Padilla Loses - Five Years is "Speedy" Enough

Just because he has been incarcerated almost five years doesn't mean Jose Padilla is not getting a speedy trial. At least that's what the District Court in Miami ruled on March 23, 2007. The judge bought the Government's argument that the 3 1/2 years he was held without charges should not count against the Speedy Trial requirement contained in the Sixth Amendment to the Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Unfortunately for Padilla, and any of the rest of us who may find ourselves in the same situation, that quaint Constitutional provision doesn't mean you can't be held for one, two, three years, heck, indefinitely, without trial. It only means that if the Government ever decides to charge you with something, then at that point they have to start obeying the rules. As reported by AP,

U.S. District Judge Marcia Cooke agreed with prosecutors that Padilla's years in isolation at a Navy brig did not count because he had not yet been charged.

The criminal charges came when Padilla, a U.S. citizen accused of being an al-Qaida operative, was added to an existing Miami terrorism support indictment in November 2005. Only then did the clock start for the Sixth Amendment's right to a "speedy and public trial," Cooke said.

"I agree that the law in this case is that a criminal trial proceeding begins with the filing of the criminal process," Cooke said. "Mr. Padilla has been promptly brought to court in that matter."

(I have not found a link to the decision yet, but will update when I do.)

This is not a really unexpected decision since the Court of Appeals had issued an opinion in September, 2005 that his detention without charges was legal. But this latest opinion is another sharp stick in the eye of American Justice and Constitutional rights.

I should explain my real problem with this decision. I suspect that the judge was slavishly following the precedents which say that the right to speedy trial attaches only after charges are filed. Fine. But this case is different from the usual ones and those precedents could be distinguished.

Here we have a man who was arrested and detained for 3 1/2 years without any charges having been filed against him. All during this time he is portrayed as this highly dangerous individual who was on the verge of killing thousands. After 3 1/2 years he was finally transferred from military detention and charged, but only after it became likely that he was about to get a Habeas Corpus hearing. To make matters worse, when the charges against him were actually filed, no mention was made of the alleged reasons for his initial incarceration. Lastly, during much of this period he has been held in solitary confinement and possibly tortured.

Sure a judge can just look at the precedents and tell him he is out of luck. Or, the judge could simply blow the whistle on this outrageous conduct and say that enough is enough. The Government will not be allowed to treat basic principles of justice as if they are written on an etch a sketch board which can be erased and rewritten at the whim of his jailers.

Where is an "activist" judge when we need one?

Bush Doesn't Have A Leg To Stand On Regarding The Testimony Of White House Officials

There is so much discussion about subpoenas these days, and whether Bush White House officials will be forced to, or will "voluntarily," testify before Congress. The misinformation from the right has gone to absurd extremes topped by Snow's ridiculous statement that the Congress has no oversight authority over the White House. Whoop! Guess he forgot about Congress' impeachment power.

To help us sort through the silliness from Bush flacks Congressman Waxman wrote a letter to Leahy and Conyers with an attached report detailing just how often Clinton White House officials testified before Congress, either with or without subpoenas. The letter fully debunks the White House claim that their offer of unsworn, private, unrecorded conversations would provide "unprecedented" access to White House officials

It contains good reference material for "water cooler" discussions and letters to the editor. Here are a few big points.

First, we have Clinton White House Counsels testifying -

ln 1994, White House Counsel Bernard Nussbaum testified before the House Committee on Banking, Finance and Urban Affairs regarding the "Whitewater" matter. In l996,he was deposed under oath on two separate days by the House Committee on Government Reform and Oversight as part of the White Travel Office investigation.

In 1994, White House Counsel Lloyd Cutler testified before the House Committee on Banking, Finance and Urban Affairs regarding the "'Whitewater" matter.

ln 1997, White House Counsel Jack Quinn was deposed under oath by the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities.

In 1997, White House Counsel Charles Ruff testified before the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities. Mr. Ruff testified again before the Committee in 2000 as part of an investigation into the White House email system. Mr. Ruff also testified before the Senate Committee on Governmental Affairs as part of the Committee's 1997-1998 investigation into campaign finance activities.

In 2000, White House Counsel Beth Nolan testified before the House Committee on Government Reform as part of an investigation into the White House email system. Ms. Nolan testified again before the Committee in 2001 as part of an investigation into President Clinton's pardon decisions.

Next we have Clinton's Chiefs of Staff -

In 1997 ,White House Chief of Staff Thomas F. Mclarty was deposed by the House Committee on Government Reform and Oversight as part of an investigation into campaign finance activities.

In 1998, White House Chief of Staff Erskine Bowles was deposed by the House Committee on Government Reform and Oversight as part of an investigation into the use of the President's holiday card list.

In 2001, White House Chief of Staff John Podesta testified before the House Committee on Government Reform as part of an investigation into President Clinton's pardon decisions.

And lest anyone try to obfuscate the significance of these examples by saying they involved "criminal' matters, baloney. In most of these cases there were no credible allegations of underlying crimes and in some, such as the exercise of the President's pardon power, it involved a matter committed to the President's absolute discretion.

The letter goes on to discuss the voluminous record of documents that the Clinton Administration provided to the Congress.

Attached to the letter is a report with all the gory details. Here are some highlights. On the question of subpoenas,

Before the Republicans took control of Congress in 1995, congressional authority to issue subpoenas was viewed as a serious power to be exercised judiciously. From at least as far back as the McCarthy era in the 1950s to the Republican takeover in 1995, no Democratic committee chairman issued a subpoena without either consent from the minority or a committee vote. This long-standing tradition of restraint was abandoned, however, during the congressional investigations of the Clinton Administration.

The Government Reform Committee is the primary investigative committee in the House of Representatives. During the Clinton Administration, the chairman of this Committee unilaterally issued over 1,000 subpoenas to investigate allegations of misconduct involving the Clinton Administration and the Democratic Party. The Committee issued 1,089 subpoenas during the six years that Dan Burton served as chairman from 1997 through 2002. During this period, 1,052 of the Committee's subpoenas - 97% - targeted officials of the Clinton Administration and the Democratic Party; only l l subpoenas related to allegations of Republican abuses.

Regarding the production of documents,

The Government Accountability Office examined White House efforts to provide documents to Congress over an 18-month period from October 1996 to March 1998. GAO found that during this period alone, White House staff spent over 55,000 hours responding to over 300 congressional requests, producing hundreds of thousands of pages of documents and hundreds of video and audio tapes to Congress.

And here are just three examples of the types of information provided to Congress.

Discussions Between the President and His Advisors. President Clinton waived executive privilege to allow his advisors to testify before the Committee about their discussions with him regarding the exercise of the presidential pardon power. Attorney General Janet Reno informed the Committee about her discussions with the President during the confrontation at Waco.

Internal White House E-Mails. The White House spent over $12 million to reconstruct internal White House e-mails for Committee review. Thousands of pages of these White House emails were provided to the Committee, including e-mails between the Vice President and his staff.

Confidential Communications from the White House Counsel's Office. The White House Counsel's Office turned over to the Committee many documents containing sensitive legal advice or communications, In a private-sector context, these documents would be covered by the attorney-client privilege and the work-product privilege. For example, during its campaign finance investigation, the Committee received notes taken by White House counsel reflecting attorney-client communications, and during its investigation into the White House email system, the Committee received a memorandum containing legal advice from the Vice President's counsel to the Vice President.

Though most of us lived through all this it still boggles the mind. But what's done is done. This White House has no standing now to deny Congress access to the information and testimony currently being sought. They know history is not on their side. And If they persist by fighting this in court, they will be hoisted on their own petards.

El Masri Looses - State Secret Privelage Run Amuck

On March 2, 2007, the Fourth Circuit upheld the dismissal of a law suit that had been filed against the government by Khaled El Masri, the German who was an innocent victim of the shameful and illegal U.S. extraordinary rendition program. The case was dismissed because the Court accepted the Government's argument that if the case were allowed to proceed there would be a risk of exposing "State secrets." ACLU Executive Director Romero summed it up well,

“Regrettably, today’s decision allows CIA officials to disregard the law with impunity by making it virtually impossible to challenge their actions in court,” said ACLU Executive Director Anthony D. Romero. “With today’s ruling, the state secrets doctrine has become a shield that covers even the most blatant abuses of power.”

You can download the decision here or go to this link for the case.

You probably remember El Masri from his 60 Minutes appearance or countless news articles detailing the months of abuse to which he was subjected, all because the CIA didn't check its facts.

The ACLU lawsuit charges former CIA director George Tenet, other CIA officials and U.S.-based aviation corporations with violations of United States and universal human rights laws. El-Masri was on vacation in Macedonia when he was kidnapped, abused and rendered to a CIA-run “black site” in Afghanistan. After several months of confinement in squalid conditions, he was flown from Afghanistan and abandoned on a hill in Albania with no explanation, never having been charged with a crime.

He has been a free man ever since but one tormented by his experience. And he can't get justice because that would supposedly harm national security. What a joke. As his attorneys point out

To date, El-Masri’s case has been described in literally hundreds of newspaper articles and television news programs – many of them relying on sources within the U.S. government. It has been the subject of numerous investigations and reports by intergovernmental bodies, including the European Parliament. Most recently, prosecutors in El-Masri’s adopted country of Germany formally requested indictments against 13 CIA agents and contractors for their role in his kidnapping, abuse, and detention.

. . . . . . . . . . .

“Today the appeals court gave the CIA complete immunity for even its most shameful conduct," said ACLU attorney Ben Wizner, who argued El-Masri’s case before the Fourth Circuit last November. "Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured."

The ACLU has not yet announced whether it will appeal the case to the Supreme Court. I hope they do and bring an end to this type of ridiculous use of a State Secrets privilege.

These state secret cases go way back in our history. In analyzing them the courts make the Government jump through some minor hoops but when all is said and done they revolve around deference.

A court is obliged to honor the Executive’s assertion of the privilege if it is satisfied "from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10. In assessing the risk that such a disclosure might pose to national security, a court is obliged to accord the "utmost deference" to the responsibilities of the executive branch. Nixon, 418 U.S. at 710. Such deference is appropriate not only for constitutional reasons, but also practical ones: the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. In the related context of confidentiality classification decisions, we have observed that "[t]he courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972).

Applying those principles and precedents from similar cases to El Masri the court concluded

In light of these decisions, we must reject El-Masri’s view that the existence of public reports concerning his alleged rendition (and the CIA’s rendition program in general) should have saved his Complaint from dismissal. Even if we assume, arguendo, that the state secrets privilege does not apply to the information that media outlets have published concerning those topics, dismissal of his Complaint would nonetheless be proper because the public information does not include the facts that are central to litigating his action. Rather, those central facts — the CIA means and methods that form the subject matter of El-Masri’s claim — remain state secrets. Consequently, pursuant to the standards that El-Masri has acknowledged as controlling, the district court did not err in dismissing his Complaint at the pleading stage.

These are real tough cases for any plaintiff and I would not venture a guess on how the Supreme Court would rule. But the injustice here is so great it might be a good vehicle to get the Supreme Court to reconsider this area of the law and rein in what appear to be clear Executive branch abuses. Unfortunately El Masri's challenge is made all the more difficult because the trial and appellate courts saw fit to defer to the government's state secret claims. Why any court would give this government the benefit of the doubt on any national security type argument in a case involving abuses of human rights and basic standards of decency is beyond me.

(As an aside, I was only ever involved in one case before the 4th Circuit. I was working for a Federal agency and the question was, as in Masri's case, the appropriate degree of deference the court should grant to an Agency. In our case it involved the interpretation of our organic act. Although we had won in the District Court we lost on appeal. I sure wish we had been given the same deference given in the Masri case. Of course, my case didn't involve state secrets.)

Boumediene And Habeas - It's Time For The Supreme Court To Answer Two Questions

The recent D. C. Circuit decision continued a fairly long line of habeas corpus/ suspension cases that fail to address, often explicitly, two fundamental questions regarding the privelage of habeas corpus and when it can be constitutionally suspended: 1) to what extent has the right of habeas corpus developed to include circumstances beyond those that existed in the common law in 1789; and 2) does the Constitution, through the Suspension Clause or one or more of the Fifth, Sixth, or Fourteenth Amendments, provide an affirmative right of habeas corpus beyond that which exists by statute or the common law. Boumediene v. Bush highlights the need for a Supreme Court ruling addressing these questions and will hopefully provide the vehicle.

Boumediene v. Bush is the most recent Court of Appeals case regarding Guantanamo detainee Habeas Corpus rights. In a two to one decision the Court held that the Military Commissions Act withdrew jurisdiction to hear the case and that there was no improper suspension of HC because Boumedienne would not have been entitled to Habeas Corpus under the common law as it existed in 1789.

Since there has been ample discussion of the confusing and, in my opinion, incorrect, majority opinion that ignores Supreme Court precedent and convolutes centuries old English decisions I am not going to comment on it further. However I do want to comment on what the decision does not address, and point out why these omissions make this area of the law more confusing than it need be. I would also point out that these omissions can also be found in most Supreme Court decisions on this topic.

The dissent in Boumedienne, which is also guilty on this score, highlights the problem. Judge Roberts, in her dissent starts out well by saying

As for the MCA, I concur in the court’s conclusion that, notwithstanding the requirements that Congress speak clearly when it intends its action to apply retroactively, see Landgraf v. USI Film Prods., 511 U.S. 244, 265-73 (1994), and when withdrawing habeas jurisdiction from the courts, see INS v. St. Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 102 (1869), Congress sought in the MCA to revoke all federal jurisdiction retroactively as to the habeas petitions of detainees held at Guantanamo Bay. See Op. at 9-12.

But then she begins to slip. Characterizing the detainees' complaint, she writes

The detainees do not here contend that the Constitution accords them a positive right to the writ but rather that the Suspension Clause restricts Congress’s power to eliminate a preexisting statutory right. To answer that question does not entail looking to the extent of the detainees’ ties to the United States but rather requires understanding the scope of the writ of habeas corpus at common law in 1789.

See what happened. We went from the detainees' claim that their Statutory Rights, which existed under 28 USC 2241 were violated into a discussion of whether they were entitled to Habeas Corpus under the common law as it existed prior to 1789. She does this sidestep even though she acknowledges that prior to the MCA they had statutory Habeas Corpus rights. She does so by saying

A review of the text and operation of the Suspension Clause shows that, by nature, it operates to constrain the powers of Congress. Prior to the enactment of the MCA, the Supreme Court acknowledged that the detainees held at Guantanamo had a statutory right to habeas corpus. Rasul, 542 U.S. at 483-84. The MCA purports to withdraw that right but does so in a manner that offends the constitutional constraint on suspension. The Suspension Clause limits the removal of habeas corpus, at least as the writ was understood at common law, to times of rebellion or invasion unless Congress provides an adequate alternative remedy. The writ would have reached the detainees at common law, and Congress has neither provided an adequate alternative remedy, through the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739(“DTA”),nor invoked the exception to the Clause by making the required findings to suspend the writ. The MCA is therefore void and does not deprive this court or the district courts of jurisdiction.

The question of whether a statutory Habeas Corpus right exists is wrapped up, in part, in the question of whether the evolved and expanded Habeas Corpus rights contained in the Federal statutes that have been enacted since the Judiciary Act of 1879 are now subject to the Constitutional limitations of the Suspension Clause, ie., they cannot be suspended except on occasion of invasion or rebellion. She avoids the issue by saying her 1789 analysis makes it unnecessary

Given my conclusion, see infra Part C.1, it is also unnecessary to resolve the question of whether the Suspension Clause protects the writ of habeas corpus as it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05,
and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 970 (1998). The court oddly chooses to ignore the issue by truncating its reference to St. Cyr, without comment, and omitting the qualifier “at the absolute minimum.” See Op. at 14.

And for the same reason she avoids discussing, let alone deciding, whether there is an affirmative Habeas Corpus right in the Constitution

It is unnecessary to resolve the question of whether the Constitution provides for an affirmative right to habeas corpus —
either through the Suspension Clause, the Fifth Amendment guarantee of due process, or the Sixth Amendment — or presumed the continued vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because the Supreme Court in Rasul held that the writ existed in 2004 and that there was, therefore, something to suspend, it is sufficient to assess whether the writ sought here existed 1789.

Because she didn't rule on whether Habeas Corpus has evolved beyond the Eighteenth Century or whether it is embodied as affirmative law in the Constitution, she summarizes her decision by saying

Therefore, because Congress in enacting the MCA has revoked the privilege of the writ of habeas corpus where it
would have issued under the common law in 1789, without providing an adequate alternative, the MCA is void unless Congress’s action fits within the exception in the Suspension Clause: Congress may suspend the writ “when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2. However, Congress has not invoked
this power.

Don't get me wrong. I think she reached the right result and that her reasoning, for the most part, is sound. But I think that she and most other judges continue to ignore the elephants in the bedroom. And by doing so they involve themselves in increasingly convoluted discussions of Colonial era British law. Yes, I know there are reasons why this is done and especially in lower court cases But it is time for the Supreme Court to step up to the plate. The Bush Administration has forced their hand with the MCA and the Detainee Treatment Act before it.

And my little tip to the Court is - there is an Affirmative Habeas Corpus right in the Constitution and the Suspension clause also applies to the revocation of the evolved Habeas Corpus rights now contained in Federal Statutes.

Is Don Young a Saboteur Who Should Be Exiled or Hanged? He Seems to Think So.

We all know that Rep. Don Young put words in President Lincoln's mouth on the floor of the House during the debate on the "Surge," AKA "Escalation," Resolution. He quoted Lincoln as saying

"Congressmen who willfully take action during wartime that damage morale and undermine the military are saboteurs, and should be arrested, exiled or hanged,"

The lie in Mr. Young's statement has been exposed by many sources, including the washington Post. http://www.washingtonpost.com/wp-dyn... But even after having been exposed, Young's spokesman said

"Now that he's been informed these are not the actual words of Lincoln, he will discontinue attributing the words to Lincoln. However, he continues to totally agree with the message of the statement," Kenny said. "Americans, especially America's elected leaders, should not take actions during a time of war that damage the morale of our soldiers and military -- and that is exactly what this nonbinding resolution does."

Really. Well if that's the case, then based on what the Esteemed Gentlemen from Alaska said while our troops were fighting in Kosovo, his arrest followed by exile or hanging are long overdue. From Mr. Young's web site, http://donyoung.house.gov/PressRelease.aspx?NewsID=1271 this is what he had to say about Kosovo.

First, U.S. involvement in Kosovo was illegal because a President cannot take the country to war without Congressional authorization

“Today’s votes provide a constitutional backdrop for the debate over the war in Kosovo. The Administration is waging war without the authority of Congress. The Administration has taken actions to place U.S. troops into combat without Congressional authorization. Congress has the constitutional authority to declare war, not the president,” said Alaska Congressman Don Young.

Furthermore, just because troops have already been committed to the fight did not mean that a person like Mr. Young should stay quiet in order to not undermine the morale of the troops. On the contrary,

Congressman Young said “We continue to place our young persons in direct harm, I think about those in Alaska who are serving their country like those who are flying F-15's and tanker crews who are supporting our fighting team. Yet, these patriots are serving there country without knowing what the end-game mission will be in bombing Kosovo. The president has failed to address what the mission is and what the exit strategy will be to bring our men and women home.”

And lest there be any doubt that his view applied only to the Kosovo situation Mr. Young made clear that the principles upon which he stood applied to all such cases -

“I have been a proponent for Congressional authority to declare war. I believe the president must consult, and receive approval by Congress before sending our sons and daughters into dangerous countries such as Kosovo.”

So there you have it. While U.S. troops were in combat in Kosovo, Mr. Young subverted the President and damaged the morale of the troops by charging that the mission was illegal. Not only that, he undermined the military and the morale of the troops by saying that their mission was unclear and that they were locked in a never ending battle with no exit strategy.

While some years have passed since Mr. Young's treasonous conduct there can be no statute of limitations for a crime as heinous as his. It is time for the U.S. Marshals to come calling.

Is Iran Is Our Enemy?

A few days ago, in discussing the perils of our policy towards Iran, Wes Clark was asked what is arguably the most fundamental question in the current excitement about Iran: "Is Iran our enemy?" His response was -

An enemy? I wouldn't want to be branding people as enemies too soon. That was one of Bush's many mistakes. Iran is a nation we have many disagreements with...and that's why we should be discussing, not sabre rattling

http://www.dailykos.com/comments/200...

This is the question we should be looking at, not whether Iran wants to get nuclear weapons or whether it is providing military and other assistance to one or more factions in the Iraq civil war. And not just any enemy. But rather an enemy with whom our differences are so grave as to justify going to war.

Before discussing the history of our relations with Iran lets look at why the issues of nuclear weapons and military support to adversaries is never by itself grounds for war. I hate to belabor what should be obvious, but feel the need to do so because this Administration uses these issues to create anger and fear as a substitute for a rationale approach to our relations with Iran.

It goes without saying that having a nuclear weapon does not an enemy make. We have no problem with our friends and allies having nuclear weapons. We have had past "enemies" such as Russia and China with nuclear weapons who are, if not friends, at least partners. Conversely, all of our wars, except the Cold War, were with countries that did not have nuclear weapons. We encouraged many countries to develop nuclear technology for peaceful purposes and all, with two or three exceptions, did not use that technology to build bombs. (I say "two or three" because India and Pakistan are open nuclear powers whereas Israel has kept its bombs under a bushel basket.) None of these countries became our enemies when they acquired nuclear weapons and the same would be true with Iran.

What about providing weapons to our adversaries? Does that make someone our enemy and provide a basis for going to war against them? There are many historical examples of why the answer is "no" and here are three.

During the Korean war the USSR provided military and other support to the North Koreans, including jet fighters and the pilots who flew them. While the Soviets were clearly our Cold War enemy we did not use this as a basis to attack them. Similarly, while the Chinese sent hundreds of thousand of troops into Korea to battle the U.N. forces we did not use that as a pretext to attack China. Over the objections of MacArthur we did everything we could to contain the conflict.

From this standpoint Viet Nam was a repeat of Korea. The Soviets supported the North Vietnamese with arms and other material. We not only did not use that support as a basis for attacking the Soviets but were concerned, on and off, about sinking Soviet supply ships entering Haiphong harbor. As in Korea we sought to not escalate the war though we would have had ample provocation.

The tables were turned in the Afghan war to expel the soviets. We supplied the Afghan troops with everything from bullets to Stinger missiles for years and the Soviets knew it. But as with us in the prior two conflicts they did not use our actions as a pretext for going to war.

So what is it with Iran? What is our beef against them and their beef against us. Here is a brief chronology of some of the most significant events of the last fifty years involving the U.S and Iran.

* We deposed Mohammed Mossadegh their elected Prime Minister in 1953 and installed the Shah;

* We armed the Shah to the teeth as a bulwark against the USSR and friend of Israel

* We sided with the Shah in suppressing the Iranian Kurds

* The people revolted under the Ayatollah

* Our hostages were illegally imprisoned in violation of international law

* Diplomatic relations between our countries ceased

* Iran were invaded by Iraq, who we supported

* Iran gave refuge to anti-Saddam Shia

* Iran helped Iraqi Shia train anti-Saddam militias

* Iran continued to be anti-Soviet but were now anti-Israel

* Iran supported palestinian and Lebanese groups and militias, particularly Hezbollah

* We shot down an Iranian passenger plane by accident killing over a hundred people

* Iran was found by a Federal Judge to have been responsible for Khobar Towers bombing

* Iran opposed the Soviets in Afghanistan

* When the Taliban came to power Iran, unlike Saudi Arabia and Pakistan, did not recognize them

* Iran provided material and logistical support to overthrow the
Taliban/Qaeda until Bush declared them the Axis of Evil

* We deposed Sadaam, their worst enemy, and put the Shia, their best Iraqi friends, in power

* Iran is probably giving arms and other support to their Iraqi allies

* Iran continues to arrest and detain al Qaeda operatives

* Iran is a signatory to the NNPT unlike India, Pakistan and Israel

* Iran may be able to build nuclear weapons years from now

* Iran has never waged war against us

* Iran is still seeking reparations from Iraq for the 1980 war

* We continue to hold assets seized after the hostage crisis.


It seems clear that we have some issues with them and they with us. If the roles were reversed and they had begun interfering in our internal affairs in 1953 and engineered a coup ousting Eisenhower I wonder how we would feel. It also seems clear that we have no irreconcilable differences with the Iranians. All we need to do is start dealing with them as adults. Yes, the hostage taking in 1979 was an outrage. But time has passed. In fact more time has passed than it took us to establish diplomatic relations with the Vietnamese after the war. We and they need to move on. And now is the time.

A Small But Important Habeas Victory

The District Of Columbia Circuit ruled on February 9th that Habeas Corpus is still alive. In Omar v Harvey the Court upheld the right of Omar, an American citizen being held by the U.S. in Iraq to challenge his transfer to Iraqi authorities. This is an important decision for two main reasons. First it continues a line of cases striking down the Administrations expansive views of its "wartime" powers. Second, it confirms that Habeas Corpus is still alive.

Before discussing the law, here are the facts of the case. Omar is a dual American/Jordanian citizen, with an American wife, who said he traveled back to Iraq to seek construction related work and had intended on returning to the U.S. but for his arrest. The U.S. said he was captured in a raid on alleged Zarqawi associates and that he facilitated terrorist acts inside and outside Iraq. There was a status hearing before three U.S. officers and he was declared "a security internee under the law of war" and an "'enemy combatant' in the war on terrorism."

In December, 2005, his wife filed a Habeas petition as his "next friends" in the D.C. District Court. The petition asks that the government release him or that it be required to bring him before a U.S. court to show cause for his continued detention. The suit also sought an injunction to prevent him from being turned over to Iraqi authorities. Two months later Omar's attorney was advised that in August, 2005 it was decided to transfer him to the Central Criminal Court of Iraq. (The Court notes that there is no record of who made the decision or the grounds on which it was made.)

The District Court issued a Preliminary Injunction prohibiting Omar's transfer until a full adjudication of all issues. The Government appealed and the Circuit Court upheld the lower court decision.

The Government argued that the Court does not have jurisdiction to hear the case. And then, incredibly, they argue that they propose to give him everything he asks for under Habeas, ie., transfer out of U.S. custody. Of course he would then be in Iraqi custody, but they figured it was worth a shot.

The Court dealt with the government's primary jurisdiction argument easily by saying the one case relied on, Hirota v MacArthur 338 U.S. 197 (1947), was not controlling for two reasons. First, by its terms, Hirota was only applicable to its unique facts, which are totally different than here. Second, as made clear by Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), Hirota concerned an attack on the judgment of an international tribunal, which was also not the case in Omar.

The Court then moved on to the Habeas issue and with sweeping language stated

At its historical core, the Supreme Court has explained, the
writ of habeas corpus has served as a means of reviewing the
legality of Executive detention, and it is in that context that its
protections have been strongest. INS v. St. Cyr, 533 U.S.
289, 301 (2001); see also Brown v. Allen, 344 U.S. 443, 533
(1953) (Jackson, J., concurring in the judgment) (The
historic purpose of the writ has been to relieve detention by
executive authorities without judicial trial.). Acting in
tandem with its partners-in-libertythe Due Process Clauses
of the Fifth and Fourteenth Amendments the great writ is
the instrument by which due process [can] be insisted upon
by a citizen illegally imprisoned. Hamdi, 542 U.S. at 555-56.

The Government also tried to argue that this case falls under the political question doctrine, in that it

raise[s] quintessential political questions beyond the
authority or competence of the judiciary to answer.
Appellants Br. 41. The political question doctrine puts
beyond judicial cognizance political decisions that are by
their nature committed to the political branches. Schneider
v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal
quotation mark omitted). For example, and relevant to this
case, the doctrine bars courts from considering claims whose
adjudication would require judicial wading into foreign policy
or military waters. Thus, in Schneider we invoked the
political question doctrine to dismiss a claim that would have required us to second-guess U.S. policy towards Chile.

And here is where the decision gets even better. First, noting that the doctrine of "political questions" is not a doctrine of "political case," the Court cited Hamdi -

The Supreme Court's recent decision in Hamdi makes
abundantly clear that Omar's challenge to his detention is
justiciable. In Hamdi, as here, the petitioner challenged his
detention by U.S. military authorities pursuant to an enemy
combatant determination. Although the government never
directly invoked the political question doctrine, it argued that
separation of powers concernsthe very concerns underlying
the political question doctrinepreclude courts from
inquiring into the factual basis of an enemy combatant
designation. A commanders wartime determination that an
individual is an enemy combatant, the government urged, is
a quintessentially military judgment representing a core
exercise of the Commander-in-Chief authority. Br. for the
Respts at 25, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.
03-6696). Unequivocally rejecting this contention, the Hamdi
plurality explained that it does not infringe on the core role
of the military for the courts to exercise their own time-
honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here. Hamdi, 542 U.S.
at 535.

The Court moved on to the Government's final claim, that theysoughted to give Omar what he wated, release from U.S. custody. It would either be a direct transfer to the Iraqis or as discussed in the dissent, a wink and a nod release with Iraqui authorities waiting at the gate to arrest him. The court responded that a transfer to someone else's custody was not a release, and with respect to possible subtrefuge stated,

If the district court ultimately rules that the U.S. military lacks authority to transfer Omar, the military will be unable to transfer him
either directly through a formal handoff or indirectly by
releasing him with a wink-and-a-nod to the Iraqis. The
United States may certainly share information with other
sovereigns, see id. at 6-7, but it may not do so in a way that
converts Omar's release into a transfer that violates a court
order.

There are other important points in the decision but these are some of the main ones. There also is a dissent which I will not discuss now except to say that its points were week and handily disposed of by the majority.

In sum, this is a great case. Not only for the holding and the broad grounds relied on but also because of the Court itself. This is the D.C. Circuit, arguably the most influntial one in the Country. Rejoice! The Courts are alive and kicking.

Saddam Was not a Threat - And Not Because of WMD

Senator Gordon Smith (R. Or) is late to the game in saying the Iraq war is a disaster. But at least he finally did. Unfortunately he continues to say that the war would have been justified if Saddam had possessed WMD's. Speaking of Bush, Smith said

"He is not guilty of perfidy, but I do believe he is guilty of believing bad intelligence and giving us the same. . . I can't tell you how devastated I was to learn that in fact we were not going to find weapons of mass destruction."

Many commenters, such as Josh Marshall, and politicians, such as Sen. Smith, continue, to this day, to say that if there had been WMD the war would have justified because Sadaam would have been a threat. As long as they continue to think that, they will never understand how truly unjustified this war was, putting aside of course that it was always an unwinnable ahistorical tragedy.

Even if Saddam had chemical weapons in 2003 (nuclear was never even a remote possibility) he was not a threat to us. To be a threat, a country must have more than weapons that can be used to attack another country. It must have a reason and commitment to begin a war. Many countries, such as Russia, China, France and India, which have large conventional forces as well as chemical, biological and radiological weapons are not considered by us to be a threat. For that matter, Saddam had and used chemical artillery shells throughout the 1980s and was not considered by us to be a threat at that time.

Since his ascent to power in the mid Seventies, Saddam had never threatened us or any of our interests. Prior to the Gulf War he had never attacked us or threatened to attack us and was not allied with any countries or groups that sought to attack us. Yes, he was a bit player in fomenting conflict between the Palestinian and Israelis, but his financial support for the Palestinians was a fraction of that provided by the Saudis. From 1980 to 1990 he was a threat to two of his neighbors - Iran and Kuwait. But after having waged and lost two disastrous wars his dreams of a greater Iraq came to an end in 1991. After the Gulf War his saber had stopped rattling and frankly, was growing rusty in its scabbard. His military was a wreck, his chemical weapons had been dismantled, and with the Kurds controlling Northern Iraq and U.S. over-flights in the North and South he was a paper kitten. At that point he was interested in only two things - lifting of the sanctions and the preservation of his power.

And yet this Administration convinced the American people that he was not only a threat to the United States, but our foremost threat in the world. A petty despot with no military power who had fought a war against Iraq with our support and who was viscerally opposed to Al Qaeda, the Taliban and all other radical Islamic fundamentalists was made out to be Hirohito, Stalin, and Hitler combined. A threat to our very nationhood that could not be allowed to stand a minute more. Not since the Germans justified their invasion of Poland on totally fabricated claims of Polish cross border incursions has a more duplicitous justification for war been foisted on a country.

Bush Doesn't Remember His Oath Of Office

How many times have you heard President Bush say that his most important job or his first responsibility is to protect the American people. Another variant is when Bush says it is his "most solemn duty to protect the American people." It sounds good and it certainly is important but it is NOT his first priority and is NOT his most solemn duty.

When Bush was sworn into office his duty, his solemn duty, was told to him by the Chief Justice of the United States and he repeated it as he took the oath -

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

That's right - execute the Office of the President and "preserve, protect and defend the Constitution." This oath is contained in Article II, section 1. (There is a more general requirement in Article VI for all other civilian and military personnel to take an "oath or affirmation to support the Constitution.")

In order to preserve, protect and defend the Constitution one must know what exactly the purposes, goals and objectives of the Constitution are. They are succinctly set forth in the Preamble -

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The first two purposes of the Constitution are to "form a more perfect union" and "establish justice." Next, the Constitution seeks to "insure domestic tranquility" and "provide for the common defense." Lastly, the Constitution was created to "promote the general welfare" and "secure the blessings of liberty" for ourselves and future generations.

Yes, national defense is part of it but only within the context of establishing justice and ensuring the blessings of liberty for ourselves and our children. If our founders had thought personal security was the paramount concern there never would have been a revolution and the United States would never have been born. But that is not how they thought. In fact they believed that personal safety was secondary to liberty. Perhaps it was said best by Patrick Henry on March 23, 1775 who, when addressing the Virginia House of Burgesses, concluded by saying "give me liberty or give me death."

The sentiment embodied in those words, which were a call to war against Britain, is the same sentiment that lead the Founders twelve years later to require the President and all other Federal officials to swear an oath to the Constitution. It was the recognition that liberty - freedom from the tyranny of government - is more important than life itself and is worth fighting for. The Founders recognized that only by strict adherence to the principles embodied in the Constitution, maintenance of the checks and balances in the government created by the Constitution, and vigilant oversight to ensure that the government did not breach the personal freedoms guaranteed by the Constitution would liberty be preserved and tyranny kept at bay.

There is profound significance in the fact that the President is sworn to preserve, protect and defend the Constitution rather than the State, its geographic territory, or its inhabitants. Of course the physical security of our nation and its people is important and must be safeguarded, but the people and the country cannot be protected at the expense of protecting the principles of the Constitution itself.

So when you hear Bush or his apologists say that you will have no freedoms if you are dead, remember that our forefathers thought there were worse things than death. They created a Constitution designed first and foremost to protect our liberty - to protect us from tyranny. To ensure that the President and all other persons entrusted with the solemn privelage of exercising the powers of the government, each of those persons must take an oath to preserve, protect and defend that Constitution.

That is the President's most solemn duty - and it is a duty he has payed scant regard to during his term of office. He has imprisoned people without the most basic rights afforded in the Constitution. He has engaged in unlawful searches and seizures in violation of the Constitution. And he has pushed through the Congress a law that abolishes the Writ of Habeas Corpus in direct contradiction to the clear language of the Constitution.

President Bush would do well to reread his Oath of Office and read the Constitution.

Swiftboat Victim - A Marine's Story

When the swiftboaters attack a public servant their lies and slander attack other heroes as well. This is the story of of one of those other heroes who was also a swiftboat victim. Many of you probably remember the 2004 anti-Kerry advertisement featuring a veteran throwing his medals over a fence. ( You can see it here, click on the piece entitled "Medals".) The soldier featured in the advertisement is Frank D. Norton, Cpl. U.S.M.C., who was wounded twice, received the Bronze Star for saving his unit from annihilation, and was permanently disabled. He is my brother and this is his story.

The swiftboaters say that Frank "turned his back on his brothers." Nothing could be further from the truth. He is a true American hero who voluntarily shed his blood for his country, grieved at having left his men behind, and finally did the only thing he could to help them - try to bring an end to the war so that all could come home.

Frank enlisted in the Corps right out of High School. It was a three year enlistment in the Summer of 1965, just as the war was getting into high gear. The Corps had become a family tradition. Our Father and Mother both served as Marine Corps officers in WWII. Mom served in Washington during the war and was immensely proud of her service. She was discharged as a Captain, outranking my father much to her glee, and is interred in Arlington. Dad served in the Pacific and China. Like most veterans of his generation he did not talk about the war or his experiences while we were growing up. It wasn't until decades later, near the end of his life, that he opened up about his wartime experiences, especially on Iwo Jima, and I came to realize the profound impact they had on him.

Frank entered the Corps on a delayed enlistment before graduating and was off to Parris Island in early Summer for Boot Camp. He then received training as a mortar man.

After serving stateside a while he was sent on the Med Cruise. For those of you who are not familiar with the cruise, the Corps maintained a presence in the Mediterranean during the Cold War as part of a large U.S. military presence in Europe. The Med Cruise was months of tedious steaming up and down the European and African coasts of the Mediterranean Sea in a hot crowded transport ship, punctuated by periodic training exercises and a few port calls. The only notable event on that trip was that one of their amphibious assault exercises in North Africa was filmed as part of a John Lennon movie, "How I Won The War." Also, he was snookered by a French sailor who traded a butane lighter for Frank's Zippo. Disposable butane lighters had not yet come to the States and it wasn't till a few weeks later that Frank realized he had been had.

Not long after Frank returned from the cruise he was sent to Camp Pendleton to prepare for shipment to Nam. After the training was over and one final leave he shipped out in June, 1967. His unit in Nam was Gulf Co, 2d Bn., 1st Marines, which was initially stationed near Hill 55 about twelve miles South of Danang. Frank was assigned to a line squad and was no longer a mortar man. In August, after barely two months in country, he was wounded for the first time. While on patrol the grunt ahead of him tripped a booby trap and Frank was hit with several pieces of shrapnel in the neck and arms. Compared to what would happen months later the injuries were minor and he returned to duty in a week.

In October the Battalion moved to Quang Tri where they stayed until December, at which time they moved to Con Thien. Many of you may be familiar with the lengthy siege of Khe San but few remember the equally violent struggle for control of the country East of there at Con Thien. The Marines held that ground for month after month while subject to constant bombardment, perimeter attacks and patrol ambushes.

Con Thien was referred to as the "Hill of Angels" by the missionaries and by other names, such as "the meat grinder," by others who were there because of the many who died during the battle. It was at the end of the so-called "McNamara Line" which stretched along the DMZ from the ocean to the Laotian border and was considered vital to preventing unrestricted NVA movement to the South. The base was manned by a battalion of Marines, which was usually rotated with a new unit on a monthly basis because of the horrific conditions to which they were subjected. The base was under constant bombardment, averaging about 200 rounds a day. During one especially violent period between September 19th and 27th they received 3000 rounds. When not on patrol, the Marines lived under ground in a hellish existence of mud, noise, terror and death.

Because of heavy activity that culminated in the Tet offensive of 1968, 2d Battalion was not rotated like its predecessors and was still there in March. The Battalion Commander, having grown tired of his patrols being ambushed by the NVA, decided that it was time to turn the tables on the enemy. He came up with the idea of "Killer Squads." The plan was to send out a full Company which would set up and hold a perimeter for a while. Then, most of the Company would head back to base leaving the concealed Killer Squad to spend the night and hopefully ambush the NVA.

Frank was the squad leader of one killer squad and a second squad was selected from another company. Because each squad was at half of its normal strength, seven instead of 15 members, every man would be trained on every job. All needed to be able to operate the machine gun and LAW, spot artillery, and tend to the wounded in the event any one of them was killed.

Before the plan was made operational two squads were sent out by themselves on a training mission. This was very unusual. Normally the Marines never left the base in less than company strength. But on March 4th, 1968 both squads, operating as a single unit, left the base accompanied by the Company XO, Lt. Cummings, and his radio man.

They arrived at a spot within view of an abandoned village where they set up a 360 degree perimeter. Then, unexpectedly, on Frank’s side of the perimeter NVA troops were spotted behind the next tree line. Thirty yards separated that side of the Marine perimeter and the NVA with an abandoned rice paddy in between. The Marines didn't know there was a Company of NVA in the trees. And the NVA, who were familiar with the Marines’ tactics, could not have had any idea that they were battling only 16 Marines.

Frank yelled “open up and move out” as the NVA began turning a machine gun around to fire in their direction. He ran to a lone tree in the open area, took cover and began firing. There were Marines in a line on both sides of him firing from positions about fifteen yards apart.

As all hell broke loose the machine gunner was the first to get hit. Then Frank began to see, hear and feel the tree being chewed up around him - and then, he was hit. The impact of the bullet flipped him onto his back. The bullet did cruel work, shattering his femur and mangling his intestines before exiting his butt. The Marine to his left, who was in a small depression, started to move towards Frank’s position to render aid. Frank ordered him to stay where he was and keep firing.

LCpl Vernon Pendergrass was on Frank’s right firing the M-79 Grenade Launcher. It was a weapon that he had recently begun to train on to replace a Marine who was a real short timer. Pendergrass got off a few rounds before he was killed.

By this time the Marine perimeter had collapsed so that all of them could engage the enemy. One of the Marines who had been on the other side ran up to Frank to render aid was ordered to get back. Frank knew his position was exposed and a field dressing wouldn’t do him much good.

A fire started in the empty field and the NVA began to use the smoke for cover to advance on the Marines. Things were looking grim until the wind changed and the NVA were forced to retreat.

Lt. Cummings ran to Frank's position, grabbed his M-16 and began firing. As Frank yelled for him to get down the Lieutenant took a round in the chest that flipped him in a somersault. Frank thought he was dead for sure but then, amazingly, the Lieutenant got up a few minutes later, handed Frank the weapon, and ran back. The bullet had hit his chest but somehow not penetrated anything vital.

Frank and most of the Marines were lucky that day. His Bronze Star Commendation said that if he had not ordered the attack those 16 Marines would probably have been overwhelmed by the vastly superior numerical force of the enemy. The wind blew in their favor. And most importantly, the Company was able to reinforce them in time and repel the enemy. Luck is relative of course. Marines were wounded and killed and Frank lost the only member of his squad to die.

It was three hours before Frank was to Medivaced to Dong Ha for initial surgery. From there he was sent to Phu Bai for more surgery and finally to Danang, where he stayed a week, undergoing even more treatment. When he was stable enough he was flown to Japan, where he stayed in traction till early June. Finally, in a full body cast, he was sent to Chelsea naval Hospital in Boston Massachusetts.

While at Chelsea he was awarded his Bronze Star With "V" Device in a ceremony attended by the press. A picture of the award ceremony was actually printed as a full page cover on the next days edition of one of the Boston papers. The medal was presented by a Navy Captain in full Dress Uniform and Frank was sitting up in his bed in a brand new hospital shirt that had been given to him that morning just for the occasion. The ward was filled with over a dozen marines recovering from their injuries, a few other Marines, hospital staff and some family and friends.

All soldiers who receive awards such as this have mixed emotions. You don't really feel you deserve it because you didn't do anything that any other man in your unit wouldn't have done, and in fact hadn't done countless times. You feel that the true heroes are not those who survive, but rather those left behind. Your sense is that the award is really for your men, your brothers, your unit, not just you. But you also feel a small sense of satisfaction in the recognition of your service that the medal represents. Frank had those same feelings.

That Summer as Frank recuperated we did not talk often of what happened on March 4th. In fact we only talked about it once, late at night, after he had recovered enough to leave the hospital for a visit to town. As we drank, he opened up with the story, but mostly with his tears. He cried for Vernon Pendergrass and how he would never see his daughter. (Decades later Frank made a trip to Alabama to meet and console that daughter and share with her his fond memories of her father.) He cried for his men, feeling guilty that he was in the States and they were still in Nam. He wanted to be there with them to help bring them all home safely. He cried the lament of all soldiers who made bonds in battle that can never be broken.

Late that Summer Frank was medically retired from the Corps. Before I began my enlistment in the Army, he went off to Ohio University to begin the college education he had put off in 1965. He was not the same person he had been in high school. War changes men. Also, now he was a Marine, and would be one for life. He loved the Corps in the way that only one who knows its warts, inanities and idiocies can. It's a love/hate relationship that is a brotherhood for life.

As time passed, Frank began to see the war as futile and damaging to our nation. He resolved to do what he could to bring it to an end and bring his brothers home. That is why in 1971 he joined with over a thousand other Viet Nam veterans, including John Kerry, to protest the war. As part of that protest he, along with many others, threw their medals over a fence at the Capitol to demonstrate the depths of their feeling - medals they had earned with their blood, limbs and sacrifice.

This is the man that the Swifties tried to slime by saying he turned his back on his brothers. Those critics forgot, if they ever knew, that Frank and his brothers had fought on behalf of a Nation with a Constitution they had all sworn an oath to defend. A Constitution which guarantees the right of "the people to peaceably assemble, and to petition the Government for redress of grievances." It is a right that the government cannot abridge and that no person should ever be criticized for exercising. The swiftboaters were sworn to defend that same Constitution while in uniform and, as citizens, are obligated to honor, support and preserve it in their daily lives.

These critics, these swiftboaters, are still at it today attacking the patriotism and service of veterans running for office. And they damage others in the process. They are the antithesis of the patriots they attack. The swiftboaters have lost sight of the true meaning of patriotism. It is not love of a leader, policy or Party. It is love of the Constitution and all the rights and privileges it grants to us as Americans. Our Constitution is what makes our Country great, and we all have an obligation to insure that it is not breached by the government or ignored by the people. Supporters of that war or any war have every right to express that support by whatever means they chose. But they do not have the right to defame the patriotism of those who hold a different point of view. And no true soldier would ever demean the sacrifice of another.

Bush's Choice - Withdraw Before Or After The Election?

Every war has an end. And every limited war, of which Iraq like Korea and Viet Nam before it is one, reaches a point at which one (and sometimes both) of the parties finds a way to convince itself that it has achieved its objectives and can begin the process of disengagement. While many believed we were at that point a year or two ago with Iraq, the facts on the ground are so clear now that even Bush will be forced to accept that the time has come. The only question is when to begin the process of disengagement. Odds are that it won't begin until after the election.

This is a political decision, not a military one. Yes, the sequencing of the disengagement steps are largely dictated by the force protection needs of the military. However the decision to begin the process is purely political. In this case it is not small "p" political, as in how it affects the well being of the country, but big "P" political, as in how it affects the upcoming election.

(By way of full disclosure this is all speculation. Also, I was opposed to this war, unlike the Gulf War, a year before it began. I did not see Iraq as an enemy of the U.S., believed the war to be illegal, and believed we would only sow more chaos in an already unstable region. And when we were first informed that the insurgency was in its last throes I called for withdrawal here.)

Some people may be thinking that Bush will make a withdrawal announcement before the election to stem the growing tide of anti-Iraq war sentiment before the votes are cast. The stakes could not be higher. He knows there is a serious risk that one or both Houses of Congress could revert to Democratic control, in which event the many scandals and Constitutional outrages that his compliant enablers in the Republican Congressional leadership have kept out of sight will be exposed for the public to see. While that is clearly an outcome he is seeking desperately to avoid he will continue his "stay the course" strategy because he believes that to change course before the election will only cement his defeat. This is one of those rare occasions where he is right.

Bush is a one trick pony. That trick is fear. He has been very effective playing the fear card and is only now beginning to understand that it has lost much of its salience. People are becoming less willing to buy it, as evidenced by his failure to get a bounce from the alleged British plane bomber threat. But it is still his only card. He has to play it for all its worth between now and the election for one simple reason. If he announces now that we can begin to withdraw he will be conceding that Iraq is unwinable and in the process cut the rug out from under his remaining supporters. At that point, the Democratic election victory would become a true landslide.

The only real question is whether he will actually begin the disengagement process after the election, leave it to his successor, or wait until it is mandated by the Congress. If you listen to his rhetoric and watch his behavior there is reason to doubt he will withdraw voluntarily. He is so incapable of admitting error publicly that one must suspect he can barely do so in the sanctity of his own mind. We also have his public statements to the effect that the Iraq war will continue past his Presidency. Lastly, he gives every evidence that he has bought into the neocon mantra of the "long war" as the substitute for their much missed cold war.

However, he is a political animal and the political pressure he will be getting from his own party will be enormous. (This doesn't even factor in the potential impact of a Democratic victory in November.) His own party will tell him that if we are not substantially disengaged from Iraq in 2007 with the process complete in 2008 it will be decades before the Republicans will survive the electoral tsunami in 2008. By then Republican nominee will be touting his own plan to end the war, but it will be too late.

The tragedy of all this is how unnecessary it was. We have destroyed the lives of thousands of our soldiers and their families; set loose forces that have killed and injured hundreds of thousands of Iraqis; destroyed American credibility, goodwill and standing throughout the globe, spent hundreds of billions of dollars that are desperately needed at home; saddled our children and grandchildren with a mountain of debt; and destroyed the military that took so long to rebuild after Viet Nam. And it will only end because of partisan political necessity. How truly sad.

First Decision Denouncing Illegal NSA Wiretapping

ACLU, et al v NSA, et al is the first District Court decision declaring that the NSA warrantless wiretapping program in contravention of FISA is illegal. The District Court opinion granted a partial summary judgement in favor of the plaintiffs and an injunction against the Government continuing with the program.

The opinion disposes of the Administration's AUMF and Commander in Chief arguments with aplomb but my favorite part is the following discussion of the President's claim of inherent powers.


"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). " (Citations Omitted)

This case has a long way to go, but its biggest hurdles will not be the substance of the case, which I think Scalia, Roberts and Alito would agree with. If it is not upheld it will fall due to the the issue of "standing", which means can these plaintiffs even bring this suit, or the Government's claim that the case cannot be heard without revealing state secrets and thus must be dismissed.

Did John Yoo Pass The Bar?

Yesterday morning, while listening to Morning Edition on NPR, I heard something that almost caused me to fall off my chair. They were interviewing John Yoo about the decision in Hamdan v Rumsfeld. When asked about the Hamdan decision Yoo started by saying "as a LEGAL MATTER the President made the right call when he said that Al Qaeda wasn't covered by the Geneva Conventions." (there is no transcript yet , but you can listen here.)

Yoo was the Justice Department lawyer who authored the opinion that laid the foundation for the Administration's detainment at issue in Hamdan as well as the Administration's torture policies. Also, Yoo's opinion, which said that the President's "Commander in Chief" powers were virtually unlimited and unreviewable and that the powers granted President under the Authorization For The Use Of Military Force resolution following 9/11 were all encompassing, provided the legal basis for the NSA warrantless wiretapping.

You don't need to be a lawyer to know that "as a legal matter" the President, and Yoo, were wrong. Ever since the 1803 decision of Marbury v Madison it has been understood that the Supreme Court is the ultimate arbiter of the law, not the President or some DOJ lawyer. And the Supreme Court held the Common Article Three of the Conventions does apply to Al Qaeda. Yoo could have said he disagreed with the decision, but it is the law of the land and it is astounding that he doesn't understand that.

It should also be noted that on this point it this wasn't just the five member majority speaking. None of the dissents disagreed with the Majority's reasoning on this question. Even Justice Thomas, for whom Yoo clerked, said it was a plausible interpretation of the Conventions. He only said that in this case the Court should have deferred to the Administration's contrary interpretation.

It may be time for Yoo to take a refresher course in Constitutional Law.

Commander in Chief of the Army and Navy - Not of the Congress, Courts and the People

In Hamdan v. Rumsfeld the Supreme Court has put a stop to President Bush's sweeping assertions of it's broad unreviewable powers under the "commander in chief" phrase of Article II. The opinion notes of the broader range of legislative authorities in the Constitution related to the military and wartime judicial administration -

The Constitution makes the President the "Commander
in Chief" of the Armed Forces, Art. II, §2, cl. 1, but vests in
Congress the powers to "declare War . . . and make Rules
concerning Captures on Land and Water," Art. I, §8, cl. 11,
to "raise and support Armies," id., cl. 12, to "define and
punish . . . Offences against the Law of Nations," id., cl.
10, and "To make Rules for the Government and Regula-
tion of the land and naval Forces," id., cl. 14. The inter-
play between these powers was described by Chief Justice
Chase in the seminal case of Ex parte Milligan:
"The power to make the necessary laws is in Con-
gress; the power to execute in the President. Both
powers imply many subordinate and auxiliary powers.
Each includes all authorities essential to its due exer-
cise. But neither can the President, in war more than
in peace, intrude upon the proper authority of Con-
gress, nor Congress upon the proper authority of the
President. . . . Congress cannot direct the conduct of
campaigns, nor can the President, or any commander
under him, without the sanction of Congress, institute
tribunals for the trial and punishment of offences, ei-
ther of soldiers or civilians, unless in cases of a con-
trolling necessity, which justifies what it compels, or
at least insures acts of indemnity from the justice of
the legislature." 4 Wall., at 139, 140.21

Yes, the President is commander in chief of the military, and as such he is the super general. But that doesn't mean that in times of war all of the other provisions in the Constitution fade into oblivion.

(One passing note for all the "strict constructionists" out there, taken literally the President is not Commander in Chief of the Air Force, Marine Corps and Coast Guard since they are not specifically mentioned.)

The opinion then goes on to note -

Whether Chief Justice Chase was correct in suggesting
that the President may constitutionally convene military
commissions "without the sanction of Congress" in cases of
"controlling necessity" is a question this Court has not
answered definitively, and need not answer today. For we
held in Quirin that Congress had, through Article of War
15, sanctioned the use of military commissions in such
circumstances. 317 U. S., at 28 ("By the Articles of War,
and especially Article 15% Congress has explicitly provided,
so far as it may constitutionally do so, that military tribu-
nals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases”).

The Court then rebuffed the President's assertion the the earlier Quirin decision had given carte blanche to the President to establish commissions outside of the stautory framework

Contrary to the Government’s assertion, however, even Quirin did
not view the authorization as a sweeping mandate for the
President to “invoke military commissions when he deems
them necessary.” Brief for Respondents 17. Rather, the
Quirin Court recognized that Congress had simply pre-
served what power, under the Constitution and the com-
mon law of war, the President had had before 1916 to
convene military commissions—with the express condition
that the President and those under his command comply
with the law of war. See 317 U. S., at 28–29.23

And then there is the final nail in the coffin of absolute Presidential authority from footnote 23 -

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

All in all, it was a bad day for John Yoo and David Addington, two of the principle authors and proponents of Omnipotent President theory.

The Constitution Is Still Alive

Rejoice. Ring the bells in the Cathedrals. The Supreme Court has begun the process of returning our great nation to one which the founders would have recognized, a country that is not ruled by an omnipotent king, but by a President who must follow our Constitution, laws and Treaties. In Hamdan v. Rumsfeld, a long awaited decision regarding the fate of a Guantanamo detainee, the Court has made clear that the President does not have unlimited powers. It was a 5-3 decision with many concurring and dissenting opinions. Justice Roberts did not participate because it was his D.C. Circuit Court's opinion that was overturned.

There are many noteworthy aspect to this decision, which I am still digesting. Among other things, the Court held that the Authorization for the Use of Military Force (AUMF) did not override existing legal requirements, particularly the Uniform Code of Military Justice and the Geneva Conventions, regarding the establishment and conduct of military commissions. The Court also ruled that the Geneva Conventions apply to persons detained in the Afghan conflict.

Both of these rulings could have much wider implications. The AUMF is one of two arguments used by the President to justify bypassing the Foreign Intelligence Surveillance Act (FISA) warrant requirements in connection with domestic electronic surveillance. The President has argued that FISA can be ignored if another law provides authority for wiretapping and that AUMF provides that separate authority. Hamdan casts serious, but not absolute, doubt on that argument. While there are some other issues involved, there is good reason to think that if AUMF doesn't provide a separate statutory authority to try enemy prisoners it doesn't provide statutory authority to wiretap. That leaves only the President's second argument, that the Commander in Chief authority gives him uncontrollable and unreviewable authority to do whatever he deems necessary in furtherance of that authority. That argument also took a big hit.

The same two legal arguments undergird the President's torture policies and practices and are similarly in jeopardy.

Hamdan could well mean that the Administration's torture policies and practices are not only illegal but also criminal and that the extra-judicial wiretapping outside of the FISA Court is similarly illegal and criminal.

Public Financing - A Different Approach

This recent poll indicating there is widespread support for public financing of elections caused me to dust off an idea that's been floating in my brain for a decade. I'm not just talking about Presidential elections, but Congressional elections as well. The main legal problem with any public financing scheme is how to make it mandatory and and still avoid Constitutional challenges by those who want to contribute to candidates.

One possible answer is to establish an inflation adjusted spending amount for each type of election, President, Senate and Representative (possibly adjusted for Senators by the state's population) and appropriate funds to each party's candidate for that office. Primaries will also have to be addressed. Any person can make a campaign contribution to the candidate of their choosing but those contributions must be remitted to the Treasury to offset the funds appropriated for that candidate. If the contributions exceed the amount appropriated the candidate can spend the surplus amounts.

Under this type of plan people and organization are free to contribute to candidates but they will not know if their contributions will ever be received by the candidate. If the public funding limit is set high enough it is likely that few campaigns will ever see "surplus" contributions.

I'd appreciate any thoughts people have.

Of Course They Are Listening

No person who cares even a little about preserving the Constitution and the rule of law can help but be outraged about the most recently disclosed NSA abuse - the collection of call logs for all Americans, except those lucky enough to use Qwest. It is outrageous on its face. As described, it may not violate the Fourth Amendment proscriptions against unreasonable searches and seizures, but it clearly violates several statutes, including the Foreign Intelligence Surveillance Act and the Telecommunications Act.

But the key phrase is "as described." They say they are only analyzing the data for patterns. They are not recording calls or collecting names and addresses. BALONEY. Who do they think they are fooling? There would be no point to "looking at patterns" unless you did something once the patterns are detected.

Before this is over, if we ever get to the bottom, we will find out that this is only the first step in a process of listening in on phone calls. Not just for the previously disclosed NSA wiretaps of foreign to domestic calls, but also purely domestic calls. That means you and me, not just the guy behind the tree.

Given this administration's track recording in detaining innocent people, they have been eavesdropping on thousands of innocent Americans for every one they identify who is even remotely connected to terrorism. We should not forget that of the approximately five thousand people arrested after 9/11 not one was prosecuted for anything related to terrorism. Of the five hundred plus cycled through Gitmo, the worst of the worst according to our esteemed and knowledgeable Vice President, hundreds have been release, only a few have actually been found by the Gitmo court to be enemy combatants and none have been tried for terrorism.

This administration has been conducting warrantless surveillance since 9/11 with precious little to show for it. Remember that Richard Reed was apprehended by the passengers on his flight rather than the NSA or the FBI. Zacarias Moussaoui was arrested before 9/11. The few other so called "terrorism" cases have involved a doctor wrongly accused of involvement in the Madrid bombing, people from Lebanon or Palestine who have raised funds for Hamas, which has never declared itself our enemy and is now the elected government of Palestine, and a few pathetic morons who may have gone to an al Qaeda training camp but who were never shown to have been planning anything in this country.

We are turning the Constitution and laws of our nation inside out for what. Because there are some radical Islamists in the middle east who were outraged by our stationing of troops in Saudi Arabia after the First Gulf War and acted on that anger by committing a heinous crime. We started to wipe them out in Afghanistan but let them off the hook so that we could invade Iraq. This only gave them a new recruiting tool.

These Islamists have declared themselves our enemy. But their enmity is not grounded in abstract principles. It is based on their opposition to our policies and actions in the Middle East. Instead of trying to address some of the underlying problems, we only make them worse.

The islamists have clearly demonstrated a capacity to cause us harm. But as horrific as 9/11 was for the victims, families and our nation as a whole it was not a threat to our nation's survival or our way of life. Only we can do that. And we do it by shredding the Constitution in the name of security.

This is not the threat of nuclear annihilation we faced in forty five years of the cold war. Why do we behave as if it is? We know why the Administration tries to convince us that it is WWIII. Fear is a potent governing tool. They have used it very successfully. But now it is time for the American people to say "enough."

Two Unhearalded Supreme Court Decisions Give Us Hope That The Constitution is still Alive

One can't make too much out of two decisions, but the Supreme Court recently breathed some life into the Constitution.

In Holmes v. South Carolina the Court unanimously held that the defendant has the right to introduce evidence that points to the guilt of another person and that casts doubt on the validity of the forensic evidence the State had introduced against him. Amazing! You read it right, and to think the South Carolina Supreme Court had ruled that this evidence was inadmissable. And what's more amazing is that this was a unanimous opinion of the U.S. Supreme Court.

In Jones v. Flowers the Court held that the State can't sell someone's property for back taxes unless reasonable steps are taken to notify the person. In this case, the registered letters notifying him of the pending sale and of the actual sale were retuned as undeliverable and no followup efforts were made to notify the homeowner. The homeowner didn't get the letters or know the taxes were due because he had stopped living in the house after his divorce. The taxes had been payed by his mortgage company, but after the mortgage was paid off the taxes went unpaid. In a 5-3 decision the Court said that when the State knows that a property owner has not received notice of a pending sale it can't just proceed with the sale. It has to expend some additional effort to locate and notify the homeowner.

Less we get too excited, it's worth noting that Thomas, Scalia and Kennedy dissented. Alito did not participate.

It Wasn't a Fighter Plane

I know this is a nit, but it's aggravating.

We just commemorated the third anniversary of the Mission Accomplished fiasco. It seems that every article on the subject misstates one little detail. The media accepts the White House spinmeister assertion that Bush was in a Fighter plane. They did this to magnify his machismo. But just like everything else that happened that day, this too was phony.

Bush did NOT land in a Fighter Plane. The plane he rode in was an S-3B Viking.

The first clue that it is not a fighter is the designation "S." If it were a fighter it would be designated with an "F", such F-14 , or "F/A" for fighter/attack, such as the F/A-18.

So what kind of plane is the Viking? It's principle role is in anti-submarine and anti-surface warfare. It is also can operate as a refueling plane for strike aircraft. It is great at what it does but would be toast if it was used in air to air combat as a fighter.

Maybe Dubya Should Tell Them They Can Stop Bringing it On

Way back in 2003 when the President told the insurgents to "bring it on" they were apparently listening closely and ready willing and able to oblige him. Over two thousand Americans and countless tens of thousands of Iraqis have been killed since then.

Maybe it's time for the President to tell them it is time to stop. They proved their point. They no longer need to bring it on. In fact he'd really be happy if they'd turn it off. They really heeded his words back then maybe they'd do the same now.