13.5 - For the Record: Amnesty International says US not safe for refugees

For the Record: Amnesty International says US not safe for refugees

Now for one of our occasional features. It's called For the Record and it's where we run through a few items very quickly, devoting only a few sentenced to each because it's something we can't spend a lot of time on but still wanted to be sure it was mentioned.

So For the record...

...while Canada will continue its current policy of accepting asylum seekers crossing illegally from the United States, it will also continue to honor the Canada-U.S. Safe Third Country Agreement, which requires it to turn back refugees if they make asylum claims at Canadian border crossings with the US.

However, Amnesty International and other groups are calling for Canada to abandon the agreement, arguing the United States is not safe for refugees.

This is how we look to the world now.

Inch by inch...

Sometimes it seems that this is the only bright spot in the future. So with, I freely note, credit where it's due, I'm glad to be able to report that

[t]he United Nations endorsed the rights of gay, lesbian and transgender people for the first time ever Friday, passing a resolution hailed as historic by the U.S. and other backers and decried by some African and Muslim countries.

The declaration was cautiously worded, expressing "grave concern" about abuses because of sexual orientation and commissioning a global report on discrimination against gays.

But activists called it an important shift on an issue that has divided the global body for decades, and they credited the Obama administration's push for gay rights at home and abroad.

Like I said, credit where it's due.

The vote was close - 23 in favor, 19 against - amid the usual railings about "unnatural" rights and there is no enforcement mechanism, but

it also established a formal U.N. process to document human rights abuses against gays, including discriminatory laws and acts of violence. According to Amnesty International, consensual same-sex relations are illegal in 76 countries worldwide, while harassment and discrimination are common in many more.

Perhaps most important, it is, in the words of Deputy Assistant Secretary of State Daniel Baer, a sign to all the bigots everywhere that "change will come." Not soon enough, but it will come.

A rambling meditation about power

A few posts down I made what I said I expected to be my only comment on Anthony Weiner. That's still true except that it got me thinking about something I've thought about before, a sort of recurring philosophical theme for me: power. Power in this case not in the sense of who has it and who doesn't but in the sense of the psychology of power, how we experience and relate to power from both sides of the powerful-powerless divide.

What really prompted this was the case of Dominique Strauss-Kahn, the now-former head of the IMF who was arrested for sexual assault in New York. In the wake of the arrest, a number of people asked, in one form or another, why does this keep happening? Never mind whether Strauss-Kahn is himself guilty or not, there are more than enough proven cases of powerful people - the vast majority men - physically or sexually exploiting, abusing, even assaulting, those over who they have some authority or who are otherwise perceived to be in a "lesser" position. "Why? Why do they do it?" people asked.

Very frequently, the answer, the simple, bold, cold, answer came back: Because they can. Because they think they can get away with it. Because they think their position will protect them. Because no one ever tells them "no."

Because they can.

It was Lord Acton who said, in it's popular form, "Power corrupts, and absolute power corrupts absolutely." Over the years, psychologists have performed literally hundreds of experiments testing the concepts of power and its exercise and overwhelmingly they have come to the same conclusion Lord Acton did: Power corrupts.

Writing in his "Frontal Cortex" column at Wired last summer, Jonah Lehrer noted that

[a]ccording to psychologists, one of the main problems with authority is that it makes us less sympathetic to the concerns and emotions of others. For instance, several studies have found that people in positions of authority are more likely to rely on stereotypes and generalizations when judging other people. They also spend much less time making eye contact, at least when a person without power is talking.

That is, the very experience of having power removes us from connection with others. Put another way, power undermines empathy. It's a state that social psychologist Deborah Gruenfeld calls "disinhibition," which

involves acting on your own desires in a social context without considering the effects of your actions. It implies a heightened sensitivity to your own internal state and also a reduced sensitivity to other’s interests and experiences.

This was illustrated in a series of experiments done two years ago by Joris Lammers (Tilburg University, the Netherlands) and Adam Galinsky (Northwestern University, Illinois).

Without getting too bogged down in procedural details, in the first they divided a group of volunteers in half and "primed" one of those halves to feel more powerful than they normally would and the other to feel less powerful than normal. They then divided each of those groups in half and swapped one of those halves. So now you've got two groups, each of which have half "high-power" and half "low-power" members.

They asked the first group to rate on a scale of 1 to 10 how morally objectionable it would be for others to over-report travel expenses at work - that is, to pad their expense account.

The high-power members thought that was significantly more immoral than the low-power members did. That is, they seemed to be taking the more moral position.

However -

Each member of the second group played a dice game that would produce a score between 1 and 100 with an average of 50. They then self-reported the score to the experimenters. The higher your score, the more chances you got in a small lottery to be held at the end of the experiment, so the higher your score, the greater potential for gain.

The members of the low-power group reported an average score of 59. They were likely fudging a little. Those in the high-power group, by contrast, reported an average score of 70, which is so far removed from the expected average that the likelihood of this happening by chance was extremely small. The high-power group, to put it simply, cheated.

What this indicated is that high-power people judged others more harshly but themselves more leniently and what was objectionable to them when done by others was significantly less so when done by themselves. The attitude seemed to be "It's okay for me but not for you."

Power corrupts.

To test their finding more directly, Lammers and Galinsky ran a second test on a different group of volunteers. Divided, "primed," and reorganized the same way as before, the first of these groups was asked how acceptable or unacceptable it was for someone else to break the speed limit if they were late for an appointment and also how acceptable/unacceptable it would be for they themselves to do it.

For the high-power people, it was worse if others did it than if they did it themselves; again, they judged others' behavior more harshly than their own. The low-power group judged themselves and others the same.

The other group was asked a similar question about fudging on your tax return. Yet again, the high-power people were like "if you do it, it's bad; me, not so much." Interestingly, in this case the low-power people said it was worse, i.e., more immoral, for themselves than for others: They judged others more leniently than themselves. What remained consistent, though, was the sense of the high-power members that it was acceptable for them to do things which were not acceptable for others.

Because power corrupts.

So the pair of researchers did a third, more subtle version. In this one, they "primed" four groups: a high-power group whose members felt they were in such a position legitimately, another high-power group but one whose members felt they shouldn't have gotten that power (that is, the power was "illegitimate") , and the two associated low-power groups: one "legitimately" so and one "illegitimately" so.

In this case, the description of the experimental question wasn't clear to me, but as best as I understand it, the scenario was this: You find a bike lying around. You need a bike. How objectionable or unobjectionable is it for you to take the bike for yourself and keep it, rather than bringing it to the police in hopes that the real owner can be found? How about if someone else did it, that is, kept the bike?

Not only did both low-power groups find it more objectionable (more immoral) for they themselves to keep the bike than for others to do so, the "illegitimate" high-power group did as well. But "legitimate" high-power group found it to be significantly more objectionable for others to keep that bike than for they themselves to. Once more, it was "I can do what you can't; I can behave in ways you can't."

Because power corrupts.

Drs. Lammers and Galinsky

argue, therefore, that people with power that they think is justified break rules not only because they can get away with it, but also because they feel at some intuitive level that they are entitled to take what they want. ... If [the researchers] are right, the sense which some powerful people seem to have that different rules apply to them is not just a convenient smoke screen. They genuinely believe it.

Because power corrupts.

You want a real-world example? Try tasers. As too many have forgotten (to the point where I have had taser-lovers actively deny it), they were originally pitched as an alternative to firearms, as weapons that could be, would be, used in situations where otherwise guns would have been.

Well, I have written about these contemptible things a number of times but even the very first time, over seven years ago, I predicted they would be abused:

The infliction of pain, sometimes intense, to "secure compliance" - better described as meek and unquestioning obedience - is well-established practice among police forces everywhere. With the increasing availability of tasers ... will come the increasing temptation to use them routinely, no longer in lieu of lethal force but in lieu of persuasion and patience, no longer against someone posing a physical threat but against someone giving "a hard time," no longer for protection but for dominance.

And we have seen exactly that in the years since. That has come exactly true.

We have seen children as young as six tasered. We have seen unarmed grandmothers tasered. (In fact, Amnesty International has determined that 80-90% of those tasered were unarmed.) We have seen people in wheelchairs tasered. We have seen severely mentally handicapped people tasered. We have seen people already arrested, already in handcuffs, tasered. We have seen people holding babies tasered. We have seen people tasered for running onto a baseball field. We have seen people tasered repeatedly for not obeying a cop's order quickly enough. We have seen people tasered for nothing more than being frightened. We have seen people being threatened with being tasered for nothing more than arguing with a cop.

And we have seen hundreds die.

The fact is, police have shown they cannot be trusted to use tasers in the way and for the limited purpose for which they were originally pitched and marketed. They cannot be trusted to not use tasers "routinely, ... no longer for protection but for dominance."

Because, dammit, power corrupts! And anything and everything we do with regard to social policy has to keep that in mind. Power corrupts.

Footnote: In considering the people who demanded higher morality of themselves than others. Drs. Lammers and Galinsky coined the term "hypercrisy." They suggested that the results were a product of seeking to avoid the possibility of punishment.

Personally, I think they are wrong. I think, rather, that the experience of low power has the opposite effect of that of high power: It increases empathy. So for example in the case of the bike, low-power respondents were thinking "It would be wrong of me to keep the bike - but someone else, well, you know, maybe they really needed a bike, so maybe, I dunno, maybe that wouldn't be so bad."

Justice = Just Ice

Tomorrow night, September 23, Teresa Lewis is to be legally murdered by the state of Virginia, becoming the first women to be executed in the US in five years. Last week, Virginia Governor Bob McDonnell denied a clemency request and today, the Supreme Court denied a stay.

This is happening despite Lewis having an IQ of 72, despite having plead guilty (which usually is an opening for some compassion on the part of officialdom), despite evidence she was emotionally manipulated by "a dominant male co-defendant," and despite the fact that her two male co-defendants, who actually pulled the triggers, were sentenced to life in prison rather than death.

This comes just a month after Troy Davis failed to convince a skeptical judge that he had met the impossibly high standard of presenting "clear and convincing evidence" of his "actual innocence" of a 1991 murder and thus failed to get his conviction and subsequent death sentence overturned - a conviction based solely on the testimony of prosecution witnesses, most of who have since said they testified as they did as the result of police coercion. There was no physical evidence introduced and no murder weapon was ever found.

What I just called an "impossibly high" standard was set by the Supreme Court when it sent the case to District Court in Georgia for review in August 2009. While that particular decision was good news for Davis, I noted at the time that it also

points up a dreadful, shocking, moral hole at the core of how we now deal with capital crimes....

[F]or Davis's petition to succeed, he must be presenting evidence "that could not have been obtained at the time of trial (that) clearly establishes petitioner's innocence." That is the standard [Davis had to meet].

Consider what that means. First, if after the trial you produce new, previously-unavailable evidence that punches holes in the prosecutor's case and clearly establishes reasonable doubt - but which falls short of affirmatively proving innocence - our court system doesn't care. Even in the presence of reasonable doubt, we're going to kill you.

And what if it does "clearly establish petitioner's innocence?" If that evidence could have been obtained at time of trial, if maybe it was there but you just didn't know about it or if maybe you were the victim of incompetent representation, our court system doesn't care. Even if we know you're innocent, we're going to kill you.

Why? Because, our court system says, we don't want to be bothered dealing with this. Death penalty cases are an annoyance, an inconvenience. We're tired of people filing multiple petitions on a single case as people try to avoid being electrocuted or hanged or poisoned or shot. So we're going to set an extremely high, almost impossible, bar: You really get just one shot, the trial. After that, you want reconsideration? You not only have to produce previously unavailable evidence (not previously unintroduced, previously unavailable), but the burden of proof has shifted to you; it's no longer "innocent until proven guilty," it's now "guilty until proven innocent."

Because after all, you're not a person, you're not a life, you're a docket number. And what has justice got to do with legal philosophy?

A year before that, I wrote that

[t]here are lots of good reasons, both practical and ethical, to oppose the death penalty. Lots of unrefuted reasons. And yet still this badge of brutality, this symbol of savagery, stays with us, stays with us because ultimately, that's all the death penalty is about: not justice, not deterrence, but vengeance, bloody vengeance - except that we try to convince ourselves we are too civilized for that and so do our best to eliminate the actual blood. It's all neat, tidy, clean, antiseptic, proper, all according to procedure. We don't even have the honesty to call it vengeance. We call it "retribution."

And as a legal principle we pretend - wait, make that contend - that it's just and fair and proper to electrocute/hang/poison/shoot you even if we know you're innocent so long as all the procedural Is are dotted and Ts are crossed.

As I said on one of those earlier occasions, in Joni Mitchell's song "Sex Kills," she says she saw a license plate and "It said 'Just Ice'/Is justice just ice?/Governed by greed and lust?/Just the strong doing what they can/And the weak suffering what they must?"

The answer is yes.

Footnote: Something else I mentioned one of those earlier times was that Antonin Scalia, writing in dissent of the Court's decision to provide review for Troy Davis, said “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” And he's right - SCOTUS has never held that it's unconstitutional to knowingly execute an innocent person provided certain procedural formalities have been observed. Ponder that for a while.

Another Footnote: Some good sources of info on the death penalty are the Death Penalty Information Center, the National Coalition to Abolish the Death Penalty, The Innocence Project, and the death penalty project of Amnesty International.

Another way good liberals prove they're not DFHs

On "Countdown" on Tuesday, Keith Olbermann made Hugo Chavez the bronze winner of the "Worst Person in the World" competition. The basis? Chavez has taken to Twitter. This, apparently, is supposed to be inherently hilarious because of Chavez's (well-deserved) reputation for verbosity.

But why, you ask, a "Worst Person" award for it, a dishonor generally reserved for people who have done something either offensive or foolishly outrageous? The idea of Hugo Chavez limiting himself to 140 characters at a time may be amusing, but offensive? Outrageous?

Ah, you're missing the point. It wasn't that Hugo Chavez being on Twitter is offensive or outrageous - it's that it's Hugo Chavez. And his being on Twitter wasn't the actual point; rather, it was to gave KO the opening to describe Chavez as, his exact words, "quote President unquote of Venezuela" and "Comandante Chavez."

That is, his being on Twitter was just the excuse to indulge in a little Chavez-bashing, a little demonizing, something in which all good liberals engage from time to time to prove that they really are "serious" observers who haven't strayed too far from the foreign policy consensus and their disagreements, where they exists, arise more over matters of effectiveness and advisability, not from any fundamental difference in philosophy and certainly not from any questions about basic moral principles. And doggone it, to prove they are totally unbiased because they will criticize leftists!

They do it to show, that is, that they are not, absolutely not, DFHs.

Now, there certainly are grounds on which Chavez can be criticized - more on that shortly - but quite bluntly, the legitimacy of his position as president is not among them. He was elected in 1998, then elected again in 2000 under a new Constitution with 56% of the vote, giving him a six-year term. He survived a military coup (which the US endorsed and blamed on him) in 2002 and defeated a recall referendum in 2004, gaining 58% of the vote that time. In 2006 he was elected to a second six-year term with 63% of the vote. These votes have been conducted under the watchful eyes of international observers, such as The Carter Center, who have concluded that they were free and fair - something which even his opposition ultimately had to admit.

Regardless of what you think of him or his policies, Hugo Chavez is the president of Venezuela. He's no more "quote president unquote" than Shrub was - and considering our the 2000 election, he's a hell of a lot less "quote president unquote" than Shrub was for the first half of his presidency.

He is not the first to wear the mantle of "the leftist who liberals find it politically convenient to make a point of saying they hate," but he is one of the longest-lasting. So the good liberals will bash him, make him their convenient whipping boy, just to show how truly American they are.

They will, for example, decry his "increasingly authoritarian" rule, which, I said not quite six years ago now,

always seems to be "increasing" but never seems to actually get to being authoritarian.

Still, it is true that there are legitimate criticisms of Chavez that can be made in the area of civil liberties, but they do not arise from his being some "Comandante" or autocrat or the "would-be-dictator" of liberals' imaginations, but from the nature of social revolutions, revolutions which have a dark side that can emerge if you're not watchful. As an example of the idea, speaking of Jesse Jackson in a letter in August 1988, I wrote that

Jackson sees himself ... as the embodiment of a movement, the physical expression of a certain idealism, who’s working through the Democratic Party as a vehicle for that movement. ... [A] couple of years ago I was concerned that Jackson was developing a Messiah complex, starting to equate his personal advancement with that of the causes he espoused and represented. It’s a risk that any leader runs, especially one as overtly ambitious as Jackson.

I raised a similar concern about Chavez himself nearly three years ago: Discussing an article in "Time" magazine, I noted it said that Chavez's revolution has a weakness: "Its inordinate dependence on Chavez, its one-man-show aspect. If he were to leave the scene, there's a feeling the whole revolution would unravel tomorrow."

I argued that the article overstated the case,

but in a longer view, that is not an irrelevant concern. Rather, it is a risk run with any movement, with any attempt at dramatic change: the possibility of its turning, however unintentionally, into a personality cult that can't survive the symbol. The result is that both leader and supporters come to equate the benefit of the leader with that of the movement as a whole, and the leader who starts saying "they need me" more often and with more emphasis than "I need them" is starting down a road that may in the longer term undermine what they set out to achieve.

Venezuela is not at that point and is not close to that point - but it is not so distant from it that it can't be made out on the horizon.

I believe that condition, one of Venezuela not being an authoritarian state but still the idea of it developing into one not lying outside the range of possibility, remains true today. Yes, I am well aware of Chavez's recent aggressive and ominous moves against some opposition outlets; however, the fact is that opposition media seems always to survive and even thrive despite repeated reports of "the last anti-Chavez" whatever it was that time "being forcibly shut down."

The greater risk, I think, lies in two other developments: One is Chavez's success in winning a referendum eliminating term limits for elected officials, including the president. He pushed for it on the grounds that he needed "10 more years" to complete the work he started. That not only speaks to the "one-man-show" weakness but hints at another movement starting to equate the leader with the movement itself, always a risky prospect. The other, related risk, arises from the increasing evidence of corruption and cronyism in his administration, which is another sign of a movement with leaders who have become too self-referential.

I believe that Hugo Chavez genuinely believes in his social revolution. I believe he is truly interested in giving the poor a power and a voice which they have never had before. I believe he genuinely wants to cut poverty, to improve education, to feed the hungry. But to the very extent that the revolution becomes about him, to the very extent that there is no structure, no movement that exists independently of him and so will survive him, to that very same extent he will in the long run fail while possibly turning into precisely that of which his enemies accuse him in the process. And that, especially considering what he and his movement have both achieved and survived, would be a very great shame.

What's old is new, again

Updated The so-called "state secrets privilege" is a McCarthy-era legal principle that enables the government to shut down suits challenging government actions on the grounds that pursuing the claim would require the release of information that would harm national security. Courts were not required to accept the assertion but they usually "deferred to the executive branch on such matters" and dismissed the suit even when the government had failed to back up its claim of harm to national security, even when the government refused to back up its claim, which it often did.

The Shrub gang invoked the privilege to an unprecedented degree: Between 1953 and 2000, forty-seven years, the privilege was invoked 65 times. Between 2001 and the middle of 2007, six and a-half years, it was invoked 39 times. As a result, it was one of the things candidate Obama pledged to "change."

After what seems like quite a long wait, the Obama administration has finally released its new policy on the use of the "state secrets privilege." Take it away, ACLU:

The thrust of the new rule: [Attorney General Eric] Holder must approve any invocation of the privilege.

Well, that’s not much different from the Bush administration’s policy, which was to invoke the privilege at the outset, before the case even got its foot in the courthouse door.

Ben Wizner of the ACLU's National Security Project, lead attorney in two cases challenging the CIA’s use of "extraordinary rendition," added:

On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration and to demand that federal courts throw out lawsuits filed by victims of torture and illegal surveillance.

Tom Parker, counter-terrorism and human rights policy director for Amnesty International USA, felt much the same way:

While this new policy sounds like an improvement in principle[, he said], it is patently at odds with the way the Justice Department has fought tooth and nail against litigation requests over the past eight months.

Now, yes, on paper it is a step forward. For one thing, it centralizes the authority to invoke the privilege in the Attorney General, advised by a team of DOJ lawyers. For another, it somewhat tightens the standard required from "harm" to national security to "significant harm." It also says the privilege can't be used to hide violations of law, bureaucratic foul-ups, or things that are merely embarrassing and that along with a motion to invoke the privilege, DOJ is supposed to attach a list of reasons, something often not done previously.

However, there are still some serious shortcomings. One is the last item in the memo, which reads:

This policy statement is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That's pretty much bureaucratic boilerplate, but the fact is what it really says is that "this is our policy, but if we ignore our own policy and violate our own declared procedures, tough shit, ain't nothin' you can do." Which points up the bigger problem: This is policy. It is not law. It's what the administration says it will do but it's not what it's required to do. And it can be changed at any time by a future administration - or, in fact, by this one. What's more, it's very likely the whole business of setting a new policy, from announced intention to release, was undertaken to head off binding legislation.

Last February, Obama invoked the state secrets privilege in a Bush-era case involving extraordinary rendition. The next day, bills were introduced in both the House and Senate to restrict and regulate use of the privilege. In response, the White House promised to "review" the practice and come up with a new policy. What came out on Wednesday tracked the bills fairly closely - but with two serious shortcomings: One, there is no way a White House policy could require judges to actually consider the justifications for invoking the privilege the White House would submit; two, again and related, it does not have the force of law, a force that can require the White House to stick to the standards and require judges to consider the submitted justifications before ruling.

But beyond all that, ultimately, as the saying goes, actions speak louder than words - and it's hard to have much faith in this policy when

[t]he Obama administration said Wednesday that it would maintain President George W. Bush’s state secrets position when it came to lawsuits leftover from that administration.

True to its word,

[s]ince February, a Justice Department task force of eight lawyers has been sifting through about a dozen pending cases in which state secrets arguments have been made.

So far, they have reversed course in only one lawsuit - a bizarre case in federal court in the District in which a former agent for the Drug Enforcement Administration accuses the State Department and the CIA of installing listening devices in a coffee table in his home.

Indeed, just hours later, just hours after releasing the memo with the new policy, the administration was in US District Court in San Francisco again invoking the state secrets privilege in an attempt to have a case dismissed.

This case is the one commonly known as the al-Haramain case as it involves illegal warrantless surveillance on the now-defunct al-Haramain Islamic Foundation. Two lawyers for the group

allege some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were based on classified documents the government accidentally mailed to the two,

which would seem to be pretty damn good evidence. However, in June, District Court Judge Vaughn Walker ruled in favor of a government claim that the documents are state secrets and found that the lawyers must make their case without reference to them.

(Savor that for a moment, as it is indicative of the bizarre netherworld of the national security state: Even though the lawyers have seen the documents, the court has seen the documents, and the government has seen the documents, they all must now act as if those documents don't exist. And the government can and did argue that the plaintiffs have no standing to sue because they can't prove they were surveilled - even though everyone involved knows for an absolute fact that they were because they have seen the documents that prove it.)

Walker did, however, say from the bench on Wednesday that the public record may suffice to prove the lawyers' case. But that is clearly not the point here. The point is that the Obama administration, presented with an obvious opportunity to reject an inane invocation of the privilege - inane because the parties have already seen what is supposed to be too secret to reveal - has refused to do so, preferring secrecy to sanity and presidential authority to public accountability.

(And please don't give me anything about scheduling and not enough time or any other crap - Holder, obviously knowing full well the memo was coming, could have told the US attorneys in the case to request a continuance so that the government could "reconsider its position regarding the state secrets privilege in this case in light of this new policy." Don't think for a second the plaintiffs, presented with the possibility of getting their denied evidence back, would have objected or the court would have refused.)

So let's sum up: In order to head off legislation, the Obama administration has adopted what amount to self-imposed voluntary limitations on the use of the notorious and often-misused state secrets privilege while it continues to invoke the same privilege in existing cases even though in those cases it was invoked under the old, somewhat weaker standards, the very practice candidate Obama called a "problem" that needed "change" - and, based on its record (one reversal in "about a dozen" reviewed cases), gives little indication that the new standards will significantly change practice.

I admit that in the area of secrecy and national security I have very little trust in the Obama White House - and, I think, with good reason. Even given that, I am unimpressed. At this point, neither words nor policy memos will move me. I want to see deeds. Until I do, I will remain unimpressed and distrustful.

Footnote: Filed under the heading of "Ummm, huh?" comes this from Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican and a member of its terrorism subcommittee, who called the policy "a promising development" because, he said, it keeps authority in the executive branch. He went on to say:

The privilege has been asserted judiciously and in a manner appropriately designed to protect our nation and its most vital classified information and programs. Simply put, legislation designed to curtail the use of this important privilege is unnecessary.

Aside from confirming that the purpose of issuing the policy was to head off binding legislation, since the information remains secret, um, just how would Sessions know the privilege has been "judiciously and appropriately" invoked?

Another Footnote: I like to mention this whenever the subject of the state secrets privilege comes up, especially in light of the memo's declaration, right at the top of page 2, that

[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the Unites States government....

The very source of the state secrets privilege, the very reason the government sought to create it, was to conceal precisely that sort of government misconduct. It was built on lies, on labeling as vital national security secrets what turned out to be an accounting of inefficiency and sloppy maintenance that lead to the 1948 crash of a B-29 and the deaths of three RCA employees. And I see no reason so far to expect a radically different sort of intellectual purity from the Obama administration on national security and secrecy matters.

Updated to note that Dan at Pruning Shears makes some additional points on this, including some additional relevant links, here. A good point he mentions, which I didn't address, is about how this brings up the need for a process for automatic declassification.

The dark side of good news

You likely have seen the news from the other day about the case of Troy Davis, who has been on death row for 18 years after being convicted of killing a cop 20 years ago.

Information that has come out in the time since has cast serious doubt on his guilt. That information includes the fact that seven of nine witnesses have recanted their testimony and the claims of three other witnesses who didn't testify at the trial that someone else (specifically, the state's star witness) was the actual shooter.

The case has attracted worldwide attention, with calls to stop Davis' execution from former President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize-winner Desmond Tutu,

along with Amnesty International, which called the case an example of seeking "finality over fairness."

What's happened now is that, citing "the substantial risk of putting an innocent man to death," the Supreme Court has ordered a a federal judge in Georgia to hold a new evidentiary hearing.

No matter your feelings on the particular case, this turn of events should please you if, like me, you oppose the death penalty on moral and practical grounds. However, this very ruling also points up a dreadful, shocking, moral hole at the core of how we now deal with capital crimes, one which, it seems to me, adds urgency to the opposition.

As the Court's ruling acknowledged in its order to the lower court, for Davis's petition to succeed, he must be presenting evidence "that could not have been obtained at the time of trial (that) clearly establishes petitioner's innocence." That is the standard.

Consider what that means. First, if after the trial you produce new, previously-unavailable evidence that punches holes in the prosecutor's case and clearly establishes reasonable doubt - but which falls short of affirmatively proving innocence - our court system doesn't care. Even in the presence of reasonable doubt, We're going to kill you.

And what if it does "clearly establish petitioner's innocence?" If that evidence could have been obtained at time of trial, if maybe it was there but you just didn't know about it or if maybe you were the victim of incompetent representation, our court system doesn't care. Even if we know you're innocent, we're going to kill you.

Why? Because, our court system says, we don't want to be bothered dealing with this. Death penalty cases are an annoyance, an inconvenience. We're tired of people filing multiple petitions on a single case as people try to avoid being electrocuted or hanged or poisoned or shot. So we're going to set an extremely high, almost impossible, bar: You really get just one shot, the trial. After that, you want reconsideration? You not only have to produce previously unavailable evidence (not previously unintroduced, previously unavailable), but the burden of proof has shifted to you; it's no longer "innocent until proven guilty," it's now "guilty until proven innocent."

Because after all, you're not a person, you're not a life, you're a docket number. And what has justice got to do with legal philosophy?

Footnote 1: Antonin Scalia, writing in dissent of the Court's ruling, said “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” And he's right - SCOTUS has never held that it's unconstitutional to knowingly execute an innocent person provided certain procedural formalties have been observed. Ponder that for a while.

Footnote 2: In Joni Mitchell's song "Sex Kills," she says she saw a license plate and "It said 'Just Ice'/Is justice just ice?/Governed by greed and lust?/Just the strong doing what they can/And the weak suffering what they must?"

I think the Troy Davis case and the attitude about the death penalty it points up are evidence for the answer being "yes."

Can you hear me now? Part two

Updated Okay, now for the bigger bit.

On May 15, Barack Obama announced plans to revive military tribunals for some prisoners at Guantánamo Bay. There were some "improved rights" for those facing those excuses for trials, but as Amnesty International said, they still

do not provide an adequate standard of justice for the detainees nor the victims of terrorism - they merely mock the U.S. Constitution, international laws and undermine fundamental human rights standards.

A year ago, Obama branded the military commissions "an enormous failure," but his new tack won praise from such as Mitch McConnell, who called it "an encouraging development," and Reagan administration alumnus David Rivkin, who praised Obama administration members for "coming to their senses."

The administration's defense of its decision included the claim that torture used on detainees "had become an obstacle" to prosecution, which is another way of saying that except for unreliable, torture-induced "confessions," they got bubkes on those people. Another part of the defense seemed less revealing but more odd:

Though some detainees, in so-called clean confessions, admitted to terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard in law enforcement.

Federal courts would likely ban such confessions, lawyers said, and, in some cases, convictions may be nearly impossible without them.

I'm sorry, but seriously, do you think courts are going to throw out non-coerced confessions because the military did not Miranda people? That strikes me much more as an excuse for continuing tribunals, not a reason. (The difference being that a reason comes before the decision and an excuse comes after.)

Odder still, the White House insists that Obama is not going back on his word.

The president "never promised to abolish" military commissions, an administration official said. But Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August.

The Obama crowd seems to have adopted another Bush practice, the "we never actually said the particular word 'imminent'" defense.

According to records at GlobalSecurity.org, there have been nearly 800 people imprisoned at Gitmo, up to 625 at one time. Over 400 of them have been released without charge; about 240 remain today. From the very beginning, all along, right up to the present, we have been told each step of the way that those who remained there were absolutely "the worst of the worst." Then we released some and then some more, while still saying those left were, well, they really were the worst of the worst. But in fact, the record shows that the vast majority of those imprisoned there posed no risk at all.

And no, the bogus reporting that "one in seven" of the prisoners released from Guantánamo "has returned to terrorism" doesn't change that one bit even if the numbers are accurate. Three reasons: One, the word "returned" is wrong; for most of those so accused, the US has no idea if they were involved in anything before they were taken. If they are involved in some anti-US actions now, it could just as well be because of their imprisonment. (Even Elisabeth Bumiller, who wrote the original story, is backing off the word "returned.") Two: The actual phrase was "terrorism or militant activity," the latter of which, undefined, could mean participating in demonstrations, making speeches, even just writing letters. Third, that's a 14% recidivism rate. The recidivism rate for those released from US prisons can reach 68% three years after release. If these people really were terrorists, who tend to be very dedicated, driven, people, you would expect a higher recidivism rate than from civilian prisons, not one one-fifth as large.

Oh, and before it gets away: After all the evidence, all the reports, all the experiences, after the illegal imprisonment, the mistreatment, the torture, the Constitutional violations, the executive-level power-grabbing, how did Obama just characterize Gitmo? As a "failed experiment." Not an outrage, a disgrace, a blot on our national soul, a nail driving into our national conscience, no. A "failed experiment."

Which could to some degree explain some of what happened during his May 20 meeting with representatives of leading civil liberties and human rights groups. It was apparently a nice show but little more; the groups came out of the meeting talking about "a robust exchange" (which sounds much like "a frank exchange of views") and by the next day were charging Obama with "mimic[king] the Bush administration's abusive approach to fighting terrorism" and were failing to find "meaningful differences" between Obama's policies and those of his predecessor.

Apparently, during the meeting

one of the attendees warned the President he was letting George Bush's policies become his own - and that Obama was not pleased by that characterization.

To which I say, tough noogies. If you don't like the comparison, stop making it a good one.

Here's another comparison he won't like: According to Marc Ambinder, writing in The Atlantic, at that meeting Obama asked the civil libertarians

to help his administration draft guidelines for military commissions - lasting guidelines, guidelines that would outlive his administration.

He was blunt; the MCs are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators.

Being equally blunt, the military commissions are nothing but an attempt to guarantee convictions. The position of the Obama administration is, essentially, that if we can convict you in a civilian court, we will - but if we can't, we'll just loosen the rules some and convict you in a military tribunal.

So what he really was offering these human rights advocates was to let them, in effect, paint the barracks in the concentration camps. Help make them look pretty, the better to hide their real purpose. Or, if you prefer and perhaps more accurately, to be the doctors at the torture sessions who salve their consciences by imagining things would be worse if they weren't there - but who actually serve to provide cover for the torturers and so better enable the torture to continue.

I mean, "lasting guidelines?" Just who is he kidding and I include the possibility that among those is himself? What "guidelines" can you lay down that can't be changed by a future administration, a future Congress, once you have established the basic legal principle? It's like the old joke - which I know you've heard but I'm going to lay out anyway - about the man who asks a woman if she'll have sex with him for $100,000.

"Well," she says, "I dunno, but.... Yeah, okay."

"What about for five dollars?" he asks.

Bristling, she snaps "You creep! What kind of woman do you think I am?"

"We've established what kind of woman you are," he replies. "We're just haggling about price."

Obama wants to establish the principle, the principle that opens the door to the sordid, the cruel, the easy, demeaning, judgment, leaving future administrations the ability to, if you will, haggle about the price.

But then, again, at a Congressional hearing last month, Secretary of War Robert Gates said

that there were "50 to 100 [detainees] probably in that ballpark who we cannot release and cannot trust, either in Article 3 [civilian] courts or military commissions." (Brackets in original.)

That is, even under the loosened rules, in some cases you can't guarantee a conviction. What do we do with those people? On May 21, in his speech on civil liberties, Obama answered that question: He intends to

create a system of "preventive detention" for accused Terrorists without a trial, in order to keep locked up indefinitely people who, in his words, "cannot be prosecuted yet who pose a clear danger to the American people."

So what was hinted at before has been made explicit now: Barack Obama wants the power to imprison people indefinitely without charge and without a right to challenge their imprisonment, based solely on his determination that they could in the future commit an act against the United States. White House reps claim this will only be applied to people now at Guantánamo - as if that made a difference - but even they admit that it could be applied against others in the future.

And of course it could. And would. It's hard to believe that something this outrageous could be seriously proposed. Ambinder referred to it as crossing the Rubicon, but a much better comparison would be walking off a cliff. This is a line that once you cross it, if this becomes established as a legal principle, you quite literally cannot go back. It is not possible. And being able to imprison without proof, detain without charge, confine without appeal, this is, again quite literally, the hallmark of tyranny. You can assume the purest of hearts among the Obama team, the very best possible intentions, and it doesn't change a frelling thing unless you can equally guarantee the nobility of every single future administration. And you know damn well you can't.

This is not going forward without opposition, albeit it largely from the expected quarters, and I agree with Greenwald that Rachel Maddow had an excellent piece on the matter. But the bottom line is that what Obama wants to do is unprecedented in our history, an expansion of executive power beyond even what the Shrub gang tried to do. The Bushites wanted to (and did) indefinitely imprison people based on what the president said they had done. Obama wants to indefinitely imprison people based on what the president says they will do. Obama wants to establish the principle, the legal principle, the legal principle that when the president says it, proof is not necessary, evidence is to be damned, the Constitution does not apply - and the crystal ball replaces the courtroom.

Welcome to change.

Footnote: Ambinder said the reference to the human rights groups remaining "outside, as agitators," was "not meant to be pejorative." He claimed "the White House does not give a scintilla of attention to its right-wing critics" but does "read, and will read," criticism from the left.

Obama, according to an administration official, finds this outside pressure healthy and useful.

As well he should - but the claim that the Obama crowd ignores the right but carefully considers the left is utterly laughable.

Updated with a Footnote, Again: While this has been about Obama's policies and proposals about Gitmo, I can't let pass without mention the incredibly stupid and astonishingly cowardly action of the Senate of passing that amendment to the supplemental appropriations bill barring the use of any funds to "transfer, release, or incarcerate any individual who was detained as of May 19, 2009, at Naval Station, Guantanamo Bay, Cuba, to or within the United States." The craven, belly-crawling vote was 90-6.

Durbin, Harkin, Leahy, Levin, Reed, and Whitehouse voted against it; Byrd, Kennedy, and Rockefeller didn't vote. Everyone else said "yes, I'm a spinelesss fraidy-cat."

On the upside, several such amendments have been offered in the House but none seem to be going anywhere. So far, anyway. The question is what happens when the bill goes to conference. House leaders, feeling no such heat from within their own chamber, may be in no mood to take the kind of swing at Obama that the amendment represents - but the Senate did vote 90-6. Still, before the vote there was a lot of whining that the funds were being withheld because Obama hadn't "presented a plan" for the prisoners and so Obama's speech could easily afford Senate leaders an out if they care to use it.

Can you hear me now? Part one

This was going to be one post, but it kept growing so I split it into two parts, one with the short bits and the other with the long bit. So here, a summary of some recent events.

On April 10, the Obama administration said it was going to appeal a district court ruling that said some - not even all, but some - military prisoners in Afghanistan had the right to challenge their detention in court.

The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

The prisoners in question had not been "captured on the battlefield" in Afghanistan but had been shipped there from other places. Is the plan to "close Gitmo, expand Bagram?"

On May 12, the Washington Times confirmed what had been reported in February: The Obama crowd has threatened to withhold intelligence information from the British government if it reveals information about the torture of a former Guantánamo detainee, now free in the UK.

A court filing from the British Foreign Office released recently includes a letter from the U.S. government, identified as the "Obama administration's communication." Other information identifying the U.S. agency and author of the letter appears to have been redacted.

The letter says:

"If it is determined that [her majesty's government] is unable to protect information we provide to it, even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future."

In other words, shut up if you know what's good for you.

(Link via Glenn Greenwald. Sidebar: If you want an insight into some dark recesses of our society, read the comments on the article.)

On May 13, the administration did a 180^o flip-flop and announced it was going to appeal an order to release more photos from Abu Ghraib. The argument was that the release would "inflame anti-American sentiment" - as if it was the photos rather than the actions they depict that angered people - but "add nothing new" - as if it was up to the White House to unilaterally decide what adds to the historical record.

It's worthy of note who praised Obama's abrupt about-face: John Boehner and Lindsey Graham, the latter of who opined that "He's realized the difference between being a candidate and being commander in chief." That is, the boy is learning his place. (And yes, the word was chosen deliberately.)

Graham said that even if the Obama administration ultimately loses in court and the photos are released, "it's good for the troops to know their commander in chief went to bat for them." But - I started to say "stunningly," but I should realize by now that this is only to be expected - the Obamabots are claiming that losing is the intention, that Obama wants to lose, a result which will get the photos out while not getting the right wing pissed at him about it. It's all part of his continuing political brilliance, they say.

Um, yeah, right. What if he wins? What if it becomes established as a legal principle that "it'll make us look bad" is a valid basis for withholding information on "national security" grounds? What if it becomes established that the president has the authority to conceal information because he or she decides it "adds nothing" to the issue? What then?

Finally, on May 23, Judge Vaughn Walker of US District Court in San Francisco threatened the Obama administration with severe sanctions, including issuing a summary judgment against it, if it didn't stop stonewalling and obey the court's order to turn over to the plaintiffs a document showing they were the targets of illegal surveillance.

The case is Al-Haramain v. Obama, originally Al-Haramain v. Bush. Al-Haramain is a Muslim charity. In the original suit, the government accidentally released to the plaintiffs a document showing that it had spied on the group's lawyers: The papers even contained transcripts of telephone conversations. The government took the document back and ever since has insisted that the attorneys who saw it should not be allowed to use their memories of it to pursue the case.

That is, there is a document that proves - beyond question - that the government illegally spied on the group. The government knows about it, the court knows about it, the plaintiffs' lawyers know about it, they've all seen it, they all know what's in it - but the position of the Obama administration is that everyone involved should go around acting and talking as if it didn't exist. Kind of like a reverse Tinker Bell deal: "I don't believe, I don't believe...."

I wrote about Obama's endorsement of the "state secrets privilege" in this case, but Judge Walker, having rejected the claim, itself an unusual event, is getting fed up. There is to be a "show cause" hearing on June 3, when the Obama crowd will have to explain why it should not be sanctioned. That should prove interesting.