The Enemy Among Us

In our "Post 9/11" world, the enemy is diffuse, using our "freedoms" against us in order to threaten our safety and undermine our way of life.  This is why the New York Times must be stopped!

The chairman of the House Homeland Security Committee urged the Bush administration yesterday to seek criminal charges against newspapers that reported on a secret financial-monitoring program used to trace terrorists.

Rep. Peter T. King (R-N.Y.) cited the New York Times in particular for publishing a report last week saying that the Treasury Department is working with the CIA to examine an international database of money-transfer records.

King said he will write Attorney General Alberto R. Gonzales, urging that the nation's chief law enforcer "begin an investigation and prosecution of the New York Times -- the reporters, the editors and the publisher."

"We're at war, and for the Times to release information about secret operations and methods is treasonous," King said...

Reports about the money-monitoring program appeared last week in other leading newspapers. King said they should also be investigated.

When the Times published its report, it quoted the executive editor, Bill Keller, as saying editors had listened to the government's arguments but thought it was "a matter of public interest."

In a letter printed yesterday on the Times Web site, Keller said the administration argued "in a half-hearted way."

He noted that after the report was published, the Treasury Department "trumpeted . . . that the U.S. makes every effort to track international financing of terror. Terror financiers know this, which is why they have already moved as much as they can to cruder methods. But they also continue to use the international banking system, because it is immeasurably more efficient than toting suitcases of cash."

In case there was any doubt as to the motives of the New York Times, Congrssman King told Chris Matthews yesterday on MS-NBC, "the New York Times is putting its own arrogant elitist left wing agenda before the interests of the American people..." Thank God we now know who the true enemy is.

Comments

[Jodi]

If this bullshit has actual legal repercussions will people then go into the streets?

[Alain]

I do not think the Espionage Act applies in this case. But even if they could prosecute the Times, I think most Americans do not like the "Mainstream Media" enough to give a shit. And that is truly demoralizing for someone like myself who believes in pluralism and democracy, and all that other crap we used to learn in civics class.

[Gabriel Sanchez]

There's probably a good case to be made against The New York Times, though I'm not sure if this is the politically opportune time to do it. Still, if they broke the law, they broke the law. I don't know where anybody cooked up the idea that "freedom of the press" means freedom to disrupt the prosecution of a military and/or law enforcement effort. Even if the data mining the government is engaging in is illegal (which it is not), publishing sensitive information is reckless to say the least.

As for people taking to the streets...what's the point? I mean, I'm well aware of the romanticism of activism, but what is it going to accomplish? A few photos in some newspapers and some property destruction. Yeah...that'll show 'em!

[Alain]

Gabriel, since you are the lawyer, I should probably defer to you - but I read the initial NY Times piece, and very little specific information was revealed. So I find it hard to imagine that any laws were broken, or that a military and/or law enforcement effort were disrupted. Isn't it at least conceivable that all of this posturing is merely being done for political gain, and has little or no merit?

[cynic librarian]

Alain, You might wish to see the posting on this story and related comments at Glenn Greenwald's blog. On the issue of prosecuting the press for leaking national secrets, see UofChicago constitutional law professor Geoffrey Stone's posting at the UofChicago Law School blog.

As far as people taking to the streets over this or anything else related to this administration's evil deeds, that seems unlikely. Yet, individual acts of outrage and disobedience have occurred, e.g., Ray McGovern's confrontation with Rumsfeld over Iraq intelligence, the guy who told Bush that he was "concerned" about the lies and deceit, etc.

[Lynn]

The Glenn Greenwald article Cynic Librarian references cites a 2004 campaign speech by President Bush where he proudly announces the government is monitoring business and financial records of suspected terrorists. Since President Bush spilled the beans first, let's prosecute him first via a good old fashioned impeachment.

[Adam Kotsko]

This rhetoric about "being at war" is just the same old bullshit -- when it helps them to keep things secret, then we're at war; when it helps them argue that we aren't bound by international treaties, we're not at war.

Did you know that the last country the US officially declared war on was Romania (as one of the minor Axis powers in WWII)? Trivia for the day!

[Gabriel Sanchez]

Adam,

Your remarks oftentimes lend some real justification to the view "theologians" ought to stay far away from politics.

So, where exactly has the Bush Administration declared the U.S. is "not at war" to specifically get out of an international agreement? Which agreement? When?

Also, please find me the mystical provision that outlines the exact steps a country must take to indeed "be at war", since apparently the U.S. has somehow failed to do that. Oh, and if you going to spit back something you read in The Nation about acts in Congress and other such things, please keep in mind that there is no official requirement that a declaration needs to be made for two or more States to be at war. Recognition of the fact is legally activated by other means.

Anyhow...

The Supreme Court has finally shown that there's sense and morality still in the old grand carcass. On Hamdan v. Rumsfeld, SCOTUS blog reports:

...[T]he Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

One can now imagine (if somewhat utopianly) that Bush et al. will have a warrant issued by the Hague for prosecution for crimes against humanity.

[Matt]

No-name beat me to it, re: "the new paradigm" and Dear Activist Executive's concern for rule of law. Here's The WaPo.

[cynic librarian]

The last comment was from me.

[Matt]

Apparently they're building all sorts of permanent infrastructure down there in Gauntanamo, though (so I hear from a guy who just returned from a visit). So Gabriel will be pleased to hear, it isn't about to be closed down anytime soon.

[Gabriel Sanchez]

Matt,

What makes you think I'm pro-Gauntanamo? Just because I think most people on here who run their mouths on legal issues are grossly ill-informed on a lot of matters hardly makes me a "partisan" for the Bush Administration. All the same, I have Hamdan up in front of me right now, and it looks like a well tailored sophistry on the part of the majority. Of course, if anyone has followed Stevens's opinions as of late, that's hardly surprising. The fractured nature of the concurrences and dissents demonstrates--to me at least--just how "new" a lot of the issues here are; no one judge seems to be in full agreement with any other as to the right reasoning to apply. All the same, the majority view still comes across as more of an "ends based" approach to judicial decisionmaking rather than a "rule based" one.

But, for the record, one point nobody seems to appreciate about Guantanamo is that if those being held there had been captured thirty or more years ago, they would have probably been executed as war criminals. Of course, that means they might have actually gotten a show trial first before the noose was affixed.

[cynic librarian]

Gabriel makes his voice heard on summary execution of the so-called "terrorists" at Guantanamo. As recent studies have shown, most of the detainees are there because they were turned over for cash rewards and many, if not most, were never involved in terrorist activities.

What's ironic now is that after suffering tremendous forms of psychological torture, the Bush administration is now saying it's concerned about repatriating many of these prisoners to their home countries because they'll be tortured there.

[cynic librarian]

PS For an "informed" discussion of the implications of Hamdan, again see Glenn Greenwald's posting:

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

[Gabriel Sanchez]

Cynic,

Which study are you referring to? I'd love to read it.

As for the posting to Greenwald's blog, shouldn't you have said "for a one-sided discussion"? I notice he completely blew by what has to be the majority's shameful "his making" approach to statutory interpretation to grant themselves jurisidction over the case. The DTA effectively foreclosed not only the Court, but all judicial bodies, from hearing the petitions of Guantanamo detainees; yet the Court still managed to do a hack job on the statute and its history in one of the most shameful manners I have personally read in a Court opinion.

His rhetoric about "fatal blows" strikes me as patently silly for the simple fact that the President can indeed go back and get more explicit Congressional authorization. Greenwald seems to be conflating the holding with the Court's dicta. Also, concurrences aren't binding. They may give guidance for some future shifts in the "reasoning" of the Court or tip-off lawyers on new ways to approach issues, but they are not the Court's marching orders.

As for the extension of the opinion against the administration in other matters, I'm more skeptical. The next time the Court is faced with issues of that sort, Roberts will be back on the bench. More importantly, there appears to be more restraint in the opinion than Greenwald wants to recognize. The "victory" is marginal at best.

[cynic librarian]

Reports on "terrorists" at Guantanamo include the following:

• Falsehoods About Guantanamo
  
• Empty Evidence
  
• More than Half of Gitmo Detainees Not Accused of Hostile Acts
  
• Lawyers: Many Gitmo Detainees Not Accused
  
• Original Report

The only thing that is "new" is the relentless tempting of/proximity to fascism.

[Matt]

Gabriel, just out of curiosity...how could this ruling have possibly been any worse for Bush, Inc?

And do you mean to say you're not a fan of Geneva, or international law? Why not?

[Gabriel Sanchez]

Matt,

A few ways it could have been "worse"...

- No dissents. A unanimous Court would send a pretty striking political message about where the President can and cannot go. Presumably, if Roberts had taken part in the opinion, we would have at least seen a 5-4 decision and perhaps, with Roberts's capacity to build coalitions, a different outcome. Because Roberts will be back on the Court in any future case, I'm not sure that this opinion will be anything more than an ideal teaching tool in law school in how courts can get around the lettering of statutes when they find them politically inconvienient.

- The concurrences aren't linear and they're fractured. The fact there were even concurrences indicates that there may be other roads to go on these issues; roads that are not necessarily antithetical to the administration. (Obviously, that will depend on the nature of future cases.) No concurrences would, again, send a clearer signal about what the President can't do beyond the circumstances in this case. That hasn't been sent...yet.

- While I don't advocate this at all, the Court could have stretched its ruling and made their holding more broad. They didn't. The Court has done things like that before and left "trap doors" in its opinions to shift the law in future cases. I don't see that here, at least, not yet. (I'm sure there will be a flood of articles on the opinion in the coming months.)

I have no problem with the Geneva conventions or international law generally. (My last job was in international human rights law and currently, I am working in the area of international bio-security.) I don't believe--generally speaking--international law has a place in U.S. courts. (There are certain noteworthy exceptions of course, such as the Alien Torts Claim Act and the Torture Victims Protection Act.) Also, I don't believe the Geneva conventions give detainees at Guantanamo standing in U.S. courts. The argument for that position are relatively weak.

I am not, however, against some degree of due process for those being held in Guantanamo. I am partial to Justice Kennedy's position that the U.S. exercises practical sovereignty over Guantanamo and for that reason and that reason alone, detainees could be afforded the right to bring habeus petitions in U.S. courts. However, with the passing of the DTA, that option was supposed to be foreclosed. Obviously, the Supreme Court felt it could blow by that one in this instance.

I do not deny that there are moral arguments floating around out there over why the detainees at Guantanamo ought to be afforded due process of law, even due process at the level that American citizens are afforded. I tried to kick around a few myself in a paper I wrote last year, but I found that most of it rested on the one thing most abhorrent to so many in the "enlightened" international legal community: natural law. The capacity for that route to be persuasive anymore on that level is probably gone. What's ironic is that the same left-wingers who shed the biggest tears and cry the loudest cries are the ones who put the bullet in it.

So goes the world.

[cynic librarian]

Several commentaries on today's ruling by SCOTUS in Ramdan v. Rumsfeld assert that the ruling opens up the possibility that US officials can be charged with war crimes, since the torture at Guantanamo and secret "rendition" facilities contravene rules in the Geneva Conventions for treatment of prisoners of war.

Strangely enough, the Bush admin's own Justice Dept. suggested the same thing in 2002:

The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.

The concern about possible future prosecution for war crimes--and that it might even apply to Bush adminstration officials themselves-- is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

digby

WaPo, again

[Gabriel Sanchez]

Cynic,

The "war crimes" stuff is old hat and the detainees at Guantanamo are exempt from the Geneva conventions if they were illegal combatants. (It seems that is the case, though to know for sure, some degree of scrutiny is required.) If any of them are illegal combatants, they are actually war criminals.

As for people being charged with war crimes and whatnot...it's never going to happen. Maybe some rogue judge in Spain can issue a warrant to get his name in the papers, but that's about it. Of course, it'll give people on this blog something to cheer about.

[Matt]

Gabriel, thanks for the response.

I'd be genuinely curious if you cared to expand at all on how the only road to 'due process' here is through 'natural law.'