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December 25, 2005 - Some Odds and Ends Just Don't Get Tied Up

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Friday, December 23rd, the political stage was going dark - kill the lights, strike the set, and everyone take a long weekend for Christmas, or Hanukkah, or Solstice, or whatever you'd like, even if O'Reilly and Gibson over at Fox News are angrily defensive and saying that you are disrespectful of their specific holiday. Those of us who are a bit more ecumenical, in a different way than they use that word, wish them well. We will celebrate what we like. They can do the same, and we'll smile as they curse us. Who has the energy to make this time of the year mean-spirited? What's the point? They say we hate them and their view of militant goodness fighting tooth and claw with secular evil. Yes, some of us thought Jesus - the original version - was fine. This new avenging and angry Jesus, Bringer of Death, is a real drag. But whatever. Their prayer at Christmas dinner will be for God to eliminate us all, painfully. But we wish them a Happy Holiday, whatever it is they seem to be celebrating. We'll just say "peace on earth and good will to all men." They don't believe in that - peace is immoral when there are bad guys everywhere and "good will" in their view is reserved for the "right men" and certainly not all men. Fine. You have your holiday, and we'll have ours. And we'll come back to all this next week.

As the leaders of the nation, great and small, fled Washington for the holiday, there were some loose ends that may need some attention when everyone returns.

There's this one, and a story worthy of O'Henry. It's not the deeply ironic "Gift of the Magi" - but it'll do.

From the Associated Press, via the local paper here - Chinese Muslims in Limbo at Guantanamo


Washington, Friday, December 23, 2005 - Two Chinese Muslims can be held indefinitely in the U.S. military prison at Guantanamo Bay, Cuba, even though their confinement is unlawful, a federal judge ruled Thursday.

Abu Bakker Qassim and A'Del Abdu Al-Hakim, who were captured in Pakistan in 2001, had asked to be released after the government determined nine months ago that they were not "enemy combatants."

U.S. District Judge James Robertson, who has criticized the government for holding the two ethnic Uighurs, said their "indefinite imprisonment at Guantanamo Bay is unlawful."

At the same time, he said, the federal courts have "no relief to offer" the two men.


But it's Christmas time! Can't something be done?

No. You'll find a complete discussion of why nothing can be done here. Four years ago these two were captured by bounty hunters and turned over to us for cash. Nine months ago a military tribunal found that they were not enemy combatants after all. Someone just wanted some money and these two guys were sold to us as really, really bad guys. We paid, but we were had. It happens to us all. We buy something as advertised and when we get it home find out it doesn't work or isn't what they said it was. Oh well.

So we let them go? We can't, and for those who like source documents, you can read the decision here.

The first finding - this is illegal –


The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.


Well, that's clear, but then –


In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts "to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared "no longer enemy combatants." Now facing that question, I find that a federal court has no relief to offer.


These two are stuck. Yes, we are illegally detaining innocent people, and there is nothing that a federal court can do about it.

Form the analysis (Hilzoy) –


Why did the judge reach this conclusion? He goes through various options. He does not need to order them to be produced in court: that's only appropriate when some fact needs to be established, which is not the case here; in any case, producing the detainees in court would leave unresolved the question what to do with them in the event he decides that they should be released. He cannot just order the government to open the gates of the camp at Guantanamo and let Qassim and al-Hakim walk free: they'd be walking out onto a military base, and judges do not have the power to order that someone be admitted to a military installation. No other country is willing to take them. The obvious solution is to release them into the United States.


But that won't work. They're Chinese nationals who received military training in Afghanistan under the Taliban, and China wants them back. And any requiring their release into the United States "would have national security and diplomatic implications beyond the competence or the authority of this Court."

So what to do? Nothing?

Mark Kleiman, the policy professor out here at UCLA, says the president ought to do something


Of course, the lack of power in the court to order a remedy for the Uigurs' wrongs shouldn't matter. When court of competent jurisdiction finds that an act of the executive branch is illegal, the President, having taken an oath to "faithfully execute" an office whose chief duty is to "take care that the laws be faithfully executed," is oath-bound to order that the illegal activity cease. His failure to do so is grounds for impeachment.

But we have a President whose word isn't worth the spit behind it, and a Congressional majority blinded by partisanship. So the illegal (and inhumane) action of holding innocent non-combatants prisoner will continue, forever or until we elect a better President, whichever comes first.


So noted. But maybe as a Christmas gesture, the president will... not likely.

And a second thing will need some attention soon.

What's with this this? - "Iraq's leading Shiite religious bloc said Friday it is ready to discuss Sunni Arab participation in a coalition government, while thousands of Sunnis and some secular Shiites demonstrated in the streets claiming election fraud." The fundamentalist pro-Iranian Shiite guys won big, and the less strictly religious among them and the Sunnis looked at the thousand or so "irregularities" in the voting and took to the streets. This is not good. The vote was to be the "coming together" moment for the new and improved Iraq. Now we get hints of civil war, the same day we announce we drawing down by two battalions, as thing are getting so much better.

What's out back-up plan here? One sense we don't do those. Experience shows we don't.

Ah well, it only gets more curious. Note this from MSNBC - the Cheney-neoconsevative man who was going to run Iraq got less than one percent of the vote in "his country." Out of two and a half million votes in Baghdad, Ahmed Chalabi got 8,645 votes. As Josh Marshall notes, "Anbar province, the center of the Sunni insurgency, was never going to be Chalabi's base. But you'd have thought there might be more than 113 voters who'd vote for the guy." Basra - 0.34 percent of the vote. This guy was a political force to be reckoned with?

Last month he was in Washington meeting with Vice President Dick Cheney and Secretary of State Condoleezza Rice, and was all over the television.

MSNBC: "The election results in Iraq may present Chalabi's ardent U.S. supporters with a quandary: Chalabi, as well as other losing candidates, is alleging fraud in the election, even though the Bush administration hailed the vote as a historic step for democracy in Iraq." Oops. And during the election, Chalabi's campaign posters proclaimed, "We Liberated Iraq." No one was buying that.

It's time to rethink this all. There's no good way to spin this, but they'll come up with something.

Another loose end... Last week NBC reported that the Pentagon was keeping a database of "suspicious incidents" that included such things as antiwar demonstrations and protests against military recruiters (the Quaker grandmothers in Florida, as was mentioned previously in Press Notes). The law says that data, if it is not used in any action, must be purged in ninety days, but that isn't so –


I now know that the database of "suspicious incidents" in the United States first revealed by NBC Nightly News last Tuesday and subject of my blog last week is the Joint Protection Enterprise Network (JPEN) database, an intelligence and law enforcement sharing system managed by the Defense Department's Counterintelligence Field Activity (CIFA).

What is clear about JPEN is that the military is not inadvertently keeping information on U.S. persons. It is violating the law. And what is more, it even wants to do it more.

... According to a JPEN classified briefing obtained by this blogger, the 90-day "data content limit...creates issues for long-term correlation and analysis."

... The managers of JPEN are hardly being inadvertent about either the 90-day restriction or the intentional collection of information on U.S. persons. So far, it appears that they have broken the law. And what is more, they are agitating internally to find ways of circumventing the legal restrictions.


Oh hell, we'll all be in the Pentagon database. What difference does it make now?

Another loose end... All this stuff about the NSA snooping with wiretaps and scanning email and all the rest? The administration says they know it's kind of against the law, but the fact of the matter is that when congress authorized "appropriate" force to take care of terrorists and those who support them, they were saying that would be okay. Now, in the Washington Post, someone who was there, Tom Daschle, who negotiated this "Authorization for Use of Military Force" with the White House, says categorically that this just isn't so. Congress never intended to give the president the power to perform domestic wiretapping.

Note this:


On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.


And then the White House, hours before the vote, tried to add this: \


: (a) IN GENERAL — That the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001....


Daschle says this:


This last-minute change would have given the president broad authority to exercise expansive powers not just overseas - where we all understood he wanted authority to act - but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.


Well, maybe Tom's memory is faulty. But maybe someone took notes, not that it matters now.

As an aside, the same day the Justice Department explained why breaking the laws here, on wiretapping domestically, while clearly illegal, is actually, really and certainly constitutional. That'll make your head spin. See a detailed discussion here. The claim is a tad shaky.

This topic will return after the holidays.

And that nominee to the Supreme Court up for hearings in January, Judge Alito? That's another loose end. Someone dug up a memo in the Reagan archives from he worked for the Big Guy.


Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step-by-step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.


This should be interesting.

What's going on here? Bruce Reed calls it executive activism


The spy court Bush skirted has been a bigger rubber stamp than Tom DeLay, approving all 1758 requests for secret surveillance last year.

For all the high-minded huffing and puffing about checks and balances, the most interesting question in any presidential scandal is much simpler: Why did he do it? This scandal is a paranoiac's delight, confirming the worst fears of libertarians, communitarians, and vegetarians that the federal government is out to get them. Some conspiracy theorists will no doubt conclude that the Bush administration deliberately overreached in a clever attempt to turn the citizenry against their government.

The black-helicopter crowd can relax. If the Bush White House really cared about spying on Americans, they wouldn't leave it to a few data miners at NSA and gumshoes at the FBI. This scandal has little to do with wars, spies, or laws, and everything to do with presidential power.

From the beginning, President Bush and Vice President Cheney have made a fetish of asserting the power of the executive.

... Unfortunately, Bush and Cheney fail to understand that the extent of a president's power doesn't rest in how far he is willing to stretch the statutes or the Constitution. Presidential power comes from the force of a president's argument, the righteousness of a president's cause, and the support and consent of the American people.

... There may well be times in war when ends justify the means. But just as torture undermines America's cause in the larger war on terror, asserting powers the president does not have to pursue ends he cannot explain is more likely to weaken the presidency than to strengthen it.


Well, some fetishes can be fun. There are hundreds of magazine full of such stuff. But a fetish of "asserting the power of the executive" is just wrong.

Well, there will be a few things to deal with when the holidays are over.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
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