Arms and influence

Casual Friday: Leonard Cohen's ode to democracy

If you've never heard Leonard Cohen's "Democracy," I urge you to click this link to the official video on YouTube. It seems strangely relevant these days.

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.]

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.

Public diplomacy 101

You're campaigning to be President of the United States. Your campaign tells you that a Christian minister who is supporting you once called Islam as a "conspiracy of spiritual evil," and regularly makes similar disparaging remarks about that religion.

You know that, if elected President, Muslims around the world will remember how you handled this situation. What do you do?

(A) Drop him faster than a greased bowling ball.
(B) In preparation for the inevitable press conference, craft a statement that rejects the minister's words without denouncing the minister personally. (Kinda like, "Hate the sin, love the sinner.")
(C) Describe the minister as "one of the truly great leaders in America, a moral compass, a spiritual guide."

Sigh. Sadly, McCain answered C. After eight years of not-even-half-baked efforts at public diplomacy with the Islamic world, McCain isn't exactly signaling that he'll do a substantially better job.

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.

Our American relative

Being in Washington, DC has certainly helped me get blogging again. New York may be grand; San Francisco, vibrant; Savannah, welcoming; or Chicago, muscular. No city in the United States can match Washington for its power to inspire.

Visiting the Newseum, the new museum of journalism, was an unexpected pleasure. I was braced for a lot of superficial, self-congratulatory pap. Sure, that did appear in the occasional nook or cranny (or multi-screen, Jumbotron-delivered montage), but by and large, the real theme of the Newseum is the Bill of Rights.

You get to see every point on the continuum of liberty, from old copies of the Catholic Index to the fall of the Berlin Wall. In fact, the extremely helpful guides suggest that you start at the bottom of the multi-story Newseum, which includes sections of the Berlin Wall and, more disturbingly, one of the guard towers that used to keep East Berliners from escaping to West Berlin.

Of course, the entire landscape of Washington, DC, is its own memorial to liberty. Not just the monuments, but the office buildings themselves, suggest important moments in American history, and the daily work to keep the American republic going. Here is the place where Martin Luther King gave his most famous (but not necessarily his best) speech. Here is the Carnegie Endowment for International Peace.

As difficult as the last several years have been, it's moments like these that remind me how much I love America. At its best moments, the United States has encouraged the conviction that everyone in this country is part of the same family, and that people abroad are just our distant cousins. All of them deserve the best treatment we can give.

Love of America is tricky. You can't govern the American family by imposing sentiment, as if our public moments were like an uncomfortable holiday gathering. Everyone must say the right things. Everyone must sit in their proper place. Don't mention any uncomfortable truths, for fear that these moments of manufactured amity will shatter.

Loving America is more like embracing a difficult relative. At times, it will do and say stupid things. The misbehavior might grow to such alarming proportions that you begin to question whether redemption is possible. Still, you persevere, in the hopes that things will get better. The brother who is skipping from one dead end job to another has an epiphany about how much better his life might be. The alcoholic aunt, at long last, checks into the rehab center. The United States decides that fear is not the best guide to domestic or foreign policy.

Love demands faith. In fact, love is faith. Not the type of faith that demands you believe in the unprovable, or the ridiculous, in the fashion of credo quia absurdum. Faith, in this sense, means the compulsion to do good, to persevere even in the face of your own incredulity.

This is the kind of faith shown, in the New Testament, by a Roman soldier who asks Jesus to cure his sick servant, even though he does not believe that Jesus has supernatural powers. Still, he must try any way he can to help his servant, which leads Jesus to comment, "Assuredly, I say to you, I have not found such great faith, not even in Israel!"

Even for the unchurched, such as myself, you can see the secular equivalent of this story.

We need many Madisons

I just finished Imperial Life In The Emerald City. You can never read enough about Iraq, since the catastrophe is larger than any single book can encompass. I'll have more to say about this book later, but one passage in particular stood out. The author, Rajiv Chandrasekaran, quotes an e-mail written by John Agresto, the person given the thankless task of reviving Iraq's higher education system, with no budget, in a country scarred by war and despotism. The e-mail was Agresto's bitter farewell to the Coalition Provisional Authority (CPA) at the end of his tour in Iraq:

America's been so successful at being a free and permanent democracy that we think democracy is the natural way to rule--just let people go and there you have it: Democracy. But all the ingredients that make it good and free--limited government, separation of powers, checks and balances, calendared elections, staggered elections, plurality selection, differing terms of office, federalism with national supremacy, the development of a civic spirit and civic responsibility, and above all, the breaking and moderating of factions--all this we forgot about. We act is if the aim is "democracy" simply and not a mild and moderate democracy. Therefore...we seek out the loudest and most virulent factions and empower them...

We, as a country, don't have a clue as to what has made our own country work, and so we spread the gospel of democracy-at-all-costs abroad. Until this country can find a Madison, it would be far better off with just a good ruler.

Agresto's frustation may have gotten the better of him. He overlooked the even larger tragedy: not all Americans would have handled Iraq in this fashion. Unfortunately, those ultimately in charge of the invasion and occupation didn't believe in the principles of "mild and moderate democracy" Agresto describes.

• Instead of limited government, we got a president who claimed the unlimited powers of a "unified executive," with war powers that do not exist in the Constitution.
• Instead of a separation of powers, or checks and balances, we had several years of Republicans in the White House, Senate, and House of Representatives who were (with a nod from a few members of the Supreme Court) eager to put all branches of government under the ultimate authority of the Presidency.
• Instead of the defense of the system of elections that has withstood two centuries of turbulent American history, we had people in the White House, Congress, and the Republican Party drooling over the idea of a permanent Republican majority.
• Instead of the development of civic spirit and civic responsibility, we got a leadership clique who shoved aside the qualified to hire the loyal, and who encouraged Americans to be uninvolved, as if we could defeat Al Qaeda by shopping at the mall.
• Instead of "above all, the breaking and moderation of factions," we had "leaders" who encouraged phony Red/Blue divisions; who were happy to fill the airwaves with shouting instead of discussing; who tried to make Americans believe that they should be as afraid of their next-door neighbors for having principled policy disagreements as they should fear young men willing to crash airliners into skyscrapers.

Mr. Agresto, the foreign policy fruit does not fall that far from the political tree. Fortunately, it's not the only tree in the forest. The Iraq war is not an American tragedy, in which a country's fatal flaws lead to destruction. It is the heart-breaking story of a very small, angry, defensive, and inept part of the country that shunned all the rest, but who made all the rest of us (and the Iraqis) pay the terrible price.

The FBI's NSL FUBAR

To no one's surprise, the FBI abused the expanded powers for domestic surveillance granted by the PATRIOT Act.

In a review focusing on FBI investigations in 2006, Justice Department Inspector General Glenn A. Fine found numerous privacy breaches by the bureau in its use of national security letters, or NSLs, which allowed the FBI to obtain personal information on tens of thousands of Americans and foreigners without approval from a judge.

Why NSLs are a BFD
If you need a refresher, NSLs gave the FBI the ability to poke around your personal information, such as finances, e-mail, and telephone calls, without the approval of a judge, grand jury, or even a prosecutor. Worse, if you are involved in this collection--for example, as an employee of a phone company turning over your cell phone records--you could not discuss the NSL with anyone. No asking your supervisor or lawyer whether this request was proper and legal, and most of all, no telling the target about the records search.

In 2007, a federal judge struck down the NSL portion of the PATRIOT Act. However, the decision dealt with the principle behind NSLs; it did not answer the question, How often did the FBI abuse this power?

The Inspector General's report expands the story beyond the less-than-credible internal FBI investigation:

According to Fine's report, the FBI continued to rely heavily on national security letters in counterterrorism, counterintelligence and cybercrime investigations, issuing nearly 50,000 of the documents in 2006 alone. Nearly 200,000 were issued from 2003 through 2006, the report said, and were used in a third of all FBI national security probes during that time.

Even more important than the scope of abuse is its cause:

The pattern persisted in 2006, Fine concluded in the report issued today, in part because the FBI had not yet halted the shoddy recordkeeping, poor oversight and other practices that contributed to the problems. He also said it was unclear whether reforms enacted by the Justice Department and FBI last year will address all the issues identified by his investigators.

So much for technology
It's worth digging into some details of that "shoddy recordkeeping." A few years ago, you probably skipped any articles about the FBI's problems implementing a "case management system." However, this story, which got no attention outside a few journals that cover computer technology in the federal government, is perhaps one of the best examples of how things went horribly wrong with counterterrorism during the Bush years.

Since most people haven't heard of a case management system before, here's a quick explanation of what it is. Many legal and government jobs are all about opening and closing cases. For example, a lawyer needs an efficient way to collect and organize the information about a particular court case. At the same time, that lawyer's boss is scrutinizing how quickly and effectively the lawyer handles the case, so the case management has an important managerial function as well. The case management system, for everyone from trial lawyers to FBI agents, is where that person spends a large, important amount of time each day. (If you want more information about what these applications do, click here for the American Bar Association's ratings for various case management systems.)

For several years, the FBI tried, and ultimately failed, to implement a case management system. The following headlines from Government Computer News give a nice summary of what happened:

• FBI plans to build new case management system from scratch (12/30/04)
• Senators fume as FBI admits Trilogy foul-ups (02/04/05)
• Cold case (03/07/05)
• FBI takes another swing at case management with Sentinel system (05/24/05)
• Report: FBI ‘scrambling’ to launch case file system (06/06/05)
• Justice, FBI to overhaul fingerprint and case management systems (08/29/05)

As the FBI's case management project crashed into a brick wall, the FBI kept on issuing NSLs at a furious rate--200,000 between 2003 and 2006, according to the Inspector General's report.

Last year, the FBI finally announced that it was ready to launch the new system, six years after the 9/11 attacks. The old case management system, based on 1970s-era technology, was already a failure, since many FBI employees avoided spending time entering data into it. (That's a familiar problem, by the way, with many systems that ask people to stop what they're doing and type up their notes.) All talk about "service-oriented architecture features that facilitate information exchange among law enforcement systems" aside, there's still an open question about getting people in the FBI to use any system, new or old.

If this were the only example of information technology (IT) projects in the FBI that went south, you might chalk it up to bad luck, peculiar difficulties with this sort of system, or the team working on that particular project. However, the FBI has fumbled many IT projects, including the useless terrorist watch list database. In 2007, another Justice Department IG report found that the FBI was losing laptops at a rate of 2.6 per month.

So, let's summarize:

• The Bush Administration pushed to expand the warrantless surveillance powers of the executive branch.
• The "point of the spear," the FBI, has depended on antiquated systems to store, secure, and analyze this information--when FBI employees were using these systems at all.
• A major overhaul of the case management system, needed to track sensitive information collected via NSLs and other mechanisms, was a long, expensive failure.
• There's no evidence that the White House put pressure on the Justice Department to fix these problems.

Should the results be a surprise?

There are certainly people to blame, such as the Chief Information Officer of the FBI, Zalmai Azmi. However, as implied in the bulleted list above, it's also up to the President and his staff to pay attention to these details. It's also important for the US public to mind these details more carefully. Millions of taxpayer dollars spent, thousands of breaches of privacy, and not one terrorist attack stopped.

Flag hags

Whether or not you support Obama as your candidate, you have to respect his response to the Great Flag Pin Non-Issue:

Far more notable is Barack Obama's response to these depressingly familiar attacks. In response, he's not scurrying around slapping flags all over himself or belting out the National Anthem, nor is he apologizing for not wearing lapels, nor is he defensively trying to prove that -- just like his Republican accusers -- he, too, is a patriot, honestly. He's not on the defensive at all.

Finally. It's not just years, but decades overdue for a prominent political leader to take exactly this stand.

One day during my high school years, I chose not to rise for the Pledge of Allegiance. A daily compulsion to demonstrate my patriotism seemed wrong on the face of it. My fidelity to the United States, the republic for which the flag stands, should be assumed. The next day, I made the same choice. And you can guess what happened next.

The school was very uncomfortable with my stance. In only a day or two, nearly all my classmates and teachers knew I was the guy who wouldn't stand for the Pledge of Allegiance. Because they had to enforce pledge-making every morning, teachers had, by and large, a bigger problem with my stance than my fellow students.

The more that people showed their discomfort with the exercise of my liberties, the more I dug in my heels. The situation escalated to the level where the principal felt he should have a talk with me. To his credit, the principal tried to persuade instead of threaten me.

Once it became clear that I wasn't driving other students to join the Communist Party, and the angry fist of God wasn't going to descend on our school, the controversy subsided--at which point, on a regular basis, I started saying the Pledge again.

My concerns about flag fetishism continue, however. Clearly, there are unscrupulous people who use the flag as a club against their political opponents. The non-existent flag burning crisis bullied its way onto political stage during every major election in which I've voted. There's only thing more appalling than the transparent cynicism behind these anti-flag burning campaigns: the non-response on the other side.

Rather than duck silly questions about the flag, political leaders of any real merit should face them head on. They're the easiest questions of principle to answer:

I choose whether or not to wear a flag pin. That choice is my right. That choice is what makes this country great. Your concern is, perhaps, better directed towards someone who wants to remove that choice.

I love the United States. A few weeks ago, when my daughter and I were driving around Washington, DC, I felt my heart skip a beat when we passed the the Jefferson Memorial, the Smithsonian, and the Washington Monument. Nobody can force you to have that feeling--and no one should ever try.