The ACLU and religious liberty

I've always been fascinated by the full-throated hostility many social conservatives, and conservative Christians in particular, bear toward the ACLU. Yes, the ACLU supports separation of church and state. But it also defends religious groups on free speech and religious liberty grounds.

After hearing far too many assertions that the ACLU has a secular, anti-Christian agenda, I e-mailed them. I asked for a list of religious liberty cases they've undertaken. Here's what they sent me -- and remember that it is merely a *partial* list.

2004: Indiana Civil Liberties Union defends the rights of Baptist minister to preach his message on public streets: LINK
2004: After ACLU intervention on behalf of Christian valedictorian, Michigan high school agrees to stop censoring religious yearbook entries: LINK
2004: ACLU of Washington defends right of evangelical minister to preach on sidewalks: LINK
2004: ACLU of Virginia threatens lawsuit and officials agree not to prohibit baptisms on public property in Falmouth Waterside Park in Stafford County: LINK
2004: ACLU of Nevada supports free speech rights of evangelists to preach on the sidewalks of the Strip in Las Vegas: LINK
2004: ACLU of Nebraska defends church facing eviction by the City of Lincoln: LINK
2003: ACLU of Rhode Island supports rights of carolers to sing outside women's prison on Christmas Eve. Prison officials back down, agree to let the caroling take place.
2003: ACLU of Massachusetts defends students punished for distributing candy Canes with religious messages: LINK
2002: ACLU of Pennsylvania files discrimination lawsuit over denial of zoning permit for African American Baptist church: LINK
2002: ACLU of Massachusetts files brief supporting right of Church of the Good News to run ads criticizing the securalization of Christmas and promoting Christianity as the "one true religion" after the Massachusetts Bay Transportation Agency refuses to allow the ads on subways.
2002: ACLU of Iowa supports right of students to distribute Christian literature in public schools during non-instructional times. Files amicus brief in case for students barred from doing so in Davenport: LINK
2002: ACLU helps Reverend Jerry Falwell win ruling that state of Virginia must allow churches to incorporate: LINK
2002: ACLU defends Christian church's right to run "Anti-Santa" ads in Boston subways: LINK
2001: ACLU of Utah negotiates settlement enabling evangelical Christian ministry to set up booth at state fair on same terms as other vendors. Group previously had been excluded from the fair because some patrons objected to content of their message.
2000: ACLU of Maryland supports Baltimore police officer suspended for wearing his hair in locks for religious reasons.
1999: The ACLU of Maryland assists the March for Life Committee in getting a permit for an anti-abortion march in Annapolis without having to pay a $5,400 fee the city was seeking. The ACLU worked with the American Center for Law & Justice to revise a proposed city ordinance so as to keep free speech free.
1999: ACLU of West Virginia files suit on behalf of a minister who declined, for religious reasons, to have his photograph taken for a driver license.
1998: ACLU of New Jersey files a lawsuit on behalf of the right of two police officers in Newark to wear beards as a matter of religious freedom. As Muslims, the officers wore beards as part of their religious beliefs.
1998: ACLU of Eastern Missouri win job back and permission to wear pin for a nurse who lost her job because she refused to remove a cross-shaped lapel pin from her uniform. The hospital had claimed the nurse violated its employee dress code when she expressed her Christian beliefs by wearing the pin.
1997: Arizona Civil Liberties Union sues City of Phoenix to challenge an ordinance under which the City refused to allow the Children of the Rosary, an anti-abortion group, to place ads on City buses. The lawsuit was filed jointly with the American Center for Law and Justice.
1996: ACLU of Virginia files lawsuit for church in Richmond threatened with closure of its Sunday meal program by city officials because of zoning regulations.
1995: ACLU of Washington supports right of a Baptist minister to distribute religious tracts in a park in Renton after police asked him to desist because he lacked City permission. The City relented after the ACLU pointed out that the law cited against the minister applied only to commercial activities.
1995: ACLU of Vermont wins ruling from state Human Services Board waiving state Social Welfare Dept. requirement for use of Social Security numbers by students receiving Medicaid and food stamp benefits. Their parents believed that such permanent numbers represent mark of the Anti-Christ, according to the Book of Revelations. ACLU argued that their religious beliefs could be protected by use of random identifying numbers.
1995: ACLU of Massachusetts successfully defended rights of prisoners to possess and use religious articles in their cells. Worcester County Sheriff had seized rosaries, prayer beads, religious medals, books and symbols, claiming they were signs of gang membership. ACLU of MA filed suit on behalf of the prisoners' rights to practice their religion under the Religious Freedom Restoration Act of 1993 and the state constitution.
1995: ACLU of Massachusetts filed friend of the court brief in support of two women who were fired for refusing to work at the racetrack on Christmas Day.
1995: ACLU of Iowa successfully sued City of Waterloo to defend right of conservative Christian activist to broadcast on public access television.
1994: ACLU of Rhode Island files a federal lawsuit on behalf of the RI State Right to Life Committee, the RI State Rifle and Revolver Association and numerous other non-profit groups challenging a House of Representatives rule that bars private, but not government, lobbyists from the floor of the House while it is in session.
1994: ACLU of Pennsylvania assisted a pregnant 17-year-old whose parents wanted her to have an abortion she didn't want. She had moved away from home to continue her pregnancy, but her parents called police to have her brought home. ACLU convinced officials to let her continue her pregnancy and live away from parents.
1993: ACLU successfully defends the right of a woman to refuse, on religious grounds, to submit to a court-ordered caesarian section.
1993: ACLU of Northern California defends an 8th-grade student's right to wear a shirt saying "Real Women Love Jesus" in school by writing letters to principal. Result: School district lifts ban on shirt. LINK
1993: ACLU of New Jersey files an amicus brief on behalf of anti-abortion picketers. "Our defense of freedom of speech clearly cannot vary, and has not varied, with the views expressed." -- ACLU attorney Frank Corrado.
1993: ACLU of Florida offers legal assistance to Operation Rescue, who refused the offer.
1993: ACLU joins battle to overturn a court ruling which banned a minister from holding meetings at a public school in New York State.
1992: ACLU of Rhode Island files a friend-of-the-court brief challenging a state judge's increase of bail for anti-abortion defendants, charged with obstructing a clinic, who refused to provide their Social Security numbers.
1991: ACLU of Northern California offers support for man arrested for displaying photographs of human fetuses. "The ACLU is pro-choice, but the fact that we might disagree with their message would never dissuade us from defending their right to speak out." --Elaine Elinson, Public Information director, ACLU-Northern California.
1990: ACLU of Southern California files a brief supporting Operation Rescue's appeal of a federal judge's ruling upholding the use of "pain compliance" techniques by L.A. police.
1990: ACLU of Rhode Island files a friend-of-the-court brief in state Supreme Court in support of anti-abortion protesters challenging the constitutionality of a town ordinance limiting residential picketing.
1990: ACLU of Central Florida backs televangelist Tammy Faye Bakker's attempt to challenge to zoning laws in Orlando, claiming the law's prohibition of churches in industrial zones violates church/state separation.
1990: ACLU of Iowa supports anti-abortionists' challenge to an Iowa City picketing ordinance.
1989: ACLU of Connecticut offers assistance to Operation Rescue demonstrators subjected to pain compliance holds. ACLU state director calls for state legislature to hold hearings on the issue and consideration forbidding their use.
1988: ACLU of Rhode Island favorably settles an administrative complaint challenging the use on police applicants of a standardized psychological test which asks questions relating to fundamentalist religious beliefs.
1982: ACLU of Rhode Island mounts a successful federal challenge on behalf of an unendorsed Democratic right to life candidate, to a state law allowing only political party committees to hold raffles to raise funds for political campaigns.

Technorati tags
ACLU, religion, politics, midtopia

The right thing, four years late

In response to an Associated Press lawsuit, the Pentagon today released the names of all the inmates being held at Guantanamo Bay.

The names were scattered throughout more than 5,000 pages of transcripts of hearings in which detainees defended themselves against allegations that they were "enemy combatants." That classification, Bush administration lawyers say, deprives the detainees of Geneva Convention prisoner-of-war protections and allows them to be held indefinitely without charges.

Which sums up why it will be a great day for this country when the "enemy combatant" designation is retired for good.

"You can't just draw a veil of secrecy when you are locking people up," said Jamie Fellner, director of the U.S. program for Human Rights Watch. "You have to do at least the minimum, which is to acknowledge who you are holding."

Precisely.

I look forward to finding out what news organizations discover after poring through the data. I also hope many of the documents make their way online so we can examine them ourselves.

Technorati tags
terrorism, Guantanamo, civil liberties, civil rights, politics, midtopia

Archives halts reclassifying of documents

Speaking of government openness, in a follow-up to this post, the National Archives does the right thing.

After complaints from historians, the National Archives on Thursday directed intelligence agencies to stop removing previously declassified historical documents from public access and urged them to return to the shelves as quickly as possible many of the records they had already pulled.

Allen Weinstein, the nation's chief archivist, announced what he called a "moratorium" on reclassification of documents until an audit can be completed to determine which records should be secret.

What's sad is that this is even an issue in 2006.

Technorati tags
terrorism, national archives, politics, midtopia

Government data and privacy

Minnesota Gov. Tim Pawlenty has proposed removing public access to a lot of government data on individuals, on the grounds of protecting those individuals' privacy.

Pawlenty called for rewriting Minnesota's Data Practices Act to eliminate a presumption that all information governments collect is open for public inspection and replace it with a presumption that most personal information in government files is confidential.

(snip)

His plan also includes:

1. Barring the state from releasing, except in special circumstances, personal information it collects from driver's license applications.

2. Making it illegal for anyone to divulge another person's telephone records.

3. Barring private businesses from using Social Security numbers to identify patients or customers, and requiring companies to restrict employees' access to the Social Security numbers of their co-workers.

This could be a fascinating debate, turning as it does on two issues I hold dear: personal privacy and governmental openness.

Let's narrow the debate down to the important points. The three specifics above aren't very controversial, since they largely reflect current law. The biggest one is the driver's license data. It's already restricted, but the rules are interpreted to mean that media organizations can have access. That allows journalists to quickly double-check details on people in their stories, as well as do more general analyses of all sorts of demographic data. The media have a responsibility to use that access carefully -- a responsibility that could be made statutory. But completely eliminating media access to the database would be a mistake.

Rewriting the Data Practices Act is the biggie, one that could have far-reaching implications, and isn't something to be done lightly.

It can already be difficult to get public information from the government; a 2000 survey by a group of Minnesota journalists found that many governmental bodies refused to release information that was clearly public domain:

57% of county jails refused access to the names of prisoners. Itasca County charged $5 per inmate for the information -- which is supposed to be free except for a nominal copying charge.

28% of school districts refused to reveal the superintendent's salary.

2% of City Hall officials refused to allow access to the minutes of council meetings.

The survey demonstrated that despite a law that says otherwise, many public employees are reluctant to share indisputably public data with citizens. A new, more restrictive law would just provide a whole raft of new reasons to deny access to legitimately public data.

And that's *if* the law includes a very careful definition of what is public and what isn't. A vaguely written law would just compound the problem.

Why should we care? Two reasons. One, open access to government information is one of the most important ways we have to keep tabs on our government. If we allow it to operate in secrecy, oversight becomes nearly impossible.

Second, much useful research -- on health, on crime, on population growth, on infrastructure -- relies on access to government data. It may be possible to allow access to aggregate but not individual data, but in some cases even that would not be enough. Sometimes you have to know the individual data in order to make sense of the aggregate results.

I applaud the governor's concern for privacy. I just think his sledgehammer approach is a very careless one that practically guarantees massive unintended consequences. Rather than presume all data is private, a better approach would be to carve out narrow, specific exceptions for certain data -- much as driver's licenses are handled now.

Technorati tags
pawlenty, minnesota, privacy, politics, midtopia

Katrina and leadership

A nice take on the Mike Brown/Bush/Katrina fiasco at the Centrist Coalition.

The latest revelation that the President was told by Brown that there were doubts about the levies surrounding New Orleans and the ability to respond, is IMO, the smoking gun. As David Gergen put it, the fact that the President of the United States did not ask any questions in the final briefing before the disaster is most troubling and further exposes a leadership style from this President that in many ways has failed the country that put its' trust in him.

We now know the statements from the White House that Katrina was a 9/11 like surprise that couldn't be prepared for is simply untrue, and although Mike Brown's level of blame isn't clear, his failure as the head of FEMA was the least of the government's problems before the Hurricane. The President was asleep at the wheel and relied too much on a former judge with little administrative experience and Brown, whose own qualification are questionable, to get the job done.

For more, click on the link. I don't necessarily agree with their assessment that Rudy Giuliani has proven he's up to the job because he managed an ungovernable city through an unimaginable crisis -- the federal government is orders of magnitude more complex than New York City -- but there's a lot of food for thought there.

Technorati tags
katrina, bush, giuliani, fema, politics, midtopia

Where blame for Iraqi prisoner abuse belongs

An excellent article in the New York Times by a former Army interrogator who worked in several Iraqi prisons, including Abu Ghraib. I hate to quote so much of the article, but it's a compelling read.

Following orders that I believed were legal, I used military working dogs during interrogations. I terrified my interrogation subjects, but I never got intelligence (mostly because 90 percent of them were probably innocent, but that's another story).

Perhaps, I have thought for a long time, I also deserve to be prosecuted. But if that is the case, culpability goes much farther up the chain of command than the Army and the Bush administration have so far been willing to admit.

When the chief warrant officer at our interrogation site in Mosul first told me to use dogs during interrogations, it seemed well within what was allowed by our written rules and consistent with what was being done at Abu Ghraib and other detention centers.

The dogs were muzzled and held by a handler. The prisoners didn't know that, though, because they were blindfolded; if they gave me an answer I didn't like, I could cue the handler so the dog would bark and lunge toward them. Sometimes they were so terrified they'd wet their jumpsuits.

About halfway through my tour, I stopped using dogs and other "enhancements" like hypothermia that qualify as torture even under the most nonchalant readings of international law. I couldn't handle being so routinely brutal.

In training, we learned that all POWs are protected against actual and implied threats. You can never put a "knife on the table" to get someone to talk. That was clear. But our Iraqi prisoners weren't clearly classified as POWs, so I never knew what laws applied. Instead, a confusing set of verbal and written orders had supplanted the Geneva Conventions.

When an Army investigator asked Col. Thomas Pappas, the top military intelligence officer at Abu Ghraib, how intimidation with dogs could be allowed under this treaty, he gave the chilling reply, "I did not personally look at that with regard to the Geneva Convention."

Pappas later testified that he was taking his cue on the use of dogs from Maj. Gen. Geoffrey Miller, who took over detainee operations in Iraq after running them in Guantánamo Bay, Cuba.

Miller has denied recommending the use of guard dogs to intimidate prisoners during interrogations in Iraq. He also recently said he would not testify in the courts-martial of Cardona and Smith, invoking his right to avoid self-incrimination.

As someone who voluntarily spoke at length about my actions in Iraq to investigators, without a lawyer present, I can't have a favorable opinion of Miller. By doing the military equivalent of "taking the Fifth," he's decided to protect himself, apparently happy to let two dog handlers take the fall - a stunning betrayal of his subordinates and Army values.

(snip)

In the military, orders are orders unless there is clear, uncluttered law transmitted from far above our commanders' rank and station. Instead of a clear message prohibiting torture, our top commanders gave us a deliberate muddying of the waters.

(snip)

I know, from personal experience, that any leeway given will be used to maximum effect against detainees. No slope is more slippery, I learned in Iraq, than the one that leads to torture.

Amen. Torture and abuse are counterproductive, immoral and unAmerican. And superiors letting subordinates take the fall for allowing such treatment betrays military values. Soldiers deserve clear bright lines of authority. Instead they got carefully ambiguous situations such as prevailed at Gitmo, Bagram and Abu Ghraib.

We can do better than that.

Technorati tags
terrorism, Iraq, torture, abu ghraib, politics, midtopia

Saudi charity alleges NSA spied on it

A defunct Saudi charity is suing the government, saying that conversations with its lawyers were illegally intercepted by the NSA.

According to a source familiar with the case, the records indicate that the National Security Agency intercepted several conversations in March and April 2004 between al-Haramain's director, who was in Saudi Arabia, and two U.S. citizens in Washington who were working as lawyers for the organization.

The charity in question isn't exactly squeaky clean:

The Treasury Department's Office of Foreign Assets Control froze the foundation's U.S. assets in February 2004, pending an investigation, and designated it a terrorist organization in September 2004, citing ties to Osama bin Laden. Al-Haramain was indicted in February 2005 on charges of conspiring to defraud the United States in connection with a scheme to funnel money to Chechen fighters. The charges were later dropped because the Oregon branch of the organization had shut down.

But unproven allegations and suspicions don't justify warrantless eavesdropping or monitoring lawyer-client conversations. It's important to note that the alleged monitoring took place *before* the group was designated a terrorist organization.

I am not suggesting that we shouldn't eavesdrop on people who pose a potential threat. I merely think that the government should have to get a warrant to do so, ensuring that there is at least some evidence to justify the eavesdropping. Otherwise the government can spy on anyone it wants to, for any reason.

In a later post I will outline why you should be concerned about this, even if you feel you have nothing to hide.

Technorati tags
terrorism, nsa, civil liberties, civil rights, politics, midtopia

Warrantless eavesdropping deductions

In the post below this one, I lay out what I consider the known facts about the NSA spying program. Here's what I think those facts mean:

1. First, the government's argument in the Court of Review case that it should be granted warrants even if there was *no* foreign intelligence component was a breathtaking power grab, which would have rendered warrants meaningless in a legal sense.

2. The legality of Bush's actions turns on a few important questions:

a. Did the NSA eavesdropping involve a massive data-mining program aimed at domestic targets? If so, the legality of it is somewhat murky. NSA was specifically prohibited from turning its capabilities on domestic targets. But if all it did was listen to international communications that happened to include a lot of domestic callers, they at least have an argument. If they were monitoring purely domestic targets, however, that's clearly illegal.

One thing arguing against the program being a data-mining program is that Bush said it was aimed at "a few numbers." That implies targeted eavesdropping, not data-mining.

b. Did the eavesdropping involve only "foreign powers"? If so, it's clearly legal. One thing arguing against this explanation is that the administration has not claimed it. Since it's essentially a get-out-of-jail-free card, I would expect Bush to use this explanation if it were true.

c. Was the eavesdropping aimed at U.S. persons? Then a warrant clearly was required under FISA, even post-Patriot Act.

d. Perhaps Bush does not recognize any limits on his "inherent authority." But if that's the case, he unilaterally ignored one court decision (Truong), a law (FISA) and later another court decision (Court of Review), and is saying he has the right to spy on anybody he wants to if he thinks it's important for national security, regardless of what the other branches of government think. If he *does* think that, he will lose very, very badly. One thing that argues against him thinking that, however, is that in the government has never argued that warrants aren't required, and Bush has himself said that wiretaps require a court order.

So I'm left with the following logical conclusions:

1. It can't be only foreign persons, because Bush would have said so;

2. It can't be a data-mining operation, becaus Bush said it was aimed at only a few people;

3. It can't be an "inherent authority" dispute, because the law is very clear on that point and the administration has never argued to the contrary.

That leaves just two possibilities:

1. It was a limited operation aimed strictly at international calls to known terrorists. But there would be no reason to bypass FISA in such a case, because known terrorists overseas can be monitored without a warrant, and a showing that a domestic number was linked to an overseas terrorist would be a slam-dunk as far as getting a FISA warrant.

2. It was illegal, and Bush knew it. But he wanted to spy anyway, so he bypassed FISA.

Bush's motives might have been pure; we won't know until more details come out. But the most reasonable conclusion is that his actions were illegal. And he knew -- or should have known -- that.

Technorati tags
terrorism, nsa, fisa, bush, civil liberties, civil rights, politics, midtopia

Warrantless eavesdropping primer

I'm going to attempt, with this post, to summarize what we *know* about warrant law and the Bush spying allegations, as a base of reference for future posts.

I'm going to rely on two main sources.

One is the text of the opinion written by the FISA Court of Review. It basically outlines the history of warrant requirements, and its ruling spells out current law.

The second is the text of the FISA law.

So, here's what I consider the known, uncontestable facts:

1. The Truong case in 1978 was the first (and, until the Court of Review, only) case to address head-on the scope of the executive branch's "inherent authority" to conduct warrantless searches for "foreign intelligence" purposes.

2. The Truong case defined and thus limited that power, saying any such search must be "primarily" for "foreign intelligence" reasons, and must not have a substantial likelihood of ensnaring a "U.S. person", defined as a U.S. citizen or legal alien.

3. When FISA was passed later that year (largely in response to revelations of government spying during the Vietnam war), it incorporated the Truong standard into the law, and established the FISA court to hear warrant applications for searches aimed at U.S. persons.

4. Other laws or actions at the time banned the CIA and NSA from domestic surveillance and shut down various FBI and military monitoring programs.

5. Over time, the distinction between foreign and domestic surveillance evolved into a "wall".

6. The Patriot Act attempted to weaken that wall, allowing intelligence and law enforcement agencies to share data and downgrading the standard of evidence for a FISA warrant to foreign intelligence being merely a "significant purpose" for the search.

7. The FISA court, however, kept trying to apply what it considered the legal precedent of the "wall" -- not over sharing intelligence, which the Patriot Act directly addressed, but over the purpose of the search. So they kept insisting on procedures designed to keep an intelligence search from transforming into a criminal prosecution search.

8. The government appealed that approach to the Court of Review.

9. The Court of Review agreed with the government that such procedures were based more on tradition than on actual law. But it also reaffirmed that "foreign intelligence" must be a "significant purpose" of the search, and that a warrant was required if the search involved a U.S. person.

10. That leaves us with the current standard for "foreign intelligence" searches domestically:
a. If it involves a foreign power, no warrant is necessary and the court need not be consulted.
b. No warrant is needed for searches or monitoring overseas.
c. If a domestic search involves a U.S. person, a warrant is needed. And "foreign intelligence" must be a "significant purpose" of the search.

11. During the Court of Review appeal, the government didn't argue that warrants weren't needed; rather they argued about what standards of evidence were required for granting a warrant.

12. In that context, however, the administration argued that it must be granted a warrant even if the search contained *no* foreign intelligence component. In other words, it was arguing that the court was obligated to approve any warrant for any purpose, including a purely criminal investigation. The Court of Review rejected that reasoning.

13. The Bush administration has admitted that it authorized the NSA to eavesdrop on "a few numbers" without seeking FISA warrants. The New York Times says that number was up to 500 people at a time.

Technorati tags
terrorism, nsa, fisa, bush, civil liberties, civil rights, politics, midtopia

The upside to civil war

I don't know the context of this piece on Fox News, but it's pretty hilarious no matter how you slice it.

A segment about escalating sectarian violence in Iraq on the February 23 edition of Fox News' Your World with Neil Cavuto featured onscreen captions that read: " 'Upside' To Civil War?" and "All-Out Civil War in Iraq: Could It Be a Good Thing?"

Minnesota Organization of Blogs

Redistricting revisited

As a follow-up to my earlier post about redistricting, here's one idea for how a fair redistricting plan would work.

6. Each district shall be as contiguous as compact as practicable. With respect to compactness, to the extent practicable a contiguous area of population shall not be bypassed to incorporate an area of population more distant.

a. Respect for contiguous and compact districts shall be secondary to the goals of representativness and competitiveness.

7. District boundaries shall conform to the existing geographic boundaries of a county, city, or city and county, and shall preserve identifiable communities of interest to the greatest extent possible. A redistricting plan shall provide for the most whole counties and the fewest county fragments possible, and the most whole cities and fewest city fragments possible. For the purposes of this section, communities of interest are defined by similarities in social, cultural, ethnic, and economic interest, school districts, and other formal relationships between municipalities.

They also suggest forming large, multirepresentative districts out of (for example) three individual districts, and then electing the top three votegetters. That way you get fair minority representation without having to gerrymander individual districts.

Couple this with instant-runoff voting and you'd go a long way toward making elections fair, competitive and representative.

Technorati tags
elections, texas, supreme+court, redistricting, gerrymandering, civil rights, politics, midtopia

The cost of ignoring civil liberties

The United States has agreed to pay $300,000 to an Egyptian man detained after 9/11.

NEW YORK -- The U.S. government has agreed to pay $300,000 to an Egyptian man who was detained for nearly a year following the Sept. 11, 2001, attacks but was never linked to terrorism, his lawyer said.

The settlement was filed in Brooklyn federal court on Monday, said attorney Haeyoung Yoon, who represents Ehab Elmaghraby. She said she believed it was the first settlement involving the claims of people detained after Sept. 11.

Elmaghraby, a former restaurant worker, was held at the Metropolitan Detention Center in Brooklyn from Oct. 1, 2001, until August 2002, Yoon said.

(snip)

Elmaghraby said he was shackled, shoved into walls, punched and called a terrorist and epithets at the facility. Yoon said he was subjected to repetitive strip searches and a correction officer penetrated his anal cavity with a flashlight.

While in custody, Elmaghraby's thyroid condition was misdiagnosed as asthma, worsening it, Yoon said. He wanted to continue with the lawsuit but settled because of his mounting medical costs, she said.

This may well be just the first of many lawsuits, not counting a class-action suit that has been filed on behalf of all such detainees. It demonstrates once again the high cost of arbitrary detention and abuse of prisoners.

Ignoring civil liberties is a bad idea to begin with. And now it's going to become an expensive one.

Technorati tags
terrorism, detainees, elmaghraby, civil+liberties, civil rights, politics, midtopia

Drawing a bead on drawing districts

The Supreme Court has agreed to examine the 2003 redistricting in Texas, which moved the Texas Congressional delegation from a 17-15 Democratic majority to a 21-11 Republican majority.

The arguments will be about legality and minority voting rights, but the underlying case is a more basic one: what are the limits of gerrymandering political districts?

The basic facts are straightforward. The districts are supposed to be redrawn after each Census. They were, but the Texas legislators couldn't agree, so the issue got bounced to the courts, where a panel of judges basically reaffirmed the existing boundaries while adding two new districts.

Three years later, Delay and Texas Republicans reopened the issue and redrew the boundaries to suit themselves.

Politically, you'll be outraged if you're a Democrat and you think the 2003 redrawing violated the tradition of only redrawing districts after each census. Or you'll feel justice was served if you're a Republican who thinks that legislatures, not courts, are supposed to draw the districts, and so the court-drawn districts were illegitimate.

Me, I hope (probably forlornly) that the case will lead to some reasonable rules about drawing political districts.

Gerrymandering is wrong, period. Districts should be drawn in ways that make sense, not solely to favor one political party or the other.

Those charged with drawing districts should be required to follow one or more basic rules for the boundaries, such as major geographical or political boundaries (mountains, rivers, city limits) or geometrical guidelines such as average distance from a central point. The boundaries should be susceptible to mathematical or logical analysis using those criteria; districts that fail the analysis are thrown out.

Hey, a guy can dream, right?

Technorati tags
elections, texas, supreme+court, redistricting, gerrymandering, civil rights, politics, midtopia

A new Guantanamo in Afghanistan

The New York Times reports that as Guantanamo has come under increased scrutiny, the detention center at Bagram airbase in Afghanistan is quietly turning into another version of the same problem.

Pentagon officials have often described the detention site at Bagram, a cavernous former machine shop on an American air base 40 miles north of Kabul, as a screening center. They said most of the detainees were Afghans who might eventually be released under an amnesty program or transferred to an Afghan prison that is to be built with American aid.

But some of the detainees have already been held at Bagram for as long as two or three years. And unlike those at Guantánamo, they have no access to lawyers, no right to hear the allegations against them and only rudimentary reviews of their status as "enemy combatants," military officials said.

Privately, some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.

While Guantánamo offers carefully scripted tours for members of Congress and journalists, Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the International Red Cross and refuses to make public the names of those held there. The prison may not be photographed, even from a distance.

So Guantanamo has become an international embarassment -- and rightly so. And instead of learning that lesson and changing the way we run our "war on terror" prisons, we simply find another place out of the spotlight to keep doing the same old thing -- guaranteeing that the problem will continue.

To repeat once again:

1. It is sleazy and unethical to deliberately place a prison in a "legal limbo" so we do not have to afford the inmates even rudimentary legal protections.

2. It also violates core American values and actively hampers our fight against terror.

3. If a prisoner was captured on the battlefield, the Geneva Convention should apply. Technically we can ignore it for non-signatories, but it has been American tradition to heed the Conventions even when not legally required -- which is the practical *and* moral thing to do. Such POWs should be released when the fighting in Afghanistan ceases, rather than being held for the duration of a vaguely defined "war" on terror.

4. If a prisoner was captured elsewhere, they are entitled to the rights we afford all criminals, even serial killers: To be charged and tried before an impartial court, in a speedy manner and with legal help.

5. Keeping detainee's identities secret serves no practical purpose, but it can easily mask many unsavory purposes. Our detentions should be able to withstand outside scrutiny.

It's really not that difficult.

Technorati tags
terrorism, civil rights, Iraq, torture, Bagram, politics, midtopia

Blair calls for Gitmo camp to be shut down

When even our staunchest allies don't like something, perhaps we ought to listen.

While Mr Blair again described the five-year-old camp, which stills holds around 500 terror suspects, as "an anomaly", he told his monthly press conference in Downing Street: "It should end sooner rather than later."

(snip)

His comments about closing the camp came just hours after Lord Falconer said he believed Camp Delta should "come to an end" and Lord Goldsmith, the government's senior legal adviser, saying the rule of law "is, or should be, of universal application".

Yesterday, the foreign affairs committee said it was not good enough for ministers to lobby behind the scenes but called on them to voice "loud and (in) public" their protests about Guantanamo Bay. The MPs argued the camp in Cuba was a "hindrance" to the fight against terrorism and had diminished America's moral authority around the world.

From Gitmo to Abu Ghraib

The ACLU has released more details of FBI memos it obtained detailing interrogation methods at Guantanamo Bay in 2002 and 2003.

From a typical news story on the release:

FBI officials who were interrogating terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba, in 2002 and 2003 strenuously objected to aggressive techniques the military was using and believed they could be illegal, according to FBI memos released yesterday.

The agents wrote in memos and e-mails that they were at odds with interrogators working for a Defense Intelligence Agency human-intelligence group and with guidance from senior Pentagon officials. The agents also repeatedly expressed their concerns to the senior military officer at the base, Army Maj. Gen. Geoffrey Miller, and said that the less aggressive FBI-approved methods were more effective.

Miller later was sent to Iraq, bringing with him his advocacy for aggressive interrogation techniques. The Abu Ghraib scandal followed.


The key point:

"Now we can say that the documents show conclusively that abuse and torture at Guantanamo was not the result of rogue elements but was the consequence of policies deliberately adopted by senior military and Pentagon officials," said Jameel Jaffer, an ACLU lawyer.

The Pentagon responds with the technical defense that what occurred was perhaps abusive, but not illegal. That does not excuse it in my mind. Not only is such treatment immoral, it results in unreliable information -- as well as being inadmissible in court. And never mind the damage done to America's reputation.

What exactly occurred? In one case, this:

Military interrogators posing as FBI agents at the U.S. detention center at Guantánamo Bay, Cuba, wrapped terrorism suspects in an Israeli flag and forced them to watch gay pornography under strobe lights during interrogation sessions that lasted as long as 18 hours.

Does anybody think such treatment is liable to elicit information?

The same article notes a related development:

A federal judge Thursday ordered the Pentagon to release the identities of hundreds of detainees at Guantánamo Bay to the Associated Press, a move that would force the government to break its secrecy and reveal the most comprehensive list yet of those who have been imprisoned there.

Some of the hundreds of detainees in the war on terror being held at Guantánamo Bay have been there as long as four years. Only a handful have been officially identified.

Good. Such secrecy is, again, counterproductive. It tarnishes our image and renders hollow our criticisms of other countries' human rights violations when we imprison people secretly, without charge or recourse.

It's a tricky question, what to do with someone captured fighting for the Taliban, say. Military rules say we can imprison them until the end of the war. But which war? The war in Afghanistan, or the "war" on terror?

At a minimum we should accord them rights under either the Geneva Convention or U.S. law, instead of largely ignoring both. For a more comprehensive take on how to handle such prisoners, check out this essay.

Technorati tags
terrorism, civil rights, Iraq, torture, guantanamo, politics, midtopia

Fun with Ann Coulter

Because any chance to bash Ann Coulter should be embraced and doted on, I'd like to do my part to publicize her own personal Votegate.

Palm Beach County Supervisor of Elections records show Coulter voted last week in Palm Beach's council election. Problem is: She cast her ballot in a precinct 4 miles north of the precinct where she owns a home — and that could be a big no-no.

Coulter, who owns a $1.8 million crib on Seabreeze Avenue, should have voted in Precinct 1198. It covers most homes on her street. Instead, records show, she voted in Precinct 1196, at the northern tip of the island.

(snip)

No matter, Florida statutes make it a third-degree felony to vote knowingly in the wrong precinct. Lying on a voter's registration can cost up to $5,000 and five years behind bars.

Follow up articles here and here.

Personally, I'm pulling for the five years in prison instead of the $5,000 fine....

Technorati tags
coulter, voting, palm beach, crime, florida, politics, midtopia

Human slugs

It is difficult to find words to adequately describe these folks.

On her way into the church where the funeral was to be held for her 23-year-old son Thursday morning, Deirdre Ostlund approached six men and women waving signs against gays and America and told them in a cold fury: "I'm Andrew's mother, and I want you to know you are truly hateful people."

As Ostlund turned away, Shirley Phelps-Roper taunted her: "Adulterer! You can't admit you sent your own child to hell! If she does not heed this warning, she will look up from hell with him."

Her small group continued to sing "God hates America."

Try to imagine the amount of drooling hate compressed into these protesters' bodies, to the point that they think nothing of hijacking a soldier's funeral to express their views.

If you wonder where they come from, they come from here.

We have met us, and he is the enemy

Okay, now this is funny.

The Russians aren't the only ones who do this. Don't get me started on how many times I've seen a self-propelled artillery piece or armored personnel carrier referred to as a "tank" in newspaper photo captions.

Portgate

I haven't weighed in on this issue yet, but I suppose I should.

I think this is largely a manufactured controversy. The main problem appears to be that this deal took everyone by surprise, including President Bush. But one would hope that mere surprise would yield more (or far, far less) than overheated rhetoric.

Was I surprised to find out our major ports were run by foreign firms? Yes. Is it a scandal? Not in the short-term political sense. It's been that way for years.

I would prefer that important parts of our nation's infrastructure remain in American hands. But if that's not going to be the case, it makes no sense to discriminate against a particular company based on nothing more than nationality. Dubai is not North Korea or Iran or some other loose cannon. Their only crime is being Arab.

As far as security goes, ownership is less important than who is doing the work on the ground -- and those will be American for the most part.

That said, this is an excellent opportunity to focus on the question of port security -- a topic given much lip service but limited action in the last four years.

Technorati tags
terrorism, dubai, portgate, bush, arabs, politics, midtopia

Technicalities and unanswered questions

Lewis Libby's lawyers are seeking to have the charges against him dismissed. On what grounds, you ask? Because, they say, Special Counsel Patrick Fitzgerald lacks authority.

Lawyers for I. Lewis "Scooter" Libby said his indictment violated the Constitution because Special Counsel Patrick Fitzgerald was not appointed by the president with the consent of the Senate.

The defense attorneys also said Fitzgerald's appointment violated federal law because his investigation was not supervised by the attorney general. They said only Congress can approve such an arrangement.

The lawyers said illegal assignment of "unsupervised and undirected power" to Fitzgerald requires that he be relieved of his duties in the investigation and that all actions he has taken be voided.

Okay, lawyers have a duty to defend their client by whatever means they can. But seeking a dismissal on a technicality such as this one isn't really the best way to go. It's strikingly similar to the defense Saddam Hussein is using, denying the legitimacy of the court rather than disputing the charges against him.

Here's my free legal advice: Not the best example to share company with, guys.

Especially because there are plenty of substantive questions on the topic.

Off the top of my head:

Was Valerie Plame undercover? As far as I can tell, revealing her name was a crime only if a) she was undercover and b) Libby knew it. You would think that answering those two questions would settle the whole affair, and pretty quickly, too. But here we are nearly three years into the case and neither question has been answered.

Why did Libby lie? He's innocent until proven guilty, of course. But let's assume that Fitzgerald can prove his case in that regard. What was Libby's motivation?

What about Cheney? Libby says Cheney authorized him to talk to reporters about Plame, and also to discuss parts of a classified National Intelligence Estimate with reporters.

This last is the most interesting part, but not for the obvious reasons. Parts of NIEs are regularly declassified, and if that's the case then no crime was committed. Yes, it's using classified info for political purposes. And yes, if the relevant parts of the NIE *weren't* declassified, then it may have been a crime. But let's put that aside for a moment.

Because the main reason it wouldn't be a crime is that Cheney says he has the power to declassify information.

Think about that. Because Cheney is authorized to declassify information, he can declassify and legally leak (er, release) anything he wants. But does that make it okay? How do you judge whether he's using that power responsibly, especially when his motivation for declassifying the info is to discredit or counter political opponents?

If you think it's okay in this case.... then where do you draw the line? I'm interested in seeing what people consider a general case when it comes to declassifying data for political purposes.

For a conservative take on it (including a very helpful explanation of exactly what Cheney was referring to), click here.

Finally, a minor side point: Having declassified it, they secretly leaked it to a reporter instead of simply going public with it. What's up with that?

Technorati tags
terrorism, plame, Iraq, libby, cheney, politics, midtopia

Clearing the smoke over "partial-birth" abortion

The Supreme Court yesterday agreed to weigh the constitutionality of a ban on partial-birth abortion.

I generally steer clear of abortion topics because they're almost always pointless. You either think it's okay or you don't. If you're a moderate the issue tends to be where to draw the line, but even then the lines don't move much.

But the bloviating over this case threatens to obscure the underlying facts. So I'll do my best to lay it out.

WHAT'S AT STAKE
The claims: Pro-lifers will have you believe they're trying to put an end to a horrifying procedure that kills thousands of babies every year merely for the mother's convenience. Pro-choicers will have you believe that if we restrict this procedure, it's only a matter of time before abortion itself is outlawed.

The facts: Late-term abortions (not all of which are "partial-birth" procedures) are exceedingly rare. In 2002 there were 1.5 million abortions. Only 320 occurred after the 26th week of pregnancy. There is not an epidemic of heartless women killing their babies at the last moment. Conversely, restricting this procedure will not significantly harm abortion rights.

MEDICAL NECESSITY
The claims: Pro-lifers say there is no medical reason for the procedure. Pro-choicers say there are times when it must be used.

The facts: The case filings are full of testimony from doctors and patients outlining why late-term abortions are medically necessary. On the other hand, pro-lifers may have a point if they argue that there are alternative procedures that achieve the same medical end without the gruesomeness of partial-birth.

THE LANGUAGE OF THE BILL
The claims: Pro-lifers say they are trying to outlaw a particularly gruesome and unnecessary form of abortion. Pro-choicers say they prefer that the procedure be rare, but that the definition of "partial-birth abortion" in the bill is so broad that it could outlaw procedures used as early as the 12th week, and there is no exception for the health of the mother.

The facts: Well, the claims are the facts in this case. But the bill's sponsors need to make sure the language is specific enough that it only affects the procedure they describe to the public. Otherwise it's a bait-and-switch. And there's no reason to exclude a "health" exception, since that exception was very clearly required by previous Supreme Court rulings. The bill's sponsors were picking a fight.

So in the end, the debate isn't about whether partial-birth abortion is a good thing or not. It's about how the term is defined and what exceptions the law should recognize -- for a procedure used in less than 0.02% of all abortions in this country.

Sensible people would carefully define the term and allow a "mother's health" exception. But sensible people are in short supply in abortion arguments.

Technorati tags
abortion, partial birth, supreme court, politics, midtopia

Pray the cops find you first

Three men were arrested in Ohio and charged Tuesday with conspiring to commit terrorism.

This is good news on several fronts: we foiled a plot, caught the suspects, and did it all as part of the *criminal* justice system, with due process and respect for civil liberties. No warrantless eavesdropping or "enemy combatant" designation required.

We could leave it there: case closed, chalk one up for the good guys. But follow me through a hypothetical to illustrate why we need a unified set of rules for the war on terror, not the mishmash we're currently using.

These guys were tracked by local law enforcement, who gathered evidence against them and then, when the time was right, moved in and arrested them. The fruit of that came Tuesday, when they were charged with crimes. They will be able to dispute the charges; if the charges are weak, they will be let go -- as they should. But if the charges withstand scrutiny, the three will be going to prison for a long time.

So here's my hypothetical: what if the men were not caught in Ohio, but in Iraq -- in a raid by the U.S. military?

In that case, the men would have been tracked by the military, who gathered evidence against them and then, when the time was right, moved in and grabbed them. The men then would have fallen into the murky world of military prisons, where they could be held for months without charge or the ability to challenge their detention.

Or try this not-so-hypothetical example:

A U.S. citizen is a passenger in a taxi that is stopped at a checkpoint and searched. The taxi's trunk turns out to be full of washing-machine timers -- often used to make remote-control bombs. The passenger denies knowledge of the timers; the taxi driver admits they're his.

If this scenario happens in the States, the passenger is afforded full due process -- a lawyer, speedy trial, the right to challenge the charges, etc.

If this scenario happens in Iraq, the passenger once again disappears into the murky world of military prisons.

This makes little sense. The passenger's crime is the same in both cases and he should be treated the same in both cases; His rights should not depend upon which arm of the government happens to search the taxi.

A clear dividing line is needed. If you shoot at U.S. troops, you're a combatant and subject to military rules. Otherwise, you're a civilian and subject to criminal law.

Technorati tags
terrorism, civil rights, Iraq, politics, midtopia

Misplaced priorities

President Bush has vowed to veto any bill that blocks an agreement to let a company based in the United Arab Emirates run six major American ports.

Bush, who has yet to veto a bill during his administration, warned that the United States is sending "mixed signals" by attacking a Middle Eastern company after the American ports had been run by a British firm for several years.

This is what Bush will *finally* use his veto power on? Anyone else find this funny in a tragicomic kind of way?

Chuck Hagel for president?

Senator Chuck Hagel of Nebraska is visiting Minnesota today, giving a speech in Blaine and doing an interview with Minnesota Public Radio.

Hagel's to my right on social issues, but I like his approach to economic matters and terrorism, his strong and accurate criticisms of the war in Iraq and his concerns for civil liberties. He's got a brain and he's not afraid to use it; that makes him one of my favorites among the possible 2008 presidential candidates, though a lot will depend upon whom the Democrats put up.

Technorati tags
minnesota, hagel, Iraq, politics, midtopia

U.S. reclassifying National Archive documents

The government continues to exhibit its penchant for excessive secrecy:

WASHINGTON, Feb. 20 -- In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians.

(snip)

Mr. Leonard said he ordered the audit after reviewing 16 withdrawn documents and concluding that none should be secret.

"If those sample records were removed because somebody thought they were classified, I'm shocked and disappointed," Mr. Leonard said in an interview. "It just boggles the mind."

Things like this are why I'm generally unimpressed by the mere fact that a leaked document is classified. The government routinely classifies stuff that has no business being classified. Leaking such information is against the letter of the law, but it does not violate the law's spirit, nor is it unethical or treasonous.

To determine if a leak is wrong, you have to first determine if the information in question deserved to be secret to begin with. Allowing the government to keep every little thing secret makes it impossible to know what the government is up to, and thus impossible to monitor or regulate it. This can be poisonous to democracy.

For instance, here's an example of a "reclassified" document:

a 1962 telegram from George F. Kennan, then ambassador to Yugoslavia, containing an English translation of a Belgrade newspaper article on China's nuclear weapons program.

Government information should be viewed with the presumption that it is a public record, and only classified if the administration can show sufficient cause. This is in fact the case:

Under existing guidelines, government documents are supposed to be declassified after 25 years unless there is particular reason to keep them secret.

But without oversight and review, nothing stops an official from classifying anything they want.

Technorati tags
national archives, terrorism, politics, midtopia

Imprisoned for opinion

A British historian has been sentenced to three years in jail for denying that the Holocaust occurred.

While I have no sympathy for people who attempt to revise history, it is simply wrong to jail or fine people for opinions or beliefs -- however repugnant those beliefs may be. Criminal punishment chills discussion without eliminating the problem. In the face of legal pressure, people who deny the Holocaust will simply go underground, where their claims cannot be examined, refuted and then discarded from public discourse.

Europe in general has a free and vigorous political culture and a strong committment to free speech. But cases like these illustrate why the United States is lucky to have a First Amendment -- even if we don't always like some of the speech that it protects.

Is terror a military or a criminal problem?

Is terror a military or a criminal problem?

Therein lies the conundrum at the heart of the ongoing debate over how best to fight terror while protecting civil liberties.

Terror, at base, is a criminal offense. It is nothing more than a crime with political motivation. Terrorists represent no country, have no fixed geographical boundaries. They are a collection of individuals bound only by their beliefs. The metaphorical "war" on terror is just that -- a metaphor, like the "war" on drugs or poverty.

But the military has a role, too. First and simplest is when a terror group receives state support, as in Afghanistan; then fighting terror shades over into conventional war until such time as the state support ceases. If terrorists resort to a guerrilla war, that too is a military responsibility -- although with limitations peculiar to antiinsurgent operations. The rest of what I would call the "hard" side of fighting terror -- Striking known terrorist training sites, killing terrorist leaders and the like -- also are more properly a military task than a police task.

But this leads to confusion about what, if any, rules apply. There are laws that govern warfare and there are laws that govern crime and they are very different, both in what they allow and in their scope and purpose.

Laws that govern crime are geared toward the long term -- minimizing, catching and deterring criminals instead of trying to eliminate them. They assume that the problem will be with us always, and come up with ways to keep it under control while still respecting the rights that are important to a free society. Call it a "chronic condition" approach.

Laws that govern warfare envision certain fixed and rigid limitations -- that there is a front line, that there is a conflict between nations wielding uniformed armies, that there will be an easily defined point of victory. War is a temporary national emergency, with a clearly defined battlefield within which rights do not exist: laws of war spring from agreements between nations, not the text of the Constitution. Call it an "emergency surgery" approach.

The problem with the assumptions behind "emergency surgery" is that none of them are true when it comes to fighting terror. There is no front line, no nation, no uniformed armies, no easily recognized victory, no clearly defined battlefield, and the conflict is expected to last a very long time.

Precisely because it is ill-fitted to the task, there are tremendous dangers in treating terrorism entirely as a military concern:

• Erosion of civil liberties;
• Incarcerating minor "combatants" for years or even decades regardless of the severity of their actions;
• A heavy cost in lives and treasure;
• Erosion of popular support at home and creation of more enemies abroad;
• An overreliance on force that, in the long-term, will be less effective than legal, diplomatic and intelligence efforts.

Criminal law, then, is better suited to the problem that terrorism poses. Accepting that, the question becomes how to define the respective roles of the military and law enforcement.

I'll go through them from easiest to hardest.

1. In a clear civilian situation, such as breaking up a terror cell in Chicago, law enforcement rules apply. That means warrants, probable cause and due process.

2. In a clear battlefield situation, such as someone captured during a firefight, military rules apply. However, prisoners captured in such cases must be dealt with in specific ways (see below).

3. U.S. citizens deserve due process and access to the courts in nearly all cases.

4. Civilians caught in the middle of an insurgency, a la Iraq, should be accorded as many rights as possible. They can be detained by the military for short periods for security reasons, but within a reasonable time (a week, say) must either be charged as an "enemy combatant", turned over to civilian police for nonmilitary charges, or released.

5. Anyone defined as an "enemy combatant" should have the right to challenge that designation. Most such cases would be a slam dunk ("suspect was caught during a firefight"), but they should get a hearing. This is not "normal" wartime practice, but this is not a normal "war".

6. "Enemy combatants" can only be held until the end of the specific war they were involved in. To be held longer, they must be charged and convicted of actual crimes. Insurgents captured in Iraq, for example, must be released when the fighting in Iraq ends unless they can be linked directly to terrorism.

7. Because some insurgencies may last a very long time, we should make an effort to categorize insurgents by the threat they pose. The truly dangerous would be locked up until the insurgency ends; minor players would be released after serving shorter sentences. That way you're not locking up a halfhearted foot soldier for decades. Like with any offense, recapture would result in a much harsher sentence.

8. In areas where we are not in charge, we will strive to work with the ruling government. But if the rule of law is weak or nonexistent -- Think Yemen, for example -- or the ruler is not a reliable foe of terror, we reserve the right to kill or capture proven terrorists whenever we can. This is less a military/civilian issue than a diplomatic one; I include it here for completeness.

There are a few specific steps we should take to make this happen:

1. Congress should make clear that we are not in a war in a conventional sense, so the President cannot claim extraordinary inherent authority. If they wish to grant him specific authority in specific places, they can do that, giving him broad powers to operate in Iraq or other places abroad. But we should not fall into the "war" trap a second time.

2. Congress should clearly state law enforcement's pre-eminence, and outline which laws apply in which situations.

3. We should clarify the warrant rules to ensure that showing a reasonable suspicion of terror links will allow eavesdropping -- but that such a link *must* be shown.

4. We should stop trying to keep certain prisons or prisoners outside of any law, be it U.S., international or the Geneva Conventions. All prisons and all prisoners should be protected by one of those sets of law.

5. We should allow open inspections of our prisons by accredited organizations such as the Red Cross.

6. We should ensure adequate funding for antiterrorism investigations, and if necessary create specific terror-related charges that guarantee lengthy prison terms for true terrorists -- whether their planned attack is successful or not.

Saying terrorism is primarily a law-enforcement issue is not "going soft" on terror -- it is recognizing that the nature of terrorism is more effectively addressed by criminal law than military law. A vigorous enforcement effort -- backed by a limited but vigorous military role -- will defeat terrorism more surely, and at less cost in both money and civil liberties, than if we allow the "war" metaphor to rule our thoughts and actions.

Technorati tags
terrorism, civil rights, Iraq, civil liberties, politics, midtopia

Why Iraq is a hideously expensive distraction, Part II

Today, for better or worse, Iraq is the central front of the war on terror.

Should it be? This is the second of two articles looking at the terror threat and the Iraq experience through a cost/benefit lens.

Part II: How big is the terror threat, and what should we do about it?

How much would you pay to avoid a 0.0000008% chance of dying?

It's not an idle question. When allocating limited resources, the first step has to be defining the risk. We spend a lot of money researching cancer cures because cancer kills millions of people every year. We spend almost no money researching a cure for mucopolysaccharidosis, which usually kills its victims by age 25 but only affects about 200 people nationwide. That stinks if you're one of the 200, but it makes perfect sense to spend more money on the biggest threats.

Such analytical methods were developed because, quite frankly, people suck at assessing risk. We tend to overemphasize the danger of rare but spectacular events and minimize the danger of common incremental events. That's why more people fear flying than fear driving, even though driving is many times more dangerous.

What happens if we apply the same logic to terrorism?

One way to measure the danger posed by terrorism is to compare the risk of dying in a terror attack to other causes of death in the United States.

Since 1990, there have been four major terrorist attacks in the United States: Oklahoma City, the first Trade Center attack, the Olympic bombing in Atlanta and 9/11.

That's four attacks in 14 years; hardly a crisis. Further, half of those attacks were the work of disgruntled individuals, unrelated to any broader terror movement. And they come against the background of a steady 20-year decline in the number of terror attacks worldwide. Attacks have increased in lethality and spectacle, but there are fewer of them.

Now let's look at casualties. Those four attacks caused roughly 3,175 deaths over 14 years, in a population of about 300 million. That's an average of 230 deaths a year -- far closer to mucopolysaccarhidosis than cancer. Put another way, the average American has a 0.0000008% chance of dying in a terror attack in any given year.

If you look at causes of death in the United States you'll find that terrorism is right up there with such national crises as falling from a ladder (406 deaths in 2002), drowning in your bathtub (352 deaths), riding a "special agricultural vehicle" (149 deaths) and "overexertion, travel and privation" (128 deaths). Heck, on average more people accidentally shoot themselves to death (243) than die at the hands of terrorists.

Put into perspective, terrorism isn't even close to a national threat. It does not threaten our national survival, and it does not threaten the life of average Americans in any meaningful way. One could plausibly argue that our response to terrorism has done more damage to Americans than terrorism itself. 9/11 killed 3,000 people and caused several billion dollars in economic damage. Our response has killed even more people and cost $400 billion, all of it borrowed. The terrorists could only dream of inflicting as much harm on us as we have inflicted upon ourselves.

Of course we still have to combat terrorism, and of course our response should be outsized; we don't just passively accept the murder of American citizens. And there are psychological and economic aftershocks from spectacular stunts like 9/11. But by any measure our response has been way out of proportion to the risk.

So how much effort should we put into fighting terrorism? That requires an honest national debate, but I think critics of the Iraq campaign had it right: terror is better handled as a law enforcement and intelligence matter than as a military one. Not only would that be more effective, it would be far cheaper.

When clear targets are identified, military force can be beneficial: the campaign in Afghanistan is a prime example of that. But the military clearly should play a supporting role, not a starring one. We are better served keeping our soldiers available as a credible deterrent and to fend off true threats to national survival.

So what works? In Part I, I explained why the "war on terror" justifications for Iraq are nonsense. Instead, I think four broad strategies offer the most chance of success:

Go after the terrorists directly. Continue the ongoing effort to boost our intelligence-gathering abilities, so we can root out terrorist cells and choke off terrorist financing. This includes the less noxious parts of the Patriot Act, allowing law enforcement and intelligence communities to share information. We also need to hone our strike and raid capabilities so that we can effectively act on the intelligence we receive.

A homeland focus. If they can't get in, they can't attack us, so the bulk of our anti-terror money should go to domestic security - ports, airports, borders, etc. Such spending pays other dividends as well, tightening the defenses against smuggling and illegal immigration. This category includes investing in alternative energies, mass transit and conservation, because reducing our reliance on oil (and especially foreign oil) will reduce our need to become enmeshed in volatile regions of the world, as well as reduce the political influence of oil-rich countries.

International cooperation. Work with foreign intelligence and law-enforcement agencies to infilitrate and destroy terrorist cells. Work with foreign militaries to spread the burden of military operations. Isolate and destroy regimes that are active supporters of terrorism, using a clearly-drawn definition so that every nation is aware which side of the line they are on.

Foreign aid. It does no good to kill terrorists if we don't change the conditions that generate them: oppression, poverty, hopelessness, lack of education, lack of opportunity. We spend a paltry $18 billion a year on foreign aid; we should double or triple that number and target it on areas and issues related to terror. This means ending support for repressive regimes in the Middle East and devoting money to promoting education, democracy and opportunity in the region. Even if we spend $50 billion a year on foreign aid, it would be cheaper than the staggeringly expensive war we're currently pursuing. And you get a lot more PR benefit out of building schools than you do from dropping bombs.

Technorati tags
terrorism, Iraq, politics, midtopia

Why Iraq is a hideously expensive distraction, Part I

Today, for better or worse, Iraq is the central front of the war on terror.

Should it be? Is Iraq the best way to spend our anti-terrorism resources? Is it making the situation better, or worse?

There is no question that we have a responsibility to the people of Iraq. Having destroyed the previous regime, we must establish a (preferably democratic and secular) government capable of ruling the country. But fixing Iraq and fighting terror are two separate objectives.

This is the first of two articles looking at the terror threat and the Iraq experience through a cost/benefit lens.

Part I: Fighting them over there instead of over here, or "What is a terrorist, anyway?"

As it relates to the war on terror, our invasion of Iraq has often been billed as "fighting terrorists over there instead of over here." But is this true?

To answer this question, we need to first define "terrorist." That word is grossly overused, confusing the issue of who we're fighting and why.

In Iraq and globally, I see three kinds of opponents:

Terrorists: These are the people behind 9/11 and other actual terror attacks -- Al Qaeda and its ilk. They are the relatively few people with the skills, money, patience, imagination and access to pull off attacks inside the United States.

Jihadists: These are people who dislike us but have limited opportunities to act on that dislike. Our invasion of Iraq has both swelled their ranks (thanks to outrage over Western/Christian occupation of a Muslim country) and provided ample opportunities to do something about it: It's far easier to slip across the porous Iraqi border and take potshots at U.S. troops than it is to get into the United States itself to launch an attack.

Insurgents: These are native Iraqis who are fighting us as occupiers, for whatever motive. They were not terrorists before we invaded, and most of them weren't jihadists, either; Saddam Hussein did not take kindly to freelancers.

Having defined our opponents, how does that apply to Iraq?

The U.S. military says 90 percent of the insurgency is native Iraqis. Right off the bat that tells us that most of the people we're fighting and killing in Iraq were not serious opponents until we invaded.

How about the remaining 10 percent that are foreign fighters? Are they terrorists?

Few people think so, and logic suggests why. Would a true terrorist -- the kind who can plan and pull off spectacular attacks inside the United States -- drop everything and head to Iraq to fight well-armed, well-prepared soldiers? Of course not. To think so you have to assume terrorists are stupid, and they're not. True terrorists will just keep on doing what they're good at: planning new and bigger terror attacks.

On the other hand, if you're a jihadist angered by the invasion of Iraq, would this be your golden opportunity to act on your feelings? Of course.

So that's whom we're killing in Iraq: native insurgents and low-level foreign jihadists, most of whom would never have shown up on our threat radar if we hadn't invaded Iraq. And in exchange for the opportunity to create enemies that need killing, we're helping to train and radicalize an entire generation of Middle Eastern men.

Meanwhile our military is overstretched. By being tied down in Iraq it is unavailable to deal with real threats, or to serve as a credible threat of force. Iran isn't exactly quaking in its shoes at the prospect of U.S. intervention, for example. What would we invade them with -- a Reserve public affairs battalion?

As far as the war on terror is concerned, then, Iraq is worse than a distraction: it is actively making things worse.

Then there's the cost. Thus far Iraq has cost more than $200 billion. So it's not just a distraction, it's a hugely expensive one.

Some people argue that Iraq isn't about terror, it's about spreading democracy. Fine; I can support the idea that we should knock down dictators and free oppressed peoples. But that raises a requirement and a question:

You have to be up-front about it. The invasion of Iraq was sold under the banner of the war on terror. If the administration had said "hey, let's spend $200 billion to knock over Saddam because he's a bad guy and we need to free the Iraqi people", they would have been laughed out of town.

How much are we willing to spend to do so? There are 27 million Iraqis. That means we've spent $7,500 per head so far bringing them democracy, never mind the cost in lives and damage to Iraqi infrastructure. The final total will be far, far higher. Democracy is valuable, but not infinitely so given limited resources. How much are we willing to spend? How many more Iraqs can we afford?

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Welcome!

Hi! I'm still setting this site up, but eventually it will be devoted to musings on mostly political topics, with a more-or-less nonpartisan attitude. I'm a moderate who leans right on fiscal issues and left on social issues. I'm also a former tank lieutenant who supports an active foreign policy but insists that we spend our soldiers' lives for only the best and most defensible reasons.

I have a backlog of posts from another, now-defunct site that I will transfer here as soon as I can. Check back in a week or so to see the changes!

Sean