Monday, June 09, 2008 - Posts
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I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.
Here's what I just read. Story No. 1 in (take your pick) Newsweek, Time, the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek:
Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.
The ACLU's Hina Shamsi adds: "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.
Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here. Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.
Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?
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The Urtext of Rick's pseudo-anti-intellectual anti-pseudo-intellectualism is, as he notes, Orwell's famous essay "Politics and the English Language," possibly the worst thing Orwell ever wrote, which, depending on how you read it (it's not very well written), argues:
1. People should write clearly rather than badly. —Thanks for that.
2. Bad writing conceals bad ideas. —Perhaps, but if so, it is self-limiting. No one who starts reading the five examples of bad writing provided by Orwell could possibly finish them; so, what have their authors accomplished? We should instead condemn people who by writing excellent prose make bad ideas sound good. The prototype here is Leni Riefenstahl, not Harold Laski. People with bad ideas who can't express themselves persuasively also can't have any influence.
3. People will support brutal military actions and other acts of injustice if the government uses bureaucratese ("a pacification campaign") rather than plain language ("slaughter of innocents") to refer to it. —The trick here is to insist that governments that believe they have good reasons to choose a policy that is regrettably but unavoidably brutal speak as if they are delighted by the brutality. This has nothing to do with clarity in the use of language, nor would any reasonable government engage in such self-defeating conduct.
Jargon, stale metaphors, empty rhetoric—all serve important purposes even if they can be misused. Politicians can rarely speak clearly because they must keep together diverse coalitions in a heterogeneous society. They avoid certain words and redefine others to avoid legal categories or moral taboos that interfere with good policy. Government officials, academics, and other specialists improve communication among themselves by using technical words with stable definitions. That these words, through repetition, lose their emotional impact is hardly surprising and probably beneficial, for it allows experts to maintain emotional distance when pondering sensitive issues of great complexity.
If politicians, bureaucrats, and intellectuals always spoke plainly, would the world be a better place? Would we all choose wiser policies if we said fetus-killing for abortion, war against radical Muslims for war on terror, and employment advantages for minorities for affirmative action? I doubt it. The contrary view depends on a sentimental, un-Orwellian (not in that sense of Orwellian) assumption that we'd all agree on everything if we just spoke plainly. Not until the revolution! Bad writing is bad, and bad politics is bad, and someone who puts bad writing to the service of bad politics commits a double offense against ethics and taste, nothing more than that. And they should at least get points for weakening the force of their own arguments.
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There has been a spate of stories in recent days endlessly recounting, parsing, and debating a long series of statements by Sen. McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the president has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.
The whole sordid timeline is provided in this Jake Tapper blog post, appending the McCain campaign's latest, even-more-ambiguous flip-flop.
Personally, I don't think the great debate about what McCain really thinks about the question is worth the candle. If one examines the entire series of statements, it soon becomes evident either that the senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal, and contradictory as possible so that they can embrace whichever view is politically expedient at any given time and with any given audience. ...
... continue reading at Balkinization.
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Today's Wall Street Journal carries an interesting article ($) about the string of senior corporate officials recently detained while entering the United States. European officials are upset over what they perceive to be a broadening of American police powers in the context of the war on terrorism—and the use of these powers against European citizens. The Journal reports:
In what has become a longstanding charge that the U.S. isn't upholding European privacy standards in trans-Atlantic matters, European civil-liberties groups and government officials have expressed misgivings over rules instituted after the Sept. 11, 2001, terror attacks that require airlines to submit the names of passengers heading to the U.S.
The names are checked against watch lists maintained by government-security agencies. The process was enhanced to prevent terrorists from entering the country, but also aids law-enforcement agents working on criminal investigations. Federal agents who want to question a traveler can use government databases to learn when a potential target is entering the country.
Fears about the U.S. use of this data were rekindled in recent weeks after executives and employees from defense contractor BAE Systems PLC and Swiss bank UBS AG, were briefly detained by federal investigators related to separate bribery and tax probes.
... Stewart Baker, the DHS's assistant secretary for policy, defends U.S. privacy protections and in particular its collection of passenger data. "It is unfair to assume that this information originally was gathered only for antiterrorism purposes, or that it is being misused if it is used in criminal investigations," he said.
I had two reactions to this story and the earlier news about these corporate arrests. The first was that the system seems to be working. According to the 9/11 Commission report, various U.S. databases contained negative information on roughly half of the 9/11 hijackers—yet all were allowed to fly. Today, one agency conducting an investigation is able to coordinate with another agency and flag a specific individual for detention and/or questioning. Setting aside all of the many problems with false positives, overreaching investigations, and the other important issues of due process here, I think this represents a quantum leap forward for law enforcement.
Second, and more broadly, I think this illustrates the extent of what Jack and others call the "national surveillance state" and the total inability of a citizen to avoid the state's surveillance if he/she wants to live a modern life. If you want to travel, use mass transit, enter a public building, use a public road, or use global communications, then you effectively must submit to some level of state surveillance. In practical terms, Fourth Amendment carve-outs like the "regulatory exception" and the "consent exception" now swallow the rule, because no modern person can live without submitting to this regime.
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