Sunday, March 30, 2008

Selling Democracy – De Lux Model with Double-Standards Built In

By William Fisher

The news went largely unreported, so you may have missed it, but last week the editor of a newspaper in Cairo was sentenced to six months in prison for spreading “false information… damaging the public interest and national stability” by reporting that Egyptian President Hosni Mubarak was in a coma. The judge in the case said the report, by Ibrahim Eissa, editor of Egypt’s Al-Dustour, caused panic among foreign investors and threatened Egypt’s economy.

This case is unremarkable given the recent history of Egypt’s contempt for press freedom – in fact, for all the freedoms we Americans still regard as our inalienable rights. It is arguably more remarkable in that, if the test of “spreading false information” were applied to American journalists, building more jails would be a higher priority than building new homes for Katrina victims.

That said, however, the news of Mr. Eissa’s conviction gives us yet another example of the embarrassing double standards built into US foreign policy. Our State Department produces an annual report on human rights abuses around the world, but neglects to assess our own performance. So Guantanamo Bay, Abu Ghraib, Bagram, renditions and waterboarding, are absent. Instead, the Bush Administration continues to bury us in empty bromides about democracy promotion.

But the democracy-promotion mantra didn’t start with George W. Bush. It started as long ago as Teddy Roosevelt and Woodrow Wilson. It was significantly ratcheted up during the Cold War administration of President Ronald Reagan (1981-89), when the US policy of Soviet containment made friends of the enemies of our enemy.

In 1982, Reagan told the British Parliament of a "democratic revolution" gathering force around the globe. Reagan announced that the US would “foster the infrastructure of democracy" — a free press, independent
unions, truly representative political parties, and the many other institutions essential to a functioning democracy.

Bush 41, considered a foreign policy “realist,” continued the theme, though somewhat less stridently. And the Clinton Administration embraced much the same themes during the 1990s, to make its case for our embrace of globalization.

But post-9/11, the Bush Administration raised the promotion of democracy and freedom – particularly in the Middle East -- to a historically higher rhetorical priority. In his second inaugural address, Bush said, “It is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world."

Bush said the "resentment and tyranny" in which "whole regions of the world" were now immersed had come to breed new forms of violence that "raise a mortal threat" because Islamic fundamentalism endangered American security. So, he said, “It is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world."

Bush administration officials say they have used diplomatic pressure, foreign aid and the architecture established by Reagan to help nurture democracy in the Middle East and North Africa. Bush also said the democratic transformation of the Middle East would begin with regime change in Iraq.

But Bush outdid Reagan: He went for a twofer: The US would continue to talk up freedom and democracy while enlisting other nations to help fight the ‘global war on terror.’ It is now clear that in Dubya’s world, counter-terrorism trumps democracy promotion, rhetoric notwithstanding. And it is precisely that juxtaposition of goals that now finds us in bed with most of the world’s most repressive regimes – many of the same countries we wooed during the Cold War.

Egypt was one of them. In the 1950s, both the Soviet Union and the Western powers offered aid to Egypt to build the Aswan High Dam on the Nile River. But Egypt chose to buy weapons from the communist government of Czechoslovakia, and the West canceled its offer. Later, it would become a more dependable Cold War partner for the US.

And – from a war on terror standpoint – the Bush Administration has considered it a dependable partner ever since. Today, Egypt receives $2 billion a year, including $1.3 billion in military assistance from the U.S. annually – second only to the sum awarded to Israel. The Bush Administration considers Egypt as key ally against the rise of the Muslim Brotherhood, a once-violent opposition group that has since renounced terror and has numerous representatives in the Egyptian parliament – serving as independents, because the government won’t recognize the Brotherhood as a legitimate political party.

The US also considers Egypt – the first Arab nation to recognize Israel and establish full diplomatic relations – as critical to its peace-seeking agenda for a Palestinian state, though to date there is little evidence that it has much real influence on the process. Currently, Egypt is said to be in secret talks to reach some kind of accommodation with the leadership of Hamas. And, as David Ignatius pointed out in Sunday’s Washington Post, there has been no outcry of opposition from the US or the Israelis.

The bottom line in this complex relationship is that US aid to Egypt has continued without major interruption despite what many see as toothless criticisms by the Bush Administration of the iron-fisted 30-year rule of Egypt’s aging autocrat, Hosni Mubarak.

That criticism has included Administration condemnation of the arrest and imprisonment of Mubarak’s main opponent in the presidential elections in 2005, Ayman Nour, who Bush said was “unjustly imprisoned.” Earlier, Bush complained about the conviction of another prominent opposition leader, Saad Eddin Ibrahim, who has since fled Egypt. Since 1980, Egypt has been under a so-called Emergency Law, which gives its police and security services virtually carte blanche in arrests and detention of its citizens. The State Department’s human rights report annually confirms that instances of torture, abuse and death in detention are widespread, and Egypt is known to have been the recipient of “extraordinary renditions” by the CIA.

Earlier this year, the US Congress weighed in to express its displeasure with the Mubarak regime. It put a ‘hold” on $100 million of American military aid to Egypt, calling on the Mubarak government to protect the independence of the judiciary, stop police abuses and curtail arms smuggling from Egypt to Gaza.”

But in January, the Bush Administration waived the hold in a bid to encourage Egypt to help in calming the Israeli-Palestinian crises. In a visit to Egypt the same month, President Bush lavished praise on Mubarak: “I appreciate the example that your nation is setting…I appreciate very much the long and proud tradition that you’ve had for a vibrant civil society.”

But, according to one of the Arab world’s most widely respected non-governmental organizations, a vibrant civil society is the perfect definition of what Egypt is not. Nor is most of the rest of the Arab Middle East and North Africa. In a recent report to the United Nations Human Rights Council – of which Egypt is a member -- the Cairo Institute for Human Rights Studies (CIHRS) charged that at least fourteen Middle East and North African governments are systematically violating the civil liberties of their citizens – and most of them are close US allies in the war on terror.

The report said that there have been “huge harassments of human rights organizations and defenders have been increasingly subject to abusive and suppressive actions by government actors in democratic rights and freedoms in the majority of Arab countries, particularly Egypt, Syria, Bahrain and Tunisia.”

The group called upon the international community to “exert effective efforts to urge Arab governments to duly reconsider their legislation, policy and practices contravening their international obligations to protect freedom of assembly, freedom of expression and freedom to form associations, including non-governmental organizations.”

It added that “Special attention should be awarded to providing protection to human rights defenders in the Arab World.”

As an example of typical area-wide human rights abuses, the CIHRS report cited the recent forced closure by Egyptian authorities of the Association for Human Rights Legal Aid, an organization active in exposing instances of torture. The Egyptian government claimed that the organization “received foreign funding without having the consent of the Minister of Social Solidarity.”

The organization warned of “increasingly repressive conditions being imposed on non-governmental organizations (NGOs) in Egypt, including a proposed amendment to the Law of Associations that it said would limit the right of association and expression.

Other Arab nations singled out for detailed criticism included Algeria, Bahrain, Iraq, Jordan, Libya, Morocco, Saudi Arabia, Syria, Sudan, Somalia, Tunisia, The United Arab Emirates and Yemen. The report also accused four other Arab countries of human rights abuses -- Libya, Algeria, Sudan and Morocco.

The CIHRS report to the UN details numerous human rights violations throughout the Arab Middle East and North Africa. It accuses Syria of arresting “dozens tens of qualified professionals personnel belonging to human rights organizations and civil society revival committees.” It says the Bahraini government closed the Bahrain Center for Human Rights, put the president of one civil society on trial, and charged seven other activists with "participating in an illegal gathering and creating disturbance."

In Tunisia, the report charges, “The authorities have made it almost impossible for the Tunisian League for Human Rights (LTDH) and other civil society institutions to operate. Tunisian human rights defenders have not been allowed to travel abroad and undertook measures to freeze LTDH’s grants from the European Union.

According to the CIHRS report, “Many Gulf countries, as well as Libya, do not allow for the existence of human rights organizations or civil society activists. The long-running Algerian military influence has severely limited civil society organizations. Since the toppling of Sudan’s democratic government in 1989, Sudanese civil society has been deprived of many legal and political protections and rights. Furthermore, civil society institutions in conflict affected countries, such as Iraq, come under constant violent attack; the same applies to the situation in Palestine – whether due to the occupation or in-fighting between its two political parties.”

The US position on promoting democracy while turning a blind eye to blatant and widespread human rights abuses in the Middle East, North Africa and elsewhere has made America vulnerable to charges of hypocrisy and has doubtless contributed to the precipitous fall in the world’s respect for the US.

Many foreign policy experts suggest that America needs a more targeted approach to defeating known terrorists. And more effective use of “soft power” to counter the jihadist narrative with a more appealing story, and a series of high priority initiatives to discourage further radicalization among people who feel marginalized and disempowered but have not yet joined the ranks of “the bad guys.”

This is not just an American problem. Millions of people from the Middle East and North Africa have now migrated to Europe. And, so far, few European countries have shown either the skills or the political will to develop policies to create a more welcoming environment for these “not like us” newcomers.

But it is a very special problem for the United States – the country the whole world once looked to as an exemplar of respect for civil liberties, human rights and the rule of law.

It is doubtful that America’s position in the world is likely to be restored by being found in bed with Hosni Mubarak or King Abdullah.

Also doubtful is that President Bush, in the waning months of his administration, is going to do anything except “stay the course.” Changing course will be a job for our next president. Lamentably, none of the contenders for that office are discussing this issue.

But we need to encourage them to do so.

Thursday, March 27, 2008


By William Fisher

One of the Arab world’s most widely respected non-governmental organizations is charging that at least fourteen Middle East and North African governments are systematically violating the civil liberties of their citizens – and most of them are close U.S. allies in the war on terror.

In a report to the United Nations Human Rights Council, the Cairo Institute for Human Rights Studies (CIHRS) said that there have been “huge harassments of human rights organizations and defenders have been increasingly subject to abusive and suppressive actions by government actors in democratic rights and freedoms in the majority of Arab countries, particularly Egypt, Syria, Bahrain and Tunisia.”

The group called upon the international community to “exert effective efforts to urge Arab governments to duly reconsider their legislation, policy and practices contravening their international obligations to protect freedom of assembly, freedom of expression and freedom to form associations, including non-governmental organizations.”

It added that “Special attention should be awarded to providing protection to human rights defenders in the Arab World.”

As an example of typical area-wide human rights abuses, the CIHRS report cited the recent forced closure by Egyptian authorities of the Association for Human Rights Legal Aid, an organization active in exposing incidences of torture. The Egyptian government claimed that the organization “received foreign funding without having the consent of the Minister of Social Solidarity.”

The organization warned of “increasingly repressive conditions being imposed on non-governmental organizations (NGOs) in Egypt, including a proposed amendment to the Law of Associations that it said would limit the right of association and expression.

Other Arab nations singled out for detailed criticism included Algeria, Bahrain, Iraq, Jordan, Libya, Morocco, Saudi Arabia, Syria, Sudan, Somalia, Tunisia, The United Arab Emirates and Yemen. The report also accused four other Arab countries of human rights abuses -- Libya, Algeria, Sudan and Morocco.

The U.S. and other Western governments have had close ties with Arab governments in the Middle East and North Africa for many years. These ties have grown closer since the terrorist attacks on the U.S. on September 11, 2001.

But since the administration of President Ronald Reagan (1981-89), promoting democracy and freedom in the Arab world has been a staple in U.S. political rhetoric. The rhetoric has ratcheted up significantly during the administration of President George W. Bush. In his second inaugural address, Bush said, “It is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world."

Bush administration officials say they have used diplomatic pressure, foreign aid and the architecture established by Reagan to help nurture democracy in the Middle East and North Africa. Bush also said the democratic transformation of the Middle East would begin with regime change in Iraq.

Many observers have found the Bush administration’s relationships with Egypt to be particularly problematic. In the past, the president and his Secretary of State, Condoleezza Rice, have publicly expressed criticism of Egypt for repressing free political opposition, notably the imprisonment of liberal reformers such as Ayman Nour, the principal political opponent of longtime President Hosni Mubarak.

Earlier this year, the U.S. Congress put a ‘hold” on $100 million of American military aid to Egypt, calling on the Mubarak government to protect the independence of the judiciary, stop police abuses and curtail arms smuggling from Egypt to Gaza. In testimony to Congress, Margaret Scobey, the nominee to be ambassador to Egypt, said "The government's respect for human rights remains poor, and serious abuses continue.”

But in January, the U.S. waived the hold in a bid to encourage Egypt to help in calming the Israeli-Palestinian crises. In a visit to Egypt the same month, President Bush told his Egyptian counterpart, “I appreciate the example that your nation is setting.”

Egypt receives $2 billion a year, including $1.3 billion in military assistance. from the U.S. annually – second only to the sum awarded to Israel.

Steve Carpinelli of the Center for Public Integrity (CPI) told us, “Billions of dollars in new military aid, accompanied by lax oversight and poor accountability, have flowed to governments with documented histories of human rights abuses, weak advancements toward democratic governance and the rule of law, among the findings of the Center's Collateral Damage project, which assessed the impact of U.S. military aid in the post 9/11 era.” The CPI, a government accountability watchdog group, has just published a comprehensive report on U.S. military aid to repressive governments. The full report can be found at

The CIHRS report to the UN details numerous human rights violations throughout the Arab Middle East and North Africa. It accuses Syria of arresting “dozens tens of qualified professionals personnel belonging to human rights organizations and civil society revival committees.” It says the Bahraini government closed the Bahrain Center for Human Rights, put the president of one civil society on trial, and charged seven other activists with "participating in an illegal gathering and creating disturbance."

In Tunisia, the report charges, “The authorities have made it almost impossible for the Tunisian League for Human Rights (LTDH) and other civil society institutions to operate. Tunisian human rights defenders have not been allowed to travel abroad and undertook measures to freeze LTDH’s grants from the European Union.

According to the CIHRS report, “Many Gulf countries, as well as Libya, do not allow for the existence of human rights organizations or civil society activists. The long-running Algerian military influence has severely limited civil society organizations. Since the toppling of Sudan’s democratic government in 1989, Sudanese civil society has been deprived of many legal and political protections and rights. Furthermore, civil society institutions in conflict affected countries, such as Iraq, come under constant violent attack; the same applies to the situation in Palestine – whether due to the occupation or in-fighting between its two political parties.”

The report identifies Morocco as one of the few Arab countries that has made progress in the human rights field. However, it notes that members of the Moroccan Association for Human Rights have been arrested, tried and sentenced to prison for periods ranging between two and three years for displaying slogans during a peaceful protest during Labor Day celebrations. The slogans were considered by the authorities to be “detrimental to the king and monarchy,” the report said.

Wednesday, March 26, 2008

Bush Spins Iraq. The Dems go A.W.O.L.

By William Fisher

Only the terminally tone-deaf could fail to be astonished by the juxtaposition of last week’s two major speeches – President Bush’s address marking the fifth anniversary of the Iraq war, and Barack Obama’s remarks on race in America.

Because they speak volumes about the profound differences between the two men who delivered them. One came from a man who is either a serial liar, a foreign affairs ignoramus, or a terminal victim of historical amnesia. The other came from a man willing risk his political future on planting both feet on the most divisive Third Rail in American life: Race.

Millions of words have already been written and spoken about the Obama oration, and I will spare you yet another assessment. Except to note that the senator from Illinois seemed to be trying to achieve three objectives: First, putting the incendiary sermons of Rev. Jeremiah Wright behind him; second, winning support from the so-called Reagan Democrats in Pennsylvania and beyond; and third, encouraging all of us to begin a serious national dialogue to help our country understand and accommodate the realities of racial diversity.

My guess is that he probably isn’t going to make much of a dent in the first two of these objectives. And the jury will be out for years on whether the American people are ready to help him achieve his third objective.

This was a speech Sen. Obama didn’t want to make; the incessant soundbite publicity surrounding his pastor left him no choice. He was becoming a victim of guilt by association.

But having said that – and even acknowledging that there were some questions he failed to address – I think that, years from now, his remarks will have earned their place in the pantheon of the most consequential speeches of the last half-century.

The reason is not simply because of the elegance of the prose or its superb delivery. The reason is the subject itself. Millions of Americans, regardless of their skin color, religion, ethnicity, or national origin, harbor varying degrees of distrust of people who are “not like us.” Obama confronted the resentments, the stereotypes, the bigotry, head-on, and suggested the urgency of a national conversation on these issues. It’s an uncomfortable conversation we’ve been only too happy to ignore, and we need to have it.

But saying so was not merely a good and necessary idea – it was an act of extraordinary political audacity.

Contrast that with what the President said on the fifth anniversary of the Iraq invasion. He spoke of the success of the initial military campaign of March 2003, and how quickly our military vanquished Iraq’s scattering army. He then spoke of the success of the "surge" during the last year, noting it has drastically reduced the level of violence in Iraq and turned "the situation in Iraq around." The President paid tribute to the 4,000 Americans and countless Iraqis killed in his “cakewalk.” He told us we were succeeding. Al Qaeda was on the run. The flowers would soon be burying the ‘liberators’. Victory was just over the horizon.

What he conveniently left out were the four-and-a-half years in between – years that demonstrated either the ideological arrogance or the abysmal foreign policy ignorance of the president and his advisors.

No planning for the day after Saddam’s statue toppled. No understanding of the simmering rage of Iraqi Shias, repressed for years by a brutal dictatorship led by a Sunni. No clue that Iran, an overwhelmingly Shia theocracy, would be a predictable Iraqi ally. Not enough troops. An Iraqi government riven by corruption and unwilling or unable to implement any real political reconciliation, although that’s what was posited as the rationale for the surge. An Iraqi government still paralyzed into inaction in delivering the most basic services people expect of their government – water, electricity, education, health care, security. And no exit strategy for America or anyone else.

“There is no military solution” became the non-stop refrain in the president’s symphony of dissonance. But here we are, five years on, with our uniformed forces still trying to apply a military solution.

So much for confronting the issues head-on and telling us the truth. What we got instead was more spin. Mission (almost) Accomplished!

The spin shouldn’t surprise us. It comes from a president who, when he ran for the nation’s highest office in the 2000 election, was implacably opposed to ‘nation-building.’ Now he’s demonstrating yet again that he had (and has) no clue about how nations are built or about our country’s abysmal history of failure in attempting to impose democracy on unwilling despots.

Salivating in the wings to continue this sorry saga is Sen. John McCain – for 100 years, if necessary. The conductor-in-chief of the ‘straight-talk-express’ returned from a visit to Iraq with the same rose-colored vision we heard from the president. The surge is succeeding.

What we should hope to hear from our president, and those who would succeed him, is that the Iraq debacle has put us between a rock and a hard place. The Bush Doctrine has left us with no good options.

We can stay in Iraq and let our soldiers and marines continue to serve as beat cops – chasing al Qaeda while Afghanistan continues its freefall and Pakistan continues to provide safe haven for those wonderful folks who brought us 9/11. Or we can leave Iraq and pray that power, money, territory and oil don’t explode Sunni-Shia violence and Shia-on-Shia violence into an even more catastrophic civil war.

Will no one trust the American people enough to give us a real opinion and a real plan – warts and all?

A presidential candidate who had the courage to confront the ugly reality of race in America should be capable of confronting the ugly reality of Iraq. And so should his opponent.

Sen. Obama and Sen. Clinton have both said they will draw down our troop levels in Iraq, being “as careful getting out as we were careless going in.” But neither has uttered a word to reassure us that they understand the incredible complexities of our dilemma and exactly how they intend to put this genie back in its bottle.

We certainly won’t be hearing anything like that from Mr. McCain. But we have a right to hear it from both the Democrats who are campaigning for our support based on their promises of real change.

Saturday, March 22, 2008


By William Fisher

While conservative pundits like Bill Kristol, Charles Krauthammer and Pat Buchanan teeter on the brink of apoplexy about Barack Obama’s refusal to throw his incendiary former pastor under the bus, they – and virtually the entire mainstream media – have gone silent on John McCain’s shameless pandering to the toxic wing of the religious right.

If we’re so intent on applying Joe McCarthy’s guilt-by-association mantra to Sen. Obama’s relationship to his former pastor, how come we’re hearing virtually nothing about Mr. McCain’s support from Rev. John Hagee?

(Maybe the media feels it needs to show Mr. Straight-Talk-Express some deference because of his age. That might also explain the free pass he got for his absurd four-time assertion that (Shia) Iran was training (Sunni) Al Qaeda terrorists -- he had to be corrected by Sen. Joe Lieberman, his Middle East traveling buddy). Sometimes age brings memory deficits.

So who is this Rev. Hagee? He is a multi-millionaire televangelist, founder and senior pastor of the 16,000-strong Cornerstone Church in San Antonio, and head of John Hagee Ministries, whose broadcasts spew bigotry to some 99 million homes on 160 TV stations, 50 radio stations and eight networks in the U.S., Canada, Africa, Europe, Australia, New Zealand, and many third world nations.

And what’s he saying?

He speaks out against homosexuality. As noted by “Media Matters,” he believes Hurricane Katrina was “an act of God for a society that is becoming Sodom and Gomorrah reborn…a level of sin that was offensive to God".

He claims that another reason for God's wrath was the Bush administration's pressure on Israel to abandon settlements and the land associated with them. Therefore, God took American land in a "tit for tat" exchange during Hurricane Katrina.

Hagee asserts that Muhammad was a man of war and that this influence on Islam is the cause of the troubles of Jerusalem.

He calls Roman Catholicism "A Godless theology of hate that no one dared try to stop for a thousand years (and which) produced a harvest of hate."

He denounces abortion and stopped giving money to Israel's Hadassah hospital when it began performing the procedure.

He calls the head of the European Union “the anti-Christ,” for trying to create a confrontation over Israel between China and the West. “A final battle between East and West at Armageddon will then precipitate the Second Coming of Christ.”

He condemns literature such as J. K. Rowling's “Harry Potter,” calling it contemporary witchcraft.

Despite his claims of opposition to anti-Semitism, Hagee believes that the persecution of Jews throughout history, and even the Holocaust, was caused by their own "disobedience…Their own rebellion had birthed the seed of anti-Semitism that would arise and bring destruction to them for centuries to come.... it rises from the judgment of God upon his rebellious chosen people.”

He believes that "The most important thing to the Christian community is not the environment but evangelism."

And he asserts, "Christians don't steal or lie, they don't get divorced or have abortions. If the Ten Commandments were followed by everyone we would be able to fire half the police force and in six months the prisons would be all half empty."

Now, these canards are not all that unusual in the extreme wingnut section of the Christian right. What’s unusual is that, unlike Sen. Obama – who had a 20-year relationship with Rev. Jeremiah Wright – John McCain actively sought Hagee’s endorsement when he began his campaign for the Republican presidential nomination.

And is apparently happy to accept it. "I’m very proud to have Pastor Hagee’s support," McCain said at the time.

Previous incarnations of John McCain had the courage to label fanatics like Jerry Falwell, Pat Robertson and Bob Jones "agents of intolerance." The 2008 edition has shamelessly pandered to the religious right, even refusing to disown his statement that "the Constitution established the United States of America as a Christian nation."

What happened to the “maverick” John McCain many of us respected? Maybe, at the end of the day, he’s no different from most politicians -- willing to do or say anything to get elected.

That’s not an edict from God. That’s a choice.

And McCain’s choice has taken the wheels off the Straight Talk Express – again.

Wednesday, March 19, 2008

The Fierce Urgency of How

By William Fisher

My reaction to the news that Hillary Clinton and Barack Obama have agreed to yet another debate, this one on April 16, in Philadelphia:

Be still my heart!

Having forsworn ever watching another so-called debate for fear of dying from Trivialitis – but apparently having a strong self-destructive urge – I fear I will once again find myself hunkered down in front of my television to watch the candidates swap one-liners.

Barack will promise to bring us all together so that the nation can move forward. He’ll again assert his prewar opposition to Iraq and promise to bring our troops home. He’ll tell us yet again that we have to be as careful bringing them home as we were careless sending them in. He’ll assure Pennsylvania voters that he’s going to renegotiate NAFTA. And, of course, he’ll promise us universal health care, middle-class tax relief, better schools, secure borders, a rescue plan for victims of Katrina and sub-prime mortgages, and energy independence. And no doubt we’ll hear yet again about how John McCain would have us stay in Iraq for the next hundred years.

Hillary will tell us how ready she is to be Commander-in-Chief on Day One. She too will repeat all the lofty goals she and her opponent share – universal health care (but leaving no one out), energy independence, better teachers and smaller classrooms, an exit strategy for Iraq (two brigades a month), the NAFTA riff, secure borders, and of course middle-class tax relief, better schools, a rescue plan for victims of Katrina and sub-prime mortgages, energy independence, and John McCain’s 100-year-war.

But unless they have some kind of joint epiphany, neither candidate will talk about how they view the Constitution, the limits of Presidential Power, secretive government, how they will reach consensus with the Congress, separation of church and state, Guantanamo, Bagram, the CIA’s secret prisons, warrantless wiretapping, the respective checks-and-balances roles of the executive, legislative and judicial branches of our government -- and a host of other mismanaged issues that have arguably assured George W. Bush one of the most pitiful legacies of any President in our history.

Our two Democratic contenders – and the TV anchors who moderate these colloquies -- apparently believe that discussion of such issues is so far down in the weeds that viewers’ eyes will instantly glaze over and the entire nation will scramble for the remote.

But if they think of what a lot of the rest of us see as existential issues as being beyond the voters’ comprehension, I wonder how they view an equally important question: How?

By which I mean that lofty visions and even good strategies don’t answer the question of how you’re going to go about actually getting things done – swiftly, efficiently, responsibly, accountably.

Like HOW you’re going to avoid another Heck-of-a-job-Brownie moment. HOW you’re going to bring us energy independence. HOW you’re going to secure a peaceful Middle East. HOW you’re going to end aggressive extremism. HOW you’re going to execute your health care plan, put better teachers in smaller classes, and all the rest.

Dealing with the HOW is arguably even more important than figuring out the WHAT. HOW you’re going to implement good strategies raises issues of leadership and management. It’s about bringing people into government who are not merely loyal or ideologically driven, but able and experienced. Grown-ups who have proven track records in the kinds of jobs they’re getting appointed to. And who have demonstrable records of integrity and leadership.

A new president has the authority to make more than 3,000 “political” appointments. But political appointees don’t necessarily have to be synonymous with party hacks or ideologues. That there will have to be some of those is a given – the person who lands in the Oval Office inevitably has lots of political favors to repay.

But, beyond what should be a relative few, a president’s ability to lead the government will depend on his ability to find and attract those who know how to manage the government. Who are willing to accept personal accountability for their performance. And who know how to use the institutional memories of our civil servants – our bureaucracy – to participate professionally in the execution of good plans and policies.

Why am I so hung up on the importance of HOW?

Well, I had the privilege of sweeping into the nation’s capital as a very minor player with “the best and the brightest” who followed John F. Kennedy to the presidency. I saw first-hand how the best of the brightest showed their leadership qualities by motivating our career civil servants by respecting their aggregate knowledge and experience. How they looked to the permanent government cadre to help craft practical plans and goals and to organize their work to optimize their chances of achieving those goals.

I also saw the converse. I saw too many bright people in too many very senior positions who believed that each of their brilliant ideas was brand-new. Who became almost delusional about their mission to reinvent government. Who became intellectually corrupted by the power they thought they wielded.

And I saw those people fail.

A new president needs to understand the high price of political patronage. That understanding will go a long way toward putting the right people in the right slots. And having the right people in the right slots will give the new president at least a shot at making things work.

And having no more Brownies.

And helping to restore the people’s confidence in their government.

Tuesday, March 18, 2008


By William Fisher

We’re all familiar with the U.S. Postal Service’s unofficial motto: “Neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds." But there are times when the completion of their appointed rounds might bring bad news. Very bad news.

The bad news might come in the form of a National Security Letter (NSL). NSLs are letters issued by the government to a particular entity or organization, compelling them to turn over various records and data pertaining to individuals. They require no probable cause or judicial oversight. They also contain a gag order that bars the recipient of the letter from disclosing that the letter was ever issued.

This form of administrative subpoena is being used by the FBI and reportedly by other U.S. Government Agencies including the Central Intelligence Agency (CIA), the Department of Defense (DOD), and the Department of Homeland Security (DHS).

And one of the nation’s most respected counterterrorism experts, Mike German of the American Civil Liberties Union (ACLU), believes Congress will soon take action to rein in what he calls the “unchecked power” of the FBI and others to spy on Americans without court approval – and then forbid them from publicly protesting the violation of their civil liberties.

German’s charges come on the heels of a report last month by the Department of Justice Inspector General (IG). The report concluded that the FBI was continuing to issue NSLs unlawfully.

The IG’s report also expressed skepticism on the effectiveness of reforms put in place by the FBI following a 2006 IG report that found widespread abuses in the agency’s use of NSLs. But others are less charitable.

Michael Ratner, president of the Center for Constitutional Rights (CCR), a civil liberties advocacy group, told us, “DOJ’s reforms have clearly not fixed the problem; despite these fixes, the misuse of NSLs continues. It is far past the time when Congress ought to mandate judicial approval of such a significant invasion of privacy. Without such approval any claimed reforms have little meaning.”

The USA Patriot Act, passed in 2001, greatly expanded the use of NSLs, allowing their use in scrutiny of U.S. residents, visitors, or U.S. citizens who are not suspects in any criminal investigation. The Patriot Act reauthorization statutes passed by Congress in early 2006 added specific penalties for non-compliance or disclosure.

In his most recent report, the IG, Glenn A. Fine, reported that the FBI twice ignored the constitutional objections of the special court established under the Foreign Intelligence Surveillance Act (FISA) to obtain private records for national security probes.

German, a 16-year FBI veteran, resigned as a Special Agent in 2004 to make Congress and the public aware of the continuing deficiencies in FBI counterterrorism operations after the implementation of the 9/11 Commission’s reforms. He told us that following passage of the USA Patriot Act in 2001, FBI operations have been conducted “with unchecked power, hampered by mismanagement in its counter-terrorism unit, and facilitated by lack of Congressional oversight.” The FBI, he added, “is obtaining personal and business records they’re not entitled to.”

He also highlighted the relationship of NSLs to the current debate over electronic surveillance by calling attention to so-called “third party error.” This occurs when the government targets a particular telephone number or email address, and then not only continues to tap all who call into that target, but the calls and emails sent to and from the addresses of these “secondary targets,” and calls to and from these secondary targets, creating groups of tertiary targets.

He also told us that there is little evidence that the FBI is systematically purging its databases of telephone or email records unlawfully or inadvertently obtained during these electronic surveillance operations.

The IG made its disclosure in reviews of the FBI's powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.

"We questioned the appropriateness of the FBI's actions" in disregarding the court, the IG said.

The IG’s latest review follows a report last March that concluded that the FBI had misused its powers between 2003 and 2006 to obtain business records with private data. He said it filed improper requests for records and collected e-mail data without proper authorization. Fine's 2007 report found 48 violations of law or rules in the bureau's use of national security letters from 2003 to 2005.

Fine’s 2007 report concluded that the FBI sought to cover its acquisition of phone records on thousands of Americans from 2003 to 2005 by issuing 11 improper, retroactive "blanket" administrative subpoenas in 2006 to three phone companies that are under contract to the FBI.

Top officials at the FBI's counter-terrorism division signed the blanket subpoenas "retroactively to justify the FBI's acquisition of data through the exigent letters or other informal requests," Fine found.

While acknowledging that the FBI took significant steps to correct the problems after his report last year, the IG added that implementation of the steps was yet complete, so "it is too early to determine whether these measures will eliminate fully the problems."

The IG’s 2008 report came as Congress continued to debate legislation governing federal powers to conduct electronic surveillance of foreign terrorism targets. A principal bone of contention in that debate is whether telecommunications companies – whose technology and customer records are key to the government’s ability to obtain and track phone calls and email traffic to and from specific numbers – should receive “retroactive immunity” from prosecution for assisting the government during a time when the Bush Administration had no Congressionally-mandated authority to do so.

The Administration contends the telecommunications companies were simply doing their “patriotic duty” to help their government following the terrorist attacks of September 11, 2001. Critics of that position say the government’s action was unlawful because it circumvented the 1978 FISA law, and claim the warrantless wiretaps began long before 9/11.

The House of Representatives last week passed legislation denying retroactive immunity, while the Senate continues to debate two bills, one granting such immunity, the other denying it. President George W. Bush has said he would veto any legislation that failed to grant immunity.

He has also said the absence of immunity would have a chilling effect on the willingness of telecom companies to cooperate with the government because they would then be vulnerable to expensive and time-consuming court challenges. The president, the Director of National Intelligence, Admiral Mike McConnell, and the chiefs of the CIA, the National Security Agency (NSA), and other U.S. intelligence organizations, have claimed that failure of resolve the immunity issue has caused the U.S. to lose valuable intelligence.

The IG’s most recent report noted two occasions in which he FISA court rejected FBI requests to obtain records. The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.

But following the FISA court’s rejections, the FBI used separate authority to get the information without the court's approval, relying on NSLs, even though that authority also had First Amendment guidelines.

The NSL issue has drawn attention both from Congress and from the civil liberties community.

Vermont Democrat Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said the IG’s report "outlines more abuses and what appears to be the improper use of National Security Letters for years in a systemic failure throughout the FBI ...Legislative action may be necessary to correct these abuses."

Legislation to correct the abuse of the National Security Letter authorities has been introduced in the House of Representatives by Rep. Jerrold Nadler, a New York Democrat, and in the Senate by Sen. Russ Feingold, Democrat from Wisconsin.

And the CCR’s Ratner told us, “We have never believed that National Security Letters should be issued without court approval and find it unacceptable that those targeted by such letters are muzzled. The poisonous fruit of the current practice is what could have been expected: FBI agents and other secret police running around without any suspicion of criminal activity grabbing not only the records of so-called targets but of all persons who have had any communications with the ‘targets’.”

If this scary saga has a message, it’s that you might want to think twice before answering your phone – even if it’s at 3 a.m. – or opening your mailbox.

Friday, March 14, 2008

It's About a Lot More Than The 3 A M. Phone Call

By William Fisher

It should come as no surprise to anyone that the National Newspaper Publishers Association – the organization representing the nation’s 200--plus black-owned newspapers -- named Barack Obama as the winner of its Newsmaker of the Year Award this week.

It was a no-brainer. Not since the time of Martin Luther King has any African-American made as much news as Senator Obama.

Given the ill-concealed race and gender issues raised during this nomination contest, it is possible Mr. Obama has mixed feelings about this award. There are many who will simply see it as further confirmation that he is the African-American candidate – not the candidate of all the people. And doubtless, some of his opponents will attempt to frame it that way.

Politicians will do what politicians do – anything to win.

For me, however, this award has a deeper meaning. Because it takes me back more than forty-five years to a time when the Obama phenomenon would have been unthinkable.

The year was 1950. I was a cub reporter for Daytona Beach, Florida, News-Journal, a remarkably progressive daily newspaper.

After some months, my editors assigned me to run their two-reporter County Seat Bureau, located in a small town called Deland. I knew something about Deland because I had done my undergraduate work there at an institution blessed by the Southern Baptists. Located in the heart of the central Florida redneck bible-belt, Deland was what most sociology textbooks at the time described as the most corrupt county in the United States. It was largely controlled by the Coca Cola Company and the Florida East Coast Railroad.

The News-Journal gave me the grand title of Bureau Chief. My beat was what my managing editor called C&C – Cops and Courts. I covered the local police, the county sheriff, and the county court.

For a young Yankee reporter from New York, the experience offered an eye-opening – and terrifying – glimpse into the abyss of the Jim Crow south.

Saturday nights were always the busiest for this fledgling journalist. That’s when a couple of dozen sheriff’s deputies got into their patrol cars and headed for “colored town” – the county seat’s ghetto where the dirt-poor African-Americans lived.

They swept in like the 101st airborne, arresting virtually anything that moved. Men and women – and the occasional child – were caught up in the sweep, hustled into waiting paddywagons, and dispatched back to the sheriff’s station. There, they were put behind bars and charged with a variety of heinous crimes – loitering was the most common. If they could post a $25 cash bond, they got out of jail. If not, they stayed locked up.

The sheriff and his deputies much preferred getting the cash, because back in those days they were paid on the “fee system,” i.e., their salaries were substantially composed of a percentage of the fines they collected from folks they arrested.

The later it got, the more arrests were made. It was Saturday night in “colored town.” People drank. Some got into fights. Occasionally there were knifings. But, as I watched, it was clear to me that most of the arrestees were simply in the wrong place at the wrong time. But the suspects were nevertheless hustled off to jail.

For most of them, a $25 bond was not an option. They were quickly put into tiny cells, where most of them remained through their arraignments and until their trials – sometimes for many months.

Likewise, legal aid, as we now understand it, was virtually non-existent. The county’s lawyers were ordered by the local bar association and the judge to represent the accused on a rotating pro-bono basis. And since they weren’t about to give up their own Saturday nights, they rarely saw their “clients” until Monday morning.

By that time, many of the often-illiterate suspects had placed their “mark” on confessions, largely obtained through empty promises of freedom and/or brutal beatings. The sheriff and his deputies were particularly fond of arresting couples, and then sexually abusing a wife to extract a confession from her husband.

Customarily, the next time I saw these people was when they came before the county judge for trial. Their lawyers were often unaware of the charges, since they hadn’t bothered to read the court papers and police reports. Evidence of coerced confessions was routinely excluded, usually without the slightest hint of an objection from the defense lawyers. Juries were, predictably, all-white and all-male. Some of the attorneys appointed to defend the suspects showed up in court drunk, or with Saturday night hangovers. Others literally slept through the trials.

The next stop for most of those convicted of felonies was the state prison at Raiford, then widely acknowledged to be one of the more notoriously cruel, badly managed and overcrowded penal institutions in the country. There were few appeals; appeals cost money.

That was justice for African-Americans in Central Florida in the 1950s, and things only got worse for black citizens after the civil rights movement started to attract attention.

Things didn’t get much better for me either. Because, in addition to writing stories for the paper that paid my salary, I got a job free-lancing for the Baltimore Afro-American, one of the oldest black newspapers in the country. They paid me five cents a word, and I filed stories about what I was seeing on the C&C beat, including the cops’ Saturday night invasions of “nigratown.” They also published photos that I shot with my ancient Speed Graphic camera.

Somehow, that information got back to the sheriff, who one morning appeared in my office and, in his laconic Southern drawl, let me know that hanging around his sleepy cowtown could be damaging to my health. Before long, my editors, concerned for my well-being, transferred me back to the main office.

With the arrival of Disney, lots of Northern retirees, Supreme Court decisions, and dramatic demographic shifts, Central Florida gradually changed. The county sheriff’s department now boasts of its diversity – both the local police and the country sheriff’s office now have African-American officers. And I doubt there are any more Saturday Night Massacres these days.

Which is not to say that racial discrimination has gone away. Doubtless poor African-Americans still get arrested, still get disproportionately pulled over in traffic stops, still get represented by incompetent lawyers, and still get convicted at far higher rates than white defendants.

But if racial bigotry in Central Florida hasn’t gone away, it has certainly become more subtle. If you’re an African-American, you might be more concerned about whether someone has intentionally sent you to the wrong polling place or if your polling place is going to have enough voting machines. You’re probably less worried about getting shipped off to jail than about getting a business loan from a bank or a mortgage to buy property in a white neighborhood.

Now what has this ancient history have to do with Barack Obama? At least three things.

First, against our country’s sordid background of slavery and racial bigotry, why should we be surprised or embarrassed that race has become a campaign issue? Was it not bound to be? America has never had a serious national conversation about race. And it’s a potentially informative conversation we need to have.

Second, we’re not having it. Instead, win-at-any-cost politicians are busy playing the “race card” – Barack Obama is not merely a capable candidate running a good campaign. He’s the African-American candidate. Which is a not-so-subtle way of telling voters that black Americans will vote for him, but the rest of us need to remember he’s “not like us.”

Finally, think of the cops’ Saturday night sorties into Deland’s “nigratown”. Think of Billie Holiday wailing “Strange Fruit.” Think of John Lewis at the Edmund Pettis Bridge in Selma. Think of “I Have a Dream.” Think of how Dr. King’s life ended.

Think of where America has been, and there’s no word other than remarkable that an African-American man with funny name might just be the next guy behind the desk in the Oval Office.

And answering the phone at 3 A.M.

Monday, March 10, 2008


By William Fisher

Here’s the good news:

As reported in a Washington Post editorial Monday morning, China is prepared to renew its human rights dialogue with the U.S. after a five-year hiatus – triggered by China’s repeated objections to international interventions in its domestic affairs.

The Post opined that China’s turnabout was generated by “growing international criticism of its pre-Olympics crackdown on dissent and of its relationships with Sudan and Burma.”

Of course, this is good news. The Post headline got it right: “Let’s Talk.”

But here’s the bad news:

The United States no longer has the credibility to influence any substantive change in Chinese human rights practices.

We squandered it at Abu Ghraib.

We squandered it at Guantanamo.

We squandered it by bedding down with some of the world’s most repressive and authoritarian regimes – Saudi Arabia and Egypt, for example.

And we squandered it at home.

We made endless and as yet unfulfilled promises to find safe haven for the Iraqis forced by our occupation to flee their country.

We rounded up Muslims and others who we thought looked like Muslims, jailed them without charges or lawyers, and then convicted no one.

We engaged in “extraordinary renditions” – shipping people to countries quite likely to torture them.

We authorized our CIA to run secret prisons full of ghost prisoners, unknown even to the Red Cross.

Our president used his “signing statements” to trash the Constitution and rule of law.

He used his veto pen to give the CIA free reign to engage in waterboarding and other “enhanced interrogation” techniques, while piously claiming “America doesn’t torture.”

Our National Security Agency listens to our phone calls and intercepts our emails – and then demands immunity for the telecom companies who helped the Administration break the law.

The Chinese know all this. And so does the rest of the world.

If China agrees to restart its human right talks with the U.S., it will no doubt make all the right noises. It doesn’t dare jeopardize the billions it has invested in its Olympics infrastructure and image makeover.

But, at the end of the day, the United States will find itself hoisted by its own petard. The Chinese will go right on violating the human rights of its people.

Because our own behavior has stolen our credibility. It has robbed us of the leverage we once had. Our State Department can continue to put out its annual reports of human rights abuses around the world – and it should. But, next year, it needs to include us.

Getting another country to change anything has always been a tough sell. But it’s a lot tougher when the salesman is pitching a tainted product.


By William Fisher

At a pretrial hearing at Guantanamo Bay, Cuba, next month, the Pentagon will take its first public step toward a Military Commission trial for Osama bin Laden’s alleged driver and bodyguard. And one of the witnesses for the defense will be the military’s former chief prosecutor.

He is Col. Morris Davis, now head of the Air Force judiciary, who resigned as prosecutor in October over alleged political interference in the U.S. military tribunals. His resignation was triggered by his being placed under the direction of the then Pentagon general counsel, William Haynes.

Unless the Pentagon blocks his appearance, Col. Davis will testify at the hearing for Salim Ahmed Hamdan. Hamdan faces up to life in prison if the tribunal convicts him of conspiracy and supporting terrorism.

Davis is expected to testify that Haynes told him in August 2005 that any acquittals of terrorism suspects at Guantanamo would make the United States look bad. Davis has said Haynes told him, “We can't have acquittals, we've got to have convictions," raising doubts about the fairness of the trial.

Hamdan's defense team plans to argue that the charges should be dismissed because the political interference alleged by Davis violates the Military Commissions Act.

But Col. Davis may never get to testify. Last December, two months after he resigned as the chief prosecutor for the Guantanamo war crimes tribunals, the Defense Department barred him from testifying before a Senate Judiciary subcommittee.

Davis said he believes “the problem is having political appointees injected into the system. They are looking for a political outcome, not justice."

Haynes resigned as the Pentagon’s top legal official late last month. He has long been under fire for his role in crafting the Bush Administration's policies regarding the interrogation and detention of prisoners captured in the "war on terror."

Haynes was a principal architect of memos and public statements advocating torture and the denial of habeas corpus for detainees. In a 2002 memo, he recommended techniques such as "twenty-hour interrogations, isolation for up to thirty days, deprivation of light and auditory stimuli...and stress positions such as the proposed standing for four hours." He also recommended keeping such “enhanced interrogation techniques” as death threats, waterboarding, and exposure to extreme temperatures. He argued that detainees currently held at Guantanamo Bay are not protected by the Geneva Conventions.

These positions led to international condemnation and a stalemate in the prosecution of Guantánamo detainees. Only one case -- that of Australian David Hicks -- has been adjudicated in six years.

Haynes was also a Bush judicial nominee for the 4th Circuit Court of Appeals. He was widely opposed, principally because of his role in crafting the Bush Administration's military interrogation policies. A number of prominent military figures weighed in against him, among them retired Real Admiral John Hutson. Hutson wrote to the then chairman of the Senate Judiciary Committee, Pennsylvania Democrat Arlen Specter, saying that Haynes was in “a unique position to ensure (that abusive interrogation) didn't happen in the first place or surely to stop it once it had occurred. He failed to do so.” Haynes’ nomination was rejected by the Judiciary Committee.

In a related development concerning these “high value” detainees, it was recently revealed that several hundred agents of the Federal Bureau of Investigation (FBI) have been re-questioning these detainees for at least two years. Their mission has been to “recreate” the evidence reportedly gained originally from interrogations that employed various forms of coercion. The investigations were requested by the Defense Department, which feared that evidence acquired through coercion would be inadmissible in their Military Commission trials.

But many legal scholars argue that such evidence would amount to “fruit from the poisoned tree” -- by which evidence is inadmissible if it was generated from an unconstitutional or illegal act -- and could therefore not be used against the defendants.

Gabor Rona, International Legal Director for Human Rights First, an advocacy organization, told us, “Consider a confession by someone who has been detained without judicial process, held for years in near isolation, denied contact with family or legal counsel, subjected to prolonged interrogation under circumstances amounting to cruel, inhuman and degrading treatment or torture. Evidence gained under such circumstances cannot be used in a trial, according to both international and domestic law, and for good reason. The idea that this individual, while still in the custody of those same captors, can then be freshly interrogated without the use of coercive interrogation techniques in order to provide an untainted confession is absurd.”

He added, “To assert otherwise is to simply add to mounting evidence that the military commission process is neither designed to provide, nor is capable of providing, justice.”

Col. Davis also contends that the Hamdan incident was not the first time political pressures were applied to the Guantanamo trials process. He said that in March 2007 that senior officials pushed for a plea bargain for Guantanamo detainee David Hicks, dubbed the “Australian Taliban.” The plea allowed him to serve a nine-month sentence in his homeland for aiding the Taliban. Davis said the sentence was orchestrated to help Conservative Party Prime Minister John Howard of Australia, who sanding for reelection and was under domestic criticism for his support of U.S. policies. Hicks was recently released from an Australian prison. Howard lost his reelection bid.

Hamdan became part of U.S. judicial history when the Supreme Court found in his favor in 2006 that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling said Common Article 3 of the Third Geneva Convention was violated.

The case considered whether the U.S. Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.

The court’s decision was a stunning rebuke to the Bush Administration. It led to Congress’ hurried enactment of the Military Commissions Act (MCA) of 2006, which set up new procedures and structures for bringing Guantanamo detainees to trial, and limited detainees’ access to habeas corpus. The MCA still faces court challenges as being unconstitutional.

The U.S. Government has called for the death penalty for the six “high value detainees,” who were transferred to Guantanamo from secret CIA prisons in Eastern Europe, where they were reportedly subjected to harsh interrogations. Those charged include Khalid Shaikh Mohammed, an alleged former senior aide to Osama bin Laden, who is said to have admitted to being the principal planner of the plot.

The U.S. currently holds about 275 men at Guantanamo and says it plans to prosecute approximately 80 before military commissions.


By William Fisher

President George W. Bush appeared headed toward another train wreck with Congress as he carried out his threat to veto an intelligence bill that would have banned the Central Intelligence Agency from using waterboarding and other ‘enhanced interrogation techniques’ in questioning terrorism suspects.

The bill, passed by both the House of Representatives and the Senate, would have limited the CIA to using 19 less-aggressive interrogation tactics outlined in a U.S. Army Field Manual. The measure would have ended the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.

Congress does not appear to have the votes to override the Bush veto, which he announced in his weekly radio address on Saturday. His support comes principally from Senate Republicans, including the Republican presidential nominee, Senator John McCain.

McCain was one of the principal authors and champions of the Detainee Treatment Act of 2006, which banned harsh interrogation techniques by the U.S. military, but did not cover the CIA. President Bush signed the bill into law, but issued a ‘signing statement’ claiming executive authority to ignore the law if it was necessary for national security purposes.

"Staging a mock execution by inducing the misperception of drowning is a clear violation" of laws and treaties, McCain said at the time.

But McCain sided with the Bush administration on the waterboarding ban by the CIA. He said the measure went too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding.

Human rights activists have been sharply critical of McCain’s vote. Typical is Michael Ratner of the Center for Constitutional Rights, a legal advocacy group that has defended a number of detainees at Guantanamo Naval Base in Cuba, and mobilized pro-bono legal representation for many others.

He told us, “That Senator McCain voted against the legislation ending torture -- which included a ban on water torture -- gives lie to the assertion that he cares about fundamental human rights. He is a craven opportunist and worse -- an aider and abettor of torture.”

The two Democratic presidential contenders, Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.), have said waterboarding is clearly illegal and should be banned, but neither voted on the Senate measure because they were campaigning elsewhere.

The Senate passed the bill during the same week in which the Bush administration announced plans to try six prisoners at Guantanamo Bay, Cuba, for alleged involvement in the Sept. 11 attacks. Five of the six were subjected to harsh CIA tactics.

Bush’s veto is the latest battle in the Administration’s war with Congress on the limitations placed by the U.S. Constitution on the executive branch of government. Under the Constitution, Congress is a co-equal branch, as is the Judiciary. Bush has claimed that the Constitution requires him to protect and defend the American people, and that this responsibility requires greatly expanded powers for the White House.

Another ongoing power battle with Congress involved the President’s authorization of the National Security Agency (NSA), one of 16 U.S. intelligence organizations, to conduct surveillance of telephone and email messages without court approval. In 1978, Congress passed the Foreign Surveillance Act (FISA), which set up a special court and required the Administration to secure warrants from that court based on a showing of probable cause. Without approval from the FISA Court, President Bush launched a “terrorist surveillance” program shortly after the attacks of 9/11, recruiting private telecommunications companies to assist in that effort.

Congressional action on a FISA revision is currently being blocked by a debate about whether these telecom companies should receive “retroactive immunity” from prosecution, though President Bush claims they broke no laws.

Waterboarding has become a proxy for these types of expanded executive branch powers. A Justice Department (DOJ) senior official, Steven G. Bradbury, acting head of the DOJ’s Office of Legal Counsel, recently joined his boss, Attorney General Michael Mukasey, in testifying to congress that "there has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

Waterboarding, a form of mock drowning, has been prosecuted as torture in the U.S. for more than a century. After World War Two, the U.S. prosecuted Japanese soldiers who used the technique against American prisoners of war.

But human rights groups and civil liberties advocates argue that waterboarding amounts to illegal torture.

Prof. David Cole of the Georgetown University law school told us, “It is a tragedy of historic dimensions that the President of the United States has now stood up for torture. After repeatedly insisting that ‘we don't torture’, President Bush has vetoed a bill that would have held the executive branch accountable to that promise. We can only hope that Congress has the will to override this bill, and that the American people have the will to elect a President who is truly committed to getting the CIA out of the torture business.” Cole is one of the nation’s preeminent Constitutional scholars.

His view is echoed by Mary Shaw of Amnesty International USA, who told us that “Use of waterboarding and other ‘enhanced interrogation techniques’ is in clear violation of several domestic and international laws and treaties. The Bush administration must be stopped from using the ‘war on terror’ as an excuse to violate basic human rights. Congress must not let the veto stand.”

A view about what Congress can do in the face of the President’s veto was expressed by the CCR’S Ratner. He told IPS that Congress “does not need a veto proof two-thirds majority to cut funds off from any U.S. agency, e.g. the CIA that engages in practices not authorized by the Army Field Manual. It simply does not need to fund torture -- 51 votes are enough to end funding in the Senate or a similar bare majority in the House. People should not fall for the excuse that Congress needs a veto proof two-thirds to ban torture. It can do it tomorrow without Bush standing in the way. Its failure to do so and its continued furnishing of money for the program implicates Congress in the criminality of torture. The charade of a Democratic congress blaming Bush alone for the torture program is just that—a charade.”

The Army manual forbids eight harsh techniques, including waterboarding, mock executions, use of beatings and electric shocks, forced nakedness and sexual acts, and causing hypothermia or heat injuries.

Some of the most vocal criticism of the Bush administration’s stance on torture has come from former military leaders. More than 30 three- and four-star retired generals have urged the adoption of a single interrogation standard, and warned that the use of abusive interrogation techniques is both ineffective and unwise.

The latest to take this position is Brigadier General James Cullen (Ret.), former Chief Judge of the U.S. Army Court of Criminal Appeals. He recently told Amy Goodman, a radio talk show host, “We hear a lot of arguments to try to justify ‘enhanced interrogation techniques,’ but we know exactly what we’re talking about. It’s torture in different packaging.” He said “torture is just a stupid way of going about it.”

Other military leaders have taken similar positions. General David Petraeus, commanding general of multinational forces in Iraq, recently called the military’s interrogation techniques an effective and humane way to gather information from the enemy.

Saturday, March 08, 2008


By William Fisher

This timeless press mantra has not surprisingly emerged as the fuel that drives the engine in the televised presidential debates.

This is the conclusion of media critics, foreign policy experts and human rights advocates, who are charging that questions asked by the moderators of the televised debates among candidates for their party’s presidential nomination were trivial, designed to produce conflict to boost ratings, and ignored many of the most pressing issues facing the U.S.

A typical critique came from Danny Schechter, editor of the, a media watchdog organization. He told IPS that the failings of the candidate debates “lie with the whole process which focuses on personalities, media mediated discussions, and what I call ‘electotainment’--stoking conflict--not searching for solutions. Heat, not light.”

His view was echoed by many others who are harshly critical both of moderators for failing to ask a wide range of serious questions and of candidates for failing to raise these questions.

During the 2008 presidential nominating process to date, some 20 debates have been televised. They have been sponsored principally by cable television news channels such as CNN, Fox News and MSNBC, and moderated by TV anchors joined by a few print journalists. When the Democratic Party chooses its candidate – the Republicans have already chosen Senator John McCain of Arizona – the two contenders traditionally participate in at least a few televised debates, as do their running mates for Vice President.

While important subjects were discussed in the nomination debates – health care, world trade, the economy, education, terrorism – a wide range of other areas were largely ignored. The questions never or rarely raised by primary contest debate moderators include such issues as presidential signing statements, the limits of presidential authority, separation of powers, the role of the courts, warrantless wiretapping, rendition, Guantanamo and Military Commissions, secret CIA prisons, and many other civil liberties and human rights issues.

Mary Shaw of Amnesty International USA told us, “It is very important that the candidates honestly share their views and intentions regarding these issues. Debate moderators need to ask these questions, but the candidates themselves should proactively address these issues as well. We were blindly led into a war in Iraq. We cannot afford to be blindly led into further atrocities in our name and with our tax dollars.”

A similar view was expressed by Patricia H. Kushlis, who spent more than 25 years as a U.S. Foreign Service Officer and now co-hosts the widely respected foreign affairs blog “”. She told IPS that the issues not addressed “are crucial to the survival of American democracy. “

She said, “If, in the televised debates, the presidential candidates are being let off the hook on these and other crucial national issues, then the fault, in my view, lies foremost with the media representatives and organizations conducting and televising the debates. This means, in particular, with the formats chosen, the questions asked, and the ways those questions are framed.”

Many of those we contacted similarly blame the media more than the candidates. Patricia Sharpe, an international affairs specialist in politics, public diplomacy and national security and another co-host of “WhirledView”, told IPS, “I can understand why the candidates might not originate such discussions: They are complex and controversial. What's not easy to understand is why the issues haven't been forced on the candidates by the interlocutors.”

Media Channel’s Schechter agrees. He told us, “TV news just loves covering campaigns. They love to play up any scandals and negatives to throw at the candidates. The more intense the debate the better for ratings. Heat is always a bigger draw than light. Elecotainment rules again.”

For some critics, there is more than enough blame to go round. Brian J. Foley, visiting associate professor at the Drexel University College of Law, told us, “I blame the commentators, but more I blame the candidates themselves. Why are they running for President if not to right these grievous wrongs, the misdeeds and modus operandi of an abusive president?”

A number of academics also have also been critical of the debates. For example, Edward S. Herman, an emeritus professor at the University Pennsylvania, told us, “In a real democracy substantive issues should be central to election debates, as knowing what candidates stand for on such issues ought to be the key basis on which voters choose. This is especially the case today in an election that follows an administration that has run roughshod over constitutional principles, the famous checks-and-balances system, and the rule of law itself. If these matters, including the use of signing statements that implicitly ignore the legislative will, and the right to engage in torture and hold anybody in prison on executive say-so as an ‘enemy combatant,’ cannot be debated, we are in real trouble. And we are.”

In his column, "Media Matters", Jamison Foser, a longtime commentator on the news business, wrote that “only a small handful of questions have touched on the candidates' views on executive power, the Constitution, torture, wiretapping, or other civil liberties concerns.”

He added that there was only one question about wiretapping, no questions about FISA (the Foreign Intelligence Surveillance Act), no questions about rendition, habeas corpus, telecom liability, or the Bush administration's “rather skeptical view of congressional oversight.”

Instead, he says, most of the questions have trivialized the process. He cites examples such as whether the Constitution should be changed to allow Arnold Schwarzenegger (the Austrian-born governor of California) to be president, what costumes the candidates would be wearing for Halloween, and whether former Democratic candidate Congressman Dennis Kucinich had seen a UFO (Unidentified Flying Object).

Foser says, “It's easy to imagine one excuse some journalists will offer for ignoring these matters: The American people just don't care about habeas corpus and wiretapping. They care about ‘likeability’ and whether they'd enjoy having a candidate ‘in their living room’ for the next four years and whether candidates are ‘comfortable in their own skin’. They just don't care about things like the Constitution. That's bunk. Pure bunk, as recent polls demonstrate.”

He cited a poll conducted for the American Civil Liberties Union (ACLU), in which 61 percent of Americans said they think the U.S. government should have to get a warrant before wiretapping conversations between American citizens and people in other countries, and majorities of American voters want the next president to restore habeas corpus, close Guantanamo Bay, not allow the president alone to determine who is an enemy combatant, and end torture as U.S. policy.

“The American people take these things seriously,” he said. “It's time for the journalists who determine what the candidates have to talk about to begin to take them seriously, as well.”

Right. When pigs fly!

Tuesday, March 04, 2008


By William Fisher

In this space a few weeks ago, I ranted about the sleep-inducing irrelevance of the so-called “debates” among the presidential wanabees. I vowed never to watch another. But, like some mega-testosteroned dude lusting after a Dallas Cowboys cheerleader, my resolution collapsed in a wonky heap.

And I ended up watching all twenty!

So what did I hear?

Puerile arguments about Experience versus Change. Fighting Special Interests. Politics-as-usual versus magically creating some kind of national consensus accompanied by “Celestial Choirs.”

Dumbed-down soundbites about Health Care. Jobs. Gas prices. The mortgage crisis. NAFTA. The Iraq War. The Global War on Terror. Each candidate would, of course, solve each of these problems with dispatch – especially if the phone rang at three in the morning.

Are these important issues? Sure. But the notion of laying out real policies in 90 seconds is patently absurd. The demeanor of the candidates was more about burnishing their presidential personas than about how they would deal with these incredibly complex problems. Their rhetoric was less about telling us their solutions than about a race to the bottom.

But the candidates are not the sole culprits in this performance of Kabuki Theater. A large part of the responsibility for the irrelevance of most of these “debates” rests with the well-coiffed TV anchors and less spiffy print journalists who hosted them.

After all, they and their producers are the ones who came up with the formats. And they’re the ones who carefully crafted the “gotcha” questions.

Their consuming interest is not about helping to inform the American people. It’s about ratings, which means money. It’s about rushing to print with self-laudatory press releases, which means celebrity and notoriety. And more money.

But the most maddening part of these quadrennial spectacles is what was never asked or answered.

For the past seven-plus years, we’ve had a president who, with the stroke of a pen, has decided which parts of which laws he would obey. Yet a new study by the watchdog group “Media Matters for America” reported that Democratic and Republican candidates have been asked few if any questions about the limits of executive power, the checks and balances of the Constitution, torture, wiretapping, and a ton of other civil liberties concerns.

For the past seven-plus years, we’ve had a president who has trashed science about stem cell research, about Terry Schiavo and end-of-life issues, about humankind’s role in creating greenhouse gasses, and about the efficacy of “abstinence only” programs.

For the past seven years-plus, we’ve had a president who cozied up to ruthless dictators so long as they promised to partner with us to defeat the jihadists.

A president who struck back at Afghanistan, the safe haven of those who attacked us on 9/11 – and then took his eye off the ball by ignoring the United Nations and invading Iraq on the basis of over-hyped and bogus “evidence.”

A president who gave us Abu Ghraib and Guantanamo and secret CIA prisons and waterboarding.

A president who has acted as if ethnic profiling didn’t exist and the race issue was solved by Abraham Lincoln.

A president who piously pronounced his approval of a two-state solution to the Israeli-Palestinian disaster, inserted a caveat about how the parties have to adjust to the new realities on the ground (encouraging still more Israeli settlements), and then waited until his legacy-building last year in office to take any affirmative steps to solve this 45-year-old travesty.

A president who has appointed grossly unqualified party cronies to run our government.

A president who has seen the most precipitous worldwide collapse of respect for America in our history.

Yet, by my count, there has been only one question about wiretapping. One about global warming. One about how to bring an end to the Israeli-Palestinian disaster. And there has not been a single question about the Foreign Intelligence Surveillance Act. Or renditions. Or habeas corpus. Or torture. Or whether telecom companies should be granted retroactive immunity for their role in domestic spying. Or stem cell research. Or America’s public diplomacy strategy. Or about any of the plethora of issues whose solutions will influence the contours of our society and help determine our place in the world for the generation to come.

Instead, we were treated to such inconsequential distractions as the truly intellectually challenging colloquy about whether Senator Obama simply denounced the praise he got from Louis Farrakhan or both denounced and rejected it. (He chose the twofer.)

Someone once defined leadership as telling us not what we want to hear but what we need to hear. By that standard, the candidates, the debate hosts, and the media who reported the debates, have all been an embarrassing failure.

Don’t our voters deserve a lot better?

Sunday, March 02, 2008


By William Fisher

In January 2006 – on the heels of reports of widespread incompetence, injustice, and political cronyism among the judges who decide the fate of thousands of immigrants seeking asylum in the United States – the then Attorney General, Alberto Gonzales, announced a sweeping review of the entire asylum process. Six months later, Gonzales mandated a series of new guidelines and initiatives to improve the system and said he was “reassured of the talent and professionalism” of the judges and the fairness of the system.

But today, more than two years later, immigration law experts and human rights advocates charge that there has been little real change. They say that people forced to flee to the U.S. to escape torture and political or religious persecution continue to face a deeply flawed, ideologically-driven, and bureaucratically daunting process that is more likely than not to order them back to the countries from which they fled.

Prof. Philip Schrag, an immigration law expert and professor at the Georgetown University law school, told IPS, “The attorney general declared that the objective of improving the process had been met, but stated no specifics, and I am not aware that anything has changed in practice.” Schrag is one the three authors of “Refugee Roulette,” a 2007 landmark study of the shortcomings of the U.S. asylum system.

Among Gonzales’ instructions: Periodic performance evaluations to review the work of each immigration judge and member of the Board of Immigration Appeals; an immigration law exam to ensure that all immigration judges are proficient in the key principles of immigration law; and increased funding to hire more immigration judges, staff attorneys and judicial law clerks; and technological improvements to increase the Immigration Courts’ ability to record, transcribe, and interpret court proceedings.

Given America’s current anti-immigrant environment, the asylum issue is seen by elected office-holders and government officials as a political third rail that receives scant attention from the media.

The issue flared up again briefly last spring. In connection with the firestorm accompanying revelations of the DOJ’s firing of eight U.S. Attorneys, a Bush appointee, former DOJ aide Monica Goodling, told the House of Representatives Judiciary Committee that she "crossed the line" in considering political affiliation for several categories of career applicants at the DOJ, including immigration judges.

But even before Goodling’s explosive testimony, Bush-appointed DOJ lawyers said they had considered political affiliation in screening applicants for immigration court judgeships for several years – until the department’s career lawyers objected. That could mean that the DOJ may have violated civil service laws, which prohibit political considerations in hiring.

In the two years preceding Goodling’s testimony, Gonzales appointed 49 of 226 current judges in the nation’s 54 immigration courts – many without any background in immigration law. They included a former treasurer of the Louisiana Republican Party, who was a legal advisor to the Bush Florida recount team after the 2000 presidential election, a former GOP congressional aide who had tracked voter fraud issues for the DOJ, and a Texan appointed by then-Gov. George W. Bush to a seat on the state library commission. Many others among the nation's more than 200 immigration judges lack immigration experience.

The result – coupled with what has been termed a Byzantine adjudication process – is that asylum seekers face huge disparities between courts and even among judges in the same courts. Prof. Schrag’s study found that their fate is being influenced less by the merits of their claims and more by such factors as the location of the court and the gender and professional background of judges.

While immigration officers at Citizenship and Immigration Services, part of the Department of Homeland Security (DHS) have the authority to grant asylum, the majority of asylum cases are referred to and decided by the immigration judges.

If an asylum-seeker’s claim is rejected by the immigration judges, it can be appealed to the Board of Immigration Appeals, whose members are also appointed by the Justice Department. If the claimant fails there, he or she can appeal their case to a U.S. federal appeals court. These appeals stand a far higher chance of being accepted if the claimant has a lawyer – but most asylum-seekers don’t have lawyers.

Federal judges have been among the harshest critics of immigration judges. For example, last year the Seventh Circuit Court of Appeals delivered another in a series of stinging rebukes to the immigration courts and Board of Immigration Appeals (BIA). They ordered a review of a case of a Lebanese asylum seeker and called for the DOJ to allocate more resources to ensure that immigrants receive fair review of their cases.

The asylum-seeker feared he would be persecuted if forced to return to his home country. His case was first denied in immigration court in 2005. After fighting broke out in Lebanon between Israel and Hezbollah-blocked insurgents in 2006, he attempted to reopen the case based on changed country conditions. The BIA denied his motion to reopen, declining to give due weight to the changed circumstances.

A Seventh Circuit judge wrote, "The petitioner's evidence concerned dramatic, portentous events that had occurred after the administrative record was closed, and so could not have been discovered before the July 2005 hearing." The judge said, “The Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions."

Last year alone, the Seventh Circuit has overturned two other BIA decisions on grounds that the board failed to give reasoned consideration to post-hearing evidence.

The BIA’s decision-making process is among Prof. Schrag’s principal concerns. He told IPS, “The BIA has moved steadily away from summary affirmances, but they have been replaced mainly by one-judge brief decisions, a conclusory paragraph rather than a few pages, so in many cases they don’t really deal with the losing party’s arguments.”

The “Refugee Roulette” study analyzed 140,000 decisions by immigration judges over four years, including those cases from the 15 countries that have produced the most asylum seekers in recent years, among them China, Haiti, Colombia, Albania and Russia.

The study found vast differences in the handling of claims with generally comparable factual circumstances. In one of the starker examples cited, Colombians had an 88 percent chance of winning asylum from one judge in the Miami immigration court and a 5 percent chance from another judge in the same court. It also found that someone who has fled China in fear of persecution and asks for asylum in immigration court in Orlando, Fla., has an excellent — 76 percent — chance of success, while the same refugee would have a 7 percent chance in Atlanta. Similarly, a Haitian seeking refuge from political violence is almost twice as likely to succeed in New York as in Miami.

The study also found wide variations in decisions based on the judge’s gender and by judges in the same location. For example, one male immigration judge currently on the Miami court granted only three percent of the asylum cases he heard -- the second-toughest judge in the nation on asylum issues. A female judge, who hears cases at the Krome North detention center in Miami, granted 59 percent of the asylum claims she considered, placing her in the top 15 percent of judges approving such claims.

According to Prof. Schrag, “It is very disturbing that these decisions can mean life or death, and they seem to a large extent to be the result of a clerk’s random assignment of a case to a particular judge.”

This ball is now squarely in the court of Michael Mukasey, our newest AG. We wonder if he’ll defy the third rail and actually get something done.

Watch this space.

Saturday, March 01, 2008


By William Fisher

At his news conference earlier this week, President Bush was in his relentless mode in insisting that the failures of Congress to pass a new domestic surveillance law put us all in dire peril.

There Will Be Blood,” he seemed to be warning. The critical intelligence we’ve already missed while our lawmakers bicker will never come back. We just won’t know if another 9/11 is being hatched somewhere in the world.

Be afraid. Be very afraid. That was Mr. Bush’s message.

But, in case you’ve only been reading the mainstream press, you might not know that there are many veteran counter-terrorism experts and legal scholars who aren’t buying Dubya’s rantings.

Four of them recently wrote to Admiral Mike McConnell, the Director of National Intelligence, to assert that “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”

The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).

As we all know, this latest controversy was triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.

A similar bill passed by the House of Representatives but the House version did not provide such immunity.

Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.

Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.

Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.

Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."

He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."

The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."

The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”

They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."

They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.

They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”

Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”

Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.

Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.

Typical is Prof. Peter Shane of the University of Ohio law school, told IPS, “Bush's position is senseless.”

He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”

His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told IPS, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”

And by Georgetown law professor David Cole, one of the nation’s preeminent Constitutional scholars. He told us: “The Bush administration has only itself to blame if there were any national security consequences from the sunsetting of the Protect America Act, as the Democrats were willing to extend the sunset until a workable compromise on permanent legislation could be worked out. If the Bush administration's national security claims are to be believed, then, it is the administration that has decided to play a game of chicken with our security. In fact, all taps authorized under the PAA will continue in place, and FISA permits the administration to place new taps on any newly identified terrorist, so there is no national security risk presented.”

But how about the poor telecom companies? Well, the question we put to Prof. Cole was this: “Wouldn't you think someone in the army of telecom lawyers understood that what the president was asking them to do was illegal and in violation of the FISA statute?”

His answer couldn’t have been more Gary Cooperish: