NSA Surveillance: Not Really News To Those Paying Attention, Not Illegal, But Still A Matter of Concern

The major topic of discussion today has clearly been the data mining of cell phone records on numerous blogs and news sites. On the one hand, I share in the opposition to the concept of a government program which we cannot even evaluate because of the secrecy surrounding it. On the other hand, did anyone really think that their cell phone call records were secret items which the government couldn’t review with ease? This is exactly the type of thing which many of us blogged about during the Bush years. From May 11, 2006 USA Today reported:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

There’s one difference between the program under Obama compare to Bush. Obama is using the FISA courts and following the law, while Bush did not:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Of course being legal does not mean it is right. While I do prefer to see judicial oversight, there is a huge difference between true oversight and a rubber stamp.

In theory there is also Congressional oversight. The top Senators on the Intelligence Committee say this is to protect America:

The top two senators on the Intelligence Committee on Thursday defended the National Security Agency’s collection of Americans’ phone records after it was reported in The Guardian.

“It is lawful. It has been briefed to Congress,” Senate Intelligence Chair Dianne Feinstein (D-CA) told reporters at an impromptu news conference in the Capitol. “This is just meta data. There is no content involved. In other words, no content of a communication. … The records can only be accessed under heightened standards.”

“I read intelligence carefully. And I know that people are trying to get to us,” Feinstein said. “This is the reason we keep TSA doing what it’s doing. This the reason the FBI now has 10,000 people doing intelligence on counter-terrorism. This is the reason for the national counter-terrorism center that’s been set up in the time we’ve been active.”

“And it’s to ferret this out before it happens,” she said. “It’s called protecting America.”

Senate Intelligence Vice Chair Saxby Chambliss (R-GA) backed up Feinstein, saying, “This is nothing particularly new. This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this.”

I guess we can discuss this in thirty years when the information is declassified.

Personally I have no problem with the government seeking a warrant to obtain phone records (and more) regarding individual who they have reasonable cause to suspect of plotting acts of terrorism. Maybe there is even a chance that having these records did put them on the trail of a potential terrorist who they otherwise did not suspect. In a free society it is necessary to place limits on what information the government can obtain and it is necessary to have some degree of transparency about how the information is used, even if we must give up having one-hundred percent security to maintain liberty.

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Obama Calls For An End To A Perpetual War on Terror And For Respect For Civil Liberties

I only heard portions of Barack Obama’s speech while driving to and from lunch today but did like what I heard. It was clear that whether or not I wound up agreeing with everything, contrary to claims from portions of both the left and right, Barack Obama is no Richard Nixon or George Bush. For now I am relying on the prepared text, which lacks the portion where I hear Obama did an excellent job of responding to the criticism of a heckler. While we could question if some of this is being said later than desired, there was much in today’s speech which I did like, such as addressing this early in the speech: “I believe we compromised our basic values – by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.”

Obama discussed our triumphs in fighting al Qaeda , and then its cost:

These questions matter to every American. For over the last decade, our nation has spent well over a trillion dollars on war, exploding our deficits and constraining our ability to nation build here at home. Our service-members and their families have sacrificed far more on our behalf. Nearly 7,000 Americans have made the ultimate sacrifice. Many more have left a part of themselves on the battlefield, or brought the shadows of battle back home. From our use of drones to the detention of terrorist suspects, the decisions we are making will define the type of nation – and world – that we leave to our children.

So America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” Neither I, nor any President, can promise the total defeat of terror. We will never erase the evil that lies in the hearts of some human beings, nor stamp out every danger to our open society. What we can do – what we must do – is dismantle networks that pose a direct danger, and make it less likely for new groups to gain a foothold, all while maintaining the freedoms and ideals that we defend. To define that strategy, we must make decisions based not on fear, but hard-earned wisdom. And that begins with understanding the threat we face.

He recognized that victories over terrorist groups often come from targeted efforts and police actions as opposed to the Bush/Cheney concept of a global war on terror:

Beyond Afghanistan, we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America. In many cases, this will involve partnerships with other countries. Thousands of Pakistani soldiers have lost their lives fighting extremists. In Yemen, we are supporting security forces that have reclaimed territory from AQAP. In Somalia, we helped a coalition of African nations push al Shabaab out of its strongholds. In Mali, we are providing military aid to a French-led intervention to push back al Qaeda in the Maghreb, and help the people of Mali reclaim their future.

Much of our best counter-terrorism cooperation results in the gathering and sharing of intelligence; the arrest and prosecution of terrorists. That’s how a Somali terrorist apprehended off the coast of Yemen is now in prison in New York. That’s how we worked with European allies to disrupt plots from Denmark to Germany to the United Kingdom. That’s how intelligence collected with Saudi Arabia helped us stop a cargo plane from being blown up over the Atlantic.

Obama called for greater oversight over the use of drones and targeted killing, and greater transparency:

This week, I authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue, and to dismiss some of the more outlandish claims. For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or a shotgun – without due process. Nor should any President deploy armed drones over U.S. soil…

Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested – the establishment of an independent oversight board in the executive branch – avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these – and other – options for increased oversight.

I believe, however, that the use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways.

He called for a media shield to protect journalists:

Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.

While Republicans were leading us into a perpetual war, Obama realizes that, like all wars, this war must end:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

He is addressing the continued detaining of prisoners at Guantánamo:

Today, I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.

Even after we take these steps, one issue will remain: how to deal with those GTMO detainees who we know have participated in dangerous plots or attacks, but who cannot be prosecuted – for example because the evidence against them has been compromised or is inadmissible in a court of law. But once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.

I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it. Imagine a future – ten years from now, or twenty years from now – when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country. Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. Is that who we are? Is that something that our Founders foresaw? Is that the America we want to leave to our children?

The president does not micromanage every action by the United States government and, as Ed Kilgore and David Weigel pointed out, Obama did try to hold the Congressional Republicans for their actions:

One thing is fairly clear: the speech poses a challenge to congressional Republicans that may not be that easy for them to meet, distracted as they are and as divided as they tend to be on national security policy these days. As Slate’s Dave Weigel quickly noted, Obama four times shifted responsibility for current dilemmas at least partially to Congress: on drones (where he insisted the appropriate congressional committees have known about every single strike); on embassy security; on the 9/11-era legal regime that still governs anti-terrorist efforts; and on Gitmo (where Republicans have repeatedly thwarted effort to transfer detainees to U.S. prisons). But like critical reporters, Republicans, other than neocons who want GWOT not only to be maintained but intensified, will probably tear off tasty chunks of the speech and masticate them noisily, or just dismiss it all and get back onto the crazy train of Scandalmania ‘13.

David Corn sees this as Obama taking the middle ground:

Not shockingly, Obama is attempting to find middle ground, where there is more oversight and more restraint regarding activities that pose serious civil liberties and policy challenges. The McCainiacs of the world are likely to howl about any effort to place the effort to counter terrorism into a more balanced perspective. The civil libertarians will scoff at half measures. But Obama, at the least, is showing that he does ponder these difficult issues in a deliberative manner and is still attempting to steer the nation into a post-9/11 period. That journey, though, may be a long one.

He is also looking for a middle ground which considers our security needs in the era of international terrorism along with the need to respect civil liberties and the principles which the nation was founded upon. He might not get it completely right, and the answers are not always entirely clear but, contrary to Bush and Cheney, he is considering the key issues.

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Republican Hysteria Over Pseudo-Scandals Prevents Consideration Of Real Problems

Scandals cartoon

One consequence of a dysfunctional opposition party which is more concerned with scoring political points than the good of the country is that we have a combination of attacks over fabricated scandals while ignoring real problems. The Republicans have concentrated on Benghazi, even resorting to distorting evidence, and the IRS, which looks far more like low level bureaucrats taking short cuts than any Nixonian abuse of power coming from the White House, despite the Republican attempts to move the goal posts.

One problem with trying to turn real problems into a political scandal is that the actual problems are not addressed. We need to look at issues such as how organizations are evaluated for favorable tax status and how foreign embassies are defended, not twist the facts to blame Obama. Strangely, conservatives who speak out (sometimes correctly) about the size of our bureaucracy fail to understand that the president does not personally make every decision. Republicans who ignored actual abuses of power under George Bush see everything which might go wrong as evidence of evil intent on the part of the current president.

There is a report today which provides hope that some Republican staffers, at least, are looking at trying to learn from the Benghazi attack:

The inquiry led by the House Oversight and Government Reform Committee into the slaying of four Americans at the U.S. consulate in Benghazi, Libya, last year has been attention-grabbing, but some senior GOP aides are worried that the partisan overtones are diverting Congress from identifying and addressing the real lessons learned from the attack.

In particular, these aides say key staffers have been overly consumed with chasing down or addressing inaccurate or unfounded accusations emerging from the inquiry.

“We have got to get past that and figure out what are we going to do going forward,” a GOP aide stressed. “Some of the accusations, I mean you wouldn’t believe some of this stuff. It’s just — I mean, you’ve got to be on Mars to come up with some of this stuff.”

In this charged political environment, where some on Capitol Hill have accused the president of a possible cover-up related to the attack just weeks before the 2012 presidential election, defense policy Republicans are trying to refocus attention on core issues and create some good out of the tragedy.

Hopeful, but I fear that the Republicans will still prefer to mislead their base in order to motivate them to turn out and contribute money as opposed to turning to reality-based governing.

One sign of business as usual among Republicans is that Darryl Issa, who pursues his job with the vigor and lack of integrity of Joseph McCarthy, is now attacking IRS inspector general J. Russell George.

Another problem is that real questions involving civil liberties are ignored, primarily as the Republicans would support greater violations. The Obama administration’s actions towards the AP raises First Amendment concerns even if this was done within the law and there are extenuating factors which also must be considered.While conservatives are generally only concerned with abuses which target conservatives, and which often only exist in their imagination, liberals have been non-partisan regarding both the IRS and the media. Liberals were no less likely to be concerned in principle that the target was from Fox with the naming of a  correspondent as a possible “co-conspirator” in an investigation of a news leak . The New York Times concluded their editorial on the matter by writing:

Obama administration officials often talk about the balance between protecting secrets and protecting the constitutional rights of a free press. Accusing a reporter of being a “co-conspirator,” on top of other zealous and secretive investigations, shows a heavy tilt toward secrecy and insufficient concern about a free press.

Along with excessive secrecy, in contrast to campaign promises to have the most open and transparent government in history, the use of drone strikes has led to much of the criticism of Obama from the left. There is some good news on this today, also from The New York Times:

President Obama embraced drone strikes in his first term, and the targeted killing of suspected terrorists has come to define his presidency.

But lost in the contentious debate over the legality, morality and effectiveness of a novel weapon is the fact that the number of strikes has actually been in decline. Strikes in Pakistan peaked in 2010 and have fallen sharply since then; their pace in Yemen has slowed to half of last year’s rate; and no strike has been reported in Somalia for more than a year.

We cannot rely on Congressional over-site as the Republicans would be more likely to promote greater use of drones and show far less concern over issues of either legality or morality. There have been mixed signs that the Obama administration has been moving towards establishing greater consideration of institutionalizing changes in warfare with development of due process and ideally judicial over-site. Hopefully this reduction in the use of drones indicates a greater consideration of the consequences of this policy.

 

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Conflicting Principles In Searching For Leak On Al Qaeda Informant

I’ve had several posts recently about two of the “scandals” surrounding the Obama administration. In one case, Benghazi, there is no real scandal–just another case of Republicans distorting the facts. In the case of the IRS, we have the rare case of Republicans being right about wrong-doing, but wrong in trying to tie this to Obama. The subpoena of AP records regarding sources on a story about a planned terrorist attack is more difficult to characterize. In this case, Republicans aren’t attacking Obama because they have no qualms about infringing upon First Amendment liberties, but many liberals are concerned.

Jack Shafer of Reuters has an excellent review of this case and his entire post should be read. He began:

Journalists gasp and growl whenever prosecutors issue lawful subpoenas ordering them to divulge their confidential sources or to turn over potential evidence, such as notes, video outtakes or other records. It’s an attack on the First Amendment, It’s an attack on the First Amendment, It’s an attack on the First Amendment, journalists and their lawyers chant. Those chants were heard this week, as it was revealed that Department of Justice prosecutors had seized two months’ worth of records from 20 office, home and cell phone lines used by Associated Press journalists in their investigation into the Yemen underwear-bomber leaks.

First Amendment radicals — I count myself among them — resist any and all such intrusions: You can’t very well have a free press if every unpublished act of journalism can be co-opted by cops, prosecutors and defense attorneys. First Amendment attorney Floyd Abrams speaks for most journalists when he denounces the “breathtaking scope” of the AP subpoenas. But the press’s reflexive protests can prevent it from seeing the story in full, which I think is the case in the current leaks investigation.

See the full article for the specifics, but the gist of this is that the Obama administration’s concern here was not with preventing the press from publishing their reports but uncovering a leak. Also, this is not a case of someone leaking information which we necessarily wanted to get out, but the fact that an al Qaeda plot to bomb an airplane bound for the United States was stopped due to having an informant  recruited by British intelligence inside of al Qaeda.

Shafer concluded:

To begin with, the perpetrators of a successful double-agent operation against al Qaeda in the Arabian Peninsula would not want to brag about their coup for years. Presumably, al Qaeda in the Arabian Peninsula will now use the press reports to walk the dog back to determine whose misplaced trust allowed the agent to penetrate it. That will make the next operation more difficult. Other intelligence operations — and we can assume they are up and running — may also become compromised as the press reports give al Qaeda in the Arabian Peninsula new clues.

Likewise, the next time the CIA or foreign intelligence agency tries to recruit a double agent, the candidate will judge his handlers wretched secret keepers, regard the assignment a death mission and seek employment elsewhere.

Last, the leaks of information — including those from the lips of Brennan, Clarke and King — signal to potential allies that America can’t be trusted with secrets. “Leaks related to national security can put people at risk,” as Obama put it today in a news conference.

The ultimate audience for the leaks investigation may not be domestic but foreign. Obviously, the government wants to root out the secretspillers. But a country can’t expect foreign intelligence agencies to cooperate if it blows cover of such an operation. I’d wager that the investigations have only begun.

Since 9/11 there have been many situations where the government has gone overboard in placing security (and sometimes false claims of security) over civil liberties. The answer on this one is certainly not clear.

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Republicans Overplaying Their Hand On Benghazi: Military Experts And Public Don’t Believe Them

Here’s a few quick links in case you are getting lost in all the Republican noise on Benghazi, such as Darrel Issa attacking Barack Obama for describing  the killing of Americans in Libya as an “act of terror” rather than a “terrorist attack.” Here’s a partial run down of people who are not very impressed with the Republican arguments:

The military isn’t impressed. A National Security column in Foreign Policy argues that military force would not have been successful in response to the attack.

Don’t want to believe a columnist who might be a Democrat? How about a Republican who has been Secretary of Defense:

Former Secretary of Defense Robert Gates forcefully defended the Obama administration on Sunday against charges that it did not do enough to prevent the tragedy in Benghazi, telling CBS’ “Face the Nation” that some critics of the administration have a “cartoonish impression of military capabilities and military forces.”

Gates, a Republican who was appointed by then-President George W. Bush in 2006 and agreed to stay through more than two years of President Obama’s first term, repeatedly declined to criticize the policymakers who devised a response to the September 2012 attack on a U.S. diplomatic facility in Benghazi, Libya, that left four Americans dead, including the U.S. Ambassador to Libya, Chris Stevens.

“Frankly, had I been in the job at the time, I think my decisions would have been just as theirs were,” said Gates, now the chancellor of the College of William and Mary.

“We don’t have a ready force standing by in the Middle East, and so getting somebody there in a timely way would have been very difficult, if not impossible.” he explained.

Suggestions that we could have flown a fighter jet over the attackers to “scare them with the noise or something,” Gates said, ignored the “number of surface to air missiles that have disappeared from [former Libyan leader] Qaddafi’s arsenals.”

“I would not have approved sending an aircraft, a single aircraft, over Benghazi under those circumstances,” he said.

Another suggestion posed by some critics of the administration, to, as Gates said, “send some small number of special forces or other troops in without knowing what the environment is, without knowing what the threat is, without having any intelligence in terms of what is actually going on on the ground, would have been very dangerous.”

“It’s sort of a cartoonish impression of military capabilities and military forces,” he said. “The one thing that our forces are noted for is planning and preparation before we send people in harm’s way, and there just wasn’t time to do that.”

Gates said he could not speak to allegations that the State Department refused requests for additional security in the months prior to the attack. Former Secretary of State Hillary Clinton has been increasingly targeted for criticism by Republicans for her handling of the crisis and the government’s response, with some even raising the possibility that the State Department engineered a coverup to protect her political future.

But when Gates was asked whether he thought that might be a possibility, he replied flatly, “No.”

“I worked with Secretary Clinton pretty closely for two and a half years, and I wouldn’t want to try and be somebody…trying to convince her to say something she did not think was true,” he said, adding that he has not spoken with Clinton about the events in Benghazi.

The public is also unimpressed by these transparently political attacks. Republicans believe they can harm Hillary Clinton politically over Benghazi, but so far there is no evidence of this . Public Policy Polling found that more people trust Clinton than the Republican Congress:

PPP’s newest national poll finds that Republicans aren’t getting much traction with their focus on Benghazi over the last week. Voters trust Hillary Clinton over Congressional Republicans on the issue of Benghazi by a 49/39 margin and Clinton’s +8 net favorability rating at 52/44 is identical to what it was on our last national poll in late March. Meanwhile Congressional Republicans remain very unpopular with a 36/57 favorability rating.

Voters think Congress should be more focused on other major issues right now rather than Benghazi. By a 56/38 margin they say passing a comprehensive immigration reform bill is more important than continuing to focus on Benghazi, and by a 52/43 spread they think passing a bill requiring background checks for all gun sales should be a higher priority.

This part sounds like a Sarah Palin joke:

One interesting thing about the voters who think Benghazi is the biggest political scandal in American history is that 39% of them don’t actually know where it is. 10% think it’s in Egypt, 9% in Iran, 6% in Cuba, 5% in Syria, 4% in Iraq, and 1% each in North Korea and Liberia with 4% not willing to venture a guess.

I bet they also don’t know what happened there, or that it was the Republicans who cut funding for embassy security.

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Wingnuts Say The Darndest Things: Michele Bachmann on 9/11 Pray

“It’s no secret that our nation may very well be experiencing the hand of judgment. It’s no secret that we all are concerned that our nation may be in a time of decline. If that is in fact so, what is the answer? The answer is what we are doing here today: humbling ourselves before an almighty God, crying out to an almighty God, saying not of ourselves but you, would you save us oh God? We repent of our sins, we turn away from them, we seek you, we seek your ways. That’s something that we’re doing today, that we did on the National Day of Prayer, it’s something that we have chosen to do as well on another landmark day later this year on September 11. Our nation has seen judgment not once but twice on September 11. That’s why we’re going to have ‘9/11 Pray’ on that day. Is there anything better that we can do on that day rather than to humble ourselves and to pray to an almighty God?” –Michele Bachmann

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Rand Paul Making Sense On Civil Liberties–But Where Libertarians Go Wrong

Sometimes Rand Paul makes a lot of sense, such as when saying that the surviving suspect in the Boston Marathon bombing should be tried in civilian as opposed to military courts (which many other Republicans have been advocating):

“You know, I want to congratulate law enforcement for getting and capturing these terrorists, first of all, but what we do with them, I think we can still preserve the Bill of Rights, I see no reason why our Constitution is not strong enough to convict this young man with a jury trial, with the Bill of Rights,” Paul (R-Ky.) said on “Cavuto” on Fox Business Network. “We do it to horrible people all of the time: Rapists and murderers, they get lawyers, they get trials with juries. We seem to do a pretty good job of justice. So I think we can do it with our court system.”

If only Rand Paul and other libertarians would stick more to civil liberties issues. Then they would sound much more rational and we would have more in common with them.

I think that one reason Rand Paul and many other libertarians come across as crackpots is the company they keep. The close affiliation between libertarianism and the conservative movement has been disastrous for libertarianism. You can’t mix a pro-freedom philosophy with the views of the authoritarian right and remain consistently pro-freedom (or make much sense).

The Rand (and Ron) Paul form of libertarianism has many of the negative attributes of the far right. In the case of Ron Paul this has included racism, but this isn’t universal to all libertarians who became influenced by conservative views. This also includes support for states’ rights, which opposes excessive government power at the national level but often allows for far more restrictions on liberty at the state level (frequently at the expense of minorities.)

Many libertarians ignore religious liberty while promoting what they would describe as economic liberty. In some cases they are right to oppose unfair restrictions on business and counter-productive regulations. Far too often this really translates into opposing the types of regulation which are necessary for a free economy to work. They believe that markets are something arising from nature which must be left without restrictions, failing to realize that markets are creations of man which only work with a certain amount of regulation. This must come from government, not always Adam Smith’s invisible hand. In the worst cases, libertarianism is used to justify lack of activity against powerful business interests who exploit the pubic or harm the environment. They universally support business over government. While government is not always right in such disputes, when the system is working government provides a means for the public to work in unison against special interests which are too powerful for individuals to take on.

Many libertarians aligned with the conservative movement  have adopted views of the religious right, failing to realize that mixing religion with government is one of the greatest threats to freedom we face.

Libertarians would be much more consistent supporters of individual liberty (as opposed to being opponents of government action on a national level) if they continued their support of civil liberties but also  recognized the importance of separation of church and state, while giving up racism, state’s rights, and a knee-jerk opposition to economic regulation where it is needed. Of course those who hold this viewpoint are better known as liberals.

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Tsarnaey and Miranda Rights

While we had national support for the successful law-enforcement efforts to capture Boston Marathon bombing suspect Dzhokhar Tsarnaev yesterday, the aftermath has demonstrated the usual political divisions in this country. Republicans see terrorism as reason to ignore Constitutional liberties, the left (joined by the ACLU) protests the lack of Miranda warnings, and the Obama administration has taken a middle of the road approach. The Obama administration is ignoring Republican pressure to treat Tsarnaey as an “enemy combatant” and deny him right to legal counsel or a fair trail but is using the public safety exemption to postpone reading of the Miranda warnings.

From a pragmatic viewpoint in this particular case I doubt that this will have much impact. There is ample evidence of Tsarnaey’s guilt even before he is medically capable of saying anything. Being immersed in American popular culture (as indicated in interviews with friends and his Twitter account), Tsarnaey is also probably well aware that what he does say can be used against him. I have seen contradictory information in various posts on the subject I read today as to whether anything he says before being advised of his rights can be used  to convict him under the public safety exemption. There is no reason to believe that civilian courts could not handle this case, but strong civil liberties arguments for failing to follow Constitutional safeguards which have been strengthened by the courts with decisions such as establishing the Miranda rights in light of a past history of abuses.

What matters here is the precedents which are established for trials of American citizens in future cases who are accused of terrorist acts, and the degree to which we preserve the rights of the accused in the post 9/11 era. Emily Brazelon discussed many of these concerns at Slate:

There is one specific circumstance in which it makes sense to hold off on Miranda. It’s exactly what the name of the exception suggests. The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety. That may or may not be the case with Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario. And that should trouble anyone who worries about the police railroading suspects, which can end in false confessions. No matter how unsympathetic accused terrorists are, the precedents the government sets for them matter outside the easy context of questioning them. When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape for the rest of us.

She concluded with this warning: “But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.”

Scott Lemieux added:

It is true that, in a narrow sense, the federal government is free under Miranda to interrogate Tsarnaev without informing him of his rights if it believes it has enough independent evidence to convict him.   But this is not the only consideration.   Miranda does not require us to be indifferent about the distinction between coercive and non-coercive interrogations, and indeed its logic suggests that we shouldn’t be.  Earl Warren, to his great credit, did not believe that there was a inherent contradiction between professionalism and the respect for the rights of the accused and crime control.  The local authorities that relied on coercive interrogations and didn’t follow professional procedures weren’t more likely to convict criminals, although they were more likely to convict the innocent.  Miranda reflected this belief, and the intent of the rule was to inhibit coercive interrogations, because coercive interrogations were both wrong in themselves and produced unreliable information.

To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message.   It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.   This isn’t right  — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control.  The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda.  Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them.  This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.

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Bipartisan Report On Torture After 9/11

In case anyone still had any doubt that George Bush and Dick Cheney should be tried as war criminals, a bipartisan report confirms the long-standing criticism of torture being used under them:

A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.

The sweeping, 577-page report says that while brutality has occurred in every American war, there never before had been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The study, by an 11-member panel convened by the Constitution Project, a legal research and advocacy group, is to be released on Tuesday morning.

Debate over the coercive interrogation methods used by the administration of President George W. Bush has often broken down on largely partisan lines. The Constitution Project’s task force on detainee treatment, led by two former members of Congress with experience in the executive branch — a Republican, Asa Hutchinson, and a Democrat, James R. Jones — seeks to produce a stronger national consensus on the torture question.

While the task force did not have access to classified records, it is the most ambitious independent attempt to date to assess the detention and interrogation programs. A separate 6,000-page report on the Central Intelligence Agency’s record by the Senate Intelligence Committee, based exclusively on agency records, rather than interviews, remains classified.

“As long as the debate continues, so too does the possibility that the United States could again engage in torture,” the report says.

The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.

Interrogation and abuse at the C.I.A.’s so-called black sites, the Guantánamo Bay prison in Cuba and war-zone detention centers, have been described in considerable detail by the news media and in declassified documents, though the Constitution Project report adds many new details.

It confirms a report by Human Rights Watch that one or more Libyan militants were waterboarded by the C.I.A., challenging the agency’s longtime assertion that only three Al Qaeda prisoners were subjected to the near-drowning technique. It includes a detailed account by Albert J. Shimkus Jr., then a Navy captain who ran a hospital for detainees at the Guantánamo Bay prison, of his own disillusionment when he discovered what he considered to be the unethical mistreatment of prisoners.

But the report’s main significance may be its attempt to assess what the United States government did in the years after 2001 and how it should be judged. The C.I.A. not only waterboarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end.

The question of whether those methods amounted to torture is a historically and legally momentous issue that has been debated for more than a decade inside and outside the government. The Justice Department’s Office of Legal Counsel wrote a series of legal opinions from 2002 to 2005 concluding that the methods were not torture if used under strict rules; all the memos were later withdrawn. News organizations have wrestled with whether to label the brutal methods unequivocally as torture in the face of some government officials’ claims that they were not.

In addition, the United States is a signatory to the international Convention Against Torture, which requires the prompt investigation of allegations of torture and the compensation of its victims.

Like the still-secret Senate interrogation report, the Constitution Project study was initiated after President Obama decided in 2009 not to support a national commission to investigate the post-9/11 counterterrorism programs, as proposed by Senator Patrick J. Leahy, Democrat of Vermont, and others. Mr. Obama said then that he wanted to “look forward, not backward.” Aides have said he feared that his own policy agenda might get sidetracked in a battle over his predecessor’s programs.

The panel studied the treatment of prisoners at Guantánamo Bay, in Afghanistan and Iraq, and at the C.I.A’s secret prisons. Staff members, including the executive director, Neil A. Lewis, a former reporter for The New York Times, traveled to multiple detention sites and interviewed dozens of former American and foreign officials, as well as former detainees.

Mr. Hutchinson, who served in the Bush administration as chief of the Drug Enforcement Administration and under secretary of the Department of Homeland Security, said he “took convincing” on the torture issue. But after the panel’s nearly two years of research, he said he had no doubts about what the United States did.

“This has not been an easy inquiry for me, because I know many of the players,” Mr. Hutchinson said in an interview. He said he thought everyone involved in decisions, from Mr. Bush down, had acted in good faith, in a desperate effort to try to prevent more attacks.

“But I just think we learn from history,” Mr. Hutchinson said. “It’s incredibly important to have an accurate account not just of what happened but of how decisions were made.”

He added, “The United States has a historic and unique character, and part of that character is that we do not torture.”

The panel found that the United States violated its international legal obligations by engineering “enforced disappearances” and secret detentions. It questions recidivism figures published by the Defense Intelligence Agency for Guantánamo detainees who have been released, saying they conflict with independent reviews.

Many on the right justified these actions belieing they were necessary for our national security. Therefore I will repeat the line above which points out:  The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.

 

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McClatchy Analysis Accuses Obama Of Misleading Public On Use Of Drones

When questioning the Drone War, my greatest concern has been not the killing of Americans (a rare event which Rand Paul grandstanded about) but the lack of transparency and oversight. McClatchy reviewed intelligence reports finding that drone strikes in Pakistan have not adhered to the standards verbalized by Barack Obama:

Contrary to assurances it has deployed U.S. drones only against known senior leaders of al Qaida and allied groups, the Obama administration has targeted and killed hundreds of suspected lower-level Afghan, Pakistani and unidentified “other” militants in scores of strikes in Pakistan’s rugged tribal area, classified U.S. intelligence reports show.

The administration has said that strikes by the CIA’s missile-firing Predator and Reaper drones are authorized only against “specific senior operational leaders of al Qaida and associated forces” involved in the Sept. 11, 2001, terror attacks who are plotting “imminent” violent attacks on Americans.

“It has to be a threat that is serious and not speculative,” President Barack Obama said in a Sept. 6, 2012, interview with CNN. “It has to be a situation in which we can’t capture the individual before they move forward on some sort of operational plot against the United States.”

Copies of the top-secret U.S. intelligence reports reviewed by McClatchy, however, show that drone strikes in Pakistan over a four-year period didn’t adhere to those standards.

The intelligence reports list killings of alleged Afghan insurgents whose organization wasn’t on the U.S. list of terrorist groups at the time of the 9/11 strikes; of suspected members of a Pakistani extremist group that didn’t exist at the time of 9/11; and of unidentified individuals described as “other militants” and “foreign fighters.”

In a response to questions from McClatchy, the White House defended its targeting policies, pointing to previous public statements by senior administration officials that the missile strikes are aimed at al Qaida and associated forces.

Micah Zenko, an expert with the Council on Foreign Relations, a bipartisan foreign policy think tank, who closely follows the target killing program, said McClatchy’s findings indicate that the administration is “misleading the public about the scope of who can legitimately be targeted.”

The documents also show that drone operators weren’t always certain who they were killing despite the administration’s guarantees of the accuracy of the CIA’s targeting intelligence and its assertions that civilian casualties have been “exceedingly rare.”

McClatchy’s review is the first independent evaluation of internal U.S. intelligence accounting of drone attacks since the Bush administration launched America’s secret aerial warfare on Oct. 7, 2001, the day a missile-carrying Predator took off for Afghanistan from an airfield in Pakistan on the first operational flight of an armed U.S. drone…

There is far more in the article, reinforcing my fear that any administration is likely to show a similar pattern when there is little oversight and they are acting in secrecy. As I have previously discussed, I would like to see oversight analogous to the FISA Court, as others have also proposed, and the Obama administration is considering. This would provide some degree of judicial oversight, ending the idea that any individual (regardless of whether an American citizen) could be targeted for execution by drones with no oversight whatsoever. In addition, this would ensure that there is a record of the justification for the use of drones which could be reviewed by Congressional committees which might uncover any pattern of abuse. Ultimately such information should be declassified so presidents would know that their conduct would be judged by history. When I wrote this I did not anticipate that a news outlet would provide this information so quickly, but am not surprised by the findings. Being forced to justify the choice of targets for drone strikes in a judicial situation might have prevented the use of drones against targets beyond senior leaders while claiming this is not being done, and required justification of their actions.

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