This is the one thing during the election season that made me swear I would vote for Ron Paul... and I'm kind of pissed that I didn't, now.


http://blog.wired.com/27bstroke6/2009/02...nis-1.html

The Obama administration vigorously defended congressional legislation late Wednesday that immunizes U.S. telecommunication companies from lawsuits about their participation in the Bush administration's domestic spy program.

It was the first time the Obama administration weighed in on a federal court challenge questioning the legality of the legislation President Barack Obama voted for as an Illinois senator in July. "Accordingly, the court should now promptly dismiss these actions," the Justice Department wrote (.pdf) U.S. District Judge Vaughn Walker of San Francisco late Wednesday.

Obama opposed immunity but voted for it because it was included in a new spy bill that gave the U.S. presidency broad, warrantless-surveillance powers.

Justice Department spokesman Matthew Miller said in a statement that the immunity bill "is the law of the land, and as such the Department of Justice defends it in court."

Walker is weighing a challenge to the immunity legislation in a lawsuit brought by the Electronic Frontier Foundation of San Francisco. Congress crafted the bill after Walker refused to dismiss separate challenges brought by EFF accusing the nation's telecoms of violating the rights of millions of Americans for allegedly funneling electronic communications to the National Security Agency without warrants.

The EFF claims Congress was prohibited from legalizing what the EFF termed was unconstitutional activity by the telecommunication companies. The government claimed immunity was necessary (.pdf) because the spying allegations threatened to expose state secrets.

The administration's legal move should come as no surprise. During his January confirmation hearings, Attorney General Eric Holder told senators that the Obama administration would defend telco immunity. "Unless there are compelling reasons, I don't think we would reverse course," Holder said.

Two weeks ago, Holder announced a review of litigation inherited from the Bush administration in which the so-called state-secrets privilege was invoked. Despite the review, the Obama administration is not deviating from its predecessor.

President George W. Bush acknowledged in 2005 the so-called Terror Surveillance Program, which authorized the NSA to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaeda, or affiliated terrorist organization. Congress authorized such spying activity in July as part of the immunity legislation.

The EFF's lawsuit, however, includes documents from a former AT&T technician that the EFF claims describe a secret room in an AT&T building in San Francisco that is wired up to share raw internet traffic with the NSA.

Judge Walker did not indicate when he would rule.

tough one for me. I'm all about privacy, but I am also about national security. The government seems to have to prove that their belief that they would get useful information was reasonable... which is a legal question, though after the fact... the urgency of the situation (which would also in my mind be part of "reasonable") would also come into play... and I don't think I'd blame the telcos for acquiescing to what the government told them to do.

(02-26-2009 06:27 PM)Hambone10 Wrote:  tough one for me. I'm all about privacy, but I am also about national security. The government seems to have to prove that their belief that they would get useful information was reasonable... which is a legal question, though after the fact... the urgency of the situation (which would also in my mind be part of "reasonable") would also come into play... and I don't think I'd blame the telcos for acquiescing to what the government told them to do.

I don't want to hinder the government from conducting whatever reasonable searches and investigations they want to do, but it's completely against the values of this country to have warrantless searches. It completely removes all oversight and it puts you in the position of having to trust your government, which I don't. Before, they already didn't have to have a warrant - they could get retroactive ones (weeks later) as long as the cause was semi-legit (i.e., a judget would sign off on it). This to me is strong evidence that what they want to do is tap everyone, and have no one know about it because there are no records sent to anyone with authority to say "hey you can't do that." I can make two predictions if this kind of thing continues (since we're into dire predictions around here): 1) The data-mining will get abused by someone with a personal grudge or trying to gain info for personal gain and 2) Nothing useful will come of the searches that couldn't have been done the old way.

I suspect some very smart people have convinced the higher-ups that they can use data-mining to get the bad people that would go "undetected" if we don't listen in on everyone. Data-mining is a super-hot field right now with information researchers, and I think some of what they want to do might even work - but even if it did, it's not worth tossing privacy by the wayside. For now I think they under-estimate the amount of noise they're dumping on the pile by listening to any/everyone.

I'd rather have terrorist attacks every year than give up basic civil liberties.

Just like I accept plane crashes in order than we can fly 10,000 planes a day, and roads and cars and the 100s of people that are killed or injured on/in them so that we can have business and travel and every other modern convenience we now enjoy. Some things are inherently risky - you minimize that risk, but you don't minimize at all costs.

And I've been trying to drop AT&T for about a year now. I want nothing to do with them. "I was just following orders" has never been a valid defense.

Look, it wasn't exactly a case of just following orders. The feds came to them and said basically, "Do it or we'll make your lives miserable." If there's anyone I'd let off the hook, it's the telecom companies. Now the government agencies that extorted them, and particularly the bureaucrats who work for those agencies who led the charge, ought to be strung up. Unfortunately, our system protects them from responsibility for their own actions most of the time. So it may not be feasible to recover from them, but that's who OUGHT to be on the hook for this.

And I don't buy the argument that it was necessary for national security. Maybe in some isolated cases, but not across the board. Without all those steps, we knew enough about 9/11 to have prevented it if the bureaucrats had just gotten off their @$$*$ and done their jobs. Don't believe me? Remember this. On the morning of 9/12 every news outlet in the world had the photographs of the 19 hijackers. If we knew enough to do that within 24 hours, we knew enough to have prevented it. I'm sorry, that's just the way it is.

Just so my comment was clear... because you guys are so much more eloquent than I...
I agree with 69/70 that the telcos are MUCH less to blame than the government... In the military, you have to know an order violated the law in order to refuse it. That's a pretty high burden for most people in most situations. I don't expect the phone company to go to bat for my protection from the "police"... I expect the judicial system to do that. Cell phones are particularly problematic in that as I understand it, anyone with the proper equipment can listen in.

I'm confused Emmie... if they already had the ability to tap and then get the warrant later, then what are they NOW allowed to do? A judge would sign a warrant for reasonable suspicion, and that still appears to be the burden. Perhaps the burden was lowered somewhat in terms of "they're talking to a suspected terrorist, so we want to listen" versus "we believe they're talking to a suspected terrorist about a specific plot, so we want to listen". A clear difference, but not particularly obscene, IMO... and they could just as easily say the latter as the former. I'm looking for an education here...

One of the big problems in this area is that we approached it as a criminal justice matter rather than a national defense matter. We have to observe all the procedural niceties in order to be able to use the information later in a criminal trial. We do not have to observe those niceties, and I for one am not particularly concerned if we don't, where the objective is PREVENTION of the activity in the first place rather than prosecuting the perpetrators later.

Did Bletchley Park need a court order to intercept and decode German military communications in WWII?
Did Joe Rochefort and his boys need a court order to intercept and decode Japanese communications regarding the pending attack on Midway?
The answer in both cases is obviously no. But Churchill didn't want to bring the Germans to trial, nor did Halsey want to put the Japanese on trial. The objectives in both cases were military victories.

At this point, my own opinion is that the Bushie neocons made such a hash of things that it's really no longer possible to discern WHERE we stand legally on a lot of these issues. I think that happened because the Rummy/Cheney mentality was that the ends justified the means, so that we could do whatever we wanted, and Shrub himself seemed content to fiddle while Rome burned on this one. Obama has been handed a mess, and I am going to be inclined to give him a pass whatever he does because there simply is no way out for a lot of the situations that exist.

I would not have unilaterally conferred status under the Geneva Conventions as either uniformed enemy combatants or innocent civilians to the people we captured, because they were entitled to neither.
I would not have created Gitmo, but would have kept them incarcerated in the country in which they were captured.
I would have gotten what information I could out of them, and then except in cases where they were nationals of a nation that sought to intervene, I would have summarily executed them.
Where their native countries did seek to intervene, I would have suspended the executions and worked diligently to resolve the matters in a short time (18 months to 2 years, absolute max).
That would have fulfilled every obligation we had to them under the Geneva Conventions (not applicable) or any other principle of international law.
We might have come off as brutal or bloodthirsty in the eyes of the world. That is not necessarily a bad result.

(02-27-2009 12:05 PM)Owl 69/70/75 Wrote:  One of the big problems in this area is that we approached it as a criminal justice matter rather than a national defense matter. We have to observe all the procedural niceties in order to be able to use the information later in a criminal trial. We do not have to observe those niceties, and I for one am not particularly concerned if we don't, where the objective is PREVENTION of the activity in the first place rather than prosecuting the perpetrators later.

Did Bletchley Park need a court order to intercept and decode German military communications in WWII?
Did Joe Rochefort and his boys need a court order to intercept and decode Japanese communications regarding the pending attack on Midway?
The answer in both cases is obviously no. But Churchill didn't want to bring the Germans to trial, nor did Halsey want to put the Japanese on trial. The objectives in both cases were military victories.

At this point, my own opinion is that the Bushie neocons made such a hash of things that it's really no longer possible to discern WHERE we stand legally on a lot of these issues. I think that happened because the Rummy/Cheney mentality was that the ends justified the means, so that we could do whatever we wanted, and Shrub himself seemed content to fiddle while Rome burned on this one. Obama has been handed a mess, and I am going to be inclined to give him a pass whatever he does because there simply is no way out for a lot of the situations that exist.

I would not have unilaterally conferred status under the Geneva Conventions as either uniformed enemy combatants or innocent civilians to the people we captured, because they were entitled to neither.
I would not have created Gitmo, but would have kept them incarcerated in the country in which they were captured.
I would have gotten what information I could out of them, and then except in cases where they were nationals of a nation that sought to intervene, I would have summarily executed them.
Where their native countries did seek to intervene, I would have suspended the executions and worked diligently to resolve the matters in a short time (18 months to 2 years, absolute max).
That would have fulfilled every obligation we had to them under the Geneva Conventions (not applicable) or any other principle of international law.
We might have come off as brutal or bloodthirsty in the eyes of the world. That is not necessarily a bad result.

I don't disagree... unfortunately the Geneva COnvention, and most rules of engagement and prosecution when it comes to war assume that there is a sovereign foreign government behind the actions of the militants... not a loosely formed fraction around a religious sect... and not even really closely associated with that...
It's like global gang warfare... or the Mafia... with all its derivatives... and the rules for fighting THOSE groups have to do with our own internal laws and prosecuting the individuals.

Like most things... make a rule, and those interested in breaking them will find a way to accomplish that.

(02-27-2009 01:19 PM)Hambone10 Wrote:  

(02-27-2009 12:05 PM)Owl 69/70/75 Wrote:  One of the big problems in this area is that we approached it as a criminal justice matter rather than a national defense matter. We have to observe all the procedural niceties in order to be able to use the information later in a criminal trial. We do not have to observe those niceties, and I for one am not particularly concerned if we don't, where the objective is PREVENTION of the activity in the first place rather than prosecuting the perpetrators later.

Did Bletchley Park need a court order to intercept and decode German military communications in WWII?
Did Joe Rochefort and his boys need a court order to intercept and decode Japanese communications regarding the pending attack on Midway?
The answer in both cases is obviously no. But Churchill didn't want to bring the Germans to trial, nor did Halsey want to put the Japanese on trial. The objectives in both cases were military victories.

At this point, my own opinion is that the Bushie neocons made such a hash of things that it's really no longer possible to discern WHERE we stand legally on a lot of these issues. I think that happened because the Rummy/Cheney mentality was that the ends justified the means, so that we could do whatever we wanted, and Shrub himself seemed content to fiddle while Rome burned on this one. Obama has been handed a mess, and I am going to be inclined to give him a pass whatever he does because there simply is no way out for a lot of the situations that exist.

I would not have unilaterally conferred status under the Geneva Conventions as either uniformed enemy combatants or innocent civilians to the people we captured, because they were entitled to neither.
I would not have created Gitmo, but would have kept them incarcerated in the country in which they were captured.
I would have gotten what information I could out of them, and then except in cases where they were nationals of a nation that sought to intervene, I would have summarily executed them.
Where their native countries did seek to intervene, I would have suspended the executions and worked diligently to resolve the matters in a short time (18 months to 2 years, absolute max).
That would have fulfilled every obligation we had to them under the Geneva Conventions (not applicable) or any other principle of international law.
We might have come off as brutal or bloodthirsty in the eyes of the world. That is not necessarily a bad result.

I don't disagree... unfortunately the Geneva COnvention, and most rules of engagement and prosecution when it comes to war assume that there is a sovereign foreign government behind the actions of the militants... not a loosely formed fraction around a religious sect... and not even really closely associated with that...
It's like global gang warfare... or the Mafia... with all its derivatives... and the rules for fighting THOSE groups have to do with our own internal laws and prosecuting the individuals.

Like most things... make a rule, and those interested in breaking them will find a way to accomplish that.

You both seem to be implying that this is ok by citing previous actions in times of war (of course, that still doesn't make everything ok*, but this is not my central beef). Last I checked, we never actually declared war in Iraq. Intercepting the communications of a country you are actively at war with is vastly different than wholesale spying on anyone that bothers to call a friend overseas. Yes there is the pseudo-protection of "reasonable suspicion" but this kind of criminal justice language is why it is being treated as a criminal justice issue. I am already uncomfortable with a vast wire-tapping system in the first place (especially one that is under fire in the courts right now for wholesale wiretapping), but when you couple with it a complete lack of oversight, with business conducted in secret courts, I just get very nauseous. You need balance, and you need recourse. NSA agents and FBI agents are nothing more than human beings... as the age-old question goes "who will watch the watchers?"

*e.g., Japanese interment

(03-02-2009 06:56 PM)emmiesix Wrote:  

(02-27-2009 01:19 PM)Hambone10 Wrote:  

(02-27-2009 12:05 PM)Owl 69/70/75 Wrote:  One of the big problems in this area is that we approached it as a criminal justice matter rather than a national defense matter. We have to observe all the procedural niceties in order to be able to use the information later in a criminal trial. We do not have to observe those niceties, and I for one am not particularly concerned if we don't, where the objective is PREVENTION of the activity in the first place rather than prosecuting the perpetrators later.

Did Bletchley Park need a court order to intercept and decode German military communications in WWII?
Did Joe Rochefort and his boys need a court order to intercept and decode Japanese communications regarding the pending attack on Midway?
The answer in both cases is obviously no. But Churchill didn't want to bring the Germans to trial, nor did Halsey want to put the Japanese on trial. The objectives in both cases were military victories.

At this point, my own opinion is that the Bushie neocons made such a hash of things that it's really no longer possible to discern WHERE we stand legally on a lot of these issues. I think that happened because the Rummy/Cheney mentality was that the ends justified the means, so that we could do whatever we wanted, and Shrub himself seemed content to fiddle while Rome burned on this one. Obama has been handed a mess, and I am going to be inclined to give him a pass whatever he does because there simply is no way out for a lot of the situations that exist.

I would not have unilaterally conferred status under the Geneva Conventions as either uniformed enemy combatants or innocent civilians to the people we captured, because they were entitled to neither.
I would not have created Gitmo, but would have kept them incarcerated in the country in which they were captured.
I would have gotten what information I could out of them, and then except in cases where they were nationals of a nation that sought to intervene, I would have summarily executed them.
Where their native countries did seek to intervene, I would have suspended the executions and worked diligently to resolve the matters in a short time (18 months to 2 years, absolute max).
That would have fulfilled every obligation we had to them under the Geneva Conventions (not applicable) or any other principle of international law.
We might have come off as brutal or bloodthirsty in the eyes of the world. That is not necessarily a bad result.

I don't disagree... unfortunately the Geneva COnvention, and most rules of engagement and prosecution when it comes to war assume that there is a sovereign foreign government behind the actions of the militants... not a loosely formed fraction around a religious sect... and not even really closely associated with that...
It's like global gang warfare... or the Mafia... with all its derivatives... and the rules for fighting THOSE groups have to do with our own internal laws and prosecuting the individuals.

Like most things... make a rule, and those interested in breaking them will find a way to accomplish that.

You both seem to be implying that this is ok by citing previous actions in times of war (of course, that still doesn't make everything ok*, but this is not my central beef). Last I checked, we never actually declared war in Iraq. Intercepting the communications of a country you are actively at war with is vastly different than wholesale spying on anyone that bothers to call a friend overseas. Yes there is the pseudo-protection of "reasonable suspicion" but this kind of criminal justice language is why it is being treated as a criminal justice issue. I am already uncomfortable with a vast wire-tapping system in the first place (especially one that is under fire in the courts right now for wholesale wiretapping), but when you couple with it a complete lack of oversight, with business conducted in secret courts, I just get very nauseous. You need balance, and you need recourse. NSA agents and FBI agents are nothing more than human beings... as the age-old question goes "who will watch the watchers?"

*e.g., Japanese interment

A lot of our wars were never declared - I think Vietnam and the Civil War fall into this category, I am not sure about Korea, Panama, Mexico, Afghanistan, Grenada, Somalia, and Gulf War I. In any case, it is the War IN Iraq, not the War ON Iraq. Since we are talking technicalities, I think it is the War on Terror, and Iraq is one theatre.

This seems to be an arguement between two extremes. One extreme says we will do what is right, even if it leads to our destruction. The other extreme says the end justifies any means whatsoever. We need to find a workable compromise between the idealistic and the pragmatic.

BTW, I think you meant Japanese-AMERICAN internment.

(03-02-2009 06:56 PM)emmiesix Wrote:  You both seem to be implying that this is ok by citing previous actions in times of war (of course, that still doesn't make everything ok*, but this is not my central beef). Last I checked, we never actually declared war in Iraq. Intercepting the communications of a country you are actively at war with is vastly different than wholesale spying on anyone that bothers to call a friend overseas. Yes there is the pseudo-protection of "reasonable suspicion" but this kind of criminal justice language is why it is being treated as a criminal justice issue. I am already uncomfortable with a vast wire-tapping system in the first place (especially one that is under fire in the courts right now for wholesale wiretapping), but when you couple with it a complete lack of oversight, with business conducted in secret courts, I just get very nauseous. You need balance, and you need recourse. NSA agents and FBI agents are nothing more than human beings... as the age-old question goes "who will watch the watchers?"
*e.g., Japanese interment

In my case, at least, the argument is not simply that it's okay because we've done it that way in the past. My point is that we should have conducted this as a national defense effort rather than as a criminal justice effort. Whether there is a declared war or not is not material. There was never a declared war between the US and the USSR/CIS/Russia during the period 1945-1995, but we did not have to go to court to get wiretap warrants in order to conduct espionage against them.

There is a problem that this is not the sort of enemy contemplated in traditional concepts of international or constitutional law, and therefore application of many heretofore well-established principles is awkward at best. I would resolve the resulting quandaries by saying that if use is restricted to national defense, pretty much anything goes, but when you may also use it for criminal prosecution you need to do it by the numbers. That's a bit arbitrary, and it comes with its own set of problems, but at least there are some bright lines. I would be okay living under those rules.

One thing that I believe is badly needed, and has been for some time, is some sort of fifth Geneva Convention to deal with this situation. Given that this sort of enemy typically has no intent to abide by the existing Geneva Conventions, and given that the existing conventions provide an automatic out when the other party fails to observe them, we might well end up with not much more than anything goes. And I could certainly make the argument that such a standard could be appropriate. But we should at least confer some authoritative status on whatever rules we want to govern asymetrical and irregular warfare.

I don't believe that we can effectively counter this sort of enemy within the confines of our domestic criminal justice system. I don't believe that these enemies--at least the ones who are not citizens--should be entitled to the full boat of constitutional protections afforded citizens. I also don't believe that the methods chosen by the Bush aministration to deal with them are reasonable, appropriate, or effective.

(03-02-2009 07:52 PM)OptimisticOwl Wrote:  A lot of our wars were never declared - ... Civil War ...

I'm not sure we could have declared war against the CSA without recognizing their legitimacy.

(03-02-2009 08:38 PM)texd Wrote:  

(03-02-2009 07:52 PM)OptimisticOwl Wrote:  A lot of our wars were never declared - ... Civil War ...

I'm not sure we could have declared war against the CSA without recognizing their legitimacy.

Could not have. That's why it was not done.

(03-02-2009 08:42 PM)Owl 69/70/75 Wrote:  

(03-02-2009 08:38 PM)texd Wrote:  

(03-02-2009 07:52 PM)OptimisticOwl Wrote:  A lot of our wars were never declared - ... Civil War ...

I'm not sure we could have declared war against the CSA without recognizing their legitimacy.

Could not have. That's why it was not done.

So those were American citizens imprisoned indefinitely without the right to a speedy trial or the right to confront their accusers, not prisoners of war?

Damned Republicans.

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  In my case, at least, the argument is not simply that it's okay because we've done it that way in the past. My point is that we should have conducted this as a national defense effort rather than as a criminal justice effort. Whether there is a declared war or not is not material. There was never a declared war between the US and the USSR/CIS/Russia during the period 1945-1995, but we did not have to go to court to get wiretap warrants in order to conduct espionage against them.

I see the point you're driving at, but how do you feel about the way this real-life case was handled:

(begin quote)
Andrew Patel, Padilla’s lawyer, said after the guilty verdict, “What happened in this trial, I think you have to put it in the context of federal conspiracy law, where the government doesn’t have to prove that something happened, but just that people agree that something should happen in the future. In this case, it was even more strained. The crime charged in this case was actually an agreement to agree to do something in the future. So when you’re dealing with a charge like that, you’re not going to have—or the government’s not going to be required to produce the kind of evidence that you would expect in a normal criminal case.”[34]

Paul Craig Roberts criticized the jury's verdict in the Padilla case as having "overthrown" the Constitution and doing far more damage to US liberty than any terrorist could.[35]

Andy Worthington wrote "[Seventeen] years and four months seems to me to be an extraordinarily long sentence for little more than a thought crime, but when the issue of Padilla's three and half years of suppressed torture is raised, it's difficult not to conclude that justice has just been horribly twisted, that the President and his advisors have just got away with torturing an American citizen with impunity, and that no American citizen can be sure that what happened to Padilla will not happen to him or her. Today, it was a Muslim; tomorrow, unless the government's powers are taken away from them, it could be any number of categories of 'enemy combatants' who have not yet been identified."[36]

Timothy Lynch of the Cato Institute raised several issues with the Padilla seizure in an amicus brief he filed to the Supreme Court. In it, he asks questions such as whether the president can lock up any person in the world and then deny that person access to family, defense counsel, and civilian court review; and the use of "harsh conditions" and "environmental stresses". He questioned whether such techniques be employed against anyone once the president gives an order. Those legal questions remain unsettled even today.[37] By abruptly moving Padilla from the military brig and into the ordinary criminal justice system, Lynch argued that the Bush administration was able to forestall Supreme Court review of the president’s military powers.

(end quote from wikipedia, where you can find the links if you're not familiar with the case)

This is of course separate from the warrantless wiretapping cases, but it goes hand-in-hand with it. We've seen the power of the executive branch expanded to the point of being beyond our 4th grade civics "checks and balances" and to me that is supremely disturbing. Earlier in that article the actual order for Padilla's detainment is described:

The order "legally justified" the detention using the 2002 Iraq Resolution (formally "The Authorization for Use of Military Force Against Iraq Resolution of 2002"), which authorized the President to "use all necessary force against . . . such nations, organizations, or persons" and by opining that a U.S. citizen detained on U.S. soil can be classified an enemy combatant.
(end quote)

You have here the shadow of 1984 -- perpetual undeclared war that allows the executive branch to essentially arrest anyone, even US citizens and suspend habeus corpus because they are an "enemy combatant". By the way, Padilla was never convicted of the charges he was declared an EC for. (I won't defend him as a person - it's possible he was "interested" in helping al queda, but it certainly wasn't proven in my mind).

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  One thing that I believe is badly needed, and has been for some time, is some sort of fifth Geneva Convention to deal with this situation. Given that this sort of enemy typically has no intent to abide by the existing Geneva Conventions, and given that the existing conventions provide an automatic out when the other party fails to observe them,

I wouldn't call it an automatic out - these people could be tried in international court, yes?

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  we might well end up with not much more than anything goes. And I could certainly make the argument that such a standard could be appropriate.

I won't conflate "make the argument" with your personal preference, but hopefully you agree that such a standard would (or should) be abhorrent to any moral person, and particularly a "christian nation" as we supposedly are.

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  I don't believe that we can effectively counter this sort of enemy within the confines of our domestic criminal justice system. I don't believe that these enemies--at least the ones who are not citizens--should be entitled to the full boat of constitutional protections afforded citizens. I also don't believe that the methods chosen by the Bush administration to deal with them are reasonable, appropriate, or effective.

Why can't we try them with rights intact? I seriously doubt that you gain any ground by imprisoning or summarily executing anyone even suspected of terrorist activities. Even if that lowers your risk of letting go a dangerous person, I imagine the "disappearance" of a person does not fall unnoticed. This goes into deeper issues like why people get radicalised in the first place, but it certainly doesn't surprise me that many of the terrorists have personal vendettas.

I don't believe there does have to be a "compromise" between doing the right thing and doing whatever it takes. Quite frankly (despite all the Fear, Uncertainty, and Doubt) the risk from terrorists is not high enough, and there is certainly evidence that some amount of "blowback" exists. From a practical perspective, I think escalation is a bad idea.

(03-02-2009 10:17 PM)emmiesix Wrote:  

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  In my case, at least, the argument is not simply that it's okay because we've done it that way in the past. My point is that we should have conducted this as a national defense effort rather than as a criminal justice effort. Whether there is a declared war or not is not material. There was never a declared war between the US and the USSR/CIS/Russia during the period 1945-1995, but we did not have to go to court to get wiretap warrants in order to conduct espionage against them.

I see the point you're driving at, but how do you feel about the way this real-life case was handled:

(begin quote)
Andrew Patel, Padilla’s lawyer, said after the guilty verdict, “What happened in this trial, I think you have to put it in the context of federal conspiracy law, where the government doesn’t have to prove that something happened, but just that people agree that something should happen in the future. In this case, it was even more strained. The crime charged in this case was actually an agreement to agree to do something in the future. So when you’re dealing with a charge like that, you’re not going to have—or the government’s not going to be required to produce the kind of evidence that you would expect in a normal criminal case.”[34]

Paul Craig Roberts criticized the jury's verdict in the Padilla case as having "overthrown" the Constitution and doing far more damage to US liberty than any terrorist could.[35]

Andy Worthington wrote "[Seventeen] years and four months seems to me to be an extraordinarily long sentence for little more than a thought crime, but when the issue of Padilla's three and half years of suppressed torture is raised, it's difficult not to conclude that justice has just been horribly twisted, that the President and his advisors have just got away with torturing an American citizen with impunity, and that no American citizen can be sure that what happened to Padilla will not happen to him or her. Today, it was a Muslim; tomorrow, unless the government's powers are taken away from them, it could be any number of categories of 'enemy combatants' who have not yet been identified."[36]

Timothy Lynch of the Cato Institute raised several issues with the Padilla seizure in an amicus brief he filed to the Supreme Court. In it, he asks questions such as whether the president can lock up any person in the world and then deny that person access to family, defense counsel, and civilian court review; and the use of "harsh conditions" and "environmental stresses". He questioned whether such techniques be employed against anyone once the president gives an order. Those legal questions remain unsettled even today.[37] By abruptly moving Padilla from the military brig and into the ordinary criminal justice system, Lynch argued that the Bush administration was able to forestall Supreme Court review of the president’s military powers.

(end quote from wikipedia, where you can find the links if you're not familiar with the case)

This is of course separate from the warrantless wiretapping cases, but it goes hand-in-hand with it. We've seen the power of the executive branch expanded to the point of being beyond our 4th grade civics "checks and balances" and to me that is supremely disturbing. Earlier in that article the actual order for Padilla's detainment is described:

The order "legally justified" the detention using the 2002 Iraq Resolution (formally "The Authorization for Use of Military Force Against Iraq Resolution of 2002"), which authorized the President to "use all necessary force against . . . such nations, organizations, or persons" and by opining that a U.S. citizen detained on U.S. soil can be classified an enemy combatant.
(end quote)

You have here the shadow of 1984 -- perpetual undeclared war that allows the executive branch to essentially arrest anyone, even US citizens and suspend habeus corpus because they are an "enemy combatant". By the way, Padilla was never convicted of the charges he was declared an EC for. (I won't defend him as a person - it's possible he was "interested" in helping al queda, but it certainly wasn't proven in my mind).

I would make a distinction between how citizens and non-citizens are handled. I think citizens should always be afforded constitutional protections to the fullest extent. Not so for terrorists who set out to destroy that very constitution. That's one of my big quarrels with how Obama has approached this. I could do with a lot more concern about whether the rights of American citizens have been compromised by the patRIOT act and other elements of the War on Terror, and a lot less worrying about whether some terrorist in Gitmo is comfortable tonight.

That's maybe not entirely satisfactory to you, at least not in theory, but it does provide some clear-cut guidance. And it's pretty consistent with the way international law has handled things for centuries.

(03-02-2009 10:17 PM)emmiesix Wrote:  

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  One thing that I believe is badly needed, and has been for some time, is some sort of fifth Geneva Convention to deal with this situation. Given that this sort of enemy typically has no intent to abide by the existing Geneva Conventions, and given that the existing conventions provide an automatic out when the other party fails to observe them,

I wouldn't call it an automatic out - these people could be tried in international court, yes?

Not sure how to respond to this one because I'm not certain whom you mean by "these people." Regardless of whom you mean, I think the answer is generally "no," but the extent to which that answer is the corerect one would depend a bit on exactly to whom you are referring.

(03-02-2009 10:17 PM)emmiesix Wrote:  

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  we might well end up with not much more than anything goes. And I could certainly make the argument that such a standard could be appropriate.

I won't conflate "make the argument" with your personal preference, but hopefully you agree that such a standard would (or should) be abhorrent to any moral person, and particularly a "christian nation" as we supposedly are.

No, I wouldn't necessarily agree.

(03-02-2009 10:17 PM)emmiesix Wrote:  

(03-02-2009 08:03 PM)Owl 69/70/75 Wrote:  I don't believe that we can effectively counter this sort of enemy within the confines of our domestic criminal justice system. I don't believe that these enemies--at least the ones who are not citizens--should be entitled to the full boat of constitutional protections afforded citizens. I also don't believe that the methods chosen by the Bush administration to deal with them are reasonable, appropriate, or effective.

Why can't we try them with rights intact? I seriously doubt that you gain any ground by imprisoning or summarily executing anyone even suspected of terrorist activities. Even if that lowers your risk of letting go a dangerous person, I imagine the "disappearance" of a person does not fall unnoticed. This goes into deeper issues like why people get radicalised in the first place, but it certainly doesn't surprise me that many of the terrorists have personal vendettas.
I don't believe there does have to be a "compromise" between doing the right thing and doing whatever it takes. Quite frankly (despite all the Fear, Uncertainty, and Doubt) the risk from terrorists is not high enough, and there is certainly evidence that some amount of "blowback" exists. From a practical perspective, I think escalation is a bad idea.

The trap here is that we are imposing our values on a culture that doesn't share those values. Things that we consider to be respecting human rights are taken by them either as signs of weakness or reasons to take offense. We really screw up when we try to deal on our own terms with people who don't share our perspective or world view. In the end we probably make fewer enemies by subjecting them to a process they understand (leading to "disappearance" to use your terminology) than one they don't understand (even though the latter fits much better with our own sensitivities). This is difficult to explain to anyone who has not lived in their culture, and I'm probably not doing a good job of explaining it here.

We're not going to be liked by the majority of people in that part of the world--not because of things we do that might offend western sensibilities, but because of things we do that offend their sensibilities (which are different). The best we could probably get is a live-and-let-live situation (like what exists in Dubai), but our American penchant for showing them why our way is better pretty much precludes that anywhere that we get involved. Dubai would not have happened if the US had been involved.

We could be respected or feared--if we chose to deal with them in ways that fostered those sorts of results. So far, we have not. Whether we ever will is uncertain. Right now we are viewed more than anything as a cowardly bully--we like to push people around and tell them they have to change to our ways, but when they get in our face and confront us, we back down. That's why 9/11 was cheered in so much of the Arab world. If we're going to tell their women to take off their veils, we need to be ready to kill the men who don't like it. We're not ready to do that now. I don't know that we ever will be. My preference would be to extract ourselves totally from that area as early as possible. That may be the unly way we can live and let live. But until there's a much more serious effort to become energy independent, we can't go there.

We have spent the last 70 years or so trying to be liked in the third world. We're not liked and we're not respected. Russia and China have spent that same period trying to be feared and/or respected. They are generally feared or respected--and hated--but they have gotten generally better results than we have.

As I alluded to earlier. The problem we have is that this is not a war/battle/call it what you will of citizenship... but of allegiance. Unlike the Japanese-American interment, Jose Padilla wasn't interred simply because he was a Muslim. Even so, is his allegiance to being a Muslim, or even a certain "sect" of Muslimism (is that a word?) or being an American? What about those obvious situations where allegiances conflict? Is he acting as an agent of America, or an agent of a group we are at "war" with? My point being, our laws were not written expecting this.... and the rules of war were not written to reflect the kinds of wars like this that have literally been going on for thousands of years.... where location of birth makes no difference and attacks with a decade or more of "set-up" are possible. Was he REALLY a citizen?? In other words, did he truly pledge allegiance to the United States of America, or was he lying? HIf he was born here (I can't remember) did he effectively renounce his citizenship when he pledged his allegiance to his faith, if his faith requires aiding in the destruction of my country?

The people who ordered the interment of Japanese-Americans were not evil people. They were scared.... they had just been lied to by the Japanese government, and then attacked. We didn't know whom to trust, but we could CLEARLY not trust the Japanese at the time, and the "devotion" of the kamikazes, which were basically suicide bombers scared the crap out of us.. We had never seen things like that, and couldn't really imagine what kind of people would do that. Even today, we look back on 9/11 and talk about what we should have known... but suicide bombers are pretty uncommon in this country, even though they happen in certain parts of the world every week. We were scared. Some of these people had been here for years. they may not have been citizens, but hundreds of thousands of people with backgrounds just like theirs were in this country... I remember their being talk of a coordinated suicide bombing in dozens of malls across the country. All it would have taken was a few sticks of Dynamite... or a box of M-80 firecrackers... and a bag of nails... and a few willing to die to cause a MAJOR panic attack across this country.... and here were 19 obviously willing to do it, and others apparently willing to help. I don't blame the government (no matter WHO is in charge) for erring on the side of protecting America. even from people with citizenship papers, but an allegiance to something else and a desire to do us harm as a people. I only blame them for failing to adapt quickly enough, or for missing some obvious flaws and failing to correct them.

As to the Geneva Convention. I do not believe we are bound by its rules for non-signers... and when dealing with people for whom death is a goal, not a fear... and life in our prisons is infinitely better than their life at home... what are we to do?

Emmie... years ago, we tried to infiltrate organizations like these. I KNOW it happened in the early gang wars after Vietnam, but I'd heard it happened before as well... With honorable intentions, we tried to do it on OUR terms, not theirs... meaning our "spies" weren't allowed to break US laws... so as part of the initiation, these groups had potential members kill a random person. When they refused, they shot them... or simply kept them out of the loop suspecting them of being feds... so we failed in our mission, and even got our own people killed because "they" played by rules designed to circumvent ours. To me, this is the same thing. That doesn't mean we shouldn't try and do the right thing... but that isn't always going to be possible.

I don't know if this is correctly analygous to the discussion, but as y'all may have gathered by now, I am going to tell it anyway.

About a half century ago, as I as a 14 year old student driver was driving with my mother, I approached an intersection, and after a stop, i proceeded to start through. My mother yelled at me to stop, and another car crossed in front of us. I told her "But I had the right of way". She replied, "I don't care, the cemetary is full of people who had the right of way".

It was my first lesson that being right does not neccessarily bring good consequences. Sometimes the situation calls for us not to stand on what is right, if it will bring bad consequences.

There are a lot of people who want to destroy the Constitution and our rights under the Constitution, most of them so that Sharia law can replace it. It seems odd to me that that not only do these people shield themselves with the Constitution they want to replace, we, their targets, support this.

I think we will eventually watch our nation crumble as we stand on the high moral ground patting ourselves on the back for never letting the exigencies of the situation get in the way. I can see and understand the viewpoints of those who think the nation will crumble if we give in to exigencies. Clearly changes need to be addressed. It may be painful for some of us to see the changes, but it is no longer 1940 or 1860. It is said that the Constitution is a living document. Well, it is time to let it grow.