Friday, September 29, 2006


By William Fisher

Ever since the Supreme Court ruled in Hamdan v. Rumsfeld that the president of the United States is not a king, our media has been obsessed with the ‘rebellion’ of three ‘maverick’ Republican senators who said they refused to accept the White House version of a new law governing how we treat and detain alleged terrorists.

Journalists had a ball, writing endlessly about these three brave guys who had the courage to break with the president and push back against the White House to “preserve the moral high ground” for the United States. Common Article 3 of the Geneva Conventions would be sacrosanct. People held in US detention would not be tortured. They would be afforded fair trials and the right to appeal if convicted. They would be able to go to a real court to challenge the basis of their detention. They would have the right to see the evidence the government had against them. Evidence obtained by coercion would be inadmissible. The president would no longer be able to act unilaterally to consign the accused to a never-ending legal limbo by declaring them enemy combatants who would never be charged or tried, just held until the end of this ‘long war’ on terror.

Following Hamdan, these and many similar issues would require Congressional authorization. So the Administration sent a bill to The Hill that gave our legislators the extraordinary opportunity to pass a law authorizing virtually everything the Supreme Court said the president couldn’t do on his own.

The ‘mavericks’ said they weren’t buying it. This was big news, considering who wasn’t buying. First there was Mr. Establishment himself, the courtly chairman of the Senate Armed Services Committee, Senator John Warner of Virginia. Then there was the ‘fiercely independent’ Senator John McCain of Arizona, a leading presidential hopeful whose resume, including years as a P.O.W. in the Vietnam War, makes him the quintessential American hero. Finally, there was Senator Lindsey Graham of South Carolina, an Air Force Colonel who has spent some 20 years as a military lawyer and judge, a JAG.

Their negotiations with the White House were bolstered by such luminaries as soldier-statesman Colin Powell, who wrote that he feared American treatment of detainees threatened to undermine America’s position of moral leadership. The commentariat bit its fingernails. The media continued to scribble and vent.

So what happened? On Thursday, September 28, 2006, we found out. The ‘mavericks’ caved. They crafted a bill that gave the president virtually everything he asked for. And a large majority of House and Senate members, including some Democrats, caved in lockstep, their eyes transfixed with fear on the upcoming mid-term elections and the threat of being labeled ‘soft on terror.’
As summarized by The Washington Post, these are a few items contained in the bill the president will likely sign into law next week:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign
citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international
precedent by allowing Mr. Bush to decide on his own what abusive interrogation
methods he considered permissible. And his decision could stay secret — there’s
no requirement that this list be published.

Habeas Corpus: Detainees in US military prisons would lose the basic right to
challenge their imprisonment.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and
bar legal actions based on the Geneva Conventions, directly or indirectly. All
Mr. Bush would have to do to lock anyone up forever is to declare him an illegal
combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant.

Secret Evidence: American standards of justice prohibit evidence and testimony
that is kept secret from the defendant, whether the accused is a corporate
executive or a mass murderer. But the bill…seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of
the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced
activity, and not other forms of nonconsensual sex. The bill would effectively
eliminate the idea of rape as torture.

But here’s arguably the most cynical provision of the bill. While it would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," this bar would be retroactive only to Dec. 30, 2005 -- when Congress
adopted the Detainee Treatment Act -- to protect CIA operatives from possible
prosecution over interrogation tactics used before that date.

So much for the ‘rebels’ pushing back against the White House. Messrs. Warner, Graham, and McCain deserve the nation’s thanks. Thanks, Mavericks!

Despite the overwhelmingly depressing outcome of the debate on the Senate floor Thursday, there were a few heroes, albeit unsuccessful heroes. One of them was the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, whose civil yet impassioned plea to strip the bill of its anti-habeas corpus provision may one day join Calhoun, Clay and Webster on the list of the Senate’s greatest orations.

Specter, perhaps best known for presiding over hearings for Supreme Court nominees, was joined by the equally impassioned Vermont Democrat, Senator Patrick Leahy – whose speech was more predictable but no less eloquent. Lamentably, they both lost.

Our once-rockstar Secretary of Defense, Donald Rumsfeld, keeps referring to the detainees at Guantanamo Bay as “the worst of the worst.” But five years after 9/11, none of these worst has been tried, and the Bush Administration appears to have little interest in trying them. Except for the 14 recently moved to GITMO from the CIA’s secret prisons. And it remains unclear whether these 14 could ever be tried, given the CIA’s “aggressive” interrogation methods.

The Bush Administration’s disinterest in trying the other 4-500 prisoners at GITMO shouldn’t surprise us. A substantial number of them were captured because they were in the wrong place at the wrong time, or were sold to us for bounties by Afghan warlords, or have been classified by the Pentagon as innocent of any terror-related crime, but continue to be held nevertheless.

I have yet to meet – either in the US or abroad – a single person who doesn’t want the perpetrators or 9/11 and other terrorist crimes brought to justice. But I have heard from lots of Americans who don’t seem to care much about the fairness of the process for trying and punishing them.

That’s not surprising. We have every right to be angry with those who kill our people. But too many Americans are also historically challenged. They know nothing about our Alien and Sedition Acts, Lincoln’s suspension of Habeas Corpus, Woodrow Wilson’s espionage acts, the “red raids” of Attorney General Mitchell Palmer, Franklin Roosevelt’s internment of Japanese-Americans, the rantings of Senator Joe McCarthy, or any of the other sadder chapters in our country’s administration of justice.

For most of these egregious lapses, it has been our Supreme Court that eventually righted the ship of state. Today is no different.

If there is a light at the end of President Bush’s tunnel, it will be the Supreme Court that flips the switch. Sooner or later, the law the president signs next week will turn up on the doorstep of the Supremes.

Given the ideological makeup of the current court, the light may be faint. But it’s all we have.

Friday, September 22, 2006


By William Fisher

The American mainstream press has front-paged the exoneration by a Canadian government commission of Mahar Arar, the Canadian citizen who was detained by U.S. authorities at JFK International Airport in New York in 2002 after returning from a trip to Tunisia enroute to his home in Ottowa. He was questioned for 12 days without access to counsel, and then flown on a U.S. Government plane to Jordan, and finally overland to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months until the Syrians released him without charges.

Most media accounts of Mr. Arar’s ordeal have attributed this travesty to faulty intelligence passed to US authorities by the Royal Canadian Mounted Police, the RCMP. The Mounties characterized the now 37-year-old engineer as "an Islamic extremist individual," and had him – and his entire family, including a six-month-old infant -- placed on a US Al Qaeda no-fly watchlist.

Indeed, the Canadian information was grossly incorrect. The Chairman of the 2.5-year investigation, Ontario Justice Dennis O'Connor, concluded that "categorically there is no evidence" that Arar did anything wrong or was a security threat.

But headlines such as the one topping a New York Times editorial last week – “Tortured by Mistake” – are missing some larger points.

Point one is whether US intelligence agencies made any effort to verify the Canadian information, or merely accepted the word of a trusted neighbor. We will probably never know the answer, because the CIA and the FBI aren’t likely to ever tell us.

Point two is whether the US government sought the customary – and customarily useless – “diplomatic assurances” from the Syrians that they would not torture their detainee. The US State Department has been following this absurd protocol for years, receiving such assurances from some of the world’s most pernicious purveyors of torture. Again, we will probably never know because State has from the outset declined to cooperate with the Canadian inquiry.

In fact, the State Department has consistently refused to utter a single word of comment on the case. And, until last week, all other government officials were similarly silent.

Some time ago, we heard from Attorney General Alberto Gonzales, who said, "Mr. Arar was deported under immigration laws. He was initially detained because his name appeared on a terrorist list. He was deported according to our laws.” Gonzales said that Arar’s removal was “a deportation, not a rendition.”

But last week came a contradictory and bumbling statement from the Attorney General. Gonzales disputed Canadian findings that the US was responsible for deporting an innocent man. At a news conference about the Canadian commission’s finding that Mr. Arar was wrongly sent to Syria and tortured there, Mr. Gonzales replied, “Well, we were not responsible for his removal to Syria.” He added, “I’m not aware that he was tortured.”

The attorney general’s denial followed front-page news articles of the findings of the Canadian commission, which reported that American officials ordered him taken to Syria. Shortly afterward, a Justice Department spokesman attempted to clarify the AG’s remarks, saying Mr. Gonzales had intended to make only a narrow point: that deportations are now handled by the Department of Homeland Security, not the Department of Justice. The spokesman said the attorney general forgot that at the time of Mr. Arar’s deportation, deportation was still handled by the Immigration and Naturalization Service, then part of the Department of Justice. “He had his timeline mixed up,”

He also declined to elaborate on why Mr. Gonzales appeared to cast doubt on the Canadian finding that Mr. Arar had been tortured, except to note that Mr. Arar had brought a lawsuit against United States officials. The case was dismissed by a lower court after the DOJ invoked the so-called “state secrets” privilege.

The “state secrets” maneuver was rarely used before the Bush presidency. Since then, it has become standard practice for government lawyers. In response to a host of lawsuits against the US, the Department of Justice tells a judge that if the case were to go forward, it would expose national security secrets in open court. Judges have for the most part been compliant, and numerous suits have been dismissed as a result. They involve a variety of plaintiffs – from government whistleblowers to wrongly accused terrorists.

In addition to the dismissal of Mr. Arar’s suit, which he is now appealing, the “state secrets” privilege was used to silence Sibel Edmonds, an FBI translator who tried to report serious management and national security abuses at the Bureau. And, among the most egregious cases, a German citizen, Khaled al-Masri, was kidnapped by the CIA in Macedonia and taken to Afghanistan, where he was imprisoned incommunicado for five months. Al-Masri sued former CIA director George Tenet, but his case was dismissed on the basis of “state secrets.” The US Government never admitted its “mistake.”

Point three is larger still. Despite the Attorney General’s denials, Mr. Arar was spirited off to Syria under a CIA program known as “extraordinary rendition.” Authorized by a secret “finding” by President Clinton in 1995, and exponentially accelerated after the 9/11 attacks, this program was illegal before Arar’s kidnapping, was illegal after it, and remains illegal. It is illegal because it violates US and international law.

And, absent the strongest statutory action by Congress, we have little reason to believe that this President will not continue the rendition program when (or if) the dust settles on the current Congressional dispute over prisoner detention and treatment.

Why is “extraordinary rendition” illegal?

The US was one of the original signatories to the Geneva Conventions, of which the now much-discussed Common Article 3 is a part. The UN’s International Covenant on Civil and Political Rights (ICCPR) was ratified by the US in 1992. Two years later, the US ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Thus, all have become part of US law, as are all treaties ratified by Congress.
Common Article 3, with which the Supreme Court in the recent Hamdan decision, ruled that the US must comply in its treatment of detainees, applies to armed conflict. If the armed conflict is international -- between two or more states-- then they are governed by one set of rules. If the armed conflict is not international -- not between two or more states, but rather, between a state and armed groups or between armed groups -- then another set of Common Article 3 rules apply. This is the section the Supreme Court said governs the treatment of suspected terrorists.

All of these treaties prohibit inhumane treatment. Without doubt, this would include transfer of a person to a country either for the purpose inflicting inhumane treatment, or with the knowledge that such treatment is distinctly possible. And both the ICCPR and the CAT specifically prohibit "refoulement" -- the transfer of persons to countries where they may be tortured. Yet, since September 11, 2001, the number of renditions appears to be in the hundreds.

Egypt’s Prime Minister noted in 2005 that the US had transferred some 60-70 detainees to Egypt alone, and a former CIA agent with experience in the region believes that hundreds of detainees have been sent by the US to prisons in Jordan, Saudi Arabia, and elsewhere in North Africa and the Middle East.

The US has used the “diplomatic assurances” figleaf to continue this program. And Congress has largely turned a blind eye. It has failed to exercise anything approaching its oversight responsibilities where intelligence agencies are involved. Congressional hearings offering public testimony by CIA officials are extremely rare. And what the House and Senate Intelligence Committees learn in closed session remains largely secret – unless leaked to the media. This gives Congress a perfect cover for doing nothing.

A few legislators have tried to deal with the issue, with mixed success.

Most prominent among these is Sen. John McCain. Against the active lobbying of Vice President Cheney and other high administration officials, McCain – a tortured prisoner of war during Vietnam – successfully introduced his Detainee Treatment Act in 2005, as an amendment to a defense appropriations measure.
The McCain amendment prohibits the use of cruel, inhuman or degrading treatment against any individual in the custody or physical control of the Unite States. Passed by overwhelming majorities in both Houses of Congress, its effect was then diminished by a “signing statement” by President Bush. The President said, in effect, that he would follow the law unless it jeopardized national security.

Other legislators have had even less luck. A Massachusetts congressman, Edward Markey, introduced legislation last year to ban extraordinary renditions. A companion bill in the Senate -- the Convention Against Torture Implementation Act -- has been introduced by Sen. Patrick Leahy, a Democrat from Vermont, and ranking member of the Senate Judiciary Committee. Like Markey's, the Leahy bill would require annual reporting of countries that engage in torture, and prohibit the US government from transferring or rendering a detainee to a country that has a history of torture.

But it is unlikely these bills will ever come to a vote in either chamber. According to the New Yorker’s Jane Mayer, who has written authoritatively on extraordinary rendition and the connection of policymakers to torture, “Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that. There’s been none of the usual fact-finding with subpoena power,” she says.

Even now, with the Republican majority in the Senate facing an open rebellion by prominent members of their own party about how to implement the Hamdan decision, neither the legislation proposed by the White House nor the bill being pushed by the rebels – Senators McCain, Lindsey Graham, John Warner, Susan Collins, Olympia Snowe, and others -- mentions extraordinary rendition explicitly. Nor does it mention secret detention, another practice clearly in violation of US treaty obligations.

But unless Congress decides to abrogate the Geneva Conventions and kindred treaties altogether, rendition itself would constitute a clear violation.

Moreover, there is a strong case to be made that the techniques known to be used by the CIA in carrying out extraordinary renditions themselves constitute cruel, degrading and inhumane treatment – before the suspects themselves ever reach their destination prisons. We know from eyewitness testimony and various leaks to the media that typically masked CIA operatives forcibly abduct a suspect, strip him, insert a suppository into his anus to drug him, put a diaper on him, and then put him aboard a CIA-chartered aircraft, where he is placed in a standing position against a bulkhead with his wrists handcuffed above his head. He remains in that position until the plane lands.

That’s what reportedly happened to two Egyptians, who were free in Sweden awaiting a decision on their asylum application. They were kidnapped, flown back to Egypt, arrested by security services, and tried before a military court.

The take-offs, landings and flights of various CIA-leased aircraft over airspace in Europe and elsewhere have been meticulously documented, causing major disruptions in US relations with the European Union and other bodies.

Months after Dana Priest of the Washington Post broke the story of secret CIA prisons in Eastern Europe and elsewhere, and after the Supreme Court handed down its Hamdan decision, President Bush announced that these prisons would now be emptied and their occupants transferred to Guantanamo Bay, Cuba. Thus, he implicitly acknowledged that the US had used extraordinary renditions to transport detainees to these secret prisons.

There is only one reason prisoners are whisked off to other countries: To allow the CIA to use what President Bush euphemistically calls “alternative interrogation” methods outside the reach of US law. But neither the CIA secret prisons nor Guantanamo Bay are outside the reach of US law. The test is whether these people are effectively in US custody or under US control. The Supreme Court has said they are.

That said, the Congress – not the President – needs to figure out an equitable way to try them. Defense Secretary Rumsfeld has described these people as “the worst of the worst.” And likely some of them are. But we also know that there are prisoners at GITMO who have been cleared of any connection to terrorism, yet are still in detention; that many of them were simply in the wrong place at the wrong time; that many others were “bought” by the US military in Afghanistan for payments of $5,000 per head from Afghanistan’s Northern Alliance. Since the opening of the prison at GITMO, not a single inmate has been tried.

None of which will help Mahar Arar. The damage to his life cannot be undone. But an acknowledgement by the US of its role in his ordeal, apologies from both Canada and America, and payment of damages, would be reasonable places to begin.

But at the end of the day, it will be up to Congress not just to enact effective and fair legislation, but to begin to exercise the oversight responsibilities it has so recklessly ceded to the White House.

Sunday, September 17, 2006


By William Fisher

President Bush’s speechwriters have just about worn out their lexicon of scary words and phrases to regale us with tales of all the terrorist plots he has disrupted since 9/11. But one word has apparently been expunged from the White House dictionary: Anthrax.

It has been four years since letters laced with the deadly white powder were mailed to the offices of then-Senate Democratic leader Thomas A. Daschle and Sen. Patrick J. Leahy, as well as to media companies in Florida and New York. The letters included denunciations of Israel and America and were written in childish capitals.

Two D.C. postal workers, a Florida journalist, a New York hospital worker, and an elderly Connecticut woman died. Seventeen others were sickened and the House, Senate, Supreme Court buildings, and numerous postal facilities were contaminated and shut down. The mailings led the nation to the brink of mass hysteria. The Washington Post reports that, including cleanup costs, the damage was more than a billion dollars.

The Post’s Alan Lengel reports that the search for the anthrax-mailer led to “one of the most exhaustive investigations in FBI history.” But, after some 8,000 interviews and 5,000 subpoenas in the U.S., Europe, Asia, and Africa, he writes, the investigation “has yielded no arrests and is showing signs of growing cold as officials have sharply reduced the number of agents on the case.”

With a $2.5 million reward for information leading to an arrest and conviction, the
FBI says it is still working hard with forensics experts and scientific
researchers from law enforcement agencies, the intelligence community,
university laboratories and private corporations, to find the culprit.

“The prevailing theory,” Lengel writes, is that “The culprit is a U.S. scientist who had access to the high-grade anthrax and the knowledge of how to physically manipulate it and use it as a weapon.”

That theory has been around virtually since the beginning of the investigation, when authorities narrowed down the type of anthrax to a strain called Ames. But they have been unable to identify the lab of origin. After ruling out a possible al-Qaida link, the FBI focused on domestic “home-grown” terrorists.

The FBI initially suspected the U.S. Army Medical Research Institute of Infectious Diseases, housed at Fort Detrick in the Frederick, Maryland, area. Two years ago, the FBI spent about $250,000 and three weeks draining a pond in Frederick, acting on a theory that someone might have discarded materials there. But that exercise yielded nothing.

Yet is was that same theory that prompted the Justice Department and then-Attorney General John D. Ashcroft in 2002 to publicly name “a person of interest” -- Steven J. Hatfill, a physician and bioterrorism expert who worked at Fort Detrick from 1997 to 1999.

But four years after he was “outed,” Hatfill has not been charged with any crime, has denied any involvement, has lost his job, and has issued legal writs against the government and media organizations.

Hatfill’s designation as a “person of interest” should call our attention once again to one of the Justice Department’s most pernicious practices. It is no less shameful than law enforcement’s penchant to capture headlines by calling high-profile press conferences to publicly trumpet someone’s arrest before he or she is charged with an offense based on a judicial finding of probable cause.

Rewind to 1996, when the FBI identified as a “person of interest” a security guard named Richard Jewel, who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta, where a bomb exploded shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. Instead of being hailed as a hero whose action saved many lives, the hapless Jewel was universally condemned and relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. The FBI finally fessed up to his innocence – but never apologized. Oh well, another day at the office, and another life ruined.

But back to the President’s dictionary.

We have no way to verify the President’s claims of success in thwarting terrorist plots through the secret “alternative methods” of interrogation used by the Central Intelligence Agency – precisely because they are secret. The alleged terrorists have been held incommunicado in secret prisons whose existence Mr. Bush finally conceded after months of denials and “no comments.” Nor has anyone told us what these CIA “alternative methods” involve; we hear only that waterboarding and hypothermia are prominent in the interrogation repertoire, though the President continues to insist that “The United States doesn’t torture.”

(Which makes it even more bizarre that he now insists on amending Common Article Three of the Geneva Conventions.)

Absent the decision of the Supreme Court, few of us would have the foggiest idea what Common Article Three is. The Court said, in essence, that there are some things that The Decider simply cannot decide. One of them is how to treat people suspected of committing terrorist acts. The other is how to bring them to justice.

Cutting through the legalese, the President’s response to both is still “trust me.” But Mr. Bush has lost that battle. He has squandered the virtually universal trust the world had in him following 9/11. In so doing, he has dealt a deadly blow to America’s reputation in the world. And, arguably, he has made it more, not less, difficult for our country to win a war of ideologies against those who would attack and kill us.

So “trust me” is just not working anymore. Which is why we’re not likely to hear the president talking about Anthrax any time soon.

Wednesday, September 13, 2006


By William Fisher

People who are too young to remember the 1930s, 40s, and 50s may not know that the airwaves were filled with hysterical, fear-mongering voices long before we ever heard of Bill O’Reilly.

Back then, the airwaves were radio waves. Nightly, millions of families gathered before their Radiolas and Emersons to listen to the news. There were such “commentators” as Lowell Thomas, Gabriel Heater and H.V. Kaltenborn, whose notion of news consisted largely of reading press releases from the Republican National Committee. On Sunday evenings, there was Walter Winchell, a gossip columnist turned world affairs authority, who always began his program with the greeting, “Good evening, Mr. and Mrs. America and all the ships at sea.” Winchell’s rabid anti-Roosevelt and anti-New Deal views were barely concealed in his staccato delivery.

Then there was Boake Carter, a certifiable wing-nut who was for a time the country’s preeminent news commentator. The British-accented Carter had higher ratings than any of the other radio voices. His enemy was anything liberal. He was an apoplectic isolationist who belonged to an Anti-Semitic organization. One of Carter’s claims was that the sinking of an American gunboat by the Japanese on a river in China was part of a secret plot by President Roosevelt to plunge the country into a war in Asia. As Carter became increasingly irrational, pressure on CBS and his sponsor, General Foods, grew and CBS canceled his newscast. He later got a three-times-a-week commentary program on the Mutual Network, but was soon moved out of prime time. His rise was meteoric, but his fall was even faster.

But even in these dark days of no-nothing journalism, there were bright spots. One of the brightest was Edward R. Murrow, who set the standard for television journalism. His calm and courageous reporting captured our nation's and the world's attention during the German Blitz of Great Britain in 1940 and 1941. Millions of Americans sat by their radios to hear Murrow’s deep, sonorous voice begin, as he began all of his wartime broadcasts, “This is London.”
In 1954, at the height of the McCarthy era paranoia, Murrow produced the program that, more than any other single broadcast, has come to define him: A televised critique of Wisconsin Senator Joseph McCarthy.

There’s a reason I cite all this old radio days history. Then, as now, there was little and largely ineffective public push-back against right-wing radio “news.” Then, as now, networks controlled the airwaves, and sponsors controlled the networks. Today, we have television as well as radio. And today, both are still controlled by large corporate interests – owners and sponsors.

The impact of today’s TV and radio “news” has been well-documented. The nightly news programs of the major broadcast networks are caricatures of the cult of “objectivity,” in which anchors feel obliged to present the views of “both sides” of an issue, even when they know one side is peddling falsehoods. In both broadcast and cable outlets, the line between news, commentary and entertainment is no longer decipherable. Which gives us faux history disguised as “docudramas” like ABC’s “The Road to 9/11.” And since a majority of Americans still get most of their “news” from the “fair, balanced and unafraid” Fox Network, there is no mystery about why a large minority of us still thinks Saddam Hussein was responsible for the terrorist attacks depicted in that deeply flawed production.

All of which makes Keith Olbermann an even more remarkable phenomenon. Most remarkable is that Olby is still on the air, because for the past few years he has made a target of Bill O’Reilly, whose reactionary and often incoherent rants have made him not just a broadcaster but a powerful industry.

Well, there are no more Ed Murrows around. Or Walter Cronkites either. Keith Olbermann is virtually the only progressive voice available to us on either broadcast or cable.

And never was that truth more apparent than in his blistering critique of Defense Secretary Donald Rumsfeld’s recent American Legion speech, in which Rumsfeld drew a parallel between those who disagree with the Bush Administration and those who appeased Hitler in the 1930s.

So unusual in our time is Olbermann’s commentary on Rumsfeld that it is worth repeating here in full. This is what he said:

Feeling Morally, Intellectually Confused?

The man who sees absolutes, where all other men see nuances and shades of meaning, is either a prophet, or a quack.

Donald H. Rumsfeld is not a prophet.

Mr. Rumsfeld’s remarkable speech to the American Legion yesterday demands the deep analysis—and the sober contemplation—of every American.

For it did not merely serve to impugn the morality or intelligence -- indeed, the loyalty -- of the majority of Americans who oppose the transient occupants of the highest offices in the land. Worse, still, it credits those same transient occupants -- our employees -- with a total omniscience; a total omniscience which neither common sense, nor this administration’s track record at home or abroad, suggests they deserve.

Dissent and disagreement with government is the life’s blood of human freedom; and not merely because it is the first roadblock against the kind of tyranny the men Mr. Rumsfeld likes to think of as “his” troops still fight, this very evening, in Iraq.

It is also essential. Because just every once in awhile it is right and the power to which it speaks, is wrong.

In a small irony, however, Mr. Rumsfeld’s speechwriter was adroit in invoking the memory of the appeasement of the Nazis. For in their time, there was another government faced with true peril—with a growing evil—powerful and remorseless.

That government, like Mr. Rumsfeld’s, had a monopoly on all the facts. It, too, had the “secret information.” It alone had the true picture of the threat. It too dismissed and insulted its critics in terms like Mr. Rumsfeld’s -- questioning their intellect and their morality.

That government was England’s, in the 1930’s.

It knew Hitler posed no true threat to Europe, let alone England.

It knew Germany was not re-arming, in violation of all treaties and accords.

It knew that the hard evidence it received, which contradicted its own policies, its own conclusions — its own omniscience -- needed to be dismissed.

The English government of Neville Chamberlain already knew the truth.

Most relevant of all — it “knew” that its staunchest critics needed to be marginalized and isolated. In fact, it portrayed the foremost of them as a blood-thirsty war-monger who was, if not truly senile, at best morally or intellectually confused.

That critic’s name was Winston Churchill.

Sadly, we have no Winston Churchills evident among us this evening. We have only Donald Rumsfelds, demonizing disagreement, the way Neville Chamberlain demonized Winston Churchill.

History — and 163 million pounds of Luftwaffe bombs over England — have taught us that all Mr. Chamberlain had was his certainty — and his own confusion. A confusion that suggested that the office cannot only make the man, but that the office can also make the facts.

Thus, did Mr. Rumsfeld make an apt historical analogy.

Excepting the fact, that he has the battery plugged in backwards.

His government, absolute -- and exclusive -- in its knowledge, is not the modern version of the one which stood up to the Nazis.

It is the modern version of the government of Neville Chamberlain.

But back to today’s Omniscient ones.

That, about which Mr. Rumsfeld is confused is simply this: This is a Democracy. Still. Sometimes just barely.

And, as such, all voices count -- not just his.

Had he or his president perhaps proven any of their prior claims of omniscience — about Osama Bin Laden’s plans five years ago, about Saddam Hussein’s weapons four years ago, about Hurricane Katrina’s impact one year ago — we all might be able to swallow hard, and accept their “omniscience” as a bearable, even useful recipe, of fact, plus ego.

But, to date, this government has proved little besides its own arrogance, and its own hubris.

Mr. Rumsfeld is also personally confused, morally or intellectually, about his own standing in this matter. From Iraq to Katrina, to the entire “Fog of Fear” which continues to envelop this nation, he, Mr. Bush, Mr. Cheney, and their cronies have — inadvertently or intentionally — profited and benefited, both personally, and politically.

And yet he can stand up, in public, and question the morality and the intellect of those of us who dare ask just for the receipt for the Emporer’s New Clothes?

In what country was Mr. Rumsfeld raised? As a child, of whose heroism did he read? On what side of the battle for freedom did he dream one day to fight? With what country has he confused the United States of America?

The confusion we -- as its citizens— must now address, is stark and forbidding.

But variations of it have faced our forefathers, when men like Nixon and McCarthy and Curtis LeMay have darkened our skies and obscured our flag. Note -- with hope in your heart — that those earlier Americans always found their way to the light, and we can, too.

The confusion is about whether this Secretary of Defense, and this administration, are in fact now accomplishing what they claim the terrorists seek: The destruction of our freedoms, the very ones for which the same veterans Mr. Rumsfeld addressed yesterday in Salt Lake City, so valiantly fought.

And about Mr. Rumsfeld’s other main assertion, that this country faces a “new type of fascism.”

As he was correct to remind us how a government that knew everything could get everything wrong, so too was he right when he said that -- though probably not in the way he thought he meant it.

This country faces a new type of fascism - indeed.

Although I presumptuously use his sign-off each night, in feeble tribute, I have utterly no claim to the words of the exemplary journalist Edward R. Murrow.

But never in the trial of a thousand years of writing could I come close to matching how he phrased a warning to an earlier generation of us, at a time when other politicians thought they (and they alone) knew everything, and branded those who disagreed: “confused” or “immoral.”

Thus, forgive me, for reading Murrow, in full:

“We must not confuse dissent with disloyalty,” he said, in 1954. “We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.

“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men, not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.”

And so good night, and good luck.

Murrow’s McCarthy broadcast did not bring an end to McCarthy or McCarthyism, but it brought the nation’s attention to this blot on our history and traditions. McCarthy’s political demise followed not long afterwards.

We should all devoutly pray that Olbermann’s words have a similar effect on Mr. Rumsfeld and his boss.

And on their on-air megaphones, starting with Bill O’Reilly.

Saturday, September 09, 2006


By William Fisher

Here, dear readers, is a snap quiz:

What do all of the following have in common?

A young man is one of several people arrested for assaulting others in New York City’s Central Park after the city’s annual Puerto Rican Day parade in
2000. Police released the man soon after his arrest upon concluding that a victim had been mistaken in identifying him as one of the wrongdoers? But, meanwhile, police reveal his name and address.

In Texas, police report that a woman is accusing a star wide receiver for the Dallas Cowboys of raping her, only to declare the allegations discredited two weeks later and charge the accuser herself with the crime of making a false complaint? Meantime, the football player is publicly named.

The U.S. Department of Justice names two men as “persons of interest” – Richard Jewel, who was suspected in the bombing of Centennial Olympic Park in Atlanta in 1996, and Steven Hatfill, a scientist suspected of stealing anthrax from a government lab in 2001, and sending it to prominent politicians and others. The Department of Justice invites journalists to witness their search of Hatfill’s home. Neither was ever charged with a crime.

Two Arab-Americans, Sobhi Abulhassan and Ali Houssaiky are arrested and charged in Marietta, Ohio, with soliciting or providing for an act of terrorism and with money laundering – they bought 600 cell phones – but a county prosecutor says there is not enough evidence to go forward with those charges. Meantime, he announces their names to the public and the media.

Three Texans -- Adham Othman, Louai Othman, and Awad Muhareb -- are stopped by police with about 1,000 cell phones in their van and local prosecutors charge them with collecting or providing materials for terrorist acts and surveillance of a vulnerable target for terrorist purposes – blowing up the bridge that links Michigan's Upper and Lower peninsulas. But in short order, both Michigan state police and the FBI say they are tourists rather than terrorists when they photograph the Mackinac Bridge. But the men are named and kept in custody.

What these situations have in common is that the names of these people were released to the public and the media by government officials, and before there was any judicial finding of probable cause. The result was that their privacy was invaded, they were stigmatized, and their reputations were severely damaged.

The question raised by these and many other similar cases is why a person accused or suspected of a crime has no right to prevent disclosure of that fact at least before some threshold point such as a judicial finding of probable cause?

This question is being raised by a prominent legal expert, Prof. Sadiq Reza of the New York Law School, who is proposing legislation to protect the privacy rights of the accused.

He asks, “Why should police routinely name arrestees and suspects, before charges have been reviewed by a judge or magistrate, when the allegations might be unfounded or the case dismissed, but an accusee’s reputation can be permanently damaged, his name forever tarnished by the accusation, and a cloud of suspicion left to loom over his personal and professional life? Why is the naming decision, and the power to trigger its harmful consequences, left to the discretion of law enforcement officials, rather than regulated by statute or judicial authority?”

The disclosure of suspects’ identities is standard operating procedure among justice and law enforcement authorities throughout the United States. Attorneys General, US attorneys, and police authorities, regularly call high-profile press conferences to announce the names of people who have been arrested or are under suspicion – though the charges against these people are often later dropped or substantially reduced, in which case the authorities customarily remain silent.

Is this necessary ? Is premature disclosure of a suspect’s name part of the public’s right to know? Whose interest does it serve? What would the public have lost if it didn’t know the names of the alleged bombers of the Mackinac Bridge? Other than titillating tabloid readers and viewers of cable television?

Does it have to be this way? If these events took place in Britain, for example, the media and its audiences would be told something like, “A person is in custody and is assisting the police with their inquiries.”

The reason for the difference is that Britain, having no Constitution, has no Bill of Rights and ergo no first amendment guaranteeing freedom of speech. The US Constitution is committed to the people’s right to know.

But this right is not absolute. Our Constitution also contains other rights that have been interpreted as competing with the right to know. One of these competing rights is the right to privacy.

Prof. Reza thinks that by focusing exclusively on the people’s right to know, we are ignoring the right to privacy. And he is proposing that we re-balance these competing rights.

He says, “Criminal accusation stigmatizes. Merely having been accused of a
crime lasts in the public eye, damaging one’s reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable.”

“Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant’s exoneration, or the dismissal of his case, or a decision not to file charges against him at all.”

He adds that other individuals caught up in the criminal process enjoy protections against the public disclosure of their identities -- sexual assault complainants, juvenile offenders, grand jury targets, and others. Professor Reza argues that the same privacy right should attach to arrestees and suspects, and government
actors should be required to withhold the identities of arrestees and suspects until a judge or a grand jury has found probable cause of guilt, unless an arrestee or suspect requests otherwise.

Professor Reza says that, ironically, the right to privacy was one of the arguments the Department of Justice put forward to justify withholding the names of hundreds of individuals arrested and detained on immigration charges following the attacks of September 11, 2001. “Every so often a government official invokes this interest in not naming an accusee of some kind; but the interest apparently arises only when officials decide it should,” he adds.

Professor Reza believes the right to privacy should not be left to the discretion of law enforcement officials but should be a matter of law. He proposes that the privacy interests of arrestees and suspects be recognized and protected by legislation that forbids the public naming of arrestees and suspects by government officials until there is a judicial finding of probable cause of guilt, unless an arrestee or suspect requests publicity -- in which case disclosure should be required.

He offers a model statute to ensure the right to privacy. Such legislation “would forbid government officers and employees to identify publicly arrestees or suspects until a judge, magistrate, or grand jury finds probable cause of guilt, unless an arrestee or suspect requests otherwise; declare ‘non-public’ those portions of government records that identify arrestees or suspects until such a
probable cause finding or request is made; require public officials to notify arrestees and suspects of their right to anonymity or publicity; and require public officials to identify any detained arrestee who so requests, absent a countervailing law enforcement interest.”

The added provision requiring the government to name arrestees upon their request completes the privacy protection by fully vesting the choice between privacy and publicity in the hands of the interested individuals, in keeping with the core purpose of informational privacy; it also provides a protection against “secret” arrests. The legislation terminates the privacy protection at a point that is well-established as a threshold for the deprivation of other rights in the criminal
process: a judicial finding of probable cause.

In the days and weeks after the terrorist attacks of September 11, 2001, the Department of Justice rounded up as suspected terrorists hundreds of Arabs and other Muslims, as well as many South Asians who “looked Middle Eastern” to the DOJ. The DOJ Inspector General found that many were held in solitary confinement in prison-like conditions, were denied access to lawyers, and some were physically abused.

Given the post-9/11 mindset, it is doubtful that the Ashcroft Justice Department would have revealed the names of those detained, even if there had been a law placing that decision in the hands of those in jail. But at least there would have been a legal framework that might have provided the detainees with a court remedy for false arrest.

As those cases turned out, there was not a single prosecution for any terror-related offense. Many of the detainees were deported for relatively minor visa offenses. And it took the American Civil Liberties Union years and a suit under the Freedom of Information Act to discover the identities of those who were imprisoned. The same is true of prisoners at Guantanamo Bay, Cuba.

“Privacy is all the rage,” Prof. Reza says. “Hardly a day passes without some public hand-wringing over a hot issue of privacy. Meanwhile, new legislation
to protect ‘private’ information proliferates.” But “Much of the agitation stems from the extraordinary capabilities and perceived dangers of the computer age. And the attacks of September 11, 2001 have only fed the frenzy, with fresh concerns about government surveillance and the privacy of personal information of various kinds.”

No doubt, if the U.S. media – in particular our so-called cable news channels and our hysterical tabloids– has been reading this piece, they will by now be frothing at the mouth, on the brink of apoplexy, and noisily rattling their First Amendment sabers.

But Prof. Reza’s proposal, he says, “does not run afoul of the First Amendment because it applies only to government actors…and it commands only what the Supreme Court has repeatedly advised states to do to protect the privacy of individuals named in government proceedings and records: withhold the information from the public.”

Because Prof. Reza’s proposal would apply only to public authorities, it would leave the press and public free to name arrestees and suspects. But they’ll have to obtain the names themselves from the detainees’ lawyers or from leakers. If they achieve that, it will be up to their journalistic ethics and professionalism to decide to publish or not.

Which means Prof. Reza’s proposed law would not completely solve the problem, but it would sure be a step in the right direction.

Wednesday, September 06, 2006


By William Fisher

I was serving in the Kennedy Administration on May 25, 1961, when, just like millions of other Americans, I heard JFK tell the world, "I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to the Earth."

And, like most of those who heard the president’s words that day, I felt proud to be an American. After all, we Americans have always been optimists and risk-takers.

There were many skeptics who believed that JFK’s vision was not doable. But it became a reality on July 20, 1969, when Apollo 11 commander Neil Armstrong took his “one small step for man and a giant step for mankind.” Sadly, he did not live to see his dream come true.

Why, then, did I find myself feeling so skeptical when the Bush Administration announced last week that it was awarding a multibillion-dollar contract to Lockheed Martin Corporation to build a new manned lunar spaceship at a cost estimated at $7.5 billion?

Well, I’m not usually given to conspiracy theories, but I recall that it was January 2004 – that’s two-thousand and four -- when President Bush first announced his plan to build a new generation of manned spacecraft to go to the moon and perhaps to Mars. So I had to wonder why his plan fell off the radar for so long and whether the timing of this latest announcement might just have something to do with the upcoming mid-term elections.

Or, in true, conspiratorial fashion, I pondered whether this announcement had anything to do with NASA’s quiet change of its mission statement.

That statement has always contained the words "to understand and protect our home planet." But these words were recently quietly removed from the agency’s responsibilities. And coming on the heels of attempts to silence NASA scientists who went public with remarks about climate change, that action caused me to wonder whether the Bush Administration was yet again trying to minimize global warming by changing the subject to the new Moon-Mars mission.

So I was heartened to discover I wasn’t alone. The deletion of the reference to “our home planet” also apparently occurred to Senators. Susan Collins and Joseph Lieberman – two folks not usually associated with conspiracy theorists -- who wrote NASA Administrator Michael Griffin, saying, "At a time in which evidence grows on an almost daily basis of the potentially severe impacts of climate change, we find it inexplicable that NASA apparently no longer views protecting and understanding our home planet as a priority.” Taking Earth away from NASA will result in a $3.1 billion budget cut over the next five years.

Now, don’t misunderstand. I am all for exploring the moon or Mars or even poor little disenfranchised Pluto. I just question whether we ought to be spending $7.5 billion – and that’s without the virtually inevitable cost over-runs – at this particular time.

Consider that our 2007 budget deficit is projected to be, at a minimum, $286 billion in fiscal 2007, up from this year's projected deficit of $260 billion -- excluding most of the DOD spending for Iraq and Afghanistan.

Consider also that the $2.77 trillion 2007 budget President Bush sent to Congress contains $3 billion in cuts for education, with no new funding for the $12.7 billion Title I program for low-income students; that it sharply decreases funding for supporting the arts, vocational education, parent resource centers and drug-free schools; that it reduces spending for Medicare by $35.9 billion over five years, including cuts in funding for hospitals, nursing homes, home health care providers and hospices; that it eliminates research and development funding for geothermal and hydropower, cuts $930,000 from wind power R&D, and two-thirds of the $23 million designated for renewable energy and energy efficiency programs in the 2002 Farm Bill; that it cuts a number of important environmental programs including several initiatives that actually save taxpayers money; that it decreases by $78 million (13 percent) funding for federal energy efficiency programs to reduce pollution; and that it actually decreases the funds available for Homeland Security.

Defense spending will, of course, increase. Tax cuts for the wealthiest Americans will remain in place, while a 10-year-overdue increase in the minimum wage is ignored. And a recent report by the U.S. Census Bureau tells us that millions of working Americans are living below the poverty line and without health insurance, and that the gulf between the haves and the have-nots has become a chasm – and a dangerous threat to the fabric of our society.

I could go on, but you get the idea.

We shouldn’t be surprised by any of this. The President’s budget reflects the priorities he has had since his first day in office.

Except the new trip to the moon and beyond. But, then again, this is an election year!