administration is explicitly denying civilian trials to numerous terrorism suspects whenever it feels like doing so? If someone actually believes that "the rule of law" requires civilian trials for terrorism suspects, then it cannot be rationally argued that the Obama administration is upholding the "rule of law," since providing civilian trials -- which the "rule of law" supposedly requires -- is a policy they are explicitly rejecting.

In order to explain this glaring contradiction, many Obama defenders -- following the administration itself -- have started to distort rather significantly what the "rule of law" means and what it requires, in order to squeeze Obama's hybrid approach into it. Here's what Josh Marshall said in defending a civilian trial for AbdulMutallab:

The truth is, until President Obama got into office and Republicans needed a new political attack angle, the idea barely occurred to anyone that you wouldn't do a regular trial with someone you had plenty of evidence against.

I was always under the impression that "the rule of law" requires charges for all people accused of crimes whom we want to imprison -- not only those against whom "you had plenty of evidence." If the "rule of law" only requires a trial when the State is absolutely certain it can convict someone because it has "plenty of evidence against them" -- and then allows the use of military commissions or indefinite detention when the evidence is weak -- then "the rule of law" is a ludicrous joke. Criminally charging people only when you know in advance you can win -- and imprisoning the rest without the benefit of criminal charges -- is a sham system of show trials that is the opposite of "the rule of law." What uncontroversial precept of justice ever suggested that the level of due process to which one is entitled is in any way dependent upon the amount and strength of evidence the State has to convict you? None that I've ever heard of -- at least not until this year. If anything, isn't it even more imperative under "the rule of law" to give a real trial to someone when -- unlike KSM or even AbdulMutallab -- the evidence against them is weak and/or they deny the accusations against them?

In order to suggest that the Obama administration is following some sort of time-honored and uncontroversial precept of justice, Marshall claims that the Bush administration used this same standard: namely, that they gave civilian trials to everyone the knew they could convict. Benen says the same thing when discussing the Richard Reid prosecution: "Military tribunals existed at the time, but they were used when officials didn't have enough evidence to try terrorist suspects in a federal criminal court." But that is really not true. The Obama DOJ insists -- as did the Bush DOJ -- that there is a mountain of evidence against Khalid Sheikh Mohammed and his co-defendants such that a conviction is basically 100% guaranteed. Despite that, the Bush administration placed Mohammed and the others before a military commission, not a civilian trial.

The reality is that the Bush administration used a discretionary multi-tiered justice system for terrorism suspects: they gave civilian trials to some, put others before military commissions, and held the rest indefinitely without charges. That's exactly what the Obama administration's policy is. Back then, virtually no progressives claimed that the Bush administration was "upholding the rule of law" by granting civilian trials to some terrorism suspects and denying them to the rest. How can it possibly be the case that the Obama administration is upholding "the rule of law" when, to use Benen's words, it is according rights to terrorism suspects "the same exact way the Bush administration did" (albeit with some improvements to the military commissions and some new discretionary guidelines to use for who gets a civilian trial and who does not)?

It is perfectly fair and accurate to point out that Cheneyite Republicans are being partisan hypocrites for attacking the Obama DOJ for doing exactly that which the Bush administration did: namely, trying some terrorism suspects in civilian courts and holding the rest without trials. But what about progressives who spent eight years accusing the Bush administration of "shredding the Constitution" and gravely assaulting our political system as a result of its detention policy, yet who are now venerating the Obama administration as "upholding the rule of law" even as they deny trials to scores of detainees?

* * * * *

A new article on Obama's terrorism policies in The New York Times Sunday Magazine by Peter Baker received substantial attention, though not enough, in my view, on the most important point Baker documented. Matt Yglesias, for instance, notes that "a half-dozen former senior Bush officials involved in counterterrorism" told Baker that they approve of Obama's counter-terrorism approach but, for cowardly reasons, won't say so on the record. I agree with Yglesias that this refusal bespeaks very poorly of the character of those individuals, though fear of alienating powerful people and potential future employers is hardly unusual for Washington. I think the far more interesting question is why so many top-level Bush officials would find so much to love in Obama's approach, and multiple passages in Baker's long article provide the answer:

In fact, the new president, during his first year, has adopted the bulk of the counterterrorism strategy he found on his desk when he arrived in the Oval Office, a strategy already moderated from the earliest days after Sept. 11, 2001. . . . The policies themselves, though, have not changed nearly as much as the political battles over closing the prison at Guantánamo Bay and trying Khalid Shaikh Mohammed in New York would suggest. "The administration came in determined to undo a lot of the policies of the prior administration," Senator Susan Collins of Maine, the top Republican on the homeland-security committee, told me, "but in fact is finding that many of those policies were better-thought-out than they realized -- or that doing away with them is a far more complex task." . . . Michael Hayden, the last C.I.A. director under Bush, was willing to say publicly what others would not. "There is a continuum from the Bush administration, particularly as it changed in the second administration as circumstances changed, and the Obama administration," Hayden told me. James Jay Carafano, a homeland-security expert at the Heritage Foundation, was blunter. "I don’t think it’s even fair to call it Bush Lite," he said. "It’s Bush. It's really, really hard to find a difference that’s meaningful and not atmospheric. You see a lot of straining on things trying to make things look repackaged, but they’re really not that different" . . . . A senior Obama adviser scoffed at the idea that Bush advisers see continuity, arguing that they are trying to launder their reputations by claiming validation. But it is true that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama.

As Baker notes, the "tone" Obama uses to talk about these things is different (and that, in my view, matters). Moreover, Obama explicitly banned several Bush policies that were already discontinued by the time he was inaugurated ("enhanced interrogation techniques," CIA black sites, circumvention of Congressional statutes on detention and surveillance). And, though Baker does not note this, Obama has also recently taken some potentially meaningful steps to increase government transparency. But as Adam Serwer has explained, the most important point of Baker's discussion is that there are very few real policy differences between the two administrations in these areas, and Dick Cheney's embittered attacks on Obama (and the media's obsession with them) have done a favor for the administration by casting the false appearance that there are.

Indeed, as demonstrated by the progressive praise of Obama for "upholding the rule of law," the most significant consequence of his first year in office, in the area of civil liberties, is that -- with a few exceptions (most notably torture) -- he has transformed what were once highly controversial Republican "assaults on the Constitution" into bipartisan consensus which both parties now embrace, thus ensuring -- as Baker put it -- "that much of the Bush security architecture is almost certain to remain part of the national fabric for some time to come, thanks to Obama." Thus, a President who imprisons people with military commissions or even no charges at all -- and constantly invokes secrecy claims to shield the Executive Branch from judicial review over allegations of lawbreaking -- is now hailed -- by progressives -- as a stalwart defender of "the rule of law."

The Lie Of The Law

Courts Bow to State's Raw Power

Wednesday, 06 January 2010 16:47
Written by Chris Floyd

I.
It is often forgotten how "legal" the Nazi regime in Germany really was. It did not take power in a violent revolution, but entered government through the entirely "legal" procedures of the time. The "legal" vote of the "legally" elected Reichstag gave Adolf Hitler the powers to rule by decree, thus imparting strict "legality" to the actions of his government.

Indeed, there were several cases when those who felt the government had overstepped the bounds of law in a particular instance actually took the Nazi regime to court, and won. Why? Because the government was bound by "the rule of law." And the fact is, almost the entire pre-Nazi judicial system of the German state remained intact and operational throughout Hitler's reign. The "rule of law" carried on.

Of course, as the Nazi regime plowed forward with its racist, militarist, imperialist agenda, this "rule of law" became increasingly elastic, countenancing a range of actions and policies that would have been considered heinous atrocities only a few years before. This trend was greatly accelerated after the Regime -- claiming "self-defense" following an alleged "invasion" by a small band of raiders -- launched a war which soon engulfed the world.

Naturally, in such unusual and perilous circumstances, jurists were inclined to give the widest possible lee-way to the war powers of the state. After all, as one prominent judge declared, the war had pushed the nation “past the leading edge of a new and frightening paradigm, one that demands new rules be written. War is a challenge to law, and the law must adjust."

-- No, wait. I must apologize for my mistake. That last quote was not, in fact, from a German jurist during the Nazi regime, but from a ruling issued this week by the United States Court of Appeals for the District of Columbia Circuit -- one of the highest courts in the land. The quoted opinion -- written by the legally appointed Judge Janice Rogers Brown -- was part of a sweeping ruling that greatly magnified the powers of the government to seize foreigners and hold them indefinitely without charges or legal appeal.

The court denied the appeal of Ghaleb Nassar al-Bihani, who has been held in captivity for more than eight years. What was his crime? He served as a non-combatant clerk for a unit on one side of the long-running Afghan civil war. This war was fought largely between factions of violent extremists; Bihani had the misfortune to be serving in the army of the "wrong" faction when the United States intervened on behalf of the opposing extremists in 2001. Jason Ditz summarizes the case well at Antiwar.com:

Bihani was a cook for a pro-Taliban faction fighting against the Northern Alliance before the 2001 US invasion, and his unit surrendered during the initial invasion.

The Yemeni citizen is accused of “hostilities against the United States” even though he arrived in Afghanistan nearly six months before the US invasion. Not only did his unit never fight against American forces, he was a cook who doesn’t appear to have ever participated in any combat at all. Despite this, he was declared an enemy combatant.

Let's underscore the salient fact: Bihani never took up arms against the United States, was involved in no combat against the United States (or anyone else, apparently), played no part in any attack on the United States. Yet the court ruled that the United States can arbitrarily declare Bihani an "enemy combatant" and hold him captive for the rest of his life.

But the eminent judges did not stop there in their entirely "legal" ruling. As the New York Times reports, they went to declare that "the presidential war power to detain those suspected of terrorism is not limited even by international law of war." And later: "the majority’s argument [is] that the president’s war powers are not bound by the international laws of war."

Think of that. Let it sink in. The president's war powers cannot be constrained by the international laws of war. Whatever the Leader (no points for translating this term into German) decides to do in the course of a war is thus rendered entirely "legal." He cannot be accused of international war crimes because such things do not apply to him.

With this ruling -- which is all of a piece with many more that have preceded it -- we are well and truly "past the leading edge of a new and frightening paradigm." What is most frightening, of course, is the obscene philosophy of machtpolitik -- the craven kowtowing to the demands of brute force -- that is embodied in Judge Brown's chilling words: "War is a challenge to law, and the law must adjust."

Again, remember the context of this ruling. It deals with the Leader's power over foreign citizens in lands that the Leader's armies are occupying. The judicial "reasoning" expressed by Judge Brown could apply, without the slightest alteration, to the Nazi regime's various programs of mass killing and "indefinite detention" of "enemy" foreigners in occupied lands.

The "resettlement" of Eastern Europe -- in order to provide for the "national security" of the German people and the preservation of their "way of life" -- did indeed require a pathbreaking advance into a "new paradigm" on the part of the law. The exigencies and challenges of the war demanded, as Judge Brown would put it, that "new rules be written."

And so they were. Under the duly, officially, formally constituted German "law" of the time -- as interpreted and applied by obsequious jurists in the mold of Judge Brown and her fellow war power expander, Judge Brett Kavanaugh -- there was little or nothing that was "illegal" in the vast catalogue of Nazi wartime atrocities, including the Holocaust itself. The perpetrators were "only following orders," which had been issued by "legal" entities, acting through "legal" processes, under the direction of the "legal" executive authority, whose unrestrained war powers had been established and upheld by the "rule of law."

Now this legal philosophy -- the primacy of raw, unaccountable power -- is being openly established by the highest courts of the United States. President Barack Obama, whose legal minions fought so ferociously to deny the appeal of the non-combatant captive, has been an ardent proponent and practitioner of this philosophy since his first days in office. His administration has proclaimed that the torturers of the Bush administration will not be prosecuted, because they were just following orders -- orders which had been issued by legal entities, acting through legal processes, under the direction of the legal executive authority, whose unrestrained war powers had been established and upheld by the "rule of law."

II.
It was not always thus. A few years ago, when writing of the "constitutional and moral issues raised by Bush's liberty-gutting 'unitary executive' dictatorship" (which Obama has enthusiastically continued and expanded), I ran across a Supreme Court ruling from December 1866 -- more than 140 years ago: Ex Parte Milligan. In this ruling, which grew out of the wartime excesses of the Lincoln Administration, the Court -- dominated by five Lincoln appointees -- was unequivocal:

Constitutional protections not only apply "equally in war and peace" but also – in a dramatic extension of this legal shield – to "all classes of men, at all times, and under all circumstances." No emergency – not even open civil war – warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws."

As I noted earlier in the piece:

It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The Justice who authored the majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself.

This is what the Court decided:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence."

The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush's great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the after-effects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America's fractured society. The Milligan ruling was, in the words of legal scholar John P. Frank, "one of the truly great documents of the American Constitution," a "bulwark" for civil liberties, expansive and exacting in the Constitutional protections it spelled out.

The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place – but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced – in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes – but not always – seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.

It was this case that the Court – five of whom were Lincoln appointees – overturned in such a decided fashion.

As noted, that ruling was made in a nation still reeling from a savage, titanic war fought on its own territory. Even in the midst of such turmoil, the idea that "the laws must adjust" to the exigencies of war -- even the extremity of ruinous civil war -- was considered anathema, even to conservative jurists with close ties to the government.

But no longer. Although, unlike a civil war, even the worst terrorist attack imaginable would pose no existential threat to the nation, today the merest whisper of the possibility of a limited terrorist incident shakes the United States to its foundations -- and people willingly line up to be stripped naked by machines, while courts crawl on their bellies before the terrible majesty of unrestrained executive power.

Be assured: the "rule of law" means nothing, protects nothing, sustains nothing. It can always be twisted and stretched by cowards, courtiers and power-seekers. Arthur Silber, as he does so often, cuts to heart of the matter in this powerful essay from 2009, "Concerning the State, the Law, and Show Trials":

The law is not some Platonic Form plucked from the skies by the Pure in Heart. Laws are written by men, men who have particular interests, particular constituencies, particular donors, and particular friends. ... Laws are the particular means by which the state implements and executes its vast powers. When an increasingly authoritarian state passes a certain critical point in its development, the law is no longer the protector of individual rights and individual liberty. The law becomes the weapon of the state itself -- to protect, not you, but the state from threats to its own powers. We passed that critical point some decades ago. The law is the means by which the state corrals its subjects, keeps them under control, and forbids them from acting in ways that the overlords might perceive as threatening. In brief, today, in these glorious United States, the law is not your friend.

Indeed it is not. In our "low dishonest" century, the "rule of law" has become the "lie of Authority" that Auden speaks of. It will not save us. What matters -- as always -- is moral courage in the face of power's encroachments. Sometimes this can be found within an institutional framework, as in the Supreme Court's bold expansion of legal rights to all people, "at all times, and under all circumstances" back in 1866; and of course it can be found in the lives and actions of individuals, acting singly or in concert. Auden again:

Defenseless under the night
Our world in stupor lies;
Yet, dotted everywhere,
Ironic points of light
Flash out wherever the Just
Exchange their messages:
May I, composed like them
Of Eros and of dust,
Beleaguered by the same
Negation and despair,
Show an affirming flame.

Terror Suspects and U.S. Courts

What Protects the Defendent Also Protects the Public

By JOANNE MARINER
Weekend Edition
January 1 - 3, 2010
Courtesy Of CounterPunch

Umar Farouk Abdulmutallab, arrested on Friday after he apparently tried to blow a hole in a Northwest Airlines jet, is now facing terrorism charges in federal court in Michigan. The criminal complaint in his case alleges that there is probable cause to believe that he violated 18 U.S.C. § 32, which, among other things, establishes criminal penalties for any attempt to place "a destructive device or substance in, upon, or in proximity to" an aircraft, if that act is likely to endanger the aircraft's safety.

Like Richard Reid, Ahmed Ressam, Zacarias Moussaoui, and countless other convicted terrorists, Abdulmutallab will be tried in a civilian court whose judge is protected from inappropriate political pressure, whose procedures include necessary protections for national security information, and whose verdicts are generally viewed as fair.

Unfortunately, not every suspected terrorist in US custody will face justice in federal civilian court. A still unknown number of detainees held at Guantanamo are slated for trial in substandard military commission proceedings governed by a new law that President Obama signed in October. Called the Military Commissions Act of 2009, the new legislation replaces — and somewhat improves upon — the Bush-era military commissions law known as the Military Commissions Act of 2006.

In this column, I'll examine some ways in which the new legislation strays from the Bush-era model.

Reinstating the Geneva Conventions as a Source of Rights

One of new law's reforms is set out in a provision that covers the 1949 Geneva Conventions, including Geneva Convention protections on the humane treatment of detainees. It is no secret that the Bush administration was hostile to the Conventions, preferring abusive interrogation methods to the methods mandated by international law. Ignoring dissenting voices like Colin Powell, who explained that, given the number of US soldiers around the world, the United States should try to strengthen rather than flout international protections against torture, the Bush administration claimed that the Geneva Conventions were inapplicable to terrorism suspects picked up in Afghanistan and elsewhere.

While the US Supreme Court forced the administration to back down from this extreme position, the Military Commissions Act of 2006 still contained a provision that codified, to an extent, the Bush administration's deep animus toward the Conventions. The provision, in section 948b of the law, barred defendants from invoking the Geneva Conventions "as a source of rights." Although the Supreme Court had relied on the Conventions, in part, to strike down the previous set of military commission rules in the 2006 case of Hamdan v. Rumsfeld, the 2006 law purported to make the Conventions irrelevant to any assessment of the Bush-era commissions' fairness.

In what is both a symbolic and substantive step forward, the new law rescinds this restriction. The law does, however, bar persons subject to military commission proceedings from asserting the Conventions as the basis for an independent cause of action. What this means, in practice, is that persons deemed by the courts to be "alien enemy belligerents" may be barred from filing suit for violations of the Geneva Conventions.

This brings us to another improvement in the new law. Somewhat paradoxically, even as the 2006 law tried to nullify the impact of the Geneva Conventions, it also contained a provision specifically stating that military commissions complied with the Geneva Convention requirement that detained persons be tried in a "regularly constituted court," affording all the "judicial guarantees which are recognized as indispensable by civilized peoples." (An aside: Please don't accuse me of mimicking John Yoo, but one might say that the Geneva Conventions' reference to "civilized peoples" is quaint, even antiquated. Still, the substance of the protection is valid.)

This 2006 provision, also contained in section 948b, was the legal equivalent of empty rhetoric. It added nothing meaningful to the substance of the law — it didn't, for example, impose any requirement that the commissions respect basic procedural guarantees — it simply expressed Congress's view that the commissions were consistent with Geneva Convention protections. Or, more to the point, it expressed Congress' wish that the courts would find that the commissions were consistent with Geneva Convention protections. At most, it represented a congressional effort to put a thumb on the scales of justice.

Saying something is so does not make it so, even when the speaker is the US Congress. The new law wisely omits this provision.

On Whether Terrorist Suspects "Deserve" Justice

In the next column in this series, I'll examine some of the ways in which the new law falls short of American standards of justice.

In the meantime, a note in closing: Already, some commentators have suggested that suspected terrorists like Abdulmutallab don't "deserve" the protections of the US criminal justice system. Such a claim reflects a deep misunderstanding of the purpose of criminal justice guarantees. Despite the formal construct of "the People" or "the United States" versus the defendant, the criminal justice system is not a zero-sum game; what protects the defendant does not hurt the public.

Indeed, it is by requiring that the accused not be subject to abusive interrogations, have a meaningful opportunity to challenge the evidence against him, and enjoy the assistance of counsel, that the US system of criminal justice tries to get at the truth. Wrongful convictions don't just inflict grievous injury on the defendants, they waste scarce resources, and harm the credibility of the entire system.

The US federal courts – and the credibility of their verdicts – are one of the greatest assets that the United States has in fighting terrorism. To waste this asset by relying on substandard criminal proceedings would not just be wrong, it would be stupid.

Joanne Mariner is a human rights lawyer living in New York and Paris.

The Case Against Military Tribunals

It's a violation of the Constitution to use the panels without a declaration of war -- and just calling it a 'war' on terror doesn't count.

By Andrew P. Napolitano
Source: The LA Times
November 29, 2009
Courtesy Of Freedom Syndicate

In the uproar caused by Atty. Gen. Eric H. Holder Jr.'s announcement that the alleged planners of the 9/11 attacks are to be tried in U.S. District Court in New York City, and the suspects in the attack on the U.S. destroyer Cole will go on trial before military tribunals at Guantanamo Bay, Cuba, the public discourse has lost sight of the fundamental principles that guide the government when it makes such decisions. Unfortunately, the government has lost sight of the principles as well.

When President George W. Bush spoke to Congress shortly after 9/11, he did not ask for a declaration of war. Instead, Republican leaders offered and Congress enacted an Authorization for the Use of Military Force. The authorization was open-ended as to its targets and its conclusion, and basically told the president and his successors that they could pursue whomever they wanted, wherever their pursuits took them, so long as they believed that the people they pursued had engaged in acts of terrorism against the United States. Thus was born the "war" on terror.

Tellingly, and perhaps because we did not know at the time precisely who had planned the 9/11 attacks, Congress did not declare war. But the use of the word "war" persisted nonetheless. Even after he learned what countries had sponsored terrorism against us and our allies with governmental assistance, Bush did not seek a declaration of war against them. Since 9/11, American agents have captured and seized nearly 800 people from all over the globe in connection with the attacks, and now five have been charged with planning them.

Virtually all of those seized who survived interrogation have been held at Guantanamo Bay. Bush initially ordered that no law or treaty applied to these detainees and that no judge could hear their cases, and thus he could detain whoever he decided was too risky to release and whoever he was satisfied had participated in terrorist attacks against the U.S. He made these extra-constitutional claims based, he said, on the inherent powers of the commander in chief in wartime. But in the Supreme Court, he lost all five substantive challenges to his authority brought by detainees. As a result, some detainees had to be freed, and he and Congress eventually settled for trying some before military tribunals under the Uniform Code of Military Justice and subsequent legislation.

The casual use of the word "war" has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war -- and thus trigger the panoply of the government's military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans -- after they had been tried and after six of the eight defendants had been executed -- the court declared that a formal declaration of war is the legal prerequisite to the government's use of the tools of war. The federal government adhered to this principle of law from World War II until Bush's understanding of the Constitution animated government policy.



The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

That the target of the Cole attackers was military property manned by the Navy offers no constitutional reason for a military trial. In the 1960s, when Army draft offices and college ROTC facilities were attacked and bombed, those charged were quite properly tried in federal courts. And when Timothy McVeigh blew up a federal courthouse in Oklahoma City; and Omar Abdel Rahman attempted in 1993 to blow up the World Trade Center, which housed many federal offices; and when Zacarias Moussaoui was accused in the 9/11 attacks,all were tried in federal courts. The "American Taliban," John Walker Lindh, and the notorious would-be shoe bomber, Richard Reid, were tried in federal courts. Even the "Ft. Dix Six," five of whom were convicted in a plot to invade a U.S. Army post in New Jersey, were tried in federal court. And the sun still rose on the mornings after their convictions.

The framers of the Constitution feared letting the president alone decide with whom we are at war, and thus permitting him to trigger for his own purposes the military tools reserved for wartime. They also feared allowing the government to take life, liberty or property from any person without the intercession of a civilian jury to check the government's appetite and to compel transparency and fairness by forcing the government to prove its case to 12 ordinary citizens. Thus, the 5th Amendment to the Constitution, which requires due process, includes the essential component of a jury trial. And the 6th Amendment requires that when the government pursues any person in court, it must do so in the venue where the person is alleged to have caused harm.

Numerous Supreme Court cases have ruled that any person in conflict with the government can invoke due process -- be that person a citizen or an immigrant, someone born here, legally here, illegally here or whose suspect behavior did not even occur here.

Think about it: If the president could declare war on any person or entity or group simply by calling his pursuit of them a "war," there would be no limit to the government's ability to use the tools of war to achieve its ends. We have a "war" on drugs; can drug dealers be tried before military tribunals? We have a "war" on the Mafia; can mobsters be sent to Gitmo and tried there? The Obama administration has arguably declared "war" on Fox News. Are Glenn Beck, Bill O'Reilly and I and my other colleagues in danger of losing our constitutional rights to a government hostile to our opinions?

I trust not. And my trust is based on the oath that everyone who works in the government takes to uphold the Constitution. But I am not naive. Only unflinching public fidelity to the Constitution will preserve the freedoms of us all.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel. His next book is "Lies the Government Told You: Myth, Power, and Deception in American History."

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Copyright 2009 Los Angeles Times

The Extreme Secrecy Of The Federal Courts

By Glenn Greenwald
Monday, Nov 23, 2009 03:24 PST
Courtesy Of The Salon Media Group

(updated below)

Once conservatives became embarrassed by their cowardly warnings that we would all be killed if we held a 9/11 trial in New York, they switched to a new argument: trials in a real court would lead to the disclosure of classified information that would help the Terrorists. In advancing this claim, they relied on the always-unhinged rantings of National Review's Andy McCarthy -- who has also suggested that Bill Ayers was the real author of Barack Obama's "Dreams from my Father"; attacked his own editors for pointing out the falsehoods of Sarah Palin's "death panel" claims, which McCarthy insisted were true; defended the Birther movement and dissented from NR's editorial rejection of it; and was excoriated by Rich Lowry for claiming that Obama "rather likes tyrants and dislikes America." This person -- someone who is often too fringe, hysterical and delusional even for National Review -- is the "legal expert" on which the Right is relying to claim that real trials will jeopardize classified information.

To see how false this claim is, all anyone ever had to do was look at the Classified Information Procedures Act, a short and crystal clear 1980 law that not only permits, but requires, federal courts to undertake extreme measures to ensure the concealment of classified information, even including concealment from the defendant himself. Section 3 provides: "Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States." Section 9 required the Chief Justice of the Supreme Court to consult with the Attorney General and Defense Secretary to develop rules to carry out the Act's requirements, and the resulting guidelines provide for draconian measures so extreme that it's hard to believe they can exist in a judicial system that it supposed to be open and transparent.

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To see how severe these secrecy measures are, consider what is currently being done in the criminal case of Ahmed Khalfan Ghailani, the first accused Terrorists sent by the Obama administration to New York to stand trial after being interrogated and tortured for years in CIA black sites and at Guantanamo with no charges:

To ensure that secrets do not leak, Judge Kaplan has imposed a protective order on all classified information, which may be reviewed by the defense lawyers only in a special "secure area," a room whose location has not been disclosed.

The order covers all materials that might "reveal the foreign countries in which" Mr. Ghailani was held from 2004 to 2006 -- the period when he was in the secret jails -- and the names and even physical descriptions of any officer responsible for his detention or interrogation, the order says.

It also covers information about "enhanced interrogation techniques that were applied" to Mr. Ghailani, "including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques."

The defense lawyers, who had to obtain security clearance, cannot disclose the information to Mr. Ghailani without permission of the court or the government. Any motions they write based on the material must be prepared in the special room, and nothing may be filed publicly until it is reviewed by the government.

So, last Monday, when Mr. Ghailani’s lawyers filed a motion seeking dismissal of the charges because of "the unnecessary delay in bringing the defendant to trial," they included only a few mostly blank cover sheets.

The rest of the motion, which presumably offers rich details about Mr. Ghailani’s time in detention, remains secret, and a censored version will be made public only after it is cleared by the government.

Does that sound like a judicial process incapable of concealing secrets, or does it sound more like a Star Chamber where the justice system operates in the dark, even to shield government torture and illegal prisons from disclosure? Many federal judges -- particularly in criminal cases -- are notorious for being highly sympathetic to the government. That's even more true in a case involving one of the most hated criminal defendants ever to be tried in an American court, sitting a very short distance from the site where he is alleged to have killed 3,000 people in a terrorist attack. And note that the law permits the judge no discretion: if the Government claims something is classified, then "the court shall issue an order to protect against the disclosure of any classified information." With some exceptions, ever since the "War on Terror" began, nobody has safeguarded government secrets as dutifully and subserviently as federal judges -- even when those secrets involve allegations of war crimes and other serious felonies. That's what DOJ officials mean when they keep praising Southern District of New York judges for their supreme competence and expertise in handling terrorism cases. Federal courts in general love to keep what is supposed to be their open proceedings a secret, but that instinct is magnified exponentially in national security and terrorism cases.

Even during the Bush years, numerous defendants accused of terrorist acts were tried and convicted in federal courts -- John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla. Those spewing the latest right-wing scare tactic (Osama bin Laden will learn everything if we have trials!) cannot point to a single piece of classified information that was disclosed as a result of any of these trials. If that were a legitimate fear, wouldn't they be able to? Like most American institutions, our federal court system is empowered to shield from public disclosure anything the government claims is secret. Just look at the extreme measures invoked in the Ghailani case to see how true that is.

UPDATE: As indicated, nobody -- including the right-wing fear-mongers -- can claim that any of the numerous terrorist trials conducted over the last ten years resulted in the release of any classified or other harmful information. Standing alone, that fact illustrates how baseless is this fear; if "disclosure of sensitive information" were a real risk, wouldn't they be able to point to instances where that happened during any of the numerous Bush-era terrorist trials?

The sole example cited by the Right is the 1995 trial of accused World Trade Center bomber Sheikh Omar Abdel Rahman. Both Andrew McCarthy, who was one of the prosecutors in that case, and former Bush Attorney General Michael Mukasey, who was the judge presiding over the trial, have made the claim that the Rahman trial resulted in the disclosure of secret information that Osama bin Laden somehow used to his benefit.

Even leaving to the side the fact that these two individuals are among the most extreme right-wing ideologues who always insist that we must abandon our normal rules of justice lest we get slaughtered by the Terrorists, one of two things is true regarding their claim about that trial: either (1) McCarthy and/or Mukasey failed to use the protections of CIPA to prevent the disclosure of classified information, which means the disclosures were the result of their ineptitude or disregard for the law, not a natural by-product of terrorist trials; or (2) the released information was not "classified," which -- given how the U.S. Government classifies virtually everything it can find -- renders highly dubious their fear-mongering claim that Osama benefited from non-classified information released at the 1995 trial. Adam Serwer elaborates on this latter point here.

The Tyrannical History of Military Tribunals for Civilians

By Greg Robinson
October 5, 2009
Courtesy Of The History News Network

Mr. Robinson, a native of New York City, is associate professor of history at l'Université du Québec à Montréal and author of By Order of the President: FDR and the Internment of Japanese Americans. His latest book is: A Tragedy of Democracy: Japanese Confinement in North America (Columbia University Press, July 2009).

Barack Obama was swept into office on a promise to close down the prison that the Bush administration created at Guantanamo in order to evade the constitutional protections offered prisoners in the United States. The new president nevertheless has approved the continuing use of military tribunals to try at least certain detainees. Faced with the difficult problem of defending the nation against terrorist attack, Obama and his advisers presumably hope that they can modify the structure of these courts so as to protect the innocent without making it impossible to hold the guilty. However, the clearest historical precedent is not reassuring in this regard. Rather, the military tribunals that operated in Hawaii during World War II created a shameful record of arbitrary justice, one which the U.S. Supreme Court subsequently rejected.

Army courts were part of the military government that took power in the then Territory of Hawaii following the Japanese attack on Pearl Harbor in December 1941. Commanding General Walter Short (who browbeat the civilian governor into approving unlimited martial law) declared himself military governor, dissolved the elected legislature and suspended the U.S. Constitution. The military regime proceeded over the following weeks to issue decrees regulating all aspects of civilian life. Meanwhile, the army closed down all civilian courts. When the courts reopened one week after Pearl Harbor, they were restricted to considering civil cases, a network of military commissions and provost courts was established to try all criminal cases.

These military tribunals, presided over by armed officers without legal training, were classic examples of drumhead justice, unfettered by rules of evidence, presumption of innocence, or other constitutional safeguards. Juries were forbidden and lawyers discouraged or even barred. The courts were effectively rigged against defendants. Of the 22,480 trials conducted in provost court in Honolulu in 1942-1943, 99 percent ended in convictions—one officer who heard 819 cases issued convictions in all 819! Judges frequently issued severe sentences, including imprisonment and hard labor, for trivial offenses, and no machinery existed for appeals.

In March 1943, nine months after the American victory at Midway ended any real threat of a Japanese invasion of Hawaii, the Army restored certain governmental functions to civilian control. Yet habeas corpus remained suspended and military tribunals continued to judge criminal cases. When in July 1943 federal judge Delbert Metzger ordered General Robert Richardson, the new military governor, to produce two prisoners who had filed habeas corpus petitions, Richardson refused and issued orders threatening Judge Metzger with imprisonment at hard labor unless he abandoned all such proceedings. Ultimately the parties agreed to moot the case.

In February 1944, though, Lloyd Duncan, a civilian laborer, was arrested for assault on two Marine sentries. Summarily found guilty and sentenced to six months imprisonment by a military tribunal, Duncan challenged his conviction. Defying army authorities, Judge Metzger granted him a writ of habeas corpus and scheduled the case for trial. During the ensuing hearing, Richardson and Admiral Chester Nimitz insisted that military tribunals were essential because of the continuing danger of invasion from Japan. However, Duncan’s lawyers introduced evidence that Japan’s fleet had been destroyed, and under cross-examination Richardson and Nimitz admitted that any invasion was very improbable. Richardson and Justice Department lawyers arguing the case then changed strategy. Turning to racism to buttress their case for military tribunals, they alleged that Hawaii’s racial diversity, notably the presence of 150,000 Japanese Americans whose loyalty could never be trusted, made martial law imperative. In April 1944, Judge Metzger ruled in favor of Duncan and ordered him released. Since the ruling raised doubts about the validity of all military court sentences, the army appealed in federal court. In October 1944 President Franklin Roosevelt officially rescinded martial law in Hawaii, thereby dissolving all military tribunals, but the appeals continued.

In December 1945 the case, now called Duncan v. Kahanamoku, was argued before the U.S. Supreme Court. Two months later, the Court definitively overturned the military tribunals. Justice Hugo Black, writing for the majority, expressed outrage over the army’s treating Hawaii like conquered territory: “Our system of government clearly is the antithesis of total military rule and the founders of this country…. were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws.”

The Duncan ruling, like the larger history of military rule in Hawaii, has been largely obscured in current discussions of constitutional law. President Obama would do well, however, to consider the injustice meted out by past military tribunals in his native state.

Related Links

Nathan Williams: What Happened to the 8 Germans Tried by a Military Court in World War II?