Sheridan: Con-Law

WATERBOARDING, TORTURE, WAR CRIME, PRESIDENT, A-G

There, we have it.

The United States prosecutes people for torturing our service people who fall into enemy hands.

This includes the water-torture, also called water-boarding.

If U.S. people commit this crime, we prosecute them criminally.

What about committing and prosecuting crime does Michael Mukasey, former federal prosecutor and federal judge, now GWB's candidate for U.S. Attorney-General, the chief law enforcement officer and setter of the moral tone for U.S. justice here and abroad, civilian and military, fail to understand.

He is unwilling to say that waterboarding is a crime.

Wny?

Perhaps because he'd have to investigate the president who appointed him and he fears what he might find as he went from CIA operative to Defense Secretary (Rumsfeld) to Cheney to Bush.

Bush is appointing this man because he knows he'll be protected.

Mukasey is unwilling to remove the protection.  He seems more willing to protect a potential law-breaker than to vindicate the rule of law.

This is why his confirmation by the Senate should be rejected.

See the article by Evan Wallach, a former JAG officer and current judge and professor of law, below, in the Washington Post, 11/04/07, entitled "Waterboarding Used to be a Crime."  I guess he thinks that Judge Mukasey has cast doubt on that given his view that the president can write his own laws, even those that supersede those written by Congress prohibiting degrading treatment of prisoners.

Senators Chuck Schumer of New York, who proposed Mukasey, a fellow New Yorker, and Diane Feinstein of California, both democrats, have announced that they will support the nomination.  Diane's excuse is that Mukasey is not Gonzales.  No, he's worse, because until now he enjoyed some credibility.  What are these senators thinking, voting to confirm Mukasey?  That there's one law for us and another for President Bush?  Remember, it's not just President Bush as an individual that we're talking about, but his entire chain of command down to the soldier in the field who captures an enemy soldier, combatant, or supporter in or near the field of conflict, which may be a battlefield or, in the new war on terror, in a city, i.e. anywhere.

So, to say that the president has immunity because of his alleged constitutional power to override anti-crime laws passed by Congress (something we haven't heard of before) gives not only him a license to commit crimes because he thinks it find and dandy, but all who take under him.  That's a lot of lawbreakers to wrap in the Constitution and permit to break the law.  Congress represents the people, mind you, us, in order to make our laws.  The president gets to carry them out, faithfully, not break them or invent his own, or make exceptions for his convenience.

The leading case on presidential duty to conform to the law as set forth by the people he serves, meaning as established by statute enacted by Congress, remains the Youngstown Steel (1952) case where Pres. Harry S Truman found to his chagrin that he could not take-over a steel company that locked out its workers to prevent a strike, as a war measure to keep the tanks and guns flowing during the Korean conflict when we had men dying in the field. 

Those who weren't around then may recall this war from the TV program MASH, located there. 

Congress had already denied the president take-over power to deal with labor disputes when it passed the Taft-Hartley Act in 1947.  The president was held not to have the power independently to act in derogation of Congressional act. 

Justice Jackson, in Youngstown, explained that the president's power was at its maximum when acting in accord with Congressional statute, and at its least when in opposition, and at its mid-level where Congress has not spoken to the point, statutorily.

Pres. Bush, in his treatment of captives policy, assuming that the reports of extraordinary rendition, failure to bring captives to court, and mistreatment of prisoners is true, as in Abu Ghraib and Guantanamo, is acting against statute and treaties of the United States.

It's a terrible thing to have a rogue president.

Given the make-up of the Court, now, with two arch-conservatives (Roberts and Alito) added by Bush to the other two, Scalia and Thomas) it is likely that if the question came up as to whether the president had the power under the Constitution to override acts of Congress making certain conduct a crime, that there might be another 4:4 split, with Stevens, Souter, Ginsberg, and Breyer in opposition.

Anthony M. Kennedy, is likely to be the tip-weight, the decider as to the Decider GWB, as usual.  He's an avowed conservative that will pull him one way, but he has a humane streak that may tend to favor the rule of law in a case like this.

L'etat c'est moi!

In case you may have wondered how the war resulting from the American invasion of Iraq connects to constitutional law, the following book review from the NY Times:

Former Law Adviser Speaks Out On Bush

 

By MICHIKO KAKUTANI

 

THE TERROR PRESIDENCY

Law and Judgment Inside the Bush Administration

By Jack Goldsmith

256 pages. W. W. Norton. $25.95.

In October 2003 Jack Goldsmith, a legal scholar with sterling conservative credentials, was hired to head the Justice Department’s Office of Legal Counsel, which advises the president and the attorney general about the legality of presidential actions. As he was briefed on counterterrorism measures the Bush administration had adopted in the wake of 9/11, Mr. Goldsmith says he was alarmed to discover that many of those policies “rested on severely damaged legal foundations,” that the legal opinions that supported these counterterrorism operations were, in his view, “sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president.”

Mr. Goldsmith eventually withdrew several key department opinions — including two highly controversial “torture memos” dealing with the authority of the executive branch to conduct coercive interrogation — but only after contentious battles with administration hardliners led by David Addington, then Vice President Cheney’s legal adviser and now chief of staff.

As Mr. Goldsmith recounts in his chilling new book, “The Terror Presidency,” he and his Justice Department colleagues (in consultation with lawyers from the State Department, the Defense Department, the C.I.A. and the National Security Council) reached a consensus in 2003 that the Fourth Geneva Convention (which governs the duties of an occupying power and the treatment of civilians) affords protection to all Iraqis, including those who are terrorists. When he delivered this decision to the White House, he recalls, Mr. Addington exploded: “ ‘The president has already decided that terrorists do not receive Geneva Convention protections,’ he barked. ‘You cannot question his decision.’ ”

The portrait of the Bush administration that Mr. Goldsmith — who resigned from the Office of Legal Counsel in June 2004, only nine months after assuming the post — draws in this book is a devastating one. It is a portrait of a highly insular White House obsessively focused on expanding presidential power and loathe to consult with Congress, a White House that frequently made up its mind about a course of action before consulting with experts, a White House that sidelined Congress in its policymaking and willfully pursued a “go-it-alone approach” based on “minimal deliberation, unilateral action, and legalistic defense.”

Similar portraits, of course, have been drawn by reporters and other former administration insiders, but Mr. Goldsmith’s account stands out by virtue that he was privy to internal White House debates about explosive matters like secret surveillance, coercive interrogation and the detention and trial of enemy combatants. It is also distinguished by Mr. Goldsmith’s writing from the point of view of a conservative who shared many of the Bush White House’s objectives (and who was an ideological ally of John Yoo, one of the main architects of the administration’s legal responses to a post-9/11 world and the author of some of the very opinions Mr. Goldsmith would later call into question). But he found himself alarmed by the Bush White House’s obsession with expanding presidential power, its arrogant unilateralism and its willingness to use what he regarded as careless and overly expansive legal arguments in an effort to buttress its policies.

Mr. Goldsmith does not go into detail here about his role on that March 2004 night when Alberto Gonzales, then White House legal counsel, and the White House chief of staff, Andrew Card, went to the hospital to visit an ailing Attorney General John Ashcroft to try to pressure him into approving a secret program (which was about to expire) over objections from Mr. Goldsmith and Deputy Attorney General James B. Comey. But he does provide a visceral sense of the tensions within the administration, with Mr. Ashcroft and members of the Justice Department often at odds with Mr. Gonzales and the White House, and the hard-line, hard-driving Mr. Addington, backed with the power of the vice president’s office, usually prevailing in the legal policy meetings held in Mr. Gonzales’s office.

Noting that “the president and the vice president always made clear that a central administration priority was to maintain and expand the president’s formal legal powers,” Mr. Goldsmith says that lawyers soon realized that they “could gain traction for a particular course of action — usually, going it alone — by arguing that alternative proposals would diminish the president’s power.”

Working with Congress on matters like detention and military commissions, Mr. Goldsmith says, would have helped the administration establish “a solid legal foundation” for the war on terrorism while diminishing “many complaints about legitimacy.” And yet the White House took working with Congress “off the table,” which meant that “a lot of sensible policy options” simply “were not available.”

Fear of another terrorist attack, Mr. Goldsmith contends, created pressure on administration officials “to act to the edges of the law.” He writes that Gen. Michael V. Hayden, former director  of the National Security Agency and now director of the C.I.A., would often say that after 9/11 he was troubled if he was not using “the full authority allowed by law,” and that he was “going to live on the edge,” where “his spikes will have chalk on them.”

This attitude “permeated the executive branch after 9/11,” Mr. Goldsmith says, and he agreed that his own job was “to make sure the president could act right up to the chalk line of legality.” But he adds, “Even blurry chalk lines delineate areas that are clearly out of bounds,” and in some pivotal cases he felt compelled to stand up to the hardliners and insist that the administration’s counterterrorism policies be put on sounder legal footing.

Of the notorious Aug. 1, 2002, torture memo (which narrowly defined torture as “extreme acts” causing “severe pain” of the sort that “accompanies serious physical injury” leading to “death or organ failure,” and which asserted that “any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution’s sole vesting of the commander-in-chief authority in the president”), Mr. Goldsmith writes that its concept of sweeping executive power had “no foundation” in prior Office of Legal Counsel opinions, or in judicial decisions, or in any other source of law.”

What’s more, “the conclusion’s significance sweeps far beyond the interrogation opinion or the torture statute,” he says. “It implies that many other federal laws that limit interrogation — anti-assault laws, the 1996 War Crimes Act, and the Uniform Code of Military Justice — are also unconstitutional, a conclusion that would have surprised the many prior presidents who signed or ratified those laws, or complied with them during wartime.”

Mr. Goldsmith is similarly scathing about how the Bush administration went about side-stepping the 1978 Foreign Intelligence Surveillance Act, which required the president and government agencies to obtain warrants from a special court before conducting electronic surveillance of people suspected of being terrorists or spies. Although he says he shared many of the administration’s concerns on this issue, he “deplored the way the White House went about fixing the problem.”

He quotes Mr. Addington saying of the surveillance act in court: “We’re one bomb away from getting rid of that obnoxious court.” And he observes that top Bush officials dealt with that act “the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.”

This sort of unilateral action, Mr. Goldsmith argues, led to “legal and political errors that became very costly to the administration down the road.” In his view it was also a strategy “guaranteed not to work” and “certain to destroy trust altogether,” for “when an administration makes little attempt to work with the other institutions of our government and makes it a public priority to emphasize that its aim is to expand its power, Congress, the courts and the public listen carefully, and worry.”

Mr. Goldsmith concludes this illuminating volume with the observation that unlike Lincoln and Franklin D. Roosevelt — two presidents who also presided over the nation at times of crisis — President Bush has relied only on “the hard power of prerogative,” ignoring “the soft factors of legitimation — consultation, deliberation, the appearance of deference, and credible expressions of public concern for constitutional and international values — in his dealing with Congress, the courts, and allies.” As a result, Mr. Goldsmith says, even if President Bush’s “accomplishments are viewed more charitably by future historians than they are viewed today,” they will “likely always be dimmed by our knowledge of his administration’s strange and unattractive views of presidential power.”

 

EXECUTIVE PRIVILEGE OR DIVINE RIGHT OF KINGS

This is the question, whether 'tis nobler to be ruled by a king or an elected dictator...

Pres. Bush is at it again, claiming more than his fair share of the celestial power marbles, the ones allocated by the Constitution to the three federal branches, not counting the 4th claimed by Vice Pres. Dick "I want it all, now" Cheney.

The WaPo article below explains:

VETO STATEMENTS

Suppose Congress enacted a bill, the president signed it into law, but said that there were parts he was not going to enforce because he thought they were unconstitutional.

Can a president pick and choose what he likes in a law and ignore the rest?

Pres. Bush thinks he can.  He routinely attaches "signing statements" to bills he signs into law stating that certain parts he's not signing into law, or maybe that some future president can enforce them, but he won't.

The American Bar Association doesn't quite say he's nuts, because they're very polite people over there.  They just say he's dead wrong and risking wrecking the Constitution by ignoring it.

Other than that it's just fine, I guess.  Bush and King James II.  What a couple.

See the New York Times article below.

CONTENT VS. TRAFFIC PATTERNS

When it comes to domestic crime-busting, cops and G-men love to listen in on the bad guys using, in the old days, wiretaps and planted bugs, and today whatever new technology can be taken advantage of.  If I recall correctly, one of the ways O.J. Simpson was reportedly located driving down the freeway in L.A. in his famous slow-speed chase was by the fact that he used a cell-phone while riding.  His transmissions indicated the phone cell in which he was located, and the next, and the next.  Police were more interested in what they could tell by the fact of his calling, which revealed his location, than, I suppose, anything he may have said at the moment, although what an unapprehended fleeing double-murder suspect has to say is always of interest to police.

The question is whether the Fourth Amendment protects more than just the content of a private conversation, assuming that a broadcast conversation is deemed to be private, as opposed to one going through the wires.  The first time the U.S. Supreme Court confronted wiretapping by police, in a case called Olmstead v. U.S (1928), it ruled against the privacy interest of the participant in the conversation.  This led to one of the most famous dissents of all time, Justice Louis Brandeis, which later became law.  Congress past the Electronic Communications Act, which memory says is 18 USC 605, although I may have the wrong title, so until we look it up, you're on your own for cites.

Here are the famous thoughts of Justice Brandeis, re-paragraphed, joined by Justice Holmes, setting forth the values that we need to fight for, just as they have been fought for in the past:

The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.

They recognized the significance of man's spiritual nature, of his feelings and of his intellect.

They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.

To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

And the use, as evidence [277 U.S. 438, 479] in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants' objections to the evidence obtained by wire tapping must, in my opinion, be sustained.

It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants' premises was made.

And it is also immaterial that the intrusion was in aid of law enforcement.

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.

Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.

The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. 12

 
...Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.

Our government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its example.

Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution.

Against that pernicious doctrine this court should resolutely set its face.

It'll take a bit of a research project for me to find a case where the prosecution, state or federal, offered into evidence in a trial, the pattern of traffic to show the commission of a crime, say a conspiracy.  But if A denies knowing B, and the police have evidence of phone calls between the two, the question is whether the police needed a search warrant to obtain this evidence.  I think that they do.

This is somewhat similar to the programs conducted by our national security agencies such as NSA (No Such Agency, it's so secret, or was, anyway) and CIA which have been so controversial recently.

By statute, they are not allowed to listen in on conversations between citizens in the United States.  But what if a citizen calls someone overseas?  Or two U.S. citizens speak to each other overseas?  Those are different.

But according to the news reports, it appears that the U.S. has been trying to track down terrorists by eavesdropping on conversations with one or both legs in the U.S., without a search warrant and in probable violation of statutes prohibiting warrantless eavesdropping within the U.S.  We have a special secret something called a court, the FISA "court" (it doesn't much resemble other courts), which is supposed to pass on the legality of government requests to eavesdrop on terror suspects without a warrant using less than probable cause, let's call it reasonable suspicion.

But it appears that the NSA  failed to request FISA-Court approval of its program to vacuum the airwaves for signals, then to run them through a computer using an algorithm to check for suspicious words.  This way those callers and recipients, and their phones, and the people they spoke to in turn, could be given special attention to see whether they were bad guys trying to hurt us.

The problem is that it appears that the NSA must've figured that it made no sense to bother going near the FISA Court because when you vacuum the entire broadcast spectrum, and other mass communication spectra such as Internet communications going through central hubs, there's no pretense that you have reasonable suspicion of anything, much less the goods on a suspected terrorist.

What you are doing is fishing, looking for a needle in a haystack by running a magnet over every straw in the pile hoping to find one or two that are of interest.

The question is whether the Constitution allows you, as a government agent to do this.  Traditionally the answer is "No."  This is what the problem is.  The president, GWB, seems to have taken the clear position that he is empowered, as Commander-in-Chief of the armed forces of the United States, to use all military means at his command, including vacuuming messages through whichever medium they are transmitted, to find and strike at terrorists, on behalf of you and me.

But we may not want our president to violate our Constitution to save us from terrorists.  We may feel that it's not worth the price to survive without our Constitution, our soul.  We   would win the battle but lose the war, as we'd have no privacy knowing that government, under the GWB theory, would have the power to put a microphone in every room of our homes, cars, jobs, and persons.  Government could keep track of us, who we speak to, what we say, and what we think. 

This would have a "Big Brother is Watching You" chilling effect of the first magnitude. 

A lot of people have fought and died for our rights, especially our rights to think and talk, our privacy, to give this up without a big constitutional fight.  This may be why government tries so hard to keep these programs secret, that and the fact they don't want the bad guys to know what's going on.  But the bad guys already know that they have to be careful using the wires and airwaves to communicate.  So it's only the good guys who finish last in this game, you and me.

We're the voters who, under our democratic system, have the final say over what our government does for, and to, us, in the name of our national security.

If government keeps us out of the loop, we're a big step removed from the democratic paragon we like to think we are.  We more closely resemble the bad guys we've fought in the past who didn't let their populations in on what was going on either.  This is something worth fighting against.

The article below from the National Journal, provided by a friend, who I thank but won't name, points out what seems to be occurring.

Do we want the president placing himself above the Constitution, if that's what he's doing, and it appears that he is?

Do we want Congress, representing us, reining him in?

Do we want the government abandoning the Constitution the way it did following Pearl Harbor when we interned Japanese-Americans, wholesale, on the theory that in this big haystack there may be one bad straw or a few?  Later we realized we'd made a big mistake by abandoning our principles because we were panicked and gave in to our worst fears.

Does it really make a difference whether our intelligence agencies focus their interest on traffic patterns as opposed to content?  Assume that all of your calls are thrown into a database and tabulated to see who you call.  Maybe later you'll be asked to explain.  Don't count on having access to the database.  The government will, if the database is doing anything useful, object on the ground of official privilege and national security.

I'm not suggesting that the answers to these questions will be easy to come up with.  I do suggest, however, that we fight tooth and nail for hard-bought rights, because as Lt. Col. Oliver B. North truly said  when he invoked his Fifth Amendment Right not to answer questions that might tend to incriminate him in a Congressional hearing, a right made infamous when invoked by suspected Communists and Organized Crime figures on national television back in the 'Fifties, "Men have died face down in the mud for these rights."  And so did Lt. Col. North.  I'm so thankful to him for having said this.

I wonder whether Pres. Bush has heard him.