2006 - %3, January

Guantanamo turns four

| Wed Jan. 11, 2006 2:37 PM EST

Amnesty International has a report out today marking the fourth anniversary of the first detainee transfers to Guantanamo. It contains new testimonies from current and former detainees alleging physical and psychological torture and seemingly routine sadism.

One detainee, Jumah al-Dossari, a 32-year-old Bahraini national, describes being threatened with rape and severely beaten, and having his head smashed repeatedly against the floor until he lost consciousness. (He also describes having cigarettes stubbed out on his skin and being urinated on by US marines in Afghanistan.) Another, Sami al Hajj, a 35-year-old Sudanese cameraman who worked for al-Jazeera in Afghanistan, describes a range of ill-treatment and more than three years of interrogations "focused on getting me to say that there is a relationship between al-Jazeera and al Qaeda."

Amnesty says there are still more than 500 detainees at Guantanamo. Read the report here.

Note: Last year Mother Jones interviewed Clive Stafford Smith, a British human rights lawyer representing Guantanamo detainees (inlcuding Sami al Hajj), and Michael Ratner, head of the Center for Constitutional Rights and author of Guantanamo: What the World Should Know. And Emily Bazelon, writing in the March/April issue of Mother Jones, detailed how controversial interrogation techniques used by the US military in Afghanistan "migrated" to American prisons in Iraq.

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More on the NSA

| Tue Jan. 10, 2006 3:45 PM EST

Here are a few useful links to fairly detailed background reading on the NSA spying program—some of which may have been linked to elsewhere. A complete chapter of James Risen's book, which looks at what those few Justice Department officials in the know call "The Program," is now online. Two interesting tidbits: First, the NSA was given authority to determine, on its own and without any oversight whatsoever, which people they should start spying on in the first place. Second, "senior administration officials" differ on whether the intelligence has actually been used in criminal cases—one of the difficulties in determining this is that, if the NSA happens to find something useful, it will "launder" the intelligence before it is distributed to the CIA or FBI to hide the origins of the info.

Also, two other scholarly links. Back in 2001, Lawrence Sloan wrote a long article on Echelon, the global surveillance system, which is pretty thorough in laying out the legal issues, and pointing out that current rules are inadequate to the task of overseeing the NSA, as technology advances and whatnot. (He believes the NSA, and Echelon, are fundamentally valuable, but just need better oversight.) On a sort of related note, Michael Froomkin has a good 1994 law article going in-depth on the problems with having an "imperial presidency," along with a follow-up here.

Presidential Signing Statements

| Mon Jan. 9, 2006 5:10 PM EST

Digby of Hullaballoo has an important post on President Bush's use of "signing statements" to signal to Congress that he has no intention of following the actual laws that are passed in the legislature. Here's a Knight-Ridder story on the subject:

In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues. […]

Signing statements don't have the force of law, but they can influence judicial interpretations of a statute. They also send a powerful signal to executive branch agencies on how the White House wants them to implement new federal laws.

In some cases, Bush bluntly informs Congress that he has no intention of carrying out provisions that he considers an unconstitutional encroachment on his authority.Are there any Republicans in Congress who actually care that the president considers them more or less irrelevant whenever he feels like? It doesn't seem so.

Department of Homeland Security opens Kansas professor's mail

| Mon Jan. 9, 2006 4:55 PM EST

The Progressive reports that Grant Goodman, an 81-year-old professor emeritus of Asian history at the University of Kansas, writes regularly to his colleague, a former professor history at the University of the Philippines. Last month, Goodman received from his friend a letter that had already been "Opened by Border Protection," and which displayed the seal of the U.S. Department of Homeland Security.

The other professor, also in her 80's, according to Goodman, "hasn't written about anything in years."

Goodman, who was very upset by the government's opening his private correspondence, was also surprised by the crudeness of the letter-opening. The letter had been slashed open and then secured with heavy green tape. Unlike other prying government agencies, Homeland Security wants you to know it is watching you.

The NRA Abroad

| Mon Jan. 9, 2006 4:49 PM EST

David Morton of Foreign Policy has a long and fascinating piece this month on how the NRA has become a global lobby of sorts, fighting against arms control laws abroad and giving "gun-rights" movements in other countries aid and assistance. And it's working: the NRA has helped defeat gun-control legislation in Brazil and Australia, and has managed to help stall arms control efforts at the UN.

All these efforts seem a bit like overkill, though. So long as the United States continues to make cheap arms by the ton and sell them all around the world, international arms-control efforts will never really get anywhere anyway. And the NRA has pretty much ensured that American arms manufacturers are untouchable here at home. So why spend all the extra effort in tiny countries abroad? A variety of reasons, sure, though Morton gets at the "sordid" one: even when the NRA fails to defeat gun-control legislation abroad, "doing battle with the United Nations and promoting fears of a global gun-grabbing conspiracy is a boon for fundraising and publicity back home." So there.

How Necessary is That NSA Program?

| Mon Jan. 9, 2006 3:52 PM EST

I haven't been following the NSA surveillance story all that closely, so apologies if some of the points made below have been repeated elsewhere over the past month or so (or heavens, if some of the facts are wrong!), but it seems like there are still a few things worth questioning in, for instance, Kevin Drum's argument today:

[T]he NSA program itself is quite likely a reasonable response to 9/11.... Politically, I continue to think Democrats should make it absolutely clear that what they're attacking isn't necessarily the NSA program itself, but the fact that the president unilaterally decided that he could approve the program even though Congress had specifically forbidden it.
Ezra Klein agrees:
The base controversy here, as anyone following it knows, is legal, rather than operational. I'm on the mailing list for quite a few liberal organizations, politicians, pundits, and bloggers, and not a single one has demanded the NSA program's dismantlement.
Well, "politically" this stance probably makes sense, and obviously any potential law-breaking by the Bush administration is an extremely serious matter and the primary issue at hand, but why not attack the "NSA program itself"? Why not call for its "dismantlement"? Is the dimly-understood NSA program in question, whatever it is, actually a reasonable response to 9/11? If the Bush administration felt it couldn't even get it approved by Congress, perhaps not. Does the program do any good? We don't really know, because the details remain classified. Maybe it doesn't.

Of course the Bush administration says that it's super-effective, but is there any actual evidence that whatever this secret NSA program is—"data mining," perhaps, or some ECHELON-like program—has stopped a single terrorist plot, or led to a single terrorist conviction? (A quick Google search doesn't bring anything up; Joe Klein claims there's "evidence"; but what?) And even if so, could these plots have been stopped or disrupted in some other, less secretive or less invasive way? Yes, nearly everyone will agree that the government should try to spy on al-Qaeda, but that still leaves a lot of leeway on how to go about it.

The track record of the NSA has been pretty poor in the past—among other things, all that high-tech gadgetry failed to notice that India and Pakistan were getting read to explode nuclear bombs in 1998—so why should anyone assume that Echelon or other newfangled surveillance programs are magically more competent and useful for stopping terrorism? Intuitively, it has never seemed so hard to elude the NSA if you really wanted to: a good set of substitution codes in your email and telephone calls, along with perhaps RSA encryption, should help careful terrorists stay undetected. Maybe that's not true and these new and secret surveillance techniques really are that effective, but the long history of U.S. intelligence failures doesn't really give one hope.

Meanwhile, so long as the country's in a permanent state of war whose duration is decided by the whims of the president, and so long as terrorism suspects can be held without trial in secret prisons, any sort of classified surveillance program, especially one that potentially sweeps up large numbers of Americans, looks pretty indefensible. Any program is going to make errors and scoop up the wrong people from time to time, and even if the Bush administration was getting warrants for everything, that's still a lot of innocent people who can potentially be stuffed in Guantanamo Bay or extradited abroad for torture and questioning without judicial oversight. Even a "legal" NSA surveillance program becomes problematic when set against a larger background of lawlessness.

Another, side question: Why is it always acceptable to subject foreigners to data-mining and other forms of intrusive warrantless surveillance, without oversight, if it's not acceptable to subject Americans to the same? Obviously that's what the law and Constitution allows, but in certain cases this seems like an arbitrary distinction to make, especially when we know that innocent foreigners very frequently get swept up and detained without trial by the U.S. government. Meanwhile, the European Parliament, among others, has accused the NSA of using secret intercepts abroad to bolster American corporations or conduct industrial espionage, tasks well outside the NSA charter. So there are real concerns with even perfectly legal forms of NSA surveillance abroad, and other abuses aren't hard to imagine.

(Speaking of which, and perhaps this has been brought up elsewhere already: It's long been suggested that the NSA has gotten around USSID 18, preventing warrantless surveillance in the USA, simply by partnering up with British agencies, which have far fewer restrictions than our spies, and having them spy on Americans for us. It's not something that's ever been proven, I think, but it sounds plausible enough. So in practice the foreign-domestic distinction may not be all that rigid anyway.)

A few weeks ago in the New Republic, John Judis revisited the question of whether we should abolish the CIA, something Daniel Patrick Moynihan suggested in 1996 (even better, see Chalmers Johnson, who actually worked for the CIA for awhile). And why not? Apart from overthrowing elected governments, decimating labor movements abroad, and starting crack epidemics in Los Angeles, the agency doesn't appear to be all that crucial. Its most benign and important function, intelligence analysis, has been bested by unclassified and public sources time and time again.

As far as I know, though, no one has laid out as thorough a case for curtailing (or at least declassifying large parts of) the NSA, but the argument would probably run along similar lines. Here you have yet another unaccountable and possibly ineffective agency—when Bob Drogin of the Los Angeles Times heard the "official" NSA self-defense in 2000, here were their list of successes:

NSA successes are real enough. Over the years, NSA operatives have listened to Cuban captains in their ships and Kremlin leaders in their limos. They bugged the Chinese embassy in Australia, tapped Cali drug cartel phone calls in Colombia and identified the Libyan suspects in the bombing of a Pan Am jet. They even bugged arms control and trade talks.

"If you've got the other guy's basic negotiating plan and his three fallback plans on a piece of paper when you're sitting down, you're in pretty good shape," said a former Reagan White House intelligence official. "That's what the NSA gave us. . . . There was a constant stream of incredibly good stuff.""Incredibly good stuff," they say. But really? Intelligence agencies failed to predict the breakup of the Soviet Union and much of Reagan's cabinet repeatedly insisted that Gorbachev wasn't someone who could be negotiated with. Exactly how useful are we talking here? That, plus accusations that the NSA is involved in political and industrial espionage against our ostensible allies, along with its long history of abuses and law-breaking (even when there has been "oversight"), would probably comprise the bulk of the case for the prosecution here. I honestly don't know how strong that is. Note also that, even if this latest NSA spy program, whatever it does, were "legal" and subject to oversight, Congress has always taken a minimalist approach to babysitting intelligence agencies; legality is no guarantee against abuse (although it's certainly better than nothing).

Maybe that just means that better congressional oversight will take care of all these problems, and the problems with the NSA are nothing the rule of law can't clear up, but then again, maybe not. I don't think saying so has to be considered "civil liberties absolutism" so much as skepticism that these specific programs and agencies are all truly and honestly vital to the security of the United States.

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The Decline of Corporate Convictions

| Fri Jan. 6, 2006 4:30 PM EST

Corporate Crime Reporter has a long and interesting new report out about "The Rise of Deferred and Nonprosecution Agreements" with respect to corporate crime. The brief summary goes something like this:

Federal and state prosecutors are increasingly offering major corporations – including Adelphia, Computer Associates, KPMG, Merrill Lynch, Monsanto, Sears, Shell, WorldCom/MCI – special deals – known as deferred prosecution or non prosecution agreements.

Under these agreements, prosecutors agree not to criminally prosecute the corporation to conviction in exchange for cooperation against culpable executives, implementation of corporate monitors, and fines.So, for instance: In August 2005, the accounting firm KPMG admitted to fraud that generated at least $11 billion in phony tax losses. But there was no conviction, and the company was instead given a deferred prosecution deal, which came over the objections of N.Y. Attorney General David Kelley. KPMG appealed directly to Deputy Attorney General James Comey—the man who has received a few plaudits of late for refusing to sign off on the Bush administration's spying program—and the deputy AG ordered Kelley to cut a deal. Comey was reportedly worried that KPMG would go the way of Arthur Andersen, and figured it was a company that was too big to fail. (Arthur Andersen, by the way, received its own deferred prosecution deal in 1996, in a case involving real estate fraud.)

This practice has become much more common since 2002, after prosecutors became skittish about bringing more Enrons down, and the practice picked up legitimacy for major corporate crime cases after then-Deputy Attorney General Larry Thompson issued a memo in 2003 setting new "guidelines" for prosecuting corporations. (Previously, prosecutors defended these deals by saying they didn't want to clog up the courts with minor crimes—but now they're being used for major crimes as well.)

Now there's at least a plausible case for avoiding an indictment and possibly a conviction of a major corporation. Some prosecutors will say that corporations are too big to indict. If there's an indictment, the company's stock could tumble, innocent people could lose their jobs, the economy could suffer. And a conviction could put a company out of business altogether. (This isn't exactly true: Convicted criminals such as Chevron, Exxon, Tyson Foods, Pfizer, and Samsung are all still in business, last I checked.) So it makes much more sense, the prosecutors say, simply to put those individuals responsible (i.e."bad apples") in jail and just let the corporation reform itself. No conviction necessary!

The downside, of course, is that without the threat of conviction hanging over their heads, corporations have less incentive to avoid wrongdoing, especially if they know that if they get caught, at worst, they'll have to pay a fine, serve up the head of an executive or two, and then carry out a few nominal "reforms." After all, Arthur Andersen certainly didn't learn any heartfelt life lessons after cutting a non-prosecution deal in 1996, after engaging in real estate fraud.

Another potential problem is that the leeway that prosecutors get in cutting these deals opens the doors for abuse. In 2005, Bristol Myers Squibb, as part of its deferred prosecution deal over charges of conspiring to commit securities fraud, was ordered to pay a fine, make some reforms, and fund a chair in business ethics at Seton Hall, which just happened to be the New Jersey Attorney General's alma mater. It's hardly the slimiest thing in the world, and perhaps this example was perfectly innocent, but the possibility for corruption is certainly there.

So it's an interesting issue, and not something that has really been fully thrashed out yet. Me, I tend towards the "law and order" side of corporate crime and punishment, and probably wouldn't mind seeing the death penalty hauled out for especially flagrant corporations. But the debate's obviously less cartoonish than that. Russell Mokhiber of CCR suggests that even if you accept the arguments of prosecutors who favor these deals, it still might make more sense for AGs to pursue "corporate probation." That would achieve basically the same thing—force the company to pay a fine, reform itself, hand over executives head's on platters, etc.—but would keep the process within the judicial system, as a judge makes sure that the company has rehabilitated itself before lifting probation.

Repealing the Magna Carta

| Fri Jan. 6, 2006 2:44 PM EST

New at Mother Jones:

Nick Turse on the Bush administration's drive to dismantle our constitutional and legal system-- effectively repealing the Magna Carta. (Read it.)

Winslow T. Wheeler wonders why, on a budget of $1 billion a day, the Pentagon supplies US troops with such lousy combat equipment. (Read it.)

Sara Catania profiles Ernie Chambers, the lone African American in the Nebraska legislature, who has been almost singlehandedly changing the state. (Read it.) Plus, an interview with Ernie Chambers. (Read it.)

Beyond GDP Growth

| Fri Jan. 6, 2006 2:42 PM EST

The Economic Policy Institute has a short paper answering the question of why Americans might still be so dissatisfied with the state of the economy when GDP growth has been relatively strong for quite some time. Profits are up, but wages and incomes are down for the average worker; more and more people are sinking deeper into debt; the employment rate has fallen; poverty is rising; and health care costs are slowly getting out of control. Set in this context, of course, the figures for GDP growth really doesn't matter much at all, although that seems to be the big number everyone always talks about.

What Abramoff Bought

| Fri Jan. 6, 2006 2:26 PM EST

It's hard to improve on this point about the Jack Abramoff scandals by Jeanne of Body and Soul:

Yesterday Amy Goodman interviewed Brian Ross about his 1998 story on Tom Delay's fight to continue horrible labor conditions and forced abortions on U.S. soil in Saipan. The current news hook, of course, is that Delay got interested in Saipan when Jack Abramoff arranged a nice trip there for him.

I'm glad the corporate media is covering the corruption, but I wish there was more emphasis on what these inducements were in support of. But then that's why we call it corporate media, isn't it? A little scandal here and there can be fun to cover, but look into the effect of all this on people's lives? Not powerful people's careers and ambitions, but ordinary people's lives? That Ross covered the story in '98 proves it can be done. But it's never part of the big juicy stories.Right, right. The corruption and the process gets all the coverage, but ultimately the end result matters most. It's not like DeLay was taking a bit of money to do something that was good for the world—calling attention to the plight of the ongoing mess in the Congo at the behest of Congolese lobbyists, say. (Or whatever; it's just an example.) He was blocking legislation in Congress that would have prevented corporations from contracting with sweatshops in Saipan. He was trying to preserve what were essentially forced labor camps. All for a few bucks and a nice little trip abroad.