Further to David Rittger’s post below, here is a sublime commentary on Washington politics, the media, and some other odd phenomena:
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Constitutional Law
Enhanced Justification Techniques
Over the last few days the right has been trying to rehabilitate the use of “enhanced interrogation techniques” on detainees, claiming that the ends justified the means. For a sample, click here, here, here, and here.
Don’t be fooled by these “enhanced justification techniques.” (H/T NonSequitur, who coined the term in response to Charles Krauthammer’s justifications for torture, something I have also fisked)
Peter Bergen breaks down the facts and chronology of what information we gleaned from Abu Zubaydah and Khalid Sheikh Mohammed (KSM) over at Foreign Policy.
Most interesting tidbit:
The CIA inspector general’s report on al Qaeda detainees also concluded that based on a review of KSM’s plots aimed at the United States, it “did not uncover any evidence that these plots were imminent,” but it did find that KSM “provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen who Khalid Shaykh Muhammad planned to use to smuggle explosives into the United States; Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks [redacted]. Khalid Shaykh Muhammad’s information also led to the investigation and prosecution of Iyman Faris, the truck driver arrested in early 2003 in Ohio.”
The man identified by the CIA inspector general as “Saleh Almari, a sleeper operative in New York” who KSM supposedly gave up to his interrogator appears, in fact, to be Ali Saleh Kahlah al-Marri, who was arrested on Dec. 12, 2001, in Peoria, Ill., a year and a half before KSM was captured.
I’ve written extensively about al-Marri, an Al Qaeda sleeper agent that the FBI picked up shortly after September 11, 2001. His arrest had nothing to do with KSM’s statements. This was FBI agents doing police work like we would hope they do. His indictment for credit card fraud and lying to federal agents may not be prosecution for conducting a terrorist attack, but that’s okay — if you can bust him on something else before he blows up a building, then it’s a win all around. Terrorism inherently breaks laws, and prosecuting aspiring terrorists for those crimes neutralizes them.
We Need a New Church Committee
The Church Committee was a post-Watergate congressional committee that investigated allegations of lawbreaking by the executive branch, including the CIA and FBI. The committee’s report was incredibly important in helping the public understand the depth and breadth of Cold War lawlessness during the previous three decades. When Cato asked me to pen the chapter on electronic surveillance in this year’s edition of the Cato Handbook on Policy, I included a recommendation that Congress should launch a modern-day successor to the Church Committee.
In the last few months, I’ve been pleased to see that people smarter than me have been having the same idea. The latest is the Nation’s Chris Hayes, who has a great cover story calling on Congress to launch a wide-ranging investigation of executive branch lawbreaking.
We have lots of evidence that members of the Bush administration broke laws related to torture, wiretapping, and the Patriot Act. But because these reports are based on press reports and heavily-redacted Freedom of Information Act requests, we don’t know the full nature and extent of these crimes. Given that Barack Obama has fallen short of the transparency pledges he made during the campaign, Congress is likely the only institution in the United States with the resources and the political clout to produce a complete accounting of the civil liberties abuses of the last three decades.
I think the most important point Chris makes is this one:
Read the rest of this post →Since the committee began in the wake of Nixon’s resignation and revelations about his deceptions, abuses and sociopathic pursuit of grudges, Church and many Democrats had every reason to believe they would be chiefly unmasking the full depths of Nixon’s perfidy. Quickly, however, it became clear that Nixon was a difference in degree rather than a difference in kind. Kennedy and Johnson had, with J. Edgar Hoover, put in place many of the illegal policies and programs. Secret documents obtained by the committee even revealed that the sainted FDR had ordered IRS audits of his political enemies. Republicans on the committee, then, had as much incentive to dig up the truth as did their Democratic counterparts.
Argentina Decriminalizes Personal Drug Consumption
Following in Mexico’s footsteps last week, the Supreme Court of Argentina has unanimously ruled today on decriminalizing the possession of drugs for personal consumption.
For those who might be concerned with the idea of an “activist judiciary,” the Court’s decision was based on a case brought by a 19 year-old who was arrested in the street for possession of two grams of marijuana. He was convicted and sentenced to a month and a half in prison, but challenged the constitutionality of the drug law based on Article 19 of the Argentine Constitution:
The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.
Today, the Supreme Court ruled that personal drug consumption is covered by that privacy clause stipulated in Article 19 of the Constitution since it doesn’t affect third parties. Questions still remain, though, on the extent of the ruling. However, the government of President Cristina Fernández has fully endorsed the Court’s decision and has vowed to promptly submit a bill to Congress that would define the details of the decriminalization policies.
According to some reports, Brazil and Ecuador are considering similar steps. They would be wise to follow suit.
Kristof on the Drug War
New York Times columnist Nicholas Kristof cites the Cato report about Decriminalization of Drugs in Portugal by Glenn Greenwald. Here’s an excerpt:
Above all, it’s time for a rethink of our drug policy. The point is not to surrender to narcotics, but to learn from our approach to both tobacco and alcohol. Over time, we have developed public health strategies that have been quite successful in reducing the harm from smoking and drinking.
If we want to try a public health approach to drugs, we could learn from Portugal. In 2001, it decriminalized the possession of all drugs for personal use. Ordinary drug users can still be required to participate in a treatment program, but they are no longer dispatched to jail.
“Decriminalization has had no adverse effect on drug usage rates in Portugal,” notes a report this year from the Cato Institute. It notes that drug use appears to be lower in Portugal than in most other European countries, and that Portuguese public opinion is strongly behind this approach.
A new United Nations study, World Drug Report 2009, commends the Portuguese experiment and urges countries to continue to pursue traffickers while largely avoiding imprisoning users. Instead, it suggests that users, particularly addicts, should get treatment.
Senator Webb has introduced legislation that would create a national commission to investigate criminal justice issues — for such a commission may be the best way to depoliticize the issue and give feckless politicians the cover they need to institute changes.
Good stuff. Read the whole thing.
“If You’re Not Having Fun Advocating for Freedom, You’re Doing it Wrong!”
The health care debate has catalyzed a wonderful national clash of cultures centering on freedom versus control. Here’s one example that’s both complex and delightful.
Progressive site TalkingPointsMemo ran a story yesterday about a man named “Chris” who carried a rifle outside an event in Phoenix at which President Obama appeared. “We will forcefully resist people imposing their will on us through the strength of the majority with a vote,” Chris said.
To many TPM readers, this kind of thing is self-evidently shocking and wrong: Carrying a weapon is inherently threatening, Second Amendment notwithstanding. And vowing to resist the properly expressed will of the majority—isn’t that an outrageous denial of our democratic values?
Well, … No. Our constitution specifically denies force to democratic outcomes that impinge on freedom of speech and religion, on bearing arms, and on the security of our persons, houses, papers, and effects, to name a few. Our constitution also tightly circumscribed the powers of the federal government. Those restrictions were breached without abiding the supermajority requirements of Article V, alas.
There are many nuances in this clash of cultures, and it’s fascinating to watch the battle for credibility. One ugly issue is preempted rather handily by the fact that Chris is African-American.
Next question, taken up by CNN: Was the interview staged? Hell, yeah! says Chris’ interviewer. And they know each other—big deal.
Finally, they were laughing and having a good time. Isn’t this serious? Yes, it is serious, says Chris’ interviewer, but “If you’re not having fun advocating for freedom, you’re doing it wrong!”
It’s a great line—friendly, in-your-face advocacy that might just succeed in familiarizing more Americans with the idea of living as truly free people.
Today Talking Points Memo is charging that the man who interviewed Chris was a prominent defender of a militia group in the 90s, some members of which were convicted of crimes. I know nothing of the truth or falsity of this charge, and I had never heard of the militia group, the interviewer, or his organization before today.
This struggle over credibility is all part of the battle between freedom and control that is playing itself out right now. It’s an exciting time, and a chance for many more Americans to learn about liberty and the people who live it.
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Citizens United and False Consciousness
The Washington Post offers a brief item this morning on the upcoming Citizens United reargument. Robert Barnes writes, “The court is considering whether to overturn its previous decisions that restrict unions and corporations from using their general treasuries to influence election campaigns.”
Actually, a better description of the case would be: the Supreme Court is considering overturning decisions that restrict corporations from using their general treasuries to try to influence election campaigns.
In the most important decision at issue, Austin v. Michigan Chamber of Commerce, the latter organization wished to run an advertisement naming a candidate and supporting his views on economic policy. That ad may have convinced some voters. It may have repelled others. Many voters would not have been moved at all. Whatever influence the ad might have had would have depended on its reception among the voters.
Many people would like to see Austin affirmed. Absent restrictions on corporate issue spending, they say, business would have too much influence on policymaking. But the Supreme Court said in Buckley v. Valeo (and more recently) that restricting speech in the name of equality violates the First Amendment. Others see corporate spending as a kind of corruption and thus subject to the restrictions of campaign finance law. But if Austin falls, corporations will not be able to give candidates contributions in exchange for favors. They will be able to fund speech independently of campaigns and parties.
In truth, I think many people who support proscribing corporate spending in campaigns believe speech by business is “bad speech” that will make for bad policies. But “prior restraint” of speech clearly violates the First Amendment. Voters, and not censors, are supposed to decide what constitutes “bad speech” and “bad policy.” The fear of corporate speech often reflects a fear that voters will be persuaded by business interests to endorse candidates and policies that are not in the interest of the most voters. But coercion to preclude false consciousness is not compatible with the foundations of a liberal republic, the form of government ordained by the U.S. Constitution.
So the Court may well let corporations and labor unions try to influence elections. Voters will decide whether such organizations actually do influence elections.
Here’s a video produced by Cato’s Caleb Brown and Austin Bragg following the oral argument of Citizens United (and featuring Yours Truly):