Blog
Liberty & National Security
By Jonathan Hafetz – 04/04/07
*Cross-posted from Balkinization
The Supreme Court this week narrowly declined to hear the habeas appeals of the Guantánamo detainees. The detainees had sought review of the D.C. Circuit's decision detainees in Boumediene v. Bush and Al Odah v. United States, upholding the jurisdiction-stripping provisions of the Military Commissions Act of 2006 (MCA). In a joint statement respecting the denial of certiorari, Justices Stevens and Kennedy explained that the detainees should first exhaust their remedies in the D.C. Circuit available under the Detainee Treatment Act of 2005 (DTA). It is too early to assess the long-term impact of the certiorari denial and, as Marty Lederman points out in his excellent summary similar challenges are expected to reach the Court through DTA petitions. Still,
the Court's refusal to hear the cases provides a window into some
troubling legacies of the Guantánamo detainee litigation.
Nearly three years have passed since the Court handed down Rasul v. Bush,
ruling that Guantánamo detainees have the right to habeas relief and
directing district courts to consider their petitions in the first
instance. Though the Court also suggested in Hamdi v. Rumsfeld, decided the same day as Rasul,
that a lawfully constituted military tribunal might provide this
inquiry in the narrow circumstances of a traditional combatant captured
on an actual battlefield (citing, for example, standard hearings
provided under U.S. army regulations), where no such process was
provided, habeas was expected to fill in the gap. Yet, Rasul has become an increasingly distant memory: as much time has passed since Rasul as between Rasul and the arrival of Guantánamo's first prisoners in January 2002. And still no detainee has had anything approaching his day in court.
It is difficult to see a principled basis for exhaustion, especially after more than five years of detention without charge. As the dissent
from the certiorari denial explained, the D.C. Circuit has already held
that the detainees have no constitutional rights, period. So,
until that ruling is reversed by the Court, the underlying Combatant
Status Review Tribunal (CSRT) process that the D.C. Circuit reviews
under the DTA need not comply with basic constitutional safeguards,
including the right to see the government's evidence, to the assistance
of counsel, to be free from detention based on evidence gained through
coercion, and to compel production of exculpatory evidence.
The
Court's refusal to hear the detainee cases highlights the continuing
absence of meaningful review in the new system of indefinite executive
detention that has taken root in the so-called "war on terror." The CSRT, recall, was concocted nine days after Rasul to help avert district court hearings. It
is so deeply flawed that it would pose a challenge for any court to
uphold under even a crimped due process analysis. (Since the D.C.
Circuit found the detainees had no Fifth Amendment rights, it was
relieved from having to try.). The DTA and MCA, in turn, sought to eliminate the basis for those hearings under the habeas statute, described in Hamdi as providing a "skeletal outline" for adjudicating the factual and legal basis for a prisoner's confinement. What
habeas provides – and what the administration most fears – is the
possibility that a federal judge will examine whether a detainee is
actually an "enemy combatant" (even under the CSRT's virtually
limitless definition), an inquiry that, in many cases, would require
assessing whether any statements were wrung by coercion from the
petitioner or from another detainee.
The Court's refusal to hear appeals in Boumediene and al Odah, then, marks
merely the latest chapter in the United States' ongoing failure to
provide a fair and lawful process to those it imprisons. It
is this failure that has made Guantánamo a lightening rod for criticism
and prompted calls for its closure at home and abroad. (Matters reached
a new low in recent weeks with the nakedly political deal struck in the David Hicks case,
the first "conviction" by Guantánamo's military commission, and by the
release of CSRT records redacting allegations of torture in the name of
"national security"). To be sure, the courthouse doors still remain open to the Guantánamo detainees. But it is difficult to see what it is to be gained by subjecting detainees to more delay and to a process intended, as one MCA supporter put it, to "get the lawyers out of Guantanamo." Guantánamo was designed by the Executive to create a prison beyond the law. The
record of the other two branches in coming to grips with the fall-out
from this ill-advised decision has been disappointing at best,
resulting in the human rights debacle that Guantánamo has come to
symbolize.
Jonathan Hafetz: "Further Thoughts on the Court's Refusal to Hear the Guantanamo Detainee Appeals" (PDF)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 04/02/07
*Cross-posted from The Huffington Post
The Supreme Court this morning said that it would not review the
case of the Guantánamo detainees. Three Justices (Souter, Breyer, and
Ginsburg) voted to grant the detainees a hearing. But you need four
votes for a case to be heard (and five votes to win). Justices Kennedy
and Stevens issued a statement saying there was no reason to set aside
traditional rules that require "the exhaustion of available remedies as
a precondition to accepting jurisdiction over applications for the writ
of habeas corpus." What this means is that the detainees--many of whom
have been detained for more than five years without any form of
independent review--have been denied an opportunity to expeditiously
vindicate their constitutional rights.
Generally, when the
Court decides not to hear a case, this has little consequence. That is
not the case here. The Court's decision not to hear this case is a
major blow to human rights values. It leaves on the books a wretchedly
bad (and intellectually dishonest) opinion from the D.C. Circuit Court
of Appeals, and rewards the Administration's deeply nefarious strategy
of delay and obfuscation around Guantánamo.
Readers who haven't been following the rather complex chain of
litigation around Guantánamo may find some background helpful. The
first group of Guantánamo detainees arrived in Cuba in January 2002.
Some had been picked up off the battlefield in Afghanistan, but many
others had been handed in by Afghan or Pakistan allies, keen for the
$5000 bounty offered by the United States. None of them had been
screened through the battlefield hearings required by the laws of war
and the Geneva Conventions.
The Center for Constitutional Rights and a small group of private
lawyers filed habeas suits on the detainees' behalf, arguing that they
had a right to challenge the factual and legal basis of their detention
in federal court. The government, perhaps aware that many of its
detention decisions could not be defended, threw up a series of
barriers, arguing principally that Guantánamo lay outside the
jurisdiction of the federal courts. In 2004, the Supreme Court rejected
this argument, and it looked like the detainees would get their day in
court.
But the Government hadn't emptied its quiver. In short order, it
managed to finagle the passage of first the Detainee Treatment Act and
then the Military Commission Act, both of which purported to strip the
federal courts of power to hear the cases. In February this year, the
Court of Appeals in Washington DC held that the Military Commissions
Act had indeed done so. In an opinion that rested on a distorted and
partial view of history, the D.C. Circuit held that the Guantánamo
detainees had no constitutional rights. Hence, it dismissed their
five-year-old case.
That was the decision that the Supreme Court could have taken for
review. But didn't. The result? The detainees can have recourse to a
narrow and arguably insufficient channel of review left open by the
Detainee Treatment Act: But they must start from scratch with no
guarantee that the channel of review available will be meaningful--or a
sham.
(The question of how future challenges will proceed is complex. The
government successfully argued that review be confined to an appellate
court, which lacks the power to find facts and depends on the Army for
building a record. The best case scenario might be that the
Court of Appeals requires the military to restructure their
fact-finding procedures. But this is a long shot).
This is bitter news. It is deeply unfair and inflicts grave harms
today on the detainees. Five years after their first detention, many of
the detainees, I am told, are at the end of their psychological
tethers. There have been multiple suicide attempts. Given the endless
and the uncertainty of their confinement, this is hardly surprising.
Detention without end, often for no reason at all, is a kind of torture
(even if it doesn't meet the strict legal definition of that term).
I'm happy to field questions about the decision.
Aziz Huq: "Supreme Court Rewards Administration's Delay and Obfuscation Strategy on Guantanamo" (pdf)
Tags: Justice, Liberty & National Security, Detention & Habeas Corpus
By Aziz Huq – 03/22/07
*Cross-posted from The Huffington Post
We all stand on the shoulders of giants. And few giants loom larger
in the study of "executive prerogatives" than Arthur Schlesinger Jr.,
that great American historian--and that great American--who recently
and sadly passed away.
Let's pause and ponder for a moment what Schlesinger has to say about this notion of "executive privilege" in his magnum opus The Imperial Presidency, and what this means for the subpoenas just authorized (but not issued) today by the Senate Judiciary Committee against Karl Rove and other presidential advisors.
According to Schlesinger--and I am unaware of anyone who has proved
him wrong--the term "executive privilege" can be dated to precisely
1958, when a new Attorney General William P. Rogers used the term for
the first time in American history. As Schlesinger explains at pp.
156-59 of the Mariner Books edition: "What had been for a century and a
half sporadic executive practice employed in very unusual circumstances
was now in a brief decade hypostatized into sacred constitutional
principle."
What light does Schlesinger's wisdom cast on today's subpoenas and
the looming Congressional battle over information, especially
concerning what went on within the White House?
Notice that Schlesinger does not say that it was unknown for
presidents to keep information from Congress, or to claim that they
could information from Congress. Presidents from George Washington have
claimed the power to do so. Their claims have, however, rarely been
tested in a court of law. Rather, as several commentators have noted,
they are played out in the court of political contest between the
branches.
In fact, presidents' power to keep information from Congress is more
uncertain than the President's supporters claim. There are few
definitive judicial opinions on the matter. And, for the most part,
courts have bent over backward to avoid any definite solution to the
conflict. In the most recent high-profile case,
the challenge to the Vice President's secretive "energy taskforce"
(remember when that was the most scandalous thing about this
Administration ?!), the Supreme Court expressly declined the
Government's invitation to dismiss out of hand the effort to cast
sunlight on the task force. Certainly, the Court showed great deference
to the Administration, but there was no suggestion that courts have no
role in determining the balance of secrecy--or that the say-so of the
President or a close colleague is sufficient to end the story.
But the judicial opinions that do exist are fairly clear on a couple of points.
First, presidents can invoke a presumption that some documents can
be kept secret, and this presumption is especially strong in case
involving advice being given to the President. This is the principle
the President relied on in his speech this week.
Second, even when these documents involve communications from the
president himself (or perhaps one day, herself), this privilege
dissipates when the need on the other side of the ledger is
sufficiently great. And there is no requirement of an absolute
privilege short of allegations of criminality. (To the contrary, the Supreme Court in 2004
eschewed such an absolute rule in favor of the executive branch,
explicitly declining to dismiss a civil suit against Cheney for
information).
What does this mean for any subpoenas that may be issued by Leahy, or, for that matter Conyers?
For a start, it is far from clear here that there has been no criminal conduct here, as explained by Marty Lederman here.
Certainly, there is sufficient to justify the kind of careful probing
both Conyers and Leahy suggest. Whether there is enough to warrant
appointment of a Special Prosecutor is a separate and harder question.
Even if there were no suspicion of possible criminal conduct, there
is still reason to query whether the protection of advice to the
President really does justify an absolute privilege against Congress.
Without question, we want executive branch advisors to be candid.
But we also want executive branch advisors to remain within the law.
And we want everyone on the federal payroll to feel some loyalty not
only to the Administration of the day, but to the vision and values of
the U.S. Constitution.
It is, moreover, simply not the case that a presidential advisor has
be assured that his or her counsel will never come to light. No one can
absolutely control the documentation that they provide while working in
the federal government. Criminal investigations can result in the
disclosure of presidential communications. And as the Supreme Court held
in 1977, even former Presidents do not yield an unfettered veto over
what happens to their non-personal papers. That means that advisors in
fact must - and indeed should - operate according to the principle that
their words might one day filter into the public domain.
In fact, the President's justification of executive privilege--which
is the standard justification that the executive branch has given for
fifty years--is surprisingly weak. Perhaps, in other words, we ought to
be recalling Schlesinger's advice, and asking whether we indeed need
this "sacred constitutional principle," or whether we are better of
with more ad hoc and finely tuned devices to manage the flow of
information between the President and Congress.
Incidentally, in the "is-it-funny or scary" category, I note that
President Bush in his address commented that U.S. attorneys are "decent
people. They serve at our pleasure." Having just finished a
book arguing that this Administration has unhealthy inclinations toward
the less savory habits of the British royals, I'm tickled to see Mr.
Bush confirm his monarchical identity.
Now all we need are some corgis.
Aziz Huq: "Subpoenas and the Exercise of 'Executive Privilege'" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances
By Jonathan Hafetz – 03/16/07
*Cross-posted from The Huffington Post
The United States this week released the transcript of the military hearing for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed. Initial accounts in the New York Times and Washington Post
described the "confession of a top leader" and detailed Mr. Mohammed's
participation in a laundry list of terrorist plots. Yet, the confession
of Mr. Mohammed (or "KSM" as he is better known) comes as no surprise.
He has long claimed a leadership role in al Qaeda and in the 9/11
attacks, as the 9/11 Commission documented. The real story is not what KSM said but how much the administration is fighting to keep secret.
Although he has been
in U.S. custody for four years, KSM is one of Guantánamo's newest
detainees. In September 2006, he and thirteen, other "high-value"
terrorist suspects were transferred from secret CIA prisons or "black
sites" to Guantánamo. These CIA prisons were established to implement
various "enhanced interrogation techniques," the post-9/11 euphemism
for torture, and to preclude any possibility that a court would review
the actions of Executive branch officials. As Ron Suskind recounts in The One Percent Doctrine,
interrogators subjected to KSM to water-boarding, a technique that
simulates drowning, and threatened to rape and kill his family. Other "enhanced interrogation techniques"
included "cold cell," where prisoners are left to stand naked in a cell
kept near 50 degrees while they are doused with cold water, and "long
time standing," where prisoners are forced to stand, handcuffed and
with their feet shackled to an eye bolt in the floor for more than 40
hours.
The transfer of the 14 "high level" suspects to Guantánamo was prompted by the Supreme Court's June 2006 decision in Hamdan v. Rumsfeld.
Until Hamdan, the administration maintained that detainees were all
"unlawful combatants" in a global "war on terror," and thus fell
outside any legal protections. In Hamdan, the Supreme Court rejected
that position, ruling that al Qaeda members and other that suspected
terrorists are protected at least by Common Article 3 of the 1949 Geneva Conventions.
This provision establishes a baseline of protections for all detainees,
prohibiting torture, cruel treatment and other abuse. And, the federal War Crimes Act
made officials criminally liable for breaches of Common Article 3.
Faced with a rejection of the legal building-block of its CIA "black
sites," as well as the potential liability of government interrogators,
the President announced in a televised speech to the Nation that he was transferring the remaining secret prisoners to Guantánamo. He then engineered passage of the Military Commissions Act of 2006,
which amended the War Crimes Act to help shield CIA and other officials
from prosecution for past abuses while stripping the federal courts of
habeas review over the cases of detainees held as "enemy combatants" at
Guantánamo and elsewhere.
Since then, secrecy has dominated the treatment of KSM and the
other ex-ghost detainees, just as it has pervaded the detention of the
more than 700 hundred other individuals held at Guantánamo since
January 2002.
To begin with, the Combatant Status Review Tribunal hearings (or
"CSRTs") of these detainees are closed to the press. Ironically, the
military permitted the press to attend the CSRT hearings for Guantánamo
detainees in the past. One would have expected the military to want the
hearings of the "biggest fish" at Guantánamo to be open to the public
to demonstrate the strength of its evidence. And, it is precisely in
such cases, that the public's interest to know is strongest. But,
apparently, that calculus is different when evidence has been gained
through torture.
In any event, opening KSM's CSRT to the press would not have solved
the problems of excessive secrecy nor of the kangaroo-court nature of
the CSRTs themselves where detainees have no lawyer or right to see the
evidence against them. KSM's transcript is heavily redacted because his
descriptions of torture and mistreatment were all deemed classified.
The publicly available record thus contains no discussion of
water-boarding, death threats, or other coercion.
This type of excessive secrecy is hardly unique. In another case,
the government has sought to bar the detainee (Majid Khan) from
discussing his interrogation at a CIA prisons with his own lawyer.
Merely talking about torture, the government's argument goes,
jeopardizes national security (even though the government's use of
coercive interrogation tactics is no longer a secret). Avoiding
embarrassment by suppressing discussion and debate about past
illegality contradicts the essential principles of openness and
accountability upon which a democracy depends.
Yet, there is another, more pernicious consequence to suppressing
the truth. KSM explained at his CSRT hearing that he falsely implicated
other detainees as a result of his abuse. These statements are
corroborated by those of CIA officials who, according to Suskind, say
that KSM later recanted prior statements made under duress. Notably,
Mohammad al Qahtani, a Guantánamo detainee subjected to prolonged sleep
deprivation, sexual and religious abuse, the use of painful stress
positions, and other abuses reportedly implicated 30 other detainees
during his interrogations. How many detainees are being held based upon
statements made by KSM, al Qahtani, and others that were obtained by
torture? If the administration has its way, we will never know because
CSRT procedures deny detainees the right to see the evidence, call
witnesses, or otherwise demonstrate they are being wrongly held based
upon information gained by the rack and the screw.
Reliance upon evidence gained by torture violates our most basic principles. As the Supreme Court put it,
imprisoning people based upon coerced statements is "offensive to a
civilized system of justice." It is also inherently unreliable because
we know from centuries of experience stretching back to the middle ages
that prisoners make false statements to avoid extreme physical or
mental pain. Indeed, that is precisely why U.S. army guidelines
- ignored by this administration - prohibit coercive interrogation
techniques, explaining that such techniques "induce the source to say
whatever he thinks the interrogator wants to hear."
Clearly, the American public cannot expect the administration to
come clean about who it is detaining and why. That is precisely the
reason federal courts must retain their historic power to inquire into
the facts through the Great Writ of habeas corpus. Later this month,
the U.S. Supreme Court will decide whether to review a recent decision by a federal appeals court
[pdf] in Washington, D.C. upholding the recent elimination of habeas
corpus for Guantánamo detainees. Unless these court-stripping
provisions are invalidated, and habeas corpus is preserved, America
will for the first time have sanctioned imprisonment based upon
torture. No nation committed to human rights and the rule of law can
accept that result.
Jonathan Hafetz: "The Cover-Up Continues" (PDF)
Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism
By Aziz Huq – 03/14/07
*Cross-posted from The Huffington Post
In the coming days, commentators will be scrambling for their
thesauruses to find new ways to describe the mounting criticism of
Attorney General Gonzales (try "calumny" or "obloquy" for starters).
But it's worth lingering on one perhaps the most illuminating aspect of
today's news: What the White House wanted to, but didn't, do.
According to internal White House emails,
White House Counsel Harriet Miers suggested in early 2005 that all 93
U.S. Attorneys be removed and replaced. We need to know a lot more
about the scope and detail of this plan, and critically, its relation
to the provision in the March 2006 Patriot Act that allowed the White
House to circumvent both legislative and local controls on
prosecutorial appointments.
Let me explain why. Back in early 2005 [pdf], as President Bush began his second term of office, most U.S. Attorneys were already his appointees. As one email chain disclosed yesterday reveals [pdf],
the White House knew that precisely 77 were Bush II appointees). To be
sure, these appointees had been subject to nomination and confirmation
by the Senate, as required by Article II of the Constitution. But it
had been President Bush who had selected them (just as he selected
Carol Lam, David C. Iglesias, Paul K. Charlton, Daniel K. Bogden, and
the other recently terminated prosecutors). So why even risk the
political contention and fallout of a nationwide purge?
The emails disclosed yesterday are somewhat revealing on this point.
They include correspondence from Gonzales chief of staff Kyle Sampson
in which he "strongly recommend[s]" the use of the Patriot Act
provisions, (page 7 of this document [pdf])
because it would allow the White House to bypass "home-State
Senators"--including, it's worth noting, Republicans--and vest more
control in the Executive.
But why? This is what the emails say: In the Reagan and Clinton
years, U.S. Attorneys were appointed, as per statute, for four years.
But after their four years were up, they stayed on as "holdover"
appointments until the end of the second presidential term. White House
Counsel Harriet Miers wanted to change this: Page 20 of this document [pdf]
says as much. That was the point at which discussion began of a more
limited purge, in which certain prosecutors would be identified not,
seemingly, on the basis of performance strictly understood, but on the
basis of performance understood in narrowly partisan terms.
Quite properly, the "strictly partisan" bit is what has been the
focus of attention. But that's not all that's of concern here.
As the emails reveal, many of the dismissed U.S. Attorneys could
have been dismissed in 2005 as "holdovers." Indeed, changes in the
Senate's composition between 2001 and 2005 might well have allowed a
different, more political, set of prosecutors to be pushed through. Why
then did nothing happen until December 2006?
Nothing happened after an obscure provision was added to the Patriot
Act renewal bill in March 2006, a provision that terminated any
congressional role in the replacement of U.S. Attorneys, that the White
House made its move - the Patriot Act provision. But what connection
does that legislative change have to the discussions between Miers,
Sampson and others?
It was then-Chairman of the Senate Judicary Committee, Senator Arlen
Specter who technically added the provision expanding executive power.
According to Senator Specter, however,
the change was requested by a Justice Department official named Brent
Tollman. The push for legislative change, that is, came from within the
executive branch. And Spector's chief counsel, Michael O'Neill,
inserted the provision that Tollman sought into the legislation without the Senator's knowledge.
(Tollman, incidentally, is presently the US Attorney for Utah. At 36,
he is, I am told, one of the youngest U.S. Attorneys ever. And Joe
Conason has asked pointed questions about O'Neill's background).
Hard questions certainly need to be asked about how partisan
politics entered into firing and replacement of prosecutors. But in
addition, we need to ask to what extent was that process interwoven
with the effort to secure increased presidential power over
prosecutorial replacements? This is, as I have explained elsewhere, an executive cares deeply about executive prerogatives far beyond those that law or history would support.
That Tollman is a sitting U.S. Attorney ought not to make him immune
from congressional inquiry about his past responsibilities. Both
Harriet Miers and Alberto Gonzales too ought properly to know how and
why Tollman came to put in his request. And certainly more must be
known about why O'Neill inserted this provision without his Senator's
knowledge.
In all this we would do well not to lose sight of Miers' original
plan: the firing of all 93 U.S. Attorneys. Note that this remains
possible under the law today, with the President still having
unfettered control over replacements. And even if the law were changed,
a President with an aquiescent Senate could still fire and replace
prosecutors for large political gain. And a blanket purge by this or a
future President would, ironically, be immune from the charges of
political bias that last December's firings provoked.
So the larger and harder question posed today is whether new forms
of insulation from political control are needed for prosecutors (and
other government lawyers, as I have explained here).
This is no easy task, but at a very minimum, it demands rejection of
the simplistic, and ill-conceived, notions of a "unitary executive"
that this Administration has long proffered.
Aziz Huq: "Attorney Firings: What the Whitehouse Wanted to do But Didn't" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances
By Aziz Huq – 03/12/07
*Cross-posted from The Huffington Post
After the summary defenestration of Donald Rumsfeld and the slow martyrdom of Scooter Libby, the New York Times'
call yesterday for the President to fire his Attorney General, Alberto
Gonzales, no longer seems unrealistic. Yet the firing of one person, no
matter now misguided or sub par their performance as the leader of a
critical federal institution might have been, will not solve the deep
institutional problems that are becoming increasingly evident in our
national security policy.
Calls for Gonzales'
exit stem from two seemingly separate scandals, the politicization of
U.S. Attorneys, tasked with making independent prosecutorial decisions
for federal law violations, and from the FBI's misuse of national
security letters, or NSLs. The latter, as Geoffrey Stone explains here
are a sort of subpoena that allows the FBI to secure documents from
businesses without judicial warrants. Not only has the number of NSLs
skyrocketed, their misuse has also gone underreported.
These two stories are, in fact, symptoms of a common problem. Eighty
years ago, President Franklin Delano Roosevelt marshaled a group of
progressive reformers to establish new federal agencies to confront the
Great Depression. FDR's reformers understood the importance of
professionalized, empirically-based solutions to the nation's pressing
problems. Thus, in addition to tackling the nation's financial woes,
they tried, with some success, to create new institutions that would
provide expert, non-ideological solutions to real problems.
Now, the FBI was not always the model of disinterested
professionalism. It was, after all, J. Edgar Hoover, who led the
bugging of Dr. Martin Luther King, Jr., and the efforts to destroy his
name and precipitate his suicide. This was just the tip of a larger
iceberg of abuses. But the Bureau, and other security agencies, was
eventually reined in by Congress at the end of the 1970s, as Fritz
Schwarz and I have explained. Many success controls and oversight mechanisms were set in place.
More so than at any other time, we have seen during this
Administration a concreted effort to demolish these mechanisms for the
FBI and its larger institutional home, the Department of Justice.
For starters, the machinery of justice has been politicized. The
civil rights division of the department of justice, for example, has
been shanghaied into endorsement of dubious redistricting in Texas and
a voter id law in Georgia.
Anecdotally, one hears that hiring in the Justice Department is no
longer done by career lawyers, as it was from the Ford to the Clinton
years. Now it is the responsibility of political appointees.
At the same time that professional standards are under assault,
oversight has been evaded or gutted. It is not only the use of NSLs
that has not gone reported. Both Congress and the public are still in
the dark about a gamut of national security measures that directly
impinge on our civil liberties.
Take, for example, the NSA's warrantless surveillance program.
Earlier this year, the Government announced that it had got that
approved by the FISA Court,
a body of judges that is supposed to screen all intelligence search
warrants. That sounds comforting, until you realize that the
surveillance protocols endorsed by the generally conservative FISA
panels may be just as sweeping and open-ended as the past secret
programs. Or until you learn that the Administration has insisted that
only a handful of members of Congress will be briefed in a limited form
that effectively disables legislative oversight.
Another example of worrying non-disclosure concerns a 2002 law,
introduced by Senator Patrick Leahy, that requires the Attorney General
to disclose any times when the President decides a law is
unconstitutional, and thus should be ignored. From the President's own signing statements,
and from internal Justice Department memos, we know that the President
invokes this power with dangerous regularity, claiming prerogatives far
beyond those the Constitution gives him. And yet the Attorney General
has never filed a report with Congress on the number of times the
executive has declined to comply with federal law.
Combine the assault on professionalism with the refusal of
oversight, and you get a dangerous vacuum: decisions about
investigation and prosecution are no longer made on the basis of
objective criteria. They are used to leverage partisan gain (as
decisions about the Texas redistricting and the Georgia id law
certainly seemed to be). Or they will be made for even narrower,
selfish purposes.
The result is a set of policies that leaves us less safe as well as
less free. Concrete proof of this came a couple of weeks ago in another
report
by the Justice Department's Inspector General (who was also responsible
for the revelations about the NSLs). This report concerns the Justice
Department's prosecution and reporting of terrorism cases within the
United States, and makes disturbing reading. It turns out that various
components of the Justice Department have "decentralized and haphazard"
ways of reporting terrorism cases. In presenting their records to
Congress and the American public, investigators and prosecutors have
been systemically overreporting both the number of terrorism cases in
the United States, and their successes in these cases.
They do this by treating any prosecution that comes from an
investigation vaguely linked with "terrorism" as being a "success" in
the War on Terror. For example, there has been a sequence of airport
sweeps for undocumented workers, most famously one called "Operation
Tarmac." Of course, these operations pulled in dozens of undocumented
workers (mostly Hispanic), who were duly prosecuted: All of these
prosecutions were counted as "terrorism" cases even though there was
never any connection between the individuals concerned and any hint of
terrorism. Yet this large investment of federal resources hasn't
necessarily made the nation any safer - even as it strokes nativist
sentiments.
Of course, the kind of policy makes individual prosecutors look
good. And it bulks up the numbers that Justice reports to Congress at
the end of each year, justifying greater appropriations. But it also
gives a misleading impression of the scope of the terrorist threat in
the United States, which in turn is used to underwrite new, and
harsher, policies.
Until we have a return to real oversight, and a fresh commitment to
professionalism with the Justice Department, we won't be able to get
our counter-terrorism policies straight. We will continue to
misallocate resources and misjudge the threat. This means holding
hearings on how internal oversight within the Justice Department is
done. It means examining the functioning of critical institutions like
the Office of Legal Counsel, which has an important influence on legal
policy. And it means strengthening disclosure laws - and the sanctions
for non-disclosure - to ensure a meaningful conversation between the
ranches of government.
Getting rid of Gonzales, in short, may be satisfying for some in
Congress who have been frustrated by his stonewalling - but it will not
solve these systemic problems, which demands wholesale legislative
reform as answers.
Aziz Huq: "Removing Gonzales Will Not Remove Systematic Problems" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism
By Aziz Huq – 02/01/07
*Cross-posted from The Huffington Post
It's hardly the
fall of the Berlin wall, more a knocking away of a block or two away:
Yesterday, the Justice Department announced that it would allow a
handful of legislators to look at a key document related to National
Security Agency's newly amended domestic spying program.
Like other concessions, today's development is far less than first
appears. Worse, it risks obscuring the truly troubling questions about
accountability and oversight, questions that are becoming all the more
pressing now Congress is making tentative moves to play its proper
constitutional role.
Some background: In December 2005, James Risen and Eric Lichtblau of the New York Times
broke news that the NSA was spying without warrants on Americans in the
homeland. Past Administration denials morphed overnight into vigorous
defense: How dare the Times, or anyone else, even discuss, let alone
question, the illegal and secret tactics that the President chose to
use in derogation of Americans' privacy rights? To do so was, the
Administration implied, to give aid and comfort to the enemy.
Law suits followed, with the ACLU and CCR leading the charge in
suits in Detroit and New York. (Full disclosure: I am counsel on an
amicus brief filed by the NAACP and other civil rights in opposition to
the NSA's spying). In August 2005, Judge Anna Diggs Taylor of the
federal district court in Detroit issued an opinion finding the
executive in violation of the First and Fourth Amendments. What
followed was an avalanche of calumny on Judge Taylor's head, especially from conservative commentators.
The government appealed Judge Taylor's decision to a federal appeals
court, the Sixth Circuit. Just as that case was about to be heard, it
tried to the cut the legs out from under it: A little more than a week
before the hearing, which took place yesterday, Attorney General
Alberto Gonzales announced that the Administration would henceforth
secure judicial warrants from the Foreign Intelligence Surveillance
Court, rather than operating without warrants under a new arrangement worked out with that court.
And even though that court's chief judge openly said there would be no
problem in releasing details of the new arrangement, Gonzales resisted
any disclosure of the "arrangement," leaving grave doubts about whether
the new policy falls within the law.
Hence the relevance of yesterday's announcement: Even as the Sixth
Circuit was pressing Deputy Solicitor General Greg Garre on his
argument that the case should be dismissed as moot, the Administration
was backing off from its "no disclosure" position, and saying that
members of the intelligence committees and certain House and Senate
leaders would be able to see the details of the new arrangements.
Yet what seems to be a comprehensive climb-down both in the courts and in Congress is far less than meets the eye.
Take first the government's apparent retreat from warrantless spying
on Americans: In the Sixth Circuit hearing yesterday, it became quickly
apparent that the government has not backed down from the claim that it
has the power to override privacy laws, not to mention the First and
Fourth Amendments, in the name of national security. By backing off
just as the Court was poised to decide, Garre explained,
the Government wanted to pre-empt a potentially unfavorable ruling
while also preserving its ability to re-start warrantless spying. It
gets, in other words, to have its cake and eat it.
Then consider the decision to disclose to Congress. A year ago, when
news of the NSA's warrantless spying broke, the Bush Administration
said that it had provided "more than a dozen briefings" to Congress. As
I explain at length in a forthcoming book,
the Administration limited its briefing to a small group of legislators
and barred their staff. For busy legislators, this arrangement meant
that they might gain some limited insight into what was happening - but
then they had no way of developing either the facts or the legal bases
of what was being done. That is, the Administration was able to claim
it had disclosed to Congress but at the same time it had deprived
legislators of the opportunity for oversight.
The kind of openness being promised now is exactly the same kind
that was used before to create disclosure-without-accountability.
Hence, unless the legislators concerned push, and make sure their staff
and their colleagues can examine the new "arrangement," there cannot be
the kind of robust debate and interrogation of the Administration's
newfound respect for the law.
Worse, the Administration is insisting that this disclosure does not
create any precedent: It intends to remain as tight-lipped as always,
keeping from Congress the documents and facts that legislators need to
do their job.
Indeed, the document that was disclosed yesterday is one that
implicates the most minimal of secrecy concerns, and raises the largest
red flags when left undisclosed: It is a document not about the facts,
but about the legal regime that governs counter-terrorism operations.
But should the law ever be secret? The argument that terrorists can
learn anything from the abstract categories used to establish the metes
and bounds of a program is absurd, particularly in the wiretapping
context: Laws or legal rules, which are framed in terms of
generalities, have never been thought to "tip off" terrorists - but
they are vital to oversight. How can citizens hold their elected
leaders to account if they don't even know what policies they adopt?
In fact, there is ample historical precedent for forcing the
executive to yield up information even in the national security
context. One of the earliest invocations of executive privilege, was by
President George Washington. It concerned a congressional inquiry into
a failed November 1791 military expedition. Washington eventually gave
the information up (although he insisted on his right to withhold
information). Since then Congress has been vigorous in seeking
disclosure from the executive, especially when there is evidence of
wrong-doing or law-breaking).
Disclosure should not be at the executive's pleasure, as the Justice
Department yesterday suggested: It is a constitutional compulsion,
necessary for Congress to do its job. Rather than accepting piecemeal
revelations at the whim of Mr. Gonzalez, Congress needs not only to
start issuing subpoenas but to start holding hearings and legislating
on new disclosure rules and new structures to ensure meaningful
accountability not just today, but for the future.
Aziz Huq: "Winning Back the Checks and Balances of American Government?" (pdf)
Tags: Justice, Liberty & National Security, Checks & Balances
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