Author Archives: Michael Froomkin

A Voice from Civilization

Posted on May 21, 2005 by Michael Froomkin

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.

Posted in Civil Liberties | 4 Comments

Questions the Veep Should Answeer

Posted on May 20, 2005 by Michael Froomkin

Paul Gowder Horwitz has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press's Failure. A taste:

What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees.  Nor, for reasons I hope I have demonstrated, is it enough to stop there?  What constitutional conclusions has he reached on all these other questions?  The failure of the press to push for answers on these questions is really disappointing — inexcusable, in fact.  It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.

What accounts for this silence?  I don't think it is simply that this level of detail is reserved for law geeks.  I think it says something about how we think about the Constitution as applied outside the courts.  The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party.  Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.

But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote.  At least it is not supposed to be.  It decides a constitutional question — and one that, at that, would likely be insulated from judicial review.  The Vice President, along with the members of the Senate, takes an oath to “support this Constitution,” and we ought to assume he takes it seriously.  That means that, finally, only his views will matter — not those of Senator Frist, or his lawyers, or the public, or even the President.  Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences.  Is the same any less true of any other government officer faced with the duty of interpreting the Constitution?  In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.

Posted in Law: Constitutional Law, The Media | 5 Comments

Bad Times for the Republic

Posted on May 20, 2005 by Michael Froomkin

YATA, Afghanistan edition: In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths.

They didn't even think the guy was guilty, and they tortured him to death.

How many 'bad apples' in how many places does it take to make a pattern and practice? How many deaths by torture in how many different places does it take to get top military and civilian commanders to admit responsibility for negligence if not commission? Surely there is some number of deaths (not to mention other barbarisms) at which point we hold, say, Rumsfeld responsible? One? Ten? A hundred? Can we agree a number now, so that when we get there, we can impeach the guy? And then, I think, prosecute him.

This is not a good moment for the Republic. Ordinarily, the public is to blame if it doesn't get outraged over atrocities committed in its name. Can we justly blame the public if it is getting its news from Fox? A steady diet of lies makes it hard to see the truth.

Meanwhile, on the floor of the Senate, Senator Santorum compares Democrats to Nazis … because they filibuster judges. Don't expect to see the people who bayed at the moon about Howard Dean screaming get the least bit anxious about this one. You certainly won't see it repeated on the news several hundred times in one week, even though it is much more serious.

In this context of what people can be expected to know, it's quite significant that the GOP now wishes to fully neuter the already partly neutered staff at PBS and NPR, thus making the only non-conglomerate major broadcast media sound like the ones bought and paid for.

And, oh yes, the people who want to pack the courts with anti-consumer and (by and large) anti-civil-liberties judges…also want to unleash the FBI from judicial oversight. The draft update of the 'Patriot' Act would let the FBI subpoena records without permission from a judge or grand jury.

Yes, that's the same FBI that, it appears, has been investigating protesters on the grounds that protest is a suspicious activity.

Meanwhile, while the Senate fights about procedure, the economy is approaching a precipice.

All it would take to be fully Roman is well organized corruption (more), and orgies.

Oh. Wait.

Posted in Politics: US | 8 Comments

Gorillaz in the Mist

Posted on May 19, 2005 by Michael Froomkin

Gorillaz: Feel Good Inc. — it's very pretty, it sounds good, but does it mean something? Not that there's anything wrong if it doesn't…

Posted in Kultcha | Comments Off on Gorillaz in the Mist

Hypocrites Ball

Posted on May 18, 2005 by Michael Froomkin

Just combine these two links please:

1) TPM explains the procedural (and moral) aspects of the so-called 'nuclear option' — in which a parliamentary device would be used to end-run a Senate rule that entrenches [requires a super-majority to change] the filibuster. Using the spurious claim that the filibuster is unconstitutional, Sen. Frist would try to overturn the rule by majority vote.

2) Senator Frist gets caught out by Sen. Schumer on the floor of the Senate:

SEN. SCHUMER: Isn't it correct that on March 8, 2000, my colleague [Sen. Frist] voted to uphold the filibuster of Judge Richard Paez?

Senator Frist's eloquent reply must be read in its entirety.

As for the underlying issues, as I've said before, I don't in principle much like the filibuster. It's anti-majoritarian, albeit in a way that might sometimes counterbalance the built-in tilt of the Senate towards large open spaces. Yes, there can be a value to mechanisms that respect the intensity of feelings of a minority; even so, the filibuster has an ugly pedigree.

I also don't have warm fuzzy feelings for entrenchment of rules regarding unequal democratic representation or apportionment (I'm ok with entrenching individual rights) — like for example the rule that entrenches two senators per state regardless of population disparity. Nevertheless — while I claim no expertise on this question — my gut reaction is that I don't think that entrenching a Senate rule is unconstitutional either.

One thing I am sure about: neither the advise and consent clause nor any other part of the constitution 'requires that a nominee be given an up or down vote'. Whether or not the filibuster is morally valid, or even beneficial in the long run, for my money it is undoubtedly constitutionally valid.

Posted in Politics: The Party of Sleaze | 3 Comments

FBI Harassment Is Not ‘Tinfoil’

Posted on May 18, 2005 by Michael Froomkin

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.

Posted in Civil Liberties | 5 Comments