Maybe some good news regarding Democrats standing up against secrecy (but is still ongoing and we must wait and see)

Glenn Greenwald

Are House Democrats about to block Obama's new secrecy law?

(updated below - Update II)

Earlier this week, I noted that the Senate had passed -- with Obama's support -- a pernicious amendment to the spending supplemental bill, jointly sponsored by Sens. Lindsey Graham and Joe Lieberman, that empowers Obama and the Pentagon, at their sole discretion, to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." The amendment has no purpose other than to expressly allow the President to conceal evidence of war crimes (torture) and to block the Supreme Court from ruling (as two federal courts have already held) that the Freedom of Information Act compels disclosure of those photographs. For more on why this new secrecy law is so dangerous, see my post here; even The Washington PostEditorial Page excoriated the amendment and Obama's support for it.

When I wrote about this several days ago, the Senate had passed the Graham-Lieberman secrecy law as an amendment to the spending supplemental bill (which includes funding for Iraq and Afghanistan) without even bothering to take a formal roll call vote (on a voice vote). Although the House version of the supplemental bill did not contain this amendment, it was widely expected that it would simply be inserted in the House-Senate conference and then easily passed along with the final bill.

But passage of Graham-Lieberman now appears much less certain because of what appears to be the refusal of some key liberal House Democrats -- including Barney Frank -- to support it. The votes of liberal House Democrats actually matter (for once) because most House Republicans are refusing to support the overall supplemental bill due to their objections to a provision for $5 billion in funding to increase the IMF's lending capacity. To pass the supplemental spending bill, House leaders need the votes of numerous House Democrats who are currently refusing to vote for anything that contains the photo suppression amendment. If Congressional Democrats succeed in blocking enactment of this amendment, that would be a critical assertion for the first time of Congressional checks on Obama's desired powers and would, independently, prevent a truly odious new secrecy power from being enacted.

First there is this report, yesterday, from Congress Daily:

Democratic leaders postponed a House-Senate conference meeting they hoped would produce a compromise fiscal 2009 war supplemental spending bill Thursday after it appeared they might not have enough votes to pass the measure in the House. . . .

Democratic leaders are counting on convincing 18 of 51 self-described liberal or progressive Democrats who previously opposed the supplemental to now support it, enough Caucus members to ensure its passage. . . .

But liberal Democrats are threatening to withhold their support for the supplemental if it includes a provision in the Senate-passed billthat would allow Defense Secretary Robert Gates to withhold any "photograph relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States" if he certifies that the release of the photos could endanger citizens or the armed forces.

The provision, which is supported by President Obama, was offered as an amendment by Sen. Joseph Lieberman, I-Conn.

Rep. Barney Frank, D-Mass. -- who initially opposed the package and is now trying to help Democratic leaders raise support for it -- said he recently told Treasury Secretary Timothy Geithner that liberal Democrats would not likely support the package if it includes the Lieberman amendment.

"I made it clear to the administration that I believe that we can get liberals like myself who are against the war [to] vote for it because the IMF is so important, but not if the [Freedom of Information Act] exception is in it," Frank said.

Rep. Louise Slaughter, D-N.Y., previously supported the supplemental but said she would not vote for the bill if it includes the amendment.

"There is no reason in the world for us to vote to suspend" FOIA, Slaughter said.

While House Defense Appropriations Subcommittee Chairman John Murtha, D-Pa., conceded "we got big problems" with trying to pass the supplemental, he asserted that it would clear Congress by July 1. The military has said it needs the funding by July to avoid a disruption in other accounts, which would have to be raided to pay for the wars in Iraq and Afghanistan.

Bolstering that report, Jane Hamsher yesterday spoke with Barney Frank, who told her that continued inclusion of the Graham-Lieberman photo suppression amendment would prevent House leaders from getting the votes they need to pass the supplemental bill (either that, Frank said, or they would be forced to remove the IMF funding provision -- which Obama promised G-20 allies -- in order to re-attract GOP votes and then pass the bill with the Graham-Lieberman amendment included but without the IMF funding).

It would seem that Nancy Pelosi has a special obligation to ensure that the House bill does not include the Graham-Lieberman amendment. Despite her vocal support for a "Truth Commission" to investigate Bush crimes, she has been continuously accused of enabling the Bush administration's torture regime by helping to keep it a secret and doing nothing to impede it. If she ends up voting for the supplemental spending bill (as she will) which includes a provision allowing the indefinite suppression of photographic evidence of torture, that would certainly bolster those accusations. Having been briefed early on to some still-disputed extent on the Bush torture regime, does Pelosi now want to vote to vest the Pentagon with the unreviewable power to suppress evidence of torture even where FOIA compels its disclosure?

If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA's exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure -- as Obama is asking it to do. But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn't want to comply with court rulings and with current transparency laws.

FOIA was enacted by Congress in 1966 -- more than 40 years ago -- and, in 1974, Congress overrode a presidential veto (.pdf) of amendments that expanded its disclosure requirements in the wake of Nixonian secrecy abuses. Congress should defend and insist on presidential compliance with the important transparency law it passed and repeatedly strengthened -- not allow the White House and Republicans to jointly render it illusory by retroactively narrowing its provisions, all because the Obama White House wants to suppress evidence of Bush's war crimes in the face of clear FOIA requirements compelling disclosure.

I hope to post some information in just a little bit about which members of Congress should be called today by those who want to see House Democrats stand their ground. Preventing passage of the Graham-Lieberman amendment would be an important step both for transparency and the re-assertion of Congressional checks on still-expanding presidential powers and secrecy abuses.

UPDATE: As Jane Hamsher noted after speaking with Barney Frank yesterday (read Jane's analysis here), the White House and House Leadership are now working jointly to convince 18 House Democrats who currently oppose the bill [H.R 2346] to vote for it. That's how many are needed to ensure its passage. You can call those key members -- here -- and encourage them to continue to oppose this bill, particularly as long as it contains the FOIA-eroding, torture-protecting Graham-Lieberman photo suppression amendment. Those interested can and should call as many members as possible, and it's particularly important if any of them are your actual representatives. It would also be helpful, once you call, to use the program provided to convey what you were told as each member's response to your call.

UPDATE II: Nick Baumman of Mother Jones cheers the efforts of House Democrats to block this amendment and writes:

The photo suppression bill is an abomination that is reminiscent of the worst Bush-era excesses. It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even if you oppose releasing some of the photos, I don't see why you would want to give the White House the power to unilaterally decide what's best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill.

Exactly. We already have a law in place -- FOIA -- that is incredibly permissive in what it allows the government to keep secret. Obama is perfectly within his rights to appeal the two court decisions ruling that these photographs must be disclosed under FOIA. But passing a new law because you don't want to abide by the old one and because courts have rejected the President's claimed powers was one of the most defining and abusive strategies of the Bush administration. The fact that this proposed amendment vests unilateral, unchallengeable power in the Pentagon to decide, with no review and standards, what will remain secret makes it all the worse.

The issue is not whether disclosure of these photographs will produce value (although given that we are in the midst of an ongoing debate over both torture and accountability for it, it seems obvious that there is great value in having more evidence released showing how brutal and lawless our Government's treatment of detainees was). But that isn't the issue. The issue is whether or not you believe in transparency in government (a major plank of Obama's campaign), and whether you want the President to have the unilateral, unreviewable power to simply decree that the 4o-year-old FOIA law need not be complied with when it comes to all photographic evidence of detainee abuse.

-- Glenn Greenwald

Original article posted here.

And now for a little good news . . .

Obama Positioned to Quickly Reverse Bush Actions
Stem Cell, Climate Rules Among Targets of President-Elect's Team

By Ceci Connolly and R. Jeffrey Smith
Washington Post Staff Writers
Sunday, November 9, 2008; A16



Transition advisers to President-elect Barack Obama have compiled a list of about 200 Bush administration actions and executive orders that could be swiftly undone to reverse White House policies on climate change, stem cell research, reproductive rights and other issues, according to congressional Democrats, campaign aides and experts working with the transition team.

A team of four dozen advisers, working for months in virtual solitude, set out to identify regulatory and policy changes Obama could implement soon after his inauguration. The team is now consulting with liberal advocacy groups, Capitol Hill staffers and potential agency chiefs to prioritize those they regard as the most onerous or ideologically offensive, said a top transition official who was not permitted to speak on the record about the inner workings of the transition.

In some instances, Obama would be quickly delivering on promises he made during his two-year campaign, while in others he would be embracing Clinton-era policies upended by President Bush during his eight years in office.

"The kind of regulations they are looking at" are those imposed by Bush for "overtly political" reasons, in pursuit of what Democrats say was a partisan Republican agenda, said Dan Mendelson, a former associate administrator for health in the Clinton administration's Office of Management and Budget. The list of executive orders targeted by Obama's team could well get longer in the coming days, as Bush's appointees rush to enact a number of last-minute policies in an effort to extend his legacy.

A spokeswoman said yesterday that no plans for regulatory changes had been finalized. "Before he makes any decisions on potential executive or legislative actions, he will be conferring with congressional leaders on both sides of the aisle, as well as interested groups," Obama transition spokeswoman Stephanie Cutter said. "Any decisions would need to be discussed with his Cabinet nominees, none of whom have been selected yet."

Still, the preelection transition team, comprising mainly lawyers, has positioned the incoming president to move fast on high-priority items without waiting for Congress.

Obama himself has signaled, for example, that he intends to reverse Bush's controversial limit on federal funding of embryonic stem cell research, a decision that scientists say has restrained research into some of the most promising avenues for defeating a wide array of diseases, such as Parkinson's.

Bush's August 2001 decision pleased religious conservatives who have moral objections to the use of cells from days-old human embryos, which are destroyed in the process.

But Rep. Diana DeGette (D-Colo.) said that during Obama's final swing through her state in October, she reminded him that because the restrictions were never included in legislation, Obama "can simply reverse them by executive order." Obama, she said, "was very receptive to that." Opponents of the restrictions have already drafted an executive order he could sign.

The new president is also expected to lift a so-called global gag rule barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal, said Cecile Richards, the president of Planned Parenthood Federation of America. When Bill Clinton took office in 1993, he rescinded the Reagan-era regulation, known as the Mexico City policy, but Bush reimposed it.

"We have been communicating with his transition staff" almost daily, Richards said. "We expect to see a real change."

While Obama said at a news conference last week that his top priority would be to stimulate the economy and create jobs, his advisers say that focus will not delay key shifts in social and regulatory policies, including some -- such as the embrace of new environmental safeguards -- that Obama has said will have long-term, beneficial impacts on the economy.

The president-elect has said, for example, that he intends to quickly reverse the Bush administration's decision last December to deny California the authority to regulate carbon dioxide emissions from automobiles. "Effectively tackling global warming demands bold and innovative solutions, and given the failure of this administration to act, California should be allowed to pioneer," Obama said in January.

California had sought permission from the Environmental Protection Agency to require that greenhouse gas emissions from vehicles be cut by 30 percent between 2009 and 2016, effectively mandating that cars achieve a fuel economy standard of at least 36 miles per gallon within eight years. Seventeen other states had promised to adopt California's rules, representing in total 45 percent of the nation's automobile market. Environmentalists cheered the California initiative because it would stoke innovation that would potentially benefit the entire country.

"An early move by the Obama administration to sign the California waiver would signal the seriousness of intent to reduce the nation's dependence on foreign oil and build a future for the domestic auto market," said Kevin Knobloch, president of the Union of Concerned Scientists.

Before the election, Obama told others that he favors declaring that carbon dioxide emissions are endangering human welfare, following an EPA task force recommendation last December that Bush and his aides shunned in order to protect the utility and auto industries.

Robert Sussman, who was the EPA's deputy administrator during the Clinton administration and is now overseeing EPA transition planning for Obama, wrote a paper last spring strongly recommending such a finding. Others in the campaign have depicted it as an issue on which Obama is keen to show that politics must not interfere with scientific advice.

Some related reforms embraced by Obama's transition advisers would alter procedures for decision-making on climate issues. A book titled "Change for America," being published next week by the Center for American Progress, an influential liberal think tank, will recommend, for example, that Obama rapidly create a National Energy Council to coordinate all policymaking related to global climate change.

The center's influence with Obama is substantial: It was created by former Clinton White House official John D. Podesta, a co-chairman of the transition effort, and much of its staff has been swept into planning for Obama's first 100 days in office.

The National Energy Council would be a counterpart to the White House National Economic Council that Clinton created in a 1993 executive order.

"It would make sure all the oars are rowing in the right direction" and ensure that climate change policy "gets lots of attention inside the White House," said Daniel J. Weiss, a former Sierra Club official and senior fellow with the Center for American Progress Action Fund.

The center's new book will also urge Obama to sign an executive order requiring that greenhouse gas emissions be considered whenever the federal government examines the environmental impact of its actions under the existing National Environmental Policy Act. Several key members of Obama's transition team have already embraced the idea.

Other early Obama initiatives may address the need for improved food and drug regulation and chart a new course for immigration enforcement, some Obama advisers say. But they add that only a portion of his early efforts will be aimed at undoing Bush initiatives.

Despite enormous pent-up Democratic frustration, Obama and his team realize they must strike a balance between undoing Bush actions and setting their own course, said Winnie Stachelberg, the center's senior vice president for external affairs.

"It took eight years to get into this mess, and it will take a long time to get out of it," she said. "The next administration needs to look ahead. This transition team and the incoming administration gets that in a big way."


Original article posted here.

More on the creeping fascism permeating the rule of the law and the judiciary as it eviscerates the Constitution

On the subject of legal charades: just where did the 4th Amendement go?

U.S. Is Alone in Rejecting All Evidence if Police Err

By ADAM LIPTAK

Bradley Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him.

A year and a half later, an Ontario trial judge ruled that the officer’s conduct was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s explanation for stopping and searching Mr. Harrison — confusion about a license plate — was contrived and defied credibility, the judge said, and the search “was certainly not reasonable.”

In the United States, that would have been good news for Mr. Harrison. Under the American legal system’s exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to exclude the evidence. Mr. Harrison was sentenced to five years in prison.

“Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”

Australia also uses a balancing test. It considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence. “Any unfairness to the particular accused” in most cases, the High Court of Australia wrote in 1995, “will be of no more than peripheral importance.”

The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found. In the last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia and Washington state suppressed evidence in cases involving drugs, guns, burglary and child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the decentralized nature of American law enforcement, with thousands of local police departments around the nation, requires a more rigorous and consistent approach to deterring misconduct. The law enforcement systems in Canada and England, by contrast, are notably less fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison’s car in Ontario thought the car should have had a front license plate, even though the car was from Alberta, which does not require one. “We respect the decision of the courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial Police, but “their criticism alone does not by default lead to an internal complaint.”

Supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment, which bans unreasonable searches and seizures.

“The exclusionary rule deters police misconduct in a straightforward and effective way,” said a supporting brief filed by the National Association of Criminal Defense Lawyers in the case the Supreme Court will hear in October. “It reduces the value of evidence obtained as a result of Fourth Amendment violations, and thus eliminates what would otherwise be a powerful incentive for police to engage in such violations.”

Several justices have in recent years questioned whether the rule still makes sense in light of what they called the increased professionalism of the police and the availability of alternative and arguably more direct ways to punish misconduct, including internal discipline and civil suits.

Opponents of the rule say it is indirect, incomplete and in a way perverse. Even if it deters unlawful searches, exclusion of evidence, for instance, offers no remedy to innocent people whose rights were violated by unlawful searches.

More important, as Justice Robert H. Jackson wrote in 1954, the exclusionary rule “deprives society of its remedy against one lawbreaker because he has been pursued by another.” Or, in Judge Benjamin Cardozo’s famous mocking formulation in a 1926 decision for New York’s highest court rejecting the rule: “The criminal is to go free because the constable has blundered.”

That reasoning continues to resonate with some experts.

“Lots of scholars argue that the mandatory exclusionary rule ought to be re-examined,” said David A. Sklansky, a law professor at the University of California, Berkeley. “Those scholars are not all on the right of the political spectrum.” Professor Sklansky said he believed that the rule’s benefits continued to outweigh its costs.

Most specialists continue to support the rule, said Orin S. Kerr, a law professor at George Washington University. “The U.S. experience is a consequence of history,” Professor Kerr said. “It’s a response to the police not following the law in the absence of this remedy.”

The idea that exclusion is the proper response to police misconduct is of relatively recent vintage.

“Supporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a law professor at Yale, wrote in The Harvard Law Review in 1994.

According to Professor Amar, the framers of the Fourth Amendment assumed that the right it guaranteed would be enforced through civil lawsuits, not exclusion. “Both before and after the Revolution,” he wrote, “the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals and the like.”

These days, law professors and defense lawyers say, civil suits are less likely to be effective. Criminals whose rights have been violated are not attractive plaintiffs, and they may not have the resources to litigate, particularly from behind bars. Civil suits must, moreover, overcome various legal doctrines limiting the liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly obtained evidence in 1914 — but only in federal cases.

For many decades afterward, the Supreme Court refused to apply the principle to states, saying they could choose the appropriate remedy for police misconduct — including civil suits and criminal prosecutions — and were not required to suppress evidence. In a 1949 decision, the court justified that position in part with a rationale now disfavored in some circles: a survey of foreign law.

“Of 10 jurisdictions within the United Kingdom and the British commonwealth of nations,” Justice Felix Frankfurter wrote for the majority, “none has held evidence obtained by illegal search and seizure inadmissible.” The right to be free of arbitrary police intrusion is fundamental, Justice Frankfurter wrote, but the legal remedy for the violation of that right can vary.

It was not until 1961 that the Warren Court, in one of its signature decisions, concluded in Mapp v. Ohio that only the mandatory suppression of evidence could adequately address wrongdoing by the police in all cases, state and federal.

Seven Cleveland police officers had broken into and searched Dollree Mapp’s home without producing a warrant, manhandling her and rummaging through her personal papers. Though the Ohio Supreme Court concluded that the search had been unlawful, it affirmed Ms. Mapp’s conviction on obscenity charges based on materials the police found in her home.

That was too much for a majority of the Supreme Court to stomach. “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote for the court. Only the exclusion of evidence could do the job, he said; other remedies had proved “worthless and futile.”

The Supreme Court has in recent years whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it. Chief Justice John G. Roberts Jr. and Justice Scalia, neither of whom is enamored with citing foreign law, each noted in recent decisions that the American approach in this area is unique and has been universally rejected elsewhere.

In a third decision two years ago, Hudson v. Michigan, Justice Scalia seemed to say that the exclusionary rule had outlived its original purpose. The case involved a conceded violation of a rule requiring police executing a search warrant to knock and announce themselves.

Much had changed since the exclusionary rule was applied to states in 1961, Justice Scalia wrote. Police departments had become more professional, he said, and various kinds of civil suits against officials and the government had become available. “As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”

Justice Stephen G. Breyer, writing for the four dissenters, said that exclusion remains the best and most reliable deterrent. He added that the logic of the majority’s objections was not limited to “knock and announce” violations but was “an argument against the Fourth Amendment’s exclusionary principle itself.”

Original article posted here.

Original article posted here.

Your police state

One Million Terrorists?

by Paul Craig Roberts

The Bush Regime's "terrorist" protection schemes have reached the height of total incompetence and utter absurdity. According to the American Civil Liberties Union, a private organization that defends the US Constitution that inattentive Americans neglect, there are now one million names on the "terrorist" watch list.

One of them is that of former Assistant US Attorney General Jim Robinson, whose top security clearances are current. Every time Mr. Robinson flies away on business, he is delayed by a totally incompetent "terrorist" protection racket that cannot tell a person named Jim Robinson, who served in the highest echelons of the US government, from a Muslim terrorist.

What confidence can we have in a regime that is incapable of differentiating an Assistant US Attorney General from a terrorist?

Mr. Robinson said: "If I were convinced that America is a safer place because I get hassled at the airport, I might put up with it, but I doubt it. I expect my story is similar to hundreds of thousands of people who are on this list and find themselves inconvenienced."

"Hundreds of thousands of people" on a watch list that they have no business being on?

Yes. "Members of Congress, nuns, war heroes and other 'suspicious characters,' with names like Robert Johnson and Gary Smith, have become trapped in the Kafkaesque clutches of this list, with little hope of escape," said Caroline Fredrickson, director of the ACLU Washington Legislative Office.

And this is America, not Nazi Germany?

How can Airport "Security" possibly protect anyone when the idiots cannot differentiate a high level American government official from a terrorist?

Do you really believe there are one million terrorists and nothing has blown up in the US since September 11, 2001 (assuming you believe the government's account of that episode)?

How can there possibly be 1,000,000 terrorists and America still be in one piece? If there were 1,000,000 terrorists, America would be in ruins. According to the Bush Regime's line, it only took a handful of terrorists to destroy America's tallest skyscrapers and a section of the Pentagon and to send the President of the United States scurrying to a hiding place.

One million terrorists could bring America to its knees, and they wouldn't need to fly on airplanes to accomplish this.

What we are witnessing with the one million person "watch list" is bureaucracy run amok. One Million Terrorists makes the danger seem overwhelming. Such overwhelming danger rationalizes the aggressive behavior of the bullies and thugs attracted by the power of confiscating your toothpaste and bottled water and riffling your belongings in your luggage.

Show your ID.
Take off your shoes.
Take off your belt.
Take off your jacket.
Empty your pockets.

Don't complain about being searched without a warrant or you will miss your flight. You might be arrested, handcuffed, kicked and otherwise abused – the fate of many American citizens.

The morons who comprise the US government call the "watch list" one of the government's "most effective tools in the fight against terrorism."

What an effective tool it is! It cannot tell the difference between Jim Robinson and a Muslim terrorist.

The "watch list" has not apprehended a single terrorist, but thousands of American citizens have been inconvenienced and arrested.

The ACLU says that "putting a million names on a watch list is a guarantee that the list will do more harm than good by interfering with the travel of innocent people and wasting huge amounts of our limited security resources on bureaucratic wheel-spinning."

It is worse than that. What the "watch list" or "no-fly list" is doing is training Americans to submit to warrantless searches, to abandon their constitutional rights, and to submit to humiliation by thugs and bullies. A Gestapo is being trained to have no qualms about searching and intimidating fellow citizens, using any excuse to delay or arrest them. Americans are being taught to use arbitrary power and to submit to arbitrary power. In the false name of "safety from terrorists," Americans are being made the least safe people on earth.

Original article posted here.

The dead letter Constitution and the Congressional aiders and abettersfis

Glenn Greenwald

Aug. 8, 1974 vs. July 9, 2008

The votes in the Senate on various amendments to the FISA "compromise" bill and to the underlying bill itself were originally scheduled for today, but have been postponed until tomorrow (Wednesday, July 9) to enable Senators to attend the funeral of Jesse Helms. Rejection of the amendments -- including the Dodd-Feingold-Leahy amendment to strip telecom immunity from the bill -- is all but certain, and final passage of the bill (with the support of both presidential candidates) is guaranteed.

Once passed by the Senate, the FISA bill will then immediately be sent by the Democratic Congress to an eagerly awaiting and immensely pleased President Bush, who will sign it into law, thereby putting a permanent and happy end to the scandal that began when -- in December, 2005 -- he was caught spying on the communications of American citizens in violation of the law. The only real remaining questions are (a) whether Bush will host Steny Hoyer and Jay Rockefeller at a festive, bipartisan White House signing ceremony to celebrate the evisceration of the Fourth Amendment and the rule of law, and (b) whether Bush, when he signs the bill into law, will append a signing statement decreeing that even its minimal restraints on presidential spying are invalid.

As part of the campaign to target those responsible for the ongoing destruction of core civil liberties and the endless expansion of America's lawless surveillance state, we have a full-page ad in the "A" Section of this morning's Washington Post, the purpose of which is to serve as a final argument directed to the Beltway class, a clear statement of exactly what it is that they are really about to do this week (click on both parts below to read the ad with large print or click here for the highly readable .pdf version):



If nothing else, as the Democratic-led Senate follows in the footsteps of the Democratic-led House this week by passing a bill demanded by George Bush and Dick Cheney to cover up and retroactively legalize their surveillance crimes and protect the lawbreakers, there will be a clear record -- delivered to their front doors -- of what they're really doing, along with an accounting of the deceitful propaganda they are disseminating to mask and justify it.

* * * * *

As I have described previously, the campaign we have been conducting is intended to be only the first step -- not the last -- in taking a stand against the endless erosion of core constitutional protections and the rapidly expanding Lawless Surveillance State. We have created a new organization, Accountability Now, to conduct the ongoing battle to target and remove from power those who enable these abuses; to force these issues into our political discourse; and to prevent the Washington Establishment from continuing to trample on basic constitutional protections with impunity.

The first campaign of this new organization is the formation of Strange Bedfellows, the ideologically diverse coalition we have formed with liberals, libertarians and others who are devoted to the preservation of our core constitutional liberties and the rule of law. Before it has even begun, The Wall St. Journal and numerous online venues have written about this unique coalition.

To initiate and fund our new campaign, we have teamed with the individual who was behind the innovative and extraordinarily successful Ron Paul "money bombs" -- Trevor Lyman, along with Rick Williams and Break the Matrix -- to plan an "Accountability Money Bomb" for August 8. That is the day in 1974 when Richard Nixon was forced to resign from office for his lawbreaking and surveillance abuses. That day illustrates how far we have fallen in this country in less than 35 years, as we now not only permit rampant presidential lawbreaking and a limitless surveillance state, but have a bipartisan political class that endorses it and even retroactively protects the lawbreakers.

This type of ideologically diverse coalition devoted to the preservation of basic constitutional protections and the rule of law -- modeled after the still-growing and increasingly potent left-right coalition that has spontaneously arisen in Britain to fight against their Establishment's corrupt seizure of limitless surveillance and detention powers -- can be a new and powerful force. Those who are responsible for these erosions need to be undermined and the nature of the debate over these issues needs to be changed. A successful start and the support of as many people as possible is vital to launching this effort the right way -- in a way that will enable its presence to be heard and felt in the Beltway precincts that need to hear and feel it.

* * * * *

With regard to the Senate FISA vote, a new event occurred yesterday that underscores the pure lawlessness of what our Congress will do this week. One of the pending Senate amendments -- the only one with any remote chance of passing -- is an amendment (.pdf) sponsored by Sen. Jeff Bingaman (co-sponsored by GOP Sen. Arlen Specter and Democratic Sen. Bob Casey). The Bingaman amendment would merely postpone the granting of telecom immunity until 90 days after Congress receives the Inspector General's audits of the President's NSA spying program which the new FISA bill mandates, and would freeze the telecom lawsuits in place until then.

The rationale behind the amendment is clear and simple: namely, members of Congress, the vast majority of whom know virtually nothing about what the telecoms did, shouldn't grant immunity unless they know what this illegal spying program entailed. If the IG Report reveals that the program (even though illegal) was devoted to a benign and proper purpose, then Congress (if it is so inclined) can grant immunity then. But if the IG Report reveals the spying program to be something other than what the President and the telecoms claim it to be -- if it entails far more invasive surveillance of Americans or was abused for improper purposes -- then immunity would obviously be wildly inappropriate. Even the ACLU and EFF, the lead organizations behind the telecom lawsuits, favor the Bingaman Amendment.

That amendment is a true compromise. It rests on what should be the completely uncontroversial proposition that Congress shouldn't immunize the lawbreakers until they at least know what was done. In the meantime, the lawsuits are frozen so that telecoms are spared the tragic burdens of having to account for their behavior in a court of law like everyone else does.

Revealing what telecom immunity is really about -- ensuring a permanent cover-up of Bush surveillance crimes -- Bush DNI Mike McConnell (who previously worked on behalf of the telecom industry to increase their government surveillance contracts) and Attorney General Michael Mukasey sent a joint letter to the Senate yesterday vowing that the President would veto the entire FISA bill if the Bingaman amendment were included, and issued this standard fear-mongering decree:


So not only does our Safety require that telecoms be immunized from lawsuits over their lawbreaking, but we can't even wait until we know what was done before immunizing them. Even waiting to immunize telecoms will gravely imperil "national security." Frightening. Immunize telecoms -- now, not later -- or prepare to be slaughtered by the Terrorists. And that's all Congress needs to know. McConnell and Mukasey end the letter by advising that they "strongly support the prompt passage" of the House FISA bill. I bet they do.

Manipulative appeals to "national security" are, of course, exactly what has enabled the Bush administration to bully Congress into giving them everything they want for years -- "give us the powers we want and immunize our lawbreaking or be killed by Terrorists." That's how our country has been "governed" in the Bush era -- with heavy-handed, authoritarian decrees that we must comply with our Leader's secretly-formed judgments if we want to survive -- and it's likely how it will continue to be governed. And that is the mentality -- in an even more absurd formulation than is typical -- that is likely to lead the Congress yet again to comply this week with the President's orders in full.

* * * * *

Yesterday, Andrew Sullivan noted the post I wrote this weekend regarding why telecom immunity is so destructive and corrupt, but Sullivan then wrote: "In the period after 9/11 in question, I do not find these cardinal sins. Venial maybe." Had this surveillance lawbreaking been confined to the weeks or even months after the 9/11 attack, that might be true. Even EFF's lead counsel, Cindy Cohn, said that had the illegal spying occurred only during that time period, it's unlikely that even they would have objected and sued.

But the reality is that the Government and the telecoms broke the law not for weeks or months, but for years -- well into 2007. They continued to do so even after the NYT exposed what they were doing. They could have brought their spying activities into a legal framework at any time, but chose instead to spy on Americans in exactly the way our laws criminalize. Manifestly, then, national security had nothing to do with why they did it. The Bush administration chose to do so because they wanted to eavesdrop without oversight and to establish that neither Congress nor the courts can limit what the President does, and telecoms did not want to jeopardize the massive government surveillance contracts they have by refusing.

This was rampant, deliberate lawbreaking that lasted for many years. We either live under the rule of law or we don't. In a New York Times Op-Ed today jointly written by James Baker and Warren Christopher on the need to amend the War Powers Act to clarify Congress' role when the President commits troops to battle, they point out: "the 1973 statute has been regularly ignored -- a situation that undermines the rule of law, the centerpiece of American democracy." The Bush administration and the telecoms trampled upon that "centerpiece of American democracy," and the Democratic-led Congress is about to do the same.

A quite good Editorial in the NYT this morning -- entitled "Compromising the Constitution" -- notes that the real effects of this FISA bill are to make it "much easier to spy on Americans at home, reduce the courts' powers and grant immunity to the companies that turned over Americans' private communications without a warrant." And: "The real reason this bill exists is because Mr. Bush decided after 9/11 that he was above the law."

Those who support this bill, by definition, support both warrantless eavesdropping on Americans and the right of the President and private corporations to break our laws with impunity. As the NYT Editorial puts it:

Proponents of the FISA deal say companies should not be "punished" for cooperating with the government. That's Washington-speak for a cover-up. The purpose of withholding immunity is not to punish but to preserve the only chance of unearthing the details of Mr. Bush's outlaw eavesdropping. Only a few senators, by the way, know just what those companies did.

Restoring some of the protections taken away by an earlier law while creating new loopholes in the Constitution is not a compromise. It is a failure of leadership.

The political class has made as clear as can be that it is intent on supporting a limitless erosion of core constitutional liberties and the creation of a two-tiered justice system that exempts the political elite from the rule of law. Neither the "opposition party" nor the establishment media are the slightest bit interested in, or capable of, stopping any of that. Battling against that is the responsibility of citizens who find these political trends dangerous and intolerable.

UPDATE: The .pdf of the ad, in highly readable and downloadable form, is here. The rapidly growing list of groups and blogs co-sponsoring our Strange Bedfellows coalition is here. Bloggers who wish to join can do so here, and we ask that you post one of the logos. Jane Hamsher has more on the campaign here.

Speaking of the Nixon era, one of the true American heroes from that time -- Daniel Ellsberg -- has an excellent post and video entitled "What Every American Needs to Know (and Do) About FISA." The debate over the FISA bill has begun now on the Senate floor and can be viewed at the C-SPAN website.

Original article posted here.

Truthout interview with Ron Paul

If you needed more evidence that this not a democracy bound by checks and balances . . .

DOJ Refuses to Turn Over Bush/Cheney CIA Leak Transcripts to Congress

By Jason Leopold The Public Record Monday, June 30, 2008 The Justice Department has said it will not comply with a subpoena demanding that FBI transcripts of interviews with President George W. Bush and Vice President Dick Cheney regarding their possible roles in the exposure of covert CIA officer Valerie Plame Wilson be turned over to a congressional committee investigating the matter. Henry Waxman, the chairman of the House Oversight and Government Reform Committee, issued the subpoena earlier this month in the latest chapter of a standoff over what Bush and Cheney told a special prosecutor about the case in 2004. In a June 24 letter Deputy Attorney General Keith Nelson sent to Waxman, the agency said it was withholding the documents on grounds of executive privilege, despite the fact that in 1999 the DOJ had made available to the House Oversight Committee FBI reports of interviews with President Bill Clinton and Vice President Al Gore related to the Justice Department's campaign finance probe. Nelson said the DOJ considered that situation "to be fundamentally different from the present situation." Still, "as we have informed the Committee, we are not prepared to provide or make available any reports of interviews with the President or the Vice President from the leak investigation," the letter to Waxman's committee says. "To do so would allow Congress to obtain through access to Justice Department investigative files information that it otherwise could not gather through its own inquiry because of separation of powers...The interview reports sought by the Committee deal directly with internal White House deliberations and communications relating to foreign policy and national security decisions faced by the President and his immediate advisers. Congressional access to those reports would intrude into one of the most sensitive and confidential areas of presidential decision-making," Nelson wrote. "Moreover, from the institutional perspective, the Committee's request for copies of FBI reports of interviews with the President and the Vice President raises a very serious additional separation of powers concern relating to the integrity and effectiveness of future law enforcement investigations by the Department," he added. According to a statement on the committee’s website, Special Prosecutor Patrick Fitzgerald may have entered into some sort of pre-arranged agreement with the president and vice president stating that the transcripts would remain under seal. Waxman wrote a letter to Fitzgerald Friday seeking “information regarding the terms under which Fitzgerald interviewed President Bush and Vice President Cheney in the course of his investigation into the leak.” Waxman said he received a letter from Fitzgerald on January 18 in which the special prosecutor said he “provided the White House and the other executive branch agencies with equities in the relevant documents an opportunity to review the materials we determined were not protected by Rule 6(e)," which is the rule governing grand jury material." “From discussions with the Justice Department, we understand that the FBI 302 interview reports of your interviews with the President and Vice President were included among those documents forwarded to the White House as not protected by grand jury rules,” Waxman’s June 27 letter to Fitzgerald says. “To assist the Committee in evaluating the Department's position, I request that you produce the following information to the Committee no later than July 3, 2008: Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation and the President of the United States, regarding the conduct and use of the interview or interviews of the President conducted as part of the Valerie Plame Wilson leak investigation. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Offrce of Special Counsel or the Federal Bureau of Investigation and the Vice President of the United States, regarding the conduct and use of the interview or interviews of the Vice President conducted as part of the Valerie Plame Wilson leak investigation. “If such agreements, conditions, and understandings were not memorialized in writing, I request that you submit a written description of the date and terms of any such agreements, conditions, and understandings,” the letter from Waxman says. On Friday, House Judiciary Committee John Conyers also subpoenaed the Justice Department demanding the agency turn over to his committee Fitzgerald’s interview transcripts with Bush and Cheney, as well as documents related to other issues his committee has been probing, after the agency denied to voluntarily make the documents available. Earlier this month, the Justice Department denied Waxman’s request for a voluntary release of the interview transcripts with Bush and Cheney on grounds that it “raises serious separation of powers and heightened confidentiality concerns.” So far, Fitzgerald has turned over to Waxman’s committee “FBI 302 reports” of interviews with CIA and State Department officials and other individuals involved in the CIA leak, Waxman said in a letter to Mukasey last December. But “the White House has been blocking Mr. Fitzgerald from providing key documents to the Committee," including transcripts of Fitzgerald’s interviews with Bush and Cheney, Waxman said. Senior Bush administration officials disclosed Valerie Plame Wilson’s identity to several journalists in June and July of 2003 amid White House efforts to discredit her husband, former U.S. Ambassador Joseph Wilson, for challenging Bush’s use of bogus intelligence to justify invading Iraq. Plame Wilson’s CIA employment was revealed in a July 14, 2003, article by right-wing columnist Robert Novak, effectively destroying her career. Two months later, a CIA complaint to the Justice Department sparked a criminal probe into the identity of the leakers. Initially, Bush professed not to know anything about the matter, and several of his senior aides, including political adviser Karl Rove and the vice president’s chief of staff I. Lewis Libby, followed suit. However, it later became clear that Rove and Libby had a hand in the Plame leak and that Bush and Cheney had helped organize a campaign to disparage Wilson by giving critical information to friendly journalists. On June 24, 2004, Bush was interviewed by Fitzgerald for 70 minutes about the Plame leak. The only other member of the Bush team in the room during the meeting was Jim Sharp, the private lawyer that Bush hired, according to a press briefing by then-press secretary Scott McClellan. ”The President … was pleased to do his part to help the investigation move forward,” McClellan said. “No one wants to get to the bottom of this matter more than the President of the United States.” A couple of weeks earlier, Cheney had been interviewed by Fitzgerald. According to sources knowledgeable about the vice president’s testimony, Cheney was specifically asked about conversations he had with senior aides, including Libby, and queried about whether he was aware of a campaign led by White House officials to leak Plame’s identity. It is unknown how Cheney responded to those questions. Cheney retained a private attorney, Terrence O’Donnell. Neither O’Donnell nor Sharp returned calls for comment on Monday. Long-Sought Evidence Three years ago, Waxman called for congressional hearings to determine if there was a White House conspiracy to unmask Plame Wilson's covert status in retaliation for the criticism Wilson leveled against the administration's use of a bogus claim that Iraq had obtained uranium from Niger. "I think that the Congress must hold hearings, bring Karl Rove in, put him under oath, and let him explain the situation from his point of view," Waxman said during an interview with “Democracy Now” in July 2005. "Let him tell us what happened. It's ridiculous that Congress should stay out of all of this and not hold hearings." At the time of Waxman's comments, Fitzgerald’s criminal investigation was still underway, leading to Libby’s indictment in October 2005 and his subsequent conviction in March 2007 on four counts of perjury and obstruction of justice. During closing arguments at Libby’s trial, Cheney was implicated in the leak, as Fitzgerald acknowledged that Cheney was intimately involved in the scandal and may have told Libby to leak Plame's status to the media. Fitzgerald told jurors that his investigation into the true nature of the vice president's involvement was impeded because Libby obstructed justice. Libby's attorney, Theodore Wells, told jurors during his closing arguments that Fitzgerald had been trying to build a case of conspiracy against the vice president and Libby and that the prosecution believed Libby may have lied to federal investigators and to a grand jury to protect Cheney. “Now, I think the government, through its questions, really tried to put a cloud over Vice President Cheney," Wells said. Rebutting Wells, Fitzgerald told jurors: "You know what? [Wells] said something here that we're trying to put a cloud on the vice president. We'll talk straight. There is a cloud over the vice president. He sent Libby off to [meet with New York Times reporter] Judith Miller at the St. Regis Hotel. At that meeting - the two-hour meeting - the defendant talked about the wife [Plame]. We didn't put that cloud there. That cloud remains because the defendant obstructed justice and lied about what happened." Moreover, copies of Cheney’s handwritten notes also appeared to implicate Bush in the leak case. Cheney's notes, which were introduced as evidence during Libby's trial, called into question the truthfulness of Bush's vehement denials about having prior knowledge of the sub rosa campaign against Wilson. In an October 2003 note to then-press secretary McClellan, Cheney demanded that the press office add Libby to a list of White House officials being cleared of any role in the Plame leak. "Not going to protect one staffer + sacrifice the guy that was asked to stick his head in the meat grinder because of incompetence of others," Cheney wrote. However, the note revealed that Cheney had originally written "this Pres" before crossing that out and using the passive tense, "that was." In other words, the original version suggested that Bush had asked Libby “to stick his head in the meat grinder,” an apparent reference to dealing with the Washington press corps. Over the past month, interest in the CIA leak case was revived by former White House press secretary McClellan’s memoir which also suggests Bush and Cheney played a larger role than they have admitted publicly. Waxman sent a letter to Mukasey in early June stating that, according to FBI transcripts given to the committee, Libby told federal investigators that Cheney might have told him to leak Plame's CIA ties to reporters. "In his interview with the FBI, Mr. Libby stated that it was ‘possible’ that Vice President Cheney instructed him to disseminate information about Ambassador Wilson's wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President's FBI interview," Waxman wrote. Original article posted here.

Dennis, way too late in the game, trying to wake up the dead. He should have done this during the campaign.

House Democrats roll onto their stomachs for Bush spying and past corporate criminality

Democrats Legalize Bush's Crimes

By Robert Parry

House Speaker Nancy Pelosi claims that a key positive feature of the new wiretap “compromise” is that the bill reaffirms that the President must follow the law, even though the same bill virtually assures that no one will be held accountable for George W. Bush's violation of the earlier spying law.
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In other words, in the guise of rejecting Bush’s theories of an all-powerful presidency that is above the law, the Democratic leadership cleared the way for the President and his collaborators to evade punishment for defying the law.

So, why should anyone assume that the new legislative edict demanding that the President obey the law will get any more respect than the old one, which established the Foreign Intelligence Surveillance Act of 1978 as the “exclusive” means for authorizing electronic spying?

It wasn’t that Bush and his team didn’t understand the old law’s language; they simply believed they could violate the law without consequence, under the radical theory that at a time of war – even one as vaguely defined as the “war on terror” – the President’s powers trump all laws as well as the constitutional rights of citizens.

Essentially, Bush was betting that even if his warrantless wiretap program was disclosed – as it was in December 2005 – that he could trust his Republican congressional allies to protect him and could count on most Democrats not to have the guts to challenge him.

His bet proved to be a smart one. After the New York Times revealed the warrantless wiretaps 2½ years ago, Congress took no steps to hold Bush accountable. Before the 2006 elections, Pelosi declared that Bush’s impeachment was “off the table.”

Then, on the eve of the August 2007 recess, the Democratic-controlled Congress was stampeded into passing the “Protect America Act,” which effectively legalized what Bush had already done and expanded his spying powers even more.

After that law was passed, U.S. news reports mostly parroted the White House claim that it “modernized” FISA and “narrowly” targeted overseas terror suspects who might call or e-mail their contacts in the United States.

However, it soon became clear that the law applied not just to terror suspects abroad who might communicate with Americans, but to anyone who is “reasonably believed to be outside the United States” and who might possess “foreign intelligence information,” defined as anything that could be useful to U.S. foreign policy.

That meant that almost any American engaged in international commerce or dealing with foreign issues – say, a businessman in touch with a foreign subsidiary or a U.S. reporter sending an overseas story back to his newspaper – was vulnerable to warrantless intercepts approved on the say-so of two Bush subordinates, the Attorney General and the Director of National Intelligence.

Beyond the breathtaking scope of this new authority, the Bush administration also snuck in a clause that granted forward-looking immunity from lawsuits to communications service providers that assisted the spying.

That removed one of the few safeguards against Bush’s warrantless wiretaps: the concern among service providers that they might be sued by customers for handing over constitutionally protected information without a warrant.

In short, the “Protect America Act” made warrantless surveillance legally cost free for a collaborating service provider, tilting the scales even further in favor of the government’s spying powers. [For details, see our book, Neck Deep, or Consortiumnews.com’s “Bush Gets Spying Blank Check.”]

Catching On

A week after the “Protect America Act” was passed, the New York Times and the Washington Post published front-page stories explaining how the Bush administration had ambushed the Democrats.

Pressed up against the start of the August recess and the prospect of Republican taunts that Democrats were “soft on terror,” the Democratic leaders abandoned earlier compromise proposals and accepted the more expansive law. Their one point of resistance was putting a February 2008 sunset provision into the law.

Still, the Democratic cave-in in August 2007 provoked an uproar among rank-and-file Democrats. Pelosi’s office reported receiving more than 200,000 angry e-mails.

Stung by the reaction, House Democratic leaders balked at White House pressure to make even more concessions, including retroactive immunity for telecommunication companies that had collaborated with Bush’s warrantless wiretaps in the years after the 9/11 attacks.

In February 2008, to the surprise of many observers, the Democratic leadership allowed the “Protect America Act” to lapse. Though Republicans attacked the Democrats as expected, the accusations seemed to have little political resonance.

Nevertheless, the Democratic leadership – behind Sen. Jay Rockefeller, D-West Virginia, and Rep. Steny Hoyer, D-Maryland – continued working on a compromise.

While the new version drops some of the more intrusive features of the “Protect America Act,” such as allowing warrantless wiretaps of Americans outside the United States, the bill adds retroactive telecom immunity (only requiring the companies show they got a written order from the President).

The bill also would grant the administration emergency power to wiretap a target for up to one week before getting a warrant from the secret FISA court. But the bill bars the government from targeting a foreigner as a "back-door" way to spy on an American without a court warrant.

’Capitulation’

Sen. Russell Feingold, D-Wisconsin, a strong constitutionalist, termed the new bill “not a compromise; it is a capitulation.”

One of the bill’s illusions would seem to be that the precedent of a President ignoring the FISA law and escaping any accountability can somehow be negated by restating what the original, violated law had declared.

In her June 20 floor statement, Pelosi said in her view this was a crucial feature of the bill, the statement that the President cannot ignore the FISA law again. However, Pelosi’s position sounded like the words of an indulgent parent of a spoiled child: “This time I really mean it!”

The more powerful message from the latest Democratic compromise is that a President – at least a Republican one – can break the wiretap law under the cover of national security and expect to ride out the consequences.

Rather than reaffirming the rule of law and the Constitution’s checks and balances, as Pelosi claimed, the new FISA “compromise” may have done the opposite, signaling that the President is above the law.

After Pelosi’s speech, the House passed the bill by a 293-129 margin with 105 Democrats – including most of the leadership – voting in favor and 128 Democrats against. The bill then went to the Senate, which was expected to approve it.

Original article posted here.

Asserting Constitutional Rights

More on the use of fear and manipulation to shred the Constitution and impose a neo-fascist police state

Department of Pre-Crime

By Eric Umansky

News: Why are citizens being locked up for "un-American" thoughts?

The Mujahedin-e Khalq, or MEK, is one of the world's odder guerrilla groups. Espousing a mix of Marxist and Islamic rhetoric, members take vows of chastity and engage in "weekly ideological cleansings." The New York Times has called the significantly female MEK an "army of Stepford wives." In March 2006, one member, Zeinab Taleb-Jedi, was arrested at JFK airport as she returned to the U.S. for medical treatment. Based on testimony of two informants, the government alleges that she provided the MEK "support," i.e., herself.

The case is bizarre on several levels. First, though the MEK did target Americans back in the 1970s, it hasn't attacked anybody in more than seven years and was classified as a terrorist group in 1997 as part of a rapprochement effort with Iran. Second, the MEK is dedicated to regime change in Iran—just like the Bush administration. Third, Camp Ashraf, the group's Iraqi base, where Taleb-Jedi lived and taught English, has since 2003 been under the control of U.S. forces, which have allowed the MEK to continue training (albeit without arms) and broadcasting propaganda into Iran. An American commander in the area called for "a review of whether they are still a terrorist organization" as has Senator Sam Brownback (R-Kan.) and administration neocons.

Meanwhile, the 52-year-old Taleb-Jedi—this supposed threat to America—is out on bail, living in a homeless shelter in New York City.

Back Forward When Attorney General Alberto Gonzales held a press conference in the summer of 2006 announcing the arrests of seven young men for plotting to bomb Chicago's Sears Tower, he sounded defensive, his voice lingering a beat on each thing the men allegedly did. "Individuals here in America made plans to hurt Americans," he claimed. "They did request materials; they did request equipment; they did request funding." Gonzales admitted that the American and Haitian-born men posed "no immediate threat." But, he warned, "homegrown terrorists may prove to be as dangerous as groups like Al Qaeda. Our philosophy here is that we try to identify plots in the earliest stages possible, because we don't know what we don't know about a terrorism plot." It's dangerous, Gonzales added, to make a "case by case" evaluation that "well, 'this is a really dangerous group'; 'this is not a really dangerous group.'"

From the beginning, the allegations seemed bizarre. Allegedly led by Narseal Batiste, an underemployed construction worker, the plotters were an oddball group who dubbed themselves Seas of David. Preaching an eclectic mix of Christianity, Judaism, and Islam, the seven men were known around their neighborhood of Liberty City, Miami, for practicing martial arts and wearing Stars of David. Mostly unemployed and with few resources, they seemed an unlikely bunch to blow up a landmark 1,200 miles away.

The more details that emerged about the case, the fishier it looked. The charges had come about because of a 23-year-old Yemeni clerk named Abbas al-Saidi, who'd been a police informant since he was 16. The fbi helped bail him out when he was in jail facing charges of assaulting his girlfriend. A year later, Saidi returned the favor, telling the feds he'd met a young man—Narseal Batiste—who boasted of wanting to create an Islamic state in America.

The fbi hired Saidi to cozy up to Batiste and his followers, and sent in another informant (also charged with domestic abuse), Elie Assad, to pose as an Al Qaeda financier named "Mohammed." Nearly everything Gonzales said the plotters "did" happened at the urging of the two informants, who reportedly earned about $120,000 from the feds for their help. (Assad, originally from Lebanon, was also granted political asylum.)

After Assad boasted of his Al Qaeda connections, Batiste talked of wanting to play a part, but only if Assad helped him first. Batiste gave the fake financier a long list of desired equipment, including "boots—knee high. Automatic hand pistols. Black security uniforms. Squad cars. suv truck—black color." (Not on the wish list: explosives.) Batiste also said he wanted $50,000, explaining in one taped conversation, "I'm exhausted financially. We have nothing." Batiste's lawyers would later argue that his promises of jihad were merely an attempt to scam "Mohammed" out of the money.

A few of the Seas of David men did recon the fbi field office in Miami. But the mission had been conceived by Assad, the van and a digital camera both provided by Assad—that is, the fbi.

When Assad failed to deliver the cash and with the Seas of David growing increasingly skeptical about his claims, he tried to assuage them by swearing them into Al Qaeda, which he did—in a warehouse rented and wired for video by the fbi.

The oath became the government's piéce de rèsistance. Charging the men with multiple counts of attempting to provide material support and secondary charges of conspiracy—which could bring them each 70 years in prison—prosecutors began their closing statements by playing the tape of the Seas of David swearing allegiance to Al Qaeda. When the video ended, Jacqueline Arango, an assistant United States attorney, told the jury, "Ladies and gentlemen, that is material support."

After deliberating for nine days last December, the jury acquitted one man who'd separated himself from the group and moved to Atlanta. But it deadlocked on the others, and a mistrial was declared. A new trial is scheduled for this spring. Until then the six men are in prison, and they and their lawyers are under a gag order. (The same applies to the acquitted man, Lyglenson Lemorin, who's in detention awaiting possible deportation to Haiti even though he's lived here legally for nearly 20 years. Citing privacy laws, the government will not explain why he is being kicked out.)

"I think it may hang again," juror Delorise Thompkins told the Miami Herald. "You're going to find someone always afraid of terrorist groups, but then when you see the evidence, there's not a lot there—no plans, no papers, no pictures, no nothing connecting them to Osama bin Laden." The jury's ambivalence is understandable. The plots were little more than talk encouraged by informants; the central evidence in the case—the taped oath—was a staged fbi production. But then, whether the men were a threat or the plot real doesn't matter when it comes to the charge of material support.

Material-support laws are not like other laws. Central to what the Department of Justice has described as an approach of "strategic overinclusiveness," they have underpinned many of the government's most controversial criminal terrorism cases, from the so-called Lackawanna Six—young men from upstate New York who trained at, and later fled from, a militant camp in Afghanistan—to José Padilla, the man once accused of being a "dirty bomber."

Indeed, look at the heavily criticized "foiled plot" cases over the past few years—the ones with an informant at the center offering encouragement and often much more—and you'll find material support charges underlying nearly all of them. Material-support statutes have been cited to deny thousands of immigrants—some on the run from actual terrorists (see file of "Kumar the Fisherman," above)—entrance into the country and are offered by the Pentagon as justification for detaining hundreds of people at Guantanamo, many of whom have provided little more "support" than being, for example, conscripted to cook for the Taliban.

There's a reason material support has become such a popular charge, a reason it's central to many of the government's most questionable cases: The laws are a prosecutor's dream. They don't require evidence of a plot or even of a desire to help terrorists. They give the government a shot at convictions traditional criminal laws could never provide. "The administration adopted the preventive paradigm, i.e. 'We've got to stop people before they've done something wrong,'" says David Cole, a Georgetown University law professor who's the author of several books about the effect of anti-terror laws on the justice system. "There's tremendous pressure to expand grounds of criminal activity, to prosecute people who might represent a threat. The material-support provisions have been the principal vehicle for pushing that envelope."

The question is whether that approach has made us any safer. "The government does not understand how terrorist groups operate," says Michael German, a former counterterrorism agent at the fbi and now counsel for the aclu. "When I was undercover, there were plenty of people who may have been sympathetic to a group but were very clear they didn't want to break the law or get involved in violence. And we didn't go after them." Blurring that distinction by opening the door for prosecutions of people who do little more than express sympathies for a group, argues German, "that's where the material-support provisions go off the rails. The terrorist's goal is to convince everybody he identifies as his community that they are being oppressed. And when the government's response tends to create injustice, the government's fulfilling that prophecy."

The core concept behind the criminal material-support laws—there are two—seems, at first glance, to be straightforward. The first law, passed in 1994 after the first World Trade Center bombing, bans almost any support of terrorist activity. The second law, passed in 1996 in the wake of the Oklahoma City bombing, criminalizes knowingly giving support, financial or otherwise, to groups designated as foreign terrorist organizations, even if the money is supposedly earmarked to support peaceful activities—say, a hospital for Hamas.

Think of the laws as "aiding and abetting"—only on steroids. It has always been illegal to support criminal activity. If a man drives a getaway car for bank robbers, then he can be charged for the robbery, too. Prosecutors have simply had to show that there was an intent to further the crime and some meaningful connection between the help and the crime itself.

What the material-support laws did was roll back those requirements. A taxi driver hired for a short drive by a Hezbollah politician—a driver who had no intention of engaging in terrorist activity—would, so long as he knew the politician was with Hezbollah, be guilty of providing material support. That's because the laws that define "material support" contain a long list of often nebulous activities, such as providing "property, tangible or intangible" or "service," and are applied whether or not those activities truly helped advance the cause of a terrorist group, and regardless of the suspect's intentions. The laws make little distinction between the taxi driver and, say, an arms merchant who sells detonators to Hezbollah. The Patriot Act extended the concept further, making it illegal to attempt or conspire to provide material support. Before, prosecutors had to prove you gave support. Now they just have to show you wanted to.

That change, along with other newly exploited vagueness in the existing material-support laws, opened up a whole new path for prosecutors. In the Padilla case and others, the government has argued successfully that a suspect is guilty of attempting to provide material support even if the plot he allegedly supported was purely a government concoction or, just as curious, even if the government hadn't said what group or plot the accused might have been supporting.

Prosecutors have only had to show that the accused expressed interest in helping—as the government puts it—the "global jihad movement." "Under our system you have to show a defendant has done something specific," says Peter Margulies, a national security scholar at Roger Williams law school in Rhode Island. "These charges are really a departure from the usual way of our doing justice."

That departure increases the chance of a screwup. "Fear—a not unreasonable one—of catastrophic harm" provides a great deal of incentive to bring charges against those you suspect might harbor ill will to the United States, says Margulies. "But political violence is a low-incident crime. There just aren't a lot of people making a living as terrorists. When you have a real imbalance like that and you put that together with vague charges, it's a recipe for mistakes. You have to really worry about false positives, about getting things wrong."

The idea for the material-support laws first came in the early 1980s, when, after the bombing of the Marine barracks in Beirut and a string of high-profile kidnappings of Americans abroad, the Reagan administration decided that U.S. law wasn't up to the task of prosecuting people who supported terrorists. Presidents have long had the power to impose embargoes against countries. Shouldn't they be able to do the same against terrorist groups?

Following this logic, the White House proposed to criminalize any training, support, or services to any foreign group designated a national security threat by the secretary of state. The sweeping proposal, which envisioned essentially no oversight, was denounced by both the left and right. A Washington Post editorial opined that the legislation might be used against the anti-communist Contras in Nicaragua. "Use your imagination," it warned. If "a President Mondale were to appoint a Jesse Jackson secretary of state, is it not possible that the Nicaraguan rebels might be designated terrorists?"

Congress enacted the first material-support law—limited to immigration issues—in 1990. It allowed the government to bar any aliens who supported a "terrorist organization" or "activity." Both terms were ill defined, and the first time they were tested, on the L.A. Eight, led to one of the most tortured cases to ever wind its way through the legal system (see their file, above).

It took the 1993 World Trade Center bombing for Congress to put the material-support concept into the federal criminal code. Michael Kraft, a recently retired State Department counterterrorism official, helped draft the law. "The reason for the laws overall was that there wasn't a good way to intercede on fundraising for nonstate actors," he says. "Part of the effort was also to create a deterrence effect. There was a feeling that there was a romanticization of terrorism. European intellectuals occasionally celebrated Red Brigades and Palestinian terrorism. So there was an effort to stigmatize the crime."

The law targeted any support of terrorist activity. But sending money to the ira for an orphanage, for example, wouldn't be illegal. And to law enforcement, that meant the law didn't go far enough. "Every once in a while we'd see a note on a check saying 'Mujahideen,'" jokes Jeff Breinholt, who heads the Department of Justice's terrorist financing unit. "But usually they didn't do that." So in early 1995 the Clinton administration introduced a bill banning the donation of any money, no matter its purpose, to groups designated as foreign terrorist organizations. The idea makes some sense: Should you be allowed to give to the Tamil Tigers' social-services arm? Even if you could be sure the money was going only to build a school, it frees up money for the Sri Lankan guerrilla group to spend elsewhere.

Two months later, when Timothy McVeigh blew up the Murrah Federal Building in Oklahoma City, Congress not only embraced Clinton's proposal, it greatly expanded it. Apart from an exemption for "medicine and religious materials," the new law, part of the 1996 Antiterrorism and Effective Death Penalty Act, criminalized all knowing support to terrorist-designated organizations—whatever the purpose of that support might be.

From the beginning, civil libertarians criticized the statute's potential for overreach. And federal courts have since ruled that some types of banned support are too vaguely defined—rulings that have largely stemmed from a suit in which a human rights organization sued to teach humanitarian law to a Kurdish group designated as a terrorist organization. (The Supreme Court has yet to weigh in.) In an even more farcical case, brought in 2006, a small-time satellite TV operator in Brooklyn allegedly offered to sell a government informant a satellite dish with access to al-Manar, better known as Hezbollah TV. In turn, the government charged the man, Javed Iqbal, with multiple counts of material support and announced he could face up to 110 years in prison. (The trial is set for June.)

And while most Americans would agree that Hezbollah is a terrorist organization, the process for designating groups as such has also drawn scrutiny. The State Department currently lists 42 groups as foreign terrorist organizations. Defendants can't challenge these designations (though the groups themselves can), and while federal judges can overrule the designations, the standards for doing so are high. Federal appeals court Judge Alex Kozinski, a prominent conservative jurist, recently railed against the "patent unconstitutionality" of a process that envisions jail time "for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization."

While criticism aimed at material-support laws has mostly focused on the scope of the 1996 law regarding providing financial support to groups, the Bush administration has quietly developed an alternate tactic: supercharging the 1994 terrorist activity provision. This new interpretation, writes Robert Chesney, a professor at Wake Forest law school and a leading scholar on material support, "has quietly emerged as perhaps the single most important charge in post-9/11 terrorism prosecutions."

What the administration realized is that the 1994 law could be interpreted to criminalize support of a terrorist conspiracy even when the conspiracy consists not of a concrete plot but rather of, as prosecutors have put it, the "worldwide jihadist movement." "You don't even need to establish 'conspiracy' as we commonly understand it, because you don't have to prove an agreement with anyone," notes William Banks, director of Syracuse University's Institute for National Security and Counterterrorism. The Patriot Act further juiced the law, making it illegal just to try to give support. At its most attenuated, you can be guilty of attempting or conspiring to provide personnel (i.e., yourself) for the preparation of a conspiracy that may or may not exist. "It is possible to indict someone even where the government is entirely unclear as to just what the person may be planning to do," says Chesney. "If it sounds quite broad, it should."

"I'm not sure if a memo went around to U.S. attorneys or what, but they've all been seizing on 2339A," adds Chesney, referring to the section number of the 1994 material-support statute.

Actually, one did. In the summer of 2003, an internal Department of Justice bulletin recommended just such an approach, telling U.S. attorneys that the DOJ "can work with you on this theory and offer sample indictment language." The newsletter was written by Jeff Breinholt from the DOJ's terrorist financing unit. Asked about criticism that the approach is too sweeping, Breinholt says, "Because the object of what you're trying to do is far worse"—that is, terrorism—"it's appropriate to have a standard that's lower than 'aiding and abetting.'"

But how low is too low? Consider the case of a young Pakistani American man named Hamid Hayat from Lodi, California. Hayat was convicted in 2006 of material support even though the government never alleged he was involved in a plot and it never specified which terrorist group he allegedly sought to help. Instead prosecutors focused on what they called Hayat's "jihadi mind" and his confession—which came after an all-night interrogation and was soon recanted—that he had attended a "jihadist" training camp.

Despite qualms from some jurors—one later disavowed her vote, claiming other jurors had pressured her—Hayat was found guilty and sentenced to 24 years in prison (see file above). "If at the end of the day what the government could prove is that Hamid harbored generally ill feelings and got training from some unidentified group," says Chesney, "then the idea that that constitutes a criminal conspiracy is troubling."

Chesney, a highly regarded and cautious scholar, expresses a wary ambivalence about the law. "It's not entirely clear to me that it's the wrong approach," he says. If the laws get gutted, there could be "pressure to move toward the military approach or cia renditions. Even for liberals, there's an incentive to go with the lesser of two evils." And if the greater evil is rejected by the next administration (willingly or at the courts' insistence), that could, paradoxically, mean an embrace of this problematic legal framework that the Bush administration has set up to fight terrorism.

In that case, experts propose reform that could go a long way to making the laws more just, including more carefully calibrated definitions of what constitutes support or a conspiracy, and, one of Chesney's ideas, graduated penalties based on intent. Whether or not such changes would be remedy enough, it is clear that, as currently interpreted, the material-support laws undermine our standards of justice. That's not only a problem for those caught in the government's wide net. It's a problem for all of us.

"The Constitution is, among other things, a counterterrorism strategy," says Michael German, the former fbi agent. "What the framers recognized is that you don't create the perception of repression if you allow people legitimate means for fostering change. The material-support laws criminalize conduct that in and of itself isn't typically criminal, isn't illegal." When you have cases based on such sweeping laws, argues German, "you're ostensibly hurting terrorist organizations, when in fact you're helping them. You're giving people more of a reason to become militant."

Original article posted here.