Thursday, April 10, 2008

What do the protection from torture and the protection from the invasion of privacy have in common?

By Carol Gee

Building on Michael's post about torture from the top --

Where is the nexus between the right to privacy and the detainee torture question? Or is there any connection at all? The best example of the joining of the issues comes from a recent Washington Post article by Dan Eggen and Josh White on April 4. Titled, "AFTER 9/11, A SECRET MEMO -- Administration Asserted a Terror Exception on Search and Seizure," the story reveals that:

The Justice Department concluded in October 2001 that military operations combating terrorism inside the United States are not limited by Fourth Amendment protections against unreasonable searches and seizures, in one of several secret memos containing new and controversial assertions of presidential power.

The memo, sent on Oct. 23, 2001, to the Defense Department and the White House by the Office of Legal Counsel, focused on the rules governing any deployment of U.S. forces inside the country "in the event of further large-scale terrorist activities" by al-Qaeda, a Justice Department official said yesterday.

Administration officials declined to detail what domestic military operations were being contemplated at the time, and the legal status of the secret memo is now unclear. Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.

. . . Roehrkasse and other officials said the 2001 memo is not related to the administration's controversial warrantless surveillance program, which allowed a military organization -- the National Security Agency -- to monitor communications between the United States and overseas without warrants.

Justice Department officials also declined to explain a reference in Yoo's 2003 memo that said the Criminal Division "concurs in our conclusion" that federal criminal laws do not apply to the military during wartime. The division was led at the time by Michael Chertoff, now head of the Department of Homeland Security.

Attorney General Mukasey, before the Senate Appropriations Committee this morning, refused to say the Fourth Amendment has been withdrawn, according to TPM Muckraker.

The most obvious issue is the rule of law. The Justice Department's sanctioning of torture breaks both U.S. and international law, leading to behaviors that some call war crimes. headline (April 10): "National Lawyers Guild Calls On Boalt Hall To Dismiss Law Professor John Yoo, Whose Torture Memos Led To Commission Of War Crimes." Warrantless illegal wiretapping does not rise to the level of a war crime, certainly. But it has gotten enough the attention in the House of Representatives to stop the amendment of the Protect America Act for almost four months now. Greenwald, on March 14, posted that "House Democrats reject telecom amnesty, warrantless surveillance." Despite widespread fear mongering, the House leadership is looking to see that domestic surveillance operated fully under the rule of law. That should include the telecom industry that enables the government to spy on its own citizens. Complicit private industry must also be forced to comply with the laws of the land.

Another issue is the level of the U.S. government's perceived strength and use of power. A wonderful forum, Project Lucidity, to which I belong has had a magnificent discussion on this topic going on for several days. The topic is, "Thank Yoo: There's more than torture behind the memos." This wide ranging and thoughtful group discussion covers much of what is in the issue of the governments use of its power. If someone in the government has the ability to snoop in the passports of all three presidential candidates what does that say about the way the administrations feels about the idea of protecting civil liberties. It would seem that they hold that responsibility in very low regard. Glenn Greenwald, on March 21, wrote about "The Obama passport snooping and the unchecked surveillance state." Well put.

It occurs to me that an additional issue upon which both turn is secrecy. The current administration is perhaps the most secretive ever, always justifying it with the excuse of "national security." The current questions about who actually authorized the use of torture began anew with the release of the "John Yoo memo." Just recently ABC News revealed that approval of what was permitted in the treatment of detainees was given at the highest levels of government. The story is headlined: "Sources: Top Bush Advisors Approved 'Enhanced Interrogation' -- Detailed Discussions Were Held About Techniques to Use on al Qaeda Suspects," by Greenburg, Rosenberg and deVogue, on April 9. To quote: "At the time, the Principals Committee included Vice President Cheney, former National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft." Last month I took a second peek at the "Quantico circuit": A whistle blower has reported that wholesale data mining enables the FBI to intercept and screen content, not just who, where and how long were the conversations. It is still in the news: "Privacy Concerns Raised -- FBI Data Transfers Via Telecoms Questioned," by Ellen Nakashima at The Washington Post (April 8). At issue here is just how intrusive should the FBI wiretapping be, and how are court protections to be maintained. A whistle blower has reported that wholesale data mining enables the FBI to intercept and screen content, not just who, where and how long were the conversations.

There is also a nexus of the constitutionally apportioned powers of the executive, legislative and judicial branches of government. The legislature has oversight responsibility over the executive branch of government. An example is contained in the story of how the Department of Homeland Security treats data mining, and how they report that to Congress. Firedoglake's "looseheadprop" says, "DHS Data Mining -- It's as Bad as You Thought" (March 19). A first report to the House was not accurate about the scope of the effort and privacy protections provided. Where the nexus of the courts and the executive intersect currently are the trials of detainees. For the most part the executive has sought to be lawmaker, judge and jury when it comes to all of those labeled as terrorists. However, the Supreme Court has already intervened in a number of cases and overruled the current administration. The New York Times reports that the torture "Tapes' destruction hovers over detainee trials." To quote:

But nearly four months after the disclosure that the tapes were destroyed, the list of legal entanglements for the C.I.A., the Defense Department and other agencies is only growing longer. In addition to criminal and Congressional investigations of the tapes’ destruction, the government is fighting off challenges in several major terrorism cases and a raft of prisoners’ legal claims that it may have destroyed evidence.

And finally there is the basic question of tyranny and freedom. The Declaration of Independence was written as a statement of the 13 colonies that they wanted no more of the tyranny of King George of England. They declared that we were independent and free to govern ourselves. Some years later the Bill of Rights spelled our HOW freedom and liberty are to be protected. Protection from torture, fair and humane treatment of those held by the government, along with the protection of citizen privacy have been in place in this country for centuries. Those same provisions have been under assault for the last seven plus years. Make no mistake about the seriousness of that fact.

(Cross-posted at South by Southwest.)

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