The war on international law

BBC News:

Anti-terror measures worldwide have seriously undermined international human rights law, a report by legal experts says.

After a three-year global study, the International Commission of Jurists said many states used the public's fear of terrorism to introduce measures.

These included detention without trial, illegal disappearance and torture.

It also said that the UK and the US have "actively undermined" international law by their actions.

It concluded that many measures introduced to fight terrorism were illegal and counter-productive.
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The panel of eminent lawyers and judges concluded that the framework of international law that existed before the 9/11 attacks on the US was robust and effective.

It's dangerous for countries to put reactionary anti-terror measures in place without considering their legal and ethical implications; the belief that their national security measures are outside the realm of international law is ignorant. The America's rash actions on this front in the past seven or so years have finally come to a close thanks to the arrival of the Obama administration, leaving us all to breathe a collective sigh of relief. However damage has been done and the United States and the countries that cooperated with such programs as 'extraordinary rendition' must do their best to reverse their actions. Sadly, however, justice will almost certainly evade the victims of the illegal post-9/11 anti-terror programs.

Terror suspect sues torture mastermind

Jose Padilla, who was held in a South Carolina military brig for years under suspicion of terrorism, only to be convicted on lesser charges unrelated to the original accusations, is suing former Bush administration legal mastermind John Yoo.

Chicago Tribune:

In the latest legal contest over the treatment of detained terrorist suspects, attorneys for Jose Padilla filed a suit in a California federal district court this morning against John Yoo, the former deputy assistant Attorney General whose legal opinions formed the basis for Padilla's detention and the interrogation techniques used against him that the attorneys call torture.
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Padilla was eventually tried, and convicted in a federal district court in Miami last year, but on lesser charges that he was part of an overseas terrorist conspiracy-no mention of a planned dirty bomb attack inside the U.S..

The suit filed this morning in the U.S. District Court for the Northern District of California in San Francisco, turns the spotlight of blame on Yoo, the author of a series of legal memoranda known collectively as the "Torture Memos." Drafted in 2002, when Yoo was a deputy assistant Attorney General in the Justice Department, they provided the legal justification for the interrogation techniques used on suspected Al Qaeda operatives that many, from former generals to presidential candidates, have since decried as torture.

"John Yoo is the first person in American history to provide the legal authorization for the instiution of torture in the U.S.," said Jonathan Freiman, an attorney representing Padilla in the suit. "He [Yoo] was an absolutely essential part of what will be viewed by history as a group of rogue officials acting under cover of law to undermine fundamental rights.it never would have happened without the legal green light. That made it possible."

There are few people I'd like to be brought down in a lawsuit over torture than John Yoo. His actions — which not only circumvented the Constitution and established laws over checks-and-balences but broke a handful of international agreements the US was a party too — brought shame to the reputation of America and showed just how much the administration is willing to break the law and disregard human rights in its 'war on terror'. Yoo also had a hand in the administration's domestic wiretapping program.

The battle over gun control goes to the Supreme Court

It's been 68 years since the High Court ruled on gun rights in America. The case over Washington, DC's handgun ban will break the court's silence on the Second Amendment...

The Supreme Court announced today that it will decide whether the District of Columbia's ban on handguns violates the Constitution, a choice that will put the justices at the center of the controversy over the meaning of the Second Amendment for the first time in nearly 70 years.

The court's decision could have broad implications for gun-control measures locally and across the country and will raise a hotly contested political issue just in time for the 2008 elections.

The court will likely hear the case in March, with a decision coming before justices adjourn at the end of June.

For years, legal scholars, historians and grammarians have debated the meaning of the amendment because of its enigmatic wording and odd punctuation:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Gun rights proponents say the words guarantee the right of an individual to possess firearms. Gun-control supporters say it conveys only a civic or "collective" right to own guns as part of service in an organized military organization.

Considering the Supreme Court is majority-conservative, it will probably decide in favor of the gun advocates on this politically charged issue. According to a variety of polls, a majority of Americans — albeit a slim majority — are in favor of stricter regulation of firearms, with roughly one-third favoring the status quo. The implications of a ruling are vast: between 30% and 40% of Americans own guns (see aforelinked polls), and handgun deaths are higher in the United States than many other nations. Personally, I am for gun control, for reasons outlined in this post.

Read more about the case at ScotusWiki.

Congress legalizes Bush's NSA wiretapping program

An inept Congress hands Bush his NSA wiretapping program legalized on a silver platter...
Quiz time! What is the one of the last things Congress did before taking a four-week August recess? Hand more power to the Bush administration and slash away at the US Constitution, of course! Another sting to civil liberties courtesy of the 'war on terrorism' and the American government. Enter the Protect America Act of 2007 (Senate vote info; House votes). All links in this post are, in my opinion, quite important to understanding this complex issue.

Secrecy, spying, and a false 'war'
Why did the United States Congress cave in to (NYT) President George Bush on the expanded wiretapping bill? If this were the Clinton years I might think secret deal or tradeoff (i.e. you pass my stuff and I don't veto yours). However, that system hasn't been as prolific in the relationship between Bush's White House and the majority-Democratic Congress.

One would think this new bill would finally resolve the legality of the Bush administration's controversial domestic surveillance program. How could any self-respecting legislator approve it — let alone a Democrat? The answer appears to be fear, on both sides, especially Democratic, of appearing soft on terrorism.

The Dems have already spent — for better or for worse — so much political energy on symbolic jabs at the Bush administration on the subject of Iraq. But when it comes to something real, impacting, non-symbolic, and relevant, but by no means routine, they give George W. Bush the kind of victory he hoped for. The NSA wiretapping program — revealed in 2005 by The New York Times — has been ruled illegal again and again. It sidesteps an already troubling statute: the Foreign Intelligence Surveillance Act of 1978, or FISA, whose secret judges grant secret warrants for secret searches or wiretaps, secretly. The Bush administration was forced to but the NSA program under the domain of FISA in January, resulting in a still-secret ruling that the program was illegal and placed restrictions, or something of the sort.

But the word 'illegal' is not in Bush's dictionary...
This bill, signed into law by Bush this weekend, validates the illegal wiretapping program that he has even admitted exists (in his own special way, plus it gave him a chance to attack the so-called liberal news media). It has a decent reach too. One of the administration's excuses for its until-recently-illegal eavesdropping program was that the current FISA court only deals with old means of communication, not modern ones like email and calls over fiber optic cable. Naturally, instead of requesting the then Republican-controlled Congress update the legislation (especially for the post-9/11 world, for which which the administration claims the illegal secret programs are essential), the White House decided to launch its own secret programs — legal or otherwise.

Extension of power
So what's wrong with this law just updating FISA to keep up with the times? Well, keeping up with technology is not the only changes this law puts into place...

Just as before, the FISA court only issues the search warrant after the search/wiretap is carried out — troubling, I know. But this legislation goes a bit further by removing more power from the courts, albeit secret ones that almost never take issue with clandestine spying on a domestic level. Now the searches can be carried out at the discretion of the attorney general or intelligence director.

That is all the more troubling considering the political yes-men Bush keeps in his cabinet and staff, and the fact that Alberto Gonzales is known for politically-motivated (in)justice. The horror! And as if the fact that Gonzales can now order secret searches, legally this time, isn't enough to make you a bit queasy for the disregard of the Fourth Amendment of the Constitution, keep in mind that under this new law the AG and head of intelligence have plenty of discretionary leeway when it comes to ordering secret surveillance. Plus, it's all secret; I'd expect nothing less transparent from this administration.

The sorta good news
A positive is that the AG will indeed have his power checked to a certain extent by internal audits, which have proved their worth in the past. That aspect of oversight is one the White House doesn't like.

One sliver of good news is that because of lawsuit threats that only increase under this legislation, telecommunications companies and ISPs are less likely to be bullied into invading their customers' privacy under pressure by the Bush administration. In fact, as I understand it this law removes the shield the White House has desperately tried to use to protect the telcos, which is bad news for the industry. Still, Gonzales has less leeway to invade our phone and internet records, though more to wiretap if the conversation might (emphasis on might) be with someone outside of the United States. Nonetheless, the telcos are as scared as ever of being sued for disclosing private details of their customers, as the Wall Street Journal reported on Monday, as did the NYT (linked above):

The law also gave the administration greater power to force telecommunications companies to cooperate with such spying operations. The companies can now be compelled to cooperate by orders from the attorney general and the director of national intelligence.
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In fact, pressure from the telecommunications companies on the Bush administration has apparently played a major hidden role in the political battle over the surveillance issue over the past few months.

Worse than FISA
FISA was scary enough — but maybe understandable and, to an extent, justifiable — but putting the secret search rights into Bush's political cronies (yes, that's what Gonzales, among others, is) is going more than a tad overboard. Justifying it with national security is puzzling. The least Congress could do is get rid of Alberto Gonzales, which would take a bipartisan effort; many, many Republicans are on board with the idea and the Democrats have been jabbing at it for months. This new law will last six months or so, ending in early February 2008.

Just to make this more confusing, this all ties back to the legality of the 'war on terror':

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).[2]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

So even under FISA the NSA program is questionable. No wait, the White House says it doesn't follow FISA rules because of the 'war on terror' powers given to the president by Congress. No worries: this new law legalizes all that existing wiretapping junk and then some.


There's balance, it's just all tilted towards the White House, (and the only checks are top secret)
In the war against terrorism there's no need to bother with those pesky courts of Constitutional practice anymore, says the White House. Congress seems to have fallen in line with that logic. And this isn't the first time. Remember the horrendous Military Commissions Act of 2006?

Isn't Congress supposed to oversee the operations of the executive? Has everyone forgotten the fundamental idea of checks and balances? With this law Congress has only given more power to the bloated, unpopular, unitary executive Bush administration that a majority of it claims to hate. It also cuts away further at the notion that Americans have rights guaranteed to them by their constitutional, and that civil liberties come with those rights. Freedom trumps security — or at least it should. But in a police state as well as in a certain way modern America (though nothing near a police state), fear rules all.

Soft on civil liberties
If the Democrats are so afraid of being painted as weak on national security, than actually being weak on civil liberties is not a very good fix. Are they more worried of what their opponents think of them and will paint them as than what they are actually doing? That's just sad.

When it comes to the reaction to national security — GWOT and its consequences — the Democrats have been disappointing. Does what your opponents think of you matter more than doing the right thing? Enjoy your recess, Congress. Hopefully you'll come back to Capitol Hill with more brains and balls.

Balkinization offers brilliant legal analysis and opinion on the 'proposed FISA "fix"', as they call it.

This post is over 1,500 words. Eventually I will probably cut it into shorter, more specific posts then expanding them. So don't be alarmed if you see a post with parts of this essay in the future.

The all-powerful executive

Tony Snow, the White House press secretary, said recently that Congress has no oversight authority over the executive. Has he ever even read the US Constitution? Has he ever heard of checks and balances, as described in the constitution? Many in the Bush administration have taken the unitary executive theory to the extreme.

Signing statements have also been used in excess by the president so he can get around the law, without having to use his veto power.

Here's what the president can do:

The president:

* is the Commander in Chief of the armed forces. He or she has the power to call into service the state units of the National Guard, and in times of emergency may be given the power by Congress to manage national security or the economy.
* has the power make treaties with Senate approval. He or she can also receive ambassadors and work with leaders of other nations.
* is responsible for nominating the heads of governmental departments, which the Senate must then approve. In addition, the president nominates judges to federal courts and justices to the United States Supreme Court.
* can issue executive orders, which have the force of law but do not have to be approved by congress.
* can issue pardons for federal offenses.
* can convene Congress for special sessions.
* can veto legislation approved by Congress. However, the veto is limited. It is not a line-item veto, meaning that he or she cannot veto only specific parts of legislation, and it can be overridden by a two-thirds vote by Congress.
* delivers a State of the Union address annually to a joint session of Congress.

The president cannot break American law (wiretapping, FBI Patriot Act use, etc.), international law (Geneva Conventions cum Gitmo, CIA prisons, etc.), sidestep congress whenever he pleases, lie under oath (which I do not think Bush has yet done — ?), or commit any number of obvious and stealthy offenses of the constitution and current law. Clinton lied under oath (i.e. Lewinski); Nixon broke countless laws (e.g. Watergate); Reagan broke plenty national and foreign laws and regulations too (e.g. Iran contra). Bush has done basically all of those except the oath-breaking.

Side-note: while browsing the constitution, I found some interesting sections. I guess most people have forgotten about this one — Article II, Section 4 of the US Constitution:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Why Bush doesn't need to veto often

Signing statements — legal clauses the president can put on legislation exempting his office from the law — have come to the public eye more and more thanks to the Bush administration. This has been a source of worry and helplessness for those of us who do not always see eye to eye with the White House; and it makes Congress look even more impotent to the power of the executive.

The New York Times ran an editorial on Friday about this disgrace:

President Bush is notorious for issuing statements taking exception to hundreds of bills as he signs them. This week, we learned that in a shocking number of cases, the Bush administration has refused to enact those laws. Congress should use its powers to insist that its laws are obeyed.

The Government Accountability Office, a nonpartisan arm of Congress, investigated 19 provisions to which Mr. Bush objected. It found that six of them, or nearly a third, have not been implemented as the law requires. The G.A.O. did not investigate some of the most infamous signing statements, like the challenge to a ban on torture. But the ones it looked into are disturbing enough.

In one case, Congress directed the Pentagon in its 2007 budget request to account separately for the cost of military operations in Iraq and Afghanistan. It was a perfectly appropriate request, but Mr. Bush issued a signing statement critical of the rule, and the Pentagon withheld the information. In two other cases, federal agencies ignored laws requiring them to get permission from Congressional committees before taking particular actions.

The Bush administration’s disregard for these laws is part of its extraordinary theory of the “unitary executive.” The administration asserts that the president has the sole authority to supervise and direct executive officers, and that Congress and the courts cannot interfere. This theory, which has no support in American history or the Constitution, is a formula for autocracy.

Other presidents have issued signing statements, but none has issued as many, or done so with the same contemptuous attitude toward the co-equal branches of government. The G.A.O. report makes clear that Mr. Bush’s signing statements were virtually written instructions to executive agencies to flout acts of Congress. Senator Robert Byrd, Democrat of West Virginia, has said that the report shows that Mr. Bush “is constantly grabbing for more power” and trying to push Congress “to the sidelines.”

Members of Congress have a variety of methods available to make the administration obey the law. They should call the agency heads up to Capitol Hill to explain their intransigence. And they should use the power of the purse, the authority the founders wisely vested in the people’s branch, as a check on a runaway executive branch.

When the Bush presidency ends, there will be a great deal of damage to repair, much of it to the Constitutional system. Congress should begin now to restore the principle that even the president and those who work for him are not above the law.

Kudos to America's best newspaper for the great editorial. I couldn't have written it better myself, which explains why I posted it — I couldn't resist.