Under Some Murky Water

Attorney General Michael Mukasey can't say whether waterboarding constitutes torture, because "Any answer I give could have the effect of articulating publicly -- and to our adversaries -- the limits and contours of generally worded laws that define the limits of a highly classified interrogation program." However, he did say that waterboarding is not currently being used by the CIA to interrogate suspected al Qaeda members.

OK, let me get this straight. We would be tipping off the enemy and breaching security if we got a legal opinion from the Attorney General about the lawfulness of waterboarding. But publicly stating whether or not we're actually using waterboarding -- now that's just fine.

There really seems to be no limit to the duplicity of the administration.

Enemies of the State

Just in case you had any remaining doubts about the importance of the writ of habeas corpus, recently declassified documents show that in 1950, FBI Director J. Edgar Hoover floated a plan to detain about twelve thousand people, almost all American citizens, without judicial trial on the ground that they were "potentially dangerous to the internal security of the country." The plan called for suspension of habeas corpus and detention in military prisons. Eventually, those detained would have received a hearing by a Hearing Board consisting of a judge (either federal or state) and two citizens chosen by the Attorney General. The decision of the Hearing Board would be subject to review by the Attorney General, whose decision would be final except for appeal to the President.

Well, isn't that lovely -- throw everyone in jail and allow the Attorney General's handpicked flunkies to decide whether to let them out, with review by the Attorney General.

America's current wave of extrajudicial detentions continues with only muted outcry because it affects people whom most Americans can comfortably regard as the "other." Hoover's extreme plan usefully reminds us that abuse of freedom is everybody's business. Once procedures for locking people up without charge and trial exist, they endanger everybody. The FBI Director had a plan to lock American citizens up en masse. Who knows what plans Alberto Gonzales put together that have yet to be discovered. This isn't just a danger to other people -- our own freedom is at stake.

The Terror Presidency's Lawyer

Just finished The Terror Presidency, the new book by my old friend and classmate Jack Goldsmith. I recommend it -- it's not the tell-all you might wish for, but it's a pretty interesting tell-some. Jack does his best job in explaining the competing pressures the administration is under: on the one hand, those charged with protecting the country are terrified of the next terrorist attack and urgently want to be aggressive in taking every step that might block it, but on the other hand, they face pressure to be prudent and cautious lest they take actions that some later administration, independent prosecutor, or international tribunal might view as criminal. And to top it off, the laws telling them what they can and cannot do are complex and ambiguous. My distaste for the administration's hubris is certainly not erased, but I have a better understanding of the pressures they face.

Criminal Justice Working Fine

A jury convicted Jose Padilla of terrorism conspiracy charges yesterday, exposing him to a possible sentence of life in prison.

Well, isn't that nice. After three years of telling us that Padilla was so dangerous that the criminal justice system couldn't handle him, the Bush Administration sends him through the criminal justice system, which handled him just fine and produced the desired conviction.

Naturally, the Administration is touting this as an important victory, which it sort of is. But isn't it evidence against the Administration's theory that it has a vital need to keep all alleged enemy combatants in legal limbo forever?

Security Alert

Police arrest two more in connection with the bomb attempts in Britain. On Friday, police found two Mercedes packed with propane gas, gasoline, and nails.

Has anyone noticed that police, FBI, and so on seem to break up these plots with some regularity, but always by intelligence efforts? Has airport security ever stopped a terrorist plot? All of us taking off our jackets, our shoes, our belts, calmly (or not so calmly) waiting in the endless lines and walking through machines -- have these security people ever caught any terrorists? I remember a lot of recent headlines about police discovering and stopping terrorist plots, but I can't remember one about airport security stopping a terrorist.

Bush supports independent judiciary!

President Bush demonstrates his understanding of the importance of not just believing every charge brought against anyone without some independent investigation: "I support a plan that says that there’ll be an indpendent judiciary analyzing every charge brought forth, and when someone is found guilty there’s punishment," he said.

Good news for U.S. prisoners on Guantanamo Bay and elsewhere, held for years without access to judicial proceedings? No, President Bush was referring to the need for indpendent judicial investigation into charges that political allies of Colombia's President Alvaro Uribe are tied to right-wing death squads in that country. Independent judicial investigation is for charges in other countries; our executive branch gets to hold people on its own authority.

Mohammed Confesses

Khalid Sheik Mohammed confessed to planning the 9/11 attacks, according to a transcript of a secret hearing released by the Pentagon.

I believe Mohammed is a terrorist, although I have only the U.S. government's word for it. But let's face it, we picked this guy up four years ago, we've held him in secret detention centers for years, he has no access to counsel, and we've subjected him to who knows what treatment. After all that, I'd confess to shooting the Pope.

If we're going to abandon our ideals of justice in pursuit of the war against terror, we have to accept that confessions we obtain will have limited credibility. Maybe Mohammed did plan 9/11, but I don't believe it because of his confession. I want some real evidence.