Discourse.net

Nation Mag Claims ICE has Network of Secret Detention Faciilities -- in the USA

In America's Secret ICE Castles, the Nation magazine claims that our immigration police has 186 secret detention facilities scattered around the country.

Among the more hair-raising allegations:

• A year ago, a top ICE official boasted, “If you don't have enough evidence to charge someone criminally but you think he's illegal, we can make him disappear.”
• The 186 are mostly unmarked, and locals don't know about them.
• People sent to these offices are kept off ICE's registry system so that people looking for them cannot find them.
• Although ICE is not supposed to incarcerate US citizens, it has; they (like the immigrants ICE processes) are denied access to counsel.
• At least one US citizen was deported as a result of this system.
• One purpose of the system is to make it more difficult for lawyers to find prisoners before they are deported.

Much of the info concerns activities of the Bush admin; some of it clearly is still happening. The article is maddeningly unclear about how many.

Glenn Beck got a lot of ink a while back for claiming that Obama planned to build a network of secret detention centers in the US in order to lock up Republicans. Who knew that they already existed and were used to deny process of law to suspected undocumented foreigners? Add these to the secret camps in Afghanistan, Lithuania and elsewhere.

We Predicted This Would Happen: Man Jailed in UK for Failing to Disclose Passphrase

UK jails schizophrenic for refusal to decrypt files.

In the UK under the odious Regulation of Investigatory Powers Act (RIPA), if you are served with an order to disclose a passphrase to an encrypted file and you don't, you're guilty.

We saw this coming ten years ago,

Caspar Bowden, director of the Foundation for Information Policy Research, said ministers still had the power to reintroduce such “objectionable proposals” later as regulations. He said two new offences in the bill raised serious civil liberties concerns:

“The bill will give police the power to demand decryption keys from anyone they suspect of possessing them, and failure to hand keys over can lead to a two-year jail sentence.

“Defendants will be presumed guilty of withholding a key unless they can prove otherwise, a likely contravention of the European Convention on Human Rights, and decryption notices will be secret, so it will be impossible to complain effectively if they are used in an oppressive way.”

A “tipping-off” offence could prevent innocent associates from complaining publicly, with a penalty of five-years imprisonment, he added.

The National Council for Civil Liberties took a similar line. Liberty's Director, John Wadham, said :

“These powers are too sweeping, and in some respects problematic. It's difficult to discern quite how an individual could prove that they didn't have a key: you can't prove a negative. This reversal of the burden of proof may well infringe the right to a fair trial. The indefinite gagging order on any individual whose e-mail has been intercepted is extraordinary.”

…

A Home Office spokeswoman denied the bill would mean defendants being presumed guilty. “The bill doesn't reverse the onus of proof, the authorities still have to prove that an offence has been committed for it to get off the ground,” she said.

What Sir Humphrey didn't tell the reporter, of course, is that the relevant “offence” is not disclosing the passphrase, not some underlying crime — of which in this case there is no evidence, although the defendant certainly has issues. But there's evidence that he didn't disclose his passphrase, and that is all it takes to jail him for nine months.

Another American Radicalized

A far-right, Barack Obama-hating Baptist preacher had a bad encounter with the Border Patrol and made a video about it: Baptist pastor beaten & tazed by Border patrol - 11 stitches.

Maybe the guys who who beat and tased him were operating under advice of counsel? (But seriously, I bet it's only a matter of time before Fox or someone says this is proof that Obama is Hitler or something.)

Don't use this as a model with how to deal with a traffic stop: If law enforcement tell you you're under arrest — which must have happened at some point, although when isn't clear — one should get out of the car if told to. Or even if told to before arrest. Sue them later. (It's ok to ask if one is required to do so or if one is free to go. But if the officer says you're required to comply, do so — and get their name.)

And, even absent arrest, if there's probable cause for a search — like a dog alert — then law enforcement have the right under current law to search the car. Problem here is that there's a fairly credible allegation that the 'dog alert' may have been a fake. As the law stands, however, that doesn't give one a right to resist arrest. It sure sounds like it would have been wiser to get out of the car one the police showed up, at the latest. But it also sounds like despite the Pastor's charming belief that the 4th amendment applied, or would have protected him even if it did, there were several unjustified acts that could serve well for claims of police brutality.

Why do the “Border Patrol” get to set up checkpoints 75 miles from the border? Because in United States vs. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court said they could go up to 100 miles from the border. Which includes pretty the entire state of Florida, since most of it is within 100 miles of the coast!

Click for a bigger picture.

It's not just a Florida problem. Here's the ACLU:

Much of U.S. population affected

• Many Americans and Washington policymakers believe that this is a problem confined to the San Diego-Tijuana border or the dusty sands of Arizona or Texas, but these powers stretch far inland across the United States.
• To calculate what proportion of the U.S. population is affected by these powers, the ACLU created a map and spreadsheet showing the population and population centers that lie within 100 miles of any “external boundary” of the United States.
• The population estimates were calculated by examining the most recent US census numbers for all counties within 100 miles of these borders. Using numbers from the Population Distribution Branch of the US Census Bureau, we were able to estimate both the total number and a state-by-state population breakdown. The custom map was created with help from a map expert at World Sites Atlas.
• What we found is that fully TWO-THIRDS of the United States’ population lives within this Constitution-free or Constitution-lite Zone. That’s 197.4 million people who live within 100 miles of the US land and coastal borders.
• Nine of the top 10 largest metropolitan areas as determined by the 2000 census, fall within the Constitution-free Zone. (The only exception is #9, Dallas-Fort Worth.) Some states are considered to lie completely within the zone: Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Rhode Island and Vermont.

Defending the Constitutional Right to Be Anonymous

Today through Thursday I'm participating in an online symposium at Concurring Opinions in which a whole list of us have been asked to comment on Danielle Citron's article Cyber Civil Rights.

There are already a large number of interesting contributions there, and I've just added mine: CCR Symposium: The Right to Remain Anonymous Matters. It may be controversial.

From the Archive of Half-Baked Ideas

I appear to have about 200 partly-written posts I've written over the years but never published. The oldest, dated 2003.10.16, has the headline “Karl Auerbach Thinks the Internet is In Danger” but all it says is,

CaveBear Blog: SCO and Verisign, the Techno Bobbsey Twins?

The second oldest, from 2003.10.18 says,

I've added a graphic that illustrates the current “Threat Level” as based on information uploaded from the Dept. of Homeland Security every two hours. Of course, the whole concept of an official “Threat Level” (whether color-coded or not) is easily one of the dumbest ideas ever to come out of any White House.

One of the goals of a terror campaign is to get the target to waste resources doing silly things. I would like to hear the argument that we have not fallen into that trap.

The graphic didn't last long here - it bothered people as they saw it as an endorsement of the insanity. Now I'd like to hear President Obama or Secty. Napolitano saying they've killed the whole stupid thing.

Thomas Tamm Wins a Prize

Thomas Tamm, whom I wrote about in Wouldn't It Be Nice if Obama Pardoned Thomas M. Tamm? has been awarded a 2009 Ridenhour Prize for truth-telling.

But no words on whether Justice will bring charges or not….

Supplemental Briefs in NSA Domestic Spying Case

For those following along at home, briefs were due today in the rearguard actions relating to allegations of domestic spying by the NSA. After the case was filed, Congress passed a peculiar statute that may have immunized the carriers for illegal wiretapping carried out at government order. The validity of that amendment is currently being litigated, and the supplemental briefs requested by Judge Walker in “In re National Security Agency Telecommunications Records Litigation, Mdl No. 1791” are now available online thanks to James S. Tyre:

• Telecoms' brief
• Government's brief
• EFF's brief

Previous posts at

• Judge Walker's Probing Questions in Telco Immunity Case (Dec. 08)
• EFF Fighting the Good Fight on Wiretap Case Immunity (Nov. 08)

EU Court of Justice Upholds Validity of Data Retention Directive

The EU Court of Justice has upheld the validity of the Data Retention Directive ("Directive 2006/24/EC Retention of data generated or processed in connection with the provision of electronic communications services") in Ireland v Parliament , decided Feb. 10, 2008.

Cobert Nails AMTRAK For Arresting Photographer

This Cobert Report item, Nailed 'Em - Amtrak Photographer had me in stitches.

Except like so much humor in this area it's not so funny when you think about it.

NSA Snooped on All of US -- Especially Journalists

It's important to get to the bottom of this one.

Threat Level from Wired.com, Whistleblower: NSA Targeted Journalists, Snooped on All U.S. Communications,

Just one day after George W. Bush left office, an NSA whistleblower has revealed that the National Security Agency's warrantless surveillance program targeted U.S. journalists, and vacuumed in all domestic communications of Americans, including, faxes, phone calls and network traffic.

Russell Tice, a former NSA analyst, spoke on Wednesday to MSNBC host Keith Olbermann. Tice has acknowledged in the past being one of the anonymous sources that spoke with The New York Times for its 2005 story on the government's warrantless wiretapping program.

After that story was published, President Bush said in a statement that only people in the United States who were talking with terrorists overseas would have been targeted for surveillance.

But Tice says, in truth, the spying involved a dragnet of all communications, confirming what critics have long assumed.

“The National Security Agency had access to all Americans' communications,” he said. “Faxes, phone calls and their computer communications. … They monitored all communications.”

For those who came in late, the Wikipedia article on Russel Tice makes interesting reading.

Kinda Has a 'Smoking Gun' Feel To It

This is fairly amazing: Justice Dept. snubs federal judge's ruling.

In a parting shot, the Bush administration's Justice Department shrugged off a San Francisco federal judge's order to make a classified document available to lawyers for an Islamic group challenging the legality of the outgoing president's secret wiretapping program.

National security officials, not judges, must decide whether private citizens - even those with security clearances - are entitled to see classified material, Justice Department lawyers said in a filing Monday night.

…

At the heart of the case is a document that purportedly showed the government monitored Al-Haramain's overseas calls in 2004 before classifying it as a terrorist group. The National Security Agency accidentally sent a copy to Al-Haramain in 2005, but the Islamic group, a charity that has since ceased operations, returned the document at the agency's request and is barred from revealing its contents.

Chief U.S. District Judge Vaughn Walker ruled Jan. 5 that Al-Haramain could proceed with its case, saying government statements showed that the group had probably been wiretapped.

…

Government lawyers asked Walker's permission to appeal his ruling to the Ninth U.S. Circuit Court of Appeals in San Francisco - an appeal they had already filed without his permission Friday - and did not say explicitly that they would withhold the classified document regardless of his orders.

One to watch to see if the new administration takes a different view. The next hearing is tomorrow.

Dispatch from The War Against Photography

Miami blogger Carlos Miller has the latest dispatch from the war against photography in public places, Amtrak photo contestant arrested by Amtrak police in NYC's Penn Station.

Will the Obama admin calm people down when it comes to seeing terrorists under the bed? It won't be easy.

Wouldn't It Be Nice if Obama Pardoned Thomas M. Tamm?

Newsweek, The Whistleblower Who Exposed Warrantless Wiretaps:

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that “the program” (as it was commonly called within the office) was “probably illegal.”

Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation. For weeks, Tamm couldn't sleep. The idea of lawlessness at the Justice Department angered him. Finally, one day during his lunch hour, Tamm ducked into a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He headed for a pair of adjoining pay phones partially concealed by large, illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work in the morning. Now, as he slipped through the parade of midday subway riders, his heart was pounding, his body trembling. Tamm felt like a spy. After looking around to make sure nobody was watching, he picked up a phone and called The New York Times.

That one call began a series of events that would engulf Washington—and upend Tamm's life. Eighteen months after he first disclosed what he knew, the Times reported that President George W. Bush had secretly authorized the NSA to intercept phone calls and e-mails of individuals inside the United States without judicial warrants. The drama followed a quiet, separate rebellion within the highest ranks of the Justice Department concerning the same program. (James Comey, then the deputy attorney general, together with FBI head Robert Mueller and several other senior Justice officials, threatened to resign.) President Bush condemned the leak to the Times as a “shameful act.” Federal agents launched a criminal investigation to determine the identity of the culprit.

The story of Tamm's phone call is an untold chapter in the history of the secret wars inside the Bush administration. The New York Times won a Pulitzer Prize for its story. The two reporters who worked on it each published books. Congress, after extensive debate, last summer passed a major new law to govern the way such surveillance is conducted. But Tamm—who was not the Times's only source, but played the key role in tipping off the paper—has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.

Wouldn't it be great if President Obama were to pardon Mr. Tamm on his first day in office?

Dream on.

But at least it is possible that the Holder Justice Dept. will drop the investigation.

PS. Why is the GOP making its first attack on Obama via Holder? Partly it's because he has a vulnerability on the Rich pardon — opportunity. But the motive — from the people who waved through Gonzales without a demur — is that the Justice Dept is the office that is most likely to hurt them by turning over some rocks…

Judge Walker's Probing Questions in Telco Immunity Case

Late yesterday Judge Walker issued an order listing 11 questions for both sides to be prepared to answer at today's hearing in the telecoms immunity hearing being held at this moment in San Fransisco. (The case is more formally known as “In re National Security Agency Telecommunications Records Litigation, Mdl No. 1791.”)

These are really good questions — and they don't suggest this is going to be an easy day for either side, but especially for the government.

I would have loved to be there; will be very interesting to hear how it went.

(Previous post: EFF Fighting the Good Fight on Wiretap Case Immunity)

EFF Fighting the Good Fight on Wiretap Case Immunity

The Electronic Frontier Foundation filed a reply brief yesterday in response to the federal government's and telecoms' motion for dismissal or summary judgment in an ongoing lawsuit against the telecoms for their (alleged) participation in illegal warrantless surveillance. The case is captioned “In re National Security Agency Telecommunications Records Litigation, Mdl No. 1791”.

This is the suit that motivated the immunity provisions of the FISA amendments. But they were drafted in a very very odd way that leaves some substantial daylight for challenges. And the great lawyers at EFF have done a first-rate job of running for daylight.

[Disclosure: In addition to serving on EFF's Advisory Board, I had a minor role in assisting the EFF legal team on one of the issues.]

Confused Reports from the Twin Cities

There was at least sporadic violence in the Twin Cities today, as well as a very very heavy police presence including herding demonstrators, firing rubber bullets, and using tear gas. That much is clear.

From reading Campaign Silo and other sources, however, I'm unable to get much of a feel from what's going on.

In particular, it's very hard to sequence disparate reports of overlapping events. I'm pretty sure that by the end of the sequence at least a small number of the demonstrators were behaving very badly — blocking streets, attacking a vehicle. It's impossible to tell whether that was their plan from the start (although in the case of Black Flag, that's what I would suspect), or whether they lost it, as mobs sometimes do, after being pushed around. Reports of the heavy police tactics came in before reports of the violence, but I'm not confident that proves anything.

At least some of these marchers had a valid permit — although they had to go to federal court to get it, as the city fought them tooth and nail. That history certainly raises the question about the extent to how professionally the police would choose to deal with the march they didn't want, although it certainly doesn't answer the question.

Suspicions are not eased by reports of journalists, videographers, and other seemingly innocent parties being detained, gassed and/or arrested.

On the other hand, people barricading streets and smashing things is what police are supposed to arrest people for, and there seems to have some of that.

This NYT report, Broken Windows and Pepper Spray Mark Protests, seems as likely to be accurate as anything when its says,

A large march, which had a permit from local authorities, got underway around 1 p.m. at the Minnesota capitol. Many in the group marched peacefully along the designated route, but not everyone wanted to follow the rules.

Near the start of the march, two women and a young man secured themselves with chains to a car that obstructed traffic.

“I would like a world of direct democracy,” said one man, who gave his name only as Alex, as he was led away by officers.

A larger group of about 200 protesters dressed in black roamed through the streets of downtown St. Paul, shouting and chanting and throwing street signs and concrete planters into the roads. Many of them wore black bandanas across their faces and some wore black balaclavas.

At one point, a police officer grabbed one of the youths. Others wrested him away, then appeared to knock the officer to the ground. On one knee, the officer released an arc of pepper spray that gushed into the air in a thick cloud.

The crowd backed off. A young man scattered bundles of nails secured with duct tape in the street. Over the next 40 minutes or so, the crowd weaved through streets, sometimes pursued or approached by police, but often eluding groups of police officers or sheriffs deputies.

Some members of the group smashed windows while others objected.

“Is this really protesting?” a young woman shouted, apparently in anger.

[Meanwhile…ABC News reports, GOP parties as Gustav rages]

Twin Cities: Will the Courts Step In?

Latest news via blogger Lindsay Beyerstein:

• Breaking: As Police Mass Downtown and 9 More People Are Arrested, Legal Groups File Emergency Motion to Stop Cell and Camera Seizures During RNC
• Habeas Corpus in Ramsey County, MN

The 6 activists arrested during police raids in advance of the Republican National Convention are being held without charge by the Ramsey County Sheriff's Office, the Minnesota Independent reports.

The arrestees are being held on probable cause holds. These holds give the authorities 36 hours to charge them or let them go. Holds are typically used to give investigators more time to gather evidence before filing formal charges.

Holds allow police to charge first and ask questions later. Sometimes that's a good thing. Arrest opportunities are unpredictable. A suspect could slip away in the time it takes to turn a solid suspicion into sufficient evidence to file charges. A probable cause hold buys the police some time to dot the i's and cross the t's.

However, it doesn't take a genius to see how the power to detain people without charge can be abused. For example, unethical police officers have been known to use frivolous holds as quickie jail terms. Piss off the police, spend 3 days in jail—no trial required.

In Minnesota, a probable cause hold can be issued by an officer without review by a judge or a prosecutor. The 36-hour window doesn't include weekends and holidays. So the protesters arrested over the long weekend could be locked up until Wednesday.

The National Lawyers Guild is asking a judge to review these detentions in the hopes of getting the arrestees out sooner.

Imagine if the police could hold these protesters as long as they wanted.

The United States is holding suspects without charge at Guantanamo—many of whom were apprehended without anything approaching probable cause. Of course, Bush administration asserts the right to put off their trials forever.

Scenarios like these illustrate why habeas corpus is vital to the rule of law.

Other resources:

Locals write about events in the Twin Cities (interactive online issues forums):

• St. Paul
• Minneapolis
• Minnesota Politics

More On Twin Cities - Developing

Here's another account, with a statement from the National Lawyer's Guild:

National Lawyers Guild dondemns fabrications of Ramsey County Sheriff Bob Fletcher and preventative detention arrests
National Lawyers Guild Press Release

The Minnesota Chapter of the National Lawyers Guild condemns the coordinated raids carried out by Ramsey County Sheriff Bob Fletcher against citizens planning to engage in demonstrations at the Republican National Convention.

The primary prop used by Sheriff Fletcher in his afternoon press conference, where he displayed items seized in three early morning raids conducted in south Minneapolis, were three buckets of alleged urine. As shown by inventory sheets left by law enforcement, these buckets were seized at 2301 23rd Avenue South in Minneapolis, MN. Two buckets contain grey water and were being used to flush toilets, to conserve water, in the upstairs bathroom. Both were identified in the inventory as “unidentified liquid.” The third bucket, as shown by inventory sheets, was seized from illegal apartment over a garage in the rear. This apartment has been occupied for several years by a person unconnected to the house occupants or the RNC. No bathroom was in the illegal apartment and urine was collected in a bucket. This was listed as “unidentified yellow liquid” in the inventory sheets.

Bruce Nestor, chapter President of the Minnesota National Lawyers Guild, was present at both locations during the execution of the search warrants. “Police seized political literature, cellphones, computers, cameras, personal diaries, and many common household items such as paint, rope, and roofing nails. These items are present in almost any home in south Minneapolis and are not evidence of a crime,” said Nestor. “Seizing boxes of political literature shows the motive of these raids was political. Sheriff Fletcher has staged a publicity stunt, violated constitutional rights, and misrepresented what was seized during the raids,” he said. Another raid was carried out the evening before on a political meeting hall in St. Paul. Inventory sheets for that raid show that no contraband items were taken. Literature, computers, maps of St. Paul, and banners were the vast majority of the items seized.

In addition, during the raids, four persons were arrested without arrest warrants or formal charges. They are being held on probable cause holds for “Conspiracy to Commit Riot,” which will allow their detention until Wednesday, September 3, 2008, at noon. Two other persons were also arrested without warrants, off the streets of Minneapolis, one after she addressed a mass rally of over 200 people at Powderhorn Park. “Conspiracy to commit riot was the charge used against the Chicago 8 after the police riots in Chicago during the 1968 Democratic Convention,” said Heidi Boghosian, Executive Director the National Lawyers Guild. “Guild attorneys defended those charged in 1968 and we will do so again now.”

Something Very Bad is Happening in the Twin Cities

Early reports are flooding in of what sound - at first blush - as police state tactics designed to disrupt and intimidate anyone who authorities think might be protesting — peacefully — at the Republican National Convention.

Some of these accounts are from reputable sources, including both lawyers who were called in to help clients only to be arrrested an handcuffed, and from a group called Founders of I-Witness, which specializes in filming police behavior and that was at the 2004 GOP Convention and took film that cost New York Police seven figures in settlements. Their account is chilling: Armed police surrounded their house and held them hostage for hours while waiting for a warrant to enter.

The house where I-Witness Video is staying in St. Paul has been surrounded by police. We have locked all the doors. We have been told that if we leave we will be detained. One of our people who was caught outside is being detained in handcuffs in front of the house. The police say that they are waiting to get a search warrant. More than a dozen police are wielding firearms, including one St. Paul officer with a long gun, which someone told me is an M-16.

The first thing you do is silence the witnesses. Police are also detaining reporters.

“Food Not Bombs” — so far as I know a peaceful group — was also raided. Jane Hampsher of firedoglake has an account and links to a video..

See Glenn Greenwald for more, with updates.

I believe some people got quite upset when similar tactics were used recently in China to prevent demonstrations at the Olympics.

Land of the Free

At JFK Airport, Denying Basic Rights Is Just Another Day at the Office.

There is a cancer eating the Republic. This is clearly part of the cure. But is this? We have to hope.

One Million Suspected 'Terrorists'

That didn't take long: Terrorist Watch List Hits One Million Names.

In comparison, it took us two centuries to get to one million lawyers (play Tom Paxton snippet).

Senator Bill Nelson Lets Us Down Again, This Time on FISA

Senator Bill Nelson (“D”-FL) voted against stripping telco immunity from the FISA bill. That's why they wouldn't give me a straight answer the other day — they were planning the sellout all along. (See Calling My Senator About FISA [Updated]).

I am in no way surprised. This is the same Bill Nelson who voted for torture, after all. (See Senator Bill Nelson Votes for Torture.)

Florida, and the US, deserve better.

(It goes without saying that soon to be one-term Senator Mel Martinez (R-FL) also voted to support the 'if the President says so, it's legal' version of liability.)

Update: the vote was 32-66, so they had plenty of company. Cf. Amanda Simon, ACLU Blog, FISA Vote, or How I Lost Complete Faith in Our Legislative Branch.

Vote tally on Dodd-Feingold-Leahy below.

YAYS 32 NAYS 66

YAYS:

Akaka
Baucus
Biden
Bingamon
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Clinton
Dodd
Dorgan
Durbin
Feingold
Harkin
Innouye
Kerry
Klobuchar
Lautenburg
Leahy
Levin
Menendez
Murray
Obama
Reed
Reid
Sanders
Shumer
Stabenow
Tester
Whitehouse
Wyden

NAYS:

Alexander
Allard
Barasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Dominici
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchinson
Inhofe
Innouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Nelsen (NB)
Nelson (FL)
Pryor
Rockefeller
Roberts
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Wicker

Be a Strange Bedfellow

I'm one of the 'strange bedfellows' — a coalition that spans the political spectrum — supporting accountability for illegal spying by this administration and its telco helpers.

You can be one too, by clicking below.

Meanwhile, Glen Greenwald, who has a lot more stamina that I do, continues to document and explain the whole catastrophe. The latest, which discusses plans is here. In it he explains the Strange Bedfellows,

…the campaign we have been conducting is intended to be only the first step — not the last — in taking a stand against the endless erosion of core constitutional protections and the rapidly expanding Lawless Surveillance State. We have created a new organization, Accountability Now, to conduct the ongoing battle to target and remove from power those who enable these abuses; to force these issues into our political discourse; and to prevent the Washington Establishment from continuing to trample on basic constitutional protections with impunity.

The first campaign of this new organization is the formation of Strange Bedfellows, the ideologically diverse coalition we have formed with liberals, libertarians and others who are devoted to the preservation of our core constitutional liberties and the rule of law. …

To initiate and fund our new campaign, we have teamed with the individual who was behind the innovative and extraordinarily successful Ron Paul “money bombs” — Trevor Lyman, along with Rick Williams and Break the Matrix — to plan an “Accountability Money Bomb” for August 8. That is the day in 1974 when Richard Nixon was forced to resign from office for his lawbreaking and surveillance abuses. That day illustrates how far we have fallen in this country in less than 35 years, as we now not only permit rampant presidential lawbreaking and a limitless surveillance state, but have a bipartisan political class that endorses it and even retroactively protects the lawbreakers.

Calling My Senator About FISA [Updated]

I called Senator Nelson's (D-Fl) office today to find out what his position was on the Dodd-Feingold-Leahy Amendment to FISA. (I used the great tool set up to help voters make these FISA calls as an experiment and it worked perfectly. Try it, it's free.) The amendment would remove the immunity provision from the bill, making it less bad in one respect, although still bad in others.

Only problem is, the two staff people I spoke to said they did not know how the Senator plans to vote. It seems strange to me that on a matter of such public interest neither the front-line staff nor the person who happened to be in the press office (not the actal press secretary) would know, but there you have it. Maybe Floridians have not been calling in droves. (This is your chance, guys.)

The staff were very charming, took my number, said they'd try to find out and would call me back.

Interestingly, saying I was a law professor got not a spark of reaction. But mentioning that I have a blog…that got their attention.

Update: I received the following email:

Nelson supports new intelligence-gathering legislation that enables the U.S. to get the information it needs to stop terrorist plots - as long as the final version contains protections for our civil liberties, such as requiring a court order before any American is targeted for eavesdropping.

Previously, in committee, he offered an amendment to deny telephone companies immunity for prior acts. That was defeated.

Subsequently, on the Senate floor, he offered an amendment to have the FISA court review requests for immunity. That amendment was defeated, too.

And, last week he co-sponsored an amendment that would allow the federal courts to determine whether the telephone companies acted in good faith and with reasonable belief that compliance with the government requests was lawful. The Senate has not acted on the amendment.

The current version of the legislation requires federal courts to review legal opinions that the telephone companies received from the government. Nelson will support that approach.

Mara Sloan
Press Assistant
United States Senator Bill Nelson (D-FL)
716 Hart Senate Office Building
Washington, D.C. 20510

Does that answer the question? And if so, is that a “no” or a “yes”?

Dutch MEP Sues US To Release Her Airport Blacklist File

In How America is snooping on YOU … and may soon be snooping a whole lot more, “This is London” describes a lawsuit by Dutch Liberal MEP Sophie In’t Veld in which she seeks to find out why the US government keeps pulling her over for security searches at airports.

The article claims that this is the first lawsuit of its kind. Can that really be so?

Obama Acts Like a Coward

I think Obama will be great on foreign policy. On domestic policy, not so much.

Today he as good as sold out the fight against FISA's immunity provisions. While the statement below might sound OK, it's failure to say that the bill is unacceptable in its current form, or to say 'filibuster' amounts to a surrender to the fix put in by the leadership. (And, no, this bill is not in any noticeable way an improvement over its predecessor draft. The judicial review provisions are a sham — they don't test for the legality of any wiretapping, they don't test for the legality of any request by the administration to engage in wiretapping, they don't test for whether the recipients of those requests thought or had reason to think that the requests were legal — no, all the court will test is whether the administration says that it made a request. Big deal.)

As one person put it to me, “Obama's national security state is going to be so much cooler than McCain's.”

The full text of Obama's weasly statement is below.

Update: Jack Balkin says, from Obama's perspective, what's not to like?.

Statement of Senator Barack Obama on FISA Compromise

“Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

“That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

“After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act.

“Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

“It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.”

Democratic Leaders Join GOP In Selling Out the Constitution

The Democratic Congressional leadership has endorsed the new FISA sellout. (Text here; instant analysis by EFF here.)

The ACLU is enraged. See ACLU Blog: Because Freedom Can't Blog Itself: Official Blog of the American Civil Liberties Union » This Spade is a Spade: FISA Deal Is Bunk

You should be enraged too. Perhaps you might even consider a donation to the fund that seeks to punish elected officials who should know better (starting with House Majority Leader Steny Hoyer), the Act Blue PAC vs. Retroactive Immunity, also known as the Strange Bedfellows Fund, as it's attracting support from a group ranging from progressives to supporters of Ron Paul.

Our only hope in stopping this is going to be the Senate. Is Obama going to step out to lead on this? (Meanwhile see the statement by Sen. Feingold.)

I have no idea why our congressional leaders feel a need to be so craven on this issue. Their position doesn't even poll well. It's as if they are suffering from some sort of battered person syndrome or something.

TSA Announces Policy of Viewpoint Discrimination

TSA: TSA Announces Enhancements to Airport ID Requirements to Increase Safety

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

Under the law that created TSA, the Aviation and Transportation Security Act, the TSA administrator is responsible for overseeing aviation security (P.L. 107-71) and has the authority to establish security procedures at airports (49 C.F.R. § 1540.107). Passengers that fail to comply with security procedures may be prohibited from entering the secure area of airports to catch their flight (49 C.F.R. § 1540.105(a)(2).

This initiative is the latest in a series designed to facilitate travel for legitimate passengers while enhancing the agency's risk-based focus - on people, not things. Positively identifying passengers is an important tool in our multi-layered approach to security and one that we have significantly bolstered during the past 18 months.

I take this to mean that a person who says, “I have not lost my ID but contest your right to demand it” will be deemed “uncooperative.”

If that supposition is correct, then this is both unconstitutional and underhanded.

It is unconstitutional because — if my supposition is correct — it is viewpoint discrimination: the same person will get different treatment based on whether they acknowledge in principle that they don't have rights.

It is underhanded, because TSA has prevailed in a number of court cases, not least Gilmore v. Gonzales, based in part on their saying that people who wouldn't show ID could still fly, they'd just be searched more. (“Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options. “)

Having won the cases, they are doing a takeback.

On the other hand, I guess they get one point for being honest about it.

(spotted via Emergent Chaos, Praises for the TSA)

FBI Recruiting Infiltrators for GOP Convention Protestors

This gets complicated. According to - City Pages (Minneapolis/St. Paul), Moles Wanted, the FBI’s Joint Terrorism Task Force is recruiting people to infiltrate anti-GOP protest groups in the run-up to the upcoming Republican convention.

The law is clear that police may attend public meetings undercover to see what people are up to. And of course undercover operations in private settings are also legal, although there should be guidelines as to when they are appropriate. And of course it's good citizenship for private citizens to report crimes when they witness them.

But this story raises a number of serious questions.

First, there's this: the FBI told the potential informant that he “would be compensated for his efforts, but only if his involvement yielded an arrest. No exact dollar figure was offered.”

In other words, the FBI is recruiting unpaid volunteers to become infiltrators. And they get paid only if they give information leading to an arrest. Which creates a serious incentive for agents provocateurs. This is not a sensible policy at all. It is in fact a very bad idea.

Second, there's the weird description of the targets — “vegan potlucks” — and the general sense of massive overkill, which contributes to the chilling effect discussed in the article.

I also wonder whether a similar effort is underway for the Democratic convention (not that two wrongs make a right). If it is not, would that be because of a political bias in the FBI, or a considered judgment that McCain is more likely to be a target of violence than the first Black (or female) major-party Presidential candidate?

Bottom line: we don't want violence, but we also don't a stifling police presence that — whatever its motives — feels like an attempt to stifle dissent.

And we especially don't want to live in an informer nation in which people with no training and who knows what personal agendas are offered a chance to make money by stirring up trouble and then phoning the FBI.

How does one equate vegan potlucks with this restriction on permissible terrorist investigations?

Mere speculation that force or violence might occur during the course of an otherwise peaceable demonstration is not sufficient grounds for initiation of an investigation under this Subpart, but where facts or circumstances reasonably indicate that a group or enterprise has engaged or aims to engage in activities involving force or violence or other criminal conduct described in paragraph (1)(a) in a demonstration, an investigation may be initiated in conformity with the standards of that paragraph. [her emphasis]

Civil Liberties Blog: 'Don't Tase Me, Bro!'

I may be the last to know of it, but Don't Tase Me, Bro! is a nifty web site with lots of depressing anecdotes about regular folks having their civil liberties trampled.

Today's is 7 Year Old Boy Removed from Father and Placed in State Custody Over mistaken Order of Hard Lemondade.

If you watch much television, you've probably heard of a product called Mike's Hard Lemonade.

And if you ask Christopher Ratte and his wife how they lost custody of their 7-year-old son, the short version is that nobody in the Ratte family watches much television.

The way police and child protection workers figure it, Ratte should have known that what a Comerica Park vendor handed over when Ratte ordered a lemonade for his boy three Saturdays ago contained alcohol, and Ratte's ignorance justified placing young Leo in foster care …
The 47-year-old academic says he wasn't even aware alcoholic lemonade existed when he and Leo stopped at a concession stand on the way to their seats in Section 114.

“I'd never drunk it, never purchased it, never heard of it,” Ratte of Ann Arbor told me sheepishly last week. “And it's certainly not what I expected when I ordered a lemonade for my 7-year-old.”

But it wasn't until the top of the ninth inning that a Comerica Park security guard noticed the bottle in young Leo's hand.

“You know this is an alcoholic beverage?” the guard asked the professor.

“You've got to be kidding,” Ratte replied. He asked for the bottle, but the security guard snatched it before Ratte could examine the label. …

But it would be two days before the state of Michigan allowed Ratte's wife, U-M architecture professor Claire Zimmerman, to take their son home, and nearly a week before Ratte was permitted to move back into his own house.

As an academic (at a different UM), a parent, and non-TV person, I sympathize. That said, I was not only aware of hard lemonade, I've even tried it once. It's not very nice.

If I'm going to have hard fruit juice, I very much prefer dry cider. But the kids are sticking to Izzes for now.

Just Don't Mention the War

Newsday.com, Police arrest anti-war protester, 80, at mall

An 80-year-old church deacon was removed from the Smith Haven Mall yesterday in a wheelchair and arrested by police for refusing to remove a T-shirt protesting the Iraq War.

House Passs FISA Without Telco Immunity

The House today passed a FISA bill with some bad aspects, but without the immunity clause. See the EFF press release.

While there's stuff not to like in this bill, all of it can be repealed at some later date — except the immunity, which would not be subject to repeal.

Florida's Senator Nelson voted wrong last time this came up before the Senate. Any chance he'll do better this time?

Wonders Never Cease

Daily Kos: FISA fight: Leadership maneuvers you'll actually like.

Nice to have something mildly cheerful for a change.

Important FISA Statement by House Judiciary Committee

I don't know if this will be important politically, but it is important intellectually.

The Gavel » Blog Archive » Judiciary Committee Members: Administration Has Not Made the Case for Telecom Immunity Judiciary Committee Chairman John Conyers and 19 Members of the Judiciary Committee issued a statement regarding telecommunications immunity, as the House prepares to consider the FISA Amendments Act of 2008. Following a review of classified information relating to the warrantless surveillance program and immunity for telecommunications companies, the Members reported their conclusion that the Administration has not established a valid and credible case to justify granting blanket retroactive immunity at this time.

The full text of the statement is quite long and careful.

Not only does it give new details of what's been going on, but it demolishes the case that there's some justification lurking in the secret documents that might justify the Rockefeller retreat from legality.

A Ray of Hope on FISA

House leaders plan to introduce Substantially improved FISA bill. Not a good bill, but not an evil bill either. Notably it doesn't have a telecom immunity provision. In other words, much better than anything to emerge from the Senate so far.

Could it be that the results from the recent Illinois special election — in which the losing GOP candidate tried to demagog on FISA and fell flat — have stiffed a spine or two?

Actually, the House text has a pretty clever move in it: the bill makes clear beyond doubt that telecoms may submit classified exculpatory evidence to the court reviewing the legality of their behavior notwithstanding the administration's assertion of state secrets privilege. As this alleged lack was often cited as a major reason for the immunity provision, there's one fewer specious argument available for immunity — and a lifeline for anyone who'd like to climb down from that increasingly unpopular viewpoint.

UK ISPs Join the Spy Brigade

UK ISPs to Spy on Google Users (and Others):

Greetings. Given the CCTV surveillance fetish in the UK these days, it seems somehow sickly appropriate that British ISPs are in the forefront when it comes to spying on the content of their subscribers' Web browsing — and it appears that Google users are in the bull's-eye.

Most of the related media attention so far has revolved around the manner in which the three largest UK ISPs have gone to bed with “Phorm” — toward the goal of monetizing Web browsing habits of subscribers and providing targeted ads ( http://www.theregister.co.uk/2008/02/29/phorm_roundup/ ).

Of course, there's a lot “soothing” promotional blather on the BT site claiming that the data collected regarding the sites that you visit is quickly deleted or anonymized. And while officially the ISPs claim that they haven't made a decision about opt-out vs. opt-in, the current British Telecom limited deployment — they call the “service” “Webwise” ( http://webwise.bt.com/webwise/index.html ) and promote it as mainly an anti-phishing system — appears to be opt-out (requiring either maintaining a special cookie in your browser or blocking all cookies from a particular site).

Third-party tracking of the Web sites that you visit is bad enough, but Webwise (and presumably the other incarnations of the Phorm system) go one big step farther — they actually spy on your Web content and extract for their own use the search terms that you enter into search engines:

“We [Webwise] use the website address, keywords and search terms from the page viewed to match a category or area of interest (e.g., travel or finance).”

Given that the vast majority of searches these days are conducted with Google, it's obvious that this ISP-based system will be attempting to monetize the vast number of search transactions between users and Google, in a technical manner that seems eerily similar to wiretapping.

What is this, an epidemic?

1984: We're Behind Schedule (Irish Edition)

Ireland's SiliconRepublic.com, In a State of surveillance:

We are about to enter into a state where every digital step you take is recorded. At the end of March, the Government will introduce the most draconian law in the history of personal privacy in Ireland: 24-hour internet monitoring. A log will be made of everyone's internet activity and every email sent and received.

Greetings from the State of surveillance.

Sen. Bill Nelson Prefers Telcos to Constituents

When I called Senator Bill Nelson's office last week, the guy on the phone assured me that Nelson would vote with Senator Dodd to eliminate telco immunity from the FISA bill. [Update: I relied on that call for this post on Feb. 1.]

That turns out to be false.

Like many of his Senate colleagues, Sen. Bill Nelson sold us out to the telcos. See the full Vote on the Dodd Amendment.

I vaguely get the politics of cowardice, although you can be damn sure I won't forget this vote (or the vote for torture, either). But I sure don't get the politics of lying to constituents.

FISA Senate Order of Battle

Here's what the Senate Leadership has cooked up for FISA. Sen. Reid's office spins this as “the GOP blinked” as they backed down from their insane demand that no amendments be considered, or at least that they all require 60 votes.

From here, it looks somewhat different: the GOP is graciously allowing a majority vote to prevail on small things, or on things where there isn't a Democratic majority. Big things that the Democrats could win still take 60 votes — a concession that is achieved by the empty threat of a real GOP filibuster…the political equivalent of suicide.

Meanwhile, Sen. Reid's office also says that Sen. Dodd was involved in these negotiations and implies that he signed off on it. I'd like to hear that from him. I find the details of this agreement a bit opaque, but if I understand it, there is no opportunity for Sen. Dodd to mount his filibuster if his amendment to remove telecom immunity fails.

Note that the Democrats start from a bad position — one imposed on them unnecessarily by Sen. Reid — since the base bill is the Intelligence committee one not the much preferable Judiciary Committee version, and the rules favor inertia.

Has Senator Dodd caved in here? Or does he think he can find 50 votes? Senator Nelson (FL) now says he will vote for Dodd's amendment, but I don't think many others of the dozen DINOs who voted to table the Judiciary version of the bill have announced they are switching.

This would be a good time to call your Senator and ask nicely but firmly that Dodd's amendment to remove the retroactive immunity for illegal wiretaps be removed fromadded to the FISA bill.

(Some people have asked why I focus on this rather than some other, possibly worse, features of the bill that make Richard Nixon seem unambitious. It's because the others can be undone later. There's real doubt that this can be.)

Update Thanks to James Tyre for a link to the final version as agreed by the Senate

Bush Blinks

Like the House, the Senate yesterday also passed a 15-day FISA extension. Bush had said he had to have six years on nuthin' and previously threatened to veto a 30-day extension. But the WashPo says that he'll sign it — I guess that someone over there grasped that unlike three years ago, if you say the sky will fall without the authority the bill gives you and you veto it at the same time, someone might ask an embarrassing question before printing your press release.

I remain very pessimistic about the ability of Senate Democrats to grow spines on this issue, although it is encouraging that weathervane Nelson (D-Fl.) voted for cloture on Monday, and that his DC phone people are saying he'll vote to remove telecom immunity from the bill; this seems something of an about-face from last week's vote to bury the Judiciary Committee version of the bill, but I'll take what I can get.

The bright spot in the story is that prospects on the House side are somewhat better. It helps that key right-wing Democrats are facing some tough primary challenges from progressives. Sometimes, just sometimes, elections help keep people focused on what their constituents want.

Now, about that war…

FISA Short Course

Sen. Feingold demonstrates how he explains problems with FISA to constituents in a 30-second demo.

Meanwhile, the House passed a 15 day extension of the current (awful) version of FISA. And then it went into recess. Which is actually good, as it puts the Senate GOP on the spot and will probably spike some of their worst parliamentary delay tactics.

What He Said (Greenwald on FISA Dept.)

Glenn Greenwald,

Of all the creepy post-9/11 phrases to which we've been subjected (“The Patriot Act” - “Protecting the Homeland” - “enhanced interrogation techniques” - “Department of Homeland Security”), I think the creepiest and most Orwellian is the phrase “good patriotic corporate citizen,” used to describe companies which broke our laws because the President told them to. It's now apparently a Patriotic Duty to obey the President even if he tells you to violate the law.

The accompanying claim that companies should never “second-guess” the “judgment of the President regarding what's legal” — which I just heard from John Cornyn and Saxby Chambliss — is equally creepy, and is the crux of the authoritarian case for telecom immunity.

The cloture vote failed, so there will actually be debate on the current (evil) draft of FISA.

But don't get too excited,

In one sense, this is an extremely mild victory, to put that generously. All this really means is that they will now proceed to debate and vote on the pending amendemnts to the bill, almost certainly defeat all of the meaningfully good ones, approve a couple of amendments which improve the bill in the most marginal ways, and then end up ultimately voting for a bill that contains both telecom immunity and warrantless eavesdropping. Moreover, it seems clear that Senate Republicans deliberately provoked this outcome and were hoping for it, by sabotaging what looked to be imminent Democratic capitulation so that Bush could accuse Democrats tonight of failing to pass a new FISA bill, thus helping their friend Osama.

Lots more chances for spines to vanish.

Meanwhile, however, things have got weird,

The vote on the Motion for Cloture on the 30-day extension (i.e., to proceed to a vote on it) just failed — 48-45 (again, 60 votes are needed). All Democrats (including Clinton and Obama) voted in favor of the Motion, but no Republicans did — not a single one. Thus, at least as of today, there will be no 30-day extension of the PAA and it will expire on Friday.

Reid, however, indicated that it was certain that the House will vote in favor of an extension tomorrow, which means it will be sent to the Senate for another vote. It's possible, then, that the Senate will vote again later in the week on an extension, but it's hard to imagine any Republicans ever voting in favor of an extension since Bush has vowed to veto it.

By blocking an extension, Republicans just basically assured that the PAA — which they spent the last seven months shrilly insisting was crucial if we are going to be Saved from The Terrorists — will expire on Friday without any new bill in place.

Even milquetoast Jay Rockefeller accused Bush of committing Political terrorism. Of course there's still time for a vote on an emergency extension originating in the House…

NYC Proposes to Ban Unlicensed Environmental Monitors

Here's news from the Village Voice about a proposed NY city ordinance which, I suspect, is not unconstitutional — it's just monumentally stupid.

NYPD Seeks an Air Monitor Crackdown for New Yorkers:

Richard Falkenrath, the NYPD's deputy commissioner for counterterrorism …. and Mayor Michael Bloomberg have asked the City Council to pass a law requiring anyone who wants to own [machines that detect traces of biological, chemical, and radiological weapons] to get a permit from the police first. And it's not just devices to detect weaponized anthrax that they want the power to control, but those that detect everything from industrial pollutants to asbestos in shoddy apartments. Want to test for pollution in low-income neighborhoods with high rates of childhood asthma? Gotta ask the cops for permission. Why? So you “will not lead to excessive false alarms and unwarranted anxiety,” the first draft of the law states.

Note that there is no actual evidence to date of police resources being wasted on such false alarms. They're just planning ahead.

It may not be irrelevant that when the Environmental Protection Agency pronounced the air surrounding Ground Zero as safe, independent testers proved this to be a lie. The proposal would presumably shield the tender psyche of New Yorkers from being confronted with such discomforting truths.

There is a case to be made for thinking about the profusion and deployment of sensors, not least cameras, in our cities. Some rules about how personally-identifiable data can be stored and shared might be a good idea (although there are first amendment constraints).

But this proposal is just wrongheaded at best and the product of a deeply statist mind at worst. And Bloomberg thinks he wants to be President?

… researchers are developing a radiation detection system that would rely on sensors within cell phones to locate and track potentially hazardous material. From the Purdue news service: “Such a system could blanket the nation with millions of cell phones equipped with radiation sensors able to detect even light residues of radioactive material. Because cell phones already contain global positioning locators, the network of phones would serve as a tracking system, said physics professor Ephraim Fischbach. 'The sensors don't really perform the detection task individually,' Fischbach said. 'The collective action of the sensors, combined with the software analysis, detects the source. Say a car is transporting radioactive material for a bomb, and that car is driving down Meridian Street in Indianapolis or Fifth Avenue in New York. As the car passes people, their cell phones individually would send signals to a command center, allowing authorities to track the source.'”

Nobody's Safe

Well, for now, nobody poor is safe. But give them time.

McClatchy, Immigration officials detaining, deporting American citizens:

Thomas Warziniack was born in Minnesota and grew up in Georgia, but immigration authorities pronounced him an illegal immigrant from Russia.

Immigration and Customs Enforcement has held Warziniack for weeks in an Arizona detention facility with the aim of deporting him to a country he's never seen. His jailers shrugged off Warziniack's claims that he was an American citizen, even though they could have retrieved his Minnesota birth certificate in minutes and even though a Colorado court had concluded that he was a U.S. citizen a year before it shipped him to Arizona.

On Thursday, Warziniack was told he would be released. Immigration authorities were finally able to verify his citizenship.

“The immigration agents told me they never make mistakes,” Warziniack said in a phone interview from jail.

It's really worth reading the whole article: no right to a lawyer, no help getting documents, no one believes the documents you get or the witnesses you find, and you have the burden of proof of showing you are a citizen — while in custody.

(spotted via Emergent Chaos, “We have to be careful we don't release the wrong person”)

Bill Nelson Sells Out America

Senator Bill Nelson of Florida voted with the GOP today to table — in effect kill — the Judiciary Committee version of FISA. In other words, he voted for the version of the bill that gives total immunity to the telephone companies for conspiring with administration officials to do a massive series of illegal wiretaps — even before 9/11. (Glenn Greenwald is great on this at Salon today and yesterday.)

How sad that even the less reactionary of my Senators believes the government should be able to conduct illegal wiretapping at will, and that its aiders and abettors in the private sector — multi-billion dollar firms with the best legal advice — should get immunity for disregarding the clear words of a statute which told them not to do it.

And the man has the nerve to send me email that says he is very concerned about protecting my civil liberties.

Then again, this is the same Bill Nelson of Florida who voted for torture, so I suppose I shouldn't be surprised.

Sen. Feingold on FISA

Senator Feingold has released a good statement on FISA:

It's Not Just About Immunity When the Senate reconvenes next week, legislation to amend the Foreign Intelligence Surveillance Act (FISA) will be among the first issues we address. I am as determined as ever to use all procedural tools at my disposal, including a filibuster, to try to stop the FISA legislation if it doesn't protect the privacy of law abiding Americans or if it includes immunity for telecom companies. I am also deeply grateful for the energy this community has put behind stopping this assault on the rights and liberties of Americans - it gave a huge boost to our successful effort in December to stop a bad FISA bill being rammed through the Senate. But while we had some temporary success last month, we face an uphill battle to fix the bill, particularly since the Democratic leadership still seems intent on bringing the flawed Intelligence Committee bill to the floor, rather than the better version approved by the Judiciary Committee.

Much of the debate so far has focused on the issue of granting retroactive immunity to telecommunications companies that allegedly participated in the president's illegal warrantless wiretapping program. But as this legislation moves forward, a critical part of our battle is going to be making people understand how dangerous and flawed the proposed FISA legislation is, even beyond the issue of immunity.

Don't get me wrong – the inclusion of any amnesty provision for telecom companies is a deal breaker for me. Senator Dodd and I will offer an amendment to strike retroactive immunity from the Intelligence Committee bill likely to be taken up by the Senate. Granting this kind of amnesty is totally unjustified since these companies already receive immunity if they follow the law. And it's not as if these companies don't have lawyers to tell them what's legal and what's not – especially when these laws have been on the books for 30 years. It is particularly outrageous that companies think they deserve immunity for allegedly participating in an illegal program when we found out last week from the DOJ Inspector General that telecom carriers are perfectly willing to shut off wiretaps – including a foreign intelligence wiretap – when the FBI doesn't make its payments on time.

But immunity is only one of the very serious problems with the Intelligence Committee FISA bill. We all agree that when foreign terrorists are communicating with each other overseas, the U.S. government shouldn't need a warrant to listen in. But both the so-called Protect America Act (PAA) – the law we passed last year - and the Intelligence Committee bill go far beyond addressing that issue. They grant unprecedented powers to the executive branch to engage in widespread surveillance involving Americans, with virtually no judicial involvement. There is a better alternative in the Senate, and that is the Judiciary Committee bill. It is vastly preferable not only because it does not contain immunity, but also because it provides for meaningful, independent judicial oversight of the new wiretapping authorities, and more protections for the communications of Americans that get swept up in these broad new surveillance powers. Here are some of the serious problems with the Intelligence Committee bill:

• The PAA and the Intelligence Committee bill allow the government to acquire communications between foreigners and Americans inside the United States, without a court order and regardless of whether anyone involved in the communication is under any suspicion of wrongdoing. There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition. No court reviews these targets individually; only the executive branch decides who fits these criteria. The result is that many law-abiding Americans in the U.S. who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement. Even the Administration's illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular suspected terrorists. Not even the Judiciary bill adequately addresses this very serious problem.

• The role of the FISA court is also at issue. The Intelligence Committee bill doesn't give adequate authority to the FISA court to do what it is supposed to do - operate as an independent check on the executive branch. The bill passed by the Senate Judiciary Committee does give the court authority to assess the government's compliance with its wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and to enforce its own orders – all of which are critical checks and balances.

• The Judiciary Committee bill also does a much better job than the Intelligence Committee bill or the Protect America Act of protecting Americans from widespread warrantless wiretapping. It ensures that if the government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating – what is called reverse targeting – it has to get a court order on that American. The Judiciary bill also prohibits bulk collection – that is, the sweeping up of all communications between the United States and overseas, which is something the Director of National Intelligence has admitted is legal under the Protect America Act.

So we have a lot of work to do on the Senate floor to fix the Intelligence Committee bill, not only by stripping the immunity provision, but also by adding back the protections from the Judiciary Committee bill and by addressing the broader problem of adequately protecting Americans' privacy rights. Rather than acquiesce to another Bush administration power grab, the Senate should stand up for the rights of Americans and fix the bill.

It won't be easy. Already we're seeing grossly misleading rhetoric, if not outright falsehoods, coming from the White House in another attempt to intimidate Congress into quickly passing bad legislation – the same old Administration play from the same old Administration playbook. We must not be intimidated by this fear-mongering. I will continue to do all I can to urge my colleagues to stand up to this administration and fix FISA so we can go after suspected terrorists without robbing law-abiding Americans of their rights.

At the Archives, the First Amendment Is Just for Show

The National Archives is one of my favorite DC attractions. It has a small public display area showing some major documents in American history. Among other treasures, it displays one the original copies of the Bill of Rights — with all twelve of the original proposed amendments. (There's even a special vault to protect the original Constitution and Bill of Rights at night.)

What became our First Amendment is actually the third on the original list. Sadly, it seems that the Archive's guards think the Bill of Rights is just for show.

According to this account in a Daily Kos diary, Vistiors to the Archives were kicked out for wearing “Impeach Bush and Cheney, Change History” T-shirts:

With the original First Amendment “Freedom of Speech” looking on, admirers of the U.S. Constitution in the Washington D.C. National Archives Building today were ordered to leave for wearing tee-shirts reading “Impeach Bush and Cheney.” Many of the tourist-activists were in town to hail the arrival of impeachment marcher John Nirenberg, the 61 year-old college professor who has just walked from Boston to D.C. to call attention to the need for the impeachment of Bush and Cheney.

In a telephone interview, one of the participants, Susan Serpa, age 56, told me she was looking at the displays when a female security guard approached her and said “You need to go speak to that man over there” indicating a burly security guard. When Serpa asked why, the woman said: “Your shirt.” Serpa's shirt reads on the front: “Impeach Bush and Cheney, Change History.” On the reverse it says: “MaineImpeach.org.”

Other security guards then approached Serpa and told her: “You need to leave because of your shirt.

Assuming this account is correct, what the guards did is completely, totally illegal, as the Archives is federal property, open to the public, and the wearers were not committing a disturbance. But the guards either didn't know that or didn't care.

How have we sunk to this state?

Land of the Free

Please read JUSTICE BUILDING BLOG: IF YOU WIN….. for the appropriate response to the latest US Justice atrocity:

A jury acquits a lawful US resident who has no prior criminal record, has lived in the US for over twenty years, and has a wife and children at a home in South Florida.

What does the US government do to this Defendant who had a trial in the United States? Yes- these United States, about which our president travels the world extolling the virtues of freedom, democracy, due process, trial by jury, presumption of innocence; the bill of rights; this wonderful government of ours throws this INNOCENT man back into custody and in the dark of night drags him off to some concentration camp in Georgia, to await removal for being something he was just acquitted of.

More where that came from.

BREAKING: DODD WINS (for now)

I have it on excellent authority that Senator Reid has put off the FISA immunity bill until the New Year.

Congratulations (for now) to Senator Dodd, and to Russ Feingold and the many Senators who made it clear they were going to assist him in his filibuster.

Update: More at Crooks and Liars.

Chris Dodd's Filibuster for the Constitution

Crooks and Liars » Dodd To Filibuster FISA Bill.

It's pretty sad that the nominally Democratic Senate leadership has

• Refused to recognize Dodd's “hold” on the FISA bill with full retroactive blanket amnesty for telecom companies that we now know abetted illegal spying on US citizens starting before 911.
• Scheduled the vote just before the Iowa caucuses to make it harder for candidates to take part, and shortly before the recess — creating pressure to vote.

I would have hoped that some other Senators would share Dodd's conviction that this issue is worth going to the mat on — one Senator can't keep up a filibuster forever. Three can. Where are the others on this issue?

Thank you Senator Dodd for picking this issue and taking it seriously. (This is Dodd's first filibuster in a 27-year career).

Romney's Orwellian View of Freedom

I used to say that I could see Romney as the least bad of the Republican candidates. Surely no principles was better than bad ones?

I may have to reconsider. On the one matter where one has to assume he is least likely to lie to us, the place of religion in public life, former Gov. Romney has some very strange views, such as: “Freedom requires religion just as religion requires freedom.”

The clearest statement I've seen of the problem may be slacktivist, Mitt vs. atheists, martyrs,

Let's deal with the latter assertion first: “religion requires freedom.” There are far too many counter-examples for this to be true. Think of China, where the government denies religious freedom to millions of Christians and Falun Gong adherents and Tibetan Buddhists. Yet despite this lack of freedom, despite this active oppression — and, in a way, in response to this oppression — these faiths are all thriving. ….

“Freedom requires religion,” Romney said. Had he said, “Freedom requires religious freedom,” then I would agree, absolutely. Try to imagine if you can a society in which people were denied this most intimate of freedoms, the freedom of conscience, yet remained in all other respects free. Such a thing is impossible. This is part of the genius of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Take away any one of those freedoms and you take away the others as well. Each of those freedoms requires the others.

But Romney did not say that freedom requires religious freedom. He said, “Freedom requires religion.” And that's a contradictory statement — a very different, and very frightening, thing.

If freedom requires religion, then the a-religious and irreligious, the non-religious and un-religious are the enemies of freedom. Romney believes, in other words, that atheism is incompatible with freedom. Whatever it is he means by “religious liberty,” he does not believe it can safely be applied to atheists.

Don't get me wrong: I have no problem at all with devout candidates. I respect people who want to actualize their faith — just as long as in their public life they put the First Amendment first, and don't try any back-door establishment of religion. Thus, I respect, but disagree with, people who say abortion is murder and wish to change the law to protect what they see as unborn people. I also disagree pretty strongly with people who want use state power to enforce their versions of morality, but I often do understand where they are coming from — even though I think that many of these efforts have serious constitutional difficulties and wish they were much more sensitive to these issues.

I don't respect people who want to create special programs whose real purpose is to funnel money to churches (although I don't mind at all having churches compete on a level playing field for federal funds so long as they observe the rules that apply to all recipients of federal money).

But I also respect (and would rather vote for) people whose faith — be it religious or secular — leaves more scope for individual choice and autonomy on most questions of morality.

Mitt Romney's position that atheists are or should be second-class citizens hearkens back to an old American idea, mostly abandoned in the Enlightenment period, that the irreligious were fundamentally untrustworthy because without a fear of Hell they could not be trusted to keep their oaths.

It's deeply depressing to consider that a major GOP candidate who is 200 years behind the times may still seem modern when part of a field that seems anxious to compete on who is more for torture of more detainees, and who has the cruelest plan for deporting and deterring undocumented workers.

Oh, wait. He's campaigning as just as much a troglodyte as most of the others. Romney thinks we should double the size of the Guantanamo prison camp. I suppose that since Romney thinks Muslims are unfit for top government jobs this shouldn't be totally surprising.

Race to the bottom. Dragging us down with it.

Foreigners Still Don't Realize How Dumb Our Government Is

More dumb police work: Man angry with son-in-law fingers him as terrorist to FBI

A man in Sweden who was angry with his daughter's husband has been charged with libel for telling the FBI that the son-in-law had links to al-Qaeda, Swedish media reported on Friday.

The man, who admitted sending the email, said he did not think the US authorities would stupid enough to believe him.

The 40-year-old son-in-law and his wife were in the process of divorcing when the husband had to travel to the United States for business.

The wife didn't want him to travel since she was sick and wanted him to help care for their children, regional daily Sydsvenska Dagbladet said without disclosing the couple's names.

When the husband refused to stay home, his father-in-law wrote an email to the FBI saying the son-in-law had links to al-Qaeda in Sweden and that he was travelling to the US to meet his contacts.

He provided information on the flight number and date of arrival in the US.

The son-in-law was arrested upon landing in Florida. He was placed in handcuffs, interrogated and placed in a cell for 11 hours before being put on a flight back to Europe, the paper said.

Neither the FBI nor the TSA can afford to ignore emails with specific accusations. Stopping someone directly accused of being a terrorist is entirely reasonable — although you have to wonder whether the Swedish authorities were consulted at any point between receipt of the email and the passenger's arrival.

Still, if the FBI and the TSA can't do a better job of distinguishing a terrorist from an innocent visitor after 11 hours in which they have him to interrogate and during which they can presumably contact the Swedes to go talk to the sender (if they haven't already), then TSA really is not much use, since all air travel will be subject to a trivial denial of service attack. This is worse than “security theater” — it's security Grand Guignol.

Apparently the FBI did eventually get around to contacting the Swedes.

FBI contacted Swedish intelligence agency Saepo, which discovered that the email tipping off the FBI had been sent from the father-in-law's computer.

What's unclear from the story is when the request was made, and why they deported the traveler pending this report.

Bonus 'security' horror story, brought to you by those dangerous Episcopalians.

Dodd Stands Up, Late But Tall

What's amazing is not that Senator Chris Dodd gave a really good speech drawing a line against further Administration depredations against the Constitution.

No, what's amazing is that it took so long before he did it.

And what's disheartening is that speeches like this are rare and wonderful things in this (supine) Democratic-in-name-only (“DINO”) Congress. Because contempt for law (and for Congress) are hallmarks of this Administration.

The Senate Flirts With Irrelevance (or Worse)

Since they are aggressively not talking about the war, the two most important domestic policy issues before Congress at present are the FISA re-authorization and the nomination of Michael B. Mukasey, a man who is an intelligent prevaricator about torture and a straight-forward authoritarian about Presidential power to be our next Attorney General.

The Senate's capitulation on FISA includes retrospective amnesty, without even a need for truth and reconciliation, for all the telecom companies that violated the law, knowingly, and allowed illegal eavesdropping of telecoms traffic just because someone in government asked them to do so. There is now some evidence, arising from the Nacchio fraud trial, that the illegal spying program started well before 9/11 — the smoking gun that this amnesty plan may be designed to hide.

The whole idea of these companies going along with oral requests that they had to know were illegal is positively Soviet. So too are the all-too-credible allegations that when Qwest failed to play ball with these illegal requests, it got punished by being denied government contract work for which it was best qualified.

That the Senate would agree to an amnesty with no disclosure in these conditions is one of the best arguments for term limits that I have ever heard.

Senator Chris Dodd, emerging as the conscience of the Presidential field, has placed a hold on the FISA bill. I hope his colleagues are grateful to him for saving them from their own folly.

Even so, no hold seems likely for the Mukasey nomination, further cementing the irrelevance of the Senate and its quiet complicity in torture and other outrages. Yes, there's a tradition of allowing most nominees to go through, but torture ought to be exceptional. And if that won't do it, why on earth is the Senate going to confirm a man who testifies that he believes the President can violate statutes on national security grounds more or less whenever he wants to?

Asked, for instance, if the president was free to violate a law enacted by Congress, Mr. Mukasey said, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”

…

Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants.

“The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”

But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.)

The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.

…

“So you are telling the committee, Judge, that anytime the president is acting to safeguard the national security against a terrorist threat, he does not have to comply with statute?” asked Senator Russ Feingold, Democrat of Wisconsin, referring to the 1978 law.

Mr. Mukasey did not answer directly…

I think this means that confirmation would be a grave error — even if failure to confirm keeps Peter Keisler, the perhaps equally absolutist temporary AG, in office for a long time. (I happen to have known Keisler reasonably well a long time ago, back in college and law school. He always seemed a deeply decent person on a human level. He was also one of the most right-wing people I knew and his political viewpoints were extreme even then. But then he might well say the same about me for all I know.)

As for the Senators, if they don't care about the Constitution, is there at least no jealousy left for the legislative prerogative? Primaries for them all, I say.

How to Dress for the Airport

Item One: Henry Jenkins is the Director of the MIT Comparative Media Studies Program. He has a very thoughtful summary of the Star Simpson story, which you may recall was the recent incident in which an MIT student triggered a bomb alert at Logan airport because she turned up wearing a t-shirt with blinking lights and other funny looking stuff. Plus she was playing with a roll of Play-Dough.

Prof. Jenkings also has good things to say about what this teaches us about the difference between dead-tree media and blogs, and also what this tells MIT students about how to dress for the airport.

Item two: Today's Miami Herald reprises the case of Kyla Ebbert, who was told she couldn't fly on Soutwest Airlines because she was wearing a short skirt, and expands it to discuss the online fashion police more generally. These print version of the article has a photo of the offending garments, which are certainly not eyebrow-raising by south Florida standards, and which the article tells us involve more fabric than the outfit Ms. Ebbert is required to wear on her job as a Hooters waitress.

In a separate incident, Southwest's fashion police also required a passenger to change what it called a sexually suggestive T-shirt or risk getting thrown off the plane. Apparently this sort of thing happens with some frequency. Apparently too much skin prevents airplanes from getting sufficient lift to fly or something.

Could the “no-fly rule” have taken on a new meaning?

Or is could it just be irrational, arbitrary, behavior on the part of (some) flight attendants? Consider this from Ms. Ebbert,

What really tops the whole story off is that Ebbert wore the same outfit on the return flight to San Diego later that day. A female flight attendant also took note of it, according to Ebbert.

“I was complimented by the stewardess on my return flight,” she said.

Rev. Yearwood Update

Curiouser and curiouser.

Rev Lennox Yearwood, Jr., who had his leg broken by Capitol Police the last time he tried to get into a congressional hearing had most of the charges against him stemming from that incident dropped, but he still is having a hard time getting into hearings. No one has come forward to explain why.

We shall overcome… harassment and intimidation | Iraq Veterans Against the War

Yesterday I announced that the US Attorney dropped the charges against me of assaulting a police officer (http://www.citizensforethics.com *).

Today, Tuesday Oct 2nd, I was in line for the Blackwater hearing on Capitol Hill at 9:15 in the morning. When I got to the front of the line at 11:30, Capitol Police stopped the line. I stood there for two hours while the same officers who leapt on me three weeks ago outside of the Petraeus hearing, pointed and stared at me. I stood there, humming “we shall overcome.”

Congresswoman Maxine Waters showed up at 1:30 and saw me standing there. She demanded that I be let into the hearing. Cops were swarming the door, and the honorable Congresswoman from California escorted me into the hearing. Once I got in, three cops stood near me, so I would not forget that I was in their territory.

It is just incredible that as a peace activist, a former Chaplain candidate in the Air Force Reserve, and a Minister, I would be treated so disrespectfully in the halls of Congress.

But, this is part of the struggle, and like my brothers and sisters before me, I know that we shall overcome.

* Citizens for Responsibility and Ethics in Washington, who represents me in this case, have been incredible allies, and show true courage in their work to expose corruption and injustice in Washington.

As I understand it, there's still a charge of disturbing the peace outstanding from the earlier incident, but the man is presumed innocent isn't he?

Earlier related posts:

• Violence at the Iraq War Hearing
• Rev. Yearwood Talks About His Arrest

It Can't Happen Here

This clip from an Australian comedy show, the Chaser's War on Everything, which purports to be man-in-the-street interviews of somewhat ordinary Americans (conducted by US-based reporter Charles Firth?) must be a spoof. It's probably a spoof. I mean, it has a laugh track. I hope it's a spoof.

People wouldn't really say that stuff just sixty years after the Holocaust, would they?

Wayne Slavin's No-Good Horrible TSA Bad Day

Wayne Slavin, missed his trip to South Africa because the TSA (and hired airport security) acted really badly. (And Delta Airlines wasn't much help.)

The question is, does this mean that the TSA staff are regressing to the mean for people with guns and power treating the powerless (that is, you and me)?

It's not surprising that we are seeing the emergence of occasional airport petty tyrants. The sheer scale of the operation ensures there will be some. When TSA began, however, it was notable for the unusual courtesy with which the staff treated the passengers, especially as compared to their predecessor contract screener. Was that focus on decent interaction just the police equivalent of a credit card teaser rate, or the TSA ready to crack down on its bad apples?

History offers little ground for optimism here.

[Bonus TSA follies posting.]

The Audience Sat Quietly

I'm happy to report that the Chemerinsky affair has come to what appears a happy conclusion. But even at its worst, that kerfuffle might be small potatoes compared to the worst interpretation (which is not the only one possible) of what is recorded in this video of U.Florida police tasering a student:

The video begins at the end of what appears from the excerpt to be the student's mildly confrontational question. But we don't know what went before — for example, did the student hog the mike for 10 minutes, refusing calls to relinquish it?

University spokesman Steve Orlando said Meyer was asked to leave the microphone after his allotted time was up. Meyer can be seen refusing to walk away and getting upset that the microphone was cut off.

As two officers take Meyer by the arms, Kerry, D-Mass., can be heard saying, “That's all right, let me answer his question.”

Did he go over time a little, or a long time? Does U.Fla have a 10-second rule — go over 11 seconds and it's the pokey?

I'm certain the police will say they tasered the student for resisting arrest, and viewed strictly from the point of police procedure and starting from the rule that even people subject to false arrest are supposed to go quietly that seems plausible from the video. The student isn't going quietly — he's shouting for help and asking what he's done to merit arrest.

Yet, at another level, that defense elevates procedure over substance: Why was this student arrested at all? Dragging people away for asking a question in a public forum at a public university suggests we may be reaching a new low in civic values and freedom.

1) Did this actually happen in the United States of America?
2) How is it that 98 percent of the audience sat in silence?
3) Can you believe that Kerry just kept on answering the question as if everything were normal?
4) What would have happened if the Senator stood up and told the cops to stop instead of offering weak protestation?

I think the second question is the key: Why did the audience fail to react?

Did the audience fail to react because this is a known crank who was looking for trouble and was abusive in the (seconds? minutes?) preceding this video, and they felt he had abused the audience as much as Senator Kerry, or did the audience fail to react because we're no longer shocked by people being dragged away if they ask unpleasant questions in public?

Comments — and eyewitness reports — particularly welcome.

Rev. Yearwood Talks About His Arrest

Rev. Yearwood talks about his arrest. He certainly has a way of sounding very reasonable. It would be nice to hear the other side, if there is one. Have the Capitol Police (or the Speaker and Majority Leader's Offices to whom I believe they report?) said anything about the incident?

Violence at the Iraq War Hearing

This has all the markings of a very strange story: Rev. Lennox Yearwood Arrested at Petraeus Hearing.

I hope we get to hear more about what exactly happened; certainly the first, perhaps one-sided, report is disturbing; on the other hand, the video is less clear-cut — after being singled out for some reason and denied admission after waiting in line (could it really be for wearing a button that said “I love the people of Iraq?”) did Rev. Yearwood really lunge for the door saying “I will not be arrested”? And even so, does that justify breaking his leg?

Rev. Yearwood is the same person who recently won a stay or delay in his case against the Air Force which had tried to honorably (not dishonorably) discharge him as a chaplain; according to his supporters, his offense was preaching against the war. And indeed, when he got an opportunity to preach at Andrews Air Force Base, “the message that I preached was 'Who Would Jesus Bomb?'”—not the best way to be popular on the base, I'd imagine.

I spent some time trying to find out if there's a Senate rule about what you can wear to a committee hearing, and whether buttons are prohibited. Couldn't find anything. Links to facts most welcomed.

Art from Annoyance

It Came From Airport Security, the anthology announced about a year ago of fiction based on new security measures at airports, is now available (and is forwardthinkingly licensed under Creative Commons Attribution-ShareAlike 2.5).

Judge Rules National Security Letters are Unconstitutional

In a big win for the rule of law, Federal District Judge Marrero issued a 103 page decision today holding National Security Letters unconstitutional despite their being blessed by the reauthorization of the Patriot Act.

Text of the decision in .pdf

Congratulations to the legal team from the ACLU and others who won this big victory — sure to be appealed.

Justice!

Feds pay $80,000 to couple arrested for wearing Bush protest T-shirts.

It's nice when the Constitution wins one.

This Is Not Good for America

A Case So Shielded One Side Is in the Dark (behind Times paywall; archived Copyright violation?)

Mr. Eisenberg is suing the government on behalf of clients who say they were illegally wiretapped by the National Security Agency. Yet he was required to write an appellate brief in a government office, supervised by a Justice Department security officer.

…

“Yesterday, under the auspices and control of my litigation adversaries, at their offices and on their computer, I wrote a brief, of which I was not allowed to keep a copy, responding to arguments which I was not permitted to see, which will be met by a reply which I will not be permitted to see.”

That this doesn't make for justice as we (ought to) know it will, I hope, go without saying.

The Wages of Spinelessness

Privacy News:

Four days after President Bush signed controversial legislation legalizing some warrantless surveillance of Americans, the administration is citing the law in a surprise motion today urging a federal judge to dismisss a lawsuit challenging the NSA spy program. The lawsuit was brought by lawyers defending Guantanamo Bay prisoners. The lawyers and others alleged the threat of surveillance is chilling their First Amendment rights of speech, and their clients' right to legal representation. … Justice Department lawyers are asking (.pdf) U.S. District Judge Vaughn Walker to toss the case, citing the new law — which says warrantless surveillance can continue for up to a year so long as one person in the intercepted communications is reasonably believed to be located outside of the United States.

Tell me again why the Speaker allowed this FISA revision to come to a vote so quickly?

FISA Amendments

That the Democrats were supine in letting the FISA (Wiretap) bill rush through with minimal scrutiny is clear. What the bill does, though, I haven't quite figured out to my satisfaction.

It's another couple of degrees towards boiled frog; no, it's mostly sensible; no, it's a blank check for the executive, with meaningless oversight.

It's for six months — or is that a year? — and will, I predict be renewed once.

A Brief Survey of Briefings

Emptywheel (Marcy Wheeler) has done a fabulous bit of sleuthing, and posts the results at The Next Hurrah: The Briefing Dates.

The key point is that Congressional leaders were briefed about secret (and IMHO illegal) wiretap programs so long as the administration thought they were legal — but the briefings stopped when they started to have doubts:

For the first two years of the program, the Intelligence Committee leaders were briefed fairly regularly, at least every 6 months. (It was just the Intell leaders at that point, and not the party leaders, because BushCo went on a snit after Richard Shelby leaked the news that the NSA had had an intercept from Al Qaeda before 9/11, and cut back who it briefed even more than normal; finally, though, the leaders rebelled and they began to get briefed on the big secrets too.) And they seemed to be very diligent to make sure that everyone got equal briefing. For example, when Bob Graham missed the March 5, 2002 briefing, he got his own briefing not long thereafter.

The March 10 Meeting

But then, there was an unusually long gap between briefings, from July 17, 2003 to March 10, 2004, a gap of eight months rather than six. If they had followed the previous pattern, they would have done a briefing in January, 2004.

Note, this was right during the period when Jim Comey, Jack Goldsmith, and others, were recognizing that the program was illegal. So they didn't brief Congress on the program when they discovered it was illegal, but rather let it go for two more months, until the day Comey refused to certify its legality, before they bothered to convene. Effectively, rather than warning Congress, they created a crisis, presumably creating more pressure on Congress to approve it.

Effectively, the March 10 meeting was Tom Dashcle's only briefing on the program. Perhaps that's why he forgets the meeting? Wouldn't you think he'd remember it all the more?

Also note, Tom DeLay got his very own personal briefing on March 11, the day the program operated with no legal sanction. Oh to be a fly on the wall at that meeting…

Irregular Briefing

Things get a little sketchy after that. Congress did not receive a briefing after the crisis, so they presumably didn't learn that the program operated illegally (well, maybe DeLay did, but he's kind of fond of illegal activities). Just Pete Hoekstra got a briefing on September 24, 2004, and he presumably got that solely because he had just taken over as Chair of HPSCI after Porter Goss became DCI the day before. Harry Reid had to wait much longer—two months—before he was briefed on the program after becoming Minority Leader in the Senate in 2006. Effectively, though, the program went almost a full year (March 10, 2004 until February 3, 2005) before Congress was briefed on the program that had been found to be operating illegally.

All this has increased salience this week, because basket case Attorney General Gonzales testified that back when he was White House Counsel, he got an OK to proceed with a/the program from the Congressional leaders which led Gonzales and Card to ambush Ashcroft in intensive care.

There's lots more in the original post. Sen. Rockefeller again emerges looking spineless on an intelligence issue. There is evidence for the proposition that Speaker Pelosi is smart as hell.

Local Governments Eye Wifi Monitoring

Today's Herald runs a big scare story on how pedophiles use wifi (sort of like they use telephones, cameras and cars, isn't it?), Wi-Fi helps child porn exchanges thrive.

Along side it is a somewhat more balanced story, Local governments try to balance security, privacy. There are a few interesting quotes, including these:

As the Internet becomes a more common way of accessing medical records, political activity and financial transactions, groups such as the Electronic Frontier Foundation argue that government utilities have no business peeking into their residents' records.

“It's tremendously important that we don't capture or record what websites people are going to,” said Michael Froomkin, a University of Miami law professor and member of both the foundation's advisory board and Alvarez's steering committee.

Stored personal information can be used in a variety of intrusive ways, he said, whether illegally snatched by an unscrupulous employee or legally sold to marketers seeking to target their ads.

Miami Beach hopes to launch wireless service later this year, which — unlike the county's project — will be free to residents and visitors. Software will watch for suspicious activity and track where users are located but not which websites they visit.

“If any such monitoring reveals criminal activity, that could be turned over to authorities, but this is not like Big Brother,” said Miami Beach spokeswoman Nannette Rodriguez.

What is “suspicious activity” and how is it divorced from where you go on the web? And exactly how is that not like Big Brother? Ms. Rodriguez doesn't explain. If it's volume of use — e.g. high volume email that looks like spammning — I could understand it, although even here there are hard issues: for example, without peeking at the content how do you distinguish a phishing scammer from a person running a political campaign?

Born Free

Pat Gudridge:

I erased this entry on my first try at posting it. Maybe I was right.

The Supreme Court's decision today in Brendlin v. California showed a unanimous Court enforcing the 4th amendment against police on behalf of an individual seemingly seriously involved in the methamphetamine business. How was this possible? The case involved a so-called traffic stop — police pulled over the car in whch Brendlin was riding — as it turned out without any reason for doing so specific to the car, the way it was driven, etc. The specific question at issue was whether Brendlin the passenger had standing to object to the stop — if so, and if the stop was no good, then presumably what the police learned about Brendlin in the course of the stop (not good for him) would become legally irrelevant. Justice Souter and colleagues thought that this was an easy question to resolve.

Why? Because a seizure occurs in circumstances in which reasonable individuals feel constrained to submit to police authority. Would a reasonable individual — passenger or driver — feel free to walk away from a traffic stop? No: or so Justice Souter thought — and he noted that the Supreme Court in dictum had concluded as much frequently in the past, that other courts were in agreement, and commentators agreed with the courts (including my late stepmother-in-law's father's treatise!). All this unanimity, Justice Souter observed, “probably reflects a societal expectation of 'unquestioned [police] command….'”

Why? Because we understand that police are likely to respond harshly to insubordination whether or not police are right to stop us in the first place. Because we also understand that the police have good reason to worry about us — our guns, our occasional tendency to respond harshly ourselves. It's all Hobbes. But maybe also Calvin? We might think, at least initially, that we can always challenge police conduct after the fact. The courts will throw out prosecutions derived from groundless stops. But even minor traffic violations justify police stops (or other similar minor wrong-doings). We submit because we may well be in the wrong. Our supersaturated legal system inculcates its own version of the sense of sin (apologies to John Milton and Stanley Fish). Brendlin, on this view, was lucky (or predestined or somesuch). Most of us (if not extralegally protected by class, race, etc) at most benefit because prosecutors aren't sure they can persuasively recreate police reasons (at least sometimes) and are therefore prepared to bargain.

This chance — this liberty — supposes submission. Is this the fundamental theorem of constitutional law?

The War Against Legality Continues

There are consistent themes to this administration: incompetence, kleptocracy come to mind. But one area where it's shown disturbing competence is the war against the Rule of Law. The Padilla case and the ongoing attempts to keep law and lawyers out of Guantánamo are the most visible aspects of this strategy (ignore the minor bit of tactical posturing today — this is just about trying to avoid losing a lawsuit), but the corruption of the DoJ is part of the piece.

So here's the latest installment: Bush Wants Phone Firms Immune to Privacy Suits. See, those pesky lawyers are trying to get phone companies to obey the law. We can't have that if it gets in the way of our illegal wiretaps!

Verio/NTT Sends Shutdown Notice to Cryptome -- But Gives No Reason

John Young runs a very useful, important, but edgy (some would say over the edge) service at Cryptome.org, which I wrote about in Cryptome: Often Heroic, but Sometimes Creepy.

Over the years he's had some DMCA notices, and takedown requests passed on from foreign intelligence services, all of which his ISP Verio/NTT has dealt with in what seemed from his account to be a reasonable manner.

Now, all of a sudden and apparently without giving any reason, John Young reports that he's gotten a letter telling him that Cryptome is to be Shutdown by Verio/NTT.

This notice of termination is surprising for Verio has been consistently supportive of freedom of information against those who wish to suppress it. Since 1999 Cryptome has received a number of e-mailed notices from Verio's legal department in response to complaints from a variety of parties, ranging from British intelligence to alleged copyright holders to persons angry that their vices have been exposed (see below). In every case Verio has heretofore accepted Cryptome's explanation for publishing material, and in some cases removal of the material, and service has continued.

In this latest instance there was no notice received from Verio describing the violation of acceptable use to justify termination of service prior to receipt of the certified letter, thus no opportunity to understand or respond to the basis for termination.

It may be wondered if Verio was threatened by an undisclosable means, say by an National Security Letter or by a confidential legal document or by a novel attack not yet aired.

Every few months our Verio service rep, Warren Gleicher, Senior Account Manager, (wgleicher[at]verio.net) writes to see if service is satifactory.

Danna and Warren: Cryptome would appreciate your telling what has led to the termination for publication. Send the information anonymously if necessary to keep your jobs.

At least they gave him two weeks notice, but still — pretty low not even to give a reason.

Fascism Domesticated

If only, if only, this Glenn Greenwald column were an April Fools. But Your modern-day Republican Party is all too real.

It seems that leading GOP Presidential candidates mostly don't have any problem with the idea that the President has the power to imprison American citizens without any opportunity for review of any kind.

Constitutional rights? Those are for sissies.

FBI Outdoes Itself With "SafeSneaker" Plan

Paging Bruce Schneier. This piece of security theater has to take the cake.

According to a proposal being floated by the FBI, manufacturers of sneakers with a suggested retail price over $75 a pair would be required to produce individualized patterns in the sole that would allow police to uniquely identify the wearer.

The “SafeSneaker” proposal is being justified as an anti-crime measure in that criminals apparently often wear sneakers, and that school children are often mugged for their (expensive) sneakers. The idea is that parents would be encouraged to register the unique patterns in an online database, thus protecting their children from robbery — and incidentally identifying them if footprint evidence were found at the scene of a crime.

The stupidity of this idea defies belief. What parents are going to finger their children in this fashion? How often can the FBI actually get good enough footprint evidence to make out an intricate pattern? What happens when the shoes get worn, or if kids mutilate the soles to obscure the pattern?

I mean, just when you think you've heard everything….

Why The Cops Spied on 'Billionaires for Bush'

Billionaires for Bush put out a press release today in response to the news that the New York city police were spying on them:

Billionaires For Bush Respond to N.Y.P.D. Spying Report

- Billionaires to release own domestic surveillance files as gesture of good faith.

- “We guessed he was an undercover officer when he kept asking for stock tips.” Meg A Bucks, National Co-Chair.

New York, NY, March 27th, 2007 Stunned by a recent New York Times report revealing that Billionaires For Bush were the targets of widespread surveillance by the New York Police Department in 2004, we issue the following statement:

“We join the chorus of voices calling upon the city to make its files public. As a gesture of good faith, today the Billionaires For Bush make our own domestic surveillance files public.

Public scrutiny of these files will reveal that we have infiltrated city hall and all key city departments, including zoning, development, taxation, and the Brooklyn Public Library. Our most important informant operated at the highest echelons of municipal governance. His code name (presciently) was “Snow Shovel,” and files will reveal his identity as Mayor Michael Bloomberg.

Snow Shovel (his Honor) operated as a double agent for Billionaires For Bush beginning in January 2004. During the R.N.C. he played a crucial role in banning protestors from Central Park so that members of Billionaires For Bush could play croquet. He continues to serve our interests well to this day. While we don't expect him to resign from his post, he no longer needs to feed us information. Another tax break for the upper brackets would be nice, though.”

About Billionaires For Bush
Armed with tuxedos, evening gowns, hard facts and a humorous spin, Billionaires for Bush is a do-it-yourself grassroots media campaign using humor and street theater to exposes politicians who support corporate interests at the expense of everyday Americans.

More Dispatches From the Land of the Free

They're not only watching us … they don't want us taking pictures in public. See The Cosmic Tap: An Accidental Interview with Lieutenant Phil Dreyer for what's only the latest in a huge series of incidents up and down the country in which police attempt threaten perfectly legal photographers.

Earlier (2004) item: A Snapshot of Our Freedoms

Big Brother *IS* Watching You

City Police Spied Broadly Before G.O.P. Convention.

Not only did cops waste a phenomenal amount of resources infiltrating public meetings of obviously harmless groups such as Billionaires for Bush, but having made files about lawful activities by harmless groups they shared their files with cops nationwide.

For at least a year before the 2004 Republican National Convention, teams of undercover New York City police officers traveled to cities across the country, Canada and Europe to conduct covert observations of people who planned to protest at the convention, according to police records and interviews.

From Albuquerque to Montreal, San Francisco to Miami, undercover New York police officers attended meetings of political groups, posing as sympathizers or fellow activists, the records show.

…

In at least some cases, intelligence on what appeared to be lawful activity was shared with police departments in other cities. A police report on an organization of artists called Bands Against Bush noted that the group was planning concerts on Oct. 11, 2003, in New York, Washington, Seattle, San Francisco and Boston. Between musical sets, the report said, there would be political speeches and videos.

Political speeches and videos! The horror!

What NYC Cops did may well have been legal. But it was not only a distraction from real police work, but something that bespeaks a level of one-sided political paranoia that is a danger to democracy.

Can you imagine the police infiltrating the Federalist Society? Or a meeting of the Freepers? And even if you can, could two wrongs make a right?

Some Dare Call It Tyranny

Jim Henley, writing about the Pernicious Effects of National Security Gag Orders that I blogged about earlier, under which the FBI (probably failing to follow the statutory requirements) serves a man with an order that gags him from even mentioning the order to his family or his Congressman,

The government has taken the most intimate aspects of this man’s life from his own control. There is no part of his waking day untwisted by the injunctions of the Patriot Act, and probably little enough of his sleep. The man has been accused or convicted of no crime. This is tyranny. Not “the threat of” tyranny, not “practically” tyranny - the thing itself. It hasn’t directly touched me yet and it may not have touched you, but if it has already ensnared your neighbor you won’t even know.

Pernicious Effects of National Security Gag Orders

This is an important article:

My National Security Letter Gag Order :

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won't let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

…

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

Read the whole thing. And worry.

Oops

Frequent Errors In FBI's Secret Records Requests: An audit suggests that about one in six FBI snoop requests violated regulations and in some cases the law.

It's only a tiny sample of the huge number of 'national security letters' issued by the FBI, but it does suggest, yet again, that power is being abused.

FBI Agent Complained of Illegal Domestic Wiretaps

The National Security Whistleblowers Coalition (NSWBC) has obtained a copy of an official complaint filed by a veteran FBI Special Agent, Gilbert Graham, with the Department of Justice Office of the Inspector General (DOJ-OIG). SA Graham's protected disclosures report the violation of the Foreign Intelligence Surveillance Act (FISA) in conducting electronic surveillance of high-profile U.S. public officials.

Before his retirement in 2002, SA Gilbert Graham worked for the FBI Washington Field Office (WFO) Squad NS-24. One of the main areas of Mr. Graham's counterintelligence investigations involved espionage activities by Turkish officials and agents in the United States. On April 2, 2002, Graham filed with the DOJ-OIG a classified protected disclosure, which provided a detailed account of FISA violations involving misuse of FISA warrants to engage in domestic surveillance. In his unclassified report SA Graham states: “It is the complainant's reasonable belief that the request for ELSUR [electronic surveillance] coverage was a subterfuge to collect evidentiary information concerning public corruption matters.” Graham blew the whistle on this illegal behavior, but the actions were covered up by the Department of Justice and the Attorney General's office.

There's more, including a tie-in to the Sibel Edmonds scandal.

A Challenge to Warrantless Wiretapping that Isn't Subject to the State Secrets Defense

Belew's bout with the Terrorist Surveillance Program began in 2004, when he was representing the U.S. branch office of the prominent Saudi Arabian charity Al-Haramain. Formerly one of the largest charities in Saudi Arabia, Al-Haramain worked to spread a strict view of Islam through philanthropy, missionary work and support for mosques around the world.

Federal officials were investigating the Ashland, Oregon, branch of the group for alleged links to terrorism, and had already frozen the charity's U.S. assets. Belew was one of several lawyers trying to keep Al-Haramain off a U.S. Treasury Department watch list — an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department's Washington D.C. headquarters across the street from the White House.

On Aug. 20, 2004, fellow Al-Haramain attorney Lynne Bernabei noticed one of the documents from Treasury was marked “top secret.” Bernabei gave the document to attorneys and directors at Al-Haramain's Saudi Arabia headquarters, and gave a copy to Belew. The document was a log of phone conversations Belew and co-counsel Asim Ghafoor had held with a Saudi-based director for the charity named Soliman al-Buthi.

Turns out that was a mistake, and the FBI asked for (and received) the document back, but not before copies got to the Washington Post (also retrieved) and Saudi Arabia (not returned).

And now that document is the smoking gun evidence of an NSA wiretapping program. And because there's documentary proof, the government can't argue — as it has in all other similar cases — that the shady state secrets privilege immunizes it from even having to say whether it is wiretapping people without bothering to get FISA authorization.

And it's not that hard to see why the government didn't go the FISA court on these facts — it's not all that obvious that a court would allow the government to eavesdrop on lawyers working with a client to challenge a government action.

In fact, that sort of eavesdropping — violating attorney-client privilege — is the sort of hypothetical horrible that the government spokespersons routinely pooh-pooh, saying in horrible injured tones, how could you possibly suspect honorable people like us of ever violating constitutional rights so blatantly.

This will be interesting.

Paranoia Strikes Deep in the Heartland

"It is seldom that liberty of any kind is lost all at once." -- David Hume.

putative.com: FedEx refuses shipment of made-up stuff, empty cans

FedEx guy: Is this really what this is? Rocket fuel?
Me [laughing, used to this reaction from being at the space-travel supply store]: Oh, no, no, no. Of course not. It's... made-up. Kind of a joke. It's actually full of sugar, which I just put in to give it some weight, but that's all it is.
FedEx guy: You can't ship this.
Me: But... it's just sugar! What, uh, what if I empty it out? It doesn't really need to have sugar in it.
FedEx guy: No. They would still x-ray it, and then you'd get a call when it was en route. I don't think it would make it.

...

FedEx guy: Nope. You can't ship these either.
Me: But... they're empty! It's just air. And... nitrogen? It's, like, almost 80% of the atmosphere. There's nothing dangerous about nitrogen, even if it were pure.
FedEx guy: They look too much like bomb-making materials.

It Can't Happen Here (Anti-Islam Dept.)

A local DC radio host pretended to advocate requiring Muslims to be identified with crescent-shaped tattoo or distinctive arm band.

Callers into the station were split on the idea: some loved it, some thought it was too tame and that the tattoo ought to be on the forehead where you could see it. And it went downhill from there, right to death camps.

At the end of the one-hour show, rich with arguments on why visual identification of 'the threat in our midst' would alleviate the public's fears, Klein revealed that he had staged a hoax. It drew out reactions that are not uncommon in post-9/11 America.

'I can't believe any of you are sick enough to have agreed for one second with anything I said,' he told his audience.

More details and context in Reuters, In U.S., fear and distrust of Muslims runs deep.

Update: MP3 of the radio show.

Peterloo, TX

Remember from history, how in the 18th and 19th and very early 20th centuries, the ruling classes, or their police lackeys, used to charge militant workers in order to break incipient union movements?

Well, fast forward a bit: Houston police trampled on striking janitors with horses last night.

Pictures and links at MyDD.

(Headline refers to the famous Peterloo Massacre in Manchester in 1819.)

Crazy Times (Martial Law Edition)

I've mentioned before that we live in crazy times, that so many things which seemed politically impossible now seem at least possible, and that those of us who take freedom seriously have to worry about stuff we'd have laughed off a decade ago.

I'm reminded of this by two things which at first may seem unrelated: an incident involving an attempt to incite the arrest of Michael Schiavo and an amendment to the (former) Insurrections Act, which has now morphed into an act regarding “Enforcement of the Laws to Restore Public Order,” an amendment which has sparked a remarkable amount of blog angst about possible martial law.

My unreal night in Colorado: Back in mid-July I travelled to Colorado and delivered a letter to Congresswoman Musgrave's office. asking her why she felt compelled to interfere in my family's personal affairs - questioning, in fact trying to refute the medical facts of my wife's case on the floor of Congress.

Not surprisingly, Marilyn Musgrave never responded to my letter.

So on Tuesday I joined about 1,000 citizens and members of the local and regional media in the Windsor High School Auditorium to hear the debate and try to get an answer to my question from Congresswoman Musgrave.

About twenty minutes before the debate started and after speaking to several reporters about how Musgrave had voted to transform her values into our laws, I took a seat in the front row. As it turned out, I was seated next to the timekeeper who held up yellow and red cards to signal time to the candidates.

But just minutes after taking my seat, I noticed a flurry of activity around my seat including about four uniformed police officers who were - I would learn later - called in by Musgrave staffers and asked to remove me from the building.

At this point, I had made no speeches, I had no signs, had made no attempt to disrupt or cause any commotion. I only came into the auditorium, spoke to a dozen or so reporters and took a seat.

To their credit, the police refused the Musgrave campaign's appeal to have me removed.

There's more to come, but I still can't get over even that part. A sitting member of Congress asked the police to remove me - a taxpaying citizen - from a public debate. Obviously, I misunderstand the concept of a political debate. I thought a debate was a place to share ideas, answer questions, defend your record and tell citizens what you've done and what you will do. Marilyn Musgrave believes, I have to gather, that debates are places to have the police remove people who don't agree with you.

(And why shouldn't Congresswoman Musgrave think that you can have your critics arrested? After all, it works for George Bush and Dick Cheney.)

Then there's this second thing, an amendment to 10 USC § 333, that significantly expands the circumstances in which the President can deploy the full armed forces — and federalize the state National Guard even over a local governor's objections. The old version of the Insurrection Act, along with the Posse Comitatus Act, sought to narrow Presidential power and localize the decision to use force. [UPDATE: For a tour de force introduction to the legal regime as it existed prior to this most recent amendment, see Steve Vladeck's amazing student note, Emergency Power and the Militia Acts, 114 YALE L.J. 149 (2004).]

Some of the circumstances the law addresses are pretty clear — “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident,” — even if not necessarily keeping with our traditions of civilian law enforcement and federalism.

(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

Laws like this are always troubling because there is no practical way to challenge their application. Unless it were willing to strike down the statute as a standardless delegation — a nearly moribund doctrine — it is very hard to see a court telling the President that, say, the chaos in New Orleans after the flood, or even the limited violence in Florida in 2000 when GOP operatives attacked the ballot counters, didn't rise to a level that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The courts are going to label that a political question, or find some other excuse for the courts to duck the matter.

But while this sort of executive discretion is always a problem for democratic rule, as I hope I've shown by juxtaposing the old language and the new it's not a new problem, not at all.

You might wonder why people got all excited about this today, when similar language has been on the books for quite a long time. Some people might just dismiss it as hysteria, a sort of left-wing or libertarian-right-wing paranoia. I think it's subtler than that.

What's new is that so many more of us no longer have the gut-level feeling that we can rely on the people in charge not to abuse the system; this doubt has a large number of people starting at shadows. In one sense that doubt is a beautiful thing: it is part of a free people's antibodies against tyrants. We need to respect that feeling, even while being annoyed about the extra work vigilance imposes on us.

Finding the precisely appropriate dose of concern is a difficult calibration exercise. In that context it is important to understand that the case of Michael Schiavo has two lessons: on the one hand, part of the current ruling cabal mistook our government for a revolutionary junta. On the other hand, the local police had the good sense not to listen.

Emergency federal powers of the type set out in § 333 are scary in part because they threaten to displace the good sense and discretion of a few local cops with the necessarily more order-following tradition of the military officer on the scene. But in the main that's not a new problem, it's a very old one — one today that it is exacerbated by the attack on habeas corpus, and the administration's legal claims that it can jail any of us, any time, for as long as it wants — not to mention the administration's claim that it has the legal right to kill us.

In good times we just don't have to worry about that stuff. But these are crazy times, not good ones.

Full statutory text below the fold.

SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED.—
(1) IN GENERAL.—Section 333 of title 10, United States
Code, is amended to read as follows:
‘‘§ 333. Major public emergencies; interference with State and
Federal law
‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.—
(1) The President may employ the armed forces, including the
National Guard in Federal service, to—
‘‘(A) restore public order and enforce the laws of the United
States when, as a result of a natural disaster, epidemic, or
other serious public health emergency, terrorist attack or
incident, or other condition in any State or possession of the
United States, the President determines that—
‘‘(i) domestic violence has occurred to such an extent
that the constituted authorities of the State or possession
are incapable of maintaining public order; and
‘‘(ii) such violence results in a condition described in
paragraph (2); or
‘‘(B) suppress, in a State, any insurrection, domestic
violence, unlawful combination, or conspiracy if such insurrection,
violation, combination, or conspiracy results in a condition
described in paragraph (2).
‘‘(2) A condition described in this paragraph is a condition
that—
‘‘(A) so hinders the execution of the laws of a State or
possession, as applicable, and of the United States within that
State or possession, that any part or class of its people is
deprived of a right, privilege, immunity, or protection named
in the Constitution and secured by law, and the constituted
authorities of that State or possession are unable, fail, or refuse
to protect that right, privilege, or immunity, or to give that
protection; or
‘‘(B) opposes or obstructs the execution of the laws of the
United States or impedes the course of justice under those
laws.
‘‘(3) In any situation covered by paragraph (1)(B), the State
shall be considered to have denied the equal protection of the
laws secured by the Constitution.
‘‘(b) NOTICE TO CONGRESS.—The President shall notify Congress
of the determination to exercise the authority in subsection (a)(1)(A)
as soon as practicable after the determination and every 14 days
thereafter during the duration of the exercise of that authority.’’.
(2) PROCLAMATION TO DISPERSE.—Section 334 of such title
is amended by inserting ‘‘or those obstructing the enforcement
of the laws’’ after ‘‘insurgents’’.
(3) HEADING AMENDMENT.—The heading of chapter 15 of
such title is amended to read as follows:
‘‘CHAPTER 15—ENFORCEMENT OF THE LAWS TO
RESTORE PUBLIC ORDER’’.
(4) CLERICAL AMENDMENTS.—(A) The tables of chapters
at the beginning of subtitle A of title 10, United States Code,
and at the beginning of part I of such subtitle, are each
amended by striking the item relating to chapter 15 and
inserting the following new item:

(B) The table of sections at the beginning of chapter 15
of such title is amended by striking the item relating to sections
333 and inserting the following new item:
‘‘333. Major public emergencies; interference with State and Federal law.’’.
(b) PROVISION OF SUPPLIES, SERVICES, AND EQUIPMENT.—
(1) IN GENERAL.—Chapter 152 of such title is amended
by adding at the end the following new section:
‘‘§ 2567. Supplies, services, and equipment: provision in major
public emergencies
‘‘(a) PROVISION AUTHORIZED.—In any situation in which the
President determines to exercise the authority in section
333(a)(1)(A) of this title, the President may direct the Secretary
of Defense to provide supplies, services, and equipment to persons
affected by the situation.
‘‘(b) COVERED SUPPLIES, SERVICES, AND EQUIPMENT.—The supplies,
services, and equipment provided under this section may
include food, water, utilities, bedding, transportation, tentage,
search and rescue, medical care, minor repairs, the removal of
debris, and other assistance necessary for the immediate preservation
of life and property.
‘‘ (c) LIMITATIONS.—(1) Supplies, services, and equipment may
be provided under this section—
‘‘(A) only to the extent that the constituted authorities
of the State or possession concerned are unable to provide
such supplies, services, and equipment, as the case may be;
and
‘‘(B) only until such authorities, or other departments or
agencies of the United States charged with the provision of
such supplies, services, and equipment, are able to provide
such supplies, services, and equipment.
‘‘(2) The Secretary may provide supplies, services, and equipment
under this section only to the extent that the Secretary
determines that doing so will not interfere with military preparedness
or ongoing military operations or functions.
‘‘(d) INAPPLICABILITY OF CERTAIN AUTHORITIES.—The provision
of supplies, services, or equipment under this section shall not
be subject to the provisions of section 403© of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170b(c)).’’.
(2) CLERICAL AMENDMENT.—The table of sections at the
beginning of such chapter is amended by adding at the end
the following new item:
‘‘2567. Supplies, services, and equipment: provision in major public emergencies’’.
(c) CONFORMING AMENDMENT.—Section 12304(c)(1) of such title
is amended by striking ‘‘No unit’’ and all that follows through
‘‘subsection (b),’’ and inserting ‘‘Except to perform any of the functions
authorized by chapter 15 or section 12406 of this title or
by subsection (b), no unit or member of a reserve component may
be ordered to active duty under this section’’.

Here is the old version of the statute, part of the Insurrections Act,

§ 333. Interference with State and Federal law

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

Oops. Pentagon Caught Spying on Harmless Peaceful Protesters

Now that they got caught, they're sorry:

A South Florida anti-war group's peaceful protest of military recruitment during last year's Fort Lauderdale Air & Sea Show was labeled ''subversive'' and was being monitored by the Pentagon, which kept a report on the protest in a database designed to track domestic terrorist threats.

That report in the Defense Department's Threat and Local Observation Notice database, or TALON, was a mistake, a Defense spokesman said Thursday.

What was the dangerous activity the Pentagon had identified as such a terrible threat?

'BAWC plans to counter military recruitment and the 'pro-war' message with 'guerrilla theater and other forms of subversive propaganda,' ''

For next few days you can read more about this in the Miami Herald article, Pentagon admits error on 'threat'. The initial source of the report was a civilian agency, maybe the Miami Police. So there are people -- lots of people -- in our civilian government and in our military, who think that "subversive propaganda" (read, First Amendment protected activities) are a reason to put you on a list of people to be spied on.

Olbermann on the Incredible Shrinking Bill of Rights

Via Crooks & Liars: Olbermann: So heavy-handed. So necessary.

Of course, biting as this satire may be, it is all a bit late now. Even if Bush hasn't actually signed the bill yet.

Incidentally, I understand that although the Military Commissions Act (aka The Torture Bill) was so essential to our freedom that it had to be rushed through both houses before the election...the Speaker and the President Pro Tem of the Senate only got around to delivering it to the White House today. As a result, the President will be able to delay signing it until Oct. 17th (real urgent, huh?) without the bill becoming subject to a pocket veto.

The reason for the delay in delivering the bill is that the White House wanted the signing ceremony for the 17th. Had it been sent over any earlier, that would have messed up the media strategy.

Lawsuit: Dissing Cheney Gets You Arrested

I've lifted this whole post from Talk Left -- something I rarely do -- because it describes something that makes me so cross:

Steven Howards and his son were walking by a Dick Cheney event this summer in Beaver Creek, on their way to a piano lesson. Howards told Cheney he didn't approve of his war policy. When Howards walked back from the lesson, passing the site again, he was arrested. Charges later were dropped.

Colorado First Amendment Lawyer David Lane (think Ward Churchill) sued the secret service agent today, for violating his First and Fourth Amendment rights. The full complaint is here (pdf).

[UPDATE: NYT story on the suit. Don't miss the last line.]

TalkLeft's summary of the factual allegations in the lawsuit are below. Newer readers are encouraged to visit this earlier post of mine, America Needs You, Harry Truman--which deals with what your are free to say in America, and really isn't as funny as it used to be.

6. On June 16, 2006, Vice President Dick Cheney was in Beaver Creek, Colorado, as was Plaintiff, Steven Howards.

7. Mr. Howards was walking in Beaver Creek with his young son who was going to a piano lesson, when he saw Mr. Cheney surrounded by people, shaking hands and posing for photographs in an outdoor mall area.

8. Mr. Howards and his son walked to where Mr. Cheney was standing and Mr. Howards, who was approximately 2-3 feet away from Mr. Cheney addressed the Vice Presidentby saying "I think your policies in Iraq are reprehensible" or words to that effect.

9. Mr. Howards and his young son then walked away to go to the piano lesson where he joined his wife and his other young son.

10. This encounter with the Vice President occurred in plain view of dozens of citizens and numerous Secret Service agents.

11. Approximately five to ten minutes later Mr. Howards and his other son began to return through the same area.

12. As Mr. Howards and his son approached the area where the initial encounter occurred, they were intercepted by the Defendant who asked Mr. Howards if he had assaulted the Vice President.

13. Mr. Howards, in shocked amazement, denied that he had assaulted the Vice President.

14. At that point, Mr. Howards, in the presence of his young son, was placed in handcuffs and taken to the Eagle County jail where he was searched and detained for several hours.

15. Although the Defendant told Mr. Howards that he was going to be charged with assaulting the vice-president, the Defendant instructed the Eagle County, Colorado Sheriff's Department to issue Mr. Howards a summons for harassment under Colorado State Law, for harassing the Vice President.

16. On July 6, 2006, the Eagle County District Attorney's office moved to dismiss all charges.

17. On July 10, 2006, the state court dismissed all charges.

18. At no time during these encounters did Steven Howards ever violate any law, federal, state or local.

19. Mr. Howards was arrested without probable cause to believe that he had committed any offense whatsoever.

20. Mr. Howards was arrested in retaliation for his having exercised his First Amendment protected free speech right to speak out to the Vice President and in retaliation for his having exercised his First Amendment right to petition his government.

UK Lord Chancellor: US willing to do things beyond the law

Buried on page A12 of the Saturday (lowest weekly circulation) Washington Post, is a little lecture from the Lord Falconer. As you read this consider that this is undoubtedly a case of British understatement.

Briton Cites 'Divergence' With U.S.: Charles Falconer, one of the highest-ranking justice officials in Britain, said Friday that there is a "great divergence" in how Britain and the United States are handling the fight against terrorists, describing the U.S. approach as a willingness "to do things beyond the law."

Falconer said in an interview that the practices of holding terrorism suspects without charge at Guantanamo Bay, Cuba, and interrogating them in secret CIA prisons have made it "harder to identify to the world what your values are."

...

Falconer recently called Guantanamo Bay "an affront to the principles of democracy." In a lengthy interview Friday, he said Britain had learned hard lessons in the 1970s when it pursued a hard-line course in response to the bombing campaign of the Irish Republican Army. Police got new leeway in interrogation, while suspects' civil protections were reduced. In multiple cases, innocent people were convicted and sentenced.

"We suffered badly in the '70s and '80s," Falconer said, adding that the United States was among those criticizing the British approach at the time. He also noted that IRA fundraising "shot up" during this period.

...

"Keep your justice system as pure as you can," Falconer said. "This is advice to a friend from the experience we have had."

...

Falconer said both countries value democracy and rule of law. But some U.S. practices are "undercutting the very values both countries adhere to," he said.

Asked whether these practices had hurt U.S. prestige in the world, Falconer said, "it is something that is raised a lot."

Bruce Ackerman on the Hidden Evils of the Torture Bill

Yale Professor Bruce Ackerman, writing in the LA Times:

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an “enemy combatant” upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.

The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.

This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case — upholding the military detention of tens of thousands of Japanese Americans during World War II — has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.

Kip Hawley Is An Idiot And/Or Employs Them

Drip, drip, drip:

I was detained at the TSA checkpoint for about 25 minutes today: Yesterday, while discussing the new rules a fellow Flyertalker suggested we write "Kip Hawley is an Idiot" on the outside of our clear plastic quart bags. So I did just that.

At the MKE "E" checkpoint I placed my laptop in one bin, and my shoes, cell phone and quart bag in a second bin. The TSA guy who was pushing bags and bins into the X-ray machine took a good hard look, and then as the bag when though the X-ray I think he told the X-ray operator to call for a bag check/explosive swab on my roller bag to slow me down. He went strait to the TSA Supervisor on duty and boy did he come marching over to the checkpoint with fire in his eyes!

He grabbed the baggie as it came out of the X-ray and asked if it was mine. After responding yes, he pointed at my comment and demanded to know "What is this supposed to mean?" "It could me a lot of things, it happens to be an opinion on mine." "You can't write things like this" he said, "You mean my First Amendment right to freedom of speech doesn't apply here?" "Out there (pointing pass the id checkers) not while in here (pointing down) was his response."

Here, incidentally, is Kip Hawley's official bio.

Judge Rules Warrantless Domestic Wiretaps Are Unconstitutional

AP: Judge nixes warrantless surveillance

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

Alas, I haven't time right now to read the opinion [PDF] and judgment and permanent injunction order [PDF].

UPDATE: Jack Balkin read it and isn't impressed by the quality of the reasoning.

Sticker Shock

Via Saffo: journal:

The TSA screeners at SFO (San Francisco International Airport) are handing out these stickers to deserving young travelers.

Personally, I'm reminded of this poster:

(See also DC Metro poster post and Students for an Orwellian society.)

Broward Cops Laugh About Shooting Rubber Bullets at Innocent Protestors

I've written before about the ugly "Miami Model" of suppressing protesters, free speech and civil rights in general all in the name of making the city safe for the FTAA negotiators. (See Notes From FTAA Fontlines (Nov. 20, 2003); Miami's FTAA Aftermath: Happy Officials, Allegations of "Police State" Tactics (Dec. 04, 2003); More on Miami FTAA Protests (Dec. 23, 2003).)

Well, it seems it was even uglier than we suspected. The post-FTAA investigation of the police's tactics didn't just whitewash police who fired on innocent civilians, but actually praised them. In a training video. While laughing. Cut to yesterday's Herald, Attorney incensed after viewing FTAA police video:

As a middle-aged Coral Gables attorney, dressed sharply in a red suit jacket, skirt and black slingback heels, Elizabeth Ritter stood out among the throng of protesters on Nov. 20, 2003.

Frustrated that she couldn't do business because the Miami-Dade County Courthouse was shut down that week during the Free Trade Area of the Americas summit, she hastily made a sign that read ''Fear Totalitarianism'' and decided to stand with the protesters.

The sign, however, became her shield against a barrage of rubber bullets fired at her by a legion of Broward Sheriff's deputies in riot gear. And, in an image captured by a videographer, she is shot in the head as she cowers in the street.

And now another video, recently released, raises questions about the degree to which police, specifically, Broward Sheriff's deputies, were encouraged, -- and even praised -- for using force against Ritter and other protesters.

...

The tape, recorded for training purposes, shows Major John Brooks -- then a captain -- addressing dozens of deputies in an outdoor BSO tent.

''How about yesterday, huh?'' Brooks says, complimenting the officers for their work during the protests. ``I would go to war with everyone here.''

Brooks continues, ``I went home, I couldn't sleep, I was just so pumped up about how good you guys were . . . Nobody broke ranks. You're the best I've ever been with.''

Sgt. Michael Kallman, a BSO counterterrorism unit officer, addresses the group next. A voice off-camera says, ``What about the lady behind the sign? We have intel on her?''

The officers laugh.

Kallman smiles and says, ``The good news about being able to watch you guys live on TV is that the lady with the red dress, I don't know who got her, but it went right through the sign and hit her smack dab in the middle of the head!''

He raises his forefinger and zooms it toward his forehead.

The cops all laugh.

Another officer asks, off-camera, ``Did I get a piece of her red dress?''

BSO'S RESPONSE

No disciplinary action has been taken against any officers in the video, said BSO spokesman Elliott Cohen.

Here's why, again from the Herald:

it wasn't trade issues that brought Ritter and her friends to downtown that day. The attorney thought it was overkill that the police had all but shut down the city.

''My city, my hometown, was becoming a police state,'' she said.

A videographer captured what happened next, showing Ritter walking alone in front of a line of BSO deputies on NE Third Street.

As the deputies advance, Ritter turns around to face them and raises her sign.

A barrage of projectiles is fired. She kneels, holding her sign above her head as a shield.

Ritter is shot five times -- in her legs, upper body, and shoulder. And when she kneels on the ground, the sign above her head, a projectile rips through it and strikes her in the head.

Hard rubber projectiles typically leave welts and bruises, but at close range can pierce the skin, or rarely, kill.

'I turned around and said, `Why did you hit me?' Is a woman in a business suit a threat?'' Ritter recalled in a recent interview.

A MISTAKE?

'But then I thought, `That must have been a mistake.' A police officer isn't going to shoot me on purpose.''

Ritter walked around downtown in a daze, finally getting a ride home. Although her head and body were bruised and she was upset, she decided not to make an issue of what happened.

Then, last month the BSO videotape emerged as a result of a public records request from the Miami Civilian Investigative Panel.

Its existence was first reported by the Daily Business Review.

Notes from the Sharp End

I don't know enough immigration/4th Amendment law to know if customs agents demanding to read the contents of your laptop when you come into the country, as described in this account of a search experience on "border", is constitutional -- but it should not be.

I do, however, think I know enough about the law regarding privacy in public places to say that if this story is accurate (and I know nothing about the original source) then this student busted for photographing an arrest was either wrongly arrested or the underlying law/ordinance (if it exists) is unconstitutional.

ACLU (Not EFF) NSA Case Dismissed

It seems that the ACLU case with Studs Terkel as a lead plaintiff has been dismissed for some combination of lack of standing and national security grounds:

JURIST - Paper Chase: Illinois lawsuit over NSA phone records turnover dismissed: A federal judge in Chicago on Tuesday dismissed [ACLU press release] a lawsuit filed by the ACLU of Illinois [advocacy website] on behalf of state residents against AT&T [corporate website] for allegedly turning over phone records to the National Security Agency (NSA) [official website] as part of its domestic surveillance program [JURIST news archive]. US District Judge Matthew Kennelly [official profile] noted that the plaintiffs, including author Studs Terkel [JURIST report], lacked standing to bring the complaint since they had no evidence that their records were given to the NSA. Kennelly based his ruling on preventing the federal government's intelligence procedures from being revealed to terrorists.

Don't confuse this with the superficially similar case against the NSA brought by the EFF, which survived its first challenge and is still pending.

Happy July 4, 2006 (II)

A veteran arrested for having a cup of coffee in a VA facility while wearing a "Veterans For Peace" T-shirt asks, Has This Country Gone Completely Insane? (via Ann Bartow)

In the UK, It Really Matters What Newspaper You Read

I've spent a total of five years off and on living in the UK, and that doesn't count a vacation trip or two a year for the past decade and a half. It's a cliche that the UK, and especially England, is nation that is not only marked by class, but by accent. In London, at least, it also seemed to be a place in which people made snap judgments about each other based on the newspapers they read. (Caroline and I tended to read the Guardian and the Financial Times, which confused people.)

I'm about to go there again for a 'fortnight', and just in time I see that the importance of what newspaper you read has only increased: Police hold mother-of-three for reading 'Independent' outside Downing Street.

Indeed, there are many signs that the UK today, taking a leaf out of the US playbook, is even less free than it was even under Thatcher. Of course, living in the US makes it hard to criticize behavior that sounds a lot like the sort of thing they seem to get up to all over the US; consider for example the latest news form California (via amygdalagf).

Hamdan Reversed!

Supreme Court Rejects Guantanamo Tribunals

Justices rule the Bush administration overstepped its authority in creating military war crimes trials for detainees as part of its anti-terror policies. –Associated Press 10:09 a.m. ET

Ugly EDNY Ruling

I'm in partial agreement with Eric Muller's Japanese Internment Gets A New Breath of Life in the Eastern District of New York.

Turkmen v. Ashcroft (EDNY, per John Gleeson) is an ugly decision, ratifying ugly conduct (but not ratifying the claims as to cruel conditions of confinement nor as to violations of the right of free speech while confined). I do not think that the court is right that if the plaintiffs could prove that the government singled them out on grounds of religion, race or ancestry and chose to hold them longer than necessary before deporting them that this can never state a legal claim for relief. It will be appealed.

But here's the caveat: It's important to note that the decision applies only to admittedly illegal immigrants ("plaintiffs concede that they were lawfully arrested for violating the terms of their admission to the United States"). I think that significantly limits the ill of this ruling, although it doesn't excuse it. It doesn't actually justify anything close to the Japanese internment camps, which included many US citizens, legal residents, and others who were in the country legally.

But Eric knows much more about this than I do, so perhaps he'll let me know what I'm missing...

Update: Eric explains.

One More Reason I Should Switch to Wordpress

Six Apart, creators of Movable Type and, more recently, owners of LiveJournal, have decided to harrass LiveJournal users whose default icons depict breastfeeding.

Private censorship is a pain, but we can vote with our pocketbooks. Public censorship is much worse -- voting with your feet is much harder (and meanwhile they cart you off to jail).

Daily Show Outdoes Itself

This Daily Show clip about the NSA's eavesdropping program, has to be one of the best I've ever seen (ignore the bit about soccer in the first minute and 20 seconds, which goes on about a minute too long).

Don't miss the cameo by Gen. Hayden at about the two minute mark.

Soundbite

Schneier on Security:

NSA Eavesdropping
This is the line that's done best for me on the radio: "The NSA would like to remind everyone to call their mother's this Sunday. They need to calibrate their system."

Merely Parsimonious With the Truth

TPMMuckraker, in post being widely cited elsewhere, echos Reps. Bennie G. Thompson (D-MS) and Rep. Zoe Lofgren (D-CA) in asking Did Gonzales Mislead Congress about NSA Program?

I don't think this is perjury. Attorney General Alberto Gonzales assured the House Judiciary Committee that the government wasn't deliberately engaging in warrantless "surveillance" of calls between two Americans.

And, in fact, what we've learned today about the NSA is (just barely) consistent with that claim: the surveillance was by telephone companies, and then they voluntarily gave the info -- not in real time -- to the government. So what we have here is a massive privacy violation by the phone companies (other than Qwest, and good for them), engineered by the NSA. That's not quite exactly the same thing as 'surveillance' in which the government usually does the spying itself, and usually in real time.

It's a serious matter, of course, if the government tries to blackmail someone into cooperating. USA Today reported that the NSA suggested to Qwest that it might lose government contracts if it didn't play ball.

That sounds illegal. Of course, it also sounds like the Bush admnistration's m.o. from the K Street Project right up to the scandal about to take down HUD Secretary Alphonso Jackson.

Time to Short AT&T, Verizon and BellSouth?

According to Think Progress | Telcos Could Be Liable For Tens of Billions of Dollars For Illegally Turning Over Phone Records, AT&T, Verizon and BellSouth face huge liabilities for turning over millions of American's call records to the NSA in violation of law. That potentially $1000 for each person whose call records were turned over. Millions and millions of people. Each.

Incredible

Read USATODAY's NSA has massive database of Americans' phone calls, and then ask yourself, are we paranoid enough?

It seems not.

Update: Read Unclaimed Territory by Glenn Greenwald. Now.

TSA Two

Came home via DCA. At the first-line security screening station leading to the gates served by American Airlines (slogan: We Own MIA™), the lady whose job it is to compare ID to tickets was in an officious mood and the short line was moving very slowly (the Brits a few people ahead of me were questioned for about three minutes).

Normally when I present my battered Florida Drivers License, screeners just compare the name to the ticket and wave me through. (See Bruce Schneier on why this whole ID check is pretty silly because it is so easy to bypass). They never even check the expiration date of the license, which shows that it expired several years ago. I travel a lot and you can count on the fingers of one hand the number of US screeners (foreign ones are much better) who have questioned this or bothered to turn it over to see the renewal sticker.

But this lady not only noticed, she complained that I had stuck the sticker on upside down! Although if you think of it, whether it's upside down depends on which axis you rotate …

But that's not all. Having satisfied herself that my license was in fact valid, she proceeded to scrutinize the photo. Admittedly, it's more than a decade old, so I'm not only clean shaven but younger. But did she have to say, accusingly, “you are a lot thinner in this picture”?

Anticlimatically, there were no puffers.

Earlier entry on TSA and puffers (don't miss the great comments).

More on Rumsfled

I was quite struck by two features of this AP article, Rumsfeld Is Confronted by Antiwar Protesters, on Rumsfeld's encounter with Ray McGovern.

Consider the first three paragraphs:

ATLANTA, May 4 -- Antiwar protesters repeatedly interrupted Defense Secretary Donald H. Rumsfeld during a speech Thursday, and one man, a former CIA analyst, accused him in a question-and-answer session of lying about prewar intelligence on Iraq.

"Why did you lie to get us into a war that caused these kind of casualties and was not necessary?" asked Ray McGovern, the former analyst.

"I did not lie," shot back Rumsfeld, who waved off security guards ready to remove McGovern from the hall at the Southern Center for International Studies.

First, note that neither here nor elsewhere in the article does the reporter note that McGovern read Rumsfeld his own statement. The result is to suggest the trading of accusations, not the allegation of a fact and the failure to respond to it.

Second, and most shocking of all, the reporter seems utterly unfazed by the idea that asking a tough question in a public meeting might suffice as grounds to have security wrestle McGovern away. Only Rumsfeld's indulgence, he 'waved off security guards' saved him.

How have we come to this?

TSA Puffery

There is something spookily appropriate about having an airport security officer lie to you in order to try to violate your civil rights, even in a relatively small way, when you are en route to a convention about technology and freedom.

This morning, as I was going through a deserted security screening post at MIA, in terminal C, just as I was about to put my luggage through the X-ray, the TSA guy working the outside of security, who had already passed me through, decided to invite back in order that I could step through the "puffer machine," more formally known as an EDT (explosive detection portal) or ETP (Explosives Trace Portal). I wasn't marked for a security screening, and I suspect nothing more was going on than the guy was bored and wanted something to do. Knowing that I have the right to refuse (at the cost of being searched by hand), and having plenty of time until my flight, I told him that I didn't like the look of the machine, and I would rather not. This is where the trouble started.

Rather than warn me that the consequence of failing to consent would be a search, which would have been a legally correct reply, or even decide that I would have to be searched whether I wanted to be or not, which might have been legal too, the guy told me that I had no choice, that I had to go through the machine. I told him that I knew for a fact that this was not true, that I had a choice. He insisted. I asked him to get his supervisor over. He did. I explained the problem.

This supervisor's reaction was not ideal. His first reaction was to push me on why I didn't want to go in there. But when it became clear that I knew my rights, he backed down pretty fast and mumbled something about a "training failure" then instructed the line folks to give me the full wanding instead, something to which I said I had no objection. I asked the supervisor to tell the line officer in my presence what the correct rule was, but this he refused to do.

I went through the metal detector, had the full-body wanding experience from a different, and perfectly amiable and correct TSA agent. The second guy, however, refused to answer my question as to who the highest ranking TSA guy in the area was. That problem resolved itself when the local honcho turned up and asked what the problem was.

I explained. He very politely refused to admit that the mid-level supervisor had done anything wrong ("we don't correct our people in front of the public"), but ultimately agreed that the claim that passengers are required to go through the EFT was not in fact correct. In due course he produced a complaint form, which I filled out, checking the box marked "civil rights" for the nature of my complaint. Oddly, the form did not ask for any personal information about me, so I guess that no one will be calling me to get any further details, much less telling what followup actions result from my complaint.

I travel a fair amount, and until this incident I have always found the TSA people to be polite -- even in Miami where that's far from a given -- and to be following the actual regulations rather than making them up; I have some disagreement with the fundamental legality of some of those rules -- I think searching everyone is the sort of general search that the Fourth Amendment prohibits -- but that of course is not the fault of the line screeners. And in some sense, the system here worked after the initial hiccup: because I was very forceful I was not forced to go through the puffer; I wasn't wrestled to the ground or handcuffed; I wasn't even taken to the little room for the full-body search. And the most senior guy seemed pretty sincere when he said he’d make sure his guy got told what to say in the future. But how many people would happen to be as well informed as to the rules and be willing to stand their ground with a flight looming? Very few: and it's clear these guys are not used to being challenged.

Compared to other devices the TSA would like to unleash on us, the puffer arguably comes off as benign, although prone to false positives (see the comments here). Unlike some other scanners, it doesn't shoot beams through you or irradiate you. Instead it shoots air at you -- a lot of air -- and then analyzes the particles that it manages to dislodge from your clothes and body in order to see if there are residues of Bad Things like explosives (or in time if not already, drugs, I would wager) the theory being that if you have been near a Bad Thing in the past, maybe you are up to no good now. I have never been through it, but the experience has been described as unpleasant., and I had no desire to try it. And whether or not I want to try it, I don't think government agents should be telling us that being puffed is a condition precedent to being allowed to travel when it is not.

In the age of Guantanamo and Abu Grahib this all may seem like very small beer. Nevertheless, I believe in exercising my freedoms while they still exist. I'm all in favor of sensible security measures (e.g. reinforced cockpit doors on aircraft, random security checks that you can't foresee by the row of sssss's on your ticket), I am against what Bruce Schneier so rightly calls security theater -- basically useless measures implemented in order to fool the public into thinking that the government is Doing Something about terrorism. There are many things we could do to enhance our actual security -- checking more containers at our ports, hardening chemical plants against terrorism, beefing up dams and levies -- but I object to much of the airport 'security' regime which I think is just a waste of money and time. If you add up the cost of the physical infrastructure (reconfiguring airports, buying all the gear), the salaries, and the lost productivity due to extra travel time added by the fear of a long slow line at security, I suspect the US costs itself more on an annual basis than the dollar cost of rebuilding the twin towers. I cannot understand why it is considered anything other than deeply unpatriotic to shoot yourself in the foot on an annual basis.

Wiretaps For All

Two stories in yesterday's news, each quite ugly on their own, make an even uglier combo.

First, there's the amazing testimony by Attorney General Alberto Gonzales in which he basically asserted that the Fourth Amendment has no operational content. If the President wants a warrantless domestic wiretap, our nation's chief law-enforcement officer thinks that would be just peachy.

Second, there's the news that AT&T has apparently been sending all our Internet traffic straight to the NSA.

Wired News: Whistle-Blower Outs NSA Spy Room: AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company.

Mark Klein, a retired AT&T communications technician, submitted an affidavit in support of the EFF's lawsuit this week. That class action lawsuit, filed in federal court in San Francisco last January, alleges that AT&T violated federal and state laws by surreptitiously allowing the government to monitor phone and internet communications of AT&T customers without warrants.

On Wednesday, the EFF asked the court to issue an injunction prohibiting AT&T from continuing the alleged wiretapping, and filed a number of documents under seal, including three AT&T documents that purportedly explain how the wiretapping system works.

(This is the same lawsuit I blogged about earlier. I should also note that although I'm on EFF's Advisory Board, I had no role in this case.)

Put 1 & 2 together....

EFF Blocked From Making Public Evidence of NSA Domestic Monitoring

This is dated March 31, so it's not an April Fool's joke:

EFF: Breaking News: The Electronic Frontier Foundation (EFF) filed a motion for a preliminary injunction in its class-action lawsuit against AT&T today. However, much of the evidence that was to be included in the motion—as well as the legal arguments based on that evidence—was held back temporarily at the request of the Department of Justice (DOJ). While the government is not a party to the case, DOJ attorneys told EFF that even providing the evidence under seal to the court—a well-established procedure that prohibits public access and permits only the judge and the litigants to see the evidence—might not be sufficient security.

EFF's motion seeks to stop AT&T from violating the law and the privacy of its customers by disclosing to the government the contents of its customers' communications, as part of the National Security Agency's (NSA's) massive and illegal program to wiretap and data-mine Americans' communications. The motion was supported by a number of internal AT&T documents that the government now claims might include classified information.

(This is.)

You Can Fly Without ID

I found this account by a self-described "swarthy fellow with a funny, foreign name" of flying without ID quite cheerful. If if he's not actually really that swarthy.

It seems not everyone has been subsumed by mindless slavish following of stupid rules. And that stories like this one are not even unusual!

NYT Covers Abuses of Material Witness Statute

My colleague Ricardo J. Bascuas is quoted by Adam Liptak in tomorrow's NYT story New Scrutiny for Law on Detaining Witnesses . Rick is an expert in this area, and the article is a good introduction to the abuses of the material witness statute.

Fighting the Darkness

The animated short In The Dark from openthegovernment.org has its heart in the right place, although to me it feels is a little heavy-handed.

But maybe that's what the times require?

Spies in Our Midst

American Civil Liberties Union Releases First Concrete Evidence of FBI Spying Based Solely on Groups' Anti-War Views.

More Like 30 Seconds

Over at Daily Kos, they estimate it's a five minute job,

Daily Kos: 5 Minutes, For Democracy's Sake: Five minutes is all it takes, really.  Less, if you're not that chatty. In five minutes, you can speak up for the rule of the law. In five minutes, you can put your own footprint in history, as one of the mass of millions who advocated for the censure of a President who broke the law.  Years from now, no matter what the outcome, you can look back and say you stood up when Congress stood down, you pushed your party forward no matter how much it wanted to cower back in the shadows.  Are you ready?

Today, I ask each of you to take a few minutes and contact your Senator and ask them to sign on as a co-sponsor to Senator Russ Feingold's censure resolution.  You can find your Democratic Senator's full contact info, including fax and local numbers, here.

I got about 30 seconds. They didn't even want my name and address, just my zip code, and whether I'm for or against. (On the very rare occasions I've called legislators in the past, they've always asked for contact info so they could write me a polite brush-off letter later.)

Either they're not listening, or they're getting a lot of calls. Or both.

Bonus Kos link: CNN Reporter claims Feingold has his facts wrong, ends up with egg on face.

Capitol Hill Blue Claims It Received a National Security Letter

Capitol Hill Blue is not a particularly reliable source, rating only a little better than the Washington Times when it comes to, say, reporting on the White House. But you would think they might possibly be credible when reporting on things they have personally witnessed.

Today CHB is alleging that they received a national security letter

In recent weeks, the FBI has issued hundreds of "National Security Letters," directing employers, banks, credit card companies, libraries and other entities to turn over records on reporters. Under the USA Patriot Act, those who must turn over the records are also prohibited from revealing they have done so to the subject of the federal probes.

"The significance of this cannot be overstated," says prominent New York litigator Glenn Greenwald. "In essence, while the President sits in the White House undisturbed after proudly announcing that he has been breaking the law and will continue to do so, his slavish political appointees at the Justice Department are using the mammoth law enforcement powers of the federal government to find and criminally prosecute those who brought this illegal conduct to light.

"This flamboyant use of the forces of criminal prosecution to threaten whistle-blowers and intimidate journalists are nothing more than the naked tactics of street thugs and authoritarian juntas."

Just how widespread, and uncontrolled, this latest government assault has become hit close to home last week when one of the FBI's National Security Letters arrived at the company that hosts the servers for this web site, Capitol Hill Blue.

The letter demanded traffic data, payment records and other information about the web site along with information on me, the publisher.

Now that's a problem. I own the company that hosts Capitol Hill Blue. So, in effect, the feds want me to turn over information on myself and not tell myself that I'm doing it. You'd think they'd know better.

I turned the letter over to my lawyer and told him to send the following message to the feds:

Fuck you. Strong letter to follow.

I hope someone gets to the bottom of this.

Bill of Rights, Redacted Version

Slate has the scoop on the newly released Bill of Rights, redacted verson.

The Stuff of Popular Resistance

In a generally wealthy democracy, oppressive policies most commonly end only when ordinary middle class people are outraged by them. And that most commonly comes only whey they or someone they know is personally harmed.

Marty Lederman Eyes the Panic Button on FISA 'Reform'

Marty Lederman, a man not given to false alarms, eyes the panic button as he contemplates Sen. Specer's 'reform' of FISA. See Balkinization for the gory details.

Alien & Sedition Acts Redux?

Ann Bartow points to this very odd and worrying incident: VA Nurse Investigated for 'Sedition' for Criticizing Bush:

Laura Berg is a clinical nurse specialist at the VA Medical Center in Albuquerque, where she has worked for 15 years.

Shortly after Katrina, she wrote a letter to the editor of the weekly paper the Alibi criticizing the Bush Administration.

After the paper published the letter in its September 15-21 issue, VA administrators seized her computer, alleged that she had written the letter on that computer, and accused her of "sedition."

President Claims Power to Kill You

I suppose this will surprise some people somewhere, but it seems totally logical to me. If

• the President has the power to order Predator drones to file missiles killing people -- including US citizens-- abroad, and
• the President has the right to grab US citizens in the US and hold them in a military prison without trial, an attorney, or any contact with the outside world, on the grounds that he thinks they are terrorists or terrorist supporers or might someday in the future be up to something, and
• the President has the power to order the crushing of a child's testicles to make the parent talk

Steven Bradbury, acting head of the US Justice Department's Office of Legal Counsel, told Senator Dianne Feinstein (D-CA) in a closed Senate Intelligence Committee meeting last week that the president may have the executive power to order the killing of terrorist suspects inside the US...

But don't worry!

An unnamed Justice Department official has since said Bradbury's comments were in the context of a theoretical discussion and that practical policy would be to capture the terrorist alive in order to interrogate him.

Good thing it's only a theoretical danger. Sort of like Saddam Hussein...

Sen. Roberts Says NSA Can Wiretap With Abandon

Marty Lederman deconstructs what he calls -- with positively British understatement -- a rather remarkable and unusual event: "the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional."

No-Spy Video

Progress Now has an amusing No-Spy Video. Catchy tune, ok film. Important issue.

Vladeck on Padilla

My youngest colleague, UM Law Prof Steve Vladeck, has another fine JURIST column, this time on the AUMF and the Ever-Increasing Importance of Padilla.

US Reading Your International Snail Mail

U.S. opening some private mail in terror fight. Although the article is less than totally clear, this doesn't appear to mean that letters are being opened for fear they contain something dangerous like anthrax or explosives. No, if I understand it, they're being opened to read them

When Customs "deem it necessary to protect the country from terrorism," i.e. when they choose, they open international mail coming into the US. Apparently this is not limited to packages, but includes personal letters.

I don't know if this is consistent with current (statute) law. As for the constitutional issue, there are surprisingly few rights at the border for people, goods, or even ideas. I have always believed that the First Amendment should be read to cover exchanges of views between a US person and a foreigner; the courts have not always been so clear on that. Similarly, ordinary fourth amendment rights against search have been held not to apply to customs, which as I understand it can search just about anyone they please. At the border we're all suspects. And so too now, it seems, are our letters home.

It Can't Happen Here 'Cept When It Does

Writer writes book critical of Bush. Author then finds self on No Fly List.

There is of course no connection between these two facts. None. Nope. Unthinkable. Can't happen here. Rule of law and all that.

'Little Red Book' Story is a Hoax

Remember that story about the grad student who asked for Mao's Little Red Book and got an investigation instead? I didn't blog about this when it first hit the blogosphere because the complainant was anonymous, and it lacked any confirmation. Plus I couldn't figure out how the feds would get hold of the list of ILL requests (librarians are about as good about privacy as anyone gets). And, sure enough, the whole thing is a hoax.

The NSA story, however, is not a hoax.

Police Act as Agents Provocateurs

Don't misunderstand: it is absolutely legal for cops to observe matters in public places. It's usually legal for them to film things in public too, so long as it's not done in an intimidating fashion.

And, it's legal for cops to go undercover, although when they do so implicates matters of priorities and good taste; some political demos may not be the wisest choices for undercover work.

But what's not legal is for the cops to act as agents provocateurs. The New York Times never uses that phrase, but it's the all-but-inevitable one to use to name the behaviors described in New York Police Covertly Join In at Protest Rallies.

One more leaf from the Nixon / Kruschev playbook?

Luttig Lobs Padilla Case Into Supreme Court's Lap

Judge Luttig authored a canny 4th Circuit opinion today denying the government's motion to transfer Padilla from durance vile in the brig to durance common in Miami.

Steve Vladeck explains it all to you at PrawfsBlog.

The first wheel comes off

I have a lot to say about the NSA spy case, but am finding it hard to say properly.

Spy Court Judge Quits In Protest

[U.S. District Judge James] Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

"They just don't know if the product of wiretaps were used for FISA warrants -- to kind of cleanse the information," said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. "What I've heard some of the judges say is they feel they've participated in a Potemkin court."

Eleven Days in Jail for ... Jaywalking?

Guys, don't wear long hair in Dallas. Parents, don't take your children to Texas.

The Constitution remains a brilliant aspiration. Making it real is a never-ending project.

Important Development in the Padilla Case

Nobody saw this one coming: The Fourth Circuit shows some serious moxie and asks for briefs as to whether it should vacate its (awful) decision as moot; this will make the government put up or shut up as to whether it plans to waive any claim to label Padilla as an 'enemy combatant' in the future.

See SCOTUSblog: Government rebuffed on Padilla for the details.

Padilla Indicted: A Bittersweet Moment for the Rule of Law (Updated)

As the legal world knows by now, the United States this morning unveiled an indictment against Jose Padilla, the man formerly known as the "dirty bomber" -- to be tried here in Miami some time next year. (See Marty Lederman for details and atmosphere.) The Washington Post reports that "Padilla will be transferred from a U.S. Navy brig in South Carolina to Justice Department custody at a federal detention facility in Miami, according to an order signed by Bush on Sunday," which appears to be here, and which was followed by the government's Unopposed Emergency Application and Notice of Release and Transfer to Custody of Petitioner Jose Padilla, filed today.

It's a bittersweet moment for the rule of law. On the one hand, getting Padilla out of the ranks of the disappeared and into the ordinary criminal justice system is a good thing, and it's mildly cheering that even this administration fears even this Supreme Court enough to want to prevent it from ruling on the asserted power to grab any citizen, anywhere, and hold him or her without regard to the Bill of Rights for as long as the President is minded to order.

On the other hand, this decision to charge comes rather late, at the eleventh hour, and risks leaving in place a circuit court decision with draconian implications for Presidential power. The precedent set by this case -- including that of justice delayed to the point of denial -- cannot, should not, must not be allowed to stand. So long as our government claims the power to lock any one of us up in solitary, indefinitely, without trial, on the unsupported say-so of any official no matter how highly placed, we can give ourselves no airs before the other authoritarian regimes of the Americas.

Although originally rumored more than a year ago (!) the latest moves in the Padilla case are striking developments in several ways.

First, the timing: the indictment comes only days before the US Justice Dept. is due to file its answer to Padilla's petition for cert, that is just before the US would have to argue that the Supreme Court should not take review of an unusually expansive government-can-do-anything opinion by Judge Luttig in the 4th Circuit. The decision to formally charge Padilla, after all these years of holding him incommunicado in durance vile, aka the Navy Brig, most likely represents a recognition by Justice that cert -- and defeat -- loomed. It is now open to Justice to argue that the case is moot, avoiding a need to argue the merits.

In fact, however, this case is certainly not moot today, since the government has yet to say anything, much less anything binding, about what would happen to Padilla were he found not guilty. (Certainly, nothing in the presidential order releasing Padilla "to the control of the Attorney General" speaks to whether the alleged authority to hold him could be reinstated.) And the case may not be moot on Monday either, even if the government were to make the most iron-clad undertaking to the Court that Padilla himself would not be re-incarcerated under an "enemy combatant" theory.

It won't be moot Monday, because it is "subject to repetition, yet evading review" (like abortion cases, which can be heard long after the particular facts have matured). Depending how you count) this is the third or fourth time that the Bush Justice Department has sought to manipulate the Supreme Court's jurisdiction over one or another detention-related issue, and that makes it doubly clear that the Court could, if it chose, hear the case even if it were otherwise moot.

If the court will not hear the appeal, there is an intermediate ground between hearing and simple rejection of the cert petition: the Court might grant the petition, recognize its mootness, and vacate the lower court decision. Certainly, both Padilla and the nation have an interest in seeing the 4th circuit decision at least vacated. In principle, the Supreme Court can, under the so-called Munsingwear doctrine, in which the the Supreme Court recognized the "established practice" of the federal appellate system "in dealing with a civil case from a federal court ... which has become moot while on its way" to the appellate court "is to reverse or vacate the judgment below and remand with a direction to dismiss.United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The doctrine was restated in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), to emphasize that vacatur of a prior judgment is appropriate only when it is not the appellant's fault that the case has become moot: "A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." That describes Padilla's position, but practice teaches us that the Supreme Court frequently does not grant cert in order to vacate lower court judgments when the facts have become moot, as the Munsingwear/US Mancorp doctrine applies with full force to appeals as of right, as opposed to discretionary grants of cert.

Padilla's interest in having the lower court declared moot stems from the danger that some of it might be considered preclusive were he to later claim he was held illegally. The nation's interest in review and/or vacatur stems from the horrible precedent that the case presents, truly a "principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need," as my colleague Steve Vladeck noted (quoting Justice Jackson in dissent in Korematsu).

Turn now to the new indictment. If the Supreme Court grants cert, there's a significant chance that the criminal proceeding might be stayed, but it's far from certain as the new indictment is radically different from all that has gone before. It's so different as to be quite weird on the facts, and radically weird on the law.

Let's start with the factual allegations. Jack Balkin summed it up,

Originally the Justice Department claimed that Padilla had planned to detonate a "dirty bomb" (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today's indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become "a violent jihadist" and that he had conspired to send "money, physical assets and new recruits" overseas to engage in acts of terrorism."

Which brings us to jurisdiction. Padilla isn't charged with doing anything illegal in the US, but rather planning to do things abroad that would be illegal here. If this indictment were a literary work instead of a serious indictment, we'd say it was doing more telling than showing. Indeed, the indictment doesn't actually mention any specific act of violence nor any specific place it occurred or was intended to occur. Factually, it's all rather vague (which is allowed at this stage; not all indictments have to be as detailed as Fitzgerald's description of Libby's misleading testimony). The jurisdictional basis for the indictment appears to be 18 USC 956, Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, and 18 USC 2339A, Providing material support to terrorists -- in this case doing things, such as providing money, that would lead to a violation of sec. 956. While they have to spell out the crimes charged, indictments don't have to fully describe the facts on which the government bases its allegations -- that comes later. That said, the indictment does a good job of suggesting that the defendants knew each other and had a common purpose, but it is better at suggesting via lots of heavy breathing that they are Real Bad Guys than in actually demonstrating an evil act of which Padilla was actually a part other than going abroad to meet other Really Bad Guys: and indeed, it may be his crime, if indeed he committed one, was of intention rather than action. [Update: you can read more about the indictment in this post by Bobby Chesney at Opinio Juris.]

Finally, there is the small matter of venue. It is tempting to say that anything this weird finds its natural home in South Florida, and indeed the mind boggles a little at the legal circus we have in store some time in 2006 (currently scheduled for Sept. 2006, just in time for all of us to teach seminars about it), or fates preserve us, even later. But in fact, there is a method to the government's madness here: Padilla has been added, via superseding indictment to an ongoing case based here in which other alleged members of the conspiracy were already charged. It may not be irrelevant that in U.S. District Judge Marcia G. Cooke, the government should not expect a hostile bench.

UPDATE: SD FLA Blog's David Markus -- who has first-hand experience and so is in a much better position to know -- says that I'm wrong about Judge Cooke:

Froomkin (who I doubt has ever appeared before her) goes so far as to say "the government should not expect a hostile bench." If this is what the government thought, it is dead wrong. Judge Cooke -- to put it in Chief Justice Roberts' words -- calls a strike a strike and a ball a ball, and will not be pushed around by the government. She is known in this community as a fair judge who listens carefully to both sides and calls it right down the middle. She is well liked by criminal defense attorneys and prosecutors alike.

I Signed the Law Professors' Hamdan Statement

I am one of the 450 law professors who signed a statement calling on the Supreme Court to grant review of Hamdan v. Rumsfeld (No. 05-184), a case challenging the President's creation of military commissions to try "unlawful combatants":

We, the undersigned law professors at many law schools, urge that lawyers, jurists, and the public take every opportunity to reassert the rule of law, to reiterate America's constitutional commitments, and to insist on humane treatment that gives each person a fair opportunity to be heard before impartial tribunals, not ones controlled by the executive.

Although I completely agree with the text of the statement, I do feel ever so slightly odd about this project because letters like this shouldn't actually influence what the Supreme Court does. And, I suspect, they don't actually influence it either. So the project is arguably in poor taste, and probably futile. But I do believe that the issue is of enormous importance ... and what else can we do?

Vladeck: Supreme Court May Take A Mulligan on Milligan

My colleague Stephen Vladeck has a guest column at JURIST in which he looks at Jose Padilla and the Mulligan Problem. It's a very clear explanation that should appeal to both lawyers and non-lawyers alike.

Chicago, Chicago, My Kind of Place?

Other people will no doubt have a plethora of reactions to this rather heated debate over the Patriot Act between U.Chicago law professor Geoffrey Stone and Professor-Judge Richard Posner. I'm afraid that my initial reaction was that I think I'd really like Chicago (a law school which I've only ever visited once, and then only too briefly to get a feel for the place).

Please Take a Minute

Please take a minute or two to read this column by the Miami Herald's Leonard Pitts Jr., Bennett's quip touches on tacit race, crime tie before it goes behind the Miami Herald's pay archive wall.

Please.

Free Country Datum VII: Routine, or Routine Meanness?

via Informed Comment:

September 27, 2005

Office of the Chief
United States Park Police
Dwight E. Pettiford
1100 Ohio Drive S.W.
Washington, D. C. 20242

Dear Chief Pettiford:

I am writing to request information regarding the treatment of individuals arrested on September 26, 2005 in front of the White House and processed at the United States Park Police Anacostia Station.

Yesterday 384 protestors, including peace activist Cindy Sheehan, were arrested outside the White House and were brought to United States Park Police Anacostia Station. I was very surprised to learn that many of those arrested were kept handcuffed in vans and buses for up to 12 hours before they were charged and released. Some of those were released at 4:30 in the morning after being arrested at 4:00 the previous afternoon. Many of those held captive the longest were grandmothers and senior citizens. Those released after midnight were unfamiliar with Washington, DC and had no means to travel back to their hotels once the metro had closed. Anacostia is not frequented by taxicabs after midnight.

I have the following questions regarding the treatment of those arrested yesterday:

1. Why was the Anacostia Station chosen as the sole location to process all 384 arrestees when there were several other Park Police stations in the greater Washington, DC area?

2. In what other circumstances have arrestees been detained by U.S. Park Police for periods exceeding twelve hours before being charged with a crime?

3. In what other circumstances have arrestees been detained by U.S. Park Police, and kept handcuffed on buses for periods exceeding ten hours?

4. What is the established U.S. Park Police procedure for processing large numbers of arrestees in the Washington, DC area?

Please respond to the Judiciary Committee Minority Office at 2142 Rayburn House Office Building, Washington, DC 20515, telephone number 202-225-6504, fax number 202-225-4423.

Sincerely,

John Conyers, Jr.

Ranking Member

House Committee on the Judiciary

In despotic countries protesters get a one-way trip to the cells. Even in most democracies, you don't expect cops arresting protesters to treat you with kid gloves. In our country, even though there's not a shadow of a reason to think you are dangerous, we handcuff you for hours then release you after midnight in a ghetto with no transport.

And When They Came For Me...

Once again, a "what he said" reference to Eric Muller at IsThatLegal.org for Is That Legal?: I Propose The Government Maintain a List of Everyone Who Eats Baba Ghanouj

Massachusetts governor (and 2008 Republican presidential candidate) Mitt Romney seeks the wiretapping of mosques.

Naturally, the Boston Globe article reporting on this charming proposal casts those alarmed by the proposal as "civil libertarians" and "immigrants' rights advocates."

Have we really reached the point where it's just "civil libertarians" who get nervous when powerful politicians propose the suspicionless wiretapping of houses of worship?

In Germany, the Nazis first came for the Communists, and I didn't speak up because I wasn't a Communist.

Then they came for the Jews, and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics, but I didn't speak up because I was a Protestant.

Then they came for me...By that time there was no one to speak up for anyone.

--Reverend Martin Niemoller

It Can't Happen Here

In totalitarian countries, when they want to have a march and make good TV pictures, or pack a street for an address by the Dear Leader or the Chairman or whomever, they just tell all the cadre and the bureaucrats that they will be required to march.

We don't do that here, because we have a professional and non-political civil service.

Oops. Well we didn't used to to do that sort of thing. But now we do.

And what's a "freedom march" without tight control, coerced participation, and roughing up dissidents while the police look on,

One protester, Rik Silverman, 27, of Arlington said he was holding a sign that said, "Shame on You" when a marcher leaned over the railing and punched him in the stomach. A U.S. Park Police officer wrote a report but no arrests were made.

UPDATE: Carpetbagger Report has more on the unFreedom at the 'Freedom' March: protestors had signs confiscated, and this disappearance jem from the NYT:

One man who registered for the walk was detained by a Pentagon police officer after he slipped a black hood over his head and produced a sign that read, "Freedom?"

The man was removed from the Pentagon registration area, handcuffed and taken away in a police car. It was not clear whether he was charged or simply detained and the police did not respond to messages requesting more information.

Second Amendment, Anyone?

Interesting debate at the Volokh conspiracy between David Kopel, New Orleans Gun Confiscation is Blatantly Illegal, and Orin Kerr, Response to David Kopel. Kopel's original post has an update to respond to Kerr, who has a further post of his own.

I claim no relevant expertise, but in the past I have found Prof. Kerr's work on statutory interpretation to be of the highest quality (we part company sometimes on constitutional interpretation). As for Kopel, well, Kopel's approval of shooting New Orleans 'looters' is a view that justly revolts reasonable people. Of course the demerits of a speaker don't necessarily reflect on his cause.

Personally, I do not think private ownership of guns has on balance proved to be a social good, espeicially in urban areas, but I recognize that the Second Amendment protects them (up to a point, whose exact extent I remain uncertain about) whatever I may think. More generally, if we're going to argue for expansive constructions of other parts of the Bill of Rights -- and I sure am -- I think the Second Amendment gets to come along for the ride. Thus, although my knee jerks that the confiscations are suspect, I wouldn't be at all surprised if a court would side with Prof. Kerr.

First Amendment Anyone?

It seems that if you curse at the acting President who is doing a media circus near your destroyed Louisiana home, you get this treatment:

As they were salvaging a few things from Marble's home, two military police waving M-16's showed up and said they were looking for someone who fit Marble's description who had cursed at Cheney.

"I told them I was probably the person they were looking for, and so they put me in handcuffs and 'detained' me for about 20 minutes or so," Marble wrote. "My right thumb went numb because the cuffs were on so tight, but they were fairly courteous and eventually released me after getting all my contact info. They said I had NOT broken any laws so I was free to go."

So let's get this straight: A physician with a newborn baby loses most everything he owns in the hurricane, does what most of us WANT to do and "echoes" Cheney’s words he spoke on the Senate floor last year, walks away harmlessly, mission accomplished, and then once the media cameras leave, he is treated like a foreign terrorist as Cheney's goons waving M-16s handcuff him in front of his destroyed home?

I can see why the secret service might want to interview anyone who shouts obscenities at someone they have to protect; who knows, maybe the next step is a brick, or worse. That part doesn't bother me at all. But I don't get the handcuffs for exercising your First Amendment rights. Not at all.

Related post, sadly prescient: America Needs You, Harry Truman.

Rashomon, Jackboots Edition (Updated)

One view: Daily Kos: UTAH RAVERS TREATED LIKE TERRORISTS!

The other view: Rave Party: Utah County Sheriff's Office shuts down Rave Party in Spanish Fork Canyon.

The accounts differ as to whether the ravers had all the permits they needed (you need a permit to have more than 250 people on private land way out in the middle of nowhere? So it seems...)

Note however, that there is little but very violent resistance that would justify the kind of force the police are alleged to have used.

Not having been there or knowing any of the participants personally, I am unwilling to rush to judgment as to which account more closely captures the truth, although I'll say this much: if it proves to be true that the the cops were impounding cameras and trying to stop filming, I think it's fair to suspect that they might have had something to hide.

And if the accounts of violence, or raiding-despite-a-permit-and-without-a-warrant prove true, then the Utah police are simply out of control -- or worse, controlled by really bad and evil people.

Update: As is increasingly often the case, info central on this issue is the wikipedia entry. And what to make of this unsourced claim: "A source inside the Utah government reports that this action was undertaken out of fear that the Rave would be used to rally support for the protest against Bush's upcoming Utah visit." They couldn't be that crazy. Could they?

Homeland Security Continues Its Fine Work

It's those wacky folks at homeland security again: freezing the assets of a puppeteering club (they dared to change bank branches! the temerity!).

But that's really OK, because there are not going to be so many children flying around to see puppets — you see, there are babies on the no-fly list.

Oddly, some people don't see the humor in the TSA randomly preventing Americans from moving about freely in their own country.

TSA Wants to Opt-Out of All Oversight for 'Secure Flight'

Bruce Schneier has a good analysis of the latest horrible idea to emerge from the TSA.

Schneier on Security: Secure Flight News

According to Wired News, the DHS is looking for someone in Congress to sponsor a bill that eliminates congressional oversight over the Secure Flight program.

The bill would allow them to go ahead with the program regardless of GAO's assessment. (Current law requires them to meet ten criteria set by Congress; the most recent GAO report said that they did not meet nine of them.) The bill would allow them to use commercial data even though they have not demonstrated its effectiveness. (The DHS funding bill passed by both the House and the Senate prohibits them from using commercial data during passenger screening, because there has been absolutely no test results showing that it is effective.)

In this new bill, all that would be required to go ahead with Secure Flight would be for Secretary Chertoff to say so.

There's lots more.

NewSpeak Reigns in DC

The Carpetbagger carps,

How 'free' will our 'Freedom Walk' be? There are any number of reasons to find the upcoming "America Supports You Freedom Walk" disconcerting. This is an event, organized by Rumsfeld's Defense Department, which will honor the fourth anniversary of the Sept. 11 attacks with a "freedom walk" from the Pentagon's parking lot, past Arlington National Cemetery, to the reflecting pool on the National Mall. ...

Some have said that this is ham-fisted nationalism gone awry. Others have noted the distastefulness of exploiting the attacks like this. Salon mentioned the less-than-subtle effort to connect 9/11 to Iraq. ....

But here's the part that caught my attention: to participate in the "Freedom Walk," you'll need to register with the Department of Defense. ...

That's right, in order to participate in a government-sponsored "Freedom Walk" on public streets past public monuments, from one outdoor public landmark to another, you have to give your name address, phone number, and email address to the Pentagon.

Double plus ungood.

The Sleeping Giant Starts to Stir?

The American public is a sleeping giant. Most of the time life is good, and it doesn't worry about politics. Or life is busy and it doesn't worry about politics. It can be very hard to get its attention. But when it does focus, it focuses hard.

Could the sleeping giant be about to wake on issues like Guantanamo and Padilla?

Poll on Court Cites Detainee Rights as Concern: Americans seem as interested in the Supreme Court's approach to the rights of detained terrorists as they are in abortion, according to polling released yesterday. Both are considered very important issues facing the high court.

...

"This important question of the trade-off of civil liberties and protection is one the public takes very seriously," said Andrew Kohut, director of the Pew Research Center. "The public has been reminded recently of the ongoing threat of terrorism and what we should or should not have to sacrifice for our safety." He did note that, until now, the question of detainees' rights "has not been one of the issues at the forefront of debate about the Supreme Court.

The Citizen's Guide to Refusing New York Subway Searches

Liberty is often lost in little drips.

The Citizen's Guide to Refusing New York Subway Searches | FlexYourRights.org: While Flex Your Rights takes no position on the usefulness of these searches for preventing future attacks, we have serious concerns that this unprecedented territorial expansion of police search powers is doing grave damage to people's understanding of their Fourth Amendment protections against unreasonable searches and seizures.

In addition, as innocent citizens become increasingly accustomed to being searched by the police, politicians and police agencies are empowered to further expand the number of places where all are considered guilty until proven innocent.

Fortunately, this trend is neither inevitable nor irreversible. In fact, the high-profile public nature of these random subway searches provides freedom-loving citizens with easy and low-risk opportunities to "flex" their Fourth Amendment rights by refusing to be searched.

If you're carrying a bag or package into the subway, here's what you need to know and do in order to safely and intelligently "flex" your rights:

Secret Service As Art Critics

In some countries, if you post something that is critical of the Maximum Leader, the police come around and suggest that maybe you are psychologically disturbed. Maybe they mention this idea to your family and your boss. Maybe they 'suggest' you'd like to retract your critique.

Amazingly, that's the United States today: When Bears Growl (Or how I become the subject of a Secret Service Investigation).

I don't object to the Secret Service following up on complaints. And if the subject of the complaint is web art on “Bush and guns” I don't think it is unreasonable to go and visit the author to see if he seems like someone likely to engage in violence.

But if the account linked above is accurate, then I think its fairly clear that somewhere in the investigative process the Secret Service crossed a line.

Bad apples or agency policy?

Padilla Latest

Padilla latest from Scotusblog :

The Supreme Court may act as early as next Monday on his attempt to get the Justices to review his challenge to his status and his indefinite detention, before the Fourth Circuit can rule.

The petition in 04-1342 seeks direct review of a ruling in February by U.S. District Judge Henry F. Floyd of Spartanburg, S.C., concluding that the President has no authority to designate and detain as an “enemy combatant” a U.S. citizen captured on U.S. soil.

…

The litigation is also moving along on an expedited schedule in the Fourth Circuit (docket 05-6396), on a regular appeal path by the Justice Department after its loss in Judge Floyd's ruling. The latest development there was the filing on Monday of Padilla's brief.

A Voice from Civilization

The headline is far too tame: New Swedish Documents Illuminate CIA Action. Here's the real meat regarding Sweden's new report an an extraordinary rendition conducted by the US CIA which removed an Egyptian national from Sweden to Egypt (chained to a mattress no less):

… in Sweden a parliamentary investigator who conducted a 10-month probe … recently concluded that the CIA operatives violated Swedish law by subjecting the prisoners to “degrading and inhuman treatment” and by exercising police powers on Swedish soil.

“Should Swedish officers have taken those measures, I would have prosecuted them without hesitation for the misuse of public power and probably would have asked for a prison sentence,” the investigator, Mats Melin, said in an interview. He said he could not charge the CIA operatives because he was authorized to investigate only Swedish government officials, but he did not rule out the possibility that other Swedish prosecutors could do so.

…

Swedish security police said they were taken aback by the swiftness and precision of the CIA agents that night. Investigators concluded that the Swedes essentially stood aside and let the Americans take control of the operation, moving silently and communicating with hand signals, the documents show.

“I can say that we were surprised when a crew stepped out of the plane that seemed to be very professional, that had obviously done this before,” Arne Andersson, an assistant director for the Swedish national security police, told government investigators.

Yes, the US is very experienced in barbarity these days.

The two Egyptians later told lawyers, relatives and Swedish diplomats that they were subjected to electric shocks and other forms of torture soon after their forced return to their country.

Which was, of course, the point of the whole exercise.

Note that the two men had applied for asylum, but been refused, and were subject to an expulsion order.

Swedish security police wanted to arrest the men and put them on a flight to Cairo immediately to avoid giving their lawyers a chance to file an emergency appeal in court.

Swedish government ministers hastily scheduled a meeting for Dec. 18, 2001, to formally approve the expulsion. But the security police were unable to charter a flight to take the Egyptians to Cairo until the next morning. Police officials, worried about an overnight delay, turned to the CIA for help, according to the documents.

I'm sure there's a Swedish fable about getting help from ogres or something.

FBI Harassment Is Not 'Tinfoil'

Remember this, the next time you are tempted to dismiss accusations of political harassment as somehow implausible.

Protesters Subjected To 'Pretext Interviews': New FBI documents to be released today show that anti-terrorism agents who questioned antiwar protesters last summer in Denver were conducting “pretext interviews” that did not lead to any information about criminal activity.

The memos were obtained by the American Civil Liberties Union as part of ongoing litigation and provide a glimpse of the FBI's controversial efforts to interview dozens of members of leftist protest groups before the party conventions last year in Boston and New York.

…

Instead, one heavily censored memo from the FBI's Denver field office, dated Aug. 2, 2004, characterized the effort as “pretext interviews to gain general information concerning possible criminal activity at the upcoming political conventions and presidential election.”

This is how freedom gets eroded, drip by drip.

If this story is true, then it seems that the federal police apparatus is now at least as corrupt (morally, not in the bribery sense) as it was in Nixon's day. Given everything else we are hearing, maybe even more so.

Democracy was in danger then, and it's in danger now.

Earlier “boiling frog” post.

But Is It Dishwasher Safe?

Where does Ann Bartow find all this stuff?

The Disappearing Civil Liberties Mug is covered with the complete text of The Bill of Rights, but when filled with hot liquids, select rights vanish before your very eyes!

(via If the Coffee Alone Doesn't Make you Irritable…)

Louis Fisher Slams Detention of US Citizens Without Trial in CRS Report

Secrecy News 04/28/05 breaks the story of a new report from the Congressional Research Service that disputes the Bush Administration's claim that the President has unlimited authority to detain American citizens in wartime if he deems them to be enemy combatants.

Significantly, “Detention of U.S. Citizens,” Congressional Research Service, April 28, 2005, is by the highly respected Louis Fisher, an authority on constitutional law.

The introduction says that the report is aimed at a core issue raised in the Padilla case:

In 1971, Congress passed legislation to repeal the Emergency Detention Act of 1950 and to enact the following language: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The new language, codified at 18 U.S.C. §4001(a), is called the Non-Detention Act. This statutory provision received attention after the 9/11 terrorist attacks when the Administration designated certain U.S. citizens as “enemy combatants” and claimed the right to detain them indefinitely without charging them, bringing them to trial, or giving them access to counsel. In litigation over Yaser Esam Hamdi and Jose Padilla, both designated enemy combatants, the Administration has argued that the Non-Detention Act restricts only imprisonments and detentions by the Attorney General, not by the President or military authorities.

And the conclusion is blunt:

Legislative debate, committee reports, and the political context of 1971 indicate that when Congress enacted Section 4001(a) it intended the statutory language to restrict all detentions by the executive branch, not merely those by the Attorney General. Lawmakers, both supporters and opponents of Section 4001(a), recognized that it would restrict the President and military authorities.

RNC Arrests Supported With Doctored Evidence

After the police smothering of anti-trade-liberalization protests in Miami, and of the anti-GOP protests in New York, it's harder than it used to be to assert that we have a meaningful right to assemble and protest in this country.

Stories like this don't help:

Videos Challenge Accounts of Convention Unrest: For Mr. Kyne and 400 others arrested that week, video recordings provided evidence that they had not committed a crime or that the charges against them could not be proved, according to defense lawyers and prosecutors.

Among them was Alexander Dunlop, who said he was arrested while going to pick up sushi.

Last week, he discovered that there were two versions of the same police tape: the one that was to be used as evidence in his trial had been edited at two spots, removing images that showed Mr. Dunlop behaving peacefully. When a volunteer film archivist found a more complete version of the tape and gave it to Mr. Dunlop's lawyer, prosecutors immediately dropped the charges and said that a technician had cut the material by mistake.

How convenient.

Those Shirts Are Looking Mighty Brown, Sir

I have been puzzled and perturbed by the comments on my most recent post in which I quoted from a description of the reception of a polite but hostile questioner at a Coulter speaking event (note that this is ostensibly a lecture, not a brownshirts rally we are talking about) and suggested they sounded proto-fascist.

At the same moment, several Republicans hurled obscenities at my wife, a Navy veteran, and one threatened her with physical violence, stating he would kick her in the head if she didn’t “shut up,” when she was asking Coulter a question.

Hissing questioners you disagree with is, I believe, quite appropriate. Booing I can understand although I think preventing people from being heard usually is an error in judgment. Even screaming “shut up” is tolerable. But threatening to kick you in the head?

Yet my readers – whom I choose to think are likely literate and well-educated – are trying to excuse it. One writes that this comes from both sides of the political aisle and has been happening for years. Rubbish. Another says that complaining about threats of violence is somehow a cheap shot on my part, and suggests that life in the ivory tower has made me forget about the rough-and-tumble of real life. The writer then equates a threat of physical violence with (unnamed) professors being verbally tough on students!

Another commentator says we should not call it “fascist” until “thugs show up”. To which I offer the following deal: how about we'll call battery fascist and mere assault — defined, please recall as “an unlawful threat or attempt to do bodily injury to another” — merely proto-fascist.

Yet another commentator says they were asking for it! (And when the Coulter fans whose rally they were at told them to shut up (did they really find this surprising?), our narrators became offended. That falls squarely into the category of “those who actively seek to be offended will usually be successful.”) Yes, those poor shrinking violets, both military veterans, had their feelings hurt…when someone threatened to kick them in the head.

We are indeed in parlous times when the articulate people — intellectuals — are providing cover for, and thus encouraging the thugs. It's enough to make you think that David Neiwert is on to something when he warns about the ill effects of eliminationist rhetoric and the rise of pseudo-fascism.

Another One for the "It Can't Happen Here" File

Another disturbing sign of the times: no one is allowed to dissent:

First Draft - More from the Mail Bag: My wife and I, both veterans of the U.S. military, found out the truth about Republican support for veterans at Ann Coulter's lecture last Tuesday. After I, a former Marine infantry sergeant, asked Coulter how she defended her promotion of the war, based on lies, which has sent 1,500 of my brothers and sisters to their deaths and 100,000 Iraqis to their graves, she responded that, “you're even stupider than I thought.” This received an abundance of applause from the party that claims to “support our troops.”

At the same moment, several Republicans hurled obscenities at my wife, a Navy veteran, and one threatened her with physical violence, stating he would kick her in the head if she didn't “shut up,” when she was asking Coulter a question.

Sound proto-fascist to you? It does to me. (But subversive performance art is not the answer.)

The Insidious Effects of Security State Blacklists

Many people have blogged the New York Times's account of the would-be pilot who can't fly because the government has put him on a secret list he can't get off. But none of the blogs I read has noted the most insidious and evil aspect of the story in With Watch List, Pilot's Career Is Stalled.

Yes, it's very very evil that this man has been denied not just due process, but any process at all to remove this serious impediment to his chosen career. His freedom is compromised.

And the article paints him as a nice, sympathetic guy, a victim, who just happens to have helped a 9/11 terrorist by giving him a ride to flight school, and also helped him move some furniture one day. I have no reason to doubt that Juan Carlos Merida is innocent of any crime, and is as nice as the quoted people say he is.

But look at what the circumstances of being trapped in this Kafkaesque vise did to Mr. Nice Guy:

In his eagerness to prove his loyalty and win over the F.B.I., Mr. Merida said, he readily agreed to agents' requests last year to supply confidential information on other flight school students. But that has gotten him nowhere, he said.

That's right. Mr. Nice Guy was so desperate to get off the US government blacklist that he became an informer on his fellow students. And even that wasn't enough.

So we have secret arbitrary blacklists that make you berufsverbot. We have people crawling to the secret service offering to be informers to save their careers. Will the next step will be secret denunciations. Almost certainly. If it goes on long enough then, in time, stoolies will have to meet their quotas for denunciations or get in trouble. Yes, I've seen this movie before. It wasn't pretty. But last time the actors had Russian and East German accents.

First Amendment and Bush 'Town Hall'

These people got ejected from a Bush “town hall meeting” on Social Security because of a bumper sticker on their car: Secret Service investigating removal of three from Bush visit. What's interesting here is that it's possible the Secret Service didn't do it but someone else, possibly pretending to be a Secret Service agent did the evictions. (See also this fuller account at Daily Kos.)

• If the Secret Service had anything to do with this, it violated the law and the Constitution

• If the evictions were by private citizens misrepresenting themselves as government officials, they committed a crime

• If the evictions were by private citizens being intimidating, it could be a crime or civil offense (e.g. assault, threats, depends on state law)

• It's conceivable that there might be a way for private citizens to artfully mislead people and give the impression they are secret service agents without actually making actionable mis-statements (“Sir? Could you please come this way? I need to talk with you. I'm sorry, but you will have to leave. Security. I'm sure you will understand.”) I just don't know enough about the relevant law to be sure.

Update (3/30): The Washington Post has more on the story:

As described by Recht, a man in a blue suit told the three they had to leave and “in a physical, forcible way” escorted them out, refusing to explain why. Mackin said local law enforcement is in charge of policing civil disobedience at such events, although the Bush advance team is often seen asking disruptive people to leave.

Important Changes to Your Citizenship Agreement

Slate, Evan Eisenberg: Important Changes to Your Citizenship Agreement - Please read and retain for your records.

Ouch.

Can't ANYTHING Be Done About This?

Via Dan, a link to UA Young Democrat banned from forum:

A UA student was banned from attending President Bush's Social Security forum at the Tucson Convention Center yesterday.

UA Young Democrat Steven Gerner, a political science and pre-pharmacy sophomore, said he and three other Young Democrats had been waiting in line with their tickets for about 40 minutes when a staff member approached him and asked to read his T-shirt.

Gerner was the only one of the four wearing a UAYD T-shirt, which read, “Don't be a smart (image of a donkey, the Democratic Party symbol). UA Young Democrats.”

Gerner said the staffer, who refused to provide his name, asked for Gerner's ticket and crumpled it up.

Taxpayers paid for this event — it's not a campaign rally. And I don't care if the White House says it's over-zealous local people doing this — first of all there's a pattern and practice of this behavior at Bush events. Second, if it is unsanctioned then taking the ticket and ripping it up is a criminal act. Let's see a prosecution, please.

Three Things To Read Today

• Obsidian Wings on HR 952, a bill that would ban 'extraordinary rendition'
• Lyle Denniston at the SCOTUS Blog describing the government's application to keep Padilla in the brig pending further proceedings in the wake of Padilla's recent victory; this is a warm-up to:
• Marty Lederman's through and accurate deconstruction of the absurdity and evil that permeates the government's arguments in support of its request to continue to hold Padilla in durance vile

PADILLA WINS BIG!!!

Padilla wins—bigtime in the District Court in South Carolina (warning: court site may be overloaded…here is an alternate site).

The government is ordered to release him (or charge him)… but only in 45 days…. I would imagine there will be an appeal…

[updated:] Here's what the court has to say to the government's Yoo-ish argument that the President can order any citizen jailed for whatever reason he wants, even in the face of a Congressional enactment, 18 U.S.C. § 4001(a), that says, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

Accordingly, and limited to the facts of this case, the Court is of the firm opinion that it must reject the position posited by Respondent. To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.

For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be. Pursuant to its interpretation, the Court finds that the President has no power, neither express nor implied, neither constitutional nor statutory, to hold Petitioner as an enemy combatant.

I could do without the suggestion that the Court “might wish” to see the President enjoy the arbitrary power of detention against any citizen, but however you slice it this is a stinging rebuke of the Administration's awful arguments.

Here's the sole fly in the ointment: “Of course, if appropriate, the Government can bring criminal charges against Petitioner or it can hold him as a material witness.” The material witness statute is itself routinely being abused.

More News About Our Shaky Democracy

From Talking Points Memo (quoting the North Dakota Fargo Forum):

Fargo City Commissioner Linda Coates is among more than 40 area residents included on a list of people barred from attending President Bush's speech today in Fargo.

Among the 42 area people on the do-not-admit list: two high school students, a librarian, a Democratic campaign manager and several university professors.

White House spokesman Jim Morrell and Don Larson, a spokesman for the North Dakota governor's office, say they don't know anything about such a list.

“This is the first I'm hearing of it,” Morrell said when contacted Wednesday.

But two sources close to Tuesday's ticket distribution confirmed the list exists and includes a handful of names of people who were not to receive tickets to today's event at North Dakota State University's Bison Sports Arena.

The list was supplied to workers at the two Fargo distribution sites, along with tickets and other forms citizens were asked to fill out upon receiving them. People who handed out tickets had copies of the list at their tables to determine if anyone should be denied access, both sources said.

The list contains a wide range of people. Several wrote opinion page letters to The Forum criticizing Bush or the war in Iraq. Others wrote letters in support of gay rights or of Democratic policies.

Legally, if the space is rented for a private event they can block who they like, but it's still ugly when a public official behaves like that. If they are not paying rent, it is a sufficiently public forum that this is a legal wrong as well as a moral travesty.

TSA Metastasizing?

Cory Doctorow's open letter to American Airlines about his recent experience with airport security at Heathrow is worth reading. Here's an excerpt:

The security officer then handed me a blank piece of paper and said, “Please write down the names and addresses of everyone you're staying with in the USA.” I actually began to write this out when I was brought up short. “Wait a second — since when does AA compile a written dossier on the names and addresses of my friends? Why are you asking me this? Do you have a privacy policy and a data-retention policy I can inspect prior to this?” The security officer told me that this was a Transport Security Agency (TSA) regulation. I asked for the name or number of the regulation, its text, and the details of the data-retention and privacy practices in place at AA UK. The security officer wasn't able to answer my questions, and she went to get her supervisor. After several minutes, her supervisor appeared and said, after introducing himself, “Sir, this is for your own protection.”

It's of course possible it's not really a TSA rule at all; although I wouldn't be a bit surprised if it's something special rolled out for the inauguration coronation.

Thing is, though, if they are doing this in the UK, they face a populace with actual rights:

Under the UK Data Protection Act, AA is required to be accountable for the personal information it collects from the public. On presentation of a nominal fee of ten pounds, AA is expected to provide a reasonable accounting of what information it has gathered from me and how it uses that information. I believe gathering these dossiers means that you incur this liability not only to me, but to all of my friends, too — in other words, if you require me to give you my friends' name and address, my friends also have the right to find out how you use that information. This explodes your data-retention liability, potentially by an order of magnitude.

US Reverses Unconstitutional Policy Making Editing A Crime

Crooked Timber: Editing Embargo Ends reports that the US has lifted its very likely unconstitutional rule prohibiting domestic editing of works by foreigners from embargoed nations. I wonder if it was the lawsuit or if this incident had anything to do with the sudden liberalization?

UK's House of Lords Holds that Indefinite Detention Violates European Convention on Human Rights!

You know you are in trouble when the House of Lords is more protective of civil rights than the US court system: Law lords back terror detainees

Detaining foreigners without trial under emergency anti-terror legislation breaks European human rights powers, law lords ruled today.

The decision from the law lords, Britain's highest court, throws the government's security policies into chaos.

A specially-convened committee of nine law lords upheld an appeal by nine foreigners who have been detained without charge or trial, most of them in Belmarsh prison, south-east London, for around three years.

Experts said today's decision would probably force the government to repeal the section of the Anti-Terrorism, Crime and Security Act 2001 which has permitted the indefinite detention of foreigners.

The law lords, making the ruling in the chamber of the House of Lords, described the legislation as “draconian” and “anathema” to the rule of law.

OK, OK, my slur on our Supreme Court is ever so slightly unfair, as the US case with the most closely related fact pattern, the Padilla case, was turned down on procedural grounds. (Both cases involve domestic detention of a suspect arrested domestically; the cases differ slightly, however, in that Padilla was a US citizen while the persons in the UK case are foreign nationals, albeit presumably legally admitted to the UK.) Read between the lines of Padilla and the other detention cases and you could get to a point where we end up a bit like the UK….but my point is that this requires some squinting and meanwhile Padilla is still in jail without charges or prospect of trial or indeed any idea of when he might get out.

Note also that in the US the Bush administration has implemented indefinite no-trial detention without a shred of statutory justification. Conversely, in the UK the detentions were not by executive fiat, but pursuant to an act of Parliament. Nevertheless, the Law Lords — who once proclaimed Parliamentary supremacy, but now have new powers under the European Convention and the UK's Human Rights Act, —have struck down indefinite detention in no uncertain terms, and by an 8-1 vote, as barbaric and uncivilized.

History will be cruel to this administration, which is indeed barbaric and uncivilized. Squandering the US's moral capital while looting the Treasury for the rich and debasing our currency is an historic achievement, but not one that one wishes to live through; it seems likely that the aftermath will be substantially worse.

Ogged On

Unfogged:

Sometimes I get the sense that people are waiting for the skies to darken, as if the heavens will signal when we've become a repressive society; but that's not going to happen, and, in fact, it should already have happened. The difference between the U.S. now, and those repressive regimes is just one of degree: the policy, already implemented, of this government is for indefinite detention without charge; torture while in custody, and court proceedings which make use of information extracted by torture.

And more there too.

Where Left Meets Right

The place where the traditional left and the traditional right meet—as against the radicals currently in power—is civil liberties. So I find my self agreeing with, of all people in the world, a far-right ex-Congressperson who I would have put on my list of “top 5 nuts in office” while she served.

FAS Secrecy News, [IP] The Arrival Of Secret Law: Last month, Helen Chenoweth-Hage attempted to board a United Airlines flight from Boise to Reno when she was pulled aside by airline personnel for additional screening, including a pat-down search for weapons or unauthorized materials.

Chenoweth-Hage, an ultra-conservative former Congresswoman (R-ID), requested a copy of the regulation that authorizes such pat-downs.

“She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told that she couldn't see it,” local TSA security director Julian Gonzales told the Idaho Statesman (10/10/04).

“She refused to go through additional screening [without seeing the regulation], and she was not allowed to fly,” he said. “It's pretty simple.”

Chenoweth-Hage wasn't seeking disclosure of the internal criteria used for screening passengers, only the legal authorization for passenger pat-downs. Why couldn't they at least let her see that? asked Statesman commentator Dan Popkey.

“Because we don't have to,” Mr. Gonzales replied crisply.

“That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else,” he said.

There's something seriously wrong here, if we can't even see the rule (as opposed to the screening criteria which might legitimately be kept from the public) authorizing the search.

Which is why I'm involved in various efforts to make the government cough up the text of the alleged regulation, and justify it.

You can read more about the ugly things that TSA is up to regarding the right to travel at Ed Hasbrouk's blog. Also see Emergent Chaos.

Hamdi's Citizenship

There's a letter in today's New York Times that crystalizes how I feel about the outcome of the Hamdi case:

Yaser Hamdi, U.S. Citizen

Re “U.S. Releases Saudi-American It Had Captured in Afghanistan” (news article, Oct. 12):

You report that as a condition for releasing Yaser E. Hamdi, who was held without charges and in solitary confinement for about three years, the United States required that he “renounce his American citizenship.” The United States government has no authority to compel such a renunciation, and Mr. Hamdi's proclamation that he is no longer an American is legally meaningless.

Mr. Hamdi was born in Louisiana. The United States Constitution defines anyone who is born in the United States as a citizen. Neither the State Department, the Justice Department nor the president has the authority to alter the Constitution unilaterally.

In Vance v. Terrazas, the Supreme Court made it clear that the government cannot coerce someone to surrender citizenship.

By trying to do precisely that, the United States has continued to act lawlessly toward Mr. Hamdi.

David R. Dow
Houston, Oct. 13, 2004
The writer is a professor at the University of Houston Law Center.

Isn't it somewhat, um, scary when the government can lock a citizen up in solitary for three years, deny access to lawyers or family, then say, “Hey, no need for a trial or anything messy like that: We'll let you out of solitary if you agree to permanent exile?”.

It sounds Soviet to me.

Has the FBI Nothing Better to Do?

If the FBI is rational — bear with me here! — then its decision to allocate resources to trying to figure out who writes in the margin of library books in rural Whatcom County, Washington, suggests that it is vastly overstaffed. And if this is how the FBI spends its time, I can't imagine why we want to give it more authority…

Bush Team Flip-Flops on Support for Torture

This is a good flip-flop: The President's Stance on Torture is now that he's against it. Nice to see that public outrage can still achieve something.

Heartbreaking that it takes massive public outrage just to keep the (official) anti-torture status quo.

Bruce Schneier Has A Blog

Bruce Scheneier, author of “Applied Cryptography” and other wonderful books, has a blog called Schneier on Security. I'm sure it will be very good.

Torture Outsourcing Update

Obsidian Wings has an important Torture Outsourcing Update, with news about the the House Republicans' attempt to legalize “Extraordinary Rendition” and the growing, and horrified, reaction to it. Well, outside of the Ashcroft Justice Dept., which is all for it.

This episode alone fully justifies voting against George Bush.

Katherine R. at Obsidan Wings concludes her update with this query:

I want to ask—very loudly ask— a direct question to any members of the media who might end up reading this post:

Newspapers have reported that the second highest ranking official in the Department of Justice signed the order deporting Maher Arar to Syria, and that the President has signed a secret “finding” authorizing extraordinary renditions.

But George W. Bush and his press secretary have never, ever been asked about what happened to Maher Arar. Nor have they ever been asked about their position on extraordinary rendition.

Why not?

A Vote for Bush Is a Vote for Torture

Harsh words, yes, but how else to describe this atrocity?

The Bush administration is supporting a provision in the House leadership's intelligence reform bill that would allow U.S. authorities to deport certain foreigners to countries where they are likely to be tortured or abused, an action prohibited by the international laws against torture the United States signed 20 years ago. …

The provision, human rights advocates said, contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted this spring that the United States would stand behind the U.N. Convention Against Torture. Hastert spokesman John Feehery said the Justice Department “really wants and supports” the provision.

For background please see Voting Republican This Year = Voting for Torture .

Voting Republican This Year = Voting for Torture

It's not enough that Rumsfeld and probably Bush not just tacitly condoned but actively encouraged studies of optimal torture regimes, creating a climate in which undeniable and disgusting torture was used against Iraqi civilians, including children. And at Guantanamo (more). Even they at least had the hypocrisy to attempt to do the Iraq torture planning under wraps. (Hypocrisy being “the tribute vice pays to virtue”.) Meanwhile, at home, being too delicate to torture domestically, the Administration quietly subcontracted the job to Syria. (See my post almost exactly a year ago, Maher Arar Affair: What is the Pluperfect of 'Cynic'?.)

Comes now a group of Congressional Republicans who are pure vice, and are not even trying to hide it: they have proposed that US law be amended to remove protections against torture — ie to legitimate torture, to plan to torture — for people we label “terrorists” (modern unpersons). The full horrid details are at Obsidian Wings: Legalizing Torture. The key move would be to exclude “terrorists” from the protection of the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment. The “terrorists” could be held in secret unless they could somehow overcome (without lawyers or witnesses?) a presumption of guilt. When they failed to overcome this impossible burden they could be subject to “extraordinary rendition” which is bureaucrat for “being ported or transferred to a country that may engage in torture”—a deportation that currently would be a serious violation of US law.

Anyone who votes for people capable of supporting these policies has blood on their hands. Not to mention what they are doing to the image of the US as the 'City on the Hill', the beacon to mankind. Once we descend into the torture pit, we're just arguing about circles in Hell.

Oooh What A Lawsuit This Will Be

Hard as it is to believe, it appears that the insanitary and possibly toxic area used to hold demonstrators during the Republican convention was not a city facility, but a property provided by the RNC.

Although there are potentially some complex legal questions lurking around the terms by which RNC might have made the space available to the cops, in several imaginable scenarios — but not all! — the RNC might be liable for any damages caused by toxic exposure. Alternately, or even jointly and severally, the city might be extra liable if it used a facility that it knew or should have known was unsuitable.

I suspect that some plaintiffs' lawyers are going to have a (justified) field day with all this.

Free Country Datum VI: Secret Service v. First Amendment

When the Praetorians start preventing the press from doing its job, that's serious: Bush uses Secret Service to keep reporters from protestors.

But of course the Secret Service are not tasked with protecting citizens from being attacked for exercising their rights, so they cannot be blamed for inaction when people are kicked or otherwise attacked by other citizens.

Three Days as a 'Political Prisoner' in NYC

James Gaites has an excellent first-person account of his recent experience of very civil disobedience during the Republican Convention. Death and Life in New York: Three Days in the City for an RNC Protester.

There is surely grist for the mill here for everyone. The police arrested many people whithout cause, including bystanders. They also penned up protestors and then arrested them for failing to disperse, having made it impossible.

Once arrested, it's obvious that at the very least NYC did not make much effort to process protestors either as quickly as the law required or as quickly as they could have, indeed managed (intentionally?) to put them on ice for the entire convention. And the outdoor pen in which people were held may have had biohazards that people were forced to sleep on. Sanitation was rough.

On the other hand, there were no systematic beatings, some food was provided eventually, and even people who were clearly guilty of parading without a permit were released without fines. No one disappeared, and now they are free to write about it and to litigate.

How do we score this? To call it a 'win' for civil liberties is to set the bar far too low. Yet, is the term 'political prisoner' really apt? If so, it's the mildest confinement regime for a 'political' I ever read about.

Scary if True

I am always skeptical about third hand stories, but less so when they have names attached throughout their provenance, and this one does. Here's a tale to make you sad at least, and maybe worried,

Detained for Refusing to Clap: i was dragged off the floor of the RNC, just as bush began his speech, by three cops because i refused to accept and wave an american flaglet. earlier, they had already called me and art s. away from our press seats because we were wearing t-shirts with slogans, but they couldnt decipher them, and couldnt find anything “wrong” so we were allowed to go back. . arts t-shirt read “pray for a secular society”, mine just had chinese characters and then the word Bush. i told them the chinese meant i love —bush. then when bush came, i got up, walked downstairs to the central arena, i had a permit to do so, was handed a flag, , said no thanks, and immediately felt a hand on my shoulders. two thugs and a secret service officer hauled me away. they took away all my documents, held me for an hour, called the immigration service to check on my status as an american citizen, took away my phone after i spoke to emily in german, “you dont speak in a language we cant understand here”, i was interviewed by five different cops, including a Good Cop, the secret service man, two immigration experts, and one real gangster. they were going to take away my purse when i persuaded the good cop to google me up on the internet before doing another thing. then he brought me my documents, and he and the original two thugs escorted me to the street, trying to make nice on the way.

When you can be arrested and gang-questioned for failing to wave a flag, then it's not the America I learned about in law school. But it does start to resemble some places I learned about in History class.

Update: Now auditioning for the role of brownshirt.

Free Country Datum V: 'The System Worked'

George Paine at Warblogging.com says that the fact that protestors got sprung realllly sloooowly, but faster than the cops wanted, is a sign the system worked. In one sense, of course, he's right: in a very unfree country protestors vanish, or get four years of hard labor.

Warblogging.com: Judge to City: You're in ContemptThe New York Civil Liberties Union and the National Lawyers Guild filed writs of habeas corpus with the State Supreme Court earlier this week. A judge responded immediately by issuing a writ ordering the release of detainees held for more than 24 hours. The city appealed and was granted a stay. But yesterday the case came before Judge Cataldo, who again ordered immediate release.

At noon, arguing before Judge Cataldo, the city corporation counsel said “We couldn't get everyone processed as quickly as we liked… We're doing our best.” Judge Cataldo immediately replied “I'm ordering that.”

Later in the hearing the judge told the corporation counsel that “These people have already been the victims of a process. I can no longer accept your statement that you are trying to comply.”

By 6pm the NYPD had released few demonstrators. It was at this point that Judge Cataldo grew frusterated. He ordered a $1,000 fine for every protester still behind bars.

An hour later there had still been no movement by the NYPD. “We're coming back again until this is settled,” the judge said. “Once again, the order is, release these people.”

Norman Siegel of the New York Civil Liberties Union complained to the judge that it was only protesters who were being disadvanted by the city. He noted that actual criminals were being arraigned within the 24 hour window the law provides. “The only people being disadvantaged here are the protesters. We're arraigning robbers who have only been in 10 hours.”

Finally, hours later, the city began releasing detainees. They were met by hundreds of well-wishers, including friends and family, who cheered their release.

The reason that so many protesters were held so long without charges is obvious. Charges against most protesters would simply not stick. They were caught up in police nets — literally — and the victims of arbitrary arrest. They were charged with minor transgressions such as “blocking the sidewalk”.

The system, with lots of support from civil libertarian lawyers and the judiciary, has worked. The protesters have been released — and many were released in time for George Bush's speech at the RNC. Unfortunately the taxpayers will literally pay the bill for the NYPD's illegal detention of these protesters. First we will pay Judge Cataldo's fine. Next we will pay to settle the lawsuits of those detained.

If the protestors win anything above token damages, then I'd score this a victory.

Free Country Datum IVa

It seems the NYC cops may not just be sweeping up bikers and holding them in pens, but photographers, tourists and grandmothers too. Gotta watch out for them public library users!

(The NYCLU is working to try to sort out the mess.)

Does this incident undermine or support Robert Waldman's suggestion that,

I recall Michael Froomkin's null hypothesis that the USA is still a free country and the proposed test of this hypothesis “The Republican national convention and the protests it inpires seem like a decent field test of the hypothesis that it’s still a free country.”

I'd say the evidence so far tends to support the alternative but is statistically insignificant because of the possibility of a heteroskedastic disturbance term (that is this “commanding officer might be mentally disturbed).

Free Country Datum IV: Arrested, Held, Without Charges -- For Biking on the Street

arrest | Toneland describes an arrest — allegedly without any charges — for biking (in a very large group) on a public street. The arrest was followed by moderately unkind treatment that could be explained perhaps as cops coping with the expected chaos of the Republican convention, or could be seen as a punitive measure to 'send a message' to demonstrators.

Of course, this first person narrative is just one side of the story. Here's CNN's account, in which the police say the bikes were blocking traffic (by moving in traffic?). I thought you got a ticket for that, not 16 hours in a holding pen followed by a trip to the Tombs.

Interestingly, there's no suggestion the arrests were for demonstrating without a permit. In any case, the issue here isn't just the charge, or lack of a charge, but also how the bikers were treated.

One hears much worse stories about other countries, and indeed about this one. But we still can do much better than this.

'Free Country' Datum III--"Material Witness" Detentions

The New York Times reports on the saga of Abdullah al Kidd.

1. Abdullah al Kidd is a US citizen;
2. Mr. Kidd was at no point charged with doing anything wrong, and the NYT reports nothing that suggests there was any reason to suspect him nor that any law enforcement officers ever had a reasonable suspicion he did anything illegal;
3. Mr. Kidd didn't know much of importance;
4. What Mr. Kidd allegedly knew was about another guy who was aquitted of aiding alleged terrorists by working on a web site, and all he supposedly knew was something about the other guy having overstayed a visa;
5. The other guy's prosecution was itself a disgrace—a complete stretch of the law that, had it succeeded, could have made any computer consultant a 'terrorist'.

Mr. Kidd was detained as a material witness for 16 months, some in jail and the rest forced to live with his in-laws where he had been staying temporarily prior to leaving for his scholarship in Saudi Arabia. During this period, he lost his graduate scholarship. The director of the FBI testified to Congress that Mr. Kidd's arrest was a triumph of counterterrorism. Mr. Kidd had to work moving furniture. His wife left him and took his daughter. Now he finds he's as unemployable as if he were a convicted felon.

I believe this abuse of the material witness statute to be incompatible with freedom. It is one more reason why not re-electing George W. Bush is essential to preserving our liberties. And if Congress had any guts, it would amend the material witness statute post haste. (Being something of a realist, I'd even settle for immediately post-election.)

For Post-9/11 Material Witness, It Is a Terror of a Different Kind: Abdullah al Kidd was on his way to Saudi Arabia to work on his doctorate in Islamic studies in March 2003 when he was arrested as a material witness in a terrorism investigation. An F.B.I. agent marched him across Dulles Airport in Washington in handcuffs.

“It was the most horrible, disgraceful, degrading moment in my life,” said Mr. Kidd, an American citizen …

The two weeks that followed his arrest, he said, were a terrifying and humiliating ordeal.

“I was made to sit in a small cell for hours and hours and hours buck naked,” he said. “I was treated worse than murderers.”

After that, a federal judge ordered him to move in with his in-laws in Las Vegas, where his wife was planning to stay until she joined him in Saudi Arabia.

Mr. Kidd, who described himself as “anti-bin Laden, anti-Taliban, anti-suicide bombing, anti-terrorism,” was never charged with a crime and never asked to testify as a witness. In June, 16 months after his arrest, the court said he was free to resume his life.

But at the kitchen table of his dumpy little bachelor flat here, with a television on the floor and incense in the air, Mr. Kidd said the experience had cost him dearly. He lost his scholarship, he now moves furniture for a living, and his marriage has fallen apart. About 60 other men have been held in terrorism investigations under the federal material witness law since the Sept. 11 attacks, according to a coming report by Human Rights Watch and the American Civil Liberties Union…

Though the law requires that material witnesses be held “for a reasonable period of time until the deposition of the witness can be taken,” such sworn interviews are seldom used in terrorism investigations

…

The jury found Mr. Hussayen not guilty of the more serious charges and deadlocked on others. Not long after, the restrictions on Mr. Kidd's travel were lifted and his passport was returned.

Norm Brown, an F.B.I. supervisor in charge of the joint terrorism task force in Spokane, Wash., said Mr. Kidd had information relevant to a minor charge - that Mr. Hussayen had violated the terms of his student visa.

You need a lay witness to establish that a person overstayed his visa???

Mr. Brown of the F.B.I. defended the decision to detain Mr. Kidd, citing what he called three red flags. Mr. Kidd had listed “jihad” among his interests on a Web site, which the F.B.I. interpreted, Mr. Brown said, as a reference not to “a personal struggle so much as a holy war.”

Second, Mr. Brown said, Mr. Kidd “sold tapes and books containing the teachings of radical sheiks” when he lived in Idaho. Third, Mr. Kidd's possessions when he was arrested included a video of concern, Mr. Brown said. “It had to do with the hijacking and terrorist events on Sept. 11, 2001. At this point, I'll leave it at that.”

Mr. Kidd responded that “jihad” has “a vast array of meanings”; that he never knowingly distributed radical works; and that the video documented terrorism, rather than promoting it.

These are all First Amendment activities. Or, at least, they were.

I hope John Ashcroft and George Bush are real, real proud of how they are defending Amercia. If this is “steady leadership” I'll take wobbly any day.

Another 'Free Country' Datum: FBI Questioning POTENTIAL Demonstrators

Note the key facts below:

1. The FBI is systematically questioning groups it thinks are anti-Bush, asking if they plan violent protests during the Republican Convention, or know of anyone who does.

2. The FBI says, “No one was dragged from their homes and put under bright lights. The interviewees were free to talk to us or close the door in our faces,” and indeed there is no evidence to the contrary.

3. At least some potential demonstrators have been intimidated: “they got the message loud and clear that if you make plans to go to a protest, you could be subject to arrest or a visit from the F.B.I.” It may be that they were wrong to be intimdated, but can you blame them? And if this chilling effect is widespread, should that not be a cause for some concern?

4. While the FBI's reported questions would not be troubling in the context of a case where it has particularized suspicion, they are troubling when used dragnet-style. And the FBI's awareness of someone's opposition to the Administration's policies — however fervent — does not imply they intend violence, and cannot suffice to substitute for particularized suspicion.

5. Without knowing more details I cannot say with confidence if the FBI has crossed the line separating mere bad taste and errors of judgment from systematic First Amendment violations. That said, what's going on is bad enough that someone on the inside filed an internal protest, although that must surely be a career-ending event in the FBI. That doesn't look good.

6. There's no comfort to be had from the OLC in the Justice Department opining that it's all 100% kosher. This is, after all, the same office whose warped vision of the Constitution allowed them to opine torture was legal. But I'd sure like to see that “Justice Department's Office of Legal Policy … five-page internal analysis obtained by The New York Times.”

7. It seems the FBI has nothing better to do than to send six — SIX! — special agents to interview one 21-year-old anti-war group intern. Of course, that could never be seen as in any way intimidating.

The New York Times: F.B.I. Goes Knocking for Political Troublemakers. The Federal Bureau of Investigation has been questioning political demonstrators across the country, and in rare cases even subpoenaing them, in an aggressive effort to forestall what officials say could be violent and disruptive protests at the Republican National Convention in New York.

F.B.I. officials are urging agents to canvass their communities for information about planned disruptions aimed at the convention and other coming political events, and they say they have developed a list of people who they think may have information about possible violence. They say the inquiries, which began last month before the Democratic convention in Boston, are focused solely on possible crimes, not dissent, at major political events.

But some people contacted by the F.B.I. say they are mystified by the bureau's interest and felt harassed by questions about their political plans.

“The message I took from it,” said Sarah Bardwell, 21, an intern at a Denver antiwar group who was visited by six investigators a few weeks ago, “was that they were trying to intimidate us into not going to any protests and to let us know that, 'hey, we're watching you.' ''

The unusual initiative comes after the Justice Department, in a previously undisclosed legal opinion, gave its blessing to controversial tactics used last year by the F.B.I in urging local police departments to report suspicious activity at political and antiwar demonstrations.

The bulletins that relayed that request detailed tactics used by demonstrators - everything from violent resistance to Internet fund-raising and recruitment.

In an internal complaint, an F.B.I. employee charged that the bulletins improperly blurred the line between lawfully protected speech and illegal activity.

But the Justice Department's Office of Legal Policy, in a five-page internal analysis obtained by The New York Times, disagreed.

The office, which also made headlines in June in an opinion - since disavowed - that authorized the use of torture against terrorism suspects in some circumstances, said any First Amendment impact posed by the F.B.I.'s monitoring of the political protests was negligible and constitutional.

If we read about this behavior in another country, would we give the federal politzia the benefit of the doubt? The answer most likely depends on that nation's traditions and recent history.

How long until our national institutions no longer deserve a presumption of honesty when engaged in politically sensitive tasks? Or, in the case of the FBI, headquartered in the J. Edgar Hoover Building, are we well past that point?

"Free Country Hypothesis" Data Begins Rolling In

I recently claimed that,

The Republican national convention and the protests it inpires seem like a decent field test of the hypothesis that it’s still a free country. I am mildly confident that thanks to the the work of the NYCLU and other groups like it, we will again fail to invalidate this hypothesis.

Well, here's our first two data points.

First, D&D book reader on ferry hassled by security morons

A BB reader sez: “Thanks to the RNC, there are manditory bag searches happening on the NJ-NY Ferry. This fellow first got hassled with a re-search for carrying The Player's Guide to Faerun a D&D book, and then the next day, security tried to confiscate his copy of Exalted: The Abyssals as 'inappropriate.'”

This morning, they're doing bag searches again to get on the ferry. And the guy doing the searches pulls me aside and says, “Sir, I feel that I need to confiscate this book.”

I pause and say, in that tone of voice that most people would recognize as meaning, “have you lost your grip completely, chuckles?”: “You need to confiscate… a book.”

“Yes. I feel it's inappropriate for the other people on the ferry to be exposed to it.”

…

He gets all pissy at me and says, “Don't you understand this is for your safety?”

And, second, the followup:

Greg Costikyan: Just spoke with people from New York Waterway, who say:

1. They're trying to track down mephron (the original poster) to get more detailed information from him—e.g., time and ferry route.

2. If the story is true, it is not only a violation of company policy, but also of martime regulations, and if it is true, they wish to correct the situation as quickly as possible.

3. Anyone with further information about it are invited to contact them directly.

Eric Muller Is Demolishing the 'Defense of Internment'

Eric Muller is guest blogging at the Volokh Conspiracy, and he has a fabulous series of posts about the (in)accuracy of Michelle Malkin's new book, In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror.

Here are the links to the ones so far: 1, 2, 3, 4a, 4b, and 5.

Bush, Rumsfeld and Ashcroft Resist Application of US Supreme Court Detainee Decision

In the Hamdi decision the Supreme Court ruled that US citizen detainees have a right to bring a habeas case to challenge their detention and that they should have access to counsel for it.

Why then is the Bush-Rumsfeld Dept. of Defense, abetted by the Ashroft Justice Dept. refusing to allow a lawyer access to Ali Saleh al-Marri? Is it because he is not a US citizen?

Charleston attorney files motion to see man held as enemy combatant at Naval Brig: Attorney Andy Savage filed a motion in federal court last week demanding to see al-Marri, who has been held without access to family, friends or attorneys.

The US Supreme Court last month ruled it was unconstitutional to hold someone indefinitely and says detainees should be able to challenge their detention.

The motion Savage filed says al-Marri's attorneys asked assistant prosecutor David Salmons about the matter and was told the government could not allow him to see a lawyer. A spokesman for the Justice Department refused comment.

I do not see how Ali Saleh Kahlah al-Marri's Qatari citizenship will suffice to block his right to a hearing, and to counsel to prepare for it. And I can't imagine any other grounds the government could have for this behavior.

Update: Scrivener's Error says that I am not cynical enough.

Further update: The article I linked to above now says, “Attorney Mark Berman says the Justice Department approved meetings with Ali Seleh al-Marri in a phone call on Tuesday night, and the lawyer expects to meet with al-Marri within two weeks.” That's good.

A Snapshot of Our Freedoms

I bet that there are thousands¹ of stories like The Artist's Statement, but that few are as well expressed or documented. Basically, this photography student is assigned to take a motion shot, so he tries to take an action shot as a train goes over a famous local bridge. It's legal, he's even checked with the park rangers, but the local cops and then the feds come and act in a rude, intimidating and I'd say unconstitutional manner.

One of the many many costs of the 9/11 tragedy is that the reaction to it has given some of the worst tendencies in law enforcement an undeserved patina of legitimacy — an attitude that flows down from the White Palace and especially the torture-may-be-legal Aschcroft Justice Dept.

What can we do about this attitude? Asserting your rights can be painful if it promotes police violence, and expensive if it results in arrest, however unjust. Photographers should certainly carry this one-page statement of photographer's rights. And over time there will be test cases, and ultimately either changes in management that trickle down to the cops on the ground.

Meanwhile, I half feel like I should start carrying a camera in solidarity. If it gets bad — and in New York it is already verging on real bad — you have to ask what gets banned in public next: pencils and sketch books? tape recorded notes? Staring?

¹ A few of these other stories appear in comments to this blogs.photoblogs.org post.

Today's Trifecta--What Does it All Mean? (Pt. I: Hamdi)

It's safe to say that today's trifecta of opinions wasn't predicted by anyone. Bottom line: It's still a free country. And this is still a formalist court, which (like anti-formalism) has its virtues and vices.

Full texts of opinions:

• Rasul v. Bush, Nos. 03-334 & 03-343
• Rumsfeld v. Padilla, No. 03-1027
• Hamdi v. Rumsfeld, No. 03-6696

Although Padilla seemed to raise the most critical issues, the court ducked them, so (at first glance) by far the most important opinion of the Hamdi-Padilla-Guantanamo trilogy turned out to be Hamdi. Click “more” for a long, first-impressions, post on Hamdi. I'll post subsequently, and more briefly, about the other two. Updated

Hamdi

Executive Summary: Hamdi wins 8-1, but under three different theories, none of which command a majority. The plurality opinion offers some guidance as to the minimal requirements for the hearing it orders be held, but other justices would give more, or not do it all. The district court will have its work cut out for it figuring out just what sort of hearing it should hold.

O'Connor's opinion for the court (the plurality commands only three other justices — Rehnquist, Kennedy and Breyer — plus four others who concur in the judgment in various ways) does not decide whether the President's inherent powers allow the detention of alleged enemy combatants. [Although it does say on .p 29, “we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.”] Instead it holds that the authority was provided by Congress in the Authorization for Use of Military Force, 115 Stat. 224, which it says provides this power to detain US citizen combatants during the duration of hostilities (a very important caveat) implicitly when Congress authorized the use of “all necessary and appropriate force” against those responsible for 9/11. It's striking that much of the justification for this claim put forward in the opinion is drawn from cases in which the detainee was held as a POW. [Justice Thomas agrees with this analysis of the significance of the Authorization for Use of Military Force in his dissent, so I guess that counts as a holding of the court, more's the pity.] [update: for a more correct statement see below]

The court further emphasizes that this “War on Terror” could last for ever, and that under the government's theory of the cases, Hamdi thus has a real chance of never getting out alive; it fixes the end date when “active combat operations against Taliban fighters” cease in Afghanistan. (Slip at 13), and says he be held for that duration only— once it's determined he's in fact an enemy combatant.

So we reach the key issue: what procedure is due under the Due Process clause and the Habeas Clause given that Hamdi does not conceed he is an enemy combattant and wishes to be heard to challenge that determination. The government argued that its “Mobbs Declaration” — unsupported, conclusory, hearsay, sufficed and indeed was binding on the courts. The plurality, indeed the majority, rejects that, and good thing too.

Unfortunately, the plurality relies on Matthews v. Eldridge, a case originally about 'new property' rights (social security disability benefits) but since imported by Justice O'Conner to infect ordinary due process analysis even for liberty interests. Matthews requires that the court 'balance' interests, keeping in mind the costs of providing more procedural protections, an view that comes perilously close to the view that no right is really a “right” — not inalienable, just an interest to be traded off against others, with no clear rules to guide any judge. And into the thicket of balancing we go. On the one hand is the plaintiff's life; on the other the government's claim that the entire war effort will be undermined.

On Hamdi's side is his liberty interest, one in no way reduced ex ante by allegations raised about his affiliations: “Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior.” And, in words that have implications for the Padilla case, “History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

As for the government, it's fighting a war, and it gets to do that. That's important and weighty too. [Justice Thomas notes in his dissent that really using the Mathews test would weigh this interest so heavily that Hamdi would lose, which is indeed how I read Mathews. Justice O'Conner would answer that since she concludes the cost/harm of additional process is so low in this case, the balance tilts to Hamdi.]

So O'Conner tries to split the baby starting at page 25. 'No process' is too little process, but the District Court proposed too much. The plurality's answer (query: how much is “the Court's”?) to the 'some kind of hearing' required on these facts is (p. 26):

• pre-hearing notice of the factual basis of the government's claim that he is an enemy combatant.
• “a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker” * Does that mean cross-examination or not? It apparently depends on the circumstances, as the court holding the hearing can accept hearsay.
• Evilly, “the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” This seems to mean that once the government makes its case, “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence” — no mean feat when you are locked up, the government controls the availability of its witnesses, and your are either dead or very far away. In this light the comment that “We think it unlikely that this basic process will have … dire impact on the central functions of warmaking” (p. 27) may be world-class understatement. [The Souter opinion takes this on, see below.]
• The opinion is also surprisingly coy on the right to counsel issue, noting only that Hamdi has a lawyer now, and “unquestionably has the right to access to counsel in connection with proceedings on remand”. [Souter takes this as “affirmation of Hamdi's right to counsel”.]

Justices Souter and Ginsburg concur in the judgment, but otherwise dissent in part. They begin with the fact that the government denied Hamdi counsel for a year and half, and since then allowed it only on a grace and favor basis, all the while contesting its obligation to do so.

But its main point is that the plurality is wrong to find that if Hamdi is in fact an enemy combatant his detention, even for the duration, was authorized by Congress. Absent Congressional authorization for his detention, even on the government's version of the facts, Hamdi should be released pursuant to the Non-Detention Act, 18 USC § 4001(a): “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”.

The opinion contains a devastating explanation of why just about every ordinary rule of statutory and constitutional construction except the one that says 'war changes everything' demands this conclusion. And the fact that the statute was passed in 1971—during the Vietnam War—obviates the last argument. I am completely persuaded by this opinion that only a clearer statement by Congress that it meant to allow such detentions should suffice to overcome the very clear and precise command of the Non-Detention Act. Why at least Justice Breyer was not is something of a mystery.

The Souter opinion also makes the nice point that if the government's arguments are correct, then Hamdi, like other Taliban soldiers, should be entitled to the protections of the Third Geneva Convention. The conditions of his confinement are much more restrictive than that convention provides, and he doesn't get Red Cross visits. And even if the government is right that Taliban fighers shouldn't get 3rd Geneva status, that requires a military hearing, and Hamdi hasn't had that either.

As further support, Souter cites the PATRIOT Act. Passed just a little over a month after the Authorization for Use of Military Force, the Patriot Act says a suspected alien terrorist could only be held for seven days without trial or deportation; it would be weird indeed to read the Authorization for Use of Military Force as allowing so much worse treatment of a US citizen enemy combatant.

Souter makes a point of saying that on remand he would find a right to counsel, but “does not mean to imply agreement” with the plurality's assertion that the government might enjoy an evidentiary presumption in its favor.

Justice Scalia, joined by Stevens (!!) writes a brilliant formalist opinion. It's very persuasive, perhaps because it's so simple and tidy. Reading the Constitution you find two ways by which our government can deal with citizens (as opposed to aliens — they are POWs or perhaps enemy combatants) who war against it. One requires the suspension of the writ of habeas corpus, as Lincoln did in the Civil War.¹ That has NOT happened since. The other is also specified in the Constitution: charge the offender with treason.

Scalia does a long analysis of the motivations for the Suspension Clause, showing how in the absence of suspension the powers the government claims over Hamdi (and Padilla one must assume!) are completely illegitimate. Furthermore, Scalia notes, there's no way to read the Authorization for Use of Military Force as a suspension either.

Then Scalia — former professor of administrative law — nails the key flaws in the plurality's conclusion:

It should not be thought, however, that the plurality’s evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what proce-dural protections it thinks appropriate. It “weigh[s] the private interest … against the Government’s asserted interest,” ante, at 22 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a “neutral” military officer rather than judge and jury. See ante, at 26–27. It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

To which I can only shout “YES!”

Then we get a classic piece of Scalia biting invective.

There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are con-cerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by re-peatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.

And darned if Scalia isn't right about that too.

Scalia, unlike the previous two opinions, addresses Padilla:

Several limitations give my views in this matter a rela-tively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763, 769–771 (1950); Reid v. Covert, 354 U. S. 1, 74–75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 15–17 (SCALIA, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation.

And, the last paragraph will undoubtedly be in casebooks too,

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitu-tion designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envi-sion, I respectfully dissent.

Justice Thomas, dissenting, takes a very different tack, well summarized in his introductory paragraph:

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly.

Thomas grudgingly admits that Congress might be able to “interfere” with the President's holding of detainees under the exercise of the war power—making even Thomas less Royalist than the OLC lawyers and the Vice-President in this administration—but his main point is that the courts in principle have no role.

But wait. The Courts do have a role after all, since they have to decide if Hamdi's detention is lawful. But somehow that determination doesn't extend to deciding any facts at issue. This pushes Thomas to make the following weird claim:

… although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.

The “other branches” turns out to mean the “virtually conclusive” decision of the executive branch. Indeed, Thomas later writes that “due process requires noting more than a good-faith executive determination”—and then takes back the “good-faith” limitation in footnote 3! Even worse than that, in Thomas's view the duration of the conflict is whatever the President says it is. No checks, no balances. How depressing.

That said, Thomas is right about how Mathews balancing would work in this case if it had been followed strictly. First, he says it's the wrong test. But if one used it, the balance would surely swing to the government, since the interest in national survival, or victory, is greater than any single person's liberty interest. (Which is why I think Mathews is such a bad case — the individual almost always loses.)

Thomas also has a sort of point when in an attempt at reductio absurdum he notes that the plurality's view ought to require notice and hearing before military murders such as the CIA's firing a Predator missile at a vehicle that carried a US citizen in Yemen. There are distinctions (the CIA may not have known there was a US citizen in the car; it was abroad, Hamdi is here; the government of Yemen authorized the act on its territory so arguably the CIA acted as the agent of Yemen). But in fact why would be odd to have a rule that our government can't murder US citizens abroad? The rule wouldn't apply to battlefields or even behind-enemy-lines in wartime, but ought well to apply in neutral countries — why not? (Imagine Nixon toying with the idea of getting Hanoi Jane while she was vacationing in Cannes….)

In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds. The poor district court doesn't get very clear directions about what process is due on remand. Four Justices in plurality say it should be a uniquely crabbed process. Two others would give more, two don't really address it. One says no process is due. And, the plurality's views are a floor, not a ceiling, and the opinion admits more process if the circumstances and dictates of witness availability and national security permit.

It could be a procedural donnybrook below…

UPDATE: Mark Tushnet points out in correspondence that

In Part IV of his opinion, Souter says that he “join[s] with the plurality in ordering remand on terms closest to those I would impose.” So, on the due process issue, there's a majority holding on what process is required.

He's right. So the plurality rule is a floor, but the district court in theory has discretion to give more process if it believes circumstances warrant and permit it.

Update 2 on Aug 7, 2004: The Bush Administration appears to have decided to resist the application of this decision in every way it can.

¹ Scalia endorses Story and Taney's view that Lincoln's unilateral suspension of habeas corpus was illegal, as he should have gone to Congress for authorization!

Padilla Loses ... For Now

Padilla loses on what will to many seem to be a technicality: his lawyer filed in New York when he should have filed in Charleston, SC. The majority does not reach the merits.

That is consistent with long-standing rules of habeas jurisdiction, but it's a darn shame the Court couldn't find it in itself to go the merits when they are so clear; the majoritydoesn't consider this case exceptional enough for an exception to the “custodian” rule, while the dissenters do.

Two of the five justices in the majority write a concurrence noting that if the government had been moving the detainee around to make jurisdiction hard, they would make an exception, but that this isn't that case — he's been stationary.

The appropriate district court will now have consider Padillia's case in light of the ruling in Hamdi, which ought to put him in a better position than he was the last time his case went to district court.

Four justices dissent, reaching the merits. More when I've read it all.

Hamdi Wins

Enemy Combatants Can Challenge Detentions. Reuters (via Washington post) reports:

The Supreme Court ruled Monday that an American captured overseas in President Bush's war on terrorism cannot be held indefinitely in a U.S. military jail without a chance to contest the detention.

Key points from the summary (the opinion isn't online yet):

• Four justices (only four???) say due process rights requires that a citizen held in the United States as an enemy combatant must be given “a meaningful opportunity” to contest the case for his detention before a neutral party. [From this summary, this could mean anything, including much less than a real trial.]

• “Two more justices agreed that the detention of American citizen Yaser Hamdi was unauthorized and that the terror suspect should have a real chance to offer evidence he is not an enemy combatant.” I have no idea what that means — is that more or less of a hearing?

• Presumably that means three Justices would let the government lock up Yaser Esam Hamdi — in the brig for more than two years and only recently allowed to see a lawyer with military eavesdroppers present and a censored list of subjects (e.g. lawyer couldn't ask if he'd been tortured) — and throw away the key based on their unsupported word that he deserved it. No trial, no arraignment, no lawyer, no rights.

But there's no substitute for reading the opinions; they should be available soon.

Update: The New York Times has a totally different spin saying “Supreme Court Partially Sides With Bush on American Detainee Case” with the majority opinion by O'Connor with Rehnquist and Breyer; with Souter and Ginsburg writing the concurrence. That would be 5-4? Only it's hard to imagine Stevens not siding for the detainee if Rehnquist and Breyer did. (But see flag burning…)

Supreme Court To Decide Major Cases Soon

As is commonly the case, the Supreme Court has left most of its major decisions for the end of the term. This year, however there are a greater number of important cases, with more major consequences, than usual. Some will likely be decided today or tomorrow.

There are seven cases I'm watching with particular interest.

Freedom and Republican Government

1. Cheney v. U.S. District Court has to do with the Congress's powers to force disclosure by the Executive, in this case who attended Vice President's Cheney's secret meetings with oil executives in which they mapped out US energy policy. A finding for the Executive would advance the Royalist vision of the executive; a finding for Congress would preserve the status quo, or maybe eliminate some doubt about whether Congress really has the authority it has claimed for at least a generation. There are also many ways to split the baby. [Decided 6/24]

2. Ashcroft v. ACLU is a First Amendment challenge to the Child Online Protection Act. There's some justice on both sides, but were the court to rule that web publishers must require their readers to prove their age before being allowing them to view any web pages that might infringe the vague “harmful to minors” standard, it would transform the Internet into gated communities…or drive web sites abroad. Again, there are ways the court could punt, too, and I wouldn't be shocked by yet another remand in this torturous case. Unfortunately, the Supreme Court has a tendency to lose patience at some point with cases that bounce up and down and try to decide them. That could be ugly.

3. I've written previously about Hiibel v. 6th Judicial Dist. Court of Nevada, calling it a case to watch. I'm watching this one with particular interest, since it will have so much impact on any potential US law on national ID cards. [Decided 6/21]

The biggest cases, however, have to do with four wars: the War on Drugs, the War on Terror, the War in Afghanistan and the War in Iraq.

Of these cases, three will help define how decent a country we are. But one, the most important of all, will decide whether or not we are still a free country. Sound melodramatic? I wish it were.

Decency

4. If the US invades a foreign country, kidnaps a foreign national, drags him back to the US to try him on charges of aiding the murder of a US DEA agent, but it's all a ghastly mistake and he's acquitted for lack of evidence, can he sue for damages and false imprisonment? If the relevant statute applies to domestic conduct only, do we look to where the kidnaping happened (Mexico) or where it was planned (Washington) as the relevant place for deciding if the statute applies? Those are some of the questions in Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain. Another is the Royalist claim that Congress lacks the authority to make rules restricting the Executive Branch's kidnaping of foreigners abroad on the theory that this would infringe the President's foreign affairs powers, and harm the War on Terrorism.

5. Rasul v. Bush and Al Odah v. U.S put the decency and Presidential power issues in starker terms, as they challenge the claim that our government can create an anything-goes zone in Guantanamo Bay, free from any judicial interference or review—even a writ of habeas corpus—a writ which can only be suspended in wartime, and which has not been suspended since the Civil War. An underlying issue is the extent to which the US Navy station in Guantanamo is inside or outside US jurisdiction given that Cuba retains formal sovereignty—but not other power or control whatsoever so long as the US uses the territory for a naval base. Prior relevant posts on these cases in my Guantanamo section, especially these:

• Guantanamo: Our Collective Shame
• Even If US Courts Don't Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts
• US Jurisdiction in Guantanamo — Some Complexities
• What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows
• Not As Hypothetical As I'd Like
• 'Senior Defense Official' Plans to Hold Guantanamo Detainees Pretty Much Forever

6. Then there's the odd case of Hamdi v. Rumsfeld. Hamdi is a US citizen captured in Afghanistan, some disputed distance from if not actually on the field of battle. Our government labeled him an “enemy combatant,” said he had neither the rights of a US citizen nor of a POW, and has him on ice in solitary, in a military prison. It has not charged him with a crime, and claims no duty to do so. Here there's no question about jurisdiction for the a writ of habeas corpus since Hamdi is now in the US. What's at issue is whether the government's uncorroborated statement that Hamdi was “affiliated with a Taliban military unit and received weapons training” (note: not even 'took up arms against the US'!) is unquestionable and final, or if Hamdi gets a day in court. Again, the case raises question about the extent of executive power in “wartime”—especially since the War on Terror is a “war” that likely has no ending point.

The Big One

I think all the cases above matter a great deal. A bad decision in any of them — and given this court one has to expect some bad decisions in some of them — will make this country less free, less self-governing, or less decent. But none of these would be fatal to our democracy. The harms Hiibel might do could be undone by legislation; Hamdi perhaps less so, but at least the untrammeled hunting license it would create would only apply to US citizens abroad in, one hopes, battlefield or near-battlefield conditions. But Padilla is different.

7. I don't think the public really understands how much is at stake in Rumsfeld v. Padilla. I've written about it many times, but only recently worked out that the issue is even graver than I previously understood.

The basic question in Padilla is very simple: can the federal government grab a citizen off the street and hold them in a military prison without charging them with a crime, without giving them a hearing or a trial, without access to lawyers, family, friends. And, can it do it indefinitely. If the answer is yes it can, then our citizenship is devalued to nothing better than that of the citizens of Argentina during their military dictatorship, a period in which thousands disappeared into military jails, many never to emerge.

Does that sound over-wrought, given there's only one person so far, and he hasn't by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed? I don't think so for two reasons.

First, we don't call them “precedents” for nothing. If we set the precedent that people can be grabbed off the street, next time Ashcroft, or some future Ashcroft, or some horrible cross between Nixon, John Adams and Burr, won't bother going through the civilian justice system at all (which is how Padilla's case got attention — he was first held as an ordinary criminal, and it was only when the government realized it didn't have the evidence to try him that they decided to reclassify him as an enemy of the state illegal combatant, and put him in the brig). Next time, whenever that is, the victim will just vanish.

That's bad enough. But I don't think I understood how much was a stake until I read the Torture Memos. Those memos claim the right to legally inflict hideous intentional pain — what I and most people would call torture — on enemy combatants. That's right—on people whom this administration considers equivalent to Padilla. So the US government is not only asserting the right to Disappear people, but to torture them in secret as well.

It seems government lawyers have been having cold feet about the likelihood that the Supreme Court will endorse this argument. (Law clerks blabbing? Lawyers realizing how evil their arguments are? Cynics thinking the Justices will be influenced by the Iraq torture headlines?) And well they should, as it is despicable. It deserves to lose 9-0, although no one I know is bold enough to predict that will actually happen, myself included. Yet any vote in favor of the government's arguments is a vote for authoritarian government at best, and a blow to our freedom greater than anything even all the other cases above together could manage.

Were Padilla to lose, it would blow a hole in the Constitution, one that would take a constitutional amendment to fix. I am confident the Supreme Court will not take us there, but if I'm wrong about that, it's the start of a long, long fight.

Justice Dept. Wants to Charge Padilla. Minor Hitch: No Dirty Bomb, No Admissable Evidence

Peter Junger alerts me to this damning report, MSNBC - Facing Defeat?

Justice Department lawyers, fearing a crushing defeat before the U.S. Supreme Court in the next few weeks, are scrambling to develop a conventional criminal case against “enemy combatant” Jose Padilla that would charge him with providing “material support” to Al Qaeda, NEWSWEEK has learned.

The prospective case against Padilla would rely in part on material seized by the FBI in Afghanistan—principally an Al Qaeda “new applicant form” that, authorities said, the former Chicago gang member filled out in July 2000 to enter a terrorist training camp run by Osama bin Laden's organization.

But officials acknowledge that the charges could well be difficult to bring and that none of Padilla's admissions to interrogators—including an apparent confession that he met with top Al Qaeda leader Abu Zubaydah and agreed to undertake a terror mission—would ever be admissible in court.

Even more significant, administration officials now concede that the principal claim they have been making about Padilla ever since his detention—that he was dispatched to the United States for the specific purpose of setting off a radiological 'dirty bomb' has turned out to be wrong and most likely can never be used against him in court.

(bold added). Locked up for two years in solitary on charges that “turned out to be wrong.” Argued to the Supreme Court that the government should be able to label a citizen an “enemey” and hold him for ever with no court review. And the charges “turned out to be wrong”. How about that.

Call me cynical, but I've always suspected that a substantial part of the reason why Justice is so hell bent for leather to bury Padillia has to do with the very peculiar circumstances — quickly forgotten — that surrounded his arrest.

AG Ashcroft was in Moscow when Padilla was arrested in Chicago. The arresting agents said they thought he wanted to make a “dirty bomb”. There are in fact two kinds of bombs called “dirty bombs”: the first, the sort Padillia was talking about (and all the evidence is that it was all talk), is a conventional explosive with radioactive dust or material thrown in to further injure people in the blast radius. So instead of taking out, say, a building, you also hurt the people who breath in the dust. Nasty — very nasty — but of fairly limited scope compared to the other type of 'dirty bomb', which is a radiologically enhanced nuclear weapon, a city killer.

Somewhere along the route from Chicago to DC to Moscow, wires got crossed and Ashcroft got it into his head that Padilla was planning a city-killer. And he gave a moderately hysterical (in the frightened, not funny, sense) press conference about this in Moscow, which caused the US stock market to drop almost 2%.

Of course it turned out Ashcroft had got it all wrong, which had to be very embarrassing.

It's sad to even entertain the idea that pique explains a historic assault on the rights of American citizens, but these are sad times.

Misleading the Supreme Court

Eric Muller has further evidence that the Solictor General's office's misleading suggestion to the Supreme Court that torture (and its ilk) could never happen in the hands of our kindly and sensitive executive was NOT an off-the-cuff error in the heat of oral argument, nor a statement born of excusable ignorance (left hand, meet right hand), but rather part of a considered strategy. Whether that's a considered strategy of deception, or a considered strategy of something else, remains to be seen.

When the rot reaches the SG's office, that's a pretty high water mark for rot. As Eric says, “Very, very troubling.”

Congressman Conyers Wants to Know Why Justice Misled Supreme Court

Eric Muller is all over this story — go read Ranking House Judiciary Democrat Asks for Investigation of DOJ

Moore Lied About Dispute With Disney -- It Isn't New

Daniel Drezner has the facts: Michael Moore massages the facts. In fact, it seems Moore just lied to 'improve' his story.

The weird thing is, the original version was a good story too — just not as likely to get headlines. It appears that Moore has a contract with Mirimax, Mirimax wants to distribute the film, Disney won't let it. The difference is that Disney's been consistent on this rather than springing it on Moore.

In other words, Moore manufactured a news hook, and got a lot of headlines. That's pretty shabby. The basic issues — why Disney is against the movie (politics? fear? aesthetic differences?) remain.

I don't think I'll be going to see this movie. But then I didn't go to the last one either.

Update (5/9/04): Moore's reply

Disney Blocks Anti-Bush Movie...Allegedly Because It Fears Retaliation from Bush Family

One of the signs that you live in a banana republic is that the people disappear off the streets and are held indefinitely without trial (think Padilla). Another is that shadowy people who aren’t officially there and who everyone says are not subject to ordinary authority beat up detainees (think ‘other agency’ operatives and contractors in Iraq’s prisons). Another is that the nation’s Treasury is looted to give favors to cronies of the junta. Check.

But has it come to the point where even the big fish live in fear? Apparently so. Disney is refusing to let its Mirimax subsidiary distribute a polemical anti-Bush film by Michael Moore. I have no brief for Moore, but the New York Times reports that Mirimax at least believes that Disney’s actions are not justified by its contracts with it.

Be that as it may, the shocking part is not corporate political censorship — we lost that virginity long before the first Bush — but one alleged reason for Disney’s unwillingness to have anything to do with the film: a fear of retaliation from the ruling family!

Disney Forbidding Distribution of Film That Criticizes Bush: Mr. Moore's agent, Ari Emanuel, said that Michael D. Eisner, Disney's chief executive, asked him last spring to pull out of the deal with Miramax. Mr. Emanuel said Mr. Eisner expressed concern that it would endanger tax breaks Disney receives for its theme park, hotels and other ventures in Florida, where Mr. Bush's brother, Jeb, is governor.

“Michael Eisner asked me not to sell this movie to Harvey Weinstein; that doesn't mean I listened to him,” Mr. Emanuel said. “He definitely indicated there were tax incentives he was getting for the Disney corporation and that's why he didn't want me to sell it to Miramax. He didn't want a Disney company involved.”

Disney executives deny that accusation, though they said their displeasure over the deal was made clear to Miramax and Mr. Emanuel.

A senior Disney executive elaborated that the company has the right to quash Miramax's distribution of films if it deems their distribution to be against the interests of the company. Mr. Moore's film, the executive said, is deemed to be against Disney's interests not because of the company's business dealings with the government but because Disney caters to families of all political stripes and believes Mr. Moore's film could alienate many.

Ironically, the film is called “Fahrenheit 911”, presumably an allusion to Ray Bradbury's Fahrenheit 451, a book about censorship. Moore's project, apparently, is about the Bush-Saudi connection.

Update: Jack Balkin takes Disney at its word, and argues that this exposes a new danger of media concentration, which he dubs the soft censorship of Corporate Expectations:

The soft censorship of corporate expectations suggests a generally unremarked problem with media concentration: It is often argued that media concentration can actually help foster diversity, because a monopolist will have an economic incentive to produce a diverse menu of media goods in order to capture an increasingly large audience share. But this reasoning neglects the fact that as media become vertically and horizontally integrated, they may become held responsible by politicians and advertisers for everything that they do. That leads them, all other things being equal, to avoid the kinds of attacks and controversies that will get them in hot water with politicians. Thus, although media concentration may produce products that are increasingly diverse from one perspective, they may be increasingly shallow from another. Conversely, in a world in which there are a large number of different players, the chances become higher than one of them is willing to risk the wrath of the powers that be.

This is a real danger, although it's currently too late in the evening for me to figure out whether it's new, or a more elegant formulation of the old.

A Good Start on our British Problem

It's good to know that those alert authorities at JFK are taking no chances with dangerous visiting British accountants. You never know what they might do in New York — maybe go shopping and reduce the trade deficit a little.

Briton 'in chains at JFK airport over bogus debt' (UK Telegraph, reg. required): An accountant claims that he was kept for more than 24 hours in “leg chains” and denied food and water after flying into New York's JFK airport with his wife.

David Pattison, 52, of Beeston, Norfolk, was held by US security officials because an Interpol notice alleged that he was wanted in Qatar for debts of up to $10,000 (£5,800).

He was deported on Monday night without having been allowed to enter America.

Mr Pattison, who disputes the alleged debt, said he was subjected to “inhumane and degrading” treatment by the US authorities and a “lack of assistance” by the Foreign Office.

He arrived at the airport's immigration control on Sunday afternoon, at what was to have been the start of a two-week holiday with his wife, Janice, 49, the mother of their six children.

There he was told of the Interpol notice. Mr Pattison worked for an oil company in the Gulf state in 1999 but denies that he left behind any debts. Although about $5,000 (£2,900) had been outstanding on a car he used for work, this was settled after the agreed sale of the vehicle in 2000.

“This was the first I had heard of any warrant against me, and I have travelled all over Europe since 1999,” said Mr Pattison.

“I told the US officials I had a letter at home to prove all matters in Qatar had been settled but they were not interested.”

Mr Pattison was then told he would not be allowed into the country and would be deported. “I requested a call to the British consulate in New York and I spoke to a man who refused to give his surname. He said he couldn't help because I hadn't been admitted to the country and I was in limbo.

“But that is exactly when British subjects in a situation such as mine need assistance. God knows what it would have been like had we been travelling with our children.”

Mr Pattison claims his wife was then escorted out of the room in tears and left to fend for herself. He said cuffs were placed on his hands and ankles and that a wooden restraint was put across his chest.

“I was escorted to a facility with no food or drink and my angina medication was locked away from me. I was placed with eight other unfortunates, two of whom were also British, but we weren't allowed to speak to each other.

“We begged for water but the [Department for Homeland Security] staff just sat there eating hamburgers. There was nowhere to wash or sleep and I observed verbal abuse by US immigration personnel to most of these people.”

It's especially important to be tough on Britons as we would not want them to think that their government's supporting the Administration in Iraq should give them any right to the decent treatment we deny to foreigners from other countries. And you certainly wouldn't want to let in people with debts, especially not big debts like up to $10,000. Especially not an accountant who racked up debts like that. Why, it's not as if Americans were ever in debt!

It's also important to discourage tourism to New York, as there will soon be a Republican convention there and we'll need all the hotel rooms and lots of space for drunken parties on the streets.

Oddly, the government of Quatar claimed to have no knowledge of the warrant for Mr. Patterson, but they're from the Middle East, so why believe them?

More American Censorship (Patriot Act Dept.)

No, it's not a typo: Patriot Act Suppresses News Of Challenge to Patriot Act:

“It is remarkable that a gag provision in the Patriot Act kept the public in the dark about the mere fact that a constitutional challenge had been filed in court,” Ann Beeson, the ACLU's associate legal director, said in a statement. “President Bush can talk about extending the life of the Patriot Act, but the ACLU is still gagged from discussing details of our challenge to it.”

Yes, it's still a free country. Just not as free as last year. (spotted via boingboing)

Chilling Effect (Chill Them Young Dept.)

One of the marks of a free country is that you can criticize the Maximum Leader without fear of investigations or reprisals.

Not in Seattle Prosser, Washington State, USA, where a boy was Investigated by the Secret Service, then disciplined by his School, for drawing Bush as the devil in an art class assignment on the Iraq war.

Art students at Prosser High School were told to keep a notebook of drawings depicting the war in Iraq.

One 15-year-old turned in a sketch showing President Bush, dressed as a devil, launching a missile.

Another of his drawings was of a Middle Eastern-looking guy holding a rifle in one hand, while in the other hand was a pole with an oversized head of President Bush stuck on it.

The art teacher found the drawings troubling.

Maybe it was the caption that said: “End the War.”

Anyway, the drawings were turned over to school administrators.

School administrators took a look and tossed this political hot potato to police, who took one look at the “Vote For Ralph Nader” slogan and called in the Secret Service.

Last week, Secret Service agents trekked out to Prosser and grilled the 15-year-old artist.

They left without charging him with anything, but that didn't stop the school district from punishing the kid anyway.

(emphasis added) AP version of the story. And this hyperactive tendency to investigate people is not a fluke but is now shared by many law enforcement bodies: Recall this previous incident? Or this one? All of which leads to self-censorship

Teach the children well, indeed.

[Corrected to remove slur on Seattle, per comment by froz]

US Relaxes Ban on Editing Foreign Works

The US Government’s Office of Foreign Assets Control has relented and “eased” its ban on editing foreign work. (For background see this post on the attempt to control the work of the IEEE.)

Showing again that when pressured by bad publicity, the goverment sometimes does the right thing.

NYT on Export Control Rules Used to Stifle Editors

The NYT has finally gotten around to covering the scandal about the US government trying to impose prior restraints on US scholarly journals editing manuscripts authored by foreigners in countries subject to a trade embargo. Treasury Department Is Warning Publishers of the Perils of Criminal Editing of the Enemy has lots of good quotes, but probably doesn't tell you much more than you might have read here in my October entry, US Export Control Rules Applied to Prevent Editing of Scholarly Articles.

Supremes Let Stand Evil Ruling in 'Secret Habeas' Case

CALIFORNIA YANKEE: Supreme Court Refuses “Secret Case”: In an astounding decision the U.S. Supreme Court has decided not to hear the “secret case.”

The Supreme Court's decision means it is okay for a federal appellate court's published calendar to be obliterated to omit the names of litigants. ; a federal appellate court's computer records to be altered to remove from public view any information about the case; a federal appellate court to close its courtroom to the public and the press to hear arguments in a case; and for litigants to be prohibited from talking about it.

I didn't think this could happen in America.

What he said.

More info on the (surprising!) cert denial from AP.

Earlier posts of mine on this depressing case are The Secret Attack on the Right to an Open Court and an update . The only silver lining is that one of my brilliant colleagues is all over this one.

Supreme Court Takes Padilla Case

Not in any way a surprise, although it was nice to dream of a cert. denial leaving in place the Second Circuit decision finding that Constitution has not been suspended.

Now that the Supreme Court Expands Review of 'Enemy Combatant' Rule to include Padilla, the Court has almost every element of the Bush-Ashcroft re-write of the Constitution before it (the only bit missing is the secret deportation trials of immigrants—the court let stand a decision allowing these earlier in the year).

An enormous amount rides on these decisions. Losses on any of them will diminish our liberty, or our national claim to be a law-based state. But some are more essential than others—and the Padilla case is the most essential of them all, as it involves a claimed government power to grab anyone off the street in the US, hold them for ever in solitary, without lawyers, family or judicial review. That has no place in a free country.

A Day of Remembrance

Read Eric Muller on why today, Feb. 19, ought to be designated as a day of remembrance.

Self-Censorship In Action

Via Dave Farber's IP list, a pointer to 'This Machine Kills Fascists', a story of self-censorship in the age of Ashcroftian exercises of public power.

I'm saddened to so quickly find such a powerful example of the third of my four reasons for concern in the previous post

Notes From the Middle Ground Between Complacency and Panic

This Administration seeks to achieve a panoply of organized and systematic changes in the civil order, a strengthening of the security apparatus at the expense of civil liberties. It is wrong, I think, to be at all complacent about these changes, which is one of the reasons I started this blog. (If you haven't read my early post about my grandmother's political advice, Rose Burawoy, Political Scientist, please do so.)

Looking around today, there are four interrelated sets of reasons to be concerned.

First, the Administration has advanced a series of legal claims that are inherently incompatible with justice. The invention or, if you prefer, extension of the category “enemy combatant” is one example. The administration claims that it can strip a US citizen of his Constitutional rights by attaching this designation to him, and it has done this on US soil, grabbing a citizen and then disappearing him into near-incommunicado detention in a military prison. The Justice Department claims that the courts' only role is to enquire if the administration really says someone is an enemy combatant. Once handed a conclusory declaration signed by an official, the Justice Department says the courts have no further role.

I am not in any way suggesting that this is the first administration to commit excesses in the name of security. The modern list is legion, from Cointelpro through Waco. What makes the current situation almost unique is that the large majority of those earlier incursions were either clandestine (because they were known to be illegal at the time), or later acknowledged (overtly or tacitly) to be errors. This Administration advances the current set of changes as either consistent with the existing legal order, or as so necessary for our security as to require changes in it. Some of these changes would systematically gut the ideas of Due Process, Speedy Trial, and Confrontation of Accusers enshrined in the Fifth¹ and Sixth² Amendments to the Constitution. That's new.

Second, this Administration seeks to set a wide range of legal precedents that allow law enforcement to operate in secret. From secret deportation hearings to Guantanamo Bay to increased use of a secret court for wiretaps that have a domestic angle, all these things together breed a culture in which, human nature and bureaucratic imperatives being what they are, it is inevitable that excess and injustice will flourish.

The intangible and attitudinal effects of the claim that substantial traditional elements of liberty must be sacrificed for the (eternal) duration of the “war” on terrorism may be as important as any change in the law. If the sole effect were an increase in law enforcement arrogance, we could cope. But if left unchecked, the combination of a government empowered to act fundamentally unjustly (whether it's to grab people off the street or just to burden the conduct of their lives by subjecting them to routine and regular questioning and, say, no-fly lists), and to do so in secret, will have corrosive consequences. In time the combination will provoke either a climate