Category ►►► Terrorism Intelligence

July 1, 2008

The New "Fairness" Doctrine

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

• Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
• Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
• Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

2. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM | Comments (10) | TrackBack

February 19, 2008

Fair and Balanced - AP Style

I predicted this many years ago, but it still amazes me when a putative news source publishes an article on a controversial issue being pushed by the Left -- and doesn't even trouble to ask a single person on the right to comment.

The issue in this case is the Terrorist Surveillance Program, the NSA al-Qaeda intercept program that President Bush began shortly after the 9/11 attacks. The ACLU and various other anti-American activists brought suit against the federal government on the grounds that they were convinced the purpose was really to spy on American dissidents. They won at the district level, but the Sixth Circus tossed them out of court; and today, the Supreme Court denied certiorari:

The Supreme Court dealt a setback Tuesday to civil rights and privacy advocates who oppose the Bush administration's warrantless wiretapping program. The justices, without comment, turned down an appeal from the American Civil Liberties Union to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks.

The action underscored the difficulty of mounting a challenge to the eavesdropping, which remains classified and was confirmed by President Bush only after a newspaper article revealed its existence.

Their case has been dismissed by a federal appellate court, and now the Supreme Court has rejected it as well. I can understand why some might consider that "a setback" to pursuing it further... but thank goodness they're not giving up yet!

The ACLU is quoted defending its position; the ACLU's position is described (positively); the ACLU's position is argued. A similar lawsuit filed by an Islamist "charity" front group is sympathetically described, and the suits against the telecoms are mentioned without comment.

But not only do we find not a single argument, comment, or even encouraging word for the president's side... there isn't any indication they even tried to get any. There isn't even the pathetic excuse I see so often... that the spokesman for so-and-so "did not return the phone call from" or "get back to" the reporter in the fifteen minute window he allowed for rebuttal. It appears they never bothered asking a presidential spokesman or supporter of the TSP to defend it.

I doubt there was any discussion about this in the AP newsroom; in fact, I strongly suspect the thought never even occurred to either the (anonymous) reporter or the AP editors to find some Republican and ask him what he thought about the case, the program, or the plaintiffs. Were it suggested, the response would likely be the same blank stare as if someone had suggested they ask a spokesman for the American Nazi Party or the KKK what he thought about blacks and Jews being allowed to vote.

The New York Times is currently carrying the AP story without any changes; I'm sure they'll eventually write their own... we shall follow the progress of the Times' story with great interest. Interestingly, the Washington Post has an earlier version of this AP story that includes this feeble, half-hearted attempt on the part of the (still anonymous) writer to characterize the president's position:

The White House said the monitoring was necessary because the 1978 Foreign Intelligence Surveillance Act left dangerous gaps in the government's eavesdropping authority.

One can almost hear the snort of derision and see the eyeballs rolling as they wrote this. Yet even this single, grudging sentence of explanation -- which fortunately didn't require anyone at AP actually to talk to a Republican -- was dropped from the later story.

My prediction: More and more, this will become the norm. The elite media will finally drop the charade that they have any objectivity at all and sink, openly and brazenly, to the level of journalism in the 18th and 19th centuries... where newspapers attacked their political opponents with wanton abandon, without the slightest pretext of impartiality.

The difference, alas, is that back then, there was a fairly even mix of political opinion in these wildly partisan newspapers. Today, we have a sea of blue speckled here and there with dots of red. In this environment, such pugnacious press partisanship is not just a disservice to the country... it's actually dangerous to our continued existence.

Hatched by Dafydd on this day, February 19, 2008, at the time of 3:05 PM | Comments (5) | TrackBack

February 13, 2008

A Very Patterico Moment

I want to set up a very realistic situation where I would certainly advocate we waterboard a suspect, and ask whether Patterico would do likewise. I suspect he will be on my side on this one, but I don't know for sure: His prosecutorial background gives him a very different perspective than I, a non-lawyer, can have. I'm especially curious because Patterico is adamant that waterboarding is torture; but he does not dogmatically insist that it should never, ever be used under any circumstances.

What I want to create here is not a cartoon situation -- if you don't waterboard this guy, the entire planet will blow up in thirty minutes! -- but rather a very real circumstance in which a CIA station chief in, say, Poland might find himself.

Naturally, everybody else is free to chime in, too. Maybe Patterico will be willing to put up a link, so his own readers can comment here. Or alternatively, they can read the scenario and comment at P's Ps.

Here we go...

You are a CIA station chief in an undisclosed, secret CIA prison in Poland (with Warsaw's consent). A prisoner is brought to your location, picked up by the Germans in Afghanistan and transferred to U.S. custody six days ago. We'll call him Mahmoud.

Mahmoud was not previously known to any intelligence agency before his capture (he was not the main target of the raid). He doesn't appear to be a big fish. But when he was grabbed, he had a laptop with him, and he was in the process of trying to erase the hard drive. Most of the information is irretrievably gone, a little bit remains; and within that remaining little bit, your techies manage to extract references to a huge attack planned for somewhere on the American mainland. From the timeframe discussed, it appears to be one to three months away. You don't know anything more than that.

You do not know for sure whether Mahmoud has more detailed information about the attack, but he evidently knew enough to try to erase the drive, even at risk of his own life. He has already been interrogated by the Marines and by CIA personnel where you are, but it's clear he has more information that he's holding back. The timeframe is tight enough that you must make a decision immediately, but not so tight that there would be no time to act on any information.

So what you know is this:

1. A major attack is planned somewhere in the continental United States;
2. Mahmoud may or may not be a major player, but he appears to know something significant about it;
3. However, he might not know enough to allow authorities to thwart the attack. But on the other hand, he might;
4. He would not talk under ordinary interrogation. You might be able to break him given time, but every week that passes makes it less likely his intelligence can be used to stop the attack.

We add one more point:

5. You already have solid evidence that he participated in some attacks on American troops that resulted in fatalities. So if we want to try him later at a military tribunal, we don't need a confession to convict him; we already have ample forensic evidence.

You ask the DCI whether you can waterboard him; word comes from the White House via the DCI that you are authorized to waterboard Mahmoud, but you must use your own discretion whether you actually do it: You are the only one close enough to the scene to make that call. You get the impression that the president will stand behind you, whatever you decide... but of course, that only applies to this particular president. You don't know who will be president in 2009.

So the question is, do you order Mahmoud to be waterboarded? I have told you that I would say yes, waterboard him; I will also say that absent point 2 above, I would probably say no.

This is as realistic (and borderline) as I could make it without having more specific knowledge of any real-world situation similar to this. So, Patterico... what say you? (And everybody else, what say youse?)

I absolutely love asking intelligent people tough ethical questions that reside in the twilight zone between "decidedly yes" (Ayman Zawahiri) and "of course not!" (Cindy Sheehan). I enjoy watching how they think the situation through, to gain an insight into how others go about resolving such dichotomies between lives and souls.

Hatched by Dafydd on this day, February 13, 2008, at the time of 11:35 PM | Comments (21) | TrackBack

Another Painful, Humiliating Loss for Majority Leader Harry Reid...

...Another legislative victory for America:

The president’s remarks came the morning after the Senate handed the White House a major victory by voting to broaden the government’s spy powers and to give legal protection to phone companies that cooperated in President Bush’s program of eavesdropping without warrants.

The immunity for the phone companies is the key difference between the Senate bill and the one passed by the House last year. The president said that without that protection, American telecommunications companies would face lawsuits that could cost them billions of dollars. Without the protection, he said, “they won’t participate, they won’t help us.”

“Liability protection is critical to securing the private sector’s cooperation with our intelligence efforts,” Mr. Bush said.

The bill now returns to the House of Representatives, which refused to grant such retroactive immunity to the telecoms before... presumably on the grounds that they had helped us identify terrorist cells in the United States right after the 9/11 attacks; and, well, no good deed goes unpunished. Or should, if the Democrats have their way.

Incidentally, Democratic presidential candidate Barack Obama raced to Washington D.C. (or perhaps simply stayed there, if he was there for the primary yesterday) to vote against the immunity clause in a failed amendment that would have stripped it from the bill; but then he suddenly became unavailable and incommunicado for the roll-call vote on the actual bill. As was Hillary Clinton, also a Democratic presidential candidate. Profiles in courage!

How bad was the thumping of Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%)?

On Tuesday, the Senate rejected amendments that would have imposed greater civil liberties checks on the government’s surveillance powers. Finally, the Senate voted 68 to 29 to approve the legislation, which the White House had been pushing for months.

The outcome in the Senate amounted, in effect, to a broader proxy vote in support of Mr. Bush’s wiretapping program. The wide-ranging debate before the final vote presaged discussion that will play out this year in the presidential and Congressional elections on other issues testing the president’s wartime authority, including secret detentions [of international terrorists], [so called] torture and Iraq war financing.

That last point, innocuously labeled "Iraq war financing," covers a multitude of leftist sins. It also means that the Democrats plan to try -- for about the eleventh or twelfth time -- to strangle war funding during a war and force defeat on troops who are currently pressing on to victory. This Quisliotic effort is led by the defeatist Reid, who famously declared many months ago, before the counterinsurgency even began, that it had already failed; that we had already lost; that the only thing left to do was evacuate the field and let al-Qaeda take over Iraq.

He spoke only the truth as he saw it, for Harry Reid is an honorable man. So are they all, all honorable men.

The attempted surrender in Iraq had, of course, nothing whatsoever to do with the Democratic Party compulsion to blame everything they hate, from the war to terrorism to the weather to the Boy Sprouts, on President George W. Bush. Honorable men would never be so petty and reckless as to precipitate military defeat and the deaths of hundreds of thousands, just to embarass our own government. And they are all honorable men.

So the next question is, will Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 95%) now throw herself on the defeatism landmine, bravely immolating herself to rescue the leadership of her Senate counterpart -- at the expense of her own?

Is a rabbi Catholic? Does Ivana Trump sleep in the woods?

How big was the victory for the United States of America in the valiant quest to exterminate the human sacrificers in al-Qaeda, Hezbollah, and other transnational terrorist groups, along with their national sponsors in the Arab states, in Pakistan and Indonesia, and especially in Iran -- our war against global hirabah (Arabic for "unholy war")? Take a look at what our "lame duck" president achieved in Harry Reid's Senate:

The measure extends, for at least six years, many of the broad new surveillance powers that Congress hastily approved last August just before its summer recess. Intelligence officials said court rulings had left dangerous gaps in their ability to intercept terrorist communications.

The bill allows the government to eavesdrop on large bundles of foreign-based communications on its own authority so long as Americans are not the targets. A secret intelligence court, which traditionally has issued individual warrants before wiretapping began, would review the procedures set up by the executive branch only after the fact to determine whether there were abuses involving Americans.

“This is a dramatic restructuring” of surveillance law, said Michael Sussmann, a former Justice Department intelligence lawyer who represents several telecommunication companies. “And the thing that’s so dramatic about this is that you’ve removed the court review. There may be some checks after the fact, but the administration is picking the targets.” [As opposed to unelected federal judges on the secret FISA court -- all honorable men -- picking the terrorist-surveillance targets.]

The Senate plan also adds the provision that was considered critical by the White House: shielding phone companies from legal liability. That program allowed the National Security Agency to eavesdrop without warrants on the international communications of Americans suspected of having ties to Al Qaeda.

More than three dozen lawsuits have already been filed against AT&T, MCI, and other telecoms for violating the privacy rights of Americans who receive phone calls from al-Qaeda. It would be rude and offensive for us to compare these lawsuits to the threats by the Council on American Islamic Relations (CAIR) to target a huge bunch of "John Doe" passengers in the lawsuits filed by CAIR on behalf of the "flying imams" against US Airways. Certainly there can be no similarity between lawsuits designed to stop telecoms from participating in future efforts to identify al-Qaeda cells inside the United States -- and suing passengers for reporting extremely suspicious behavior by Moslem activists on an airline flight from Minneapolis to Phoenix.

No, we can all agree they're not in the least bit similar; still, I wonder how many Democrats would also vote against extending immunity to ordinary citizens who report suspicious, terrorist-like behavior to authorities, immunity from being sued for daring to speak up.

(We'll probably never know; both the House and Senate finally reinserted such protection into the reauthorization of the Homeland Security Bill in late July, 2007... but only after the Democrat-led conference committee first stripped it from the bill on July 20th. I don't know what deal was struck to get it back in, but I believe it was finally reinserted into the final bill before passage.)

Contrariwise, we certainly do know that there are 21 "Blue Dog" Democrats willing to vote for the Senate version of the FISA-reform bill:

Some House Democrats were prepared to support immunity, regardless. In a Jan. 28 letter, 21 Democrats in the conservative Blue Dog Coalition sent a letter to House Speaker Nancy Pelosi, D-Calif., supporting immunity and listing other provisions that they believed were needed in a FISA bill.

They wrote that the Senate bill “contains satisfactory language addressing all these issues, and we would fully support that measure should it reach the House floor without substantial change.”

Those 21 Democrats, plus the 202 Republicans in the House, makes a 51% majority in favor of reforming FISA to allow intelligence agencies to engage in rapid-response surveillance, rather than wait weeks for a FISA decision -- and have to show "probable cause" to surveille even foreign terrorists living abroad. And of course, there are other Democrats who will support the Senate version just to prevent the FISA law from expiring, as President Bush has already announced that he will support no more temporary extentions.

On the other side, some of those 202 Republicans might vote against it. But clearly, this is a vital issue in the war on global hirabah; a substantial portion (possibly a majority) of the House supports it; and the Senate just passed it overwhelmingly.

Of course, Speaker Pelosi pushed instead for a 21-day extension of the bill... knowing the Senate would never go along, and the president wouldn't sign it anyway. Of course, it might buy a few days time. Of course, the August extention expires Saturday. Of course, the House won't be in session either tomorrow or Friday. Of course, of course.

Of course, the delay tactic failed when "more than 30" Blue Dogs joined the Republicans to vote it down, 229 to 191.

That means the Speaker has only two options left in her bag of tricks:

1. Refuse to vote on the Senate bill, thus allowing the entire edifice of the Foreign Intelligence Surveillance Act reform to expire in three days... leaving our intelligence agencies high and dry. And all for the want of the will to allow a vote that Pelosi knows she will lose.
2. Hold her nose and hold the damned vote.

Which hand will she choose? I suspect that by the end of the day, we will have a vote and a new FISA law sent to the president's desk for signature. That will resolve our intellignece crisis... for the next six years; after which -- you're way ahead of me -- it will expire. Again.

Democrats: So are they all, all honorable men (and women).

Hatched by Dafydd on this day, February 13, 2008, at the time of 4:49 PM | Comments (3) | TrackBack

February 5, 2008

Al-Qaeda "Movin' On Out?"

According to prepared testimony delivered by Director of National Intelligence Michael McConnell to the Senate Select Committee on Intelligence -- chaired, oxymoronically enough, by Sen. John D. Rockefeller IVth (D-WV, 60%) -- al-Qaeda has largely been thwarted in their attempts to launch attacks in Iraq; so they are focusing on conducting future operations from the "lawless" regions of Pakistan along the Afghanistan border. But they are still aggressively pursuing a strategy of carrying out major attack on the West, and have indeed tried several already (which we and our allies shut down):

Last summer, for example, with our allies, we unraveled terrorist plots linked to al-Qa’ida and its associates in Denmark and Germany.... The death last week of Abu Layth al-Libi, al-Qa'ida’s charismatic senior military commander and a key link between al-Qa’ida and its affiliates in North Africa, is the most serious blow to the group’s top leadership since the December 2005 death of then external operations chief Hamza Rabi’a.

Al-Qa’ida in Iraq (AQI) suffered major setbacks last year, although it still is capable of mounting lethal attacks. Hundreds of AQI leadership, operational, media, financial, logistical, weapons, and foreign fighter facilitator cadre have been killed or captured. With much of the Sunni population turning against AQI, its maneuver room and ability to operate have been severely constrained. AQI’s attack tempo, as measured by numbers of suicide attacks, had dropped by more than half by year’s end after approaching all time highs in early 2007. We see indications that al-Qa’ida’s global image is beginning to lose some of its luster; nonetheless, we still face multifaceted terrorist threats.

Unfortunately, they are also making progress towards once again being able to attack the United States directly:

Al-Qa’ida’s central leadership based in the border area of Pakistan is its most dangerous component. Last July, we published a National Intelligence Estimate titled, "The Terrorist Threat to the US Homeland," which assessed that al-Qa’ida’s central leadership in the past two years has been able to regenerate the core operational capabilities needed to conduct attacks in the Homeland.

In particular, here are McConnell's concerns:

• That "Al-Qa’ida has been able to retain a safehaven in Pakistan’s Federally Administered Tribal Areas (FATA)." It's not as large or secure as the one that used to be in Afghanistan; but it can be used for training purposes and as a platform whence to stage attacks "in Pakistan, the Middle East, Africa, Europe and the United States."
• They have managed to maintain a cadre of somewhat skilled lieutenants and operations officers in the Pakistan border region.
• And they have managed to recruit a number of Westerners to their Pakistan safe haven to carry out major attacks on the West.

One very positive note from the DNI:

AQI tactics, tradecraft, and techniques are transmitted on the Internet, but AQI documents captured in Iraq suggest that fewer than 100 AQI terrorists have moved from Iraq to establish cells in other countries.

So the spirit is willing, but the investment of flesh is weak.

Also, interestingly enough, it appears that, like Dr. Frank-N-Furter, AQI's mission is a failure, their lifestyle's too extreme: Numerous religious leaders formerly associated with al-Qaeda have begun denouncing them and their violence (against Moslems, that is); and fewer unconnected terrorist groups and extremists see AQ, or especially AQI, as the model for their own hirabah (unholy war).

I think it increasingly clear that the current situation in Pakistan is unacceptable: Americans can go up to but not across the border between Afghanistan and Pakisan, while President Pervez Musharraf pledges to crack down on the militants in Waziristan and Balochistan and then breaks his pledge. (Whether out of mendacity or simple inability to make headway against the Taliban and al-Qaeda and their supporters is irrelevant.) We must either negotiate a new arrangement with Musharraf -- or else implement one in spite of him.

Later, speaking abour Iran's WMD programs, Mike McConnell clarifies some of the conclusions of the infamous National Intelligence Estimate that said Iran had stopped its nuclear program. What the NIE actually meant, says the Director of National Intelligence is:

• Iran stopped "warhead design and weaponization" and covert attempts to enrich uranium;
• They have not stopped declared programs to enrich uranium (perhaps even weaponizing it);
• And they have actually accelerated their ballistic-missile program, closing in on being able to fire a missile from Iran and hit targets in the United States mainland.

About the other elements of Iran's WMD program:

We know that Tehran had a chemical warfare program prior to 1997, when it declared elements of its program. We assess that Tehran maintains dual-use facilities intended to produce CW agent in times of need [sound familiar...? -DaH] and conducts research that may have offensive applications. We assess Iran maintains a capability to weaponize CW agents in a variety of delivery systems.

We assess that Iran has previously conducted offensive BW [biological warfare] agent research and development. Iran continues to seek dual-use technologies that could be used for biological warfare.

Finally, McConnell noted that, like Iraq, the Afghan army is growing slowly and becoming more and more effective; while the Afghan National Police has grown more quickly -- but "corruption, insufficient training and equipment, and absenteeism hamper their effectiveness."

McConnell concluded on a hopeful (if not Pollyannic) note:

I, my colleagues, and the Intelligence Community we represent are fully committed to arming our policymakers, warfighters, and law enforcement officers with the best intelligence and analytic insight we can. This is necessary to enable them to take the actions and make the decisions that will protect American lives and American interests, here and around the world.

Considering that the Senate I-Com, the very body that DNI Mike McConnell was addressing, now sports such stalwarts of the aggressive collection and distribution of intelligence as Sens. Barbara Mikulski (D-MD, 100%), Sheldon Whitehouse (D-RI, not yet rated), Russell Feingold (D-WI, 100%), and Dianne "DiFi" Feinstein (D-CA, 90%) -- not to mention their Republican counterparts, including Sens. Chuck Hagel (NE, 75%), John Warner (VA, 64%) (for the rest of this year), and Olympia Snowe (ME, 36%) -- the idea that they will make any decision or take any actions at all about anything significant is charming... but about as realistic as the idea that Ron Paul would aggressively pursue the war against global hirabah.

Hatched by Dafydd on this day, February 5, 2008, at the time of 11:51 PM | Comments (4) | TrackBack

December 10, 2007

Hoodwinkers and Their Codependents: In Search of Intelligent Intelligence on Iran

British intelligence evidently reads Big Lizards; the first paragraph of this Telegraph story says it all:

British spy chiefs have grave doubts that Iran has mothballed its nuclear weapons programme, as a US intelligence report claimed last week, and believe the CIA has been hoodwinked by Teheran.

In our first post (six days ago) on the subject of the New! Revised! National Intelligence Estimate (NIE), Nothing to See Here, Folks... Time to Just Move On!, we suggested the possibilty that the "new evidence" upon which the National Intelligence Council cobbled up its new NIE could have been part of a "disinformation campaign" by the Iranians:

[Washington Times reporters Jon Ward and Bill] Gertz's story offers some support for the central Timmerman allegation, in the form of a non-denial from intelligence officials:

Senior U.S. intelligence officials who briefed reporters on the Iran nuclear estimate said it is "plausible, but not likely" that Iran's suspension is part of a "strategic deception" operation, because of continued Iranian government "denial and deception" efforts.

"We do not know if Iran intends to develop nuclear weapons but assess with moderate to high confidence that Tehran at a minimum is keeping open the option to develop nuclear weapons," said one official involved in drafting the more-than-140-page document.

So even the officials involved in producing and briefing the NIE agree that it's at least "plausible" that the supposed suspension is a "deliberate disinformation campaign." As several commentators have said, it's a lot more dangerous to believe the program is suspended if it really isn't -- than to believe it hasn't been suspended when it really has.

Whether or not that "new evidence" was accurate or a ruse, it was uncritically seized upon by three principal authors of the 2007 Iran NIE -- Tom Fingar, formerly of the State Department's Bureau of Intelligence and Research; Vann Van Diepen, the National Intelligence Officer for WMD; and Kenneth Brill, the former U.S. Ambassador to the International Atomic Energy Agency (IAEA) -- who already held a quasi-religious faith in diplomacy, not "saber rattling," to solve the Iranian nuclear-weapons crisis.

In our second post on the New! Possibly Fabricated! NIE, Of Course We Trust This Journal That Just Fell Into Our Hands..., we called your attention to a Los Angeles Times article (free registration required) that elucidated the provenance of that "new evidence". It came first from intercepted phone conversations among Iranian nuclear-weapons developers; and second, from a "journal," ostensibly kept by one of those weapons developers and stuffed full of what would be highly classified intelligence, that was handed to U.S. intelligence officers by a person about whom we have been told... exactly nothing.

Acting on nought but my own uninformed analysis, here is what I noted after discovering what new evidence Fingar, Van Diepen, and Brill (and others in the CIA and State Department) found so persuasive:

To my admittedly untrained and non-authoritative mind, if I wanted to convince the CIA that I'd stopped my nuclear weapons program and persuade them to bang the gong for a massive incentive program for my country -- I think I would have various government officials discuss this terrible secret in a not-so-secure environment; and I think I would accidentally drop a journal where it would be sure to be found.

Spinning yarns for stretched ears and handing over a notebook that contains exactly what your audience wants to read is just about the best method of duping your foes. It's intelligence jujitsu.

Critical analysis is what we do at Big Lizards. We're not news reporters; we're secondary sources, reading "the first draft of history" (as Philip Graham called journalism) and using our brains to sort out what ought to be, perhaps, the second draft... after a good editor has gone through, making connections missed in the heat of a deadline -- and tossing out what "20-20 hindsight" shows is obvious nonsense. (Actually, hindsight is never better than 20-100; but it doesn't have as big an astigmatism as the twisted view of contemporaneous observation.)

And now, courtesy of the Daily Telegraph, we have this satisfying confirmation that other analysts, ones with actual knowledge of the intelligence in question, have the same qualms:

A senior British official delivered a withering assessment of US intelligence-gathering abilities in the Middle East and revealed that British spies shared the concerns of Israeli defence chiefs that Iran was still pursuing nuclear weapons.

The source said British analysts believed that Iranian nuclear staff, knowing their phones were tapped, deliberately gave misinformation. "We are sceptical. We want to know what the basis of it is, where did it come from? Was it on the basis of the defector [former Revolutionary Guards Gen. Alireza Asgari]? Was it on the basis of the intercept material? They say things on the phone because they know we are up on the phones. They say black is white. They will say anything to throw us off.

"It's not as if the American intelligence agencies are regarded as brilliant performers in that region. They got badly burned over Iraq."

That last line is very disturbing; first, because it implies that British intelligence believes the CIA is simply swinging widly, like an out of control pendulum, between overestimating and underestimating WMD capabilities... and second, because British intelligence is probably right.

Under previous administrations (Presidents Jimmy Carter and Bill Clinton), we slashed our committment to "humint," or human intelligence -- actual spies -- to a doleful level, preferring to rely almost exclusively on "sigint," signals intelligence: satellite photos, cell-phone intercepts, electromagnetic tracking of electrical-cable traffic, and so forth.

Sigint is great for showing movement of physical objects, how a country's emergency-alert electrical grid operates, and clandestinely surveilling conversations. Sigint will tell us the state and condition of the enemy's means to carry out its intentions; but it simply cannot tell us what those intentions are in the first place. Sigint cannot tell us what he intends to do next; we only learn what he says -- over phone lines he knows are probably compromised -- he's going to do next.

In order to have a good read on actual intentions, you need physical human beings, actually loyal to the United States (not just turned or bribed double-agents), infiltrating the enemy's institutions and getting right up inside his OODA loop. Preferably someone who has lived and worked in the target country for years, perhaps decades, and actually understands the culture, the de facto decision-making heirarchy (which may differ from the heirarchy on paper), the language in all its nuances; a person who can judge the actual intensity of the enemy's goals and plans... how determined are they really?

In other words, exactly what Great Britain -- and Israel -- have focused on obsessively for decades (centuries, in the UK's case). The Brits because they had to control a global empire... and the Israelis because the "Great Game" to them is literally existential: If Israel guesses wrong, it could be "wiped from the map," in the piquant phrasing of Iranian President Mahmoud Ahmadinejad.

Fingar, Van Diepen, Brill, and their posse are saying that our sigint tell us that Iran paused their nuclear weapons program (NWP) in 2003. The Brits and the Israelis are saying that their humint tells them that the Iranians are playing us like a Stradivarius.

I don't know about you, but we here at lizard central would like to see some further analysis on this point by the National Intelligence Council, leading to a resolution we can trust. It would be a tragedy if we bought Iranian disinformation and released the pressure on them -- only to see Ahmadinejad (or Hezbollah) with a nuke in two years.

Even some American spies share the British and Israeli concerns:

A US intelligence source has revealed that some American spies share the concerns of the British and the Israelis. "Many middle- ranking CIA veterans believe Iran is still committed to producing nuclear weapons and are concerned that the agency lost a number of its best sources in Iran in 2004," the official said.

Why 2004? Well, in January of that year, the Guardian Council in Iran went on a tear, banning nearly all well-known Reformist candidates from the Majlis (legislature) election. In the vote on February 20th and the runoff on May 7th, the Conservatives, led by Teheran Mayor Mahmoud Ahmadinejad the year before he was elected President of Iran, won an absolute majority in the Majlis, ousting the Reformist Party of former president Ayatollah Akbar Hashemi Rafsanjani and others.

Evidently, nearly all of our sources in Iran were Iranian informers, not American spies; and they must have nearly all been Reformists (which makes sense). Thus when they were booted from power in 2004, American intelligence was blinded at the same time. This is one reason among many for infiltrating Americans into countries like Iran and North Korea, not relying solely upon defectors, traitors, and informers within the target countries; another reason is the inability to trust people who have proven themselves untrustworthy by betraying their own former allegiance.

(Rafsanjani later lost to Ahmadinejad for president; but he has since ascended to the chairmanship of the Assembly of Experts, which will elect the next Supreme Leader -- possibly Rafsanjani himself -- when the current Ayatollah Ali al-Khamenei dies or is retired.)

The Israelis and the British focus on placing Israelis and Brits into Iran, and they lose a lot of good men and women to assassination when they're discovered. We focus on bribing Iranians to rat out their country... and we focus on sigint. All three intelligence sources have their uses; but through short-sighted political daintiness and an aversion to dissembling on behalf of our country -- Democrats never seem to mind dissembling on behalf of their own careers -- we have cut ourselves off from the most useful and believable source of learning the intentions of our enemies: well-informed, long-term American spies.

These are desperate times, and they demand desperate measures. I don't believe the American public has any doubt that we need actual human spies infiltrating Iran, North Korea, Venezuela, and every other country that is an avowed enemy of the United States... and I doubt there would be much objection from the voters if we also sent spies into China, Russia, the 'Stans, other Latin American countries, flakey Asian countries... oh heck, why not just everywhere we can?

The qualms are all on the part of elected officials -- Democratic elected officials and perhaps a few RINOs, those overly fastidious "senoritos" who jump on a chair, hike their skirts, and scream at the very thought of a ruthless American spy working his way up the ranks of the Revolutionary Guards for purposes of stealing intelligence and committing sabotage... and ready to kill to protect his secret identity.

If there ever was a time to allow the faint of heart to craft our intelligence policies, that time has long passed. Give us some stout-hearted men and women -- and prepare yourselves for many, many more black stars going up on the wall of heroes in the lobby of CIA headquarters at Langley.

America had a long and honorable tradition of infiltrating our own "unlawful combatants" into enemy territory; it's time to return to those days. In fact, it's long overdue.

Hatched by Dafydd on this day, December 10, 2007, at the time of 8:23 PM | Comments (4) | TrackBack

December 5, 2007

Something to See Here: WSJ Dishes the Dirt on the NIE

The Wall Street Journal, following Big Lizards' lead, has weighed in on the questionable provenance of the most recent National Intelligence Estimate (NIE) on Iran's nuclear weapons program (NWP). (And if I have to mention it again, the Wall Street Journal will henceforth be the WSJ -- just to increase the alphabet soup aspect of this post. Maybe I can come up with a few more BL acronyms, while I'm at it.)

In today's editorial -- subscription (for actual money) required to read more than the first paragraph and part of the second -- they argue that the very fact that this NIE reverses the NIE of just two years ago itself casts doubt on the reliabilty of any NIE at all:

As recently as 2005, the consensus estimate of our spooks was that "Iran currently is determined to develop nuclear weapons" and do so "despite its international obligations and international pressure." This was a "high confidence" judgment. The new NIE says Iran abandoned its nuclear program in 2003 "in response to increasing international scrutiny." This too is a "high confidence" conclusion. One of the two conclusions is wrong, and casts considerable doubt on the entire process by which these "estimates" -- the consensus of 16 intelligence bureaucracies -- are conducted and accorded gospel status.

What monumental change occurred in the last two years to completely flip our thinking on whether Iran is currently pursuing an NWP? Is it really, as Bill Gertz and Jon Ward allege, the testimony of one supposed Iranian defector -- former Revolutionary Guards Gen. Alireza Asgari -- who we have not even interviewed ourselves?

The WSJ (there! -- see?) also echoes another point of our previous post... the provenance of the NIE (where it came from):

Our own "confidence" is not heightened by the fact that the NIE's main authors include three former State Department officials with previous reputations as "hyper-partisan anti-Bush officials," according to an intelligence source. They are Tom Fingar, formerly of the State Department's Bureau of Intelligence and Research; Vann Van Diepen, the National Intelligence Officer for WMD; and Kenneth Brill, the former U.S. Ambassador to the International Atomic Energy Agency (IAEA).

For a flavor of their political outlook, former Bush Administration antiproliferation official John Bolton recalls in his recent memoir that then-Deputy Secretary of State Richard Armitage "described Brill's efforts in Vienna, or lack thereof, as 'bull -- .'" Mr. Brill was "retired" from the State Department by Colin Powell before being rehired, over considerable internal and public protest, as head of the National Counter-Proliferation Center by then-National Intelligence Director John Negroponte.

The Journal agrees with us that the only major "pressure" on Iran in 2003 was our invasion of Iraq, the deposing of Saddam Hussein, de-Baathification of Iraq, and the start of the insurgency... and particularly our response to it: American forces dug in and fought back, rather than the Bush-41/Clinton style of staying but a few weeks, then withdrawing -- while congratulating ourselves for a job well done -- and leaving a chaotic mess behind into which Iran could move. So shouldn't we see the suspension of Iran's NWP in respose to the Iraq war (if true) as a tremendous victory for the Bush policy?

But contrariwise, the NIE claims the turnabout was due to "international pressure," which I don't believe they ever actually specify. What international (non-American) pressure was put on Iran in 2003? We were still in the process of trying to persuade the Europeans to start dealing with Iran on the issue of their NWP. I suppose it's possible that the Iranian mullahs glanced back at Great Britain, France, Germany, and Russia and started quaking in their Persian slippers; just as it's possible that I am actually Marie of Romania... but very unlikely.

The WSJ drops a bombshell; at least, I hadn't heard this before, and I tend to follow the news more carefully than I think do most non-bloggers:

In any case, the real issue is not Iran's nuclear weapons program, but its nuclear program, period. As the NIE acknowledges, Iran continues to enrich uranium on an industrial scale -- that is, build the capability to make the fuel for a potential bomb. And it is doing so in open defiance of binding U.N. resolutions. No less a source than the IAEA recently confirmed that Iran already has blueprints to cast uranium in the shape of an atomic bomb core.

The U.S. also knows that Iran has extensive technical information on how to fit a warhead atop a ballistic missile. And there is considerable evidence that the Iranian Revolutionary Guards Corps has been developing the detonation devices needed to set off a nuclear explosion at the weapons testing facility in Parchin. Even assuming that Iran is not seeking a bomb right now, it is hardly reassuring that they are developing technologies that could bring them within a screw's twist of one.

This new NIE will surely make it more difficult to gain international support for further sanctions against Iran and against companies doing business with Iran ("Nothing to see here, folks!")... which, perversely enough, may actually make it easier for Iran to produce an actual nuclear bomb -- which will make it much more likely that we attack Iran just prior to that point.

I wonder whether the appeasement camp within the State Department -- that which spawned Messrs. Fingar, Van Diepen, and Brill -- has ever given serious consideration to its strategy and whether it will achieve the desired goal... or its opposite. Is this a rational war against Bush, based upon actual tussling over policy? Or merely because, as does Jonathon Chait, they hate the way he walks and talks?

Hatched by Dafydd on this day, December 5, 2007, at the time of 6:26 PM | Comments (3) | TrackBack

November 13, 2007

Elite News Media: Reading Between the Lies

I don't know if I'll make this a continuing series; but for today, it's kind of fun (for me, and I'm all that matters in my narcissistic, little bubble-world) to just slalom through a news article and see if we can deduce what's really happening from the way the drive-by media bobs and weaves. Our text today is an AP piece by Devlin Barrett titled "Domestic Spying Inquiry Restarted at DoJ."

The Justice Department has reopened a long-dormant inquiry into the government's warrantless wiretapping program, a major policy shift only days into the tenure of Attorney General Michael Mukasey.

The investigation by the department's Office of Professional Responsibility was shut down last year, after the investigators were denied security clearances. Gonzales told Congress that President Bush, not he, denied the clearances.

"We recently received the necessary security clearances and are now able to proceed with our investigation," H. Marshall Jarrett, counsel for the OPR, wrote to Rep. Maurice Hinchey, D-N.Y. A copy of the letter, dated Tuesday, was obtained by The Associated Press....

"I am happily surprised," Hinchey said. "It now seems because we have a new attorney general the situation has changed. Maybe this attorney general understands that his obligation is not to be the private counsel to the president but the chief law enforcement officer for the entire country."

(Thumbnail distinction: The Office of Professional Responsibility -- OPR -- investigates allegations of unethical or criminal behavior by DoJ attorneys; the Office of the Inspector General -- OIG -- investigates allegations about non-attorney DoJ employees.)

All right, one investigation surrounding the NSA al-Qaeda phone intercept program has restarted -- not an investigation into the propriety of the program itself but into what the DoJ sttorneys told the president and Congress; that basic fact is clear. What AP is obscuring is why... what changed?

Now the investigators have received their security clearances; but two intriguing points bubble up that AP never follows:

• Former Attorney General Alberto Gonzales said, and I don't believe President Bush ever disputed, that it was Bush, not Gonzales, who denied the clearances in the first place. So how could a new Attorney General -- appointed by Bush -- change that?

  (And it certainly doesn't have anything to do with Attorney General Michael Mukasey not being "the private counsel to the president but the chief law enforcement officer for the entire country." Does Rep. Maurice Hinchey, D-NY, 100%, believe that Gonzales secretly talked Bush into denying the clearances, and now Mukasey has talked him into issuing them? This is garden-variety liberal lunacy, the "president as empty vessel" conspiracy.)

• Another batch of Justice Department investigators, run not by the Office of Professional Responsibility but by the inspector general's office [OIG], did receive security clearances... at the same time that the OPR investigators were denied. That's hardly the action of a president trying to squash an investigation!

The AP article reports this odd fact... but there is no follow-up, no analysis, not even a question mark. Of course not: The fact that other DoJ investigators got the proper clearances doesn't fit the "story" of Bush thwarting the investigation:

The OPR investigation was begun in February 2006 but was shut down a few months later when the National Security Agency refused to grant Justice Department lawyers the security clearances to ask questions about the program. Justice Department officials said Gonzales recommended Bush approve the clearances, but the president said no....

A separate Justice Department internal investigation was opened last year by the agency's inspector general. Those investigators received their security clearances around the same time the OPR investigators' were denied, and their probe is ongoing.

Why the OIG but not the OPR?

So what is going on here? The OPR is a council headed by the Counsel on Professional Responsibility, currently H. Marshall Jarrett; but Jarrett has been there since 2005, all through the investigation. So there must be some reason why the president refused to issue clearances to the OPR under Gonzales, but immediately -- before even the ceremonial swearing-in -- issued them for essentially the same OPR under Mukasey.

One possiblity could be that Bush had lost confidence that anything Gonzales did wouldn't be so tainted by the (in my opinion) unwarranted attacks on Gonzales, that it would turn into a PR nightmare. Suppose the Gonzales OPR investigated and found no ethical violation; wouldn't the Democrats simply seize hold of that and scream "cover-up?"

So what may have really been standing in the way of an investigation... is the very damage fraudulently inflicted by Democrats on the creditibility of Alberto Gonzales! By hurling so many unprovable accusations against Alberto Gonzales, always prejudicial but never probative, the Democrats themselves made it politically impossible for him to conduct the very investigations they demanded. Any probe would precipitate a Catch-22:

• If Gonzales' Department of Justice found culpability, that would give Democrats ammunition to attack the Bush administration;
• If the DoJ found complete exoneration, that would allow Democrats to cry "cover-up" -- and still attack the Bush administration.

So what is the point of an administrative investigation? Since Bush obviously could not simply order the OPR not to investigate (think how that would look), the only power he had was to deny them the clearances until he had an Attorney General who was not tainted by the slanderous allegations of the Democrats.

By contrast, the Office of the Inspector General appears to be held in higher repute. For one thing, it's run by Glenn Fine... who was appointed in 2000 by President Bill Clinton. For another, since it doesn't investigate DoJ attorneys but only the non-attorney aides and other employees, I suspect it's seen by both parties as lower level and not as political: It doesn't investigate political appointees, who are generally attorneys. Ergo, there was no danger of precipitating another "cover-up" confrontation with the Democrats by allowing the Democrat-appointed Fine to investigate career non-attorney employees of the Department of Justice.

I suspect that, regardless of Bush's frequent (and probably sincere) avowals of support for Gonzales and his belief that the accusations were false, the president was savvy enough to know that sometime in the very near future, the pressure would become insurmountable... and Gonzales himself would crumble and resign. So Bush put off some investigations until such time as a new AG could more credibly conduct them.

The "importance" of these investigations

Here's an interesting admission against interest:

Democrats have complained in the past that neither probe reviews whether the surveillance program violates the Constitution, the kind of decision usually reserved for the courts.

So the Democrats are admitting that neither of these two internal DoJ probes will get at the actual meat of what everybody wants to know: Is it constitutional to eavesdrop on overseas terrorists -- even if we might accidentally overhear a conversation he has with an American citizen? That question cannot be resolved by the Department of Justice, but only by the federal court system.

In other words, these DoJ investigations are ancillary side issues... and even the elite media knows it. Yet they're making a huge stink out of it. Ergo, they're not at all confident that there is anything wrong with the eavesdropping program itself: If they thought they had a really strong case on the main issue, why would they even pay attention to the question of "whether the DOJ attorneys who were involved complied with their ethical obligations of providing competent legal advice to their client and of adhering to their duty of candor to the court"?

If you're confident you can convict a defendant of multiple murders, you don't focus on whether you can also get him for income-tax evasion; that's the straw you clutch at as a last resort.

Say, what about the "fired" United States Attorneys investigation? How's that going?

And finally, we have this very soft statement that nevertheless shouts volumes at us:

A department investigation also is looking at last year's firings of nine U.S. attorneys -- and whether at least one of them was dismissed because he refused to target Democratic candidates shortly before the 2006 elections.

"At least one of them?" A far cry from the original accusation -- that all seven (or nine, the number seemed only to grow for a time) had been "fired" because they wouldn't throw cases against Republicans or file false charges against Democrats or other wildly improper (and illegal) reasons.

Am I being precipitous by concluding that the phraseology "at least one of them" means that the Democrats have quietly given up on the rest, and are just focusing on a single case?

And which one? There are only two former USAs whose firings have ever been alleged by Democrats to be because they "refused to target Democratic candidates" in corruption probes: David Iglesias and John McKay. One other USA, Todd Graves, resigned under pressure after he refused to prosecute a voter-fraud case against the leftist group ACORN (Association of Community Organizations for Reform Now), which is widely believed to engage in voter registration fraud... which isn't exactly what AP says above.

As for the rest, the Left alleges they were fired for bringing corruption cases against Republicans, not for refusing to bring them against Democrats; and one (Bob Cummins) is alleged to have been fired to "make room" for Karl Rove's "protegé," Timothy Griffin.

So has the entire "dismissal of US Attorneys controversy" collapsed except for one case, for which liberals still keep hope alive? Enquiring minds say -- sure sounds like it!

"In conclusion..." -- and the audience spontaneously cheers

See? It is possible to get one's news from the elite media after all. It just requires an entire archaeological dig.

Hatched by Dafydd on this day, November 13, 2007, at the time of 6:12 PM | Comments (1) | TrackBack

October 30, 2007

Dem Prez Candidates Find Unanimity - Opposing Presidential Authority!

Sen. Barack Obama (D-IL, 95%), Sen. Hillary Clinton (D-Carpetbag, 95%), and ex-Sen. John Edwards have three things in common:

• Each is a current (or former) member of the Senate;
• Each is running for president... a.k.a. "chief executive";
• Each claims he wants presidential power curtailed, making the president little more than a congressional catspaw.

How's that last one again? I think Hillary expressed it best (with a hat tip to Real Clear Politics):

The Attorney General is the chief defender of the rule of law in our country. After Alberto Gonzales's troubled tenure, we cannot send a signal that the next Attorney General in any way condones torture or believes that the President is unconstrained by law.

What exactly does this mean? The Democrats made the meaning explicit a few days ago, as we faithfully reported in Mucking About With Mukasey: When Democratic senators write "condones torture," you should read "refuses to declare the use of waterboarding anathema, forbidden under any or all circumstances, no exceptions."

Attorney General Designate Michael Mukasey, in his Senate confirmation hearings, has so far refused to declare waterboarding to be torture or to agree to forbid the president to order it (though how Mukasey -- who works for the president, not the other way around -- could enforce such a ban is left hanging). Thus, Clinton and Obama have both declared they will not vote to confirm him. Can't have an Attorney General who thinks the president is "unconstrained by law!"

But wait -- how is waterboarding related to the "rule of law," of which the Attorney General should be "the chief defender?" No bill declaring waterboarding to be an act of torture has ever been enacted into law in the United States. In fact, Congress has never sent such a bill to the president to be vetoed. While "torture" is banned, it is left up to the president to determine how to execute that law -- specifically, to determine what does and does not constitute torture, using broad guidelines contained in various acts and treaties.

But these Democratic candidates want to remove that task from the president's plate. Rather, they want the president's understanding of the laws banning torture -- Title 18, part I, chapter 113C, § 2340 of the United States Code, for example -- to shift with every shift of the majority wind blowing from Congress, without the tedious necessity of Congress passing bills that the president is willing to sign... or (in a pinch) overriding the president's veto.

What these candidates demand is that President Bush declare waterboarding torture for no other reason than that a majority of Congress considers it torture -- as if the president himself should have no say in the matter. The so-called Commander in Chief and Chief Executive becomes a congressional spokesman, fit only to echo the understanding of the law as enunciated by congressional leaders.

The president thus becomes Chief Executive Secretary to the majority leader of the Senate and the squeaker of the House.

On a related point, recall that Democratic senators routinely ask judicial nominees, during their confirmation hearings, how they will rule on various cases. In particular, they invariably ask nominees to federal district courts, circuit courts, and the Supreme Court whether they will uphold a woman's "right" to get an abortion, with the clear understanding that if they will not, or if they refuse to answer, that senator will oppose their confirmation. This is just as improper as demanding that an incoming Attorney General agree to congressional policy decisions that will bind the president as a condition of his confirmation; and it indicates a very disturbing pattern:

Democrats evidently believe that, while we have three coequal branches of government, one is more coequal than the others.

But it's not just my inference here; we can take the direct word of John Edwards. While Edwards has become almost a fringe candidate, he speaks for a great many other Democrats in the Senate and House. In his own statement rejecting Mukasey (though he has no say in that question), he included this paragraph:

Mukasey has also said that the president doesn't necessarily have to abide by acts of Congress. We need an Attorney General who will put the rule of law above the administration's short-term political interests, and Mukasey has already shown that he's unwilling to do that.

Sadly, Edwards actually appears to believe that a president must "abide by acts of Congress"... all of them. (The statement makes no sense unless we assume that Edwards meant to allow no exceptions; if exceptions are allowed, then anything can be an exception!) But what if a runaway Congress enacts a patently unconstitutional law? Must the president abide by it anyway?

Here is the scenario: Suppose John Edwards becomes president; and because of the Silky Pony's feckless policies, we are hit with another terrorist attack -- but this one is a widespread, distributed attack on America's malls. In 12 Gallerias across the country, a series of coordinated bombings kill 23,000 last-minute shoppers during Christmas week.

Al-Qaeda swiftly claims credit for the attacks, and within a couple of days, the attacker are identified; all are Arab Americans. In a spasm of rage, Congress passes a law ordering the immediate arrest and detention of all Americans of Arabic descent. President Edwards valiantly tries to stop the madness, but Congress overrides his veto.

He is now faced with a constitutional crisis: The act is clearly unconstitutional and should be overturned when the courts get around to hearing it. But they're in no hurry, just as they were not in 1942. So should President Edwards go ahead and implement this obviously unconstitutional act of Congress? Or should he exercise his authority -- and duty -- as a coequal branch of the government to ignore the act, on his own authority?

The point of the exercise is that "the law" is not solely determined by statutory law enacted by Congress: It also includes the Constitution, the bedrock law of our government, along with caselaw.

Likewise, Congress is not the sole arbiter of what the Constitution and the law require, either. The Supreme Court obviously plays a role; but so too does the president, in his capacity as the executor of the laws of the land -- including the most basic law, the Constitution of the United States of America.

But while Congress seems willing to include the Court into the club of those who get to determine what is constitutional, it is equally pleased to include the president out of that fraternal order. And since many senators also believe they should only confirm judges who agree in advance to decide certain cases in favor of the senator's position, these members of Congress quite clearly believe that Congress should be preeminent in determining what "rule of law" means. This tendency crosses party lines, by the way; cf. Sens. Arlen Specter (R-PA, 43%), Lindsay Graham (R-SC, 83%), and everyone on the Gang of Fourteen.

This is almost an attempt at a slow-moving, bloodless coup d'état... well, "bloodless" in the sense that they do not openly espouse killing the president; but they do push policies that are likely to get a lot of Americans killed, in the guise of protecting their "civil liberties." From Hillary again:

We need to restore the nation’s confidence in the Department of Justice. The Department must once again defend our Constitution and the rule of law without regard to ideology and partisanship. And we need to protect the country from terrorism while also respecting Americans’ civil liberties.

It's not quite clear to me how waterboarding Khalid Sheikh Mohammed -- a Kuwaiti on the lam, who was captured by Pakistani troops in Rawalpindi, Pakistan, with or without CIA participation, and was transferred to CIA custody -- impacts "Americans’ civil liberties." Perhaps Hillary Clinton will elaborate when she's asked that tough question during tonight's Democratic candidates' debate. [Note for the irony impaired...]

In fact, I do not believe there is any evidence that any American citizen or legal resident has ever been waterboarded in order to obtain information. However, we have waterboarded many American soldiers and CIA interrogators as part of their training for either resisting that interrogation technique (in the case of soldiers) or using it on captured terrorists (in the case of CIA interrogators).

Also, at least one reporter, Fox News Channel's Steve Harrigan, voluntarily underwent three of the reputed five stages of waterboarding for a video report. Harrigan pronounced it "torture," but he also noted that just a few minutes after each session, he felt perfectly fine -- which makes his pronouncement a bit dicey, as all definitions of psychological torture I've seen, including the legal one above, require "prolonged mental harm" resulting from the session.

Others who have undergone it, including many military and CIA personnel, say it's not torture. The point is not to prove one way or another (though I believe it is not torture, and I would happily undergo it just out of curiosity) but to prove a much easier point: That waterboarding is a controversial issue with people of good faith and strong experience landing on both sides.

In other words, it's a perfect candidate for a case by case determination whether it's legitimate to use waterboarding to obtain intelligence information, based upon the criticality of the information sought, the particular person it's sought from, and any prevailing exigent circumstances. Implementation like this is precisely the purview of the Executive branch, not the Legislative -- which creates one size fits all rules for everyone -- or the Judiciary -- which decides ex-post facto whether information gathered can be used at trial; nobody has ever attempted to use a "confession" obtained by waterboarding in court as evidence at the confessor's criminal trial.

Whether or not to use waterboarding to obtain critical intelligence is a job for Super President, not Glacially Ponderous Judge or Mealy-Mouthed Congressman. But to the top three Democratic candidates for Chief Executive Secretary of the United States Congress, branches one and two need only ask Congress what they think, and then rubber-stamp the congressional leadership's decision... the president as puppet.

I wonder: How much of this do they truly believe and would actually follow through on if elected... and how much is just electoral hype in the never-ending Democrat hit single, "The Bushies Have Bushwhacked America"?

Hatched by Dafydd on this day, October 30, 2007, at the time of 6:26 PM | Comments (6) | TrackBack

September 25, 2007

Military Tribunals Finally Listening to Big Lizards' Advice

Last June, a pair of judges on U.S. military tribunals issued a ruling that may be the most boneheaded technicality in American judicial history. (They were not ruling on the same case, but they used the exact same excuse in two different cases to dismiss all charges against enemy combatants, holding that the military tribunals themselves had no jurisdiction.) We wrote about it at the time:

In what AP calls "a stunning reversal for the Bush administration's attempts to try Guantanamo detainees in military court" -- but which rational observers would call "a shockingly thin example of dismissal by technicality" -- a military judge has dismissed murder charges against a detainee at Guantánamo Bay... because the military's combat status review tribunal only classified him as an "enemy combatant," rather than as an "unlawful enemy combatant"...

The law says that only those persons who are qualified to be designated as unlawful enemy combatants can be tried; the clear intent and substance of the law is not affected by whether the earlier tribunal used the same words as the later-enacted law, but by whether they used the same standards... and Judge [Army Col. Peter] Brownback should jolly well understand that.

All he needed to do was check that the criteria used by the earlier tribunals to declare someone an "enemy combatant" are the same as those that used today to declare someone an "unlawful enemy combatant." Maybe this is the non-lawyer in me; but it was utterly clear to everyone, including the detainees, that the entire purpose of the status-review tribunal was to determine whether they were bad enough to warrant trial by a military tribunal.

The detainees knew exactly what that meant: They knew that if they were found to be "enemy combatants," they would be tried by a military court. Now the defense argues -- and the judge, Army Col. Peter Brownback, seems to have independently argued himself into believing -- that the trivial difference in words violates the rights of the detainees, because they didn't know they were in jeopardy of trial if found to be enemy combatants... which was the very term used at the time to designate those detainees eligible for trial!

The two judges -- Brownback and Navy Capt. Keith Allred -- ruled not only that they could not preside over the cases against the two enemy combatants (one of which was the infamous Salim Ahmed Hamdan of the even more infamous Hamdan Supreme-Court decision), they could not even hear evidence about whether the two were, in fact, "unlawful enemy combatants," as opposed to mere "enemy combatants." They decided they (or any other tribunal judge) lacked any jurisdiction whatsoever, and all the cases against all the detainees should be dismissed.

It was like a Barry Sheck dream come true.

Fortunately, a three-judge panel of the Military Tribunal Appellate Court reads Big Lizards. At least, I can only conclude that, as they used virtually the same argument today in overturning the decision of Judge Brownback as we argued in the previous post last June. (They did not specifically consider Allred's decision; but since it was identical with that of Judge Brownback, one presumes the same ruling will reverse that of Allred as well; I wonder if he will mulishly force the court to do so explicitly?) According to the New York Times:

The three appeals judges said yesterday that Judge Brownback had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence. The appeals court sent the case back to Judge Brownback for further consideration....

The military appeals court said in its ruling yesterday that Judge Brownback was wrong in concluding that he did not have the authority to decide whether a detainee was an “unlawful” enemy combatant, which would give his court the power to hear a war-crimes case.

The court said the trial judge could hear the government’s evidence that a detainee was an unlawful combatant. An unlawful combatant, for example, could be a fighter who does not wear a uniform and conceals his weapons.

It's hard to fathom just how stupid were the original decisions. I took a stab at in the June post; but reading it over, I don't think I succeeded. Let's see if I can do better in my second time at bat:

1. Congress originally passed a law setting up a system of military tribunals. The basic procedure was that the president first had to evaluate every detainee's case and determine whether each was or was not an "enemy combatant." Those determined to be enemy combatants would then be tried by the tribunals, while the rest would have to be released.
2. They went through the process; the Pentagon held hearings and determined that 80 of the 300+ detainees qualified as enemy combatants. They put them on trial. (The classification hearings determined that a number of detainees used to be enemy combatants but were no longer; in several well-known cases, it became clear the Pentagon was punked.)
3. But before the trials, Hamdan went to the Supreme Court and successfully argued that the procedures at the trial itself were unconstitutional. The Supreme Court did not hold that there was anything wrong with the process that classified Hamdan and the other 79 as "enemy combatants," nor that there was anything wrong with the label itself.
4. But when Congress enacted a new law, responding to the Hamdan decision, they used a slightly different label: They said that only "unlawful enemy combatants" could be tried. However, they used the exact, same criteria to determine status as an unlawful enemy combatant as had been used under the previous law to determine status as an enemy combatant. The two terms were de-facto identical, and even de-jure -- if one dug so deep as to consider the definition, not merely the label.
5. Yet when the first two cases came to trial, Allred and Brownback both ruled that they lacked jurisdiction to hear the trials, because Hamdan and Omar Ahmed Khadr had only been designated "enemy combatants," per the first law, not "unlawful enemy combatants," per the second.
6. This might have been all right... except that they also ruled that they lacked jurisdiction even to hear any evidence that the two defendants were, in fact, unlawful enemy combatants under the new designation; or that, in fact, the two terms had identical definitions.

This is the ultimate in technicalities, exactly the sort of thing that confusticates ordinary people about the American judicial system: Horrific murderers and terrorists should be turned loose -- because the administration used a slightly different label for them (based on earlier legislation) than was picked by a later Congress in writing subsequent legislation, even though the two labels were defined by identical language in each act.

That last point (6) is the dumbass ruling that was struck down today; the appellate court held that the two previous judges did indeed have jurisdiction to hear evidence that the "enemy combatants" (old label) were also "unlawful enemy combatants" (new label):

In the ruling Monday, the military appeals judges, the United States Court of Military Commission Review, agreed that the law written by Congress did say that finding by a military panel that a detainee was an “unlawful” enemy combatant was a prerequisite for prosecution. But the judges said Congress intended the Guantánamo courts to apply usual procedures of military courts.

“This would include the common procedures used before general courts-martial permitting military judges to hear evidence and decide factual and legal matters concerning the court’s own jurisdiction over the accused appearing before it,” the appeals judges wrote. [One can almost "hear" the annoyance and exasperation in the appellate judges' decision.]

Again, since there is no difference between the criteria for each label, it should be easy to prove... unless Brownback and Allred decide to dig in their heels and declare that Congress was wrong to define unlawful enemy combatant as it did; the judges could tack on one impossible criterion after another until they can achieve their goal: making it impossible to prosecute anyone for anything before a military tribunal.

Dennis Edney, Mr. Khadr’s Canadian lawyer, said the defense was considering whether to appeal to the United States Court of Appeals for the District of Columbia Circuit. If there is an appeal, it could delay the resumption of Guantánamo cases yet again.

Mr. Edney said he was disappointed by the military panel’s ruling but not surprised. “Omar Khadr still faces a process that is tainted, and designed to make a finding of guilt,” he said.

Well, yeah; and Mr. Edney is doing everything in his powe to prevent the court ruling, thus put-off any finding of guilt. I believe he has fallen for the great temptation of defense attorneys, where getting the client off becomes the overriding goal, rather than ensure he has a fair trial. (This is the snare into which Lynne Stewart fell, finally winding up convicted of passing messages from Sheikh Omar Abdel-Rahman to his terrorist cell.)

The real underlying problem here should be obvious: There is an amazing amount of resistance among the military's Judge Advocate General (JAG) Corps to the very idea of trying terrorist detainees in military tribunals, notwithstanding both statutory law and military tradition. Most lawyers are liberals, and this evidently applies even when the lawyer works for the military.

I believe most of them desperately want all detainees to be charged and tried in civilian courts, with the full panoply of criminal-defendant rights to counsel of their choice, open and public trial, the ability to subpoena all evidence (including heavily classified evidence) they claim will help their defense, and the power to subpoena all individuals involved in their capture -- from the soldiers trying to fight a war in the field to the Secretary of Defense and even the Commander in Chief who ordered the war fought in the first place -- and haul them all into court to testify for as many weeks as the judge orders.

We see this same tendency in politicians who are too closely allied with the JAG Corps: I believe that is what drives Sens. John McCain (R-AZ, 65%) and Lindsey Graham (R-SC, 83%), for example. Among this crowd, no military tribunal process will ever be fair or sufficient: They reject the very idea of treating terrorists any differently than we treat carjackers and pickpockets. Despite the decidedly uncertain record of attempting to try terrorists in civilian courts, "Jaggers" believe that we'll forfeit the "moral high ground" if we don't sacrifice national security on the altar of judicial purity.

There is a controversial Latin saying: fiat justicia ruat coelum; "let justice be done, though heaven should fall." I happen to believe this, but it critically depends on how one defines "justice." But what these Jaggers have in mind is something far more radical -- and utterly indefensible: "Let procedure be followed, though America should fall."

Even as a libertarian-conservative-ish political non-Euclidean, I consider this a foolish and unnecessary self-immolation; I agree rather with the last sentence of the dissent of Justice Robert H. Jackson in the case Terminiello v. Chicago:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This certainly applies in the Case of the Footdragging Military Judges. Let us move past the surreal technicalities, get on with the cases, and finally see the backs of these infamous detainees.

Hatched by Dafydd on this day, September 25, 2007, at the time of 3:03 PM | Comments (10) | TrackBack

September 24, 2007

Cindy Sheehan's Day of Out-of-Tunement Manifesto

I rarely do this, as you know: I rarely link to some piece and say simply "read this." (I'm too in love with the sound of my own fingers typing on a keyboard.)

But here's an exception. Read Cindy Sheehan's Yom Kippur "sermon," delivered at Michael Lerner's Beyt Tikkun "synogogue;" you will be -- if not exactly glad, then at least agape. (Rabbi Lerner is Hillary Clinton's mentor, author of the Politics of Meaning and other works of Socialist agit-prop masquerading as theology.)

My response (I love this) is entirely contained in the list of categories I had to attach to this post.

(Well, one more thing. It has always been my understanding that Yom Kippur, the Jewish Day of Atonement, is a day for each person to atone for what he, personally, has done wrong -- not "atone" for his enemies failing to live up to his own lofty standards, apologize for all the times America hasn't followed his lead, or wallow in self-righteous indignation that nobody listens to him. 'Nuff said; read the list of categories above.)

Hatched by Dafydd on this day, September 24, 2007, at the time of 2:36 PM | Comments (3) | TrackBack

August 25, 2007

How Dare the Dictator Spy on Radical Mosques!

This could get interesting (and potentially ugly): An imam and a pizzeria owner were convicted of supporting terrorism... and they're now appealing, claiming the National Security Agency's Terrorist Surveillance Program violated their constitutional rights.

First, just the facts, ma'am:

After a bloody raid by American military forces on an enemy camp in Rawah, Iraq, on June 11, 2003, a Defense Department report took inventory. Eighty suspected terrorists killed. An enormous weapons cache recovered. And, in what the report called “pocket litter,” a notebook with the name and phone number of the imam of a mosque halfway around the world, here in the state capital.

Prompted by that notebook and records of 14 phone calls between the imam, Yassin M. Aref, and Damascus, Syria, the Federal Bureau of Investigation quickly began a sting operation aimed at Mr. Aref. Federal agents used an informant with a long history of fraud who spun tales to Mr. Aref about a fictitious plot involving shoulder-launched missiles and the assassination of Pakistani diplomat in New York.

Mr. Aref and a friend who owned a pizzeria were convicted of supporting terrorism by agreeing to help launder money for the fake operation, and in March the two men were sentenced to 15 years in prison.

What makes the case unusual is that Aref may have been under surveillance by the National Security Agency, possibly under the TSP. There are two external indicators of this:

• An exchange during the trial over an FBI agent who was on the stand. One of Aref's defense attorneys (who is paying