Locus Medius

Hamdi Was a Different Set of Circumstances

The Bush administration keeps referring to the Hamdi case as being perfectly parallel to the wiretapping case.

Yaser Esam Hamdi, a U.S. citizen, was capture in Afghanistan in 2001 while allegedly fighting with the Taliban. Hamdi claimed he was an aide worker falsely accused of working with the Taliban.

Hamdi had been held without trial and the Supreme Court, in a complicated ruling with no true majority, ruled that under the AUMF, the President has broad powers to detain unlawful combatants. But they did rule that Hamdi had the right to due process, meaning a hearing before an impartial tribunal (although not necessarily a member of the judiciary) to review whether the evidence against him had merit. Normal criminal protections — burden or proof and ban on hearsay, specifically — would not apply.

The administration points to this case because the Supreme Court basically ruled that the Constition gave the President broad war-time powers and the AUMF only implicitly gave the President the authority to detain U.S. citizens indefinitely, while previous legislation had denied that authority. The administration argues that the wiretapping fits the same fact pattern — broad war-time powers, and implicit authorization under the AUMF replacing a previous ban on the practice.

However, the administration glosses over two points.

First, Hamdi was captured overseas, with evidence that he was fighting with an organization that the U.S. had effectively declared war on. This is not a case of someone suspected of talking to someone who might be a member of some organization. This guy took up arms against the U.S. That's got to be different, No?

Second, the Supreme Court upheld the right of due process, albeit with less benefit of the doubt to the defendant. In other words, the court provided for review of the detention by an impartial third-party who is not necessarily part of the formal Federal judiciary. Doesn't that sound very parallel to the FISA court — review of the President's actions by an impartial third party outside of the normal judiciary structure?

Interestingly, the two most conservative members of the court took exactly opposite positions. Thomas sided entirely with the government's position, arguing for the broadest war-time powers for the President, with Hamdi granted virtually no right for review of his case. (Note that Thomas is generally considered the weakest intellect among the justices.) Scalia, on the other hand, argued that the government's only options with regards to detaining a U.S. citizen are for Congress to suspend Habeas Corpus, which it has not done and probably could not do since it requires "rebellion" or "insurrection", or to try Hamdi under every-day, ordinary criminal law.

I guess complex questions of constitutional authority and contradictory legislation sometimes belie political ideology.

Update: Oh, I forgot to mention a couple points. First, Hamdi was held for two years in solitary confinement before he was even allowed to see a lawyer. And this is an American citizen. Also, he never did receive a hearing to review his designation as an enemy combatant, since the administration released him with a slap on the wrist rather than go through that process. (Note, he did lose his citizenship in the process, but that wasn't a big deal to him because he hadn't even know he was a citizen until after he was imprisoned -- having been born in the U.S. but growing up in Saudi Arabia. His captors were the first to point out to him that citizenship is automatic for anyone born within the U.S.)

Is It Possible To Be Both Correct and a Hypocrite?

In his daily briefing yesterday, White House Press Secretary Scott McClellan responded to an attack by Senate Minority Leader Harry Reid.

Reid:

President Bush needs to quit stonewalling about his White House's connection to corruption ...

McClellan:

This is more of the kind of partisan attacks that we see in this city that only lower the discourse in this town.

I couldn't agree with McClellan more. However, Bush et. al. is more guilty of those kind of attacks than anyone else in Washington. Pot ... Kettle ....

Gonzalez Toes the Line

Attorney General Alberto Gonzalez continues to toe the administration's line regarding the wiretapping program. In a speech at Georgetown Law School, which was met with protests, Gonzalez defended the wiretapping. Let's examine some of his points:

Gonzalez starts with the requisite:

Just after dawn on September 11th, 2001 ...

Anyone else tired of hearing 9/11 trotted out to defend whatever random action the administration takes?

Wiretapping Hearings

So I've been blabbing on about there being no Congressional investigation into Bush's wiretapping. I clearly don't have very many readers or someone would have pointed out that the Senate Judiciary Committee is holding a hearing in two weeks on exactly that.

One of these days I hope to have enough readers that someone will tell me when I'm being an idiot. :)

Evolutionism? — Nah, No Such Thing

John Rennie at Scientific American posts a critique of Judith Shulevitz's review of Eugenie C. Scott's Evolution vs. Creationism : An Introduction and Michael Ruse's The Evolution-Creation Struggle.

The main gist of Rennie's critique is an objection to Shulevitz's support of the concept of "evolutionism" — "the part of evolutionary thought that reaches beyond testable science".

I did not realize there was a "part of evolutionary thought that reaches beyond testable science". There is a train of secular modernist thought that utilizes evolution as part of its philosophical basis, but that has nothing to do with science.

The misnamed Theory of Evolution — it really should be Law of Evolution, since its as fundamental and well-tested as any other physical "law" — is a robust, accepted, logically consistent theory of the origin of species. It is not a belief system. Science is not a matter of belief. Science is a process which produces, at any point in time, an explanation that best fits the currently known observations. It does not rely on blind faith or revelation. It is not religion. It is not even philosophy. It is merely an algorithm which produces useful results.

If you want to know how the world works, you engage in the algorithm we refer to as "science" ... if you want to call a friend on the phone, you engage in the algorithm we refer to as "dialing the phone". Neither requires any religious or philosophical underpinnings, they are merely methods that have historically achieved good results. As soon as science stops effectively explaining the world, we will try something else. As soon as dialing the phone stops effectively calling a friend, we will also try something else.

Media — Complete Abdication of Responsibility

Note: For those clicking in to this article from Scientific American, I accidentally linked the trackback incorrectly. The post it was supposed to link to is here.

How come John Stewart is the only member of the "media establishment" to point out the fallacy of Bush's claim that the wiretapping will help to "connect the dots".

Stewart pointed out in his show the other day that we had all of the data we needed to anticipate 9/11 ("dots"), the problem was analyzing the data ("connecting the dots").

He illustrated this with a graphic that showed four dots in a line representing things we knew, labeled something like "Al Qaeda determined to attack within the U.S.", "Al Qaeda known to be planning to use planes as weapons", "FBI was aware of suspicious individuals taking flight lessons" and "World Trade Center had previously been targeted". He then pointed out (sarcastically) that the problem was that "we obviously need more dots", at which point the graphic was filled in with hundreds of randomly placed dots — obscuring the four important ones.

This is what the wiretapping provides, more dots. So don't let Bush tell you that his wiretapping allows the intelligence services to "connect the dots". If anything, having more dots makes it harder to connect them, not easier. I'm not saying that more dots cannot be helpful, I'm just tired of being lied to and having the media roll over and meekly repeat the lie.

NPR's On the Media had a funny quote from the Daily Show over the weekend. They were talking about this same topic — media abdication of responsibility — and quoted a Daily Show skit where the correspondent pointed out that "my job as a journalist is to spend half my time quoting one side and half my time quoting the other side ... that's called being unbiased". [this is as well as I can remember it, but I think its pretty close to exactly what the line was]

Unfortunately, I think that many journalists actually believe that. Political reporting has turned into "he said, she said", while the partisan pundits feed talking points to their adherents en masse. So the political discourse and reporting has been reduced to Rush Limbaugh and Michael Moore trading jabs and preaching to their respective zombies, while journalists do little more than repeat what each one said.

Meanwhile, John Stewart is the only one out there pointing out that the Emperor has no clothes. If only his show was not slanted to the Sissy side. It is unfortunate because it means that the Nutjobs on the right can dismiss it out of hand — ignoring some real insight into what's going on.

Update: I found a link to the video on Comedy Central's website of that night's episode. Its pretty funny. To me it illustrates the extent to which the Daily Show provides real analysis and commentary, hidden within its humorous segments.

More on Leahy's Resolution

I posted yesterday regarding Senator Leahy's proposed resolution which clarifies that the AUMF did not authorize the administration's wiretapping program. Although I linked to the text of the resolution, I did not notice the Senator's statement regarding the resolution posted on his website.

I think portions of this statement show the degree to which not only did Congress fail to explicitly authorize the wiretapping, they explicitly and purposefully chose not to authorize such a program.

During those days the Bush Administration never asked us for this surveillance authority or to amend the Foreign Intelligence Surveillance Act to accommodate such a program.

Leahy's Brilliant Move

On January 20, Senator Patrick Leahy (D-Vt.) submitted a resolution in the Senate clarifying that "the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens." [emphasis added]

The reason I think it is brilliant is that it will force Senate Republicans to explicitly take sides on the wiretapping issue. Most Republican legislators have tried to keep a low profile on this issue. Taking the administration's side on wiretapping could prove politically damaging, since many Americans are disturbed by the wiretapping. Taking sides against the administration splits the Republican party.

The downside potential, though, is if the resolution does not pass — which would bolster the administration's argument that the AUMF does authorize such surveillance.

Either way, though, the resolution forces the Senate to address this issue. Ideally, it could force the Senate (or the House) to actually investigate this issue.

My Opinion on the Wiretapping

As I have indicated previously, I still have not formed my own opinion about Bush's wiretapping program. (I also previously posted another legal analysis.)

Now that it is out in the open, though, I strongly support an attempt to have the courts rule on this issue. That way, if the wiretapping is found to be legal, next time there is a drastically lower probability that the program would be leaked. (At the very least, the administration's supporters in this issue must concede that the leaks occurred because of concerns about legality, not because the leakers were trying to "hurt America".) Similarly, if the program is found to be illegal, there is much less chance that such a program would be initiated in the future and, if initiated, an even higher chance of a whistleblower revealing the program.

It does continue to bother me, though, that the administration secretly initiated a program that Congress explicitly refused to authorize. Based on this statement, one can surmise which way my opinion is leaning, but I am not yet in a position to take a stand. See, partisans, complex issues do not necessarily have simple solutions. Us middle grounders do not make up our minds based on affiliation with one side or the other. We actually analyze facts.

Update on Bush Wiretapping

In an open letter to certain members of Congress [PDF, but a short one], a group of legal heavyweights gives a compelling explanation why Bush's wiretapping program is, indeed, illegal. This directly contradicts the view I quoted previously. It is also interesting to read the Department of Justice's letter defending the wiretapping program, which this letter was written to refute.

First, I should point out that the lawyers who signed the letter include a former Counselor on International Law in the State Department Legal Adviser's Office, a former Chief United States District Judge and a variety of former Attorney General and Solicitor General employees of various senior levels (for example, Acting Solicitor General, Deputy Attorney General, etc.). The complete list of signatories (not surprisingly) is located on the last page of the PDF.

Here's their conclusion in a nutshell:

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance — but only for the first fifteen days of a war. It makes criminal any electronic surveillance not authorized by statute; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance … may be conducted,". [emphasis added]

[The Department of Justice] maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda. But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

In other words, FISA is very explicit about the wartime presidential wiretapping authority.