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.
Wednesday, March 19, 2008
Tuesday, March 18, 2008
NEITHER SNOW NOR RAIN, ET CETERA
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.
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.
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
GOOD NEWS, BAD NEWS
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.
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.
GITMO PROSECUTOR TO TESTIFY FOR DEFENSE
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.
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.
McCAIN TURNABOUT
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.
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
IF IT BLEEDS IT LEADS
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 Mediachannel.org, 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 “WhirledView.com”. 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!
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 Mediachannel.org, 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 “WhirledView.com”. 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!
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