Saturday, May 15, 2010

Some reasons why you shouldn't be surprised

As everyone knows, Barack Obama has nominated US Solicitor General Elena Kagan to the Supreme Court - nominated, that is, a woman with a disturbingly broad notion of executive authority any time the magic phrase "terrorism" or "national security" is invoked.

I just said we shouldn't be surprised he nominated a person with such views. Here are some recent reasons why:

Just a month ago, on April 15, federal prosecutors indicted Thomas Drake, a former senior executive at the National Security Agency, on charges of lying, obstruction of justice, and "willful retention" of classified information. He faces up to 35 years in prison.

His actual crime? He was, apparently, a whistleblower who blew the cover off massive mismangement and bungling at the NSA, including in its secret, massive, and illegal warrantless wiretapping program.
The indictment suggests the Obama administration may be no less aggressive than the Bush administration in pursuing whistleblowers and reporters’ sources who disclose government secrets. In a little-noticed case last December, a former contract linguist for the F.B.I., Shamai Kedem Leibowitz, pleaded guilty to leaking five classified documents to a blogger.
(It's unclear what the documents in that case relate to, but the Threat Level blog at suggested it had to do with the revelation that Rep. Jane Harman had been heard on a legal [amazingly enough] NSA wiretap "engaging in a quid-pro-quo conversation with an Israeli agent" and the charge that the Bush DOJ declined to prosecute in order to secure her on-going support for the NSA's warrantless domestic spying. And while it's not proof of anything, I admit to finding it suspicious that what the story about Leibowitz and possibly Harman revealed was immediately swamped by not actually irrelevant but still distracting, change-the-subject type questions regarding how he could have gotten the security clearance he had.)

DOJ assistant attorney general Lanny Breuer defended the charges against Drake, asserting that "national security demands" that any disclosure of classified information "be prosecuted and prosecuted vigorously." Meanwhile, Lucy Dalglish of the Reporters Committee for Freedom of the Press said the indictment would and is intended to have a chilling effect but added that it was "encouraging" that prosecutors do not appear to have subpoenaed any reporters.

She shouldn't have been so sanguine: Less than two weeks later, federal prosecutor William Welch subpoenaed New York Times reporter James Risen to reveal his sources for the account in his 2006 book State of War about a CIA attempt to infiltrate Iran's nuclear program that may have wound up giving Iran important information about how to build a nuclear bomb. Risen fought a previous subpoena issued by the Bush DOJ until it expired. What's important to note here is that according to department rules, Attorney General Eric Holder must have personally signed off on this one.

About 10 days after that, TPMMuckraker discussed how
[t]he Obama Administration is applying an old exception to the Miranda rule in a new way in order to interrogate terrorism suspects before reading them their rights....
At issue is the "public safety exception," a carve-out from Miranda rules created by a Supreme Court decision in 1984. Under that exception, police may "ask questions reasonably prompted by a concern for the public safety." Information obtained is admissible at trial. The thing is, it's supposed to refer to issues of immediate safety. As explained by Todd Foster, a criminal defense attorney and former FBI agent and federal prosecutor,
You're typically looking at something that's done at the instance of arrest for a very short period of time - just a couple of questions: "Where's the gun?" "Do you have anything sharp in your pocket?" Not like, "Let's go through your pawn shop receipts for the last weeks."
In fact, in the 1984 case that created the exception, the question was, quite literally, "Where's the gun?" An accused rapist, described as armed, was tracked to a grocery story where the arresting officer noticed the suspect had an empty holster.

However, the Obama DOJ has expanded that meaning and that understanding to the point where, at least as soon as the word "terrorism" is even whispered, Miranda all but ceases to exist: Umar Abdulmutallab was questioned for nearly an hour before being read his rights; in the case of Faisal Shahzad it was three or four hours.

Claiming that sort of time frame for the public safety exception appears to be unprecedented - as does the open public embrace of that expansive reading by the administration.
At a Senate hearing Thursday[, May 6], Attorney General Eric Holder addressed the use of the exception in an exchange with Sen. Diane Feinstein (D-CA)

"There are exceptions to Miranda and that is one of the ways in which we conduct our interrogations of terrorism suspects, it's what we did with Abdulmutallab, it's what we did with Shahzad," Holder said.

As Holder went on to note, the Supreme Court ... has never laid out how long questioning can last under the exception.
And last Sunday, the administration went for the gold. Appearing on "Meet the Press," Holder invoked the magic incantations of "terrorism" and "flexibility" to propose that Congress enact legislation carving out a broad new exception to Miranda which would essentially render it meaningless. In response, Sol Wachtler, professor of constitutional law at Touro Law School and the former chief judge of the New York Court of Appeals, the very man who wrote the appeals court decision that became the public safety exception to Miranda, said yesterday that to do as the administration wants
would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination.
But that prospect doesn't seem to worry the BO crowd. So, it appears, anything goes (including the Constitution out the window) as far as they are concerned. And if you're still trying to convince yourself this is all 11-dimensional chess, I commend to you the words of Prof. Jonathan Turley:
Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that [retiring Supreme Court justice John Paul] Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.
One last thing: I want no responses that in any way translate to "Oh, you'd rather McCain won." Because the answer is "At least then all this would not be largely enveloped in our collective silence."

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