ChezLark

As Glenn Greenwald points out regarding the torture bill passed yesterday by the Senate,

Jay Rockefeller (who voted for this bill) is the ranking Democrat on the Senate Intelligence Committee. When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the interrogation program and that the Intelligence Committee members (including him) therefore know nothing about it. His amendment to compel reports to Congress was defeated with all Republicans (except Chafee) voting against it. He proceeded to vote for the underlying bill anyway, thereby legalizing a program he admits he knows nothing about (and will continue to know nothing about).

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.

Men of principle, all

The Senate just passed the bill. As Glenn Greenwald points out, it’s been unclear during this entire fiasco what their so-called “strategy” has been.

They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they are going to vote against the bill, thereby ensuring those exact accusations will be made, and loudly (the White House already started today). Yet at the same time, they absented themselves the whole time from the debate (until they magically appeared today) and thus lost the opportunity to defend their position.

If the Democrats had to pick one bill to filibuster, this would have been it. They completely mishandled this issue and now we’re stuck with Congressionally approved tyranny.

I’m now actively looking for a way to punish the Democrats at the polls without handing the country to the Republicans. One thing is for sure: I know what to tell the DNC the next time they call me asking for money.

The Democrats have reportedly not ruled out a filibuster on the torture bill, even though the press earlier reported that they had promised not to.

Please take sixty seconds to call your senator and tell them you urge the Democrats to filibuster the bill. Here’s some encouragement from Unfogged:

Please call your Senators today, folks. You can find their numbers here. I just called Boxer and Feinstein, and Boxer’s office said they’re getting a lot of calls in support of a filibuster so maybe, god willing, you can make a difference and help it happen. It takes just a minute. Here’s what I said, in case you’re feeling stumped:

“Hi, I’m calling in support of a filibuster on the torture bill that’s up for a vote today.”

That’s all it takes.

A commentor at Unfogged claims that, having spoken to Senator Reid’s office, a filibuster has not been ruled out:

Hey, Senator Reid’s office says that a filibuster has not been ruled out as a possibility. Anyone who wants to call and beg, it’s (202) 224-3542.

LizardBreath 09-28-06 12:03 PM

Also,

I got through to Reid’s office this time. They say “no final decision’s been made.”

Felix 09-28-06 01:13 PM

If you have access to a private phone, consider calling.

If you have access to C-SPAN, you may wish to watch the Senate debate on the so-called “Military Commissions Act of 2006″ (aka the Throw People In a Hole and Let Them Rot Act).

Arlin Specter proposed an amendment that would remove the sections of the bill that make it impossible for detainees to challenge the fact or conditions of their detention (habeus stripping). The amendment failed by a close vote of 48-51. The roll call on the amendment is available online. Only one Democrat opposed the measure, Senator Nelson from Nebraska. Only four Republicans voted in favor of the amendment, Specter (Pennsylvania), Smith (Oregon), Sununu (New Hampshire), and Chafee (Rhode Island). Good for them.

The rest of the Republican yes-men have literally voted to vest tyrannical power in the executive branch. If you are represented by any of them I would think it only proper to scream into the phone.

Would you believe a ten-year professional litigator and author of a NY Times bestselling book?

Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure that fact that it’s happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to.
[...]
[W]e are now about to vest in the President the power to order anyone — U.S. citizen, resident alien or foreign national — detained indefinitely in a military prison regardless of where they are — U.S. soil or outside of the country. Those detained are either cut off from any meaningful judicial review or are cut off completely. They can be subject to torture with no recourse. And all of this happens on the unchecked say-so of the administration. Really, what could be more significant or devestating than this?

Would you believe a lawyer who worked for eight years in the Department of Justice’s Office of Legal Counsel, holds a law degree from Yale and is currently a Visiting Professor of Law at Georgetown?

The most striking thing about the bill–perhaps more than all of its substantive provisions–is that in case after case [...] it would (i) delegate virtually unbridled discretion to the Executive; and (ii) then attempt to foreclose any meaningful judicial review of the President’s decisions (no matter how far those decisions might stray from remaining legal limits, such as treaty obligations), and purport to eliminate any precedential effect of other legal authorities that might cabin the Executive’s discretion (e.g., international interpretations of Geneva; prior court decisions concerning the courts-martial system).

In other words, the principal theme and effect of this legislation is to systematically abdicate and destroy existing legislative and judicial checks and balances.

Maybe you think I’m getting a little worked up over this bill about to be passed by Congress. Well, would you listen to the New York Times?

Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.
[...]
There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.
[...]
Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

The shameful and outrageous Tyranny And Abuse Permission Act (not its real name) was passed by the House yesterday. Democrats voted against the bill by a count of 160-34, and Republicans voted for it by a count of 219-7. The roll call is available online.

I gave the roll call a once-over, looking for Democratic Washington State representatives, and didn’t spot any. I would urge you to take a look at the roll call to see if any representatives from your state or district voted in favor of this sorry excuse for a piece of democratic legislation, and giving them an earful if they did. You can use the House of Representatives web site to figure out who your representative is, if you don’t already know.

The Senate is expected to pass the bill later today. The Democrats could filibuster it but apparently won’t. I am sufficiently angry about this that I would welcome any suggestions for punishing Democratic Senate candidates in my state at the polls without shooting myself in the foot by cementing a Republican win.

Things are happening fast in the Capitol.

First, as though the first “compromise” bill on the Geneva Conventions, military tribunals and detainee treatment wasn’t bad enough, Republicans over the weekend made more than 100 changes to the bill that, if such a thing were possible, made it worse.

The Washington Post is also now reporting that Democrats have caved in completely, and, far from filibustering the bill, have agreed to “debate the bill for less than a dozen hours and then vote on it.”

What’s wrong with the bill?

Well, you can go read it for yourself, but it’s kind of long. Here are the bad parts:

• The government gets to decide who is an “unlawful enemy combatant”, using whatever mechanism it chooses. US citizens can be so designated.
• Such people can be held indefinitely, without trial.
• Non-US citizens are barred from challenging their imprisonment on any grounds whatsoever. If the government feels like holding them for the rest of their life, with no evidence whatsoever and without ever convening a trial, the prisoner has absolutely no recourse. For good measure, this is backdated to 9/11.
• Non-US citizens are also specifically barred from challenging “any aspect of the detention, transfer, treatment, trial, or conditions of [their] confinement”. If the government feels like using, say, torture or rape, prisoners have absolutely no legal recourse. This is also backdated to 9/11.
• If the government chooses to bring a detainee to trial:
  • Evidence obtained through coercion (but not outright torture) may be used if the presiding officer decides it’s OK
  • Evidence obtained by any means (including torture), obtained before December 30th, 2005 (when the Detainee Treatment Act went into effect) may be used if the presiding officer decides it’s OK
  • Hearsay evidence is usable, subject to a challenge where the burden is on the defense to demonstrate that the evidence is is unreliable
• Geneva Convention protections are substantially weakened. The government has already said that the bill will permit various “enhanced” CIA interrogation techniques that had to be suspended when the Supreme Court ruled that the Geneva Conventions apply to terror detainees.
• To ensure that courts cannot fully apply the Geneva Conventions, the bill forbids anybody whatsoever from ever claiming that the Geneva Conventions are a “source of rights”, in any court of law.
• The narrowing of the Geneva Conventions is backdated to November 26th, 1997, to ensure that anyone who may have committed felonies by violating the Conventions can never be brought to trial.
• Beyond the specific violations provided for by the bill, the President is granted the authority to interpret the Geneva Conventions for purposes of determining what is or is not a treaty violation. Of course, none of these determinations are reviewable by a court.

Here are some snippets of commentary on the bill from various legal observers:

Glenn Greenwald writing in Salon:

This entire controversy arose because the U.S. has been using “interrogation techniques” — such as induced hypothermia, “long standing,” threats directed at detainees’ families and waterboarding — that are widely considered to be torture, and therefore in violation of the Geneva Conventions. The only thing the president wanted was to ensure that the CIA could continue to use these techniques, and that, unquestionably, is precisely the outcome of this “compromise.”

Jack Balkin:

[I]f a person at Guantanamo Bay isn’t in fact a terrorist and isn’t a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them.
[...]
Similarly, if the Administration decides not to bring a particular detainee to trial before military commission but just use them as a source of information by repeatedly torturing them [...] there is no way for a person abused in this way to contest it and stop it, even if it violates the Geneva Conventions.
[...]
If the McCain-Graham-Warner bill is passed in its present form, it will also undermine America’s values. Because it will leave the innocent and the harmless, and those illegally abused but never brought to trial without a remedy.

It will perpetrate a mockery of justice.

David J. Luban writing in Slate:

Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It systematically distinguishes “severe pain”—the hallmark of torture—from (mere) “serious” pain—the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as “bodily injury that involves … extreme physical pain.” To untutored ears, “extreme” sounds very similar to “severe”; indeed, it sounds even worse than “severe.” But in any case, it certainly sounds worse than “serious.” Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.

The provisions in the bill are so extreme that I had intended this morning to urge everyone reading this to call or write their senator to encourage them to filibuster the bill, which would be the only remaining way for Democrats to block it.

As I mentioned, though, it appears that the Democrats have given up entirely and that the bill may become law as early as this evening or tomorrow.

Have a nice day.

I like to read the White House’s press briefing transcripts because they are essentially theater. The best moments occur when a reporter manages to phrase a legitimate question such that it isn’t easy to provide a non-answer without the dodge being painfully obvious.

Today, though, Homeland Security Advisor Frances Fragos Townsend did a briefing via conference call, and she’s not as good as Tony Snow at tapdancing.

Q: Are you questioning the [recently declassified intelligence] judgment that jihadists are increasing in both number and geographic dispersion? Because if that’s true, how can you say we’re safer?

MS. TOWNSEND: I don’t think there’s any question that we’re safer. But as the President said, do I think that we’re safe? No.

What does this answer convey, if not:

• We’re safer because we, the government, say so.
• But still, be afraid.

I saw this term for the first time today in a post at Shakespeare’s Sister. It’s a nice metaphor for what politicians are doing when they insert “code” phrases into speeches or other public pronouncements that send signals to their base, but go unnoticed by others. Recall that a dog whistle emits a frequency audible to dogs but not humans.

A good example of this practice was Bush’s use of the phrase “wonder-working power” in the 2003 State of the Union address, which was understood to be code to his Christian base, as it echos a popular Christian hymn.

As Glenn Greenwald suggests, perhaps the Democrats should run campaign ads that consist simply of someone reading the conclusions of the most recent National Intelligence Estimate, as reported by the NYT:

A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.
[...]
The intelligence estimate, completed in April, is the first formal appraisal of global terrorism by United States intelligence agencies since the Iraq war began, and represents a consensus view of the 16 disparate spy services inside government. Titled “Trends in Global Terrorism: Implications for the United States,’’ it asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread across the globe.

The report “says that the Iraq war has made the overall terrorism problem worse,” said one American intelligence official.

This is something of a conspiracy theory, but I wonder…

We learned recently that the secret CIA prisons were recently emptied because, among other things, the CIA mutinied and refused to continue “aggressive” interrogations in the wake of the Supreme Court’s Hamdan decision, which clarified that the Geneva Conventions fully apply to terror detainees.

Now, at the time, this struck me as a good thing.

But then I started wondering.

Why was the CIA still under orders to use “aggressive” interrogation techniques after the Supreme Court’s ruling? We don’t know what they were being ordered to do, but we do know that CIA employees began fearing they could be targets of criminal prosecution down the road, and taking out insurance policies that would pay the costs of litigation.

Did the Bush administration consciously and deliberately ignore the Hamdan ruling? Did Bush order the CIA to act in direct defiance of the Supreme Court? Was a complete rupture in the rule of law only averted because the CIA mutinied?

Pop quiz: which of these techniques was used by the Nazis to punish prisoners in the Auschwitz death camp, and which was used by the CIA to interrogate prisoners, and will be reauthorized by the new “compromise” legislation that will allow violations of the Geneva Conventions?

Technique A:

Prisoners are forced to spend the night in 5-foot-square cells, four men to a cell. The lack of space means the prisoners can do nothing but stand. Prisoners are removed from the cell each morning and put back at night.

Technique B:

Prisoners are forced to stand, with their hands bound and their feet chained to the floor, for more than 40 hours. Exhaustion and sleep deprivation are effective in breaking the prisoner.

Yeah, yeah, Godwin’s Law, bla bla. Bite me.

Answer: A describes the “standing cells” at Auschwitz. B is the CIA’s “long time standing” interrogation technique.

There has been a scuffle over legislation about the US’s adherence to the Geneva Conventions. A “compromise” among Republicans was announced late last week. Critics are calling it an authorization to violate the Geneva Conventions. The White House is saying that it’s simply a clarification, and adheres fully to the Conventions’ requirements.

Isn’t this all legalistic and pedantic? Isn’t it tricky to follow and unclear who is right?

Not really. Here is an easy way to see that the proposed legislation is an obvious rollback of Geneva protections:

• Federal law current says it’s a criminal offense to violate the Geneva Conventions (more specifically, “Common Article 3″ which provides blanket protections for prisoners)
• After 9/11, the President declared that terror detainees would not receive full Geneva Convention protections.
• The CIA, with full governmental approval, began using “aggressive” interrogation techniques such as forced nudity, mock executions, induced hypothermia, sensory bombardment, waterboarding, “stress” positions, threats to detainee’s families, and others, that, many observers believe, clearly violate the Geneva Conventions’ protections. Nonetheless, the government felt it was on safe legal ground because the Conventions, per Presidental order, did not apply.
• The Supreme Court, though, disagreed, and ruled in the Hamdan decision that terror detainees are still covered by the Conventions.
• The CIA refused to continue using “aggressive” techniques for fear that officers doing so would be subject to prosecution. It was widely reported that CIA officials began buying private insurance to cover the cost of lawsuits and criminal defense litigation.
• The White House started making noises about “clarifying” the “meaning” of the Conventions, which have been in place for over fifty years without anyone complaining that they were particularly difficult to understand.
• The “compromise” legislation claims to provide a “clarification” of the Geneva Conventions, but also forbids any US court from second-guessing the definition.
• The “compromise” legislation was immediately hailed by all sides as allowing the CIA’s “aggressive” interrogations to continue.

This is pretty much all you need to know about the issue for it to be obvious that the proposed legislation will authorize violations of the Geneva Conventions. The issue isn’t murky at all. Ask yourself:

• If the CIA’s interrogations complied with the Geneva Conventions, why did the agency revolt when it became clear that they could be prosecuted for violating the Conventions?
• If the CIA’s interrogations complied with the Geneva Conventions, surely no lawsuits or prosecutions based on the Conventions would have succeeded, so why was it necessary to “clarify” their meaning?
• If the new legislation is really just a “clarification”, why is it necessary to forbid US courts from examining whether it does, in fact, satisfy our treaty obligations?
• If the CIA’s program was consistent with the Conventions, and the new legislation is just a “clarification”, how exactly does the new legislation “allow” the interrogation program to continue? That is, without this legislation, why can’t the CIA proceed?

Here are three facts that have been claimed by the government:

1. The Supreme Court’s ruling that the Geneva Conventions apply forced the CIA to stop its interrogation program
2. The proposed legislation in no way weakens Geneva Convention protections
3. …but the legislations “allows” the CIA to continue interrogations.

2) and 3) can’t both be true at once. It can’t be the case simultaneously that the legislation allows the CIA to do something that it couldn’t before and that the legislation in no way weakens previous law.

If you have two neurons to rub together, should be obvious that the administration is fudging to avoid admitting that its proposed legislation rolls back at least part of the Geneva Conventions. But day after day, with a straight face, You are being asked to believe that it does no such thing. Or, in the alternative, that the issue is too tricky and nuanced for you to understand, poor dear. You should just leave it to the Nice Men in charge.

Basically, your government thinks you’re an idiot.

There are now clean PDFs of the language that Republicans agreed among themselves to as a “compromise” on the Geneva Conventions and Classified Information, Self Incrimination and Coercion, and Hearsay. Both documents are quite short, so it’s easy to review them yourself.

Yesterday was the one year anniversary of the first image being posted on chromalark, my photoblog.

Thanks for the memories, people! I’m looking forward to the next year.

BTW, look at that image for a minute. OK, are you back? Do you notice a latent message in the image? I thought it was obvious but Laura didn’t see it until I pointed it out. I’m not talking about the text in the lower right.

I’m not sure why Whistler waited ten days to send me email about this, but apparently last week the alpine got 13cm of snow. Winter is on its way!

Just in time, too. The way things are going, perhaps I will just go sit in a mountain cabin and unplug the TV this winter…

In discussions of detainee treatment, civil rights, wiretapping, etc, distinctions are often made between rights and protections for US citizens, as distinct from everyone else. To take just one example, the current proposed legislation on terror detainees allows US citizens held in US custody abroad (for example, at Guantanamo) to challenge their detention in US courts, but not anyone else.

My question is, how can this be understood as just?

Our civil rights protect us against abuses by the executive branch, like arresting or locking up the wrong person, searching, surveiling or wiretapping people without sufficient evidence to justify the intrusion, beatings, torture, threats, intimidation, etc. We put safeguards in place because we don’t believe that even a well-intentioned executive will always act correctly, and abuses are unjust and unconscionable.

It seems to me that if you’re in favor of different protections for citizens and non-citizens, you must believe one of two things:

1. For some reason, although the executive can’t be trusted not to be abusive when dealing with citizens, we can be confident that it won’t be abusive when dealing with non-citizens.
2. For some reason, although we believe that executive abuses against citizens are unjust and unconscionable, abuses against non-citizens are perfectly acceptable.

If you are in favor of different rights and protections for citizens and non-citizens, please indicate which line of reasoning you subscribe to and specify the missing link.