Political MoJo

PDA on Exiting Iraq

| Thu Jan. 12, 2006 12:06 PM PST

The Project on Defense Alternatives has put together a very useful collection of all the various proposals, official statements, and commentaries that have come out over the past year or so talking about whether and how the U.S. should get out of Iraq. Hours of fun. I'd only add that they forgot Daniel Byman's incisive "Five Bad Options for Iraq," which is one of the few analyses that doesn't even try to imagine that anything good could come of this war.

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A look at Judge Alito's decisions on law enforcement

| Wed Jan. 11, 2006 6:39 PM PST

The Yale Report on Alito examines thirteen categories of decisions rendered by Judge Samuel Alito throughout his career. One of those categories, "Responsible Law Enforcement," provides a summary of Alito's decisons regarding the powers of law enforcement agencies and the rights of the accused:

Doe v. Groody--Alito dissented from the majority in that he would have allowed the strip search of a ten-year-old girl and her mother, even though neither of them was named in the search warrant. Alito wrote that he was aware of "no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face."

U.S. v. Stiver-- Alito interpreted the content of a search warrant that permitted the law enforcement agency to "seize all drug paraphanalia" to include allowing the law enforcement authority to answer the suspect's telephone and pretend to be him.

United States v. Lee--The FBI, without a warrant, hid a video camera in the room of a man whom they suspected would be discussing bribery payments with an informant. The camera ran twenty-four hours a day, yet Alito found no evidence of the suspect's Fourth Amendment privacy rights.

Leveto v. Lapina
--Alito ruled that the government agents had violated the rights of a wealthy couple who was accused of tax evasion. Alito declared the suspects had been detained without probable cause, had not been read their Miranda rights, and that the wife had been given a body pat-down when she was dressed in only a nightgown.

United States v. Zimmerman--The majority reversed a district court denial of a defendant's motion to suppress evidence found in his house. The reversal was made because the panel found that the information used to obtain the warrant was too old to construct probable cause. Judge Alito dissented, citing a police "good faith" exception to excuse what had happened.

These are only a few of the cases. There are numerous others described in the Yale report. In fact, in the more than fifty cases involving criminal procedure issues for which Judge Alito wrote opinions, he ruled in favor of the government 90% of the time.

The Air War in Iraq

| Wed Jan. 11, 2006 2:23 PM PST

Seymour Hersh predicted it a few months ago, but today Knight Ridder is reporting that the air war in Iraq, which has involved hundreds of strikes over the past few years on a variety of targets, could "intensify" in the coming months as U.S. troops draw down. Today in Mother Jones, Michael Schwarz argues that "The new American strategy, billed as a way to de-escalate the war, is a formula for the slaughter of Iraqi civilians." His argument's well worth reading.

And anyway, even if Schwarz' estimates—he says up to 20,000 civilians could, in theory, be killed as "precision bombs" continue striking suspected insurgent "safe houses"—are too pessimistic, there are still very obvious problems here.

Even a "precision bomb" that doesn't kill any civilians can still level or damage, say, the house of the Sunni family next door, or else cut off their already-sporadic electricity and water, or disrupt their life in other very serious ways, and Sunnis that saw the insurgents next door as a dangerous but acceptable annoyance will naturally be extremely pissed off at the United States and the newly elected Iraqi government. Especially since the Bush administration has decided to cut off any further funds for reconstruction to the country it smashed to bits. One could argue that an air campaign is "necessary" in the long-run to defeat the insurgents in Iraq and make the country free and democratic, but in the short run, try telling that to the family whose house was just demolished. And not surprisingly, Knight Ridder quotes a number of military and intelligence analysts who don't think an air war is a good way to wage counterinsurgency anyway.

In related news, meanwhile, one of the leading Shiite clerics, Abdul Aziz al-Hakim, announced today that he wasn't interested in making concessions on the constitution to the Sunnis, as had been vaguely promised before the election. Maybe he'll change his tune in a day or two, but that pretty much puts a knife in any hope at reconciliation in Iraq. Roughly, it looks like the Shiites in power are ready for a gunfight, and are happy to use American airpower to do the fighting for them. A casual observer might suggest that this isn't really a good way for the new government to build legitimacy, or end the war anytime soon, but that's where all signs are pointing.

Auditing the Poor

| Wed Jan. 11, 2006 12:51 PM PST

David Cay Johnston of the New York Times reported yesterday that the IRS has been freezing tax refunds for hundreds of thousands of poor Americans—most of them involving the EITC, a tax credit for the working poor—by labeling their tax returns "fraudulent." About 66 percent of the people whose records were frozen were found to be owed all of the money they claimed or more.

Now tax fraud is tax fraud, and it's nice that the IRS is pursuing it, but tax fraud by the working poor amounts to some $9 billion a year, if that—and many of these supposed "fraud" cases involve people who filled out the wrong form or somehow couldn't afford a tax accountant to jigger the numbers just right. About 40 percent of low-income Americans have never even heard of the EITC. Meanwhile, as Max Sawicky points out, corporations and wealthy Americans manage to dodge some $340 billion in taxes each year And not surprisingly, the IRS tends to spend a disproportionate amount resources going after the poor, in part because it's easier—there are fewer lawyers to deal with, the poor tend not to complain, etc.

This partly comes out of the fact that the IRS has become seriously underfunded, especially after taking a beating from the right throughout the '90s. So the agency has focused more and more on "easier" targets. But what's happening is also conscious policy. In 2000 House Republicans tried to cut the EITC, which, in the tiny world of small-bore anti-poverty policies, has been one of the most successful. They failed. So instead they decided to use the IRS as a means of attacking the program. And last September, the House Republican Study Committee proposed even more "intensive" audits of EITC filers, although they were apparently uninterested in that $340 billion sitting around. In fact, the IRS won't even release its "records on how thoroughly [it] audits big corporations and the rich." Wonder why.

Guantanamo turns four

| Wed Jan. 11, 2006 12:37 PM PST

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.

More on the NSA

| Tue Jan. 10, 2006 1:45 PM PST

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.

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Presidential Signing Statements

| Mon Jan. 9, 2006 3:10 PM PST

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 2:55 PM PST

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 2:49 PM PST

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 1:52 PM PST

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.