Ten days ago, I had a post laid out in my head on the mainstream press’s tendency toward false equivalence, but I didn’t get around to writing it. Now Tom Tomorrow’s latest cartoon makes it redundant. See especially the fourth panel. Plus, Jim Fallows has been on the beat with a steady stream of posts (latest here).
The reference to the Constitution in Tom’s fifth panel is a natural lead-in to a post by Gary Wills at the New York Review of Books today. An excerpt:
The people behind these efforts are imitating what the Confederate States did even before they formally seceded in 1861. Already they ran a parallel government, in which the laws of the national government were blatantly disregarded. They denied the right of abolitionists to voice their arguments, killing or riding out of town over three hundred of them in the years before the Civil War. They confiscated or destroyed abolitionist tracts sent to Southern states by United States mail. In the United States Congress, they instituted “gag rules” that automatically tabled (excluded from discussion) anti-slavery petitions, in flagrant abuse of the First Amendment’s right of petition.
The Southern states were able to live in such open disregard for national law because of two things. First, the states were disproportionately represented in Congress because they got three extra votes for seats in the House of Representatives for every five slaves owned in the state—giving them 98 seats instead of 73 in 1833, and similar margins up to the war. Second, the national Democratic-Republican Party needed the Southern part of its coalition so badly that it colluded with the Southern states’ violations of the Constitution. In 1835, for instance, President Andrew Jackson did not enforce the sacredness of the US mail, allowing states to refuse delivery of anti-slave mailings unless a recipient revealed his identity, requested delivery, and had his name published for vilification.
Just as the Old South compelled the national party to shelter its extremism, today’s Tea Party leaders make Republicans toe their line. Most Republicans do not think laws invalid because the president is a foreign-born Muslim with a socialist agenda. But they do not renounce, or even criticize, their partners who think that. The rare Republican who dares criticize a Rush Limbaugh is quickly made to repent and apologize. John Boehner holds the nation hostage because the Tea Party holds him hostage. The problem with modern Republicans is not fanaticism in the few but cowardice in the many, who let their fellows live in virtual secession from laws they disagree with.
And here I thought President Obama was merely institutionalizing the domestic spying that the Bush administration introduced in the name of the War on Terror. Who knew Obama has been upping the ante, introducing Stasi-style spying on colleagues? Thanks to the piece by Marisa Taylor and Jonathan S. Landay of the McClatchy Washington Bureau, we now know better. Read it and weep.
Even before a former U.S. intelligence contractor exposed the secret collection of Americans’ phone records, the Obama administration was pressing a government-wide crackdown on security threats that requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions.
President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of “insider threat” give agencies latitude to pursue and penalize a range of other conduct.
Government documents reviewed by McClatchy illustrate how some agencies are using that latitude to pursue unauthorized disclosures of any information, not just classified material. They also show how millions of federal employees and contractors must watch for “high-risk persons or behaviors” among co-workers and could face penalties, including criminal charges, for failing to report them. Leaks to the media are equated with espionage.
“Hammer this fact home . . . leaking is tantamount to aiding the enemies of the United States,” says a June 1, 2012, Defense Department strategy for the program that was obtained by McClatchy.
Yes, even the Education and Agriculture departments, those hotbeds of information on which our national security depends.
And check this out:
The program could make it easier for the government to stifle the flow of unclassified and potentially vital information to the public, while creating toxic work environments poisoned by unfounded suspicions and spurious investigations of loyal Americans, according to these current and former officials and experts. Some non-intelligence agencies already are urging employees to watch their co-workers for “indicators” that include stress, divorce and financial problems.
That’s right—you better not be thinking of divorce, or falling into debt. That might be cause to be reported.
The article continues:
“It was just a matter of time before the Department of Agriculture or the FDA (Food and Drug Administration) started implementing, ‘Hey, let’s get people to snitch on their friends.’ The only thing they haven’t done here is reward it,” said Kel McClanahan, a Washington lawyer who specializes in national security law. “I’m waiting for the time when you turn in a friend and you get a $50 reward.”
The Defense Department anti-leak strategy obtained by McClatchy spells out a zero-tolerance policy. Security managers, it says, “must” reprimand or revoke the security clearances – a career-killing penalty – of workers who commit a single severe infraction or multiple lesser breaches “as an unavoidable negative personnel action.”
Employees must turn themselves and others in for failing to report breaches. “Penalize clearly identifiable failures to report security infractions and violations, including any lack of self-reporting,” the strategic plan says.
And then there’s this:
Obama in November approved “minimum standards” giving departments and agencies considerable leeway in developing their insider threat programs, leading to a potential hodgepodge of interpretations. He instructed them to not only root out leakers but people who might be prone to “violent acts against the government or the nation” and “potential espionage.”
The Department of Education, meanwhile, informs employees that co-workers going through “certain life experiences . . . might turn a trusted user into an insider threat.” Those experiences, the department says in a computer training manual, include “stress, divorce, financial problems” or “frustrations with co-workers or the organization.”
As Charles Pierce observed in a rare weekend post that the McClatchy news moved him to write, Obama isn’t merely formalizing Bush programs.
This, right here, this is Nixonian, if Nixon had grown up in East Germany. You’ve got the entire federal bureaucracy looking for signs of “high-risk persons or behaviors” the way Nixon sent Fred Malek out to count the Jews. You’ve got created within the entire federal bureaucracy a culture of spies and informers, which will inevitably breed fear and deceit and countless acts of interoffice treachery. (Don’t like your boss at the Bureau Of Land Management? Hmm, he looks like a high-risk person. Tell someone.)
I especially don’t want to hear about how all the administration’s really done is “formalize” programs that were already in place, as though giving the creation of a culture of informers the imprimatur of the presidency makes it better. … No, Mr. Current President, this is not business as usual. This is not even the NSA sifting through e-mails and phone calls. This is giving Big Brother a desk in every federal agency and telling him to go to work.
It’s too bad Obama didn’t level with us in his two election campaigns.
[Pablo Martinez Monsivais/AP]
I keep my quoting of NYT columnists to a minimum. Their work is easy to find. Their views are widely distributed. I don’t need to provide a clipping service that serves up their content. Not to mention that some of them should have retired long ago. They are an embarrassment with their pronouncements from on high on cultural trends and the future. (Yes, David and Tom, I’m talking about you.)
I have also been keeping my criticisms of the Obama administration to a minimum. Words fail on a day when officials confirm that the
State Department has asked Hong Kong to extradite Edward J. Snowden to face espionage and theft charges in the United States.
The NYT article goes on to note that “Mr. Snowden is the seventh person to be accused by the Obama administration of violating the Espionage Act of 1917 by leaking secrets to the news media, compared with three such cases under all previous presidents.” So much for Obama’s commitment to transparency and openness.
Anyway, I will now depart from my minimization efforts, turning the remainder of the post over to NYT columnist Joe Nocera. In his Saturday column four weeks ago, just after Obama reiterated his vow to close Guantánamo, Nocera wrote:
Late Wednesday afternoon, less than 24 hours before President Obama made his big national security speech — in which he said, for the umpteenth time, that the prison in Guantánamo Bay, Cuba, should be closed — a group of American lawyers representing Guantánamo detainees filed an emergency motion with the Federal District Court in the District of Columbia. The motion asked the court to order the removal of “unjustified burdens” that the military command at Guantánamo has placed on the detainees, making it nearly impossible for them to meet with their lawyers.
The detainees are all in solitary confinement. They are shackled when they are taken to the shower. They cannot speak to their families unless they submit to that same repugnant body search. In other words, an already inhumane situation has become even worse on the watch of the president who claims to want to shut down the prison.
In his speech on Thursday, Obama hit all the right notes. He talked about how holding detainees for an indefinite period without charging them with any crime has made the prison “a symbol around the world for an America that flouts the rule of law.” He noted that it has hurt us with our allies. He even mentioned how absurdly expensive the prison is — nearly $1 million per prisoner per year. “Is this who we are?” he asked.
“History,” he concluded, “will cast a harsh judgment on this aspect of our fight against terrorism.” He’s right about that. But he will hardly be immune from that judgment.
It is my belief, shared by many lawyers who have followed the legal battles over Guantánamo, that the president could have shut down the prison if he had really been determined to do so. One reason innocent detainees can’t get out is that the courts have essentially ruled that a president has an absolute right to imprison anyone he wants during a time of war — with no second-guessing from either of the other two branches of government. By the same legal logic, a president can also free any prisoner in a time of war. Had the president taken that stance, there would undoubtedly have been a court fight. But so what? Aren’t some things worth fighting for?
Whenever he talks about Guantánamo, the president gives the impression that that’s what he believes. The shame — his shame — is that, for all his soaring rhetoric, he has yet to show that he is willing to act on that belief.
I don’t know whether Prism and the other programs truly stop terrorists. I have my doubts. What I do know is that if you are going to lecture the world about right and wrong — and if you’re trying to stop bad behavior — perhaps you shouldn’t be engaging in a version of that behavior yourself.
Instead, this has become one of the trademarks of the Obama administration: decry human rights abuses abroad, but hold men in prison in Guantánamo Bay, Cuba, who have never been accused of a crime. Say all the right things about freedom of the press — even as you’re subpoenaing reporters’ phone records. And express outrage over Chinese hacking while carrying on a sophisticated spying operation of your own citizens. It may seem to us a false equivalence, but the existence of Prism will make it far more difficult to force the Chinese to get serious about stopping their own hacking.
Maybe America’s new motto should be: Do As We Say, Not As We Do.
I have nothing to add.
The Guardian has released an interview with Edward Snowden, the whistleblower behind the disclosures on NSA surveillance published by the Glenn Greenwald and the Guardian this past week. If you haven’t watched the interview or read portions of it, I recommend doing so. Links:
1. The Guardian article by Glenn Greenwald, Ewen MacAskill, and Laura Poitras on Snowden.
2. The Guardian interview. (See also the embedded youtube video above.)
Some attention will now be devoted to attacking the messenger, just as there have been efforts this past week to marginalize or discredit Greenwald. (See below.) I hope we don’t lose sight of the message.
I’m pleased to say that I was suggesting six weeks ago what some have said this past week in light of the NSA revelations—that the government can offer the ultimate cloud service. As I wrote then, “Isn’t it great to know they’re backing up all our email? … Why don’t they offer to charge us a fee for access to old data?”
As for Greenwald, it’s fascinating to observe how the mainstream press has turned on him. Thursday’s NYT had an extraordinary profile by Noam Cohen and Leslie Kaufman identifying Greenwald as a blogger, even though all his disclosures were published in The Guardian, a newspaper founded three decades before the NYT (1821 versus 1851). Not that there’s anything wrong with bloggers, but that’s another issue. The profile ends with the following gratuitous attacks.
His writing has made him a frequent target from ideological foes who accuse him of excusing terrorism or making false comparisons between, for example, Western governments’ drone strikes, and terrorist attacks like the one in Boston.
Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”
Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.”
Ms. Bailey has a slightly different take. Because of his passions, she said, “he is just as willing to make enemies of anybody.”
The next day, Sullivan (the ultimate political blogger) released the exchange he had with the NYT’s Leslie Kaufman. Check it out here. She asks if they can chat, he says he has no time until Monday or Tuesday, though he can reply by email. She responds:
Needed in the next two hours, daily deadlines and whatnot.
So if you can:
1) He obviously had strong opinions, but how is he as a journalist? Reliable? Honest? Quotes you accurately? Accurately describes your positions? Or is more advocate than journalist?
2) He says you are a friend, is this so? I get the sense that he is something of a loner and has the kind of uncompromising opinions that makes it hard to keep friends, but could be wrong.
So that’s how journalism is done! Pretty revealing. Wait till we get the character assassinations of Snowden.
I learned last week that like the stopped clock that’s right twice a day, Supreme Court Justice Scalia is right, too, when given the passage of sufficient time. The court decided last Monday in a 5-4 decision that
police may take DNA samples from people arrested in connection with serious crimes … .
The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.
But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.
Justice Kennedy’s decision and Justice Scalia’s dissent (joined by Justices Ginsburg, Sotomayor, and Kagan) can be found here. I’ll quote two passages from the dissent, with references removed. (The missing references can be found in the linked document.)
First, early on:
The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here.
The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a “brief and … minimal” intrusion into the home of an arrestee-perhaps just peeking around the curtilage a bit? Obviously not.
At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).
Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of “identifying” King. But that seems to me quite wrong-unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense-claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word-in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham.
And in conclusion:
The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment ‘s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
What a great closing sentence!
[Tom Tomorrow, May 25, 2011]
It’s not news that our government is keeping track of us. I have written about this many times, perhaps most recently four months ago in a post on Obama’s signing of a five-year extension of the Foreign Intelligence Surveillance Act. As Yale law professor Jack Balkin explained years ago, we are “witnessing a normalization of the National Surveillance State and its basic policies.”
My view … is that Obama has played the same role with respect to the National Surveillance State that Eisenhower played with respect to the New Deal and the administrative state, and Nixon played with respect to the Great Society and the welfare state. Each President established a bi-partisan consensus and gave bi-partisan legitimation to certain features of national state building.
After the Obama presidency, opponents of a vigorous national surveillance state will be outliers in American politics; they will have no home in either major political party. Their views will be, to use one of my favorite theoretical terms, “off the wall.”
Glenn Greenwald, in his Guardian column yesterday, brings us the latest news, confirming that surveillance is universal.
The real capabilities and behavior of the US surveillance state are almost entirely unknown to the American public because, like most things of significance done by the US government, it operates behind an impenetrable wall of secrecy. But a seemingly spontaneous admission this week by a former FBI counterterrorism agent provides a rather startling acknowledgment of just how vast and invasive these surveillance activities are.
On Wednesday night, [CNN's Erin] Burnett interviewed Tim Clemente, a former FBI counterterrorism agent, about whether the FBI would be able to discover the contents of past telephone conversations between the two [Tamerlan Tsarnaev and his wife Katherine Russell]. He quite clearly insisted that they could:
BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It’s not a voice mail. It’s just a conversation. There’s no way they actually can find out what happened, right, unless she tells them?
CLEMENTE: “No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It’s not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.
BURNETT: “So they can actually get that? People are saying, look, that is incredible.
CLEMENTE: “No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”
“All of that stuff” – meaning every telephone conversation Americans have with one another on US soil, with or without a search warrant – “is being captured as we speak”.
On Thursday night, Clemente again appeared on CNN, this time with host Carol Costello, and she asked him about those remarks. He reiterated what he said the night before but added expressly that “all digital communications in the past” are recorded and stored:
Let’s repeat that last part: “no digital communication is secure”, by which he means not that any communication is susceptible to government interception as it happens (although that is true), but far beyond that: all digital communications – meaning telephone calls, emails, online chats and the like – are automatically recorded and stored and accessible to the government after the fact. To describe that is to define what a ubiquitous, limitless Surveillance State is.
Cool, huh? Since reading this, I’ve been wondering: Why doesn’t the government get into the cloud service business?
Isn’t it great to know they’re backing up all our email? And phone conversations too? If I’m careful with my hourly backups to my external hard drive and my use of various email services, I can recover email in an emergency. But something could go wrong. And my phone conversations? I don’t know how I would begin to back them up. Can I even do that legally, unless I ask permission every time I talk to someone? No problem for our government, though, thanks to FISA.
Why don’t they offer to charge us a fee for access to old data? How many times do Gail and I disagree about whether I told her something or not? Now we can settle such debates, assuming the disputed conversation took place on the phone or by email. Then again, maybe they’re recording even our regular conversations, whether in the house, the car, or on walks. Even better, for in that case they could settle any dispute. Just charge a small fee for each individual request, or a larger monthly charge for, say 100 requests, and a still larger charge for unlimited usage.
I would pay for this. Wouldn’t you?
[Matthew Peyton/Getty Images]
I’ve wanted to write about Anthony Lewis since learning of his death three days ago. He was my favorite New York Times columnist for many years. More recently, I’ve enjoyed his pieces in the New York Review of Books. But I don’t have anything specific to say. Let me turn instead to a few of the (many) remembrances of him.
First, basic facts from Adam Liptak’s NYT obituary.
Anthony Lewis, a former New York Times reporter and columnist whose work won two Pulitzer Prizes and transformed American legal journalism, died on Monday at his home in Cambridge, Mass. He was 85. …
Mr. Lewis brought passionate engagement to his two great themes: justice and the role of the press in a democracy. His column, called “At Home Abroad” or “Abroad at Home” depending on where he was writing from, appeared on the Op-Ed page of The Times for more than 30 years, until 2001. His voice was liberal, learned, conversational and direct.
As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.
“He brought context to the law,” said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis’s work. “He had an incredible talent in making the law not only intelligible but also in making it compelling.”
Before Mr. Lewis started covering the Supreme Court, press reports on its decisions were apt to be pedestrian recitations by journalists without legal training, rarely examining the court’s reasoning or grappling with the context and consequences of particular rulings. Mr. Lewis’s thorough knowledge of the court’s work changed that. His articles were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.
Mr. Lewis’s coverage of the court impressed Justice Felix Frankfurter, who called Mr. Reston. “I can’t believe what this young man achieved,” Justice Frankfurter said, as Mr. Reston recalled in his memoir, “Deadline.” “There are not two justices of this court who have such a grasp of these cases.”
Lincoln Caplan, writing at The American Scholar:
“The Constitution remains our fundamental law,” Anthony Lewis wrote, “because great judges have read it in that spirit.” Covering the Supreme Court for The New York Times in the 1960s, he was on hand when justices on the Warren Court did just that. Simply and eloquently, he explained how they made the court a central arbiter in American life and shaped the country’s march toward equality.
Lewis, who died Monday at 85, played an extraordinary role in that shaping. The court’s landmark decisions about racial justice, one person-one vote, and other deeply destabilizing social issues took hold because of the trust of the American people. Lewis helped foster that trust, through the authority and humane intelligence of his reporting and writing.
He possessed a vivid, passionate intellect, and had the moral focus of a rabbi. He worked intensely in the texts, the talk, and the traditions of the Court, but that effort appeared to be an immersion more than work. The lesson I drew from his model was that, even for someone as gifted as he, hard work was essential to giving the Court its due—especially so for those of us following the Court who don’t have the exceptional gifts he had.
Because he had extraordinary access to justices and his writing helped elevate the stature of the Supreme Court, he was sometimes criticized as an insider and, in some sense, a captive of the institution. But when it let him down, as it did dramatically in Bush v. Gore, making a political ruling to throw the 2000 election to George W. Bush, he reminded readers of his uncompromising independence.
He loved the Supreme Court as an American institution, but loved the Constitution more. Another lesson I drew from his model was that, while the Court always deserves the respect of anyone covering it, that respect sometimes requires saying sharply why you think a ruling it makes is wrong. …
Anthony Lewis’s voice was from the Old Testament as well—awe-inspiring, judgmental, and righteous.
The best fun of being president of the US, I often thought, would be appointing Anthony Lewis to the Supreme Court. He was a non-lawyer with a persuasive understanding of the gift and genius of the Constitution. He had a historian’s grasp on how the law evolved. Justice Frankfurter said Tony knew the cases before the Court better than most of the sitting judges. And he could unfold the issues in lucid prose that grabbed me as a teen-age reader of the New York Times.
Tony leaves us, I’d say, a memorable model for the best and broadest idea of a liberal at work. It wasn’t about dogma, much less radicalism. It was temperament as much as politics. It was about a modest optimism, a belief that institutions, even societies, could work on their flaws and get better. He was the human embodiment of the Warren Court, in that sense. He made a pair with his friend Justice William Brennan, who stood also for civility, compromise, persistence on an upward course. They stood for that era of reform in civil rights, in one-man-one-vote political representation, in the protection of defendants’ rights and the expansion of free speech and expression. Tony goaded the country with columns and landmark books on those central subjects, and by gum, the country got better. It can sound almost quaint, but he knew for certain that there were remedies for real ills in patient, hard-working devotion to our ideals in the Constitution and the law. So he never let up, and he never despaired.
One more quote, from Lydon again:
My favorite Tony Lewis columns – oddly unmentioned in the Times obit – might have been his answer to the Christmas bombing of North Vietnam in 1972, the Nixon-Kissinger “terror bombing” of Hanoi – with no measurable purpose or benefit. Peace was at hand, they had said, the war all but over, but American B-52s poured it on: 2000 strikes over 11 days. “An episode that will live in infamy,” Tony Lewis wrote. And lest we forget he kept rewriting that column every Christmas for a decade. The lessons for Americans were still: “Beware obsession. Beware secrecy. Beware concentrated power. Beware men untouched by concern for the moral consequences of their acts.”
To read that Lewis column, from December 23, 1972, click here. And do read it. It’s as powerful today as it was forty-one years ago.
[Official White House photo by Pete Souza]
I have become so enamored of Charles Pierce’s politics blog at Esquire that I could put up three or four quote-of-the-day posts every weekday from his writings alone. I regularly flag his posts as potential blog material, then decide not to overdo it. Better just to have a permanent pointer to his blog and leave it at that. But on reading one of today’s posts, I knew I had to feature it. (And now I see, catching up on a review of the day’s twitter feeds, that I’m not alone. Glenn Greenwald tweeted, “Charles Pierce on Obama, transparency and assassinations – 2 paragraphs – just please read.”)
The starting point is today’s NYT article by Scott Shane and Mark Mazzetti on drones and the Senate hearings for John Brennan’s nomination as the new CIA director. They write:
The White House is refusing to share fully with Congress the legal opinions that justify targeted killings, while maneuvering to make sure its stance does not do anything to endanger the confirmation of John O. Brennan as C.I.A. director.
Rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans to provide more information on the lethal attack last year on the American diplomatic compound in Benghazi, Libya, according to three Congressional staff members.
The strategy is intended to produce a bipartisan majority vote for Mr. Brennan in the Senate Intelligence Committee without giving its members seven additional legal opinions on targeted killing sought by senators and while protecting what the White House views as the confidentiality of the Justice Department’s legal advice to the president. It would allow Mr. Brennan’s nomination to go to the Senate floor even if one or two Democrats vote no to protest the refusal to share more legal memos.
To which Pierce responds (emphasis mine):
First, we have the ongoing charade of “transparency” as regards the president’s assumed right to kill Americans anywhere in the world including, absent a clear statement from this administration, which has not been forthcoming, within the borders of the United States. Then we have the drone program itself, which is a constitutional abomination no matter how effective you presume it is. Then, we have another attempt to reach a kind of bipartisan consensus with the various vandals and predatory fauna in the other party. And then, last, as part of the attempt at bipartisan consensus, a deal is struck in which the president’s hit list is kept in a vault while more fuel is fed into the Benghazi!, BENGHAZI!, BENGHAZI!!!!!!!111!!! infernal machine … .
This is what happens when you elect someone — anyone — to the presidency as that office is presently constituted. Of all the various Washington mystery cults, the one at that end of Pennsylvania Avenue is the most impenetrable. This is why the argument many liberals are making — that the drone program is acceptable both morally and as a matter of practical politics because of the faith you have in the guy who happens to be presiding over it at the moment — is criminally naive, intellectually empty, and as false as blue money to the future. The powers we have allowed to leach away from their constitutional points of origin into that office have created in the presidency a foul strain of outlawry that (worse) is now seen as the proper order of things. If that is the case, and I believe it is, then the very nature of the presidency of the United States at its core has become the vehicle for permanently unlawful behavior. Every four years, we elect a new criminal because that’s become the precise job description.
Strong words, but are they wrong? Greenwald tweets that “the last 2 sentences are perfect on every level.” I’m afraid so.
Mistaking Absolutism for Principle: If I Do It, It Is Not Illegal
I’ve written two posts in the last four days (here and here) on Obama’s use of drones to kill US citizens, with reference to the Department of Justice White Paper released a week ago that provides a legal framework for this practice. Perhaps there’s no need for a third. But how can I resist, when this week’s Tom Tomorrow* cartoon at Daily Kos captures the issues so well?
*By the way, consider supporting Tom Tomorrow’s This Modern World by subscribing. Each Friday (give or take a day), subscribers get a preview of the cartoon that appears at Daily Kos the following Monday, with additional commentary from Tom. This for just $9.99 per six months. With shrinking newspaper support for political cartoonists, direct reader support may be the only way for their work to survive. Tom asks only that you don’t share his cartoon until its Monday posting.
Mistaking Absolutism for Principle: Due Process Travesty
Three days ago, I retired my Change We Can Believe In series in recognition that President Obama had begun his second term and it was time to move on. In its place, I began this new series, which takes its name from Obama’s assertion that “we cannot mistake absolutism for principle” in his second inaugural address.
The first post of this series dealt with the latest news on the Obama administration’s use of drones to kill U.S. citizens in non-war zones abroad, the newly released Department of Justice White Paper that purports to offer a legal framework for this practice. The principal finding of the white paper was described by Charlie Savage and Scott Shane in their NYT coverage last week:
Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.
It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.
Recall Obama’s most publicized use of this authority, his approval of the killing of U.S. citizen Anwar al-Awlaki in Yemen two Septembers ago. On Friday, Harvard law professor Noah Feldman wrote about what he finds most troubling in the white paper: the travesty it makes of due process. I turn the rest of this post over to him. (The added emphasis is mine.)
The biggest problem with the recently disclosed Obama administration white paper defending the drone killing of radical clerk Anwar al-Awlaki isn’t its secrecy or its creative redefinition of the words “imminent threat.” It is the revolutionary and shocking transformation of the meaning of due process. … Due process is the oldest and most essential component of the rule of law. It goes back to the Magna Carta, when the barons insisted that King John agree not to kill anyone or take property without following legal procedures.
What they meant — and what has been considered the essence of due process since — is that the accused must be notified of the charges against him and have the opportunity to have his case heard by an impartial decision maker. If you get due process, you can’t complain about the punishment that follows. If you don’t get that opportunity, you’ve been the victim of arbitrary power.
Are U.S. enemies entitled to due process? Well, no — not if they are arrayed against the country on the battlefield. In war, you don’t try the enemy. You kill him, preferably before he kills you. And if some of the Japanese troops at Guadalcanal had held U.S. citizenship, it wouldn’t have suddenly given them due process rights. If Awlaki was an enemy fighting on the battlefield, he wouldn’t have deserved due process while the fight was on. Off it, he should legally be like any other U.S. citizen, innocent until proven guilty.
Yet, despite claiming that the Awlaki killing was justified because he was an operational leader of al-Qaeda, and thus in some sense an enemy on the battlefield, the white paper still assumes that due process applies to U.S. citizens abroad who adhere to the enemy. On the surface, this sounds plausible and even generous: Why not consider the possibility that a U.S. citizen abroad has some rights against being killed out of the blue?
In fact, though, applying due process analysis to Awlaki produces a legal disaster. The problem is, once you consider due process, you have to give it some meaning — and the meaning you choose will cast a long shadow over what the term means everywhere else.
Astonishingly, the white paper follows its summary of these decisions with the bald assertion that a citizen outside U.S. territory can be killed if a high-level official determines that he poses an imminent threat, it would be unfeasible to capture him and the laws of war would otherwise permit the killing.
The non sequitur is breathtaking. Awlaki wouldn’t receive notice, the opportunity to be heard or a hearing before a decision maker. In other words, he would receive none of the components of traditional due process — not even one. How the absence of due process could be magically transformed into its satisfaction is never stated or explained.
The Obama administration’s apparent belief that due process can be satisfied in secret internal inside the executive branch is arguably a greater departure from precedent. It is a travesty of the very notion of due process. And to borrow a phrase from Justice Robert Jackson, it will now lie about like a loaded weapon ready for the hand of any administration that needs it.
The white paper should have said that due process doesn’t apply on the battlefield. By instead making due process into a rubber stamp, the administration is ignoring precedent and subverting the idea of the rule of law. When is some law worse than none? When that law is so watered down that it loses the meaning it has had for 800 years.