The unconstitutional, unPATRIOTic Act

It's only appropriate on the sixth anniversary of the 11 September 2001 terrorist attacks (see my 9/11 post) to publish a blog post about the exploitation of such a tragedy for potential political gain.

Last week, a judge ruled portions of the controversial Patriot Act unlawful and conflicting the United States Constitution.

A federal judge...struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

(Read about the FBI's illegal use of the national security letters here.)

Yesterday’s decision was a sequel to rulings by Judge Marrero in 2004 and a federal judge in Connecticut in 2005, both of which enjoined an earlier version of the law. Congress responded last year by amending the law in reauthorizing it.
...
Judge Marrero used his strongest language and evocative historical analogies in criticizing the aspect of the new law that imposed restrictions on the courts’ ability to review the F.B.I.’s determinations.

(Read the decision in full.)

Tying the emotional word 'patriot' to an act that conflicts with many areas of fundamental American democratic law was a brilliant political move by the Bush administration and its Republican allies. It allowed them to label anyone who opposed the act unpatriotic, and even if they didn't label so, who's going to oppose something with the word 'patriot' in its name? That is like opposing the "Kittens are Cute Act" or the "America the Great and Victorious Act".

Its name is yet another one of those slanted catch-phrases — "war on terror", "with us or against us", "cut and run", the "surge" — under the mother of political spin-words: the "war on terror", which has entered most into the mainstream media and the consciousness of a nation, even though it's not a real war and you can't really fight 'terror', or even the intangible ideology of terrorism.

Pardon me, Mr. President

Yesterday Lewis "Scooter" Libby had his 30-month prison sentence commuted by US President George W. Bush. It was announced today that a full pardon is still on the table. Libby was convicted of falsifying evidence and perjury, which included lying to both the FBI and a grand jury looking into the alleged cover-up of the Plame leak. Just as Libby was ordered by a court to stop temporizing and go directly to jail -- no more special treatment -- Bush made his move, sending political shockwaves throughout Washington and forcing many to re-look the investigation that has torn through the White House, even through its most formidable defences from Congressional and judicial oversight, and implicated high-ranking officials. The investigation raised more questions than it ultimately answered.

This partial pardon shows the poor, politicized state of the US criminal-justice system. Libby was a very powerful figure as Vice President Cheney's chief of staff. No doubt the most powerful VP in recent times had a hand in the decision to let Libby not spend even a day in jail. Libby will still have to pay a fine of $250,000 as well as serve two years probation. Administration loyalty has gone too far. Pardons and criminal clemency at the hand of the president were meant for good-intentioned purposes under the constitution. These powers have turned into devices of the political muck of the national government and illustrate the strength of executive interference in the judiciary.

This controversial semi-pardon has been condemned by many. It only emphasizes the conservative hypocrisy over crime: American conservatives are generally seen as being "tough on crime". A liberal viewpoint of this whole confusing affair is best represented by today's New York Times editorial on Bush's commute of Libby's jail time.

Some have said Libby shouldn't have to serve jail time because he was a 'scapegoat' in the Plame affair. Even if that is true (and we'll probably never know) that doesn't excuse the fact he broke the law. On top of that is does not matter in this case who leaked: the investigation was into the cover-up of the leak, not the leak itself. The White House controlled Justice Department couldn't even be trusted to launch an investigation objective even by the least stringent of standards. Some non-conservatives had their various reasons to let Libby -- seen by some as a scapegoat of the affair surrounding the outing of CIA agent Valery Plame and the cover-up that followed -- off the hook.

In Bush's world, personal politic, no matter how skewed, counts more than justice and public interest. The conservatives supposedly tough on crime are cheering at the sentence commute -- huge hypocrisy. The American public in general will not like Bush's move either. So what was his excuse for the partial pardon? He said the jail sentence was "excessive" (no excuse for cutting jail time to zero, though). Even conservative pundit Tony Blankley poked holes in Bush's defense when he said that if Bush though the sentence was really excessive he could cut it in half, curbing it to 15 or so months -- the recommended legal sentence time for the perjury crime in Libby's case. Libby faced a jail term of 25 years; the prosecution in the case, which was decided in March of this year, asked for three. Libby deserved the "severe" (in Bush's words) punishment the court handed him. The White House's curbing of justice -- while legal constitutionally -- is another mark of disgrace on the Bush administration's record.

Student free speech and church-state separation shot down by SCOTUS?

Arguably, two basic tenants of American government were arguably shot down Monday the 25th by the Supreme Court.

The first was student free speech in the case of Morse v. Fredrick (read case summary and court decision (PDF)), better known as the case involving a banner reading "Bong Hits 4 Jesus".

The ruling in the second case hinders 'ordinary taxpayers' from suing the Bush administration over its federal grants to religious groups. That case can be tied to the separation of church and state. In his attempts to court the tens of millions of politically-active evangelicals, aka the religious right, George W. Bush has created many faith-based initiatives that include doling out millions to religious groups in return for services. This is both ethically and constitutionally questionable.

Both of the aforementioned cases deal with ideals — free speech and the separation of church and state — supported by the US Constitution.

Morse v. Fredrick saw a rare alliance between liberal civil liberties groups and conservative Christian organizations in the first student free speech case the Supreme Court has heard in years. Why was the religious right joining hands with the ACLU left? Because it is worried that similar restrictions on student free speech may reach into the realm of religious expression in schools. The court ruled in favor of the school district, which was being sued by a former student who claimed his free speech was trampled upon when he held up a banner with a suggestive drug message at a school sanctioned event and the principal made him take it down and suspended him. The banner was shown when the Olympic torch relay passed through Alaska, where the case originated, in 2002. The teenager was not officially at school that day nor was he on school grounds, which made this case especially legally sticky.

Liberal Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented on the free-speech issue and said the majority seriously harmed the First Amendment by allowing Frederick's punishment for expressing a view the school disagreed with.

"No one seriously maintains that drug advocacy (much less Frederick's ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences," Stevens said.

"Although this case began with a silly nonsensical banner, it ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs," he wrote.

Justice Stephen Breyer said he would have decided the case without reaching the free-speech issue by ruling the principal cannot be held liable for damages.

Breyer's opinion probably makes the most sense. Although the court ruled in 1969 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate", which dealt with protests to the Vietnam war, it also ruled in 1986 that sexually suggestive and obscene speech at an assembly are not covered by the constitution's free speech rights. Also in 1988 the Supreme Court upheld the censoring of school newspapers.

For some legal debate on the ruling, see here.

Other recent cases in which the majority-conservative Supreme Court — often reaching narrow 5-4 decisions — showed its rightward tilt was another (poor) decision on free speech like the restrictions on some political advertising created in the 2002 McCain-Feingold act (although that one can be justified by a judicially conservative look at the constitution and arguably acted in favor of the First Amendment, even though the amendment has its own restrictions...). The right of free speech is waived if one waves a drug suggestive banner during a school-sanctioned event, but not if the corruption of the American politik with money and the filthy smears brought about by many political ads is at hand. The United States needs all the campaign reform it can get.

Today the Roberts court also ruled against affirmative action in some US public high schools. (More on the issue of positive discrimination soon.)

Chief Justice John Roberts, the protege of former conservative Chief Justice Rehnquist, was nominated to America's highest court in 2005.

Scalia is the most right-leaning of the group, supposedly representing the side against liberal 'judicial activism' (former Chief Justice Earl Warren ushered in the civil rights era in the mid-20th century with his progressive 'activism' — when no other branch followed the basic tenants of human rights and the rules inscribed in the constitution, he made sure the Supreme Court did), but in reality picking and choosing parts of the constitution and ignoring the leniency the Founding Fathers intended to give the Supreme Court in its interpretation of the US Constitution as long as they did not rule against what is stated in the constitution itself. Is America really better off with a constitution when it can be ignored by the White House and twisted and misinterpreted by the judiciary?

Thomas agrees with Scalia almost always — together they form a Supreme Court conservative superteam known as Thomas and Scalia! Seriously, often they are grouped together, with Thomas following Scalia.

Stevens and Ginsberg are the most liberal of the bunch.

SCOTUS justices' rough political leanings (more ideologically extreme come before more moderate, e.g. Scalia is more right-leaning than Kennedy)

Conservative
Scalia
Thomas
Roberts
Alito
Kennedy

Liberal
Ginsberg
Stevens
Breyer
Souter

Get out of jail free, like Paris Hilton!

Hey I'm a celebrity so the law doesn't apply to me! Not only do all too many think that, but it is true in many cases.

The story of Paris Hilton. She contributes nothing positive to society, yet gets out of prison early. She should have been in jail, which I'm sure was made cushy for her liking (and it was), for 45 days, which was then cut to 23 days. How many days did she end up spending? Three.

It's not often I talk about these useless celebrities who dominate the national headlines, pushing out more deserving topics like the G8, but it's amazing how American law caters so much to celebrities. The rich and the famous can evade the law in ways not acceptable to the justice system or public safety or fairness.

I will be in LA later this summer, and I don't want to be run over by a drunk and drugged Paris Hilton or Lindsay Lohan. And really the wider issue is that in the United States' large, refined legal system, a celebrity can just evade their right punishment.

Hilton drove drink. Thats a pretty damn serious offense and she has basically gotten away with it. It would have been even worse if she was granted a pardon; considering all the high-profile letters California courts were swarmed with, we should be glad that didn't happen.

As I said I usually don't care a bit about entertainment stories, but when it affects how American justice sees the criminals stories like the Hilton DUI arrest and imprisonment become more serious. Needless to say it has also received far to much press coverage.

Hilton will be under house arrest for the remaining 40 days of her sentence. Considering the size of her mansion that shouldn't be a problem.


NOTICE: This blog is Paris Hilton (and other unimportant persons) -free until another one of them finds a way to receive special treatment on such a level that the story is deemed worthy of a blog post.

8 June UPDATE: A screaming and crying Hilton has been ordered back to jail to finish out her 45 days by a judge. CNN and other US news organizations have complete coverage of the Paris Hilton story, as it is their top story. Apparently a spoiled rich socialite serving out the time in jail she was meant to serve is more important than the G8 summit, Iraq, and American immigration politics combined. Another fine moment for American (celebrity) journalism...

technorati tags: paris+hilton, hilton, paris, paris+jail

How to let an alleged terrorist off the hook...

More horrible American hypocrisy in the 'war on terror' involving a real terrorist — Luis Posada Carriles.

BBC News:

A US judge has dropped immigration charges against a Cuban exile, Luis Posada Carriles, who has been accused of blowing up a Cuban airliner.

Mr Posada, 79, was detained in May 2005 after entering the US illegally, but was released on bail last month.

A former CIA employee, he is wanted in Venezuela and Cuba over the downing of a Cuban airliner in 1976 in which 73 people died. He denies involvement.

US authorities have ruled out returning him to Cuba or Venezuela.
...
His lawyer, Felipe Millan, said the judge had ruled that statements by Mr Posada that were to be used against him had been obtained illegally.
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US justice department spokesman Dean Boyd said: "We're reviewing the decision."

How hard is it to botch immigration charges? Compared to terrorism charges, it's pretty simple. I mean, honestly...

Posada is suspected of committing one of the worst terrorist acts in Latin American history. Apparantly — and this was in the height of the Cold War, where many innocents' blood was spilled at the hands of two great powers fighting via vague proxy — the United States knew ahead of time of the attack.

The Economist:

The Justice Department claims it did everything it could to dissuade the judge from ordering Mr Posada's release. “We can't just unilaterally order a person to be held,” a spokesman said. But critics point out that the government frequently does just that under the anti-terrorist Patriot Act.
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Prosecutors say that he lied about how he returned to the United States in 2005 in order to protect fellow Cuban exiles in Miami who helped smuggle him in by boat. That may prove to be his undoing. But the failure to extradite him may make other countries warier of collaborating with American justice.

For once an almost certainly bona-fide terrorist can be put to justice, but he is not. Is that what America's GWOT symbolizes? Political hypocrisy and looking the other way? That just plays into the hands of the US's enemies — whether 'communist' or Qaeda — and is no doubt more bad PR possibly increasing the severity of attacks against America. The US did enough harm to Latin America in its previous 'war'. Isn't it time for justice before relations deteriorate further, and people like Hugo Chavez gain the upper hand?

Alas, Posada's health has taken a turn for the worse, which probably played a role in the judge's ruling on his release. While it's probably never too late for justice, the US missed its chance on showing its southern neighbors it wasn't all talk and hypocrisy.

This story — like several others of the Cold War — resembles a conspiracy spy movie-like plot, and it looks like our main character may yet get away with the acts he committed. It is the fault for the government back then for not stopping him, or even urging him; and the fault of the government now for not ending this chapter of a story that should have ended long ago.

technorati tags: Luis+Posada+Carriles, united+states, terrorism, war+On+terror, politics, justice, cold+war, cuba

On Hicks and military commissions

David Glazier, a guest-blogger on one of my favorite blogs, a legal blog called Balkinization, wrote an insightful post on the confession of Australian detainee David Hicks and what it means for Hicks and the controversial military commission that tried him.

Australian David Hicks' guilty plea to providing material support to terrorism at Guantanamo Monday should ultimately prove to be a brilliant defense maneuver. The Administration will seek to portray it as a victory for the military commissions, but in the longer run it should produce even greater pressures, both at home and abroad, to terminate these tribunals entirely. Although the confused proceedings lasted only a few hours, that was enough to establish that changes mandated by the Military Commission Act of 2006 (MCA) are insufficient to produce the "full and fair" trials promised by the President when launching this process a half-decade ago.

First, and most importantly, the crime Hicks pleaded to, providing material support to terrorism, is a felony triable in regular federal courts, but not a law of war violation military commissions can lawfully try. The inclusion of this offense in the MCA could allow future commissions exercising hybrid jurisdiction over law of war and statutory offenses to try acts committed after that law was enacted. But retroactive jurisdiction is only permissible over acts clearly violating international law at the time they were committed. Jurisdiction over Hicks, whose conduct dates back to 2001, would be unlawfully ex post facto. The Government bears the burden of proving that this offense violates the law of war, for which I have found no precedent in five years of academic research into military justice and the law of war. If the commission lacks jurisdiction over the charge, any court reviewing the decision per se, or Hicks' subsequent incarceration, should be obligated to set the conviction aside or order his release from custody.

The brilliance of Hicks' plea is that rather than spending months of additional Guantanamo incarceration contesting this point before a tribunal biased against him (more on this below), he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law.
...
There is good reason for concern that Hicks' case is going to further damage perceptions of U.S. adherence to the rule of law although it does not implicate some of the more egregious aspects of post-MCA commission procedure. Those factors include the likelihood judges will admit coerced testimony and potential that sufficient details about classified sources will be concealed from the defense that they are unable to properly challenge its admissibility or credibility.

Although the MCA did improve the commission process, Hicks' treatment suggests that the government is still not credibly committed to the faithful application of the rule of law in Guantanamo proceedings. Any effort to portray Hicks plea as vindication of the tribunal process is thus both shortsighted and erroneous. At the end of the day, Hicks' plea may even hasten their demise.

There have been several such 'confessions' by major detainees, like that of Khalid Sheik Mohammed, and none of them can be taken seriously. Guantanamo and similar US detention facilities used in the 'war on terror' are the site of means of interrogation on unverified enemies of America; often that interrogation includes torture. After being locked up, tortured, and the works, for years, anyone could say anything. No matter how much the White House spins it — and the mainstream media only follows along — in no way are many extracted confessions credible, not least because they are not reported or witnessed by a third party (i.e. someone not in the government).

Good day for Canadian civil liberties

If only with the United States Supreme Court could be this rational...
BBC News:

Canada's Supreme Court has struck down a controversial system that allowed the government to detain and deport foreign-born terror suspects.
The nine judges ruled that the security certificate system - in place since 1978 - violated Canada's Charter of Rights and Freedoms.

The system allowed a suspect to be held indefinitely or deported on the basis of evidence presented in secret.

Though it took long enough for the courts to catch up and attack this highly questionable system. Nonetheless, the system sounds a lot like America's legal FISA courts, which award secret warrants, but are a bit more broad in regards to evidence. The Bush administration, and some administrations prior, have ignored FISA and even the courts and the US Constitution. To be honest this is the first time I have heard of Canada's Charter of Rights and Freedoms.

Overall: a good day for civil liberties [edit: including in Guinea]. Well, except for the whole continued repression of free speech in Egypt issue...

technorati tags: canada, civil+liberties, news, courts, justice, politics, united+states

The tapping point

The New York Times reports:

The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program.

Stepping back on the wiretapping power is another great political PR move by the White House. This latest change in executive policy accompanies Bush’s admission that Iraq was going “unacceptable” and much blame lied with him and the challenge various White House officials (including the president) gave to those who did not support the Bush administration’s Iraq policy to ‘come up with their own plan if they think they can do better’. But don’t get too excited about the allowing of secret judicial oversight for already-illegal wiretapping programs, there are several problems. One is that the wiretapping will continue, another is that it was happening in the first place, yet another is United States Attorney-General Alberto Gonzales’s testimony to Congress, and another is GITMO. Of course, the list of this administration’s civil liberty and human rights violations and issues does not stop there. The authorization by President Bush of the ‘terrorist’ surveillance program in the first place was a vast, vast overreaching of executive power. Just one more thing: [NYT]

The Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications.

And its not very judicial-like to not go case-by-case either, especially when the matter deals with people’s civil liberties.

Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Yeah, don’t get your hopes up that the Bush administration is turning a new leaf on its “war on terrorism” policies. Even with FISA, it is not like the wiretappings are totally kosher, because the FISA courts surely are not. In a society celled a democracy, the United States has a odd way of handling its justice system and its crusades against "bad" people and things (e.g. terrorism, drugs).

There are still numerous — lawsuits pending and active — over the surveillance program, launched by everyone from legal scholars to journalists to the ACLU.

There are two fantastic Balkinization blog posts on this topic and the new developments. From one of them…

First, there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.

Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.

When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

Remember a while back when a federal judge ordered the surveillance and illegal wiretapping to stop? This president's commitments to democracy — and definition of democracy — seems to be quite warped, and no other branch, in his mind, can stop him, neither can the constitution (thus far).

technorati tags: civil+liberties, fisa, bush, justice+department, wiretapping, executive+power, news, politics

Another assualt on the speck of justice for Gitmo detainees

Imagine: you are detained without charge, possibly innocent, possibly a terrorist, possibly just an unlucky Arab, held in horrible living conditions, scared and confused, humiliated, tortured, lacking legal (and human) rights. The excuse for your detention is the United State's so-called war on terrorism, making you and your rights virtual anomalies in the justice system. And now the law firm that is barely able to represent you (if you're lucky) is being attacked by a senior figure in the government that is holding you with disregard to basic human rights and international law. The firm is even being threatened to choose between its lucrative corporate clientele and you, an 'enemy combatant' being represented pro bono — for free.

United States government official attacks major law firms for representing Guantanamo detainees. The New York Times:

The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties.

The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.

“This is prejudicial to the administration of justice,” said Stephen Gillers, a law professor at New York University and an authority on legal ethics. “It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.

“We have a senior government official suggesting that representing these people somehow compromises American interests, and he even names the firms, giving a target to corporate America.”

The same point appeared Friday on the editorial page of The Wall Street Journal, where Robert L. Pollock, a member of the newspaper’s editorial board, cited the list of law firms and quoted an unnamed “senior U.S. official” as saying, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”

In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.”

The role of major law firms agreeing to take on the cases of Guantánamo prisoners challenging their detentions in federal courts has hardly been a secret and has been the subject of many news articles that have generally cast their efforts in a favorable light. Michael Ratner, who heads the Center for Constitutional Rights, a New York-based human rights group that is coordinating the legal representation for the Guantánamo detainees, said about 500 lawyers from about 120 law firms had volunteered their services to represent Guantánamo prisoners.

Lawyers expressed outrage at that, asserting that they are not being paid and that Mr. Stimson had tried to suggest they were by innuendo.

Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton who represented an Uzbeki detainee who has since been released, said: “We believe in the concept of justice and that every person is entitled to counsel. Any suggestion that our representation was anything other than a pro bono basis is untrue and unprofessional.” Mr. Moore said he had made four trips to Guantánamo and one to Albania at the firm’s expense, to see his client freed.

That’s what defense attorneys do: defend defendants in a court of law. It is their job. I guess the Pentagon does not understand that. As a matter of fact, they may well be breaking the law by detaining such people in the first place, and whomever the official who spoke is, he should know his comments only add to the case against the Department of Defense and this Bush administration for the abuses perpetrated in places like Guantanamo Bay. His comments only add to the publicity over the human and legal abuses at GITMO (thanks!) — and other detention facilities, many of them secret. Even though the Pentagon has disowned the official’s comments, there have been other recent incidents when the government criticized those giving legal and humanitarian help to detainees.

technorati tags: GITMO, guantanamo, pentagon, united+States, politics, department+of+defense, law+firm, justice, detainees, human+rights, war+on+terror, bush, law, stimson, news, in+the+news, new+york+times, commentary, current+affairs, usa

Oh how the mighty have fallen: Saddam is dead

Saddam Hussein, former Iraqi leader convicted of crimes against humanity, has been executed this morning for crimes against humanity — just before dawn Iraq time (see Wikipedia). A slew of news analysis and historical tidbits have resurfaced, with the wide view that his death will be of little real significance for the situation in Iraq and the wider Middle East. If anything, Saddam's death outlines how his trial went — and failed — and the effects will be of historical symbolism and the small group of Saddam's Baathist loyalists up in arms while many celebrate. First of all, hanging a person is not the greatest way to start a country's legal system; the ensuing celebrations (from Iraqis and those US government) do not help frame the nation as all-too-well either, as if the violence did not already show Iraq to be in deep, serious strife. The reactions have largely been mixed.

The trial of Saddam Hussein and some of his closest minions was supposed to show Iraqis how bad their former regime had been and how a trial and the legal system should operate. It was all a judicial disgrace. More than a handful of countries seem to think that the execution will — if anything — increase the problems in Iraq. It is not going to have a positive effect, that's for sure. I should say that I am not at all a proponent of capital punishment.
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As I mentioned in my previous post on Saddam's impending execution, Saddam is one of several horrible former heads of state who have died this year. There was an extensive Atlantic Monthly article from 2002 profiling the dictator Saddam, who is to be buried with his brothers.
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What will the hanging of Saddam Hussein accomplish? What was it meant to accomplish — besides killing Saddam, that is. Between 5:30 and 5:45 (AM) local Iraqi time, the hanging took place. The era of Saddam’s domination in Iraq is now definitely over; he ruled absolutely for nearly 25 years before being overthrown in the United States-led invasion of Iraq in 2003. The execution was videoed to quash doubts that the execution was staged, though the actual act of hanging was not photographed (only before and after). “A dark chapter in Iraq’s history has come to an end” said Iraq state media while reporting the execution of Saddam. The immediate aftermath of the execution yielded little reaction in the Iraqi capital city of Baghdad. As word spread of Saddam’s death, some small crowds formed in celebration, a minority mourning the death of their former leader. One can only hope that the book of Saddam is really closed and that no new complications — such as a worse-than-expected reaction from Sunni Iraqis — will spring up as a result of the hanging. Initial media reports said that Saddam was killed alongside his half brother and a judge from his regime, both tried alongside him, though those reports were found to be erroneous. The judge and the half brother will be executed after the Eid holiday.
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Rehabilitation certainly would not have been a judicial option for his crimes, but his execution was not just either — nor is the state or otherwise unwarranted killing of a human being (e.g. not for self defense, etc.). Saddam Hussein: a power figure, a murderer and torturer, a danger to regional security, an overall bad man — but as a human being capital punishment should not have been executed (pun) upon him. I will not miss him, and I hope few or no others do, but that does not mean I am content with his hanging or the effects it will bring to an already destabilized — to say the least — region. Most emotions had already been expressed over the merits and failures in the man of Saddam Hussein, so many of the reactions to the news of his hanging are expected.
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Saddam Hussein’s trial, which started in 2005 and ended earlier this year, was supposed to show Iraqis how their leader had poorly led them; the crimes he had committed. The trial was also supposed to illustrate an atypical example of the criminal justice and legal systems for the fledgling Iraqi government and citizens being introduced to ‘democracy’. The failures of this trial — on a human rights, legal, and political scale — are momentous enough to make this “example” trial have a negative affect on Iraq. It was a botched trial, it is believed that the display of ‘justice’ did not even teach the Iraqis or their government anything about how a justice system is supposed to work. The long list of additional charges against Saddam will either be dismissed or will be filed and brought against him in his absence [post mortem]. The latter would be ridiculous, I think history has already made its judgment and there is no reason for the Iraqi judiciary to further ridicule itself. The decision on the other charges against Saddam and how the government is to go about treating them is yet to be announced. The “new direction” for Iraq was a heavily rhetoricized American political plan which emphasized the positive points that trying and convicting Saddam would bring — namely a national unity against Saddam, making at least some unity. However, that “new direction” outcome was about as good as the neoconservative doctrine that got the US to invade Iraq in the first place. “National reconciliation” was another key political point, which was minimized by the botched trial of Saddam and the subsequent hasty decision to execute him.
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I am reading — among other things — a book called The J Curve. The author, Eurasia Group president Ian Bremmer, wrote an article a while back using parts of the chapter of his book on Saddam's Iraq (which I just finished).

You can learn a lot about a country by looking at the relationship between its stability and its "openness." Stability is a measure of the extent to which a country's government can weather a political, economic or social crisis. Openness is a measure of the degree to which people, ideas, information, goods and services flow freely in both directions across a state's borders and within the country itself.

Some countries (the United States, Germany, Japan and many others) are stable because they are open. Other states (North Korea, Cuba, Iran and others) are stable because they are closed. In each of these closed states, a small governing elite has isolated the country's citizens from the outside world and from one another. Saddam Hussein's Iraq was stable because it was closed. President Bush hopes the new Iraq will be stable because it is open.

Imagine a graph on which the vertical axis measures a state's stability and the horizontal axis measures its openness. Each nation appears as a data point on the graph. Taken together, these data points produce a pattern very much like the letter J. Nations higher on the graph are more stable; those lower are less stable. Nations to the right of the dip in the J are more open. Those to the left are less open.

For a country on the closed left side of the curve to move to the open right side, it must pass through the dip in the J -- a period of dangerous instability. In the early 1990s, South Africa, the Soviet Union and Yugoslavia each descended into this dip. South Africa re-emerged on the right side of the J curve as an open post-apartheid state. The Soviet Union and Yugoslavia came apart and ceased to exist.

Right-side states have a collective interest in helping to shepherd authoritarian left-side states through the unstable dip in the curve toward a stability that is sturdier because it is based on openness. The Bush administration hopes to achieve just this kind of transition in Iraq.

In the spring of 2003, the United States pushed Iraq into the dip in the J curve.

The Bush administration finds itself in this position because it ignored one of the fundamental lessons of the J curve: it's one thing to destabilize an isolated authoritarian state; it's quite another to transform it into a country in which political and social stability is grounded in the free flow of ideas, information, trade and people.

That's something that Iraqis will one day have to do on their own.

The situation in Iraq is worse now than it was under Saddam, there is no question about that.
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One interesting thing is how Saddam stayed in power through his foreign policy disasters, including the invasion of Kuwait in 1991 — which he lost — and the skirmishes with Iran throughout the 1980s (and other dates), namely the Iran-Iraq War — of which no one really won. Hundreds of thousands of Iraqis died as a result of Saddam’s tight and ruthless, and paranoid, stay-in-power policies, his attacks on Kurds and other ethnic and political factions resisting him, and from the stringent sanctions placed on Iraq [by the US]. Saddam lived a life of harming others for his own gain; for his thirst for power and to retain that power. He ruled by fear.
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Now a problem is that Iran is as powerful as ever, extending their Shia influence into Iraq too (Iraq's leading coalition is of the Shia Islam sect, Iran is a Shia Islamic state). Saddam — a Sunni — kept Iraq a major stabilizer in the Sunni-Shia Middle Eastern power vacuum. Now, Iran is almost unchecked in power at a time when it is taunting the international community. Also, the Sunni elite that used to run Iraq were dismissed in disastrous American policies in Iraq, increasing the number of guys with money, power/influence, and guns — three things that those former Baath party elites had. This made the ensuing insurgency all the more strong and make Shia-Sunni tensions build up to a high level of civil war that Iraq is in today.
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The New York Times had an excellent editorial on the subject.

The important question was never really about whether Saddam Hussein was guilty of crimes against humanity. The public record is bulging with the lengthy litany of his vile and unforgivable atrocities: genocidal assaults against the Kurds; aggressive wars against Iran and Kuwait; use of internationally banned weapons like nerve gas; systematic torture of countless thousands of political prisoners.

What really mattered was whether an Iraq freed from his death grip could hold him accountable in a way that nurtured hope for a better future. A carefully conducted, scrupulously fair trial could have helped undo some of the damage inflicted by his rule. It could have set a precedent for the rule of law in a country scarred by decades of arbitrary vindictiveness. It could have fostered a new national unity in an Iraq long manipulated through its religious and ethnic divisions.

It could have, but it didn’t. After a flawed, politicized and divisive trial, Mr. Hussein was handed his sentence: death by hanging. This week, in a cursory 15-minute proceeding, an appeals court upheld that sentence and ordered that it be carried out posthaste. Most Iraqis are now so preoccupied with shielding their families from looming civil war that they seem to have little emotion left to spend on Mr. Hussein or, more important, on their own fading dreams of a new and better Iraq.

What might have been a watershed now seems another lost opportunity. After nearly four years of war and thousands of American and Iraqi deaths, it is ever harder to be sure whether anything fundamental has changed for the better in Iraq.

Toppling Saddam Hussein did not automatically create a new and better Iraq. Executing him won’t either.

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Ethics in America: lethal injection under scrutiny; punishment and religion

I have already stated my opinion on the death penalty. Are the efforts in Florida and California to put a hold on lethal injections capital punishment a turning point in that aspect of human rights in American commonly ignored? Are these judges and others using the lethal injection label of 'inhumane' as a way to get rid of the death penalty once and for all? Shall the death penalty be stopped in those two states vis a vis the specific argument against the death by lethal injection? — we will see.

Executions by lethal injection were suspended in Florida and ordered revamped in California on Friday, as the chemical method once billed as a more humane way of killing the condemned came under mounting scrutiny over the pain it may cause.

If the chemically-initiated killing process is ruled definitely as crossing the boundaries into "cruel and unusual" — which the death penalty already is — then what next? Firing squads (still used some today), electric chair, hanging [by rope, etc.], and things like forced drowning have all been used to enforce the death penalty in the past, and if lethal injection is gone, than what other methods still exist? Will those be as 'humane'? The irony is that those being put to death by the state are going to die no matter what method is used, death is death. I guess society wants to feel better by saying we gave them the best death possible — an excuse (the process for the killing) for the act (the state killing). I just wish public debate will be sparked at least a bit in America over this news, even though chances are it will be far from intelligent, rational debate. An eye for an eye and a tooth for a tooth would leave everyone blind and toothless. Vengeance breeds vengeance; vengeance is not as much as a deterrant as the act of revenge and personal/societal justice that outweighs it. Hopefully reason will prevail — eventually — in the US. Just my usual two cents.

Let's hopefully — in public discourse on capital punishment — focus less on the method of putting the person to death, and more on the act of the state killing someone as a punishment. After all, the judicial process is more for rehabilitation than punishment. And, if one argues the flawed (to say the least) argument that punishment is greater than rehabilitation into proper society, then I might expect that person to be against the death penalty. I would rather die than spend the rest of my life, tens and tens of years, in a concrete and steel holding cell.

The United States is the only developed nation to use the death penalty as a method of punishment. The United States is one of five countries that puts to death people under 18. Bodies such as the European Union and the United Nations have spoken against capital punishment and have strong treaties and laws against it — especially in the case of the EU (which makes sense because Europe's political climate is more to the center than America's relatively conservative-leaning politik).


Still sick; I hope to be better later this week. I have had time, however, to read up on some philosophy, and plan to have more philosophy-related posts soon. I have especially been reading up on my favourite philosopher, John Stuart Mill, who — from what we know — is pro-death penalty (according to a speech he gave). If Mill did believe in the death penalty, then he was wrong. If he changed his mind as he aged and developed views independent of his father's (James Mill) and godfather (Bentham) about the death penalty, then that's good. Of course, as I explain below, times change. One might say that the religion — it's really ideology but bare with me, spirituality plays into the next topic of this post — of Mill was utilitarianism. Not only did Mill's views develop, but so did utilitarianism — which he moved a bit more away from as he grew older.

The Bible, Torah, and Koran all speak for and against the penalty of death, and all say things like killing the nonbelievers or stoning women or homosexuals, etc. In the time these religious texts were written, the death penalty might have — like dictatorships and monarchies (for stability's sake back then) — make more sense then than now. A mix of ignorance or knowledge and just the situation of the times shape the relative relation between what those thousands of years old texts say. Through out those many years, the Bible, for example, has been so modified and was already questionable in the first place that its spiritual messages, let along its historical merit, are highly questionable.

I usually do not quote television scripts, but here is a bit from an episode of The West Wing relating to the death penalty

RABBI GLASSMAN: You know what it (the Torah) also says? It says a rebellious child can be brought to the city gates and stoned to death. It says homosexuality is an abomination and punishable by death. It says men can be polygamous and slavery is acceptable. For all I know, that thinking reflected the best wisdom of its time, but it’s just plain wrong by any modern standard. Society has a right to protect itself, but it doesn’t have a right to be vengeful. It has a right to punish, but it doesn’t have to kill.

That's why I love that show.

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Revised song in memorium of habeas corpus in the US

Here is a modified version of an original song I wrote in this post after the passing of the Military Commissions Act of 2006 mourning the virtual loss of habeas corpus judicial protections.

To be sung to the tune of "Candle in the Wind" by Elton John:

Goodbye habeas corpus,
though I never needed to use you at all
you had the strength to guarantee fair trials
no matter what....

You crawled out of the British law
and you were entered, by name,
into democratic history
and the world was never the same again....

And it seems to me you lived your life
like a candle burning strong,
never waning when the King
tried to blow you out.

And I would have liked to know you
but I have never been imprisoned,
your candle of freedom burned out long...
before your legend ever will....

Goodbye habeas corpus
thanks to those bigwigs in Washington
you cease to protect
the very people in need...

Goodbye habeas corpus,
though I never needed you
you know there still are plenty

who dooo....
And it seems to me,
that King George
got a bit to powerful...
he scared his own people
into trusting him...

And I wish I could have saved you,
but my power is limited.
You truly died, [in America,]
on the 17th of October, 2006.

Maybe we can bring you... back....

Cross posted with my Daily Kos diary.

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