Monday, July 25, 2005


By William Fisher

Michelle Malkin, sometimes known as Bill O’Reilly in drag, opened one of her recent syndicated rants with this question:

“Oh, dear. Oh, dear. Civil-liberties activists, anti-war organizers, eco-militants and animal-rights operatives are in a fright over news that the nefarious FBI is watching them. Why on earth would the government be worried about harmless liberal grannies, innocent vegetarians, unassuming rainforest lovers and other ‘peaceful groups’ simply exercising their First Amendment rights?”

Ms. Malkin was referring to a lawsuit brought by the American Civil Liberties Union, charging that the FBI had amassed hundreds of pages of secret files on that organization and similar groups.

Well, let me suggest that this cute-looking new darling of the salivating right is asking the wrong question. What she should want to know is why the FBI is snooping on the ACLU. After all, the rights the ACLU defends include those that allow Ms. Malkin to write exactly what she wants to write, no matter how misinformed.

Ms. Malkin is too young to remember, and obviously hasn’t read much American history, but if she wants an answer to that question, there are lots of answers. Here are a few.

Back in the 1960s and 1970s, the FBI engaged in widespread spying on ordinary Americans. The targets back then were left-wing groups and individuals, civil rights and anti-Vietnam activists and, of course, President Nixon’s “enemies list”.

The leader of the pack was the FBI’s powerful first director, J. Edgar Hoover. J. Edgar started his witch-hunting career in the 1920s under Attorney General Mitchell Palmer. Palmer’s infamous ‘Red Raids’ were enabled by a national environment of fear and suspicion and led to the jailing or deportation of hundreds of communists, anarchists, Bolsheviks, and other dissidents, including Emma Goldman, the well-known Russian √©migr√© poet.

The FBI under Hoover collected information on all America's leading politicians. Known as Hoover's “secret files”, this incriminating material was used to make sure that the eight presidents under whom he served would be too frightened to sack him. The strategy worked and Hoover was still in office when he died in 1972.

Not even Martin Luther King, Jr. got a free pass. The FBI used wiretaps and a covert operation, personally directed by Hoover, to unearth derogatory information intended to destroy King as a national civil rights leader.
In between the Red Raids and Martin Luther King, there was the internment of 120,000 Japanese-Americans during World War Two – an action for which the United States Government finally apologized, but which young Ms. Malkin thinks was just a dandy idea.

Even earlier in the life of our Republic, there were the Alien and Sedition Acts, passed in 1798 under the administration of President John Adams. They were sold as measures to protect the United States from "dangerous" aliens, but were actually used by the Federalists to stop the growth of the Democratic-Republican Party.

The four laws making up the Act authorized the president to imprison or deport any alien associated with any nation the United States was fighting in a "declared war, " and deport any alien considered dangerous, even in peacetime, extended the duration of residence required for aliens to become citizens, nearly tripling it from five years to 14, and made it a crime to publish "false, scandalous, and malicious writing" against government or government officials.

These unambiguous violations of the First Amendment were vigorously opposed by such well-known lefties as Thomas Jefferson and James Madison.

Ms. Malkin saves her fiercest invective for the “eco-radicals” who urge their followers to take “direct actions" against American military establishments, urban centers, corporations, government buildings, media outlets, and the financial centers of the country through “massive property destruction”, “online sabotage”, “physical occupation of buildings”, and large-scale urban rioting.

Ms. Malkin conveniently ignores that fact that such eco-radicals have nothing whatever to do with the ACLU’s lawsuit. She also ignores America’s long history of civil disobedience – which started with the Revolutionary War that created the country, continued through the Civil Rights movement, and is still alive and well today.

No one wants to see mass destruction of anything by anyone, but Ms. Malkin would do well to acknowledge that it was acts of civil disobedience that gave her many of the rights she now enjoys.

Ms. Malkin concludes: " ‘Dissent is patriotic’ is a bromide no responsible agent can swallow blindly. Tolerating the unfettered free speech of saboteurs has threatened enough lives already.”

How about your free speech, Michelle?

I forget who said it, but it’s a statement Ms. Malkin needs to think about: The greatest threat to democracy is the unbridled power of government.

Funny how often small-government states-rights conservatives like Michelle Malkin forget what it is they’re supposed to stand for!


Interview conducted by William Fisher

Brian J. Foley is a professor at Florida Coastal School of Law in Jacksonville. Recently we interviewed him about what should be done with prisoners detained at the U.S. Navy base at Guantanamo Bay, Cuba.

Q. The members of Congress who recently visited Guantanamo Bay seemed to be concerned about primarily about the treatment of detainees. Is this the main issue now?

A. The main issue is and always has been whether these people are in fact guilty of anything at all. Members of congress can satisfy themselves that prisoners can read the Koran, but what if those prisoners are innocent? Reading the Koran does not make up for their loss of freedom, and the lack of any process to prove their innocence.

Q. The DOD has set up what seems a very complex system for determining the guilt of detainees. Is there something wrong with the Army system?

A. Even if we assume good faith on the part of the Administration, then it’s trying to hold these people because it thinks they are dangerous but can’t prove it objectively. The slowness of the courts is undoubtedly part of their strategy. When it designed a hearing system, the Administration knew that prisoners were going to challenge it in court, and that everything would grind to a halt until a court decides, and then again until an appeals court decides, and yet again until the Supreme Court decides

During this process, the Administration can keep these men in prison, because it can argue that to let them out would endanger us. This is analogous to denying bail to a criminal defendant in our system.

If we were really concerned about the fairness and justice, the government could speed up the process by putting together a panel using the Uniform Code of Military Justice. Decisions would then be seen as proper.

Q. Are there specific problems with the Combat Status Review Panels (CSRPs), which determine whether someone is an enemy combatant, a POW or an innocent person?

A. The CSRPs provide the minimum process possible. For example, the rules include the presumption that the person is an enemy combatant. Also, the standard isn’t "beyond a reasonable doubt," as in our criminal justice system, but a mere "preponderance of the evidence " -- what lawyers generally quantify as "51 percent." The barest majority.

These tribunals are made up of US military officers who have loyalties to the military and their "Commander-in-Chief." Prisoners have no right to counsel – just some soldier who can help them along. That soldier is probably outranked by members of the tribunal. The tribunal can consider secret evidence that the prisoner can never see or even be told about by his military representative.

This violates our own due process rights to cross-examine and confront witnesses, and to have all evidence against you disclosed. The military officers conducting the hearing can consider any evidence they think is "reasonable." That includes hearsay evidence, and evidence and witnesses considered "reasonably available." It’s unlikely the tribunal would fly other people halfway around the world to testify for the prisoner.

Q. Are there specific problems with the "military tribunals"?

A. This is the second part of the justice system our government is creating. President Bush created these bodies out of whole cloth in November 2001. While they provide more legal process than the CSRPs, they’re still less reliable than hearings POWs would receive under the Uniform Code of Military Justice. That is something Congress should decide to do .

Military tribunals have a presumption of innocence, but like the CSRPs, they still allow secret evidence against the prisoners. So our regular system tilts toward the defendant, while the Gitmo system tilts in favor of the government.

Military tribunals come up short in other ways. For example, our Constitution provides the right to effective assistance of counsel, protection of the attorney-client privilege, military officers who are lawyers as counsel, the right to confront accusers, the right of compulsory process to bring before the tribunal any witnesses that the defendant needs to testify, and a jury trial. Our Constitution doesn’t allow evidence that was obtained by coercion to be used against a defendant. So there’s a question about whether that evidence is accurate. Accuracy is the heart of due process.

These protections do not apply to current detainees. The fate of these prisoners’ will be decided by military personnel and military "judges" with little or no legal training.

Another problem with the military tribunals is that prisoners’ appeals stay inside the Executive branch. When the Administration clarified the military tribunal rules in 2002, it also announced that it could hold prisoners who are found not guilty by the tribunals, if the President still thinks they are dangerous!

Q. Will we see challenges to these tribunals anytime soon?

A. Last summer, in the cases dealing with enemy combatants, the Supreme Court held that enemy aliens in Guantanamo may file habeas corpus petitions to challenge various aspects of their detention. The Court also noted that enemy combatants could be detained, but that some process would have to be implemented to determine these prisoners’ status and guilt. We can expect to see lower courts coming to varying decisions on whether particular aspects of the process are permissible or not. These will wend their way up to the Supreme Court. Meanwhile, the government can continue to hold these people.

If you give so little process toward answering this question, no one can reasonably trust the outcome. We need to use a system that can accurately determine whether each individual is dangerous. If they are being held indefinitely because we determine they are dangerous, then we should give them chances over time to show they are no longer a danger.

Q. Does the recent court ruling that prisoners can be tried by military tribunals change things?

A. Yes and no. It reversed the lower court opinion that was holding up at least one trial, and it streamlined the process by saying that the military tribunals, before a prisoner's trial, can fulfill the international law standard of determining whether the prisoner is an enemy combatant or POW. The court didn't address the problem that these tribunals can use secret evidence but indicated that challenges to secret evidence will have to be pursued by prisoners after they're convicted. But it probably didn't change things in the short run because the tribunals likely will be held up by an appeal of this case to the Supreme Court.


By William Fisher

One of America’s most experienced broadcast experts believes that Karen Hughes – the high-profile Bush confidante nominated to help the State Department do a major makeover of the U.S. public diplomacy – may not be able to lay a glove on one of its key programs: international broadcasting.

Alvin Snyder, Senior Fellow at the University of Southern California’s Center on Public Diplomacy, says U.S. public diplomacy broadcast efforts are protected by a “firewall” that makes them off-limits to people from the State Department, or anywhere else.

Snyder told me, “One of the basic tools in the U.S. public diplomacy arsenal is its international broadcasting channels. But there's a big ‘firewall’ that makes the U.S. government's international broadcasting channels off limits. The wall is policed by the Broadcasting Board of Governors (BBG), a government-funded but independent corporation governed eight private sector politically appointed members – four Republicans four Democrats. The Secretary of State is the ninth member of the BBG in case there's a tie vote.”

“The purpose of the firewall is to keep broadcast channels independent from government influence”, Snyder says, “and that government would certainly include the State Department.”

The BBG’s broadcast resources include the Voice of America, the Arabic-language TV Alhurra and Radio Sawa, the Iranian service's Radio Farda, Radio Free Europe/Radio Liberty, Radio Free Asia, Cuba Broadcasting's Radio and TV Marti, and the support group for all this, the International Broadcasting Bureau.

The BBG replaced the U.S. Information Agency (USIA) to oversee all U.S. government non-military international broadcast services in 1999, with the passage of the 1998 Foreign Affairs Reform and Restructuring Act.

Snyder has a long career in broadcasting, starting a writer, news editor and executive news editor of CBS News. He won a Grammy in 1966, together with CBS News President Fred W. Friendly and Sheldon Hoffman, for work a Columbia Records album, "Edward R. Murrow: A Reporter Remembers - the War Years." He helped create the White House Office of Communications during the Nixon Administration, and went on to become Special Assistant to the President.

Following Nixon’s resignation in 1974, he became a TV producer at the U.S. Information Agency and in 1982 became its Director of the TV and Film Service. He is the author of "Warriors of Disinformation" and is currently a Senior Fellow at USC’s Center on Public Diplomacy. He writes a weekly "WorldCasting" column.

Snyder told me, “If the ‘firewall’ is off-limits to Ms. Hughes and her team, what they will have is the rest of what was inherited from the USIA, such as educational and cultural exchanges, and the Bureau of Public Affairs, important aspects of U.S. public diplomacy, which appear to be alive and well.

However, he adds, “It remains unclear what impact Karen Hughes will have in strengthening U.S. public diplomacy efforts abroad, since she lacks authority over its most visible broadcast services.”

The BBG says that it has more than 100 million listeners, viewers, and Internet users around the world each week. However, its content had been widely seen as ineffective in communicating U.S. messages and winning friends for America.

What should be done to improve U.S. international broadcasting efforts now?

In the Arab world, Snyder says, “Alhurra’s target audience ought to be those who seek information through TV satellite news channels, whoever they are, and we ought to see for ourselves how well Alhurra is doing this.”

However, Snyder says, “It’s impossible to review a television channel’s programs that you haven’t seen. That’s the situation with Alhurra. According to a 50-year old law, U.S. government broadcasts targeted for oversees audiences may not be broadcast domestically. That means if you live in Peoria or Pittsburgh or anywhere else in America, the only way you can see Alhurra’s news broadcasts is to come to its studios in Springfield, Virginia, near Washington, DC.”

The law is the Smith-Mundt Act of 1948, which forbids domestic distribution of U.S. government media content meant for overseas audiences.

Snyder quotes retired ambassador William Rugh, former U.S. envoy to the United Arab Emirates and Yemen, as saying that defenders of U.S. public diplomacy efforts in Congress “have no idea what impact America’s broadcast services are having abroad, but they like the idea, and so it gets funding.”

Snyder told me, “That’s yet another reason Congress ought to lift the ban on domestic dissemination of U.S. broadcasts abroad -- to better inform themselves.”

But, Snyder points out, “That law was designed in and for another era, when memories were still fresh of Hitler's propaganda pounded into audiences in Nazi Germany.”

As a consequence, he adds, “Even informed Americans are kept in the dark about how our tax dollars are used to promote U.S. interests through international broadcasting.”

The result, Snyder says, is that “America may soon see the English-language service of the controversial Arabic channel al-Jazeera, but not Alhurra.

Snyder called on Congress to repeal the law.

I asked Snyder how today’s public diplomacy broadcasts compare with those of the Cold War era.

“Our efforts then were most effective when broadcasts informed listeners about themselves. Radio Free Europe and Radio Liberty provided information about what was going on in the rest the world that impacted on targeted audiences. They also told listeners about what was happening in their own closed societies, that they didn’t know. The Voice of America provided straightforward news and information from a trusted friend,” he said.

He noted that “a lot of audience research was done by the U.S. Information Agency Foreign Service professionals on the ground abroad who knew their target audiences a whole lot better than we did. Ideas for program content flowed from them to us, and we received a lot more than we could handle. This could done just as effectively in today’s world.”

President Bush nominated Karen Hughes to be Undersecretary of State for Public Diplomacy, and she is expected to be confirmed by the Senate next week. Her deputy, already confirmed, is Dina Habib Powell, former White House personnel chief, who is now an Assistant Secretary of State with principal responsibility for educational and cultural exchange programs.