Obsidian Wings

When It Rains, It Pours...

by hilzoy

From the NYT:

"Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say.

Mr. Abramoff is believed to have extensive knowledge of what prosecutors suspect is a wider pattern of corruption among lawmakers and Congressional staff members. One participant in the case who insisted on anonymity because of the sensitivity of the negotiations described him as a "unique resource." (...)

What began as a limited inquiry into $82 million of Indian casino lobbying by Mr. Abramoff and his closest partner, Michael Scanlon, has broadened into a far-reaching corruption investigation of mainly Republican lawmakers and aides suspected of accepting favors in exchange for legislative work.

Prominent party officials, including the former House majority leader, Representative Tom DeLay of Texas, are under scrutiny involving trips and other gifts from Mr. Abramoff and his clients. The case has shaken the Republican establishment, with the threat of testimony from Mr. Abramoff, once a ubiquitous and well-connected Republican star, sowing anxiety throughout the party ranks. (...)

Florida prosecutors are also investigating corruption in that case, focusing on Mr. Ney and his chief of staff at the time, Neil Volz, according to people involved in the case. Mr. Volz reportedly agreed to put negative remarks about Mr. Boulis in The Congressional Record, even though Mr. Ney had no obvious reason to comment on Mr. Boulis.

Mr. Volz went on to work for Mr. Abramoff as a lobbyist.

Mr. Ney has said he was tricked by Mr. Scanlon and Mr. Abramoff into participating, and no charges have been brought against him.

In his financial paperwork in the Miami deal, Mr. Abramoff listed Tony C. Rudy, a deputy chief of staff to Mr. DeLay at the time, as a reference.

He also listed Representative Dana Rohrabacher, Republican of California, who has since defended the decision to support the lobbyist.

Lawyers for Mr. Volz, Mr. Ney and Mr. Rudy did not return calls for comment. A lawyer for Mr. DeLay declined to comment, but spokesmen for Mr. DeLay have repeatedly said he had done nothing improper.

Such ties are only at the periphery of the investigations, according to people briefed on the case. Mr. Scanlon, who worked on public affairs for the SunCruz casinos and is familiar with the inner workings of many of Mr. Abramoff's deals, is cooperating in the Miami case as well as in Washington, his lawyer has said.

Prosecutors are also looking at how some former Congressional staff members landed their lucrative lobbying positions and at the role the wives of several lobbyists and lawmakers may have had in any influence scheme, a piece of the puzzle that investigators have begun referring to privately as the "wives' club.""

I hope that any politicians and government employees who have sold out their positions, their constituents, and their country get exactly what they deserve.

Intellectual Integrity Watch: Special NRO Edition

by hilzoy

In the National Review, James Robbins (h/t cleek) claims, about the NSA surveillance of US citizens, that "the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA)." His arguments are completely disingenuous, and as a public service, I thought I'd say why. Robbins says:

"For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year" (emphasis mine).

Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations.""

The actual text from FISA that Robbins refers to says:

"(A) the electronic surveillance is solely directed at --

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and ..."

Note the references to "a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title". Here is sec. 1801 on 'foreign powers':

"(a) ''Foreign power'' means --

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments."

So: what Robbins has done is: leave out the part of the text that restricts the use of 'foreign powers' by adding 'as defined in section 1801(a)(1), (2), or (3) of this title'; then saying 'in sec. 1801, foreign powers includes terrorists', without noting that that's in 1801(a)(4), and is thus not relevant to the statute he's discussing.

Later, he says:

"O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power.""

Here's the actual definition of US person:

"(i) ''United States person'' means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."

Note that 1801 specifically includes any citizen or legal permanent resident, and specifically excludes not 'agents of foreign powers', but "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section." So there are several things wrong with Robbins' point here:

(a) Your average US citizen or permanent resident is not a corporation or association, but a human being, and this the exemption has nothing to do with him or her.

(b) Robbins has left off "as defined in section 1801(a)(1), (2), or (3) of this section", which makes it clear that the corporations and associations in question do not include terrorist groups (who are under 1801(a)(4).)

Robbins goes on to say that being an agent of a foreign power makes you stop being a US person:

"Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior."

Again, this is false: the definition of 'United States person' noted above does not say that no agent of a foreign power can be a United States person. It says that no corporation or association that is a foreign power as defined under subsection (b)(2)(C) can be a United States person. That means that US citizens and permanent residents who are agents of foreign powers can be US persons. And therefore the authorization to conduct warrantless wiretaps when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" is not affected by the fact that the US person in question might also be an agent of a foreign power.

Sloppy reporting or deliberate misinformation? We report; you decide.

Dangerous Quakers On The Loose!

by hilzoy

A few days ago, William Arkin, who is usually very good, wrote:

"Come on. The government is not just repeating the targeting of political opponents a la J. Edgar Hoover or Richard Nixon. It is not picking out a Seymour Hersh or a Cindy Sheehan to find their links to foreign influences nor seeking to ruin their lives by developing incriminating evidence on them."

(To be fair, he also wrote, in the same column:

"What has happened since the World Trade Center and Pentagon attacks is as pernicious and as damaging as any abuse or panic or misstep of the past: We must pledge allegiance to a certain post 9/11 Order, abandon the rule of law, compromise our values, turn against our neighbors, enlist in a clash of civilizations, all in the name of defeating the terrorists.

We are being asked to destroy our country in order to save it.")

Apparently, he was wrong. We are, in fact, targeting political opponents, not just potential terrorists*, for surveillance. From today's NYT:

"One F.B.I. document indicates that agents in Indianapolis planned to conduct surveillance as part of a "Vegan Community Project." Another document talks of the Catholic Workers group's "semi-communistic ideology." A third indicates the bureau's interest in determining the location of a protest over llama fur planned by People for the Ethical Treatment of Animals."

From NBC:

"A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.

“This peaceful, educationally oriented group being a threat is incredible,” says Evy Grachow, a member of the Florida group called The Truth Project. (...)

“I mean, we're based here at the Quaker Meeting House,” says Truth Project member Marie Zwicker, “and several of us are Quakers.”

The Defense Department refused to comment on how it obtained information on the Lake Worth meeting or why it considers a dozen or so anti-war activists a “threat.”"

From today's Washington Post:

"FBI counterterrorism investigators are monitoring domestic U.S. advocacy groups engaged in antiwar, environmental, civil rights and other causes, the American Civil Liberties Union charged yesterday as it released new FBI records that it said detail the extent of the activity. (...)

The ACLU said it received 2,357 pages of files on PETA, Greenpeace, the American-Arab Anti-Discrimination Committee and the ACLU itself. One file referring to the committee included a contact list for students and peace activists who attended a 2002 conference at Stanford University aimed at ending sanctions then in place in Iraq."

From the Servicemembers' Legal Defense Network (h/t AmericaBlog):

"Only eight pages from the four-hundred page document have been released so far. But on those eight pages, Sirius OutQ News discovered that the Defense Department has been keeping tabs NOT just on anti-war protests, but also on seemingly non-threatening protests against the military's ban on gay servicemembers. According to those first eight pages, Pentagon investigators kept tabs on April protests at UC-Santa Cruz, State University of New York at Albany, and William Patterson College in New Jersey. A February protest at NYU was also listed, along with the law school's gay advocacy group "OUTlaw," and was classified as "possibly violent."

All of these protests were against the military's policy excluding gay personnel, and against the presence of military recruiters on campus. The Servicemembers Legal Defense Network says the Pentagon needs to explain why "don't ask, don't tell" protesters are considered a threat."

So our government seems to be keeping tabs on: the Catholic Workers, vegans, Quakers, the ACLU, people opposed to sanctions in 2002, and people who protest 'Don't Ask, Don't Tell.' I'm sure every one of them presents a threat to this country. Why, I myself am a member of the ACLU and a vegetarian (though I've never had much use for PETA), and I oppose 'Don't Ask, Don't Tell' to boot. Also, I listen to Bob Dylan a lot. Heaven only knows what fascinating tidbits have been added to my FBI file in recent years.

As conservatives above all should know, there is no earthly reason to think that when the government starts spying on people outside the law, it will behave in a trustworthy manner. The mere fact that it goes outside the law is usually proof enough that it won't. ('Usually' here is philosophers' caution, meant to allow for cases involving completely and totally extraordinary circumstances for which the law does not provide. Think: Osama bin Laden threatens to blow up the world unless some FBI agent steals a paperclip. The proper course of action in that case is, according to me, to steal the paperclip, capture bin Laden, and then turn oneself in for theft.)

There's a reason some of us were all bent out of shape about the administration's claims of absolute power when they first came to light. And there's a reason we did not accept any assurances that no doubt the administration would only use its powers to go after terrorists. That reason is the recognition that it is the law, not the virtue of any particular politician, that protects us against the abuse of government power, and when the government asserts that it is not bound by the law, we are all in danger.

***

* [Update: I do not mean to suggest that targeting people the administration thinks might be potential terrorists for unlawful searches would in any way be OK. I am just saying that if we are targeting, of all people, the ACLU, then we have gone after a quite different set of people, and thus that one of Arkin's assumptions is wrong. I am not making any claim about better or worse.]

The Good News: At Least Alberto Gonzales Is Not On The Supreme Court

by hilzoy

Today the Attorney General went into more detail about what he takes to be the legal authorization for the administration's program of secret surveillance. And his explanation is really quite extraordinary. Yesterday I said that, as far as I could tell, the administration's reasoning would allow the President to do literally anything in time of war:

"Does he want to imprison a United States citizen indefinitely, without a warrant, and habeas corpus be damned? Fine! Does he want to tap our phones and read our email, also without a warrant, in defiance of the FISA statute and the Fourth Amendment? Also fine! As far as I can see, on this reading of the Constitution, there's no reason he couldn't decide that his war powers extended to levying taxes without Congressional approval (wars cost money, you know), or throwing Congressman Murtha in jail to prevent him from sapping our troops' morale, or suspending the publication of all newspapers, magazines, and blogs on the same grounds, or making himself President For Life on the grounds that we need the continued benefit (cough) of his awesome leadership skillz to successfully prosecute the war on terror."

I was hoping (though not expecting) that I'd be wrong, and they would turn out not to be making the world's most ludicrous legal argument. But no: they are.

Requiem: Update

by hilzoy

Next week Congress should vote on the Defense Authorization Bill, which contains Lindsay Graham's amendment stripping Guantanamo detainees of their right to file habeas corpus petitions. The point of habeas petitions is to allow prisoners to ask the government why they are in prison, and to allow a judge to decide whether the government's answer holds up.

Graham's amendment, in its last published version, would grant Guantanamo detainees the right to appeal the verdicts reached by their military tribunals. But that's not a substitute for the right to file habeas petitions. To see why not, consider the latest development in a case I've written about before: the case of Abu Bakker Qassim and A'del Abdu al-Hakim. Here's an article about the case, and here's an op-ed by al-Hakim's lawyer.)

This is a case that illustrates why habeas corpus matters. It could not have been brought if Graham's amendment had been enacted, since the people who brought it have no reason to appeal the decision of their military tribunal. The military tribunal found that they were not enemy combatants; why would they want to appeal that? What they want to know is: since they were cleared months ago, why are they still locked up in Guantanamo?

Finally.

Finally, President Bush gives the speech that I've been awaiting.  It would have done a lot more good right after the election; still, better late than never.

UPDATE:  It's worth noting that the pressure is now on the Democrats.  Iraq is a fight that we cannot afford to lose; yet, certain Democrats give the appearance of delighting in every purported setback (real or perceived).  This is serious business, folks.  It might make you feel better to dispense your "told you so's."  But it won't make us safer.

UPDATE THE SECOND:  A chorus of angry denunciations and snide remarks provides the expected accompaniment to my brief remarks -- as well as a pop-offs about my purported pro-torture propensities.  [Hi.  My name is von.  I wrote this and this and this. Thanks for playing.]  All in good fun, I suppose.  But here's the rub:  it's not just another talking point to say things like "we can't afford to fail in Iraq."  It's the truth.  It remains the truth regardless of whether the decision to go to war in Iraq was stupid, smart, or somewhere in between.  If Iraq slips into chaos, we and our children will suffer.  You will suffer.  And your wise words, smart remarks, and deep insights won't matter at all.  The world is more Bowles or Camus -- more Lovecraftian even -- than it is anything else.

The only question we have to answer is what to do now to give us the best chance of winning (or, at least, not losing) Iraq.  Some say that pulling out will give us the best chance of victory.  I disagree, and not just because it sounds like a stupid idea.*  Although I've been deeply critical of this administration's policy on Iraq, there have been some hopeful signs that the present course is finally starting to work.  We just had an immensely successful election.  The army and police are beginning to be rebuilt.  The outcome is not yet certain -- for all we know, the Iraqis just elected Sauraman as their leader -- but there's room enough to keep from despair.

Does this mean we airkiss "bygones" and rally behind the President?  No; this ain't an episode of Ally McBeal (which, for good reason, has been canceled for quite some time).  But it does mean that we rally behind the mission. 

We have to succeed in Iraq.  We will not succeed if we preemptively declare defeat and go home.

UPDATE THE THIRD:  By criticizing some commentators for missing the big picture, I do not mean to criticize them all.  But you probably knew that already.

UPDATE THE FOURTH:  Mmmgghff, mmgfagfagf, mmmsahfgih.  Hold on.  You know, they're right:  It is easier to speak with it out of my mouth.

Anyway, I'm only following The Editors' suggestion, who helpfully propose that I remove President Bush's Ying from my Yang.  Why?  Well, because of the "Pesky Consitution."  Or something like that.  (Frankly, I thought that the Constitution granted President Bush the right to put his Ying in my Yang, but maybe that's a discussion for another day.**)

The Editor's point seems to be that Democrats shouldn't be asked to get in line behind the mission in Iraq because Republicans control the Presidency and Congress.  I suppose that if you believe that the national good flip-flops depending on who's in power at the moment, that's a colorable argument.  I ain't that person but, hey, it takes all types.

Now, if you'll excuse me, I'm a bit busy at the moment .... Mmmgghff, mmgfagfagf, mmmsahfgih ......

UPDATE THE FIFTH:  Shorter HellBlazer:  Drop dead, von. 

UPDATE THE SIXTH: Liberal Japonicus finally posts a Hating on Von thread.  I have arrived.

UPDATE THE LAST:  I'm out of town tomorrow, although I'm taking comfort in the fact that I'll be home on Wednesday, and not en route to Omaha (long story).  Still, they'll be no more comments from me.  I will try to read every comment that's posted, however, when I get back.

*There's room to argue over footprints and whatnot. 

**Given the nature of our readership, someone will doubtless take that as anti-gay bigotry rather than as intended, so:  Everyone who's done pro bono work for the Lambda Legal Defense Fund, raise your hand.  [Hand raised.]  Support gay marriage?  [Hand raised.]  Now, are you a politically-correct schmuck?  [Hand down.] 

It's A Puzzlement

by hilzoy

In his radio address yesterday, the President also said this:

"The House of Representatives passed reauthorization of the Patriot Act. Yet a minority of senators filibustered to block the renewal of the Patriot Act when it came up for a vote yesterday. That decision is irresponsible, and it endangers the lives of our citizens. The senators who are filibustering must stop their delaying tactics, and the Senate must vote to reauthorize the Patriot Act. In the war on terror, we cannot afford to be without this law for a single moment."

Under normal circumstances, I would have understood this. But since the President apparently feels that he doesn't need to concern himself with what's legal, why can't we "afford to be without this law for a single moment"? How on earth could not having it "endanger the lives of our citizens"?

As far as I can tell, Bush and his crack legal team think that it wouldn't matter if the law said that he could order wiretaps only at midnight on Hallowe'en while dangling from a chandelier wearing a gold lamé evening gown and stiletto heels. He can do whatever he wants.

So why on earth does the fate of the PATRIOT Act matter to him?

Bush And The Separation Of Powers

by hilzoy

Yesterday, President Bush admitted that he authorized the surveillance program described in Friday's New York Times, which allows the government to conduct surveillance on American citizens without a warrant.

This is an extraordinary admission. But since some of our friends on the right are having difficulty understanding why, I thought I'd spell it out.

We're Back!

by hilzoy

Typepad came back, in theory, about an hour and a half ago, but they had not yet republished all the weblogs that were displaying backup copies. So I decided to take matters into my own hands (actually, I had to magically transform myself into Moe first, so they were probably his hands) and republish it. Hah! Now we're back!

If anyone is interested, I called for President Bush to be impeached, if the NYT story about his having ordered violations of the law, here. (Awfully convenient to be guestblogging elsewhere when Typepad goes down.) And the Graham Amendment has gotten worse; I describe how, and tell you to call or write your Congresspeople about it, here.

Now I have to go off and pretend to have a social life. Have fun...

Shameless Self-Promotion

by hilzoy

Nominations for the Koufax Awards are now open. So if you have a favorite group blog, or a favorite series (cough, Graham Amendment, cough), or a favorite commenter (cough, too many to mention, cough), don't let our winsome modesty stand in your way.