Blog
Checks & Balances
By Emily Berman – 02/14/08
If you watch Congress closely, you might have noticed that
they've been buying a lot of beachfront property in New Mexico over the last few years.
America
doesn't torture, President Bush emphatically declared in 2005. Except
for those three people that we subjected to waterboarding.
The 9/11 Commission was given all the information about the
treatment of detainees that they requested.
Except
those hours and hours of tapes of the interrogation of Abu Zubaydah and Abd al-Rahim al-Nashiri that had been sitting in a safehouse in Thailand.
We're not eliding our constitutional obligations to the
detainees in Guantanamo. Except that we have been denying them the long-established
right to habeas corpus, the right to see evidence offered against them, the
right to present evidence of their own to exonerate themselves.
We're not monitoring domestic communications without a
warrant in violation of long-standing law.
Except for the five years between September 11th and the time the
program was exposed
by the New York Times.
In the past seven years, Congress has heard all of these proclamations by members of the Administration, each of them shown to be based on creative interpretations of the law or possible obstruction of justice. And yet it continues to take the bait-hook,
line, & sinker-either by taking no action at all or by enacting laws that
simply codify the Administration's flawed policies.
The latest in this long line of legislative travesties is
the recently-approved Senate version of a bill to amend the Foreign Intelligence
Surveillance Act (or FISA). The debate
over the measure was long, hard-fought, and characteristically full of outright
misinformation. Here are some examples:
- (1) "If
Congress doesn't pass a FISA bill by Saturday, FISA will expire". Incorrect. The Protect America Act, which eviscerated some
of FISA's civil liberties protections, expires Saturday. FISA, which has served America's
intelligence community well for over 30 years, remains on the books.
- (2) "If
telecommunications companies that cooperated with the administration's
warrantless wiretapping program are not extended retroactive immunity for any
violations of the law they committed, they will not cooperate with intelligence
operations in the future." False.
Without immunity, telecoms might not participate in illegal intelligence operations. Nor should they! It is good public policy to discourage
telecoms from cooperating with illegal surveillance.
- (3) "Requiring
the intelligence community to get authorization for surveillance activity from
the Foreign Intelligence Surveillance Court (FISC) will impede government
efforts to stop terrorists."
Unsubstantiated. From the time it was established in 1979
until 2006, the FISC rejected exactly 5 applications from the executive. There's no reason to think that it would not
continue to approve valid surveillance requests if it is permitted to retain a
role in the approval process.
Instead of recognizing these
arguments for what they are-the politics of fear enlisted to further an agenda
of unprecedented government secrecy and unaccountability-68 Senators have once
again placed their trust in the administration by voting in favor of the
bill. They are trusting that the
surveillance targets, which need not be approved by any independent judicial
voice, are appropriate and are not likely to be Americans. They are trusting that the information
gleaned from such sweeping surveillance power is used properly. They are trusting that the communications of
Americans "inadvertently" captured in the course of surveillance operations are
not retained or used improperly.
By trusting rather than verifying,
they are abdicating their responsibility to protect America from excessive executive
power. By not standing up to this
imperial presidency, they are saying that fearmongering works and that Congress
is becoming irrelevant.
Showing a bit
more savvy and resolve than the Senate, the House has thus far refused to fall
prey to these same tactics and will let the Protect America Act expire on
Saturday. One can only hope that the
House will continue to listen
to the voices of those Americans who have grown tired of having their rights
and the rights of their neighbors trampled by this administration.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Maggie Barron – 02/13/08
"White House Victory." The words have a surprising ring these
days given how little capital the administration has left to spend. But these
are exactly the words used to describe yesterday's Senate vote to reauthorize
FISA. Rather than rein in the executive branch's expanding surveillance powers,
the Senate rejected measures that would have protected civil liberties, and
chose to grant immunity
to telecom companies that had provided the government with data, perhaps
illegally. More disturbing still, this vote was not even particularly
contentious; it passed by a wide, 68 to 29, margin. What happened?
Sen. Chris Dodd (D-CT), an opponent of broad surveillance
powers, said
"Unfortunately, those who are advocating this notion that you have to give up
liberties to be more secure are apparently prevailing."
Is it true that Senators are still too scared to stand up to the national security machine for
fear that they will be branded as soft-on-terror? Yes, there has been some
definite bullying going on. In his State of the Union address, President Bush
said that if Congress didn't act immediately to reauthorize FISA, "our ability to track terrorist threats
would be weakened and our citizens will be in greater danger. Congress must
ensure the flow of vital intelligence is not disrupted." The message is clear:
question the government's use of power and you put Americans in danger. We've been hearing it for six years. And the
message seems not to have lost its power over elected officials.
Still, I think there are other forces at play. This is a unique
moment in which the politics of security and the politics of special interests
intersect. Some political issues, like national security, are thought to be
immune from the reach of special interests. But the moment FISA became not just
an issue of domestic spying but also of telecom immunity, the legislation seemed
clouded, like the majority of other issues before Congress, under a shadow of special interest money.
Take Sen. Jay Rockefeller (D-WV), the chairman of the Senate
intelligence committee, whose support of the current FISA legislation was
critical to its passage. He said that the legislation was "the right way to go,
in terms of the security of the nation." But it seems it was also the "right
way to go" in terms of pleasing his contributors. According to the Center
for Responsive Politics, he is one of the top Congressional recipient of telecom
money. Other Senators who supported immunity were also on the list of top
recipients, such as Mary Landrieu (D-LA).
The telecoms have good reason to want immunity AT&T and
other telecoms face 40
lawsuits. And the government worries that without immunity, the telecoms,
having learned that the executive sometimes asks for cooperation with legally
questionable operations, won't cooperate with future spying efforts.
To be fair, Chris Dodd, who introduced the amendment rejecting immunity, also received money
from telecoms, about $10,000 last year. So there is no direct correlation
between a vote on FISA and the money received from telecoms. But wouldn't it be
better if we could be sure that legislative decisions were made on the merits
of the cases at hand, and not to please campaign contributors?
If we are going to restore
checks and balances, Congress must be able to challenge the assumption that
civil liberties and national security are in necessary tension. Unfortunately,
when special interest money comes in to play, it's hard to know for sure whose
interests these Senators are thinking about.
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Maggie Barron – 01/29/08
Last
night's State of the Union address, Bush's last, was about legacy-building. But
the President spent only a moment of his hour-long speech on a subject that
could be his most enduring legacy of all, one that will have an impact long
after troops are out of Iraq
and the housing market has recovered — the makeup of the judicial branch.
Many of
his nominees, Bush complained in the speech, are being "unfairly delayed." He
does have some trouble; he nominates divisive candidates, and the Senate
Democrats resist. Last year, for example, Bush dropped
the nomination of three judges when it was apparent that they would never
be confirmed. And of course there were the events of 2004, when the country finally
learned what
the word "filibuster" meant. But these "delays" are relative — a
glance through the records of
Bush's judicial nominations shows that many votes to confirm judges are
unanimous. In a statement last November, Senate Judiciary Committee Chairman
Senator Patrick Leahy reported that the Senate had confirmed more judges in
2007 than in the previous three years, in which Republicans had a majority.
The President
plays a critical role in creating the entire judicial branch, not just the
Supreme Court. Bush has appointed two Supreme Court justices, but he has also successfully confirmed 294
judges to the federal district and circuit courts. By the end of their
terms, Clinton and Reagan had successfully confirmed 377
and 382 federal judges, respectively. By the end of his term, Bush may not
reach the same count, but his choices of hundreds of judges will still have a
lasting impact on the country. These district and circuit court judges serve
lifetime appointments. So it's little wonder that, as
Bob Dole said during his presidential campaign, "the federal judges a
president chooses may be his most profound legacy."
It is a
legacy that we have largely been ignoring when it comes to electing our next
president. From watching the Democratic and Republican debates, for example,
one would think that the only questions facing our courts these days are Roe v. Wade and the Second Amendment. In
the Democratic
debate in Las Vegas last November, a voter asked that candidates "what
qualities" a judicial nominee must possess. Wolf Blitzer spun the question
around, making the candidates give "yes or no" answers to whether or not they
would appoint judges who supported abortion.
It is
essential that the media ask the candidates about their judicial philosophies,
and allow them to answer in full sentences. And it is essential that we the
voters stop to listen, because the matter of judicial candidates provides
important clues about how a candidate might govern. In 2000, Bush was running
on a platform of "compassionate conservatism," but when asked said he would
appoint justices in the mold of Scalia and Thomas. His answer provided a guide,
not just to the kind of judiciary we could expect from a Bush presidency, but
to the tenor of his presidency as a whole.
We are
often reminded that the next president could very well appoint one or two
Supreme Court justices, but no one mentions that, if the next presidency is
anything like previous ones, the person who is elected could have the
opportunity to nominate candidates for perhaps 40% of this country's 857
circuit and district judgeships.
In turn,
these judges have immense influence. While the Supreme Court typically hears
about 100 cases each year, the circuit and district courts hear tens of
thousands of cases across the country. With few cases ultimately reaching the
Supreme Court, judges on appellate courts often have the last word on a slew of
important issues: employment law, the environment, voting rights, national
security policy, civil rights, and yes, possibly reproductive rights and gun
control.
Knowing a
candidate's judicial philosophy might not seem as pressing as knowing his or
her opinions on the war, or the economy, or health care. Yet it's important to
keep in mind that we will be living with the next president's judicial
philosophy for decades. The significance of Bush's impact on the judiciary was
clearly not lost on the four Supreme Court justices who attended the speech. This
may have been Bush's last State of the Union address but, as the justices know,
we will be hearing his voice from the federal bench for years to come.
Tags: Democracy, Fair Courts, Diversity on the Bench, Economic Opportunity, Checks & Balances
By Emily Berman – 01/29/08
The
Constitution was crafted to demand compromise. Not only among the three co-equal branches with their checks and balances, but within the Congress as well. Does this make the legislative process frustrating? Absolutely. Inefficient? To be sure. But by design, accommodation of others' concerns and preferences is a necessary element of successful legislation. That is, as long as the proposed compromise is actually a compromise, and not falsely advertised as such. Unfortunately, Senators Arlen Specter and Sheldon Whitehouse's proposed resolution to the debate over whether or not to
grant immunity to telecommunication companies that allegedly assisted the
National Security Agency (NSA) in warrantless (and potentially illegal) wiretapping is exactly that—false advertising.
In the current debate over modifying surveillance law, immunity is perhaps the most contentious issue on the table. The companies clearly want this immunity, since they are being sued by their customers for helping the NSA listen in on customer phone calls. Not surprisingly, the President, the Director of National Security, and many Senators vehemently believe that immunity is appropriate, even necessary, to ensure that telecoms continue to cooperate with the NSA's surveillance efforts. At the same time, civil liberties and libertarian organizations, as well as many Senators, believe that the telecoms should be held accountable for any unlawful actions that they might have taken, and that any civil liberties violations that may have taken place should be documented by the courts.
In light of these entrenched positions, an amendment to the FISA bill under consideration in the Senate offered by Senators Specter and Whitehouse might, on its surface, seem like a poster-child of American Constitutionalism. Rather than either dismissing the suits entirely or letting the suits go forward in their current form, Specter and Whitehouse want Congress to enact a half-measure. The amendment would substitute the government as the defendant in the suits against the telecoms, allowing the suits to move forward, but holding the government accountable for any wrongdoing. In theory, the telecoms would be relieved of the burden of litigation, and the plaintiffs' suits would survive. Compromise. Accommodation. Democracy in action. Right? Not so fast.
Because when substitution is really immunity by another name, it isn't a compromise at all. Then it's just a misnomer. And that's what the substitution proposal is. If it is enacted, the claims against the telecoms would be dismissed, and in their place the plaintiffs would be permitted to plead only certain circumscribed causes of action against the United States in their stead. The provision thus transforms the plaintiffs' existing claims against the telecoms into complaints against the United States and simultaneously narrows the substance of what those complaints may allege.
So the effect of the "compromise" measure is not (as its name implies) to substitute the government as defendant in the existing suits. Rather, it dismisses entire portions of those suits wholesale, forces the plaintiffs to recast their claims in limited terms, and removes entirely any vestige of the fact that the original suits were about what the telecoms did, not what the government did. In short, the litigation no longer will be about whether the telecoms acted unlawfully. Had the plaintiffs wanted to sue the government over these matters (as some have), they would have done so. Their grievance is against the telecoms, and this proposal eliminates any avenue for redress of that grievance.
If pro-immunity members of Congress can muster the support to let the telecoms off the hook and limit accountability for the surveillance program to the government, they can enact an immunity provision. If, on the other hand, Congress prefers to preserve the possibility of a judicial determination of telecom accountability but finds it appropriate to mitigate the effects of that accountability in some way, it has two options. It can either indemnify the telecoms against adverse judgments in the pending suits (after those suits have been permitted to run their natural course), or it can craft a true substitution provision, placing the government in the shoes of the current defendants and making the government liable for the telecoms' actions.
But to label the Specter/Whitehouse amendment as substitution and offer it as a "compromise" is to pervert the meaning of the word and to obscure the intended transparency of the legislative process.
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Kirsten D. Levingston – 01/28/08
In recent months the dramatic presidential race, with its bipartisan promises of a change-filled future, has made it easy to forget someone is currently occupying the oval office. Tonight, though,
George Walker Bush takes center stage to give his final
State of the Union address. Traditionally the speech marries an upbeat progress report with an inspiring preview of the future. Neither tool gives Bush 43 much to work with. The economy. The war. Neither lends itself easily to
uplifting positive conversation.
And the future -- what future? By now Bush must be ready to borrow a line from horror film master Wes Craven -- "Don't bury me -- I'm not dead." At this point, his primary role in shaping the future is to provide the starting point from which to shift 180 degrees
Here's an idea -- simple, yet profound. Bush should seize the moment tonight by standing in the well of the House and doing something no one expects - he should say "I'm sorry." Over the past eight years he's made decisions that have damaged America's reputation abroad, and even hurt our nation's self-perception. Assuming he neither anticipated nor wanted these consequences, Bush should still regret them. So why not show the country he's not a cardboard cut out, a one-dimensional decider who cannot ‘fess up and learn from his mistakes. Tonight the President can finally demonstrate an essential element of leadership that has been sorely lacking from his eight-year term and is summed up in "The One Minute Apology: A Powerful Way to Make Things Better" by management guru Ken Blanchard and Margaret McBride.
For starters, here are five Bush mistakes crying out for an apology:
- 1. Mis-managing Katrina. The Gulf Coast and the country continue recuperating from the physical, emotional and psychological damage inflicted by Bush's mis-management before and after the storm. Bush should apologize for abandoning the neediest among us.
- 2. Trashing DOJ. The Department of Justice is on the ropes. Suspicious firings of U.S. Attorneys; lack of transparency at the agency's highest levels; and support of questionable anti-terrorism tactics have chipped away at DOJ's stature and undermined its mission. Bush should apologize for his contributions to the Department's demise.
- 3. Abusing Executive Power. Bush's exercise of unilateral authority has warped the balance of power among the branches of government. While a mea culpa now would limit the next president, not Bush, his acknowledgement would help us begin regaining that balance.
- 4. Ruining America's Global Reputation. Here and abroad our nation's reputation is badly tarnished. We're the bully, spoiled rich kid, and know-it-all - rolled into one. Bush should regret his role in diminishing our great nation's standing in the world, and should tell us so.
- 5. Dancing in Public. Bush should be commended for marking Malaria Day in 2007, but owes us all an apology for joining the West African dance troupe on stage and subjecting us to his, er, dancing.
Apologizing for these mistakes won't heal the country or automatically restore the public's trust and the world's respect. But if he truly wants to repair his legacy, admitting these failures would be a good place to begin.
Tags: Justice, Liberty & National Security, Checks & Balances
By Jonathan Hafetz – 01/22/08
Today, a federal judge in Miami sentenced Jose Padilla to 17 years. The sentence may be a personal defeat for Padilla; but it is a resounding blow to the current administration’s contention that the American criminal justice system cannot handle terrorism cases.
In May 2002, the FBI arrested Padilla, an American citizen, at Chicago O’Hare International Airport. The government suspected that Padilla was plotting to explode a “dirty bomb” of radioactive material. But instead of charging Padilla with a crime, the Administration took the unprecedented step of declaring him an “enemy combatant” and imprisoning him without charge at a navy brig in Charleston, South Carolina. The government then held Padilla incommunicado and denied him access to his (or any) lawyer or the courts in which he might challenge the accusations against him. Padilla says he was exposed to extreme cold and subject to extreme sense deprivations and other coercive treatment.
In November 2005, after 3 ½ years of military detention, the government brought terrorism-related charges against Padilla. Two things about the indictment stood out. First, the indictment against Padilla made no mention of any plot to explode dirty bombs or blow up apartment buildings. Unnamed government officials suggest there may have been good reason to keep this seemingly germane allegation out of the indictment, namely, that information about the bomb plot was obtained by torture. Secondly, the indictment came down just two days before the government was due to respond to Padilla’s appeal to the Supreme Court. An obvious inference arises: the government feared that the Court would reject its claim that the president could seize people in the United States, designate them “enemy combatants,” and lock them up indefinitely and without charges.
Today’s sentence highlights why the federal courts are equipped to deal with terrorism cases. Padilla’s sentence was no mere slap on the wrist, but a signal that judges don’t coddle terrorists. It shows there is no need to establish an alternative detention system for “enemy combatants.” The Administration’s approach – and continued insistence on the need for special courts to adjudicate cases against our enemies – is not simply unnecessary. The Administration’s view violates the spirit and principles of American justice. It undercuts our commitment to constitutional safeguards and has undermined our moral credibility throughout the world. Padilla’s 17-year sentence serves as a needed reminder: our existing legal system is well-equipped to handle cases like these. There is neither need nor reason to abandon the principles on which this system was founded and which continue to make American democracy worth defending.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 12/20/07
*Cross-posted from
The Huffington Post
That's what the White House press secretary Dana Perino said concerning the New York Times' reports about White House involvement in the decision to destroy tapes of CIA interrogations.
What was "pernicious and troubling"? Not the decision to destroy them (which almost certainly violated
criminal statutes barring obstruction of justice). Not the fact that
senior White House officials, including former White House counsels
Alberto Gonzales and Harriet Miers, had been involved in debates about
the tapes' destruction. And surely not the fact that the CIA had
flouted both federal laws that criminalize torture in the course of the
taped interrogations.
No, the administration is up in arms that New York Times
suggested that the White House had been "misleading" in its past
statement on the tapes. As the White House notes, it had made no public
comment on the matter, and the Times' sources were anonymous. But these sources did acknowledge Ms. Miers' role, and did not point to the part Mr. Gonzales and other senior officials had played. The Times
didn't hide where it got its information. To the contrary, it was the
first leaks about White House involvement in the tapes' destruction
that were incomplete and hence misleading.
But the administration's feigned indignation, while farcical and
disingenuous, should not distract from the larger question: The need
for a thorough investigation into not only who decided to destroy the
CIA tapes, but also why and how this decision was taken. This
investigation can only be effectively conducted by a special counsel,
who, while appointed by the Attorney General, has critical independence
from political control. The last special counsel, Patrick Fitzgerald,
showed that it was possible to conduct a thorough investigation without
it turning it into a witch-hunt of the kind familiar from the Clinton
years. As the evidence of high-level involvement mounts, there is no
cause for delay.
A special counsel is needed because there remains real uncertainty
as to why the CIA would be so worried into blatant violation of the
law, and why there was "vigorous sentiment" in the White House to
destroy the tapes. As I've explained elsewhere,
the reasons for the tapes' destruction that General Michael Hayden has
given are facially implausible. Yet CIA officials risked obstruction of
justice to eliminate the tapes. And the White House privately urged
their destruction while assiduously declining to order their
preservation (plausible deniabilty, anyone?). And all to what end?
Emily Bazelon and Dahlia Lithwick, in a typically perceptive article,
have suggested that the tapes were destroyed because their release
would have put an end to "all sorts of fuzziness about what is and
isn't torture and whether it is or isn't happening." If the tapes had
been public, they suggest, Michael Mukasey could not have gotten away
with obfuscating on water-boarding. And surely Brigadier General Thomas
Hartman, the legal advisor for the Guantánamo military commissions,
could not have insouciantly suggested that evidence from water-boarding could be "reliable and probative," and thus used in the forthcoming commission trials.
There is, without question, something to this: Consider the story of
Acting Assistant Attorney General Daniel Levin, who was asked to
deliver a legal opinion on whether water-boarding constituted torture.
Showing what can only be termed exceptional devotion to duty, Levin had
himself water-boarded
so he could judge for himself. Unsurprisingly, he concluded afterwards
that water boarding "could be illegal torture unless performed in a
highly limited way and with close supervision."
But would the fuzziness really have dropped away? After all, the
idea of enhanced interrogation measures hardly died when the Abu Ghraib
pictures were released, when though those pictures pictured some of the
measures allegedly still used by the CIA. Indeed, there has been no
public outcry about stress positions, which have been part of the "enhanced interrogation measures."
Further, as Michael Massing points out in the New York Review of Books, there is ample public evidence of the staggering and horrific human cost
of the Iraq war. Literally tens of thousands of innocents have died in
horrific circumstances. Yet, as Massing notes, the public barely blinks
an eye.
Public outrage, then, doesn't seem a sufficiently bad result to
trigger flagrant law-violation. Could it be instead that these tapes
not only showed illegal, criminal interrogation methods, but that the
statements captured on film may have contradicted the White House's
factual claims about other individual detainees or other putative
successes in the war on terror? I.e., that it proved that senior
Administration officials have in fact lied to the public? Could it be
that the tapes have a broader political resonance beyond "merely"
showing illegality, a resonance that shook even the White House? These
are mere suppositions, empty postulates for now. It is impossible to
know for certain without a thorough investigation.
At present, the administration is facing investigations from two
directions. Both are important and necessary. Neither provides a
sufficient remedy.
First, a federal judge in Washington, DC, Judge Henry Kennedy, has ordered a hearing
on Friday on the tapes' destruction. In July 2005, Kennedy ordered the
preservation of interrogation tapes. The tapes' destruction is clearly
grounds for a finding of contempt of court -- and provides important
new evidence that the Guantanamo detainees have indeed been railroaded.
But Judge Kennedy's inquiry into the tapes destruction is
necessarily limited: He can only look at the tapes to the extent they
affect the case before him. (Another case filed on behalf of Abu
Zubaydah himself might lead to a broader inquiry, but that faces
substantial threshold delays and difficulties. But as we know from the
fraught trial of Oliver North in the late 1980s, it is very difficult
for courts to get at systemic problems of law violation within the
federal government. Individual litigation is simply too narrow a tool
to excavate systemic wrongdoing.
Second, House Intelligence Chairman Silvestre Reyes (D-TX) has indicated that he intends to subpoena the CIA officials involved.
Reyes is rightly unimpressed by Attorney General Mukasey's argument
that congressional investigations would interfere with the internal
investigation: During Watergate, Whitewater, and Iran-Contra,
congressional and internal investigations proceeded in parallel with
minimal problems. There is simply no cause for Congress to stay its
hand while the Justice Department acts.
Indeed, there is every reason to be skeptical of the present Justice
Department investigations. After all, the Justice Department apparently
knew of the CIA's interest in destroying the tapes--and yet did nothing
when the tapes were destroyed in flagrant violation of Judge Kennedy's
order (and in violation of an order from Judge Alvin Hellerstein in New
York in a Freedom of Information Act suit filed by the ACLU). News that
former Attorney General Gonzales was involved in deliberations about
the tapes casts another cloud over the credibility of Justice
Department investigations.
Yet congressional investigations are likely to prove insufficient to
get to the bottom of the tapes' destruction. This White House has
consistently played hardball through aggressive use of "executive
privilege" to block congressional inquiries, for instance into the
firing of the U.S. Attorneys. There is every reason to expect that the
White House will stall and run the clock on congressional
investigations by delaying resolution past the 2008 elections.
All of these inquiries are important, but they must be supplemented
within a speedy criminal investigation conducted by a reputable and
independent prosecutor. Justice Department regulations allow the
appointment of such a special counsel in cases such as this one, where
the entire department operates under a cloud. True, that makes Mukasey
get to decide who will investigate, but his decision will be public and
thus subject to public criticism and congressional pressure. As with
the Valerie Plame investigation, it would be very hard to appoint a
crony and get away with it.
In a funny way, the White House has shown the way. Yes indeed,
what's unfurling with the story of the CIA tapes in "pernicious and
troubling": It is showing a deep malaise in the executive branch, an
apparent disregard for the law, and manifest contempt for the public.
It is long past time all that was snuffed out--and a special counsel is
the best tool for the job.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Jonathan Hafetz – 11/15/07
Co-authored with Rebekah Diller
*Cross-posted from The Huffington Post
It's not often you hear Latin at a rock concert, much less the words "habeas corpus."
Yet Bruce Springsteen has invoked this old Latin writ -- which lets
prisoners get into court to challenge their confinement -- in stadiums
across the country on his latest tour.
Habeas corpus is just one of the great American traditions
that Bruce thinks are in danger. We've still got cheeseburgers, French
fries, the Yankees-Red Sox rivalry and motorcycles, he says, but now
America has also become famous for rendition, illegal wiretapping, voter suppression, and the rollback of civil rights.
When Bruce listed this un-American conduct at a recent Madison Square Garden concert, we shuddered with recognition. At the Brennan Center for Justice
-- named for another Jersey guy who cared about working people and the
constitution, the late Supreme Court Justice William J. Brennan, Jr. --
we've been working on just this set of issues in an effort to make good
on America's dual promise of justice and democracy.
Yet increasingly, like the narrator in Springsteen's "Livin' in the
Future" -- the song that followed the speech in concert -- we've seen
the ship Liberty sail away. During the past six years, the United
States has deprived hundreds of prisoners of habeas corpus at
Guantánamo, claiming that just because they are citizens of other
countries they can be locked away forever without a hearing before a
judge.
The United States has also established secret prisons run by the CIA
where people disappear for years without a trace, sometimes never to
appear again. Many of these prisoners have been tortured using
techniques like waterboarding that America used to prosecute as a war
crime.
In addition, the President has claimed the power to eavesdrop on the
private conversations and email communications of American citizens
even though Congress has expressly prohibited him from doing so.
It's all enough to make you think, like the "Livin' in the Future"
narrator, that you hear the "sinkin' sound of somethin' righteous goin'
under."
But, thankfully, as he always does, Springsteen gives us reason to
hope. The song is about living in the future, where "none of this has
happened yet." Like many of Springsteen's best songs, it straddles two
themes. It's an acknowledgment that the unthinkable can happen: we can
wake up one morning in a futuristic dystopia where rights we thought
were sacred have been eliminated. But it's also a wake-up call to make
sure the future he warns about doesn't happen.
The Boss has started by singing about it. Now the rest of us need to do something about it.
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
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