Arms and influence

Now hear this

Some excellent podcasts recently that deserve your attention:

• From This American Life, the most screwed-up terrorism prosecution imaginable. It's so screwed up that it's hard to figure out exactly what happened.
• Also from This American Life, a journalist discovers that he's the target of a warrantless wiretap.
• From Spycast, the International Spy Museum's podcast, a veteran counterterrorism professional talks about the nature of the terrorist threat and the self-imposed problems the United States has in fighting it.

There's a common theme among these three podcasts. Whoever the next President will be, whatever the face of the next Congress, the question people will be asking in 2009 is, "How on earth did we waste eight years combating terrorist groups? And how do we hold people accountable for screwing around?"

Leviathan in Afghanistan

I guess Scalia wasn't kidding when he said that the Guantanamo Bay prisoners should count their lucky stars that they weren't in a different US facility, such as Bagram Air Base in Afghanistan.

American soldiers herded the detainees into holding pens of razor-sharp concertina wire, the kind that's used to corral livestock.

The guards kicked, kneed and punched many of the men until they collapsed in pain. U.S. troops shackled and dragged other detainees to small isolation rooms, then hung them by their wrists from chains dangling from the wire mesh ceiling.

Former guards and detainees whom McClatchy interviewed said Bagram was a center of systematic brutality for at least 20 months, starting in late 2001. Yet the soldiers responsible have escaped serious punishment.

The theme du jour here at Arms and Influence is the price we pay when we play games with the Constitution. Nothing about the 9/11 attacks, or anything that has happened since, has merited a revision of over 200 years of Constitutional interpretation. For example, as I said in the earlier post about Scalia's dissent in the Bournediene decision, the justices who arguing that the executive branch can make up any  criminal procedures it damn well pleases, when handling foreign prisoners in foreign lands, won't find any support in the Constitution itself. Nor will Scalia find support, in the Constitution or Federalist papers, for his peculiar argument that, if the Congress and President agree on how to treat these prisoners, the judiciary has no right to review and possibly overturn these policies.

We need these restraints in place to protect us from ourselves. During frightening times, the laws should keep us from doing stupid things. During wartime, the Constitution still applies, and the Supreme Court still has a role to play, other than stepping aside to let the President do anything he deems necessary to protect American lives.

Often, these measures to protect Americans do exactly the opposite. You can go back to Hobbes and Locke for the Ur-arguments about how, without "civil society," people are bad judges of cases in which they have been wronged. We're not in a state of nature today--nor should we construct one, in the name of defending ourselves. We should be preventing the mistreatment of Americans as prisoners. We should be robbing our adversaries of arguments that the United States is a brutal, imperialist power. And we should be preventing another terrorist attack on the United States. These are all compatible objectives.

Swaggering know-nothings who like to cite books they have not read will often pull out Machiavelli's famous dictum that it is better to be feared than loved. However, it's important to read hos whole argument, which Machiavelli, being a good writer, summarizes in the concluding paragraph of that section of The Prince:

Returning to the question of being feared or loved, I come to the conclusion that, men loving according to their own will and fearing according to that of the prince, a wise prince should establish himself on that which is in his own control and not in that of others; he must endeavour only to avoid hatred, as is noted.

Which is why the title of the book is The Prince, not The Thug.

[Thanks to Steve Taylor for the original link to this news story.]

Our Britannic cousin

There's a good post over at Lawyers, Guns, and Money about British Prime Minister Gordon Brown's woes in passing a new counterterrorism law. Because the British have a long and painful history of grappling with terrorism from both domestic and foreign sources, they have a lower tolerance for BS.

Scaliaaaaaa, I just met a thug named Scalia...

The Bournediene decision may have restored habeas corpus, but it is not the end of the argument over how the US government should be treating prisoners at Guantanamo Bay and other prisons around the world. For example, there are still the four Supreme Court justices who didn't agree with the Court's decision. It's worth understanding what's on their minds in any future national security cases before the Court.

Rather than read about the Bournediene decision, go read it. Analyses like this one are interesting, but there's no substitute for reading the Court's own ruling, including Scalia's dissenting opinion. Some of Scalia's assertions include the following:

• Habeas corpus has never extended to people who are not US citizens.
• Many former prisoners, soon after release, return to the battlefield.
• The prisoners at Guantanamo Bay were lucky to be there, instead of a worse facility in Afghanistan or wherever the US military grabbed them.
• If we give prisoners a fair trial, we risk exposing "sources and methods" during legal discovery.
• Congress and the executive branch already decided that things like indefinite detention and military courts are necessary, so who is the Supreme Court to say otherwise?

It's tempting to knock down each of these points, one by one. For example, there's no substantiation that 30 former "detainees" went straight back to killing Americans. (The Washington Post article cited, for example, identifies only 10 former prisoners.) And if recidivism were a reason to keep people in prison forever, the number of prisoners in American jails would explode even more than it has already.

Unfortunately, a point-by-point refutation can't possibly fit into one blog post, and in any case, we can focus on at least one of Scalia's most egregious and frightening Constitutional misreadings. The Bournediene case includes the latest in a series of Scalia assertions that the judicial branch has no right to check the actions of the executive during wartime.

Here's Scalia in full sneer:

But so long as there are some places to which habeas does not run—so long as the Court’s new “functional” test will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.

Leaving aside the absurd claim in that last sentence, the rest of the paragraph demands serious rebuttal. I can think of no better person to refute Scalia than James Madison:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers

That quote from the Federalist Papers establishes the principle of overlapping powers. But how does that apply to jury trials? Happily, another author of the Federalist papers, Alexander Hamilton, addresses just this point:

A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge THE POWER of the legislature to exercise that mode if it should be thought proper. The pretense, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretense destitute of all just foundation.

In other words, the other branches of the government, both state and federal, might decide to change the civil courts. They cannot, however, change the nature of the criminal courts. The argument in Bournediene, Rasul, and Hamdan is not over the right of the executive branch to implement whatever criminal courts it wants, because that right does not exist. Instead, these cases are, according to the Constitution and  supporting documents like The Federalist Papers, the conformity of these courts to basic Constitutional principles.

Yo ho yo ho, a prison hulk for me

There are many things you just assume don't exist any more. Imagine your surprise if you round a corner and bump into a triceratops, or a trubechet, or a priest of Baal.

That's pretty much the feeling that I had yesterday, reading about the US government's use of warships as temporary prisons. in other words, the US government has revived the old practice of keeping people locked up in prison hulks, a contemptible practice that we thought disappeared with the Age of Sail.

To be fair, the story so far is about temporary imprisonment, not the years that prisoners spent on prison hulks in past centuries. Still, the practice makes sense. The US government need ways to move prisoners from point A (Afghanistan) to point B (Diego Garcia, near the Bay of Bengal), preferably in ways that concealed their identities, numbers, and locations.

Many elements of the story make a perverse sense. The two ships cited, the USS Peleliu and the USS Bataan, are amphibious assault ships, built to transport large numbers of people. Moving these ships into international waters may confuse the legal strictures on the treatment of these prisoners, in the same fashion that the Department of Justice argued to the Supreme Court that Guantanamo Bay was holding people who were not prisoner of war in a place that wasn't within US jurisdiction.

Rather than saying, "imagine your surprise," perhaps I should have started this post with, "If we exercised our imaginations a little bit, we wouldn't be surprised." The course of the Bush Administration's counterterrorism policies leads naturally to a ship full of prisoners, floating in the vastness of the Pacific.

Softies

There are two levels to this news story about US interrogators at Guantanamo Bay "softening up" Uighur prisoners before handing them over to the Chinese. First, of course, there's the fact that we are handing them over to the Chinese, even though we know that the majority of prisoners in Guantanamo Bay shouldn't be there in the first place.

Second, there's the equally uncomfortable question, if the Chinese were not holding a huge amount of the US government's staggering debt, would US officials be transferring these prisoners into Chinese custody at all? If US foreign policy is at all being distorted by this debt burden, the next President and Congress need to make the reduction of this debt a high priority.

Bad trip

The excellent Washington Post series about the medical mistreatment of foreign prisoners continues. Today, we hear details about the regular injections of psychotropic drugs to keep prisoners sedated during transport.

Such episodes are among more than 250 cases The Washington Post has identified in which the government has, without medical reason, given drugs meant to treat serious psychiatric disorders to people it has shipped out of the United States since 2003 -- the year the Bush administration handed the job of deportation to the Department of Homeland Security's new Immigration and Customs Enforcement agency, known as ICE.

The Post first published a related story a couple of weeks ago. Rumors of these techniques have been around for a few years. Eventually, perhaps, we'll hear about the qualifications of the people who developed the "cocktail" and administered it.

If A then B then C

Patrick Radden Keefe's article in The New Yorker, "State Secrets," is a must-read. Even if the case of Pete Seda and the Al Haramein charity were not representative of federal prosecutions of people with "links" to terrorist groups, their story raises some important points:

• How many Americans are aware that the US government is claiming these powers? While I was at the Newseum this week, I enjoyed the displays that tested your knowledge of the Constitution and the Bill of Rights. The punchline, of course, was that the average American has a weak grasp of Constitutional protections and imperatives. How many Americans, therefore, know the Constitutional details that the executive branch may be violating through its counterterrorism policies, let alone the policies themselves?



• How much backlash are these policies creating? Even if you buy into the Cheneyesque "1% solution" approach to counterterrorism, anecdotes like the Al Haramein case may be raising the risk of terrorist attack beyond that 1%.

It's worth chewing on that second question a bit more. Federal prosecutors are pursuing the same maximalist strategy as other members of the executive branch. (And for many of the same reasons, which have as much to do with ass-covering as genuine fear of terrorist attack.) The natural result is the aggressive suspicion of "links":

In designating Al Haramain Oregon, Treasury Department officials cited “direct links” with Al Qaeda, but have never revealed the precise nature of those links. Stinebower, the former Treasury lawyer, said she was unaware of any internal definition of “direct links.” She wouldn’t discuss the particulars of the Al Haramain designation, but did say, “It wouldn’t have been sufficient that A picks up a phone and calls B, and B picks up a phone and talks to C, therefore A knows C. There would have to be more of a connection than that.”

There's another way of looking at these links: If federal prosecutors seize the assets and indefinitely imprisons A because B knows C, then there's a risk, however small, that A will actually look at C more sympathetically.

According to the Administration's own 1% logic, that's a risk that the nation should not bear.

"Dogs get better care"

The next President of the United States needs to earn some international goodwill fast. It's going to take a while to clean up the messes from the current Administration.

The latest example is the medical treatment--or lack thereof--of detainees in the custody of the Division of Internee Health Services (DIHS), a branch of the lobotomized giant, the Department of Homeland Security. According to today's Washington Post, prisoners jammed into a variety of prison facilities scattered across the United States are, surprise surprise, don't get adequate medical care. Some prisoners have died for want of simple, inexpensive treatment.

Secrecy can be just a veil disguising incompetence, corruption, and failure. (Immigrants from the former Soviet Union can tell you a thing or two about this topic.) In this case, the increased strictures for detainees--more limited access to lawyers, or anyone on the outside--has helped hide the lack of medical care for people we casually keep in indefinite custody. And, of course, we're not talking about people who are major threats to US national security:

But they are not terrorists. Most are working-class men and women or indigent laborers who made mistakes that seem to pose no threat to national security: a Salvadoran who bought drugs in his 20th year of poverty in Los Angeles; a U.S. legal U.S. resident from Mexico who took $50 for driving two undocumented day laborers into a border city. Or they are waiting for political asylum from danger in their own countries: a Somalian without a valid visa trying to prove she would be killed had she remained in her village; a journalist who fled Congo out of fear for his life, worked as a limousine driver and fathered six American children, but never was able to get the asylum he sought.

As with all longer news articles, you have to read far beyond the first paragraph to find the important details. For example, it's worth doing a quick calculation of how much per capita this part of DHS is spending on these prisoners' medical care, and then compare it to how much US prisons spend on their prisoners:

• For people who are not guilty of any crime other than being in the United States illegally: about $286 per prisoner. (That's the size of expenditures cited in the article, divided by 311,000 prisoners.)
  
• For prisoners in US state facilities, guilty of everything from petty theft to murder: between $1,000 and  $4,000 per prisoner, depending on the state. (Those numbers come from a 2001 Department of Justice report.)

Unfortunately for American prestige, people in other countries can do the math, too.

And, of course, there's the tragically familiar story of an under-qualified person in charge of a government agency with life-and-death responsibilities. 

The new boss is LaMont W. Flanagan, who brought with him the credential of having been fired in 2003 by the state of Maryland for bad management and spending practices supervising detention and pretrial services. An audit found that Flanagan had signed off on payments of $145,000 for employee entertainment and other ill-advised expenditures. His reputation was such that the District of Columbia would not hire him for a juvenile-justice position.

If those details don't worry you, click here for an article critical of Flanagan's handling of Baltimore prisons.

It won't be easy to fix the DIHS. The US government could save a lot of money, simply by releasing prisoners...But, of course, there are the inevitable political repercussions. The federal officials might try to bring up the level of funding and staffing for the DIHS, but where will they find the money? And where will they find a better-qualified person willing to take on the thankless job of heading the DIHS?

Mister or Madame President-To-Come, godspeed to you.

Watt the heck?

The bad news: A security consultant found it absurdly easy to hack into a power company network, gaining enough control to shut down the grid.

Ira Winkler, a penetration-testing consultant, says he and a team of other experts took a day to set up attack tools they needed, then launched their attack, which paired social engineering with corrupting browsers on a power company's desktops. By the end of a full day of the attack, they had taken over several machines, giving the team the ability to hack into the control network overseeing power production and distribution.

The good news: There probably aren't all that many people out there attempting these types of attacks. Plus, it's unlikely that foreign terrorists would have the same social engineering savvy, and other required skills, to pull off this sort of attack. (Domestic terrorists, on the other hand...)

Remember a few years ago, when we were all supposed to be quaking with fear about cyberterrorists bent on trashing our banks, military networks, and, yes, the power grids? Certainly, cyberterrorism does exist, but not at the scale, or perhaps of the type, that many initially feared. For a recent example, see the hacking of web sites supporting the Tibetan protests.

State-sponsored cyberterrorism might be a much-bigger threat than Al Qaeda hackers. For example, the Chinese army has been increasing investment in its information warfare units. It's hard to gauge the real size of the threat, or how seriously the PLA contemplates using it. However, it's a lot more plausible than the sort of Islamist cyberterrorism that, thankfully, is confined to bad thrillers like 24.

Still, about those security vulnerabilities in the power industry...Yikes.