No Sleeping Says Prince Charming

Ah. Thank goodness!

After a couple of weeks where the Bush administration had things come out on a Wednesday or a Thursday, I was starting to think they had lost their touch. Maybe they found out I cared.

In an executive order issued Friday, Bush again reiterated the US stance on torture,

Bush’s order requires that CIA detainees “receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.”

A senior intelligence official would not comment directly when asked if waterboarding would be allowed under the new order and under related _ but classified _ legal documents drafted by the Justice Department.

However, the official said, “It would be wrong to assume the program of the past transfers to the future.”

A second senior administration official acknowledged sleep is not among the basic necessities outlined in the order.

Remember. This executive order comes out about three weeks after Mr. Bush assured high Presidential Scholars that “America doesn’t torture people.” From the Boston Globe,

Before the scholars posed for a photo with Bush on Monday, she handed him the letter. He put it in his pocket and took it out after the photo shoot. Reading silently to himself, the president looked up quizzically at Oye and said, according to her, “We agree. America doesn’t torture people.”

The scholor who handed the letter to Bush, signed by approximately a third of the students honored, was the daughter of a former detainee; her mother is of Japanese decent, her family interned during the Second World War. One can understand why she cares. (Bush’s grandfather, Prescott, helped fund Hitler which might show why he cares.)

But hey: Let’s give Bush credit. – America doesn’t torture. Um – Right? Let’s see how America used to defined torture. This from an article also in the Washington Post, this time from March 2005

The State Department’s annual human rights report released yesterday criticized countries for a range of interrogation practices it labeled as torture, including sleep deprivation for detainees, confining prisoners in contorted positions, stripping and blindfolding them and threatening them with dogs — methods similar to those approved at times by the Bush administration for use on detainees in U.S. custody.

Look again at the reported language in the new executive order. None of those things are excluded. They just stopped being torture. Because torture is everything the Bush administration decides it won’t do.

According to the definitions in the 2004 State department report – sleep deprivation was still considered “torture”. Under the entry for Saudi Arabia,

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Criminal Procedure section of the Basic law prohibits torture and Shari’a (Islamic law) prohibits any judge from accepting a confession obtained under duress; however, authorities reportedly at times abused detainees, both citizens and foreigners. Ministry of Interior officials were responsible for most incidents of abuse of prisoners, including beatings, whippings, and sleep deprivation. In addition, there were allegations of beatings with sticks and suspension from bars by handcuffs. There were allegations that these practices were used to force confessions from prisoners.

I guess in the last three years, that paragraph wouldn’t be allowed any more.

Once again Prince Charming has decided to spin a fairy tale where sleep is optional and reality is whatever he choses to release to the public. Just don’t let him near Sleeping Beauty – she’ll be looking like a hag in no time.

But at least I can go back to sleeping well. Bush & Co. stayed true to form by releasing the executive order on a Friday afternoon. They aren’t slowing down any; They just have too much democracy to destroy, so little time for destroying

Catch – um – Click 22

Well so much for keeping the address of the DARPA headquarters under raps.

Even though address of the agency that oversees research into everything from autonomous vehicles, robotic pack mules and Imaginary Weapons, can easily be found using Google and is clearly listed on it’s webpage (with directions), you can’t take a picture of the building itself. (At least not if you are nearby.)

Even worse, should you take a picture of the building, one could end up landing in some kind of Orwellian watch list. That’s what Kenneth W. McCormann found out. According to Marc Fisher at the Washington Post,

If you happen by 3701 N. Fairfax Drive in Arlington and decide you have a sudden craving for a photograph of a generic suburban office building, and you point your camera at said structure, you will rather quickly be greeted by uniformed security folks who will demand that you delete the image and require that you give up various personal information.

When Keith McCammon unwittingly took a picture of that building, he was launched on an odyssey that has so far involved an Arlington police officer, the chief of police and the defense of the United States of America.

McCammon could not have been expected to know when he wandered by the building that it houses the Defense Advanced Research Projects Agency, a low-profile wing of the Defense Department that conducts all manner of high-tech research that evolves into weapons systems and high-order strategery.

DARPA’s presence at 3701 N. Fairfax is hardly a government secret–Google finds nearly 10,000 pages listing the agency’s use of the building. But there’s no big fat sign on the building, so how was McCammon to know that this was a building he dared not photograph? And why would the government care if anyone took a picture of the exterior of an office building? This is as silly and hypersensitive as the now-common harassment of people who innocently take pictures of random federal buildings in the District.

Unfortunately, in the next days and weeks, this will likely become one of the most photographed nondescript office buildings in Fairfax County, Virginia. Why? Because people are going to blog about it and wander down to see what the big deal is.

The problem here isn’t that DARPA really has anything to hide. The building itself probably isn’t even the problem. Perhaps the people entering and leaving the building would be an issue, but any spy or terrorist worth their salt could simply install a minicam in a car and park it across the street. Absolutely no problem getting images of each and every person entering the building on a given day.

Actually when McCammon followed up on the ‘contact’ writing complaints to the Arlington County Police Internal Affairs Section, he was met with openness. His blog shows the information he received. Now he has move up the line to find out what the security official at that installation has on file about him.

Think about ending up on a watch list or a no fly list simply because you took a picture of a building.

Conservatives, please connect the dots. Support the troops and obey the law. Public photography should be illegal, right? (Actually under a strict reading of the bible, image making should be illegal but we won’t go there.) Anyone could be a terrorist; anyone a target? Anywhere a secret installation? Are the liberals so far off when they say that security measures have gone a bit far?

And the officer who stopped McCammon was off duty, doing private contracting; a hired gun (abet working for the government). This says two things. Why does the governement have to contract off-duty police officers to do that kind of work (is it cost effective?). Indeed, are off-duty police officers a higher class of citizen – those who must be obeyed?

Finally, as McCammon point out,

Further, setting aside the issue of officer discretion, the most disturbing aspect of this incident is the simple fact that we had no way of knowing that we were acting in a manner that might have been so much as considered suspicious. If the subject in question is devoid of any type of external marking or warning sign, one should have no reason to suspect that it cannot be photographed (or approached while in possession of photographic equipment). And it follows that one should certainly have no reason to suspect that photographing such a subject might land one’s name on a list, or in a database. Reasonable, law-abiding people tend to avoid these types of things when it can be helped. Thus, my request for a list of locations within Arlington County that are unmarked, but at which photography is either prohibited or discouraged according to some (public or private) policy. Of course, such a list does not exist. Catch-22.

The absurdity of this type of situation is clear: We’re being penalized for violating poorly documented, questionably legal (an argument that I’m certainly unqualified to make) and arbitrarily enforced policies. We’re not being told what is expected of us. And to the extent that we are able, we need to take a stand. We need to know our rights, document the fact that we’ve been wronged, and work for change. And if we fail to enact change, the very least that we can do is make it such a pain in the ass to harass photographers that those who would otherwise jump at the chance will think twice, if for no other reason than to avoid a mountain of paperwork and an internal affairs investigation.

If you do nothing else today, tell some random person the address of the DARPA headquarters in Fairfax Virginia. It’s 4301 N. Fairfax Drive, a non descript brown office building.

You can’t miss it. You just can’t take pictures of it. Click – 22.

(Hat tip: Noah Shachtman/Danger Room)

Cheney Predicts, The Lights Go Out and Reality Prevails

MSNBC is reporting that another part of the infamous Senate Intelligence committee’s “Phase II” investigation on Iraq will be released on Friday.

You remember this report right? This was the report that was so important the Democrats staged an orgy turned off the lights forced a closed-door session of the Senate to get the Republicans to finally finish it.

Well they’ve gotten around to looking at the predictions about how things would go after Sadaam hit the road.

According to MSNBC, “people” in the administration (perhaps the unnameable, invisible senior officials at the DOJ?) were informed that things in Iraq might not end up being all that rosy.

In January 2003, two months before the invasion, the intelligence community’s think tank — the National Intelligence Council — issued an assessment warning that after Saddam was toppled, there was “a significant chance that domestic groups would engage in violent conflict with each other and that rogue Saddam loyalists would wage guerilla warfare either by themselves or in alliance with terrorists.”

It also warned that “many angry young recruits” would fuel the rank of Islamic extremists and “Iraqi political culture is so embued with mores (opposed) to the democratic experience … that it may resist the most rigorous and prolonged democratic tutorials.”

None of those warnings were reflected in the administration’s predictions about the war.

In fact, Vice President Cheney stated the day before the war, “Now, I think things have gotten so bad inside Iraq, from the standpoint of the Iraqi people, my belief is we will, in fact, be greeted as liberators.”

Perhaps Cheney did a conference call with Sylvia Brown and she just mischanneled the vibes.

I’m sure the timing here is completely random. It’s obviously merely an attempt remind everyone just how bad a job the Whitehouse has done and not an attempt to distract everyone from just how bad the Democrats are failing at stopping them; remind everyone of the day the Lights Went Out in Georgia the day Democrats actually forced the Republicans to do something.

Nah! I’m sure that’s just me.

(Hat Tip: Laura Rosen/War and Piece)

Sniffex – Probably Just Had Hayfever (Updated)

Update: A commenter pointed me to the very useful Sniffexquestions blog. Not that you shouldn’t read my stuff. But any Sniffexquestions you might have, will be answered there. (S)he even has the report of the test shown below.

James Randi, of JREF, Sharon Weinberger, lover of government mind control stories and Imaginary Weapons (now in paperback!) and Bruce Schneier, crypto-guy have all pointed to the Sniffex modern munitions dowsing rod foolishness.

As Sharon put it over at Danger Room

Penny stock schemes are a dime a dozen, but you gotta love ones that involve far-fetched military technology. A few months ago, I received in the mail information on Sniffex, a company touting a dream technology in the age of terror: a hand-held explosive sniffer. The company’s claims about its uses — sniffing through concrete and at great distances, sounded a bit too wonderful. I tossed the brochure — labeled “hot stocks on the street”– in my pile of possibly stupid weapons, and promptly forgot about it.

Others didn’t. Famed magician and uber-Skeptic James Randi unearthed a Navy report evaluating Sniffex, and from the snippets he published online, it’s rather damning

Bruce Schnieder picked up the story. His intrepid commenters found the more interesting stuff. One reader describes a blind test of the Sniffex ‘product’ conducted at Bob Hope airport . “Tourism and Safety 2006”, a conference for law enforcement professionals held at the Anaheim Hilton Hotel in April of 2006 [Updated: See Comments – Thanks MY]. Now the videos of this blind test of ‘detection equipment’ are up at YouTube. The test is simple. Several envelopes, 9 filled with salt, 1 filled with gun powder – now use the Sniffex ‘device’ to find the dangerous one.

It starts off with a description of how Sniffex works (like the energy source – YOU!).

Then a simple test is proposed

And they huff, and they puff, and huff again. But they can’t find the explosive.

My favourite part? Perhaps the ever-present elevator music in the background. Like some surreal cross between Heidi and 24, frantically search for the nuke while “What A Wonderful World” plays as a soundtrack. Perfect.

Despite all the negative waves being sent their way, Sniffex is still being pushed on it’s European site with a “patented method based on detection of magnetic interference.” As a matter of fact, they even have a patent number: 6,344,818. See – down at the bottom

Oh!. Maybe they don’t have that patent any more.

Status: Patent Expired Due to NonPayment of
Maintenance Fees Under 37 CFR 1.362
Status Date: 03-08-2006

So not only do they have a device that doesn’t work, they can’t even keep their patent “working”.

Paper Trails

How do you do solve a problem shown through an uncomfortable paper trail demonstrating a misuse of power and possible overreach?

You eliminate the paper trail.

In all the recent headlines about blame babes (Plame) and politically fired political appointees (AGs), the FBI overreach ‘scandal’ has lost its grip on first page and slipped somewhere into the middle of the paper. (And who remembers the curfuffle about that Walter Whatever hospital?)

The FBI story surfaced about two weeks ago when it was revealed that the government was using so called “emergency letters” to request telephone records. The “emergency letters” were to precede a court ordered subpoena and were only to be used in – well – emergencies. It doesn’t seem to have worked out quite like that. An audit of the practice by that oh-so-politicized Department of Justice turned up misuse. From the Washington Post,

The audit by the department’s inspector general detailed widespread abuse of the FBI’s authority to seize personal details about tens of thousands of people without court oversight through the use of national security letters.

It also found that the FBI had hatched an agreement with telephone companies allowing the agency to ask for information on more than 3,000 phone numbers — often without a subpoena, without an emergency or even without an investigative case. In 2006, the FBI then issued blanket letters authorizing many of the requests retroactively, according to agency officials and congressional aides briefed on the effort.

The disclosures prompted a public apology from FBI Director Robert S. Mueller III and promises of reform from Attorney General Alberto R. Gonzales, who was the focus of a new tide of criticism from Democrats and Republicans already angry about his handling of the firing of eight U.S. attorneys.

The problem was that during the audit (the download 34 MB),the inspector general found a paper trail showing the abuses. Management promised to address the problem.

Yesterday’s Washington Post carried the administration’s solution. Simply remove the paper trail and stop using letters – just ask for the information.

The FBI, which has been criticized for improperly gathering telephone records in terrorism cases, has told its agents they may still ask phone companies to voluntarily hand over toll records in emergencies by using a new set of procedures, officials said yesterday. In the most dire emergencies, requests can be submitted to the companies verbally, officials said.
[…]
Under past procedures, agents sent “exigent circumstances letters” to phone companies, seeking toll records by asserting there was an emergency. Then they were expected to issue a grand jury subpoena or a “national security letter,” which legally authorized the collection after the fact. Agents often did not follow up with that paperwork, the inspector general’s investigation found.

The new instructions tell agents there is no need to follow up with national security letters or subpoenas. The agents are also told that the new letter template is the preferred method in emergencies but that they may make requests orally, with no paperwork sent to phone companies. Such oral requests have been made over the years in terrorism and kidnapping cases, officials said.

Now the Patriot Act spelled out that the “emergency letters” were only to be used in “emergencies.” The Patriot Act spelled out that “emergency letters” were to be followed up with supoenas. But as one FBI person interviewed described in the original story (and sorry can’t find the reference), once you have the documents the urge to do paperwork goes way down. But hey, this new plan – no paper, but an auditable trail (of what breadcrumbs?) I’m sure that will work much better. Bravo.

We don’t need no paper anymore. (Hey FBI, do you even have working software yet?!)

According to the article there will be an audit trail. FBI Assistant Director John Miller says so and we just have to believe him. Because even if the FBI is wrong and the telephone records weren’t needed, the government will never tell you they requested it. And if they forget to write it down, no one can prove they asked for it. Neat huh?

But perhaps more interesting is that this story got bounced back from the front page to page A06 in yesterdays WP. It got covered almost nowhere else.

Whereas Reagan was known as the Teflon president, Bush has developed a completely new strategy: produce so much shit that the press is simply overloaded. After all, there are only 30 minutes (or subtracting fluff, sports, weather and advertising about 10 minutes) on the evening news and the cable news shows manage about the same average spread over 24 hours (but with pundits!) In recent years the newspapers have been getting thinner and smaller and the journalistic staffs cut.

The Bush administration has finally managed to tweak spin to a fine art. You don’t need to spin a story for more than three or four days if you can toss another headline grabbing scandal on the fire. Brilliant. Don’t spin, scandal!

And who says Bush isn’t smart. After all, hasn’t he proven he knows where the library is in the White House? Now if we could only find the record of his library card to find out what he is really reading.

Oh. Yeah. Forgot. No paper trail

Bearing Burdens or Just Overbearing

Two weeks ago the Fourth Circuit Court of Appeals in Richmond Virginia turned down the appeal by Khaled el-Masri to reinstate his civil lawsuit for his “extraordinary rendition” which had been thrown out by a lower court. The reason for refusing the lawsuit wasn’t because it wasn’t valid but because it might cause information to be divulged that would be a detriment to national security. It violated the so called state secrets privilege.

From the Washington Post,

The danger that state secrets could be revealed outweighs a German man’s claims that the CIA tortured him in an Afghan prison, a federal appeals court ruled Friday in refusing to reinstate his lawsuit.

The case centers on the CIA’s “extraordinary rendition” program, in which terrorism suspects are captured and taken to foreign countries for interrogation. Human rights groups have heavily criticized the program.

The three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of Khaled el-Masri’s lawsuit against former CIA director George Tenet and others.

I won’t mention the Bush friendly placement of this judgement on a Friday. You get better – um – nonexistent news coverage on Fridays.

I haven’t blogged about this for a couple of reasons: First I wanted to read the opinion (to be found here) and second because I wanted to think about the ramifications a bit.

There are a couple of things I’d like to point out. While I am neither an attorney nor do I blog as one on TV, I suspect the court had very little leeway here. As they present the case law in their opinion, they have followed fairly standard case law. This was not an activist court room. The opinion seems to be rather normal.

As far as I can see, el-Masri, the ACLU etc. are arguing that all the basic facts in the case are already part of the public record. Bush and others have admitted the ‘extraordinary rendition’ program. The fact that el-Masri was kidnapped and held also isn’t really disputed. The EU has published findings about both black sites and illegal flights. Those things aren’t being challenged.

The problem is that the defendants in the case, Tenet et al., can’t raise an effective defense without recourse to classified data or without exposing information that the government has determined to be detrimental to national security. (And they can’t tell you why because that’s classified.) The defendant’s can’t show an alibi if they can’t talk about where they really were.

El-Masri’s attorneys argued that the case could be tried without openly revealing the information. The evidence could be reviewed in court and protected using nod-disclosure agreements.

But the appellate court doesn’t have any choice but to throw the case out. From the opinion.

El-Masri’s contention in that regard, however, misapprehends the nature of our assessment of a dismissal on state secrets grounds. The controlling inquiry is not whether the general subject matter of an action can be described without resort to state secrets. Rather, we must ascertain whether an action can be litigated without threatening the disclosure of such state secrets. Thus, for purposes of the state secrets analysis, the “central facts” and “very subject matter” of an action are those facts that are essential to prosecuting the action or defending against it. [emphasis in original]

Thus, I can’t imagine that this case will be touched by the Supreme Court. I can’t imagine why.

But that isn’t what irritates me.

First. The main case being sited, United States v. Reynolds, tried in 1953. This case sheds quite a bit of light on the use of the state security privilege by the US government. From InsideDefense ,

The petition, filed last month in Philadelphia, claims the widows of three contractors who were killed in a 1948 research flight near Waycross, GA, were denied a portion of their compensation for the crash after the government refused to release accident reports relating to the case because the documents purportedly contained “military secrets” that could not be viewed by the court. After the government appealed two lower court decisions that were favorable to the widows, the Supreme Court decided in the 1953 case, United States v. Reynolds, to reverse the lower court rulings based in large part on an affidavit signed by then-Air Force Secretary Thomas Finletter and then-service Judge Advocate General Maj. Gen. Reginald Harmon. Because of the reversal, the widows were forced to settle with the government, receiving $50,000 less than the amount that had been awarded in the lower courts, according to the recently filed petition.

When the accident report and other documents relating to the 1948 crash were declassified in 2000 and appeared to contain no secret information, the victims’ families contacted the Philadelphia law firm that had represented the widows in the 1953 case, leading to the filing of the petition earlier this year.

Although the petition seeks only compensation for the money previously denied the victims and attorneys fees, and not a reversal of the legal principles that were established in United States v. Reynolds, observers of federal secrecy policy say the case highlights flaws in the way the state secrets privilege is adjudicated.

This case has been precedent for the past 50 years in cases of the government claiming state security privilege. The government was covering up the very issue the widows had claimed. That the aircraft were poorly maintained. If something is embarrassing; you simply tell people you can’t talk about it.

The similarities to the case of el-Masri are eerie; the American government has a problem that it can’t or won’t admit, and thus claims national security ‘issues.’

Not only does the US government deny litigation in its own courts. It tries to keep litigation out of foreign courts as well.

Shortly after this ruling was publicised, German news agencies reported that the American government was putting pressure on Germany to revoke the warrants for the arrests of the people involved in the kidnapping. According to n-TV [German]

The investigation by the Munich public attorney against 13 CIA-agents in the case of el-Masri is straining the German-American relations. Highly ranked US diplomats again intervened with the German government last week against the judicial prosecution of the intelligence officers, alleged to have been involved in the abduction of the German-Lebanese Khaled el-Masri at the beginning of 2004.

Der Spiegel reports further that American diplomats spoke with foreign advisors in [German] Chancellor Angela Merkel’s (CDU) chancellery. The Federal Ministry of Justice, officially responsible for international legal issues, was also visited by a representative of the US embassy. This is the US government’s reaction to Berlin’s decision to internationally issue the Munich warrants for the alleged assault and illegal restraint.

Despite substantial political concerns, responsible Federal ministries decided to release the juristically flawless warrants for an international manhunt. Since then 10 of the 13 alleged CIA-agents, who flew el-Masri from Macedonia to Afghanistan via Mallorca, are wanted in the 186 Interpol member countries for “extradition to Germany for arrest.” The warrant was also sent to Washington by Interpol according to Spiegel. Last week the John Bellinger, legal advisor in the US State Department criticized European countries for their dealings with his country. [my translation]

Thus, not only is el-Masri out of luck in America. Even when his government tries to protect its citizens, the Americans feel a need to step in. America. Home of the brave and carrying the flag of democracy and justice to every corner of the world. Except those corners where American interests might be challenged. Nice.

But perhaps most chilling is the following quote from the most recent ruling.

As we have observed in the past, the successful interposition of the state secrets privilege imposes a heavy burden on the party against whom the privilege is asserted. See Sterling, 416 F.3d at 348 (“We recognize that our decision places, on behalf of the entire country, burden on Sterling that he alone must bear.”). That party loses access to evidence that he needs to prosecute his action and, if privileged state secrets are sufficiently central to the matter, may lose his cause of action altogether. Moreover, a plaintiff suffers this reversal not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.

Isn’t it nice that America want its citizens to bear the burden for national security? But the American government also expects this burden to be carried by anyone in the world, American or not. And if a foreign government attempts to protect its citizens (like the American government would do), it is placed under pressure to ‘drop it.’

Just precious.

America. Justice for all some whoever America chooses. America. Love it or just be quiet and bear our burdens for us.

Intercontinental Ballistic Pigeons?

Sharon Weinberger, author and self admitted Pentagon Budget fan, has uncovered the latest Great Red Threat – Pigeons.

Scientists with the Robot Engineering Technology Research Center of east China’s Shandong University of Science and Technology say they implanted micro electrodes in the brain of a pigeon so they can command it to fly right or left or up or down.

The implants stimulated different areas of the pigeon’s brain according to signals sent by the scientists via computer, and forced the bird to comply with their commands.

[Noah Shachtman also dug up some really gross pictures. (Ick, Ick, Ick!)]

Great.

Next thing you know, the Chinese will be developing intercontinental ballistic pigeons, capable of attacking any car city in America.

Then the technology will slip from the control of the Chinese into far more dangerous hands, Iran, North Korea and al-Quaeda. Imagine Ahmadinejad’s Holocaust Denial pigeons, Kim Jong- Il with squadrons of attack pigeons; Bin Laden with world wide cells of jihadist, terrorist winged rats!

America will be force to retaliate with a space-based, anti-pigeon counter measures. This will be neither technologically realistic nor fit into any Pentagon budget, but it will be necessary. These programs will probably get great names like the Pigeon Outer-space Offensive Protection or the Space Housed Intercontinental Terrorist Shield. The Congress will make sure POOP and SHIT-Shield projects are well funded. The Senate must be informed immediately!

Michael Crichton should drop his current plans for his next techno-thriller and address the real Pigeon Threat. Tom Clancy should start work on The Hunt for the Red-Billed Pigeon!

Oh. The. Terror!

We definitely need a new ICBP treaty

Wrong Place, Wrong Time

Castro will be glad. Just like his own citizens, all those foreign terrorists the US imported into his country still don’t have any rights.

In what will obviously spawn a plethora of news stories, cable news program ‘analysis,’ pro and contra blog entries and late night pundit jokes (DailyShow – Just had to take this week off – huh?), the US Court of Appeals for the District of Columbia upheld the Military Commissions Act on Tuesday. Thus spoke Zarathushtra headlined the WP, NYT, The Guardian, … From the Washington Post,

A federal appeals court ruled yesterday that hundreds of detainees in U.S. custody at Guantanamo Bay, Cuba, do not have the right to challenge their imprisonment in federal courts, a victory for the Bush administration that could lead to the Supreme Court again addressing the issue.

In its 2 to 1 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld one of the central components of the Military Commissions Act, the law enacted last year by a then-Republican-controlled Congress that stripped Guantanamo detainees of their right to such habeas corpus petitions. Lawyers have filed the petitions on behalf of virtually all of the nearly 400 detainees still at Guantanamo, challenging President Bush’s right to hold them indefinitely without charges. Yesterday’s ruling effectively dismisses the cases.

Attorneys for the detainees vowed to quickly petition the Supreme Court to hear the case.

But, instead of looking forward at what this means. Whether this move is appropriate and understandable, I would prefer to look back briefly. I’d like to answer a question asked some time ago by one of my commenters Political Teen Blogger, FrecklesCassie. How do we know these guys are so bad that they need to be locked away on a tropical island somewhere?

The answer is patently simple: because someone says so; you can’t ask who of course, that’s classified.

At least that is the summary of a report put forth by the Seton hall law professor (and brother of one of the defending attorneys) Mark P. Denbeaux. In what can only be considered one of the best analysis of how the people in Guantanamo came to defined as ‘military combatants’ and thus to languish in an American torture camp, prison, detention center.

Professor Denbeaux and his students looked into the cases of 393 of the 558 Guantanamo detainees. More specifically, they looked into those cases where Combatant Status Review Tribunals (CSRTs) were convened to limit the detainees ability to request habeas corpus, This is because per definition in the MCA, Military Combatants are excluded from habeas corpus rights. To the casual reader, this system seems fair. But a closer examination clearly shows more kangaroo court than clear cut justice.

In those cases where the government was willing forced to release the information about the CSRTs, Denbeaux’s report is damning.

The most important documents in this record were produced by the Government in response to orders by United States District Judges that the Department of Defense provide the entire record of the Combat Status Review Tribunal for review by counsel for at least 102 detainees. These are described as habeas-compelled “full CSRT returns.” Without these documents, it would only be possible to review the process promised. With the 102 “full CSRT returns,” this Report can also compare the process promised with the process provided.

The results of this review are startling. The process that was promised was modest at best. The process that was actually provided was far less than the written procedures appear to require.

The detainees were denied any right to counsel. Instead, they were assigned a “personal representative” who advised each detainee that the personal representative was neither his lawyer nor his advocate, and that anything that the detainee said could be used against him. In contrast to the absence of any legal representative for the detainee, the Tribunal was required to have at least one lawyer and the Recorder (Prosecutor) was recommended to be a lawyer. [my emphasis]

I can only urge anyone who simply wants to understand the process being used to deny people a fair chance to defend themselves in court to read and spread this report.

I won’t argue about the fact that many of the people might have been in Afghanistan; that many may have been fighting for the Taliban (who, as we might remember were the ligitimate government at the time.). I won’t argue about the fact that some of these people probably should justifiably be locked up and denied freedom. I won’t discuss the fact that the Afghan culture is seeped in traditions of revenge and score settling. I won’t even think of the number of scores that needed to be settled after almost 30 years of civil war.

But to assume that the American government is legitimately holding all of these people basically because some classified source says so? Um. Excuse me?

Let’s simply plug into another event in currently making headlines. (No, I mean neither Anna Nicole Smith nor Britney’s newfound talents in hair styling.) Let’s look at the wonderful job the intelligence agencies did leading up to the Iraq war; the job done so well that Scooter Libby is on trail for lying to cover up leaking information about it.

Now. Ask yourselves whether these same American intelligence organisations were better informed during those confusing times in Afghanistan during 2002 and 2003. Where those organisations any better than they were in developing Iraq information? Ask yourselves whether this administration is willing to own up to its mistakes. Ask yourselves why most of the evidence being presented is so ‘classified’ not even the defendants can see it.

If you do all that, I’m sure you’ll come to the same conclusion as I have as to why many of these people are in Guantanamo,

Busted – um – Warranted (Updated)

Speigel-Online (International version) is reporting that German prosecutors have issued warrants for 13 people in connection with the “rendition” of Khaled el-Masri at the end of 2003.

German prosecutors have issued 13 arrest warrants in connection with the alleged CIA abduction of German citizen Khaled el-Masri, Munich-based Bavarian senior state public prosecutor Christian Schmidt-Sommerfeld said in a statement Wednesday.

Schmidt-Sommerfeld said the warrants had been issued in the last few days. He refused to give more details, saying a statement would be made later Wednesday.

Munich prosecutors investigating the case have said in the past that they received the names of several United States intelligence agents believed to be involved in the abduction from Spanish investigators. However it is not clear whether they are the people named in the arrest warrants.

The LA Times is also running the story. Here the information get’s a little weirder. According to the Times the agents involved in the operation were under major pressure to get a break in a terrorism case…

Legal documents, credit card receipts and hotel records show that those allegedly involved in the Masri abduction stayed at a luxury resort on the Spanish island of Majorca before flying to Skopje, Macedonia, on Jan. 23, 2004. When checking into the hotel, some of the operatives gave aliases, such as Kirk James Bird and James Fairing. The covert team’s charges in Majorca included a food bill of $1,625 and an $81 charge for a massage.

Well, they were getting a break of some kind at least.

For those who haven’t been following the el-Masri case, I would recommend the recommend the online film “Outlawed” and the press release on Breakthrough.tv.

I’ve also written about this case a couple of times. Once commenting on the video and once talking about the most important factor of all – that CIA agents are finding mal – um – rendition insurance a little difficult to get. Almost like getting flood insurance in New Orleans.

Update
In other rendition news, Slate’s Dahlia Lithwick, the coolest Supreme Court watcher ever, has two stories in one. One is about the case of Maher Arar the other about Wesam al-Delaema.

Arar is a household name around the world. The Canadian software engineer was grabbed during a stopover at JFK Airport in 2002 and subjected to 10 months of “extraordinary rendition” in the care of our good friends in Syria. He was tortured until he falsely confessed, then sent home without explanation. A two-year inquiry by a prestigious Canadian commission determined that it had all been an awful mistake. The Bush administration refused to cooperate with that commission and still refuses to remove Arar from the American security watch list, claiming to have secret information that he’s still dangerous although the Canadian authorities dispute that.

Last Friday, Canadian Prime Minister Stephen Harper offered Arar a public apology and $8.9 million in compensation while the Bush administration has blocked his lawsuit, citing the executive branch’s “state secrets privilege.” The conclusions of the Canadians, admitting his arrest was a mistake, are disregarded. No concessions, no apology, no transparency, and no regard for our Canadian allies. Arar wins a permanent entry under A in the world’s Dictionary of Reasons To Hate Us.

But the case of Wesam al-Delaema is different. This is a bad guy. This is the kind of terrorist watchlists and prosecutors dream about. The only problem? You never hear about them. In it’s rush to never ever say anything substantial about the GWOT, the administration also manages to keep quiet when they actually do hit the jackpot. Lithwick’s article is well worth the read.

But, since el-Masri’s civil case was thrown out of US courts due to national security problems “state secrets privilege,” I find this step by the German prosecutors at least warranted.

Do-Nothing Democrats

Senator Ted (Intertubes) Stevens is pissed!

This time doesn’t have to do with people just dumping e-mails on his e-truck or whatever. This is personal; this is family; this is about his wife Cat. According to the AP

At a hearing of the Senate Commerce Committee, [Kip] Hawley[, head of the Transportation Security Administration] ran into inquiries from lawmakers with family members or friends who had encountered problems at airport checkpoints.

Among them was Sen. Ted Stevens, R-Alaska, who complained that his wife, Catherine, was being identified as “Cat” Stevens and frequently stopped due to confusion with the former name of the folk singer now known as Yusuf Islam, whose name is on the list. In 2004 he was denied entry into the U.S., but officials declined to explain why.

Hawley explained that Secure Flight, the new passenger screening program, which he hopes will be running in 2008, would make such problems “a thing of the past.”

Ted isn’t the only person to have problems with the no-fly list. He’s not even the only Ted with the problem. He’s not even the only Senator named Ted who has gotten ruffled feathers over the N-FL. Back in 2004, the Washington Post very calmly (probably more so than Ted Kennedy) explained that,

U.S. Sen. Edward M. “Ted” Kennedy said yesterday that he was stopped and questioned at airports on the East Coast five times in March because his name appeared on the government’s secret “no-fly” list.

Federal air security officials said the initial error that led to scrutiny of the Massachusetts Democrat should not have happened even though they recognize that the no-fly list is imperfect. But privately they acknowledged being embarrassed that it took the senator and his staff more than three weeks to get his name removed.

Of course Republicans are nothing if not paradigms in organisation, fixes and problem solving. Thus this issue was quickly corrected and rectified. At least until someone at the TSA started reading about papal plots; confusing Congress with Parliament; 2005 with 1605; and Guy Fawkes with jihadist, terrorist NUNS!

Sister Glenn Anne McPhee is a busy woman.

As the U.S. Conference of Catholic Bishops’ secretary for education, Sister McPhee oversees Catholic education in the United States, from nursery school through post-graduate. Her job includes working with the Department of Education, speaking frequently at conferences and scrutinizing religious textbooks to clear them with the teachings of the church.

For nine months in 2003 and 2004, Sister McPhee also took on the task of clearing her name from the government’s no-fly list, an endeavor that proved fruitless until she called on a higher power, the White House.

Ok, that was then. Any administrative organisation able to quickly correct and rectify personal problems like Heck-of-a-Job Brownie and under the dictatorship tight reigned control of Michael Chertoff would, more then 5 years after 9/11, finally have everything under control. Unless of course you keep someone like Donna Bucella, head of the FBI’s Terrorist Screening Center since it’s inception in 2003, on the job. She was interviewed by 60 Minutes last October,

Asked if she is confident that the list is complete and accurate, Bucella says, “It’s like painting a bridge. Once you finish one end, you gotta come back. So we endeavor to get the list as current and accurate and thorough as possible.”

She says there are people checking the names to make they belong on the list.

“We got a look at the No Fly List from March. And included on that list were 14 of the 19 September 11th hijackers. How do you explain that?” Kroft asks.

“Well, just because a person has died doesn’t necessarily mean that their identity has died. People sometime carry the identities of people who have died,” she says.

“What you are saying is that you have no information that this person is alive and poses a threat. It’s just a name in the database,” Kroft asks.

“In order fort the name to get in the data base there has to be information that they are a known suspected terrorist,” Bucella says.

“So you are saying it’s just a coincidence that there are 14 names in the computer that match the names of 9/11 terrorists. I mean, the people that are on the list have the same date of births as the people that were killed in the – that died in – the suicide bombers from 9/11. I mean, how do you account for that?” Kroft asks.

Bucella asked how recent this watch list was. When told it was from March, she said, “For some reason the agency might not necessarily want to have taken the name off the list. I can’t explain that.”

According to the article, other people on the list included Saddam Hussein, Nabih Berri, Lebanon’s parliamentary speaker, and Evo Morales, the president of Bolivia. One has to wonder if Saddam has been crossed out yet.

Yes, the TSA will be cutting the no-fly list (N-FL) in half. From an estimated 350,000 to a mere 175,000 people (or down to 25,000, or 22,000 – who the f*ck knows; it’s secret!) People, who are so scary, you don’t want them sitting next to you. Of course some of these no-flyables might be preferable to George Carlin’s proverbial drunk guy with the Grateful Dead T-Shirt and the Fuck-You hat. Or the people who think up these wonderful ideas like the N-FL. Or even Ted Stevens for that matter. But perhaps Family Guy showed the biggest threat to American skies.

So, maybe the Do-Nothing Democrats (almost a month in office and what have they accomplished?) will finally get up off their asses and do something about the N-FL, the threat of singing terrorists… and Ted Stevens.

(For your daily news on the N-FL and other security related issues you might pop by Schneier on Security who does a really good blog on personal, data and general security. He was my source for the 60-Minutes article and the video.)

Hat Tip: Wonkette)

WWWMD?

You weren’t using that satellite, were you? According to Aviation Week,

U. S. intelligence agencies believe China performed a successful anti-satellite (asat) weapons test at more than 500 mi. altitude Jan. 11 destroying an aging Chinese weather satellite target with a kinetic kill vehicle launched on board a ballistic missile.

The Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, NASA and other government organizations have a full court press underway to obtain data on the alleged test, Aviation Week & Space Technology will report in its Jan. 22 issue.

If the test is verified it will signify a major new Chinese military capability.

Jeffrey Lewis, ArmsControlWonk, looks closely at what might have happened and wonks his way right to the heart of the matter.

Looking at the data at Heaven’s Above, NORAD hasn’t updated the orbital elements for FY-1C since Friday—all the other candidate Russian or Chinese satellites have been updated since then.

(Oh, and if you look at the SPACETRACK data, there are lots more reasons to think this is the one. But that is about all I can say on that subject.)

My guess is that when NORAD updates the data again, we are going to seeing LOTS of debris. (Keep checking Heaven’s Above.)

I spoke with a couple of wonky types who tell me that one of the passes on Thursday—before the satellite dramatically changed orbit—would have taken the satellite over central China during what was early evening on the US east coast—about the same time a visible murmur ran through the Forum on Space and Defense in Colorado Springs.

So is this a real problem or just sabre rattling on either the Chinese (look what we can do!) or on the American side (look what they can do!)? According to my favourite defense/technology blog – maybe. Noah Shachtman also points out that the Chinese might have tested an anti-satellite laser back in September.

“China has fired high-power lasers at U.S. spy satellites flying over its territory in… a test of Chinese ability to blind the spacecraft,” Defense News is reporting. And, at least in theory, those lasers might be able temporarily take offline America’s most powerful orbiting spies, like the giant electro-optical Keyhole spacecraft or radar-based satellites like the Lacrosse.

But he goes on to update the story about the laser test and say that “Theresea Hitchens, the Center for Defense Information’s resident spacewar guru, [was] ‘not convinced – nor impressed.'” The ramifications of last week’s test are less than clear. One could hope for diplomacy but Bush is in the White House.

There is that little thing about the changed National Space Policy (NSP) published by the White House back in October. You don’t remember that? That was sort of the idea. The NSP was American sabre rattling par excellence. Basically it claimed “America can use space for whatever they damn well want including for national security. But other countries, um – no.” Tony Snow claimed it was an “old thing…inherited from Uncle Bill.” Who do I believe? *chin rub*

You remember the “Axis of Evil,” Iraq, Iran and North Korea, builders of WMD, the worst of the worst (outside of the innocent puppets being held in Guantanamo)? Well the war-mongers in the White House seem to have left one country out of the equation. China.

To be honest, being one of the “Axis of Evil,” really wasn’t that much of an honor. Iraq wasn’t; Iran is openly working on being evil – playing with that silly enrichment equipment and denying the Holocaust; and the North Koreans were kind enough to send a seismic present to declare their evilness. And you have to be rogue (= small) to be on the axis. Thus China got left out. But are they really that bad?

Perhaps the biggest thing that points against short term political problems with China is the economic factor. Instead of asking what Jesus would do if there was a war with China, one would be forced to ask What Would Wal-Mart Do (WWWMD)? What would happen to the American economy of Wal-Mart’s entire production capacity was on the wrong side of a war?

All this leads me to my philosophical pondering for the day…Jesus = Wal-Mart?

The Gray Line of Terrorism

Over ten years ago the news-services were full of stories about the American teenager Michael Fay, sentenced to be caned in Singapore for spray-painting cars. In the American and European media the outrage was huge, “too severe”, “barbaric”, “uncivilized” were some of the adjectives used. Now, in a brave new post-9/11 world, it is not the Singapore government that supports extreme justice but the American government using extreme rendition not to punish but to extract information.

The Chicago Times had a story yesterday about the start of the Italian trial over the rendition, or to stop using newspeak, kidnapping, of Abu Omar, an Egyptian-born Islamic cleric with Italian citizenship.

In a kidnapping case against 26 Americans and five Italian intelligence operatives, including the one-time CIA chief in Rome and Italy’s former top spymaster, Nasr, better known as Abu Omar, will speak to the court through his letter, telling his story for the first time in his own words.

According to Abu Omar’s written account, obtained by the Tribune, he was walking to his mosque in Milan on Feb. 17, 2003, when he was stopped on the street by a man who identified himself as a police officer. The cleric wrote that he was pulled into a van, beaten and taken by plane to Egypt.

This is an interesting case for many reasons. First, no one really disputes the fact that the Islamic cleric Abu Omar is an extremist. He was trying to get people to go to Iraq to fight, what was then, the immanent American invasion. He is self admittedly no friend of either America nor Israel seeing both as a threat to his culture. It still is unclear whether his actions in trying to recruit “foreign fighters” at that time violated Italian anti-terrorism laws.

But that isn’t the point. It has long been established in western cultures that breaking the law to catch criminals isn’t halal – um… kosher – um… legal. But that is what is on trial here. In what the Chicago Times considers to be surprising, the prosecution has produced a 6500 word letter from Abu Omar detailing his kidnapping and imprisonment in Egypt. Before he describes what happened, he feels he must describe his situation,

I record my testimony from within my tomb and gravesite: and my body has weakened and my mind has become distracted and my illnesses have increased and the signs of my death and termination have appeared.

I record my testimony from within my tomb and gravesite: and my facial features have been altered by the screams of the tortured and the sounds of the whips and the hell of the jail cells.

I record my testimony from within my tomb and gravesite: and I am powerless to do anything other than give the highest thanks and loyalty and appreciation to all who have lit a candle light of hope on the road leading to the uncovering of the mystery of my kidnapping from Italy and my imprisonment and torture in Egypt.

He goes on to detail his kidnapping, imprisonment and torture. Among the things he endured were being hung upside down, beatings, electric shocks and rape. This was all done with after an American kidnapping. George W. Bush has so famously claimed, “We do not condone torture, I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.” Attorney General Gonzales later clarified the American position. He explained that the condition for refusing rendition was not absolute but whether the suspect was “more likely than not” to be tortured.

None of those involved have accepted responsibility for what has been done. According to one of Abu Omars wives, she has been offered $2 million to let the story drop. All that was necessary was to claim that the kidnapping never took place. He had gone for a walk and *poof* landed in an Egyptian cell of his own free will. At least she should make a story sound something like that. Oddly she demurred.

One of the more interesting ramifications of the case for the 26 Americans likely to be tried in absentia is international travel, at least in Europe. Should these gentlemen be convicted, European law would require them to be arrested and deported to Italy should they arrive at any EU airport. No vacations in the south of France for them!

More seriously, this does have ramifications on how the world, not just the Islamic world, views the American conflict and the American techniques. The tolerance level that was so high following 9/11 has been reduced to zero. There is no more slack; the get out of jail free card has been played; even in former members of the Iraqi collation.

For Michael Fay, he was found guilty, the sentence was eventually reduced from 6 lashes to 4 partially due to American pressure and, on May 5, 1994, he was caned. He later returned to the US to live a rather unlucky life and caning became a staple in World Wide Wrestling matches. There was little doubt that Fay had committed the vandalism he was convicted of, it was the sentence that western pundits found objectionable – too brutal, uncivilized. His mother claimed it was torture.

In the case of Abu Omar, it is likely he would have tried to help fight any American intervention in Iraq. He might have even cheered the day the Twin Towers fell. The later, while scandalous, is not illegal. The former, while possibly illegal, has never been clearly proven. There is no question of the fact that Abu Omar has been tortured, he however has never been found legally guilty. Omar is still in custody.

The scandal is the American involvement in his torture; America the country that cries foul when other countries enforce their laws.

It’s In The Mail

Oh my, isn’t this charming.

President Bush doesn’t want to crack down just on the sex and psychic calls, listening in for heavy breathing terrorist threats (or Busch Garden visits). No, Mr Bush wants to know what you have delivered and that’s why he wants to look in your mailbox, the physical one.

According to the New York Daily News, as sort of an early Christmas gift to the NSA, he issued a signing statement on December 20th allowing him to break the constitutionally protected right to postal privacy .

President Bush has quietly claimed sweeping new powers to open Americans’ mail without a judge’s warrant, the Daily News has learned.

The President asserted his new authority when he signed a postal reform bill into law on Dec. 20. Bush then issued a “signing statement” that declared his right to open people’s mail under emergency conditions.

That claim is contrary to existing law and contradicted the bill he had just signed, say experts who have reviewed it.

Dan Froomkin, Washington Post, gives a well deserved hat tip to James Gordon Meek the author of the Daily News piece. Froomkin notes that, although the signing statement was on public record, it had been widely ignored by the mainstream media. (Christmas party hangovers perhaps?) The silence on this issue may change. Froomkin also gives the more important part of the story, links to information about the bill, the signing statement and quotes the important soundbite from the signing statement itself.

“The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.” [my emphasis]

It is the “exigent circumstances” phrase that’s getting people all riled up. “Protect human life,” “Foreign intelligence collection” – sound pretty fishy to me too.

The Daily News article goes on to include the talking points from the NGO terrorist huggers civil liberties watchdog organisation the Center for National Security Studies.

“The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming,” said Kate Martin, director of the Center for National Security Studies in Washington.

and

Martin said that Bush is “using the same legal reasoning to justify warrantless opening of domestic mail” as he did with warrantless eavesdropping.

I wonder who else might give us a good quote on this? Perhaps the ACLU? From the story in USA Today,

The American Civil Liberties Union said such “deliberate ambiguity” was troublesome.

It “raises a red flag because of President Bush’s history of asserting broad powers to spy on Americans,” ACLU Director Anthony Romero said.

Others accused Bush of making an end-run around the Constitution and Congress. [That must have been Condi Rice, she loves football analogies. No, um – wait. Maybe not.]

So, next time, think twice about ordering that Britney Speers up-skirt picture clock or the Jihadist orgasma-bomb vibrator, guaranteed to be delivered in plain brown paper packaging. Even if your neighors don’t find out, those people at the NSA will know what you have done.

Of course, if you ordered it online or using the telephone, they probably already knew. But look on the bright side, at least now, they can tell you its in the mail.