No Comment

Frost on the KSM Trial

On today’s Frost Over the World, I discuss with Sir David Frost and Glenn Sulmasy the Obama Administration’s plan to try Khalid Sheikh Mohammed and a group of related defendants in federal court in Manhattan. Watch it through the Internet video link here.

Grappling with Contractor Immunity

A little more than six years ago, Lt. Col. Dominic “Rocky” Baragona was on his way home. He had a long journey ahead, but he was looking forward to it. Colonel Baragona was serving in Iraq, and his tour was up. He had just spoken with his father by satellite phone, telling him that he’d be in Kuwait the next day to board his flight back, “unless something stupid happens.” Hours later, something stupid happened. A private truck carrying supplies on a U.S. military contract careened three lanes across a highway and struck the humvee in which Colonel Baragona was traveling. He died in a gruesome traffic accident. After an investigation, the military concluded that the incident involved serious negligence by the contractor but no criminal wrongdoing. Colonel Baragona’s family filed suit against the Kuwaiti contractor in federal court in Georgia. They secured a default judgment, and then the contractor came back to court to reopen the case.

The contractor got the judgment vacated on the grounds that the court had no in personam jurisdiction to handle the suit. Watching the lawyers for the contractor high-five one another was almost as painful an experience as the first word of his son’s death, Mr. Baragona said. “They bragged, ‘We never even had to notify our insurer.’” The contractor had been required by U.S. contracting rules to take out insurance to cover just such an event–not that it mattered, since no American court could require them to pay. Neither could any court in Iraq, it turns out, because of Order No. 17, issued by Paul Bremer as American proconsul, which had granted contractors immunity from process in Iraqi courts. The contractor, it turned out, had been completely immunized for its wrongful acts.

On Wednesday, the Senate Armed Services Committee’s contractor oversight subcommittee took a look at the Baragona case with the clear intention of closing this loophole. Dominic Baragona, Sr., the colonel’s father, gave moving testimony about his long struggle for justice. I also appeared and supported efforts to clarify the scope of jurisdiction granted U.S. courts over U.S. government contractors. Read an account of the hearing here. Read my testimony here.

I was impressed by how well the legislation’s sponsors, Claire McCaskill (D-Mo.) and Robert Bennett (R-Utah), had laid the groundwork for the hearing, as well as by the depth of their questioning. Senator Jon Tester (D-Mont.) also weighed in, probing the scope of immunity. Change is on the way.

Hang 'Em High!

Former Bush Administration Attorney General Michael B. Mukasey addressed the Federalist Society only hours after his successor, Eric Holder, announced his plan to bring a group of Guantánamo prisoners up on federal charges in Manhattan. He offered harsh words, claiming that the trials would prove a “circus.” Such attacks on the nation’s criminal justice system have become routine on the political right.

Take the Weekly Standard’s Bill Kristol, who responded to Homeland Security Secretary Janet Napolitano’s promise to bring the Fort Hood shooter to justice with these words:

I was very struck also by Janet Napolitano’s comment, I hadn’t read it before to see her say that, that the number one priority is to bring him to justice is such a knee-jerk comment and such a stupid comment. He’s going to be brought to justice. He is not going to be innocent of murder. There are a lot of eyewitnesses to that. They should just go ahead and convict him and put him to death.

This is the attitude of a lynch mob, being disseminated on Fox News. A few days later, the topic turned from Fort Hood to the trials of Guantánamo prisoners, and the language was no less hyperventilating. “Hang 'em high” tweeted Kristol acolyte Sarah Palin. Other prominent Republicans claimed that the trials offered the prospect of terrorists being acquitted and turned loose. The possibility of an acquittal can’t be excluded, of course, but, believe it or not, in our system acquittal does not necessarily lead to immediate release.

One thing that emerges very quickly from a survey of these comments is a dismissive attitude to the Constitution, the criminal justice system, and the need for a careful investigation of the facts and evidence. It’s clear that they’re really focused on politics, not justice. This attitude is not without parallels in the world and in human history. Kristol’s comments perfectly track those of another prominent political figure of the late twentieth century:

There is no reason why a criminal should be tried in the first place … Once his identity is established, he should be killed right away.

That was Ayatollah Khomeini, and the operational demonstration of this principle came in the firing squad execution of thousands of Iranians, especially during the nation’s war with Iraq.

Based on years of studying and dealing with the military’s criminal justice system, I have great confidence in the ability of the CID, working with other investigators, to get to the bottom of the facts surrounding Major Hasan, of military prosecutors to charge him, and of a court-martial to try him and render an appropriate verdict. This process works. It is fair, swift, and renders results that have withstood the test of time. The military justice system is not perfect, but it is far more likely to render justice and uphold our values as a nation than the non-process that Kristol and his friends endorse.

As for the war-on-terror prisoners, most of the commentators seem conveniently to miss the fact that there’s nothing new about trying terrorists in court. Indeed, the Bush Administration, just like the Obama Administration, pursued two tracks—most cases by far went to federal criminal court and a tiny handful went to military commissions. All that is happening now is some fairly minor adjustments in the gate deciding which cases go where, driven by a desire to secure prompt convictions for prisoners believed guilty of serious crimes.

A compelling study completed last week by NYU’s Center on Law and Security looks at counterterrorism prosecutions brought by the Bush and Obama Administrations. It notes 828 indictments by the Justice Department on terrorism charges. Of the resolved cases, 88.2% resulted in conviction. The strongest track record was achieved in the Southern District of New York, which, unsurprisingly, is just where Holder wants to send these cases. How does this record stack up to that of the military commissions? On every criterion–time from indictment to conviction, obtaining a conviction, length of sentence meted out—the prosecutors achieved better results in federal court than they did before military commissions. It’s no surprise that the crticisms of the Holder decision dwell on sweeping generalities and cold fear. A careful examination of the facts dispels all their claims.

Will the trials be a “circus”? No doubt there will be a circus on Fox News and in the pages of the Weekly Standard. But in the courtroom? An example is furnished by the case of the “blind sheikh” Omar Abdel Rahman, tried in a New York courtroom in 1995. The government charged that he planned to set off five bombs simultaneously, striking the United Nations, the Lincoln and Holland tunnels, the George Washington Bridge, and a federal building housing the FBI. They showed videotapes of defendants mixing bomb ingredients in a garage before their arrest in 1993. The trial was a major test of the ability of prosecutors to present a terrorism case and of federal judges to manage it. The defendants wanted to use the case to turn themselves into martyrs, but the case was handled with exemplary decorum and fairness, producing convictions in 1995. There was no “circus.” The judge who presided over the case made his reputation through it. His name is Michael Mukasey.

Wyatt—They flee from me

Hans Holbein the Younger, Portrait of Margaret Wyatt (the poet’s sister)(1540)

They flee from me that sometime did me seek

With naked foot, stalking in my chamber.

I have seen them gentle, tame, and meek,

That now are wild and do not remember

That sometime they put themself in danger

To take bread at my hand; and now they range,

Busily seeking with a continual change.

Thanked be fortune it hath been otherwise

Twenty times better; but once in special,

In thin array after a pleasant guise,

When her loose gown from her shoulders did fall,

And she me caught in her arms long and small;

Therewithall sweetly did me kiss

And softly said, “dear heart, how like you this?”

It was no dream: I lay broad waking.

But all is turned thorough my gentleness

Into a strange fashion of forsaking;

And I have leave to go of her goodness,

And she also, to use newfangleness.

But since that I so kindly am served

I would fain know what she hath deserved.

–Sir Thomas Wyatt, The Lover Showeth How He is Forsaken of Such as He Sometime Enjoyed (ca. 1540) in The Poetical Works of Sir Thomas Wyatt (J. Yeowell ed. 1904), p. 32.

Sir Thomas Wyatt was a diplomat and poet at the court of Henry VIII. He was twice thrown in the Tower of London, once on account of a rebellion launched by his namesake son who sought to put Princess Elizabeth (later Elizabeth I) on the throne, and on an earlier occasion probably because he was suspected of being a lover of Anne Boyeln. This very elegant poem speaks of an illicit affair (or perhaps several) and it has sometimes been supposed to be that with the king’s favorite.

Listen to a reading of the poem by Sir Thomas Wyatt (actually, the voice is Jim Clark’s):

Listen to Julian Bream play My Lord Willoughby’s Welcome Home (mid-16th cen., arrangement John Dowland).

Calvin and Madison on Men, Angels and Government

Eugène Delacroix, Jacob Wrestles with an Angel (1852)

If we were like angels, blameless and freely able to exercise perfect self-control, we would not need rules or regulations. Why, then, do we have so many laws and statutes? Because of man’s wickedness, for he is constantly overflowing with evil; this is why a remedy is required.

–John Calvin, Sermon on Galatians 3:19-20, “The Many Functions of God’s Law” (1558) in the volume Sermons on Galatians (Edinburgh 1997).

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

–James Madison, The Federalist No. 51 (1788).

It’s an article of faith among the religious right that the U.S. Constitution is a vessel of their religious values. On the other hand, the view of mainstream constitutional historians has been pretty consistent to the effect that many of the Founding Fathers were deists and the Constitution itself rested on a firm belief in the separation of church and state designed to create a matrix in which all religions would be equally welcome and the state firmly disentangled from all of them.

Easy as it is to pick apart many of the claims of figures on the religious right about the role of Christianity in the Constitution, it’s undeniable that theological considerations played a vital role in the crafting of the Constitution and in the process of building popular support. This passage from The Federalist Papers might just be the most often quoted because it so forcefully summarizes the key animating principle that drives the doctrines of separation of powers and checks and balances—the essential innovations of the American Constitution. But, as a friend on the faculty of the Army JAG School in Charlottesville recently flagged for me, these lines were not original to James Madison. They were lifted almost without change from a sermon written by John Calvin.

Can we be certain that Madison did not arrive upon this image on his own? Yes. Recall that Madison, though a Virginian, traveled north to Princeton, New Jersey to get his education—at an institution that rested firmly in the bosom of Presbyterianism and made the teaching of Calvinist doctrine an essential part of its curriculum. Guiding the process at this time was Dr. John Witherspoon, a stern son of the Scottish Kirk and simultaneously a Founding Father who served for New Jersey in the Continental Congress. Witherspoon had a favorite student with whom he collaborated closely throughout this period: James Madison.

Calvinist doctrine about the nature of man, about man’s inherent fallibility, had a strong influence on political philosophy as it was taught and discussed in Princeton. And there was a second very practical consideration: unlike its name-brand Protestant competitors Lutheranism and Anglicanism, Calvinism was not, by and large, a state religion. This led Calvinist philosophers, particularly those operating in the English-speaking world, to advance the notion of separation of church and state and ideas of religious liberty–as a matter of pragmatic self-interest. A number of historians, pointing to the overlap between pockets of Calvinism and democracy, convincingly argue that Calvinist thought propelled Enlightenment values including respect for the dignity of humankind and democracy. That argument may be made clearest in the United States, in fact.

But saying that Calvinist theory helped support the architecture of the Constitution is different from saying that it rests on Calvinism or indeed any theology. And indeed, that point may be made most effectively by looking at James Madison himself. Was he the “stern Calvinist” that Witherspoon sought to make of him? Biographers who want to make Madison into a model Presbyterian can scour his life and find some evidence of it, particularly from his younger days. He actually wrote and told friends in 1773 that he had a “transient inclination” to enter the ministry. He was a pewholder in a Presbyterian church. On the other hand, he married in the Anglican church and often attended Episcopal services as well. But as Madison turned to the world of politics and emerged as an important public figure, he seems to have drifted steadily away from organized religion. His religious views were so carefully guarded that his political adversaries attacked him, just as they attacked Jefferson, as an atheist. An Episcopal bishop recorded his sense, following a dinner time conversation with Madison, that he held a skeptical view of organized religion and was probably a deist, like Jefferson. In 1815, a visiting merchant from Boston has Madison expressing enthusiasm for the Unitarian ideas then sweeping New England. On other occasions he bragged about not having attended religious services for “many years.” But overall, Madison is so tight-lipped about his religious convictions that it is impossible to draw any ultimate conclusions about his faith or lack of faith. As to Constitutional politics, by contrast, that task is an easy one.

James Madison may be the most important of the Founding Fathers on questions of Constitutional theory. But he also plays a vital role in helping us understand how theology indeed influenced the United States Constitution—and also in allowing us to chart the limits of that influence.

Listen to the fourth movement of Felix Mendelssohn’s Symphony No. 5 in D Major, written to mark the 300th anniversary of the Augsburg Confession, and the birth of Protestantism, and based on Martin Luther’s hymn, “Ein’ feste Burg ist unser Gott,” here in a performance by the Berlin Philharmonic under Herbert von Karajan.

Public Event: Guantanamo and Preventive Detention

Tomorrow at Pace University, I’ll be giving the Blaine Sloan Lecture on International Law, in conjunction with the Pace International Law Review Symposium.

After Gitmo: Obama Grapples with Preventive Detention

Friday, November 13, 2009, 4:00 PM

Robert B. Fleming Moot Courtroom, Joseph & Bessie Gerber Glass Law Center,

Pace University, White Plains, New York

The event is open to the public, but registration is required.

Government to Pay $3 Million in Unlawful Surveillance Suit

Establishing a valuable precedent in a case involving unlawful surveillance and botched state secrets claims, the Justice Department has named its price. Wired reports:

The U.S. has agreed to pay $3 million to a former government worker who accused officials with the CIA and State Department of spying on him with a bugged coffee table. Rather than comply with a court order to provide lawyers in the case with what the U.S. government says is classified information, the government has agreed to settle to end the 15-year-old suit.

A close review of the case suggests that the Justice Department also decided to pay off the plaintiff in order to quash the series of damaging legal rulings issued by the influential judge overseeing the case that would have forced them to disclose the classified information. Those decisions may have a bearing on the “state secrets privilege” that the Bush and Obama administrations have used to try and thwart a high-profile lawsuit in California over illegal wiretapping conducted in the war on terror.

The settlement agreement can be examined here. There are two reasons that the government paid up in this case rather than shouting “state secrets!” First, it ran smack into a prominent conservative judge, Reagan appointee Royce Lamberth, who served as presiding judge of the FISA court from 1995 to 2002. Lamberth smelled something fishy with the government’s state secrecy and immunity claims from the outset, and his inquiries ultimately pressured the government to confess to some serious misrepresentations to the court. Second, the government faces a court order requiring it to turn over to the plaintiff or his attorney certain classified documents, which it considers a horrifying precedent.

The settlement comes in a suit brought by a DEA agent who, correctly, argued he was the victim of illegal U.S. surveillance while serving overseas in Burma. The government tried to brush the claims aside by certifying to the court that a key defendant was a covert CIA agent, and the case could not therefore proceed. Lamberth determined that the government’s certification was bogus because the CIA agent’s role had been disclosed in 2002. The government claims it was an innocent mistake, but not everyone’s buying that account.

The Justice Department’s major concern, however, goes to the judge’s order that classified information be shared with the plaintiff. A Justice lawyer called the decision “an unprecedented departure from the Executive’s exclusive authority to control access to classified information.” In fact, consistent with the shared powers notion of the Constitution, the executive has never exercised “exclusive” control over state secrets. Consider the papers surrounding the negotiation of the Treaty of Algiers from 1793, for instance. Congress asked for the papers, and the White House insisted that they contained state secrets. Congress effectively responded, “Fine, we won’t ratify the treaty until they are produced.” And produced they were. So much for “exclusive” control of state secrets. That pattern held pretty constant for the following two hundred years.

The more immediate concern that the Justice Department has is different: namely that the victims of unlawful surveillance will secure information that will bolster their lawsuit. It’s quite likely that information has been systematically classified with two major objectives in mind, neither of which are legitimate under current law. First, to cover up evidence of the crime, since warrantless surveillance was a felony under FISA. Second, to keep the documents out of the reach of litigants who can use it to make out their case against the government, potentially costing the government much embarrassment and a lot of money. So what’s the value to the Justice Department of getting Judge Lamberth to vacate his order? Now we can quantify it: $3 million. By entering into this settlement, the Holder Justice Department has also fixed the settlement target for dozens of other plaintiffs.

U.S. Attorney Sought Readership Information from Internet News Site

CBS News reports that on January 23—days after Barack Obama’s inauguration, but before his designated senior team had taken charge at the Justice Department—federal prosecutors in Indiana issued a subpoena to IndyMedia, a Philadelphia-based Internet news service.

In a case that raises questions about online journalism and privacy rights, the U.S. Department of Justice sent a formal request to an independent news site ordering it to provide details of all reader visits on a certain day.

The grand jury subpoena also required the Philadelphia-based Indymedia.us Web site “not to disclose the existence of this request” unless authorized by the Justice Department, a gag order that presents an unusual quandary for any news organization.

The subpoena demanded “all traffic to and from” the IndyMedia website on a specific date: June 25, 2008. Moreover, IndyMedia was threatened with obstruction of justice charges if it failed to comply promptly with the subpoena. IndyMedia responded by turning the matter over to attorneys from the Electronic Frontier Foundation, who acted on its behalf. They objected to the subpoena on a variety of technical grounds and also noted its probable illegality. EFF also noted that, acting consistently with EFF guidelines designed to thwart government snooping, IndyMedia did not keep the sorts of records the government was requesting. The U.S. attorney involved, Bush-era holdover Timothy Morrison, responded by withdrawing the subpoena.

What were the prosecutors looking for? That remains a mystery. Following the pattern established in earlier efforts to secure Internet data, they may have been looking for someone who read news at the site, posted a comment, or made a submission. The attempt to interfere with news collection efforts is more serious, but whenever law enforcement agencies ask about who is reading a publication, constitutional issues arise, and the very question is viewed as having a “chilling effect” on press freedom.

A number of rightwing web sites including Fox Nation and the Drudge Report, cited the CBS News piece in support of suggestions that “Attorney General Holder” and the “Obama White House” were going after the website. In fact, all of this transpired before the new administration had taken the reins at the Justice Department. But the question remains: on whose authority was the subpoena issued? The Justice Department has declined to comment.

Internal Justice Department rules, taking into account the strong public policy considerations supporting the free press (not to mention the First Amendment), impose a series of limitations on dealings with news media, including this:

no subpoena may be issued to any member of the news media… without the express authorization of the Attorney General.

(28 C.F.R. § 50.10). At the time of the subpoena, a Bush holdover, Mark Filip, was serving as acting attorney general. Did Filip approve the subpoena?

For a number of reasons, it seems highly unlikely that he would have. First, the subpoena is extremely broad, and Justice Department guidelines require it to be narrowly tailored. Second, the Justice Department is required to attempt to collect the information from other sources rather than the media outlet. Third, the Justice Department is supposed to attempt to secure the information through cooperation rather than coercion. In this case, the prosecutors involved actually threatened IndyMedia with criminal charges in the event of non-compliance. Finally, it’s almost impossible to imagine that Judge Filip would have approved the gag requirement. It obviously constitutes prior restraint in violation of the First Amendment—the Justice Department is essentially telling a news organization that it may not report the news (in this case, that it had issued a sweeping subpoena). The law is well settled on that point: the Justice Department can’t do it.

My bet would be that the prosecutors acting to issue this subpoena broke the internal Justice Department rules by not getting the attorney general’s approval—just as they clearly broke the law in issuing a gag order to a news organization. This may explain why the U.S. attorney quietly withdrew the subpoena as soon as he faced opposition.

The question that remains is simple: what happens when Justice Department prosecutors break the law, abusing the prosecutorial powers of the United States in the process? In general, the Justice Department’s reaction is to sweep the whole affair under the carpet. There’s no evidence here that this case has been treated any differently. If prosecutors are able to intimidate and cajole the press in violation of Justice Department orders with impunity, that suggests that the attorney general doesn’t treat his own guidelines very seriously.

Public Event: Grappling with Preventive Detention

On Wednesday, November 11, at 12:15, I will be giving a guest lecture at Wayne State University Law School in Detroit. The event is open to the public. Details here.

Coping with Bad Prosecutors

Last week the Supreme Court heard argument in a case that seeks to establish a rule of accountability for prosecutors who run amok. It arises from a gross injustice. In 1977, Terry Harrington and Curtis McGhee were arrested for the murder of John Schweer, a retired police officer in Council Bluffs, Iowa. They were convicted and spent 25 years in prison. Then it came out that they were innocent of the crime, and that the prosecutors had withheld exculpatory evidence and cajoled and possibly offered money to a witness to give bogus testimony. Harrington and McGhee are now seeking compensation from the prosecutors under a federal statute, 42 U.S.C. § 1983, but they’re running smack into the doctrine of prosecutorial immunity.

No organization has more at stake in this fight than the Department of Justice, and Deputy Solicitor General Neal Katyal was there in court to make their case. There is no “free-standing due process right not to be framed,” he insisted. Judge Stephen Breyer cut him off with obvious dismay. “There is no free-standing right? There is just a right not to convict a person with made-up evidence.” This framing of the issue of framing puts the emphasis where it belongs. The case will turn less on the rights of the two men who spent most of their lives in prison than on the rights of their prosecutors. The law as Katyal spins it gives prosecutors a right to game the legal system and commit crimes in the process without accountability to their victims. Can that possibly be the law? Dahlia Lithwick gives us an excellent summation of the oral argument in “The Framers on the Framers.”

Promoters of prosecutorial immunity offer predictable arguments that devalue justice. In their world, the Court needs to focus on the “realities” of an overworked criminal justice system, whose success is measured by the number of convictions it cranks out. In 2006, Katyal notes, there were 14.4 million arrests and 1.1 million felony convictions. If the courts have to entertain a suit every time prosecutors fabricate some evidence, how will we cope? Moreover, Katyal argues, “if prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence.” But Katyal forgets the flip side. If prosecutors have absolute immunity, what will stop them from using evidence that they may have fabricated or created through undue influence? Shouldn’t prosecutors hesitate before committing wrongful, possibly criminal acts?

Still, the Justice Department is on a roll. Over the last decade it has successfully advanced doctrines of official unaccountability across the board. The Second Circuit’s decision in the Arar case will stand as a monument to these efforts. Roberts, Alito, Scalia and Thomas have a great appetite for immunity for government actors. They remind us periodically that the Constitution makes no absolute guarantees of justice–unless, of course, we’re talking about corporations, in which case the Constitutional guarantees suddenly become extravagant. Sotomayor, Breyer, and Ginsburg all engaged in questioning suggesting they were taking quite a different approach. As usual, the question is likely to come down to Kennedy, a conservative Californian at the court’s center-right middle ground.

The argument for prosecutorial immunity also rests heavily on the ability of professional organs to regulate themselves. This means the Department of Justice above all others. But the last decade has seen an explosion of prosecutorial misconduct in cases around the country. Some arise from a prosecutor’s natural longing to secure a conviction and close a case, but the U.S. attorneys scandal also ripped the cover off a widespread practice over the last eight years of bringing and squelching prosecutions for purely partisan political purposes. Indeed, in what is now the single most prominent case, involving former Alabama Governor Don Siegelman, credible allegations from within the prosecution team itself establish that the same abuses occurred as in the case now before the Supreme Court: bogus evidence was used, and a witness was improperly cajoled to give bad testimony. Yet when this evidence came out, the Justice Department launched a shocking vendetta against the internal whistleblower and quickly swept the matter under the carpet.

The doctrine of prosecutorial immunity may be about to take a hard fall. That would be a curious development in one of the most conservative Supreme Courts of the last century. If so, it will reflect not only concern about the accountability of prosecutors, but also a growing sense that the Justice Department is not doing its job in reining in those who misbehave.

Freiligrath—O lieb, so lang du lieben kannst

Joseph-Désiré Court, Woman Lying on a Couch (1829)

O lieb, so lang du lieben kannst!

O lieb, so lang du lieben magst!

Die Stunde kommt, die Stunde kommt,

Wo du an Gräbern stehst und klagst!

Und sorge, daß dein Herze glüht

Und Liebe hegt und Liebe trägt,

So lang ihm noch ein ander Herz

In Liebe warm entgegenschlägt!

Und wer dir seine Brust erschließt,

O tu ihm, was du kannst, zulieb!

Und mach ihm jede Stunde froh,

Und mach ihm keine Stunde trüb!

Und hüte deine Zunge wohl,

Bald ist ein böses Wort gesagt!

O Gott, es war nicht bös gemeint -

Der Andre aber geht und klagt.

O lieb, so lang du lieben kannst!

O lieb, so lang du lieben magst!

Die Stunde kommt, die Stunde kommt,

Wo du an Gräbern stehst und klagst!

Dann kniest du nieder an der Gruft,

Und birgst die Augen, trüb und naß

—sie sehn den Andern nimmermehr -

In’s lange, feuchte Kirchhofsgras.

Und sprichst: O schau auf mich herab

Der hier an deinem Grabe weint!

Vergib, daß ich gekränkt dich hab!

O Gott, es war nicht bös gemeint!

Er aber sieht und hört dich nicht,

Kommt nicht, daß du ihn froh umfängst;

Der Mund, der oft dich küßte, spricht

Nie wieder: ich vergab dir längst!

Er that’s, vergab dir lange schon,

Doch manche heiße Träne fiel

Um dich und um dein herbes Wort -

Doch still—er ruht, er ist am Ziel!

O lieb, so lang du lieben kannst!

O lieb, so lang du lieben magst!

Die Stunde kommt, die Stunde kommt,

wo du an Gräbern stehst und klagst!

O love, as long as love you can,

O love, as long as love you may,

The time will come, the time will come

When you will stand at the grave and mourn!

Be sure that your heart burns,

And holds and keeps love

As long as another heart beats warmly

With its love for you

And if someone bears his soul to you

Love him back as best you can

Give his every hour joy,

Let him pass none in sorrow!

And guard your words with care,

Lest harm flow from your lips!

Dear God, I meant no harm,

But the loved one recoils and mourns.

O love, love as long as you can!

O love, love as long as you may!

The time will come, the time will come,

When you will stand at the grave and mourn.

You will kneel alongside the grave

And your eyes will be sorrowful and moist,

—Never will you see the beloved again -

Only the churchyard’s tall, wet grass.

You will say: Look at me from below,

I who mourn here alongside your grave!

Forgive my slights!

Dear God, I meant no harm!

Yet the beloved does not see or hear you,

He lies beyond your comfort;

The lips you kissed so often speak

Not again: I forgave you long ago!

Indeed, he did forgive you,

But tears he would freely shed,

Over you and on your unthinking word -

Quiet now!—he rests, he has passed.

O love, love as long as you can!

O love, love as long as you may!

The time will come, the time will come,

When you will stand at the grave and mourn.

–Ferdinand Freiligrath, O lieb, so lang du lieben kannst (1845)(S.H. transl.)

Ferdinand Freiligrath was a tireless champion of freedom and civil liberties and a poet who sang the song of democracy in the face of repression. He was repeatedly forced into exile due to his active political engagement for democracy. In his celebrated 1977 address to the German parliament, historian Fritz Stern cited Freiligrath as a model for a little recalled but vital part of German history–the ever recurring popular rising for freedom and against the authoritarianism that held the nation in its lock for so many centuries. But this poem, one of the best known of his works, reflects a sort of sentimentalism typical for the poetry of the age. To modern ears it seems a bit trite and even saccharine. But it has a haunting quality. Franz Liszt composed what might be his best known Lied to this poem.

Listen to a reading of the Freiligrath poem by Marlene Dietrich and Maximilian Schell, from the 1984 documentary “Marlene.” She comments at the end that it is, perhaps, a bit corny and sentimental, but she clearly loves it.

Listen to a performance of Franz Liszt’s setting of the poem in a Lied from 1847, sung by Lia Origoni:

Büchner’s Revolutionary Spirit

Jacques-Louis David, La mort du jeune Barra (1794)

Die Revolution muß aufhören, und die Republik muß anfangen.—In unsern Staatsgrundsätzen muß das Recht an die Stelle der Pflicht, das Wohlbefinden an die der Tugend und die Notwehr an die der Strafe treten. Jeder muß sich geltend machen und seine Natur durchsetzen können. Er mag nun vernünftig oder unvernünftig, gebildet oder ungebildet, gut oder böse sein, das geht den Staat nichts an. Wir alle sind Narren, es hat keiner das Recht, einem andern seine eigentümliche Narrheit aufzudrängen.—Jeder muß in seiner Art genießen können, jedoch so, daß keiner auf Unkosten eines andern genießen oder ihn in seinem eigentümlichen Genuß stören darf.

The revolution must cease and the republic must begin.—In the principles of our state rights must take the place of duties, happiness that of virtue and self-defense must take the place of punishment. He might be reasonable or unreasonable, educated or uneducated, good or evil, that is a matter of indifference to the state. We are all fools, none of us has the right to force his particular foolishness upon the others.—Each of us must in his own way be able to live, however, in a way in which no one lives at the expense of another or is able to deprive him of his own particular way of life.

–Georg Büchner, Dantons Tod, act i, sc i (1835)(Hérault)(S.H. transl.)

Georg Büchner, a young doctor with revolutionary sentiments who made a brilliant appearance on the literary scene before his premature death, is often viewed as a sort of proto-Marxist. His writings are filled with premonitions of class warfare. On occasion his characters spout atheist sentiments and denounce religion as a tool for class repression. Much of his work seems to build on ideas of historical materialism. There’s no denying that these traces are present in his writing. However, there is also evidence of a rather more conservative Büchner. In fact not a few of the revolutionaries of the first half of the nineteenth century in Germany emerged as something more akin to conservative nationalists as the century wore towards its conclusion.

But this passage, one of the more intriguing speeches in his fiery political play, The Death of Danton, offers some real insights. The words are placed in the mouth of Hérault-Séchelles, who would at first glance appear to be a fairly minor figure both in French politics of the era and in Büchner’s play. But studied a bit more patiently, Hérault really is a key figure who plays a particularly noble role in a tragic play–a role which curiously transcends politics. Here in the early pages of the play, Hérault is positioned as the philosophical counterpoint to Robespierre and his philosophy of terror, and the lines he utters serve that purpose more strikingly than any of Danton’s. But when we stop and ponder his words, they don’t sound particularly French. Hérault’s republic looks distinctly like the one being born across the Atlantic in America. It focuses on individual liberty and it is hostile to the idea of an expansive state. “We are all fools,” he says, but “none of us has the right to force his particular foolishness upon the others.”

As he is composing this play, Büchner is also comparing the French Revolution with the American in terms distinctly to the advantage of the later. “In a just republic,” he says, “things must proceed as they have in America, and each must have a right to one vote without regard to his particular wealth.” But he is equally dismissive of idealists who avoid recognition of the eternal struggle for property. Büchner hopes to motivate the masses to rise in revolt; he despairs of the prospects for a revolution anchored only in the modest numbers of liberals and intellectuals. He argues that the promise of a new state must encompass the right of private property and freedom from the oppressive taxation of the petty German states–and when he alludes to capitalists, it is to a class which should naturally want to support his revolution. Büchner is a revolutionary, surely. But a proto-Marxist? That’s far from likely.

Every revolution needs its heros. That was Maximilien Robespierre’s thought when he rose to praise a young soldier named Joseph Barra in a speech in the Assembly in 1793. Barra, engaged in an action against counterrevolutionaries in the Vendée, had been encircled and told to cry “vive le roi!” to save himself, but instead answered with “vive la république!” and was killed. Modern historians sharply discount this as myth making. But Robespierre knew how to go about myth making in a grand way. He commissioned David to paint a memorial to this young martyr to the republic.

Listen to Ludwig van Beethoven’s salute to the French Revolution, the Symphony No. 3 in E Flat Major, “Eroica,” here in a performance by the Berlin Philharmonic under the leadership of Herbert von Karajan.

The CIA’s Drone War

I discuss the CIA’s use of drones, the legal and policy issues, and the points of friction between the CIA and the Defense Department in an interview today at GQ.

More on the Verdict in Milan

I discuss an Italian court’s recent conviction of 23 American officials on kidnapping and assault charges stemming from a 2003 extraordinary rendition operation with DemocracyNow’s Amy Goodman and the Italian prosecutor, Armando Spataro, below:

In responding to Amy Goodman’s question about Interpol, Spataro gives a long answer that will be confusing to those who don’t understand the rather complex law in this area. He says that no arrest request (technically called a “red notice”) has been issued within Interpol, but that he is able to issue at will a European Arrest Warrant. This is because the Italian government, which sought to block the prosecution, has not supported arrest by forwarding the appropriate paperwork to Interpol. Whether the Italian government will hold to this position after a conviction remains to be seen. If they do, they will appear to be undermining the administration of the law. For the 27 nations in the European arrest system, however, Spataro can personally direct the arrest, and no government cooperation is necessary. Outside of the EU, it’s a matter of hit and miss whether local officials would cooperate on a request from the Italian prosecutors without going through the Interpol formalities. Certainly quite a few would do so.

It’s interesting to note the reaction in America to the verdicts in Italy. Telling is the editorial in the Los Angeles Times today: Italy got this right. No fake outrage or indignation, just simple recognition that Italy was applying the law, as we expect of a sister democracy.

A few further observations, largely based on my discussions yesterday with people who are following this matter in Washington:

First, this case helps us understand why the CIA is so vehemently opposed to probes of its operations. In this case almost two dozen covert intelligence operatives have had their cover blown and are now fugitives from justice. Sophisticated law enforcement techniques, many pioneered by the United States, are now being employed to track their movements. While a number of commentators claim this has no serious consequences, no one I have spoken with in the intelligence community feels that. The future utility of these agents is seriously compromised, and they face arrest every time they leave the country.

Second, Spataro makes clear that he took this case as far as the evidence at hand permitted. If he had evidence that higher-level officials at the CIA or NSC or other government agencies were involved, he would likely bring charges against them. I learned in earlier probes that Italian criminal investigators, collaborating with other European partners, have been actively seeking this information. They believe that those who oversaw the extraordinary renditions program should be prosecuted. In fact, Spataro asked for a 13-year sentence for Jeff Castelli, the head of the Rome station, because of his role in the Milan kidnapping. It’s reasonable to infer that he would seek an equally harsh sentence against other kingpins in the conspiracy. The New York Times notes that Stephen R. Kappes, who is said to have played a planning role, is now the number two in the CIA.

Third, this case is engendering a lot of discussion among scholars of the law of diplomacy about the selective decision taken by the United States to invoke diplomatic immunity. Some view diplomatic immunity as a simple process: if the paperwork is done and the diplomat is credentialed and recognized by the foreign ministry of the host country, he has immunity. Others say that if the person really isn’t a diplomat, and this is pure cover for a spy, the assertion is more doubtful, especially when the operative becomes enmeshed in a serious crime. In this case, the State Department pushed diplomatic immunity only for a handful of the defendants, including one (Jeff Castelli) who most obviously was not a diplomat. They scored some success. But the Italian prosecutors also think these claims are vulnerable. Prosecutor Spataro says he will appeal this decision. He is convinced that Castelli’s claim of diplomatic status is so obviously bogus, and his role in the crime is so clear, that the claim should be cast aside. How this plays out may significantly affect the practice of sending intelligence agents overseas under diplomatic cover. The posture taken by the United States suggests a sense of vulnerability about the claims made.

Finally, this case is a monument to the power and lasting influence of American advocacy. In 1946-48, the United States advanced for the first time the view that seizing individuals, holding them for prolonged period without recourse to law, and subjecting them to torture or humiliating treatment was a particularly serious crime–a crime against humanity. United States prosecutors, many of them from the Justice Department, brought charges against government officials who had done this, and secured convictions. Europeans were at first skeptical of these American views, but over time they came to embrace and support them. Today, the view is firmly held around the world that “disappearings” are a crime against humanity and thus not subject to statutes of limitation or capable of being ignored. The CIA just ran into this wall, and this should be a lesson for the Obama Administration: it shows what can happen when the United States fails to abide by the values it espouses.

Judgment in Milan

An Italian court hearing criminal charges against 26 American officials and a smaller group of Italians arising out of a CIA extraordinary rendition has ruled today. The case relates to the CIA’s snatching of a Muslim cleric known as Abu Omar off the streets of Milan in 2003. He was whisked off to Egypt, where he was tortured before being released. Italian prosecutors noted that the American action botched a prosecution they had prepared against Abu Omar for participation in a terrorist conspiracy. Here’s a summary of the court’s decision from Reuters:

The heaviest sentence — eight years in prison — was handed down to the former head of the CIA’s Milan station, Robert Seldon Lady, while 21 other former agents got five years each. U.S. Air Force Lieutenant Colonel Joseph Romano was also sentenced to five years, despite a request from the Pentagon that the case should be tried by U.S. courts.

[Judge Oscar] Magi dropped the case against three Americans, including a former CIA Rome station chief, because of diplomatic immunity. Charges were also dropped against five Italians, including the former head of the Sismi military intelligence service, Nicolo Pollari, because evidence against them violated state secrecy rules. However, the judge sentenced two more junior Sismi agents to three years in prison as accomplices, indicating Italian authorities were aware of the abduction.

A more comprehensive discussion of the decision can be read in La Repubblica.

The case was tried in absentia after the Americans fled and the United States refused to extradite them. The judge’s written decision is now due within forty-five days. The prosecutors have announced that they intend to appeal the decisions acquitting senior Italian officials, and possibly other aspects of the case. The American defendants, who were represented by counsel during the trial, are also likely to lodge appeals, and to contest the fact that the case proceeded in absentia.

The decision came despite strenuous efforts by the American and Italian governments to shut the case down. The Italian government argued that prosecutors were using official secrets to make their case and appealed the matter to the Constitutional Court, which upheld the objection. The Milan court concluded that, even striking the official secrets from the trial record, sufficient evidence existed to proceed. In its final verdict, the court also suggested that a number of defendants were guilty but, once official secrets were extracted, the evidence was insufficient to convict. The court also found that three individuals had diplomatic immunity and thus would also escape punishment desite copious evidence establishing their guilt. Among them was the CIA’s former Rome station chief, Jeff Castelli, whom prosecutors saw as the plot’s ringleader.

The convicted Americans face arrest only if they travel outside the United States, since U.S. authorities have made it clear that they will not cooperate with European authorities pursuing CIA kidnapping cases. However, Italian prosecutors can now issue a European Arrest Warrant for the seizure and removal to Italy of any of the 23 Americans, should they set foot in the European Union.

Most observers, however, view the sentence as largely symbolic. When legal proceedings are concluded, it is widely expected that the United States and Italy will work out a resolution of the matter involving an act of clemency. The case serves principally to establish that the CIA extraordinary renditions program, especially when it involves torture or torture-by-proxy, is viewed as a criminal act, subjecting all who support it to potential prosecution.

The Milan decision offers a useful contrast with the decision of an American appeals court in New York dealing with another rendition case on Monday. In both cases, the courts considered claims of immunity, state secrecy, and a torture victim’s claim to compensation for his sufferings. In both cases, the United States applied enormous political pressure to shut down the case. Yet the outcomes could not have been more different. In the New York case, the Court of Appeals bowed to government pressure to refuse to hear the torture victim’s appeal. The decision, rendered by a group of largely Republican judges, is filled with breezy language openly acknowledging that the case turned on an extraordinary rendition, and suggesting that this was simply a policy choice for the government. The Italian court proved zealously independent of government influence from the beginning of the case down to judgment. It viewed extraordinary rendition linked to torture as a particularly grave crime, taking careful note of the historical precedents that supported that perspective. While the court accepted that state secrecy concerns restricted the court’s consideration of certain evidence, it nevertheless proceeded and rested its conclusions on evidence that was not protected. Similarly, the Italian court gave claims of immunity narrow applicability, so that only a handful of defendants could rely upon them. The court took the view that these highly technical defenses would give government actors some comfort, but it rejected the idea that they could escape accountability for a serious crime altogether.

The most telling difference focuses on the rights of the torture victim. The New York court concluded that the victim’s claims were overwhelmed by the government’s interest in protecting political actors against embarrassment. The Italian court insisted not only on the punishment of the perpetrators but also on the compensation of the torture victim. The Milan court sentenced the defendants to pay compensation to Abu Omar and his wife of €1.5 million ($2.3 million).

The American State Department stated that it was “disappointed” by the decision.

A President Stands Trial for Torture and Disappearings

From the apex of the national security apparatus, he arranged for the torture of alleged terrorists and their sympathizers, and for the “disappearance” of hundreds and perhaps thousands of others. He then assumed office as president and began a rearguard struggle to defend state actors from liability for these acts. His lawyers spun doctrines of immunity, and believed that legal protections like statutes of limitations and wide grants of amnesty would block any efforts at accountability. For good measure, they sorted carefully through state records, destroying documents that might inculpate senior government figures.

But now Reynaldo Bignone, Argentina’s president from 1982-83, faces his worst nightmare: he’s going on trial for charges that could result in him spending the rest of his life in prison. The New York Times reports:

General Bignone is accused of holding ultimate responsibility for myriad cases of torture, illegal break-ins and deprivations of human rights from 1976 to 1978, before he was appointed president by the military junta in the waning years of the dictatorship.

As president from 1982 to 1983, General Bignone protected the military as Argentina returned to democracy; he granted amnesty to human rights violators and ordered the destruction of documents related to torture and the disappearances of political opponents before he agreed to transfer power to a democratically elected president, Raúl Alfonsín.

The developments in Argentina point to several international legal trends that should be of acute interest to members of the Bush team who approved torture and ran one of the largest “disappearings” programs since President Bignone’s. First, there is no statute of limitations for torture and disappearings—they can be prosecuted twenty or thirty years later. Second, the doctrine of immunity may be recognized by judges appointed by torture conspirators, but as the gravity of their crimes becomes known and new judges come to the bench, it tends to disappear.

Karl Rove has argued that accountability makes him think of “Latin American dictators in mirrored sunglasses.” The point is valid for precisely the opposite reason that Rove thinks it is. Those dictators in mirrored sunglasses sharply oppose accountability in any form. But as the tradition of the rule of law sets in, advocates of democracy invariably find that the stability of their countries depends on holding those who tortured and kidnapped accountable for their crimes.

Interpreting the Elections

Today, political bloviators of all shapes and sizes will rush to explain the dramatic, nation-rattling and long-term consequences of elections in which a tiny fraction of the voters turned out, mostly driven by local issues. But the elections team at the Daily Show beats them to it, giving the definitive interpretation (before the votes were tallied, of course):

Second Circuit Affirms Dismissal of Arar

“When the history of this distinguished court is written, today’s majority decision will be viewed with dismay,” writes Guido Calabresi, the former Yale Law dean and a man widely viewed as the most illustrious living member of the Second Circuit Court of Appeals. He is lodging his dissent in a 7-4 decision of the en banc court concluding that a Canadian software engineer named Maher Arar has no right to sue government officials. What has Calabresi so worked up?

This is “hardly an ordinary immigration case,” as the majority concedes. Arar was apprehended in transit from a Mediterranean vacation to his home in Ottawa at the JFK airport. U.S. agents acting on a tip from the Canadian mounties–that turned out to be completely incorrect–seized Arar and held him for several days. Understandably, they were not going to let Arar into the country. This was fine with Arar, who just wanted to go home to Canada. But because Arar was born in Syria, Deputy Attorney General Larry Thompson, acting on the advice of two political appointees serving in the Attorney General’s office, signed an order to send him back to Syria. That decision was taken after an immigration review panel had concluded, with what turned out to be perfect accuracy, that Arar would be tortured if sent there. (Perhaps not coincidentally, Thompson resigned and departed shortly after learning the full story behind the Arar case.) Arar was turned over to the Syrians with a list of questions, and he was indeed brutally tortured for a year—to no point, of course, since Arar had no connections with any terrorist organizations. The Canadian Government, recognizing that its wrongdoing led indirectly to Arar’s mistreatment, conducted a comprehensive investigation, fully acknowledged its mistakes in a voluminous report, issued a formal letter of apology, and awarded Arar $11.5 million (Canadian) in compensation and reimbursement of legal costs. And the United States?

The United States tenaciously refused to acknowledge ever having made any mistakes—even after its own sources did so. It stonewalled Congressional probes and issued a travel ban to stop Arar from testifying before Congress. The Bush Justice Department made aggressive representations to the courts in response to Arar’s suit that strained credulity at almost every step. As in other cases, their trump card was simple: when caught with pants down, shout “state secrets!”

When the two inspectors general, Richard L. Skinner and Clark Kent Ervin, appeared before the House Judiciary Committee to testify on the matter, I was also invited as an independent expert. At one point, a committee member asked, “Is there sufficient basis to open a criminal investigation based on the conduct of the Justice Department in handling this case?” I stated that the evidence set out in the internal investigation showed that, after the immigration board concluded that Arar would likely be tortured in Syria, senior figures in the Justice Department had directed that he be sent there. This presents all the elements of a prima facie conspiracy to torture under the criminal code. Both inspectors general concurred that a criminal investigation was now warranted. Their own report produced ample evidence of gross departures from established procedures, as well as evidence that the entire case was being politically micromanaged by political figures in the attorney general’s office and in the White House, who repeatedly overrode the decisions of the professional staff. Attorney General Mukasey, however, subsequently declined to direct the investigation. It’s noteworthy that the investigation would have focused on the attorney general’s own office, which raises fair questions about why the attorney general would be the person making this decision.

Typical of the care that went into the majority opinion is this passage: “Consider: should the officers here have let Arar go on his way and board his flight to Montreal? Canada was evidently unwilling to receive him.” Had Judge Jacobs, who wrote for the majority, bothered himself a bit with the record, he would have discovered that Canada confirmed it was willing to accept him home. Moreover, this is hardly a trivial error. The gravity of the government misconduct in this case comes from the decision to send Arar to Syria when he could have been returned to Canada, sent to Switzerland, or back to Tunisia, where he had been vacationing. He was sent to Syria for a reason, and that was torture.

In the Arar case, state secrecy claims are preposterous because the diplomatic and intelligence relationship that would supposedly have been compromised was that with Canada, and the Canadians had already come clean about what had happened and confessed to their own part in it, publishing a report as thick as two Manhattan telephone books. In this process, the Canadians behaved just like a modern democracy should. So it is not damage to relations with our neighbor to the North that is a concern. Rather, it is embarrassment of political figures in Washington.

Calabresi generously accepts the suggestion that the Second Circuit acted out of concern for national security. Still, he delivers an appropriate lashing. The majority, Calabresi charges, “engaged in extraordinary judicial activism.” Its activism was aimed at extricating political actors from a precarious predicament and keeping the door firmly shut on what may well be the darkest chapter in the entire history of the Justice Department. In so doing, the court’s majority delivered an example of timidity in the face of government misconduct the likes of which have not been seen since the darkest days of the Cold War. When the history of the Second Circuit is written, the Arar decision will have a prominent place. It offers all the historical foresight of Dred Scott, in which the Court rallied to the cause of slavery, and all the commitment to constitutional principle of the Slaughter-House Cases, in which the Fourteenth Amendment was eviscerated. The Court that once affirmed that those who torture are the “enemies of all mankind” now tells us that U.S. government officials can torture without worry, because the security of our state might some day depend upon it.

Our Dwindling Email Privacy

What sort of privacy do you expect when you send an email? As Americans increasingly rely on the Internet for communication, Justice Department lawyers increasingly argue that Americans have no right to privacy there—notwithstanding repeated congressional efforts to bolster these rights. A recent case out of Oregon shows how the privacy expectation associated with emails and other Internet communications is being frittered away.

The government sought to subpoena the emails of a suspect in a criminal investigation. It issued a subpoena to Google, but it failed to give notice to the subscriber as the federal rules and statute would appear to require. The purpose of notice is fairly straightforward: it gives the subject the opportunity to contest the subpoena and puts him on notice of the government’s investigation. Implementing the protections of the Fourth Amendment, isn’t the subscriber entitled to notice? Not in the view of Judge Michael Mosman:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world. When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all. The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties… the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails.

Mosman doesn’t say there is no Fourth Amendment right; he simply concludes that it doesn’t amount to much, because of the intermediate role of the ISPs. Although he couches his opinion narrowly, the result is effectively to eviscerate the Fourth Amendment. Mosman, a Mormon, is a Rove-era U.S. attorney in Oregon appointed to the bench by George W. Bush in 2003.

Did Cheney Lie to the Plame Prosecutors?

In the prosecution that led to the conviction of former Vice President Cheney’s chief of staff, Scooter Libby, Patrick Fitzgerald famously spoke of a “cloud over the vice president.” His remarks suggested that, while no charges had been pressed against Cheney, the vice president was considered an unindicted co-conspirator in a scheme to out covert CIA agent Valerie Plame. When, after a long struggle to protect Cheney from “embarrassment,” the Justice Department complied with a court order to disclose the FBI agents’ notes of the interview that Fitzgerald conducted with Cheney in 2004, the reason for these comments became clear. The cloud over Dick Cheney seems to be more of a fog bank engulfing him, however, and the fog is of Cheney’s making.

Cheney has been famous for decades for his steel-trap mind and near perfect recall. Yet in an interview that lasted only a couple of hours, Cheney competed with Alberto Gonzales for the selective amnesia prize. His memory failed him more than seventy times, on virtually every effort to probe anything of substance that had occurred within the prior year. Contemporaneous documents show that Cheney had been obsessing over these matters. Yet even when he was shown documents bearing his own handwritten comments, he had no recollection. His amnesia dovetailed perfectly with Scooter Libby’s forgetfulness on key points. Libby couldn’t recall having discussed Plame with Cheney, and Cheney couldn’t recall having discussed Plame with Libby. Their testimony seems well orchestrated, and the text of those “can’t recalls” is well designed to make a perjury prosecution difficult if the prosecutors should turn up solid proof to the contrary.

Nick Baumann has cobbled together a list of twenty-two major points on which Cheney’s memory suddenly went all fuzzy. A review shows just how programmatic that memory failure was. It covered anything that would have put the investigators on to Cheney’s role in the Plame outing.

The prosecution of Scooter Libby rested on his equally convenient lapses of memory. In the end, a Washington jury concluded that Libby had lied and convicted him. Would this same jury have believed Cheney’s claims of failed memory? They strike me as even less credible than Libby’s. Moreover, the interview notes will fuel suspicion that Libby took the fall for his boss.

There’s another significant nugget in the interview notes, flagged by Marcy Wheeler. Reports had previously circulated to the effect that Bush Administration figures had cooperated with the prosecution by executing release agreements–allowing journalists with whom they had spoken to talk freely with investigators about their discussions. On Friday, we learned that Dick Cheney refused to execute such releases. It’s been widely speculated that Cheney spoke with a number of journalists on the Plame-Wilson matter–probably Bob Novack and Judith Miller, possibly others. In holding his journalist friends to confidentiality, what was he worried about? This is particularly curious in view of the blistering attacks Cheney unleashed on Congress in 2002-06, in which he questioned their tendency to leak information to the press. How many congressmen could compete on that score with Dick Cheney?

Wheeler also points out that Cheney refused to answer Fitzgerald’s questions about his spontaneous declassification of data for purposes of trashing Joe Wilson, Plame’s husband. But just a short while later, Cheney’s attorney leaked all the details of this process to Newsweek’s Mike Isikoff. This perfectly demonstrates how Cheney views executive privilege–it was invoked to a criminal investigation in which he was in danger of being prosecuted, but it didn’t stand in the way of a good leak to the press when he felt it would help him with the Washington punditry. Secrecy in the world of Cheney is wielded for tactical political and personal purposes, not in the lofty national interest.

Cheney and his daughter have been sweating bullets about the prospect of a criminal investigation. These notes make clear that they have plenty to be worried about.

Holder Claims State Secrecy… Again

In the 2008 presidential campaign, both Barack Obama and Joe Biden criticized the Bush Administration’s historically unprecedented invocation of state security concerns to block lawsuits challenging the legality of its surveillance. They promised new procedures that would “tighten up” the “problem” of overreaching claims of secrecy. In time, the Justice Department instituted a new review policy, setting internal standards, requiring a high-level internal review, and promising to present a packet for in camera review by the judge involved who would make the final call. That sounded good, and the suggestion that the government would abide by a judge’s review was more accommodating than the posture Bush-era attorneys general assumed—insisting that judges shouldn’t be in this business at all, since only officers of the executive branch had a good feel for such matters.

In practice, the Obama Administration’s invocation of secrecy is at least as aggressive as its predecessor’s, and sometimes seems even more aggressive. Late on Friday, Attorney General Holder asked a district court judge in California to throw out a suit challenging government surveillance operations. It appears to be the first full-fledged case based on the new policy. Here’s Jake Tepper’s report for ABC News:

The Obama administration invoked the controversial “state secrets” privilege again on Friday, arguing that if U.S. District Judge Vaughn Walker were to permit a legal case against the government to proceed, he would be putting national security at risk. Attorney General Eric Holder said in a statement about the case, Shubert et. al v. Obama, that “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

The case is a class action suit brought by four Brooklynites alleging that the Bush Administration engaged in wholesale dragnet surveillance of ordinary Americans in which they were unjustly caught because they regularly made phone calls and sent emails to individuals outside the U.S., specifically in the United Kingdom, France, Italy, Egypt, the Netherlands, and Norway. Obama administration officials argued that even addressing or attempting to refute the plaintiffs’ claim would require the administration “to disclose intelligence sources and methods, or the lack thereof.”

The government’s papers can be examined here. The government tells us that if it were to answer the complaint, it would have to disclose information that would do “exceptionally grave harm to national security.” In reasoning so absurd that it would force a smile from Kafka, the government claims that disclosing whether the plaintiffs have standing to sue (because they were affected by an intelligence dragnet) would require disclosing the methods used in the dragnet system. In other words, the government says the victims of its unlawful snooping are not entitled to know that they are victims of unlawful snooping. It also says it cannot be forced to acknowledge whether telecommunications service providers have collaborated in this process—although the Justice Department has already openly acknowledged that they do in papers filed just a few weeks ago. Essentially, the Justice Department’s brief amounts to a massive “trust us.”

But why should we? In view of the well-documented track record of misrepresentations and downright sophistic legal arguments the Justice Department has made over the past seven years in its efforts to avoid judicial review of the NSA’s snooping programs, the “trust us” appeal is wearing very thin.

The Schubert suit is about accountability, including the accountability of figures at the Justice Department who authorized the illegal sorties into the private lives of millions of Americans. It focuses on a program that the NSA ran with White House authorization which was so absurdly illegal that even some senior Bush Justice Department figures resigned rather than authorize it. Before the first Bush-era FISA amendments, the program was almost certainly felonious. Holder and his senior lieutenants share their predecessors’ strong aversion to anything that would embarrass the department and would expose its past misconduct. But the consequence of this attitude is a Justice Department, which, rather than enforce the criminal law, has set itself up as a criminal defense law firm representing government clients.

The use of state secrecy notions to mask criminal conduct is a serious matter that has badly corrupted the Justice Department. And the Schubert litigation is hardly the only instance. The last major case discussed in this column, the Binyam Mohamed litigation in England’s High Court, followed exactly the same concept. In that case, the subject had been brutally tortured while in the hands of the CIA. Classified information furnished by the CIA to British intelligence was received by the court in order to validate Binyam Mohamed’s claims. The court, noting that a serious crime had obviously been committed, pushed for and received a commitment from prosecutors to investigate the matter. It also ultimately decided that the materials would have to be made public notwithstanding the state secrecy claims advanced by the government. In the Binyam Mohamed case, the United States advanced exactly the same arguments as in the Schubert case—and it was equally clear that the real motivation for the government was to cover up evidence of criminal conduct.

The tendency of these cases is clear: towards ever more sweeping invocations of state secrecy, designed time and again to disguise the government’s warrantless and unlawful invasion of the privacy of its citizens or to cover up evidence of serious crimes such as torture, assault, and kidnapping. Any hopes that the Obama Administration would at least engage in some modest retrenchment have now been dashed. That leaves the issue in the hands of the courts. Up to this point, they have largely bought in to the government’s “trust us” mantra–but what the situation requires is serious inquiry and a healthy dose of skepticism.