Showing posts with label Terrorism. Show all posts
Showing posts with label Terrorism. Show all posts

Wednesday, August 26, 2009

Terrorism and U.S Prisons Update

A tad old, but here's a good update on the overall picture of America's prison problem. And it isn't Guantanano or terrorists that are the problem. As somebody once said, "we have met the enemy, and it is us". I am a proud American, and I think we can do better. Senator Webb, good luck. I'm on your side. Can I have a job?

From Slate: Guantanamo is the Least of Our Problems by Dahlia Lithwick.

Also from Corey Yung, America's Emerging War on Sex Offenders is the latest by America's top sex offense criminal law analyst.

This is the abstract:

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a “war” on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex criminals? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, how can it be stopped?
By reviewing America’s history of criminal wars, primarily the War on Drugs, the article identifies three essential characteristics of a criminal war: marshalling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice an society.

Yung has completed another article, about judicial activism.

Here, at the Economist, is a piece called America's Unjust Sex Offender Laws. Includes an audio interview podcast with Sarah Geraghty, a lawyer and activist for reform in Georgia.

Friday, August 01, 2008

Government and Secrecy

A good one from New Republic, by Jack Goldsmith (Harvard Law School professor, and former Bush Administration appointee) titled Secrecy and Safety here.

A sample of the analysis:

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system b
becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.
Could someone please tell me what good has come from our secret, illegal, lying, spying programs, aka domestic and foreign "wiretapping" surveillance, about which the President and administration have lied, concealed and perpetrated with our money, right under our noses? From the politicization of justice and the economy that the administration has similarly perpetrated?

I have some ideas, but your comments are most welcome.

Wednesday, December 27, 2006

Currents: Eddies and Flows

Re Carey v Musladin is Flawed (Sherry Colb, Findlaw)--Heart of Matter is:
events in a courtroom - overseen and approved by a judge - acquire a state action status that they would not otherwise have. And once the Court acknowledges that this is so, there is no reason to treat a "private" act in the courtroom as falling outside the scope of precedents that govern displays in the courtroom that undermine the fairness of a criminal trial.
I could not agree more.
[Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law will be published by Rowman & Littlefield in early 2007.]

Update: here by Prof. Amar (Findlaw, Wed. Dec. 20).

One More Torture Case Backed by Former Judges.

Washington Post Editorializes on Death.


Too Funny.

And learn lots about the politics of crime from NYT ("Right's Jailhouse Conversion")

Tuesday, December 19, 2006

Trends: Last Week Before Christmas

Wanna Grow the $$$$$$$????????? Big Cash Crop? Find what it is at Real Cost of Prisons (link also to right). So Money does grow on trees as well as in the devil's workshop, or sometimes bushy little stalks, with sticky little leaves. The next future POTUS, Barack Obama, HAS inhaled: even though inhaling does not always necessarily follow the sucking, that was the point. (oops, fixed that typo!)

Weighing in on Moral Tactics and International Military Law is Professor Amos N. Guiora writing in the Baltimore Sun about a ruling in the Israeli Supreme Court:
The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

Recently, the United States Supreme Court, in Hamdan v. Rumsfeld, held that the military tribunals established by President Bush in the aftermath of 9/11 did not pass judicial muster. The presidential order of November 2001, creating the tribunals, was not subject to rigorous checks and balances. The U.S. Congress was largely somnolent, and then-Chief Justice William H. Rehnquist had previously written that in times of conflict, the court must be "reticent."

Counterterrorism consists of four "legs": the rule of law, morality, operational considerations, and intelligence gathering. Successful, aggressive counterterrorismoperations reflect a harmonious confluence of the four. Balancing the rights of the individual with the equally legitimate rights of the state is the essence of counterterrorism. It is also very difficult to develop, implement and articulate.

Amos N. Guiora is professor of law and director of the Institute for Global Security, Law and Policy at Case Western Reserve University School of Law. He served for 19 years in the Israel Defense Forces and held senior command positions including commander of the IDF School of Military Law. His e-mail is amos.guiora@case.edu.

Here is the SCOTUS Feb calendar (hat tip SCOTUSblog)

And here we'll find Habeas Corpus Restoration efforts (also from SCOTUS blog) S. 4081, titled "To restore habeas corpus for those detained by the United States." The text of the bill can be found here, and statements by the two senators when they jointly introduced the measure can be found here. Lyle Denniston reporting:

***The measure would appear to have a good chance of passage, at least in the Senate: when Specter attempted to head off the court-stripping wprovision in
the just-ended session, his move failed by a 51-48 vote. The Senate's membership, of course, has changed markedly after the November election.

President Bush would be strongly likely to veto any habeas restoration bill that reached his desk in the new Congress. And there almost certainly would
not be enough votes in Congress to override a veto, even with Democrats in control. Even so, the maneuvering indicates that the question of habeas rights is not likely to be resolved finally, any time soon.


In a comment, Don Robertson, "The American Philosopher" posted a note and excerpt from "The Road to Harpers Ferry" J.C. Furnas, 1959, (William Sloane Assciates, New York) which looks very interesting for abolition, civil war history buffs AND habeas corpus nuts.

CapitalDefenseWeekly has this encouraging post about yours truly, (recognition, at long last there is evidence of--no not water on Mars, which is there too--but that the writing has resulted in the reading).

This is Still Big News: from Howard Bashman at How Appealing (link at right); and Doug Berman at Sentencing Law and Policy (link at right) leads with a post of his own on this today. But this item from yesterday about Claiborne and Rita (pair of SCOTUS cases in sentencing to be decided soon) is the one I am really looking forward to sinking my teeth into:

Howard writes,

"Georgia Man Fights Conviction as Molester": The New York Times today contains an article that begins, "Genarlow Wilson, 20, is serving a prison sentence that shocked his jury, elicited charges of racism from critics of the justice system and that even prosecutors and the State Legislature acknowledge is unjust. He was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17."
And The Atlanta Journal-Constitution today contains an editorial entitled "Order justice under righted sex law."

My earlier coverage appears at this link. This matter was also discussed yesterday at "The Volokh Conspiracy" [link at right] and "Sentencing Law and Policy." HB.

AND maybe this is why (from StandDown Texas), as Grits (link to right) reports, Harris County (Houston) Texas wants to increase the already largest county jail in the country's capacity by fifty percent.

ALSO Sex Crimes had some good ones yesterday, making up for HIS weekend hiatus (link at right).

Monday, December 18, 2006

Habeas Corpus Takes the Weekend Cake

Wow, a 48 hour plus hiatus from blogging has done wonders for the soul.

Emily Bazelon weighed in on Habeas Corpus this weekend with a piece that ran in Slate and the Washington Post Outlook. This should be read with Fareed Zakaria's piece in the New York Times. He reviewed books by John Yoo and Bruce Ackerman on terrorism, Habeas Corpus (the great writ) and "the rule of law." Fareed is the editor of Newsweek International, the author of "The Future of Freedom" and the host of the PBS program "Foreign Exchange."

Here is an article from Salon (by Alex Koppelman) showing why Habeas Corpus and judicial review is still badly needed. The quote from Jonathan Turley refers to the inhuman "treatment" of terrorist suspect Padilla. Turley is professor of law at George Washington University and specializes in constitutional criminal procedure.

Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.

"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."

Here is your comprehensive guide to "collateral consequences" of a conviction, said to be an invaluable resource for attorneys, policymakers, and citizens, (from Sentencing Project dot org) and, here at this link you'll find a "prison consultant" (Dr. Prison) claiming to, well, take a guess, is it survival or comfort we are looking for? I make no claims as to either of these products, but here is what Dr. Prison says:

If you don't know how to act in prison, you will have...
*
25-30% chance of getting killed during your prison sentence.
*
10-15% chance of getting raped during your prison sentence.
*
30-40% chance of getting stabbed during your prison sentence.
*
80-90% chance of getting beaten during your prison sentence.
- If you make trouble in prison, you could face...
*
23-hour solitary confinement, with 1 hour outside, all alone.
*
No visits or privileges of any kind.
*
A cell worse than this.

Other notes about prison:
*
Prison guards care very little if at all about you.
*
Prison riots last an hour on average.
*
Prisoner jobs throughout prison generally pay less than $200 a month.

I happen to know that Texas State prisoners get no pay whatsoever, and one three minute telephone call every 90 days, if they are lucky (and behave).

Here is a book that looks interesting:

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Hardcover)
by Paul Craig Roberts, Lawrence M. Stratton

AND, did you know there are 7 millions incarcerated in the United States? What
happens to these folks concerning employment when they come out? Learn about a program which will work to provide meaningful employment for those persons being released from prison, or those presently on probation. It may be too late to click the following link:

http://www.acbradio .org/pweb/ index.php? module=pagemaste r&PAGE_user_ op=view_p
age&PAGE_id= 8&MMN_position= 14:14

but there it is. Maybe there's a way to track it back.

Okay, enough for now. Thoughts, comments, feedback is appreciated. Blog on!

Friday, December 15, 2006

TGIF

TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.


A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Saturday, December 09, 2006

Allegations of Torture Overseas in Our Courts

Direct from WaPo:
Saturday, December 9, 2006

The Bush administration asserted in federal court yesterday that DefenseSecretary Donald H. Rumsfeld and three former military officials cannot be held liable for the alleged torture of nine Afghans and Iraqis in U.S. militarydetention camps because the detainees have no standing to sue in U.S.courts.

Deputy Assistant Attorney General C. Frederick Beckner III also argued that a decision by the court to let a trial proceed would amount to an infringement by the judiciary on the president's power to wage war and would open the door to new litigation in U.S. courts by foreign nationals who feel aggrieved by U.S. government policies.


NB. Sen. McCain has argued previously that we don't want to encourage torture because that would encourage "them" to torture Americans. He should know because he was held captive by the Vietcong. So why would we not want to show the whole world that we will enforce the law, whether or not the law is sought to be enforced by "foreigners"? Comments anybody?

Do we really want to demonstrate that the President's power to wage war will include everything, even the power to order torture and turn a blind eye to violations of basic human rights? Even the possibility of that power? The fact that this is even a debatable question is itself rather curious in my view. This is the old "ends will justify the means" slog. But here, it is highly questionable whether getting somebody to say something under extreme coercion yields useful and accurate information. One more thing, inflicting extreme pain and suffering, and torture, must really be seen as simple retaliation and retribution for being on the wrong side of conflict, and wrong, because there is not one case that has been brought to the public's attention where torturing somebody has yielded useful information. And even if it did and that has not been brought to our attention it is still wrong absolutely, and a good way to keep our enemies even more dedicated to harming us.

Wednesday, December 06, 2006

Review: Fiasco by Thomas E.Ricks

Fiasco: The American Military Adventure in Iraq. (Thomas E. Ricks, Penguin Press, New York, 2006)

The curious thing about a book, any book, is that it tends to raise a fundamental question: What is there in this piece of printed pulp that was, at one time, a living tree do I not already know? Then you read it and find out.

Ricks knows what he's talking about as he is the Washington Post's senior Pentagon correspondent and got a lot of information contemporaneously, and from emails from personnel engaged in the operations. From this he has pieced together a “first draft” of history, and a good first draft it is. There are many, many anecdotes and real-life scenarios showing what life was like in the combat theater which I appreciated, being relegated to my soft chair: the stories I found particularly sorrowful were the ones describing fratricide, roadside bombs and deaths and mutilations of comrades. I don't know whether having lived through and observed (through the media) what was actually happening in and around Iraq contributed to my feeling of deja-vu as I read Fiasco.

The answer to the first question referenced in paragraph one above was, as it turned out, both a lot and not much. There is a lot I did not know about the how of what happened in Iraq, but I pretty much knew what happened as and when it happened. At least I thought I did, and after reading Fiasco I still think so. Maybe that has something to do with the fact that I happened to read much of the reporting as it became available in the media, although I don't remember having seen his bylines. Maybe it just means that this book describes events straight down the middle, even if there might be some spin in the title.

When Ricks uses the word “adventure” in the subtitle he's just being polite. But why be polite? He really uses the term in the critical sense of “adventurism” so the book actually should have been titled the “misadventure” in Iraq. Is that accurate? Well, that is the same as asking whether he is right. The elections are over, Ricks is a seasoned reporter and not a politician and so we don't expect a lot of spin or obfuscation, although the timing of publication as to the election seems a tad suspicious. So what? Is he being fair and honest, because fair and honest is what we should expect from a serious book that is, on its face, not satirical and not attempting to be conspicuous conspiratorial political ax-grinding, like Ann Coulter, Bill O'Reilly, and some other people I know, and this is to take nothing away from grinding or axes. I like to keep my edges sharp, too.

After taking in the first paragraph of Fiasco and again after finishing chapter ichiban I happened to agree with virtually everything. It's true, I confess, my first reaction was, “okay, I already know everything that could possibly be in here” and, “I could have written that.” That is what bias does. It jades your view. It starts with “A Bad Ending,” paragraph one, Chapter One:
President George W. Bush's decision to invade Iraq in 2003 ultimately may come to be seen as one of the most profligate actions in the history of American foreign policy. The consequences of his choice won't be clear for decades, but it already is abundantly apparent in mid-2006 that the U.S. Government went in Iraq with scant solid international support and on the basis of incorrect information—about weapons of mass destruction and a supposed nexus between Saddam Hussein and al Qaeda's terrorism—and then occupied the country negligently.

But what of the possibility that Ricks is wrong? Would that mean we were right to go into Iraq or that we are doing a good job there? That even if we straightened things up and rebuilt the place so Iraq came to resemble one of those NICs like South Korea, India or Japan, would that justify what we did and make it right? Could that atone for our immediate sins, our mistakes, our transgressions? These are speculative questions and not easily answered even with the benefit of hindsight. To some extent they carry normative implications, and where norms are involved relativity of the moral variety lurks dangerously around the next curve. Still, it is not too soon to begin thinking about them.

The ultimate question about which Fiasco sounds an SOS but which unfortunately can not yet be answered is, assuming that we made mistakes, and committed sins, errors and transgressions, can we still atone for them or is it too late? That remedial inquiry will require intense soul-searching and above all, honesty. It might require Congressional hearings into the how and why.

Ricks rightly perceives that the Iraq mis-adventure was the Bush administration's response to 9/11; the Patriot Act was Congress's. He also perceives that that was mistaken in drawing resources away from fighting terrorism, and here too Ricks is right on the ball. So does my thinking so mean I'm not a patriot? That I am a traitor? That I am unfaithful to the troops and don't support them? It makes me wonder. And my wondering leads me to ask, “who's fault is that?” The kind of uncritical thinking that the President seems to require of the People recently reminded me of this infamous quote:

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918.


The internet has made it all but impossible to conceal what is really going on, even in the far reaches of the world. To the extent that's true, we really do live in a transparent world. What the internet has failed to bring about, however, is an end to the lies and the spin and the attempts to communicate what is happening in purely political terms, and by political I mean Orwellian. If anything the spin is worse because it is forced to try to overcome the truth. And sometimes it does. For example, the president, through his spokespersons and alter-egos, Vice President Richard Cheney, Secretery Rice, and there are others, have been saying for three years that we are “winning” in Iraq, that we have been doing the right thing, that we needed to be there and that we need to “stay the course.” And as Robert Gates has discovered in his Senate confirmation hearings in December, this has created a political minefield. I want to emphasize the three years because that is a fairly longish period of time for anybody to be continuously conned, deceived, and mislead.

The Bush line is clearly untenable today because Bush was wrong about Iraq in the beginning, and he is wrong about it now. The military did not learn from its own experiences and the policy-makers did not study their history and, consequently, we are where we are today, a sad lot much like where the British were 75 years ago, in danger of losing big chunks of prestige and colonial territory. Ricks aptly quotes from British Lt. Gen. Aylmer Haldane, The Insurrection in Mesopotamia, 1920: “From the beginning of July until well into October, ... we lived on the edge of a precipice where the least slip might have led to a catastrophe.” Only by “luck, pluck and courage” (typically British traits not only by coincidence) was “a long and agonizing guerrilla war” avoided.

General Myers in particular was saying things were going very well when they weren't, but he was not alone.

When Bremer flew home to Washington for quick consultations at the end of July 2003, his message was that the situation was far better than it appeared in the news coverage. *** In fact the U.S. Occupation was about to be confronted by a full-blown counterinsurgency. But as the United States entered its first sustained ground combat in three decades, this was his story, and he and the entire Bush administration stuck to it.

General Franks, too, could not be heard to say things went badly and continued to insist that “the plan” for Iraq was a good one, but in hindsight we know that this was wrong. It was wrong from the beginning. And, in the fact, Ricks notes that even the stated tactical objective for going in at the outset was wrong. Wrong tactically and wrong strategically. That was the mushroom cloud scenario, thanks to Secretary, and formerly National Security Adviser, Rice. Wrong. Wrong. Wrong? Only General Colin Powell has come to make this, which is also his current assessment, public. The folly is described in counterpoint by Ricks using this quote from Gen. Franks's memoir, American Soldier:

History will record that America's strategy for fighting terrorism was a good strategy, that the plan for Operation Iraqi Freedom was a good plan—and that the
execution of that plan by our young men and women in uniform was unequaled in
its excellence by anything in the annals of war.”

Ricks provides much evidence to the contrary throughout, but especially in “False Start” which opens the first chapter of Section II, in Chapter 7.

“Fittingly,” he writes, “a war justified by false premises began on false information.” My own theory on this just happens to be that most wars actually do start that way. If somebody wants to make war they are usually going to be telling lies in order to make it happen. Remember Vietnam and the alleged naval attacks at Haiphong Harbor? Then Ricks quotes Richard Perle, “This was, I believe, a successful intelligence operation by Saddam Hussein in which we were led to believe that he was in a certain location, and he wasn't there.”

So we were duped. So much for the decapitation strategy. Decapitation, followed by an inept occupation, demonstrably resulted in chaos. So much for the just war theory. So much for the theory of preventive war. So much for Bush's legacy. I'm truly sorry. I voted for him the first time. War is not glorious. War is never preventive, never just. War is always, sadly, with tears in your eyes, only necessary to preserve life and limb, no more and no less. That is what the Iraqi insurgency is now teaching. For posterity, that is being taught to us, by us. Will we learn?
We learn that as early as two months following the invasion of April, 2003, the occupation was “teetering.” In “Franks Flunks Strategy” we get this:

The American military believed it had taken Baghdad.
To understand that mistaken conclusion, it is necessary to step back and examine Gen. Tommy Franks, the senior U.S. commander in the war, and particularly his misunderstanding of strategy. That is a grand-sounding word, and it is frequently misused by laymen as a synonym for tactics. In fact, strategy has a very different and quite simple meaning that flows from just one short set of questions: Who are we, and what are we ultimately trying to do here? How will we do it, and what resources and means will we employ in doing it? The four answers give rise to one's
strategy. Ideally, one's tactics will then follow from them—that is, this is who we are, this is the outcome we wish to achieve, this is how we aim to do it, and this is what we will use to do it. But addressing the questions well can be surprisingly difficult, and if the answers are incorrect or incomplete, or the goals listed not reachable, then the consequences can be disastrous.

This, in a nutshell, states our current dilemma. Because we went in expecting one thing and found another. Expecting WMD we found none: expecting liberation we found rebellion and sectarian divides.

Ricks has amply demonstrated, as events on the ground have also demonstrated, that neither the President, Gen. Myers, nor Gen. Franks have been speaking the truth. Clearly, to the extent that they believed what they said was true they were clearly wrong. To the extent they were heeding the advice of the boots in the sand, they were wrong. But Ricks shows that not all the advice percolating up from ground (or intel) was in tune with Bush's Polly-Anna scenario. Well intentioned, no doubt, but still very wrong. What the guys at the top were saying wasn't true. For three years the Republic has wrongly been fed Mis-information and Untruth by our leaders. That is a sad commentary on us. Sad because we have been complicit. We have let them do it, and let it be said that they have done it with impunity.

In democracy, the People have a collective duty to take responsibility for what happens. That is how we earn the right to be free and democratic. Not imposing accountability for being told lies, and for making mistakes, and for clearly unproductive, unjust and stupid results is the first step toward tyranny. Going to Iraq was stupid. Democracy is not stupid. Iraq today is undemocratic, un-American, and definitely not un-Cola cool, baby.

And hear, hear, the public is finally fed up with “strong but wrong.” Come to think of it, that's a lot like “shoot first and ask questions later.” But gee, that's apparently exactly what we've been doing. We have taken the paradigm of our own eighteenth century Indian wars and taken it to Iraq and, surprise! It did not work. And it took a professional cadre of military men to let—no, let is too passive—they made this happen. And we, the People, have stood by and allowed it to happen. There will be consequences. It is ultimately unfair, however, to lay all blame on the military men, even those at the top, because our Constitution provides for political control of the military.

In sum, Fiasco provides a good preliminary account of some of the fateful decisions in terms of their effects, but it is not yet clear precisely what the really big and most critical decisions were, when they were made, or by whom, excepting the decision to go in itself. So we are still left wondering whether it was Rumsfeld, Bush, Bremer, or somebody else at the very top who is to blame for the full extent of the real fiasco. The book points out but does not develop many of the issues of fraud, waste and abuse associated with the employment of military contractors. We should be learning more about this in coming years.

Finally, one of the decisions that must be viewed with great skepticism was Maj. General Raymond Odierno's “get tough” policy. In broad-brush, thus began a formal disagreement between the approach (attitude) employed by the regular Army, armor and artillery, and the thinking of the Marines, and the counter-insurgency methods learned from past experience. To defeat an insurgency you must live among the people and win them over one by one. But in the early days nobody noticed the telltale signs that an insurgency was forming. That insurgency, in fact, might even have been planned at the outset given the paucity of the resistance of the regular Iraqi army in the opening days of the war.

I noticed too that Odierno's unit is stationed in Texas. Ricks notes that they sometimes felt like second stringers, and so it occurred that maybe they had a complex and took it out on the Iraqis. Mostly, however, I sensed that Lt. General Ricardo Sanchez, who was the senior military commander, must bear the brunt of the blame for what went wrong after the politicians took over. The sections about prisoner abuse and Abu Ghraib tell a very depressing story deserving of entirely separate treatment. It is truly worse than shameful that that has become part of the history of the U.S. military.

And just briefly comparing Fiasco to State of War: The Secret History of the CIA and the Bush Administration (Free Press, January 2006) by James Risen I found both books are similar in their criticism of Bush, but Risen has focused more on the secrecy and intel, as his title suggests, and relied more on anonymous sources, and that was frustrating to me. Knowing who said what gives a book a definite sense of credibility. Having said this, I think I'll need to take a second look at State of War. Maybe that will be next, after I review Soldier, by General Powell.

Monday, December 04, 2006

Immigration, National and Domestic Security

At this link I published a book review of Just Americans chronicling the story of Japanese immigrants in World War II. Now, Iyal Press has this article in this weekend's NY Times Magazine about immigrants. He looks at whether they are making us safer or not. There is a debate over this, both in real world practice and in the academy (as in Ivory Towers).

Friday, December 01, 2006

Yesterday's News

Gitmo Justice A Joke, here at WaPo. Just imagine the state courts, where some of the people running DOJ have come from (could that be, Texas?)

More good stuff from Scott Henson at Grits for Breakfast on Texas Justice, permanent link to right.

A Critical Report on the Detainee Hearing Process is here.

And an article headlined "Blind Inmate's Medication Claim Revived” here reports on a ruling here issued yesterday under 42 U.S.C. 1983.

Thursday, November 30, 2006

More Trends: Habeas

Terrorism, Bush Wars, Habeas over at Slate, here.

The writ has been suspended only four times in U.S. history; the last one was in 1941 in Hawaii right after the attack on Pearl Harbor, according to this brief.

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Read all about the just announced $2 million settlement here (hey, they can break into my house anytime) paying Brandon Mayfield, the Oregon lawyer wrongly jailed in connection with the 2004 Madrid bombings. This Bush administration is not as bad as the Nazis. They do pay when they muck up.

What, us torture? Read this from Newsweek.

And get more of Z's articles on these topics over at Usavoice, here, here and here.

Trends

Terrorism, Secrecy, Security

If you were wondering what the government thinks it is doing at the airport security counters then read this. Tom Goldstein is counsel of record on this newly-filed Reply Brief in the case of Gilmore v. Gonzales (No. 06-211; petition here, brief in opposition here). On the brief with him are Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, and James P. Harrison, an attorney in Sacramento. The case will be considered at the Justices' January 5 Conference. Hat tip, SCOTUSblog.

Death Penalty for Sex Crimes An Incentive to Kill here.

So, how is Your Prison Sex? Learn how its done here.

Being horny and drunk hazardous to health. How hazardous, here.


lawsuits of Michigan inmates Lorenzo Jones, John Walton and Timothy Williams were dismissed on such technicalities, rather than merits. One of the suits claimed discrimination, and the other two involved prison medical care, which a Free Press investigation has found to lack the most minimal standards.


Seven Million and counting. Can immigration keep up? What this?

Death in Prison

Reason over Hysteria Every Time. Just an opinion.

Wednesday, November 22, 2006

Thanksgiving

Pride slays thanksgiving, but an humble mind is the soil out of which thanks naturally grow. A proud man is seldom a grateful man, for he never thinks he gets as much as he deserves.

Henry Ward Beecher


Wapo has this on Georgia's newly enacted law on residency restriction, summarizing legal, empirical and ethical issues.


In a new development in the terrorism cases, Al Marri is the only civilian currently being subjected to military authority who was not arresed on a battlefield [ref. MCA, Milligan, Reid, Duncan.] says former Attorney General of the United States, Janet Reno. Reno signed on to a brief by prominent former Justice Department officials that closes with these memorable words,

"We would do well to remember Benjamin Franklin's admonition that "[t]hose who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." An Historical Review of the Constitution and Government of Pennsylvania, title page, (1759) (Arno Press reprint, 1972).

Related on the topic of security in my web travels this morning I was troubled to see this quote by Henry L. Stimson, former Secretary of War. I am still troubled at the way in which the Pacific war was closed, even though it may have saved many, many American lives (I have no problem with that aspect). The nuclear option has created a precedent from which the world is still seeking to recover:

On Tuesday, August 14th, when the news arrived of the final surrender of the Japanese we had a little thanksgiving meeting in the Casino after dinner. Henry L. Stimson

Monday, November 20, 2006

No Honor in Contientious Objector Aguayo's Court Martial

Here are moving excerpts from the heart, of Agustin Aguayo, an Army medic facing court martial for refusing to redeploy to Iraq. I must say that, especially after seeing Flags of Our Fathers, it is not unreasonable to me that somebody would object on personal and religious grounds to waging war. Only those who have been there could possibly have any idea of what it entails to go to war. The Bush chain of command got it wrong on this one too. It is no dishonor to stand up for what you believe. The prosecution is discretionary, so the Army can only be motivated on political grounds and from an effort to preserve discipline in the unfortunate ranks of the disaffected and demoralized. I can't quite understand what we are fighting for at this time, except to give cover to somebody's big mistake. It was senseless to start this war and senseless to continue to wage it. Even the former Secretary of State and senior statesman Dr. Henry Kissinger was heard on CNN last night, saying this war can't be won. And if you can't win then what's the point? Agustin's statement can be found on his website:

My beliefs and morals come from a transformation as a direct result of my combined religious/family upbringing, military experience, and new experiences I’ve created and sought. Such as, I have surrounded myself with people who cherish life and peace. I have become an active member and supporter of many peace organizations such as The Center on Conscience & War, Military Counseling Network, The Munich Peace Committee, and American Voices Abroad. I have overhauled my life with new practices such as the peaceful art of Yoga and meditation. As time progresses (it has been more than two and a half years since I became a CO) my beliefs have only become more firm and intense. I believe that participating in this (or any) deployment would be fundamentally wrong, and therefore I cannot and will not participate. I believe that to do so, I would be taking part in organized killing and condoning war missions and operations. I object, on the basis of my religious training and belief, to participating in any war. I have to take a stand for my principles, values, and morals and I must let my conscience be my guide.


In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and a harmful.

Thursday, November 16, 2006

TCCA AND MEDELLIN; TERRORIST PROSECUTION ACT

HOW IT IS DONE IN TEXAS: CCA Update 11/15/06 - Ex Parte Medellin:
Texas Gives Middle Finger to World
This story is big. Very, very, very, very, very, very big. By the way, I couldn't help going with The Onion-esque title for this post, SAYS WRETCHED OF THE EARTH.

“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

The Effective Terrorists Prosecution Act:
-Restores Habeas Corpus protections to detainees
-Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
-Bars information gained through coercion from being introduced as evidence in trials
-Empowers military judges to exclude hearsay evidence the deem to be unreliable
-Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
-Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
-Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
Thank you talkleft

Wednesday, November 15, 2006

Giving Aid and Comfort to ... Injustice is the Enemy

It is the rare generation that is given, and then seizes, the opportunity to make history. Not since WWII and the internment of Japanese-Americans and trials of German POWs have the courts had to become so actively engaged in prisoner litigation. Yes, of course, you have the “run of the mine” habeas corpus cases and lots of them perennially, but the recent so-called “terrorism cases” have become the hot potato for judicial review on a broad scale, involving questions of jurisdiction, federalism, separation of powers and Executive prerogative, in conjunction with American and enlightened notions of fundamental civil liberties. After a long swing of the pendulum toward "get tough on crime" (aka "lock'em up and throw away the key), perhaps a throughgoing review of this (including torture and abuse in our prison and criminal justice system) has been long overdue. We, Americans, as well as our bretheren overseas, confront a world that our parents and grandparents could never have dreamed up.

SCOTUSblog has this update:
Since the Supreme Court's decision in Hamdi v. Rumsfeld on June 28, 2004, a question has lingered over the President's authority to hold war-on-terrorism detainees who are captured inside the U.S., not in a foreign battle zone. The issue did not get finally resolved in the highly visible case of Jose Padilla because the government shifted him to a criminal trial court before the Supreme Court could rule. It is now unfolding in the Fourth Circuit Court, in the case of Al-Marri v. Wright (Circuit docket 06-7427). But, on Monday, the Justice Department sought to turn that case into another test of Congress' power to strip the federal courts of authority to hear habeas challenges to detention, even as Al-Marri's lawyers filed their opening brief on the merits (brief can be found here).
***
the Justice Department, in a filing also submitted on Monday, argued that the Fourth Circuit no longer has any authority to decide Al-Marri's case, because it is a habeas challenge and Congress in the new Military Commissions Act of 2006 stripped the federal courts of all authority to rule on detainees' habeas cases. The case thus should be dismissed, the government argued in the filing, found here. The Department said that the two sides had agreed on a briefing schedule on this motion, with Al-Marri's response due Jan. 5 and the government's reply Jan. 17. (The Circuit Court has tentatively set the week of Jan. 31-Feb. 3 to hear the case.)

Monday, November 13, 2006

Political Questions of the Day (A very slow news day so far)

How Much Will "Being Tough on Immigration" hurt tough-guys in the next election? (How many "immigration-minded" voters reside in critical states and how do you keep them happy?)

"Yo noo-moo-dubya" political landscaping early is at Wapo

Battles shaping up over Habeas and Counter-Terrorism, and what REAL MEN she links with are talking about with Michelle Malkin: "Probe-a-palooza"

Saturday, November 11, 2006

Policy Recommendations

Regarding changes in the law, and policy, my first question is, do we really need, "a long term, systematic, comprehensive, institutionalized counterterrorism policy for the United States" as Kenneth Anderson suggests here? If anything, my preference is to reduce bureacratization. The constitution adequately provides for practically anything, we already have a gigantic court system, including a counter-terrorism or FISA court, and our policy toward terrorists and terrorism is very clear already if not constantly evolving. An "institutionalized" policy sounds too much like a new cabinet level or deputy level position, sort of like "drug czar" and I'm not convinced that Anderson's reasons are good ones. The political argument seems to be that once Congress has acted courts must lay off, and that is simply not the way we work. Or is it?