In Which I Try To School Dr. Skeptic

Dr. Michael Shermer has done some great work in the realm of debunking nonsensical claims about paranormal activity, and describing the difference between science and pseudo-science. His books Why People Believe Weird Things and Borderlands are fundamental reading if you want to understand the difference between science and belief. Unfortunately, he seems to not be as skeptical as he should be about what he reads in the New York Times. Here's an example of what I mean in a long Twitter monologue regarding this NYT article:

Twitter Message by @michaelshermer w/ replies by @Cujo359, June 12, 2013

Go to the byline link to see the entire conversation.

We all have our blind spots, but the points I make seem so obvious that I can hardly believe I have to make them. I guess it's true - you should never meet your heroes, even online.

Claims made on the basis of secret information are usually classified as claims of special knowledge, and are dismissed as nonsense. When Madam Cleo claims she can talk to the dead, reasonable people recognize this as absurd. When the government does it, though, claiming they have "intelligence" that proves their point but they can't tell us what it is, generally sensible people lap this up as their god's truth. I don't get that, but maybe that's because spending a couple of decades in the defense industry gives you a jaded perspective.

Afterword: Here are the links embedded in those Twitter messages:

• N.S.A. Chief Says Phone Logs Halted Terror Threats (Dr. Shermer's link)
• Public Documents Contradict Claim Email Spying Foiled Terror Plot (my first link re: Mike Rogers)
• Stuxnet virus strengthened Iranian nuclear programme: Report (my second link re: Stuxnet)

UPDATE: Added that bit of exposition about special knowledge and Madam Cleo.

UPDATE 2: This is precious. Not completely related to this particular subject, but it does challenge people's credulity when it comes to their trust in certain parts of our government. Click. Read. Enjoy.

Quote Of The Day

Glenn Greenwald's article today describes a particularly egregious example of one of our principle newspapers, the New York Times, collaborating with the Central Intelligence Agency on a story it published last year. Rather than try to summarize, I think I'll just refer you to that article. Toward the end, though, Greenwald described the environment of government secrecy we live in, and its consequences:

The more important objection is that the fact that a certain behavior is common does not negate its being corrupt. Indeed, as is true for government abuses generally, those in power rely on the willingness of citizens to be trained to view corrupt acts as so common that they become inured, numb, to its wrongfulness. Once a corrupt practice is sufficiently perceived as commonplace, then it is transformed in people's minds from something objectionable into something acceptable. Indeed, many people believe it demonstrates their worldly sophistication to express indifference toward bad behavior by powerful actors on the ground that it is so prevalent. This cynicism – oh, don't be naive: this is done all the time – is precisely what enables such destructive behavior to thrive unchallenged.

Correspondence and collusion between the New York Times and the CIA

I wish I had a dollar for every time some citizen has told me that corruption and foolishness is what they expect out of government, and that there's no reason to try to prevent it. I could buy a real government with that money. Declarations like those of these acquaintances should be music to the ears of any corrupt politician or government worker, because it's exactly the attitude they need to thrive.

I think it goes without saying that there will be corrupt and foolish people in government. Identifying them and rooting them out is the cure, not apathy.

War Crimes Vs. State Secrets

Caption: Hermann Goering and other leading Nazis on trial at Nuremberg, in 1945. We cared more about war crimes when Germans were committing them.

Image credit: U.S. Army/Wikimedia

Glenn Greenwald, from his new digs at The Guardian, wrote today on the subject of justice for war crimes in America. After discussing the hideous verdict in the Rachel Corrie lawsuit in Israel, he moved onto how the American justice system has been dealing with war crimes, and the people who reported those war crimes:

The US military has continuously imposed pitifully light "punishments" on its soldiers even for the most heinous atrocities. The wanton slaughter of two dozen civilians in Haditha, Iraq and the severe and even lethal torture of Afghan detainees generated, at worst, shockingly short jail time for the killers and, usually, little more than letters of reprimand.

Contrast this tepid, reluctant wrist-slapping for the brutal crimes of occupying soldiers with what a UN investigation found was the US government's "cruel and inhuman treatment" of Bradley Manning before he was convicted of anything. Manning has been imprisoned for more than two years now without having been found guilty of any crimes – already longer than any of the perpetrators of these fatal abuses in Iraq and Afghanistan. He faces life in prison at the age of 23 for the alleged "crime" of disclosing to the world overwhelming evidence of corruption, deceit and illegality on the part of the world's most powerful factions: disclosures that helped thwart the Obama administration's efforts to keep US troops in Iraq, and which, as even WikiLeaks' harshest critics acknowledge, played some substantial role in helping to spark the Arab spring.

How the US and Israeli justice systems whitewash state crimes

[links from original article]

In most of the articles you're likely to read that are critical of Bradley Manning, there is almost never any acknowledgement of two very basic truths about what he is alleged to have done:

1. Despite nearly constant assertions that it is so, the government has never shown even one instance of where the Wikileaks disclosures have done harm to our forces in the field, and
2. The very act of covering up crimes by using classification authority is in itself a crime.

Nor are you likely to see any acknowledgement that the acts Greenwald led his article with, such as the Marines urinating on dead Taliban fighters or the burnings of the Koran by U.S. service personnel, have almost certainly endangered our forces by enraging the local populations of the countries we are (or were) trying to occupy. It's as though the idea that doing these things would fuel hatred of us, and that those stories would get around in those countries regardless of whether anything like Wikileaks existed, never even enters their heads.

As I've written before, it's a good thing for our leadership that our press is so incurious about the crimes those secret documents are covering up. It's one of the reasons why, in America these days, it's much better to be the person committing a war crime than the one who reports it. Nothing about that has changed since George W. Bush left office.

I don't blame governments so much for this. They always want to protect themselves, and their secrets. What's so ominous is how few of the rest of us seem to care. Nothing will change until that does.

How's The Online Revolution Going?

Talking Points Memo writes:

Note: Amazon claims the outtage was due to internal problems, not hackers. We'll have details as available.

Everyone said they couldn't do it, but now Operation Payback has taken down Amazon.

For about half an hour, Amazon.co.uk was down, according to SkyNews. German, French and Italian servers were also experiencing problems.

The pro-Wikileaks hackers had boasted they would take down Amazon last week, but nothing happened at the planned hour of attack. We were told in an email from Casaba Security that Amazon survived the attack because of its advanced infrastructure: "

Hactivists Take Down Amazon

I suspect that Amazon has had enough experience with script kiddies and ordinary criminals trying to take their site down for fun or profit that they're pretty well defended. Just to test, I did a query for Julian Assange, the Wikileaks founder, and here's the result I saw:

Image credit: Screenshot by Cujo359

While I haven't bought anything, I've had no trouble navigating the site today.

Not only is attacking the online businesses like Amazon that have knuckled under to government pressure going to make them look like the victims here, but it will almost certainly prove ineffective. A software upgrade is far more likely to take down Amazon than any denial of service attack.

If you want to make a statement, I suggest doing a query like I did, then following the more sympathetic-appearing links. Then, go buy what you found somewhere else, and let Amazon know you did.

Lost business will be a far more effective means of persuasion.

Hysterical Nonsense About Wikileaks

Josh Marshall asked this presumably rhetorical question over at Talking Points Memo:

Let's say that the Wikileaks cables hadn't been State Department cables but rather the final tracks of Lady Gaga's next album or perhaps each episode of next season's Mad Men? How long do you think they would have stayed online?

Food For Thought

Do you ever get the feeling that Mr. Marshall's lack of curiosity about things he isn't supposed to know is one of the reasons he was so enamored of the Iraq War, when anyone with the least bit of sense would have realized that the Bush Administration's case for Iraqi WMDs was a sham?

Tell you what, let's turn this bit of crust into a real meal:

Suppose you're the president of the publishing company that has the rights to Lady Gaga's songs and Mad Men. Let's further suppose that you have been embezzling funds from that company, and that you've been keeping that and other losses a secret from your stock holders and the board of directors of your company. Let's further suppose that the true situation is hidden somehow in the digital files of Lady Gaga's songs and the director's commentaries on the Mad Men DVDs. You meant to get around to scrubbing them, but some whistleblower stole them and published them on the Internet first.

Now, just for the sake of argument, do you think that when these things are released, your primary concern is:

1. The loss of profit due to intellectual property theft, or
2. Being arrested?

For extra points, here's another question, do you think that there would be lots of conveniently incurious people in the press who'd focus on the theft of intellectual property from your seemingly fabulously profitable corporation, and ignore the felonies that "intellectual property" revealed?

Sadly, in today's America, the answers would be (1) and "yes".

Afterword: Let's just remind ourselves of this bit of the executive order covering handling of classified information:

Sec. 1.7. Classification Prohibitions and Limitations.
(a)   In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
 
(1)   conceal violations of law, inefficiency, or administrative error;
(2)   prevent embarrassment to a person, organization, or agency;
(3)   restrain competition; or
(4)   prevent or delay the release of information that does not require protection in the interest of the national security.
(b)   Basic scientific research information not clearly related to the national security shall not be classified.

Executive Order 13526

Note particularly that information may not be classified to cover up a crime. That is one of the problems with classified information - releasing it without it being declassified is a crime, but so is classifying it to cover up a crime or to prevent personal embarrassment. Without whistleblowers willing to release such information to the public, there is no way, independent of the federal government, of determining whether it was classified illegally or not.

I have yet to see any critics of the Wikileaks site note this conundrum. If you happen to know of one, please leave it in the comments. I'd love to see what they have to say about it.

Could We Move This Industry To China?

With the announcement of Judge Sonia Sotomayor yesterday as President Obama's nominee for the Supreme Court, the usual nonsense has started in earnest regarding her qualifications. As SCOTUS Blog points out:

The attacks are inevitable and tremendously regrettable, just as they were for Chief Justice Roberts and Justice Alito. A cottage industry – literally an industry, given the sums of money raised and spent – now exists in which the far left and right either brutalize or lionize the President’s nominees. Because the absence of controversy means bankruptcy, it has to be invented by both sides, whatever the cost to the nominee personally and to the integrity of the judiciary nationally.

The Dynamic of the Nomination of Sonia Sotomayor

It's hard to imagine a cottage industry that's been less productive. How many Supreme Court nominees have been blocked by them? I can only think of two offhand - Harriet Meiers and Robert Bork. Since Bork's nomination was withdrawn back in the '80s, there have been nearly an entire Supreme Court's worth of people nominated and confirmed. The best you can say about this industry is that it makes Presidents vet their nominees more thoroughly.

That doesn't stop them from trying to prove their worth, though. The right-wing portion of this industry are already pumping out nonsense about Sotomayor. Here's an example, helpfully passed along by The Washington Times:

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.

Sotomayor Reversed 60% By High Court

As someone noted in the part of this article that most people don't bother to read, this is an absurd argument. Sotomayor has been part of 380 decisions in the court of appeals. That translates to a reversal rate of less than one percent, if you want to get pseudo-technical. What's more, the rate at which her decisions would be reversed at a fairly high rate are obvious, once you think about them:

* The Supreme Court (SCOTUS) chooses to hear cases or leave them unchallenged. If they hear them, it's much more likely that some of the justices, at least, have a problem with the decision. Note that the sixty percent figure the article mentions are for those SCOTUS actually chose to hear.

* SCOTUS is now stacked with conservatives. A moderate or liberal judge, and surely Sotomayor belongs to one of those two categories, would be more likely reversed than a conservative one.

All this is pretty obvious, but you can bet that 60 percent figure will be bandied about quite a bit.

As you might imagine, Glenn Greenwald has made a number of observations about Sotomayor in the last two days. After quoting conservative Justice Sam Alito's testimony before the Senate at length, he goes on to observe:

Anyone who is objecting now to Sotomayor's alleged "empathy" problem but who supported Sam Alito and never objected to this sort of thing ought to have their motives questioned (and the same is true for someone who claims that a person who overcame great odds to graduate at the top of their class at Princeton, graduate Yale Law School, and then spent time as a prosecutor, corporate lawyer, district court judge and appellate court judge must have been chosen due to "identity politics"). And the idea that her decision in Ricci demonstrates some sort of radicalism -- when she was simply affirming the decision of a federal district judge, was part of a unanimous circuit panel in doing so, was supported by a majority of her fellow Circuit judges who refused to re-hear the case, and will, by all accounts, have at least several current Supreme Court Justices side with her -- is frivolous on its face.

Justice Sam Alito On Empathy And Judging

Let's ignore for the moment that Alito has displayed very little of that empathy on the bench so far. He said he thought it was a good thing to have. I'd say if anything, he and some others on the Supreme Court could use more empathy, not less. Still, there's the obvious hypocrisy just staring us in the face here.

One of the ironies of this situation is that I'm still not sure whether I like Sotomayor as a nominee. As Ian Welsh said yesterday, there are reasons for low expectations:

So, Obama has made his decision, and it’s Sotomayor. While my Hispanic acquaintances are all thrilled to bits, the fact of the matter is that she’s not much of a liberal. Like Obama, she’s a centrist. She will stand up for programs like affirmative action and will vote to keep Roe, which is good, but she won’t be anything special.

Sotomayor - Nothing Special, But Not Awful

So far, that's my expectation. Any reasoned look at Obama's decisions on the economy and health care would suggest that he's not going to buck corporate interests, particularly those of the country's financial institutions. I'd expect his first nominee to the Supreme Court to reflect at least some of those values. Still, I'd like to think that we're at least discussing issues like that. As both Greenwald and SCOTUS Blog pointed out, we don't know much about Sotomayor's views on the power of the executive. We don't know much about her views on government secrecy, either. Those are things that are important, yet we're discussing nonsense instead.

I think that this is one industry that I wouldn't mind seeing moved offshore.

Torture Briefings: CIA's Case Won't Hold Water

Here are a couple of items of note regarding the CIA's claims that Nancy Pelosi and other Democrats were briefed about waterboarding and other forms of torture it used on terrorism suspects in 2002. Both are from FireDogLake, so I recommend following the links and having a look.

The first is from Gregg Levine:

In a just-completed Capitol Hill press conference, Speaker of the House Nancy Pelosi said without equivocation that the CIA is lying when it implies that she was briefed in on the waterboarding of Abu Zubaydah. Pelosi stated that the CIA told her, in September 2002, that waterboarding was not among the “enhanced interrogation techniques” used on high value detainees. Reporting by Marcy—among others—now shows that the interrogation of Abu Zubaydah started at least a month earlier.

BREAKING: Pelosi Says the CIA is Lying

As I wrote the other day, there are many reasons to be suspicious of the CIA's story, not the least of which is that even if it's a completely honest effort, it's based on whatever notes and recollections CIA employees had that occurred several years ago. However, thanks to this next article, there's reason to suspect that this was less than an honest effort:

Bob Graham just appeared on WNYC's Brian Lehrer Show. In addition to repeating earlier reports that he was never briefed on waterboarding, Graham revealed that the first time he asked the CIA when he was briefed on torture, it claimed it had briefed him on two dates when no briefing took place.

Senator Bob Graham: The CIA Made Up Two Briefing Sessions

As Marcy Wheeler relates, Graham went on to say that the way in which the CIA briefed Congressmen seemed designed to ensure that they couldn't discuss what they were told with each other. This is a plausible claim. People who are given classified information are not allowed to discuss it with those who weren't present at the time, unless they are cleared to do so by the agency that classified the information. In this case, that agency would be the CIA, of course.

The government's power to classify information, and its power to punish those who publicize it, carries with it a tremendous potential for abuse. This is starting to look like another case of the Bush Administration's misuse of these powers.

As if we didn't have enough already.

UPDATE (May 15): Marcy Wheeler notes that Sen. Graham has found a third briefing the CIA incorrectly said he received on torture. This one is particularly critical, as she notes:

I've got to correct something I said yesterday about Bob Graham. I reported that Graham said that CIA had given him two erroneous dates for briefings. That was wrong (RawStory reported the number correctly, though). They gave erroneous dates for three briefings.

The difference is critical, because it means the CIA tried to claim it had briefed Graham on torture in April 2002, which would have put it in compliance with the National Security Act. But Graham, by consulting his trusty notebooks, proved that claim to be false.

Graham also notes that the CIA is obligated to tell the entire intelligence committees, not just the leadership.

Graham: They Claimed to Have Briefed Before Torture, Did Not

Once again, the Bush Administration violated the law, then used their powers to classify information to cover up that fact.

As usual, the rest of the article is well worth a read. It includes an interview of Graham on MSNBC.

Intimidation, Prudishness, Or Hypocrisy?

This e-mail arrived in one of my inboxes today from Change.org:

The Washington Post currently accepts advertisements for massage parlors, which the Post's own reporters have shown are often thinly disguised brothels with women trafficked into the country and forced into prostitution. Because of this frequent connection to human trafficking, The New York Times, Boston Globe, and Los Angeles Times refuse advertisements for massage parlors. But The Washington Post continues to profit from these ads, making the paper complicit in the sexual violence of women across our nation's capital.

Is The Washington Post Profiting from Brothels?

Sure enough, this came from Change.org. I just checked their blog site and that's the second paragraph.

In addition to being poorly written ("sexual violence of women" - does that mean that women in massage parlors are committing sexual violence?), and a great example of guilt by association, this strikes me as the sort of thing politicians do when they want to deflect valid criticism from themeselves.

So here's what I have to say to Change.org:

When your guy starts demanding that his government obey the law, starts releasing Department of Justice memos advocating torture and illegal wiretapping that were written during the last Administration, and starts investigations into criminal behavior of that Administration's principal offenders, then I'll start taking you seriously when you lecture the press about its respect for the law.

It's always easier to do something when someone else has to make the sacrifices. When you're the one who might have to give up something, suddenly there are all sorts of reasons to not do it. I suggest that if the Obama Administration, or its proxies, wants to lecture the rest of us about respect for the law, it should first start leading by example. Give up the powers you're not supposed to have, and risk making enemies by investigating the wrongdoing that has gone before.

What it has done instead, it would appear, is to denigrate a group that doesn't have a powerful lobby, associate that group with a newspaper that it no doubt wants to get favorable coverage from, and appealed to the prudishness that sometimes passes for concern for women (or maybe men).


UPDATE: Taylor Marsh has a good rundown of what's going on with the Obama Administration regarding their acceptance of the Bush Administration's power grabs.

Bringing Them Together

Glenn Greenwald summarizes the thing I feared would happen:

After many years of anger and complaint and outrage directed at the Bush administration for its civil liberties assaults and executive power abuses, the last thing most people want to do is conclude that the Obama administration is continuing the core of that extremism. That was why the flurry of executive orders in the first week produced such praise: those who are devoted to civil liberties were, from the start, eager to believe that things would be different, and most want to do everything but conclude that the only improvements that will be made by Obama will be cosmetic ones.

But it's becoming increasingly difficult for honest commentators to do anything else but conclude that. After all, these are the exact policies which, when embraced by Bush, produced such intense protest over the last eight years. Nobody is complaining because the Obama administration is acting too slowly in renouncing these policies. The opposite is true: they are rushing to actively embrace them.

Obama's "enemy combatant" policy: following a familiar pattern

I literally do not know what to do. I explained since early in this Presidential campaign that I thought Obama would be about the last Presidential candidate to roll back the excesses of the Bush years among the Democrats who ran. Even Hillary Clinton gave me more reason to trust her on this issue. Yet here we are.

So, what I'm going to do is this. Every time I write an article about some extraordinary power the Obama Administration has decided is warranted for itself, I'm going to combine images of Obama with something that symbolizes that excess. Today, it's this. This picture symbolizes as well as any the unaccountable nature of the Bush Administration's rendition and torture policies. Both have been embraced, in slightly reworded form, by the Obama Administration.

If he's going to ignore the Constitution that is supposedly a scholarly interest of his, then he will wear the shame that comes with that action. At least, he will wear it around here.

UPDATE: I neglected to mention emptywheel's article at FireDogLake from Friday. In it, she also makes a compelling case that Obama has been trying to appear as though he is opposing the Bush Administration's excesses, while he is actually embracing many of them.

This is the reason I am using these visuals. I want him to be associated with these excesses on the most basic level possible. The visual confluence of these images is the strongest way I can think of to get the message across.

I hope fellow bloggers aren't shy about stealingembracing this idea.

UDPATE 2: Over at FireDogLake, I made this comment on an Oxdown diary that's relevant to all this. In fact, I'd say that anyone who doesn't realize this at this point is going to be no use trying to change the Obama Administration's course on human rights and government power:

Unfortunately, the pattern that’s developing suggests that Obama really doesn’t want to deal with [the Bush Administration's] crimes, because he wants to claim at least some of the extraordinary powers that W claimed for himself. President Obama’s choice to surround himself with people like John Brennan and Greg Craig speaks volumes. These are people who have apologized for, and in Craig’s case supported through his actions, the overreaches of the Bush Administration. It’s extremely difficult to believe that Obama was not aware of their background before he hired them. He is certainly aware of their background now.

We don’t merely need to persuade Obama to do what he knows is right. We need to persuade him that it is right. Failing that, we need to figure out how to persuade him to do it anyway. To say the least, this is a disheartening realization, but it’s true nonetheless.

Obama Outrage: Holder to Pursue Every Legal Avenue to Prosecute Cheney and Bush for Crimes of Torture: Comment #9

Obama isn't doing this because he's backed into a corner. He's certainly not doing it as part of some master plan to discredit such power grabs. He's clearly doing this because he needs to or wants to, and maybe both.

A Refreshing Change

As a member of so many political e-mail lists, I occasionally receive an interesting one. Such a message arrived in my inbox yesterday. It's purportedly a memo sent by John Podesta, the Obama transition team's co-chair, about transparency during the transition process. It reads like a policy memo, so presumably that's what it is. I don't really know any more than that, but the content is interesting and, if it turns out to actually be the Obama Administration's policy, refreshing:

MEMORANDUM
From: John Podesta
To: All Obama-Biden Transition Project Staff
Date: December 4, 2008
Re: "Seat at the Table" Transparency Policy -- EFFECTIVE IMMEDIATELY

Overview:
As an extension of the unprecedented ethics guidelines already in place for the Obama-Biden Transition Project, we take another significant step towards transparency of our efforts for the American people. Every day, we meet with organizations who present ideas for the Transition and the Administration, both orally and in writing. We want to ensure that we give the American people a "seat at the table" and that we receive the benefit of their feedback.

Accordingly, any documents from official meetings with outside organizations will be posted on our website for people to review and comment on. In addition to presenting ideas as individuals at www.change.gov, the American people deserve a "seat at the table" as we receive input from organizations and make decisions. In the interest of protecting the personal privacy of individuals, this policy does not apply to personnel matters and hiring recommendations.

Scope:
The following information will be posted on our website:
1. Documents: All policy documents(1) and written policy recommendations from official meetings(2) with outside organizations.
2. Meetings: The date and organizations represented at official meetings in the Transition headquarters or agency offices, with any documents presented as noted above.

This scope is a floor, not a ceiling, and all staff are strongly encouraged to include additional materials. Such materials could include documents (recommendations, press releases, etc.) presented in smaller meetings or materials or made public by the outside organization without a connection to an official meeting.

If you have any questions as to whether documents should be included, please email [REDACTED].

Process:
Prior to an official meeting with an outside organization or organizations, Obama-Biden Transition Project staff members will inform attendees that any documents provided will be posted on our "Seat at the Table" website found at www.change.gov. Suggested language for email invitations is: "By presenting or submitting any document at a meeting with the Obama-Biden Transition Project, you agree to allow the document to be made public and posted on www.change.gov." At the completion of each meeting or upon receipt of such documents, Transition staff will provide the documents to [REDACTED] with the date of the meeting, a list of the organizations in attendance, and the topic of the meeting.

Notes:
1) This policy does not apply to non-public or classified information acquired from the Agency Review Process and internal memorandum.
2) An "official meeting" is defined as a meeting with outside organizations or representatives of those organizations to which three or more outside participants attend.
----
Copyright policy: http://change.gov/copyright

Except for the added emphasis of that one sentence, I have altered nothing in the text. The bracketed items, "[REDACTED]" and the like, are from the original e-mail.

After eight years of what amounts to an "up yours" from the current administration to just about any request for transparency, this is a refreshing change. I hope that it is a sincere pronouncement.

Apparently, We Still Have A Constitution

Image credit: National Archives

One branch of government is, just barely, aware that this document exists and has a purpose:

Foreign terrorism suspects held at the Guantánamo Bay naval base in Cuba have constitutional rights to challenge their detention there in United States courts, the Supreme Court ruled, 5 to 4, on Thursday in a historic decision on the balance between personal liberties and national security.

Justices Rule Terror Suspects Can Appeal in Civilian Courts

Wanna bet I can guess who the four were who were in the minority on this one? Let's see, the new guys, Guido, and Sasquatch, right?

The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the high court.

Justices Rule Terror Suspects Can Appeal in Civilian Courts

What do I win? A chance to call a lawyer if I'm ever wrongly imprisoned by a government that was so incompetent that it couldn't convict me of whatever it thought I was guilty of, despite having the advantage of vast resources of money and people:

The Bush administration's original hopes that the camp could become a zone free from the US courts lies in tatters. It is on land under the indefinite control of the US but not part of American territory.

The court was split between liberals and conservatives with the deciding vote coming from the centrist Justice Anthony Kennedy, who wrote the opinion and declared: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Supreme Court strikes blow for detainees

I should be glad. For once the Constitution means something to someone in a senior government position. Unfortunately, this was such a no-brainer of a case the vote should have been 9-0:

The ruling on Thursday focused in large part on the centuries old writ of habeas corpus (“you have the body,” in Latin), a means by which prisoners can challenge their incarceration. Noting that the Constitution provides for suspension of the writ only in times of rebellion or invasion, Justice Kennedy called it “an indispensable mechanism for monitoring the separation of powers.”

Justices Rule Terror Suspects Can Appeal in Civilian Courts

This is the only individual right enshrined in the original Constitution. As Keith Olbermann has observed, among others, it's the right that guarantees that you have all those other rights. If there's anything that should be clear about the black sites fiasco, it's that the government hasn't respected that right for six years.

And as I've observed before, these times aren't nearly as extraordinary as some. In those times, we as a country weren't so eager to trade our freedoms for the illusion of safety.

My guess is that Congress isn't going to grow a spine and enforce this decision, so it may not have much practical effect in the short term. But if the rule of law ever means something to the other two branches of our government again, it's at least clear where the Supreme Court stands.

UPDATE: Via Christy Hardin Smith, the Center for Constitutional Rights had this to say:

In one of the most important human rights cases of the decade, the Supreme Court of the United States held today, in a 5-4 decision, that the men imprisoned at Guantánamo Bay have the constitutional right to habeas corpus.

One of the oldest and most basic legal protections, habeas corpus affords the incarcerated the right to stand before a judge and confront the charges presented against him or her. The Center for Constitutional Rights has been sending habeas counsel to represent the prisoners at the base since winning the first Guantánamo case, Rasul v. Bush, in 2004, and applauds today’s decision.

“The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said CCR Executive Director Vincent Warren. “By granting the writ of habeas corpus, the Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding. With habeas you never would have had these men – so many of whom have been cleared of any wrongdoing – locked up and abused because no court was watching. In those cases, the government will now have to put up or shut up: it will have to show an impartial judge enough evidence to justify detention. This six-year-long nightmare serves as a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive.”

Landmark Win For Guantanamo Detainees

Since they helped get this case before the Supreme Court, I think they deserve the last word.

UPDATE 2 (Jun 13): They might get the last word, but Watertiger deserves the last picture. It's been a while since I laughed that hard at a political cartoon.

More Unethical Secrecy

Image credit: UNHCR


Over at Pacific Views, Mary wrote an interesting article about how all those refugees came to be, thanks to the Bush Administration's lack of interest in planning:

This week it was revealed that the Army had suppressed a RAND study that explored the faulty post-invasion planning. Truly, it was not hard to see that this administration cared nothing about the post-invasion of Iraq. Because according to their fantasies, the Iraqis would throw flowers on the American troops and joyfully accept the neo-conservative free market make-over envisioned by Paul Bremer as he and the Heritage kids reshaped their country to be a case-study of how effective the free-market ideology is at creating perfect human environments.

Too bad that reality and human beings got in the way of their magic kingdom.

Iraqis Continue to Pay and Pay and Pay for Bush's War of Choice

[link from the original]

It's certainly no surprise to me that they didn't make any plans. Rumsfeld's famous threat to fire the next general who tried to discuss the occupation of Iraq is proof both that the Bushies didn't want to hear about it, and that the Pentagon knew better. Given the Bushies' obsession with controlling the news, which once again seems to have walked right up to the line of legality, this news about the RAND study isn't surprising, either.

Now, as Mary relates, the Iraqis are paying the price for this folly. At least, they are for now. The world is a lot flatter than it used to be.

More Surveillance. No, Don't Stop To Think ...

Moe and Larry want to tap your phone without a warrant.

I've been so busy with other matters that I haven't paid much attention to the news for a day or two. Apparently, in the meantime a matter of vital security interest has cropped up just before Congress' summer break. President Bush needs emergency powers to spy on Americans or the terrorists will swarm over the hills. There's even a selective leak to prove it:

When three soldiers were abducted in Iraq in mid-May, U.S. government lawyers began drafting emergency warrants to try to monitor communications that could lead to the suspected captors.

The Bush administration and its allies, The Associated Press has learned, have argued that the legal work ate up precious hours because of an odd twist to a U.S. surveillance law. One of the soldiers was later found dead in the Euphrates River, and an al-Qaida offshoot has said the others are dead as well.

US: Soldiers Case Shows Law Needs Fixing

Of course, all they really proved in that leak is that they don't understand the law they helped rewrite. They already have the right to monitor communications without a warrant, even if they involved a U.S. citizen, for up to 72 hours without a warrant. Oh, wait, it's because of a super double-secret court ruling we can't read:

Normally, warrants wouldn't be needed to eavesdrop on foreigners in Iraq or elsewhere. However, since a secret federal court ruling was issued earlier this year, the Bush administration believes the government must obtain legal approval to listen in on foreign suspects when their conversations cross into the extensive U.S. communications network.

US: Soldiers Case Shows Law Needs Fixing

According to a secret court decision that we can't read, the Bush Administration feels that they need warrants now. How many times do you get to say that the dog ate your homework in Washington? He's threatening to keep Congress in session until they give him what he needs. Congress appears ready to go along with this. For me, this brings to mind a simple question.

Has everyone in Washington gone crazy?

Well, maybe not everyone:

"In a situation like that, everyone wishes you would have had the information instantaneously," said Rep. John Tierney, D-Mass., also an intelligence committee member. "In that situation, I think you would find that they would have had the information at a very early time, but for the process that was set up."

Tierney thinks the problem is with the bureaucracy, not the law.

US: Soldiers Case Shows Law Needs Fixing

Gee, ya think? Wired has an excellent article on the ramifications of the proposed changes.

Did [AP reporter Laurie] Kellman read the proposed bill? The bill (.pdf) that would change the nation's surveillance laws so that that the government would be free to spy on the contents of an Americans' phone or emails so long as the government "reasonably believes" the person is not in the country.

"Provided, that nothing in this definition shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."

How does Kellman characterize the proposed changes?

The new plan, offered late last week by Director of National Intelligence Mike McConnell, would change the Foreign Intelligence Surveillance Act to allow surveillance without a warrant of terror suspects who are overseas.

Yes, true. But it would also allow surveillance of all Americans who are not terrorism suspects who are overseas. The government has never needed a warrant to listen to non-Americans outside the country, so long as the interception happens outside the United States.

Government Presses to Turn Internet into Giant Spy Machine; AP Reports Citizen's Rights Being Protected

The President and the Department of Justice have all the powers they could possibly need under the Foreign Intelligence Surveillance Act (FISA).

If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

TITLE 50 > CHAPTER 36 > SUBCHAPTER I 7gt; § 1805 (FISA)

What they appear to want is much worse, the right to spy on anybody as long as they can lie afterward that they didn't think those folks were in the country. As the Wired article notes, much of the terrestrial communications in the world pass through the United States.

President Bush's lame attempt to put their intelligence failures down to terrorists using throw-away cellphones are so transparent that a ten year old child could see through them. The President, and this President in particular, has all the powers he needs. If he doesn't, he can certainly wait until after the summer to get them.

If Congress wants to make good use of its time while they're in session, I'd say more investigation of the President's illegal conduct might be just the thing to pass the time.

Would you trust this man with your Constitutional rights?

UPDATE (Aug. 4): You'll be happy to know that Congress didn't stop to think:

The Senate bowed to White House pressure last night and passed a Republican plan for overhauling the federal government's terrorist surveillance laws, approving changes that would temporarily give U.S. spy agencies expanded power to eavesdrop on foreign suspects without a court order.

Senate Votes To Expand Warrantless Surveillance

That headline should read "Senate Votes To End Democracy In America". I sure am glad we worked so hard to create a Democratic majority, aren't you? Talking Points Memo's Steve Benen quotes:

As Gregory Nojeim, senior counsel at the Center for Democracy and Technology, said, "If this bill becomes law, Americans who communicate with a person abroad can count on one thing: The NSA may be listening."

By Steve Benen 08.04.07 -- 9:17AM

The cowards don't even have the roll call vote posted on the Senate site. They did this to us, and then adjourned and ran for home.

UPDATE 2: Not to be outdone, the House also put its brains in a jar and then gave the President what he wanted - 227 to 183. They at least had the integrity to post the roll call before they departed.

Drumbeat For War

Looks like I caught a cold, so I'm at home reading the headlines. If bad news suppresses the immune system I may never recover...

As if we aren't involved in enough wars already, it's becoming quite clear that the Bush Administration intends to attack Iran soon. I can't even guess at their true motivations for doing this, because that's a world of insanity that I don't want to explore. Juan Cole provided some insights about why the latest charges by Washington don't add up. Josh Marshall provides some backup, and some more here.

Let's just say that having a press conference at which no one can be identified and no independent photographic evidence is allowed certainly tweaks my skepticism. Even at the best of times, intelligence reports come perilously close to being claims of special knowledge mixed with some appeal to authority, and these definitely are not the best of times.

Needless to say, the lightweights in Congress want to run and hide from this just like they are hiding from the Iraq War.

UPDATE: Thankfully, not everyone in Congress is bereft of a spine. Sen. John Kerry has started a petition drive advocating a deadline for withdrawing American troops from Iraq:

Yesterday I stood up with a remarkable group of Iraq war veterans who are speaking out because they believe the best way to support the troops is to change a course that squanders their lives. When brave patriots suffer and die because of the incompetence of mere politicians, the only patriotic choice is to demand change.

These veterans offered a profile in courage.

The Senate this week provided a profile in politics – Republicans blocking even a vote up or down, one way or another on a bi-partisan resolution opposing the Bush escalation.

This has to end.

Republicans refuse even to go on record over the Bush escalation. That’s why we need to escalate the pressure for a policy change.

That’s why I am introducing legislation that will set a firm deadline for the redeployment of most American troops from Iraq.

[emphasis mine]

Please sign the petition, and then write your Senators urging them to support this initiative. (h/t Taylor Marsh).

What John Negroponte Wouldn't Do

The answer to the title of this post appears to be "increase surveillance on domestic communications". All I can say is "holy crap!". If this is true, there are some seriously bizarre behind-the-scenes goings on at the White House these days.

According to Richard Sale, via Patrick Lang's site, John "Throw Sister From The Plane" Negroponte, who most recently was the Director of Intelligence, was transferred to the State Department because he refused to increase electronic collection of domestic communications. Apparently, the next step in the Bush Administration's surveillance plan was too much for even Mr. Negroponte, which has me thinking along the same lines as this commenter at Col. Lang's site:

OK. Just let me know when these bastards go so far that we should impeach them, because I'm convinced that's the only way we're going to stop them. Too illegal for Negroponte? That's a scary thought.

Posted by: semper fubar 06 January 2007 at 05:58 PM

Of course, electronic surveillance without a warrant was illegal to begin with. What additional collection were they attempting to do? I can see a couple of possibilities:

1. The surveillance actually was done in a more-or-less legal fashion, in that
   the data from the illegal taps at least weren't retained beyond the limits of FISA, and Negroponte was asked to retain them longer


2. There was a new form of analysis or new criteria for increased surveillance
   that went beyond what's reasonable to combat terrorism, like maybe spying on the Administration's political enemies or for some business interest of theirs.

That's what occurs to me after thinking about it a few minutes. I freely admit to having no idea what the NSA is collecting or how. That's what FISA is about.

I'm going to keep watching this, but this thing is wierd, and I don't know if it will be covered at all in the traditional press.

Update: Forgot to mention: hat tip to powwow, who commented on this at Firedoglake.

Update 2: After thinking about it a little more, it seems quite possible that whatever the NSA were asked to do would require scarce resources. Listening in on large volumes of traffic creates a lot of data, which requires a lot of effort to store and analyze. If it's dumped after a short time, it might not even be put on permanent media like DVD-ROM, but if it's going to be kept more-or-less permanently, then it likely has to be backed up and stored somewhere. This also fits into what I will charitably call my impression of Negroponte being someone not given to idealism.

Update 3: (Jan. 8, 2007) A commenter to the Pat Lang blog article that started this mentioned this summary of Negroponte's term as DNI (PDF file) written by Negroponte's office. This isn't all that unusual a practice - most government officials of any rank like to write post-mortems of what they've done or tried to do while there. This memo spends considerable time explaining steps Negroponte took to make the intel community more efficient at gathering and sharing information.

The Chief Information Officer (CIO), appointed in December 2005, implemented a classified information sharing initiative that enhanced and expanded information sharing with key U.S. allies. While the success of this program is only one step toward overhauling the IC's information management system, it represented a paradigm shift in the Community’s information sharing policies.

He also claims he tried to streamline information sharing with law enforcement agencies:

Created a Program Manager for the Information Sharing Environment, who recently released the Information Sharing Environment Implementation Plan and Privacy Guidelines which provides the vision and road map for better sharing information within the Intelligence Community and with our fellow Federal, State, local, and tribal counterparts, as well as with the private sector.

I'm not sure how comfortable I am with this for a number of reasons, but it's possible this could be a good thing if it's done in such a way that it respects our laws and our privacy. One clear lesson of the 9/11 attacks was that the intel community hasn't been good at doing this in the past.

He also tried to make the intel community's work more closely related to our security objectives.

Promulgated the first unclassified National Intelligence Strategy (NIS), linking the Community’s goals to the National Security Strategy and establishing specific objectives and metrics for accomplishment. Also began implementation of a structured strategic planning process to ensure NIS objectives are met.

The sense I get from reading this document is that his primary focus was trying to get the intelligence agencies working more efficiently on the things he, the DoD, and the President thought were important. This tends to reinforce the impression I wrote about in Update 2, which is that if Negroponte objected to increased collection, it had more to do with him thinking it was inefficient than that it was an invasion of our privacy.

Update 4: (Jan. 8, 2007) Another commenter at the Pat Lang article, Will, points to a UPI article that claims that Negroponte refused to back Vice President Cheney on using the CIA to torture people:

Nov. 7, 2005; Wasington - U.S. intelligence czar John Negroponte is declining to support Vice President Dick Cheney's effort to exempt the CIA from law banning mistreatment of detainees.

"It's above my pay grade," he told a secret briefing for Senators last month, Time Magazine reported Sunday, adding that Negroponte then "artfully dodged another question about whether the harsher interrogation tactics Cheney wants the agency to be free to use actually produce valuable intelligence."

Note that this was more than a year ago. You'd think that Negroponte would have no problem backing Cheney on this. So, was this a matter of principle, or a power struggle between Cheney and the "old guard" at the IC?

Mark this day

"Bay Of Pigs. Bay Of Pigs. Where are the B's?"


Screen grab credit: Indyfan.com


Mark this day in the calendar, folks. It's one of the few times you'll ever see me write this: the Bush Administration did something right. No, it's not something small or inconsequential, like not getting lost on a bike ride or remembering the name of the prime minister of India, this is something big and very important to a democracy. What's more, they actually did it even though it was something that Bill Clinton thought of. The act in question is following the dictates of an executive order that Bill Clinton signed in 1995. According to Scott Shane of the International Herald Tribune:

At midnight on Dec. 31, hundreds of millions of pages of secret documents will be instantly declassified, including many FBI cold war files on investigations of people suspected of being Communist sympathizers. After years of extensions sought by federal agencies behaving like college students facing a term paper, the end of 2006 means the government's first automatic declassification of records.

Secret documents 25 years old or older will lose their classified status without so much as the stroke of a pen, unless agencies have sought exemptions on the ground that the material remains secret.

U.S. to declassify secrets aged 25 and older

Here's a little background. Up until now, documents would only be declassified if the declassification was specifically requested by U.S. citizens and granted by the government, or if the agency responsible for the documents decided to do a "housecleaning" by reviewing old classified documents to see if they should remain secret. Now, old secret documents will be declassified automatically unless the agency responsible requests that they not be. Essentially, we've gone from the documents being declassified by exception to their remaining classified by exception. As the IHT quote indicates, this will change the status of hundreds of millions of documents.

The IHT also appears to be accurate in saying the Bush Administration have not stood in the way of this change. The executive order the article is referring to is EO 12958, which President Clinton signed in April, 1995. Among other things, it contained this directive:

Sec. 3.4. Automatic Declassification. (a) Subject to paragraph (b), below, within 5 years from the date of this order, all classified information contained in records that (1) are more than 25 years old, and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed. Subsequently, all classified information in such records shall be automatically declassified no longer than 25 years from the date of its original classification, except as provided in paragraph (b), below. [3]

Executive Order 12958

President Bush later amended this executive order with EO 13292, which was changed mainly to give the Vice President the power to classify information. The section on automatic declassification was left essentially unchanged:

Sec. 3.3. Automatic Declassification. (a) Subject to paragraphs (b)-(e) of this section, on December 31, 2006, all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed. Subsequently, all classified records shall be automatically declassified on December 31 of the year that is 25 years from the date of its original classification, except as provided in paragraphs (b)-(e) of this section.

Executive Order 13292

Near as I can tell, the only change was to set a different date for the time when this process would start. Considering the way in which the Bush Administration deals with secrecy, this is an astonishing development. The change in the paragraphs cited is what I'd call wordsmithing; the paragraphs cited are essentially unchanged.

There is an implementation directive that tries to clarify procedures that will be used to declassify these documents. A brief glance at it reveals no hidden gotchas. It really looks like this is going to happen.

So, what does all this mean? The IHT article sums it up nicely:

Historians say the deadline, created in the Clinton administration but enforced, to the surprise of some scholars, by the secrecy-prone Bush administration, has had huge effects on public access, despite the large numbers of intelligence documents that have been exempted.

And every year from now on, millions of additional documents will be automatically declassified as they reach the 25-year limit, reversing the traditional practice of releasing just what scholars request.

That's "millions of documents", as in the equivalent of thousands of encyclopedias. Needless to say, much of it will be considerably less informative, but there are more than a few things buried in there that historians would like to know, and that we, as citizens of this country, ought to know.

The IHT article mentions that some documents about the Gulf of Tonkin incident will be declassified. For those who don't know what that is, let's just say that the Gulf of Tonkin was to Vietnam what weapons of mass destruction were to Iraq - in short, the lie that was used as the excuse for the war. What will those documents tell us about what happened that night? Here's what the Wikipedia entry has to say:

The Gulf of Tonkin Incident was an alleged pair of attacks (the second of which did not occur) by naval forces of the Democratic Republic of Vietnam against two American destroyers, the USS Maddox and the USS Turner Joy. The attacks occurred on 2 and 4 August 1964 in the Gulf of Tonkin. Later research, including a report released in 2005 by the National Security Agency, indicated that the second attack did not occur, but also attempted to dispel the long-standing assumption that members of the administration of President Lyndon B. Johnson had knowingly lied about the nature of the incident.

Wikipedia entry "Gulf of Tonkin Incident"

An American President may have lied to get us into a war, and then classified the radar logs and other supporting documents to cover up his crime. Or, he may not have done it. The newly declassified documents may tell us, one way or the other. This has implications beyond history. Suppose President Bush was considering doing the same thing. Knowing that someday his legacy might be sullied by such a revelation might make him more reluctant to do it.

It seems possible that there will be documents about the failed Bay of Pigs invasion, the Cuban Missile Crisis, and the Yom Kippur War. All these things, and many other incidents of the Cold War, occurred more than twenty-five years ago.

There's another benefit to this declassification that even the most ardent unitary executive proponent would like. It will get a whole bunch of classified documents out of the system. Each one must, by law, be tracked and accounted for. If one goes missing, no matter how useless or uninteresting its contents may be to our current adversaries, an investigation must be conducted to find out what happened and who might be to blame. Declassifying these documents relieves the government of a large expense.

So, we saved money and made our society a little more open. On the whole, a very good day. Here's something else you won't read very often in this column:

Good job, Mr. President.