Stygius

Hamdan smackdown

I'm in the middle of reading the 5-3 Supreme Court decision blowing away the White House's argument for extra-legal military trials.  The Washington Post gives an overview of the Hamdan v. Rumsfeld decision written by Justice Stevens. It essentially supports District Judge Floyd's stinging decision in March 2005.

Jurist has a round-up as well that they are updating. One may recall that the oral argument didn't go well for the Solicitor General.

The full decision is up at FindLaw, already.

I haven't finished it, but this sentence stands out.

The military commission at issue is not expressly authorized by any congressional Act.  Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war.

It clearly and simply repudiates all of the administration's attempts to read into Article II the plenary authority to try, convict, and kill people. Commander-in-Chief authority is one thing; being above the law is quite another. In fact, the Supreme Court essentially calls "Bullshit!" on President Bush:

Contrary to the Government's assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions--with the express condition that he and those under his command comply with the law of war . . . . Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President's war powers . . . and that those powers include authority to convene military commissions in appropriate circumstances . . . there is nothing in the AUMF's text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21.

After the second inauguration, I wrote a long screed that included a similar reading of Ex Parte Quirin in a critique of the Bush Administration's inherent powers rhetoric:

The pseudo-judicial authority of the president over combatants--i.e., the Guantanamo trials--is one product of this attitude. Much has been made of Ex Parte Quirin, for instance, which supposedly legitimated the president's military trials of terrorist suspects. That ignores, however, Congress' express authority in Article I, section 8, clauses 10 & 11 of the Constitution to authorize a President to conduct such trials, which is what that decision hinged on. There is nothing presidentially inherent about it; it is an express power of Congress.

It is time that Congress asserts its own war powers, and establishes a legal framework to deal with GWOT prisoners. There is no reason that a robust, effective fight against terrorism has to be done outside of the Constitution. Let's give the Framers a little more credit. Previously, I wrote last July:

The president has resisted any effort to bring the conduct of war under Congress' purview, even the domestic capture of an American citizen by civilian authorities. This means there are gaping legal holes in the American system in the absence of legislation clarifying when and how captured enemies can be held. That's my beef. Pass a law permitting the president to detain indefinitely American members of al-Qaeda. Subject it to Congressional review or even some kind of quasi-judicial mechanism. But this argument for absolute presidential war power authority is bogus and the judiciary is right to blow it out of the water.

So what to do, given Congress's apparent duty in time of war? Targeted suspension of habeas corpus is appropriate, with some framework for a trial, but that it is a congressional perogative, not an executive one. It is one held by the Congress, and can only be expressly delegated. In doing so, Congress can build in conditions that assures this grasping president doesn't blow it.

Information station

praktike's post about the decline of the CIA's human intelligence gathering during the 1990s is worth reading. A legitimate criticism of the Clinton Administration, as well as the whole "post-Cold War" navel gazing phenomenon, is that it allowed capabilities like that to decay.

However, I mostly just wanted to highlight prak's last graf:

According to one amusing anecdote told by legendary CIA man Miles Copeland in his 1974 book Without Cloak or Dagger, JFK vastly preferred reading the Times and the Post to his own intelligence briefings. So Copeland and some others took to using JFK's preferred columnists and reporters as conduits for information that they would ordinarily convey through official channels. This, incidentally, is probably one of the many reasons that the Bush administration has become so leaky, given that by all accounts Bush has a dysfunctional personal information-gathering system.

Kappes back

Nearly everyone, the Washington Post included, is displaying immense relief that experienced grownups are taking the reins at the CIA:

Stephen R. Kappes, a legendary CIA clandestine operative, will become as soon as today the No. 2 at the agency in a move that CIA Director Michael V. Hayden hopes will lift morale there. Kappes's top priority will be to help rebuild the agency's human intelligence capabilities when the United States needs spies within the jihadist community and elsewhere.

After Porter Goss's singular ability to drive away case officers, Kappes is supposed to reverse the flow. In what can only be another good sign, Curt Weldon is against Kappes:

Weldon criticizes what he calls Kappes's failure to pursue the congressman's view that a colleague of Manucher Ghorbanifar, one of the instigators of the Iran-contra affair, had important information on Iran's nuclear program. "Kappes was the ringleader of an internal CIA rebellion," Weldon wrote in his recent book, "Countdown to Terror."

More on Weldon's nutso fantasy world previously  here and here.

Stuck on signing statements

In yet another nod to the inimitable Laura Rozen, from the Boston Globe:

The office of Vice President Dick Cheney routinely reviews pieces of legislation before they reach the president's desk, searching for provisions that Cheney believes would infringe on presidential power, according to former White House and Justice Department officials.

The officials said Cheney's legal adviser and chief of staff, David Addington , is the Bush a dministration's leading architect of the ``signing statements" the president has appended to more than 750 laws. The statements assert the president's right to ignore the laws because they conflict with his interpretation of the Constitution.

The Bush-Cheney administration has used such statements to claim for itself the option of bypassing a ban on torture, oversight provisions in the USA Patriot Act, and numerous requirements that they provide certain information to Congress, among other laws.

Modern liberty

Really, who's surprised? Who thinks a warrantless database of millions upon millions of Americans' phone calls wasn't there?

But since I've covered these constitutional issues here, here, here, here, here, and here, I won't do much reiteration on USA Today's historic exposure of telecom companies' compliance with National Security Agency surveillance of Americans.

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

Hayden's pet project. Best of luck with that confirmation hearing. Oh, and doesn't this mean the president lied?

Last year, Bush said he had authorized the NSA to eavesdrop — without warrants — on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA's efforts to create a national call database

TPM Muckraker reminds that AG Gonzales lied during his confirmation hearing:

NADLER: Number two, can you assure us that there is no warrantless surveillance of calls between two Americans within the United States?

GONZALES: That is not what the president has authorized.

CNN gives a nice rundown of outraged statements from Republican and Democratic legislators.

The Democrats' No. 2 member of the Senate, Sen. Richard Durbin, called the development "evidence of a coverup."

"The fact ... that the Department of Justice has abandoned their own investigation of this administration's wrongdoing because there's been a refusal to give investigators security clearances is clear evidence of a coverup within the administration."

Last month, a former AT&T technician said in a sealed court document filed in federal court that the company cooperated with NSA to install equipment for "vacuum cleaner surveillance" of e-mail messages and Internet traffic, according to his lawyer.

USA Today follows up with White House and Hill reaction.

Sen. Charles Grassley, R-Iowa, asked "why are the telephone companies not protecting their customers? I think they have a social responsibility to people who do business with them to protect our privacy as long there isn't some suspicion that we're a terrorist or a criminal or something."

"I don't know enough about the details except that I am willing to find out because I'm not sure why it would be necessary to keep and have that kind of information," said House Majority Leader John Boehner, R-Ohio.

Republican Sen. Lindsey Graham, R-S.C., told Fox News Channel: "The idea of collecting millions or thousands of phone numbers, how does that fit into following the enemy?"

And you think they won't abuse this power after systematically assuming it?

Anyway, this will be a fun summer.

To excise a sickness: Sunshine

I wish no harm to Karl; this is among the most trying moments of his life. But I wish for our country, and we must ensure, as journalists, a full and complete accounting for the exercise and abuse of political power.

A complex Editor & Publisher piece by Bill Israel challenges the press to finally grasp the scope of Karl Rove's affect on the body politic, and what it takes to properly report it.

Karl’s immense political success led to greater policy responsibility. That may have been less damaging in Texas: Bush could be "a uniter, not a divider" in a state where differences between Republicans and conservative Democrats are narrow. But an administration damages national policy when it governs the country narrowly from podiums at the American Enterprise Institute, the Heritage Foundation or Federalist Society, or from military bases where constituents are scripted and commanded to salute.

One senses that in its internal operations, in its oxygenless interaction with the above organizations, there is something interminably circular, stagnant, and incestuous about the Rove White House's group psychology. I think that explains its increasingly surreal presentation to the American public, and its internal entropy.

But, Israel warns:

Journalists would do well to remember they’re dealing with the most gifted political operative of the age, who beat all comers in 2000 even though losing the election; rolled up new majorities in 2002 after a terrorist attack for for which the president did not prepare, from a Middle East he’d ignored; and beat the Democrat in 2004 by demeaning his superior service record. Karl did much of his best work in Austin from his private office, before Bush bid him come to work full time. Whether under a legal cloud at the White House, or under indictment and better insulated from scrutiny in a new private office, Karl will likely run the works again.

Hayden games

Dana Priest has a piece essentially corroborating Steve Clemons' argument about the internecine, Negroponte-Rumsfeld wars in the intelligence bureaucracy. I feel safer every day.

White Elephants yonder

Another superb Christian Science Monitor roundup on a non-partisan study of the United States' Cold War-laden defense budget that tells it like it is:

A new report by the Task Force on a Unified Security Budget for the United States says that Congress should cut $62 billion out of cold war weapons programs and use that money to for homeland security needs, efforts to halt the spread of nuclear weapons, and diplomatic measures that would better serve America's national security interests.

Knight Ridder reports that the non-partisan think tank's study is designed to provide "a systematic, comprehensive examination of security spending and a search for the right balance of security tools." The report comes as Congress is about to debate President Bush's $439 billion defense budget, the largest in the nation's history.

Let's see, an dysfunctional missile defense system, or nonproliferation of WMD materials that al-Qaeda is determined to acquire? You make the call.

Leaks and a listing administration

Joe Conason provides a nice synopsis of leak ethics in Washington: Not okay if it exposes extra-constitutional policies; okay if for presidential myth-building, disinformation, or senatorial egotism.

Is it always bad to leak sensitive classified information to a reporter for The Washington Post? Not if the reporter’s name is Bob Woodward and he is writing a laudatory book with a thrilling title like Bush at War. In researching that 2002 best-seller, Mr. Woodward was told about covert operations, secret sources and methods, and relationships with foreign intelligence services, with the blessing of President Bush. After the publication of Bush at War, the President instructed top government officials to continue cooperating with Mr. Woodward in the reporting of his next epic.

With plenty more.

This has got to stop

This "signing statement" crap will only end up eroding the legitimacy of the presidency. It's got to stop. Boston Globe:

Bush challenges hundreds of laws

President cites powers of his office

By Charlie Savage, Globe Staff  |  April 30, 2006

WASHINGTON -- President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.