Worldview: Domestic Security
by A Concerned Citizen
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Retired on 31 December 2007
Table of Contents
The Threats
Introduction
The Islamic Threat
Sponsors of Terrorism
Weapons & Tactics
News Updates
Defensive Measures
Controlling the Borders
Counterterrorism Measures
Politics of Counter-Terrorism
Civil Liberties
The PATRIOT Act
NSA Wiretaps
Fired CIA Leaker
NSA Telephone Database
Spying on Bank Records
Supreme Court Speaks
Profiling Terrorists
The Lodi Case
Habeas Corpus
The Threats
Introduction
April 06: In my chapter on US Foreign Policy, I have expressed skepticism about neocon adventures in reforming the world, especially in benighted regions like the Middle East. Rather, we should concentrate on defending against radical Islamic infiltration into the homeland, whether by overt acts of aggression like 9/11, or through more subtle cultural tactics. This article by Serge Trifkovic, author of The Sword of the Prophet, helps to frame the issue. Both the article and the book pack a lot of relevant scholarly information. In particular, the article, near the end, provides many biographical details on the character of Mohammed, taken from revered Muslim sources. Newcomers to Islam who don't have the time to read books might begin with this article. Also of interest is the following description on Amazon for Trifkovic's new book Defeating Jihad:
Conclusion: a comprehensive new strategy is needed, the one that may give us victory in this war; and it is the purpose of this book to provide the blueprint for victory. The conclusion is inescapable; there is a correlation between the presence of a Muslim population in a country and the danger that it will be subjected to a terrorist attack is a demonstrable fact. Muslims are the only group, in Western Europe or North America, that harbors a substantial segment of individuals who share the key objectives with the terrorists. They are, somewhat unsurprisingly, the immigrant group least likely to identify with America: in response to an independent survey of newly naturalized citizens, 90 percent of Muslim immigrants said that if there were a conflict between the United States and their country of origin, they would be inclined to support their country of origin. In Detroit, 81 percent of Muslims 'strongly agree' or 'somewhat agree' that Shari'a should be the law of the land. All over the Western world Islamic centers have provided platforms for exhortations to the faithful to support causes and to engage in acts that are morally reprehensible, legally punishable, and detrimental to the host country's national security.
The model for the proposed measure exists in the McCarran Internal Security Act of 1950. Include Islamist activism as the grounds for the exclusion or deportation of any alien regardless of status or ties, as prejudicial to the public interest and injurious to national security. Mandate registration of Islamic centers and their individual members with the Attorney General; subject them to legal limitations and security supervision that applies to cults prone to violence and 'hate groups'. Above all, we should carefully screen all Muslims entering America for any trace of Jihad ideology. This will require discarding the kid glove treatment of Islam as just another religion. All immigrants must be made to understand that the Constitution takes unconditional precedence over Sharia. Period. They must swear to this, and they must be expelled to their country of origin if they disobey.
Furthermore, we must find a way to profile likely terrorist suspects without endangering our civil liberties. It is simply a fact that the vast majority of terrorist threats are Muslim, even if they constitute a minority of Muslims (who nevertheless receive the sympathies of a much larger portion of the Muslim world). Again, our historical deference to religion is the obstacle. We can make no progress towards sanity or security until we understand the nature and power of orthodox Muslim ideology. This will require a major overhaul of our instinctive respect for anything calling itself a 'religion', which Muslim militants fully exploit.
At the same time, we must not allow our Christian majority to inject any bias or prejudice against religions with a long tradition of tolerance and non-violence, such as Hinduism and Buddhism. The rhetoric of some Christian groups leaves true secular democrats with an uneasy feeling. This cannot simply be dismissed as humorous or inconsequential, especially since fringe groups can disproportionately influence political primaries.
UPDATE (21 May 07): As noted on other pages, my views have modified somewhat over the past year. First, I have come to realize that Muslims are justified to be angry with American meddling in the Middle East, as well as with our unequivocal support fort Israel. (The latter includes tacit support for the settlements, notwithstanding our hypocritical rhetoric.) Second, I am more aware that there are a great many Muslims who are decent people. I realized this before, but I tended to discount the 'moderate' Muslims, since the behavior of the Prophet was manifestly aggressive. Since then, I have come to appreciate that many people simply are not logical and consistent, especially when it comes to religion; besides, aggressive behavior can always be justified as 'defense', a game we have played to the hilt. It is best to avoid sweeping generalizations. Moreover, once we admit that Muslim anger against US policy is justified, then the whole issue of who is a 'terrorist' or a 'militant' becomes clouded. Of course, I am not justifying 9/11, but we must remember that there is a context to this violence, and our hands are not clean either (e.g. 650,000 Iraqi dead in the futile Iraq war, not to mention a comparable number from the preceding sanctions). Further, I have noticed how all the fearmongering over Muslim militants, who do not even have an army, is being used to justify a ruinous attack on Iran. Thus, I have come to distrust all conservative rhetoric, even when there is an element of truth (though a Trifkovic certainly seems much more worthy of respect than any neocon).
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The Islamic Threat
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Global Aspirations of Militant Islam (11 May 06): These articles are eye-openers. How curious that a vast organization like the Muslim Brotherhood, with its clear charter of world domination, first through duplicity, and then through naked aggression, is never discussed in the mainstream media.
UPDATE (21 May 07): Note the update in the Introduction above for a shift in my views. I still agree that a portion of the Muslim population has global imperial ambitions, but the truth is certainly more nuanced and ambiguous than the militant neocons would have us believe. We also have our imperialists. And it is foolish and dangerous to equate terrorism with a Nazi-like invasion. A gang of criminals is not an army. The neocons and Republicans are seriously misleading our country.
The first two articles describe 'a program of cultural invasion and eventual conquest of the West' set forth in a secret document of the Muslim Brotherhood, which is the oldest Islamist organization in the world and which has 'one of the most extensive terror networks'. Its credo: "Allah is our objective. The Prophet is our leader. Qur'an is our law. Jihad is our way. Dying in the way of Allah is our highest hope." The document was discovered during post-9/11 raids and is known in intelligence circles as 'The Project'. A Swiss journalist, Sylvain Besson, has written a book (in French) on it, in which he quotes a Western official as saying that this 'project' describes "a totalitarian ideology of infiltration which represents, in the end, the greatest danger for European societies". An English translation of The Project is provided by a link in the article. The Project differs from Al Qaeda in that it proposes a far wider range of strategies than terrorism to establish the dominance of Islam, ranging from immigration, infiltration, surveillance, propaganda, protest, deception, political legitimacy and terrorism. The more 'moderate' tactics have been displayed in many recent political events, from the car-burning 'intifada' in Paris, to the worldwide protest over the Mohammed cartoons, to the 'recognition of parallel Islamist government organizations in Sweden'. In all three cases, the 'nonviolent' protest elicited appeasement from Western authorities. Needless to say, the English language press has hardly discussed this important document.
The third article is similar and describes Hizb ut-Tahrir, the Party of Liberation, which operates in Jordan and other Muslim nations, and has a growing appeal to 'educated professionals' in the Middle East and Europe. It wishes to reunite 1.5 billion Muslims under a Caliphate, and it proposes to do this peacefully. However, note its idea of 'liberation': "We want to free all people from being slaves of men and make them slaves of Allah." This is called the Sharia, the imposition of 'divinely-ordained' Muslim law. And even if this group remains peaceful, it may provide the 'ideological backbone' to inspire other more militant splinter groups. After all, does it make any sense to speak of a 'moderate Muslim' who believes in Sharia? Here are some quotes from the article (thanks to Robert Spencer):
"In Europe they tell Muslims that they have to create parallel societies and that they should not follow European laws."
"And if after all discussions and negotiations they still refuse, then the last resort will be a jihad to spread the spirit of Islam and the rule of Islam." This is why I am so concerned about Islam. The terrorism, horrible as it is, is only the tip of the iceberg. True (i.e. orthodox) Islam seeks to conquer the world by any means possible. In Europe, the birth rate of non-Muslims is low and of Muslims is high; that alone can lead to a dramatic change in demographics in a relatively short time. As the number of Muslims grows, many of them will feel emboldened to increase their tactics of intimidation, which are already proving effective. Even if a Muslim takeover does not happen in America, would losing Europe not be tragic and dangerous for Western civilization, and for civilization in general? What did we fight the Nazis for? This is why our first line of defense is to learn about Islam, about which we are still so ignorant, from George Bush, to Tony Blair, to Bill Clinton, to the Archbishop of Canterbury, to the mainstream media, to the left-leaning universities, and on and on. This blindness among our elites could eventually prove catastrophic to our liberty! If the Romans were defeated by orgies, we will be defeated by political correctness. What would Gibbon say?
Back to Islamic Threat
CIA Expert: Political Islam Not A Threat (22 Sep 06): Even the chief expert at the CIA devoted to understanding the political implications of Islam can fail to appreciate the problem.
UPDATE (21 May 07): Again, I am leaving my old words intact for the record, though my views have become more sophisticated over the past year. See the update to the Introduction as well as to the subsequent article. Of course, we must defend against terrorism, but the whole issue has become clouded by imperialistic politics from the neocons and the Republicans (and quite a few Democrats as well).
Political Islam is not a threat, but Al-Qaeda is? All right. So evidently the attempt to accomplish by peaceful means what Osama bin Laden wants to do by violent means is perfectly fine. Only the means matter, not the end. It's perfectly all right if we all end up living under Sharia, with its institutionalized discrimination against women and non-Muslims, as long as nobody gets hurt on our road to Islamization.
The implications of this wrongheadedness are massive. This explains why there is no official notice taken of the Islamization of Europe, or of the necessity to revise immigration procedures to screen applicants for attachment to Sharia. This explains why a group like CAIR, whose spokesman Ibrahim Hooper has expressed a desire to see the U.S. become an Islamic state, is considered moderate: after all, they're not setting off any bombs, and this struggle is all about "terrorism" and only "terrorism."
Imagine if there had been a group in the U.S. in 1940 that declared that it wanted to see a National Socialist America, but intended to accomplish our Nazification through education, not violence. What would authorities of the day have thought of such a group? What might they have done about it? Ah, you will say, but Sharia isn't Nazism. Of course it isn't. But it is nevertheless inimical to Western values and Western civilization, and harmful to all non-Muslims, in a host of ways. And it is Sharia that is the goal of those we fight. The manner in which they are advancing it is simply a question of their tactics, not of whether or not they are enemies of our way of life. Back to Islamic Threat
Islam and Civil Rights (23 Nov 06): Below, in discussing the case of some imams who were thrown off a plane, I argue that one should not profile Muslims simply for being Muslims. There should be some other element of probable cause of ill intent. But then I add:
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Sponsors of Terrorism
Introduction (11 Aug 06): We need to take a closer look at the various groups and state sponsors. In particular, we have been negligent with respect to Pakistan, due to its alleged help in the 'war on terror'. See also my recent article relating to Pakistani sponsored terrorism in India.
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Weapons & Tactics
Introduction (25 Jul 06): The Hornik article points to the situation in Israel to illustrate how vulnerable advanced nations are to the relatively low technology of missiles. Hamas and Hezbollah have been able to terrorize a large portion of the Israeli population with rockets and missiles that can be fired from anywhere and are hard to locate. Similar missiles could also be fired at the US population from offshore vessels. What seems to be an innocent fishing or recreational boat could conceal terrorists and their weapons, with ranges of tens or hundreds of miles. When you consider that most of our major cities are on or near the coast, you can see that the potential danger is immense, especially if the terrorists acquire weapons of mass destruction.
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Threats: News Updates
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Controlling the Borders
Introduction (28 Jun 06): A key aspect of domestic security is surely controlling the border: who comes in and what cargo comes in. Surprisingly, the media seems fairly uninterested. Perhaps this is considered a routine task of DHS, Customs, the Port Authorities, etc. Yet there is much to discuss and much to be worried about. Most of the cargo coming into this country passes through unchecked. Those trailers loaded off of ships could easily contain a nuclear weapon, perhaps stolen from the poorly protected Russian arsenal. Is it not worth spending however many billions it takes to check all of this? And let's not forget that a few months ago we were going to outsource this task to Dubai Ports, a Muslim influenced company, before there was a popular outcry! Many of our chemical plants have poor security, according to a recent 60 Minutes piece, in which the reporters were able to simply walk into storage areas containing dangerous chemicals. Apparently, the chemical industry resists tightening their security, complaining that it is too expensive, and Congress does little. Is this an example of the power of money in politics endangering the lives of citizens? Most of the 9/11 terrorists came from Saudi Arabia, where the royal family has been sponsoring the virulent Wahhabi strain of Islam throughout the world for years. Yet the first article below (from Israel no less) informs us that the number of American visas granted to Saudi nationals has doubled. What are the criteria for getting in? What screening is there for radical Muslims? The press and public hardly seem aware of these vital issues, being fixated on the dramatic topic of the Iraq war, or various scandals.
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Counterterrorism Measures
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Introduction (07 Aug 06): When I encounter articles describing successful counterterrorism operations, or even promising ideas, I will post them here. Flaws in our counterterrorism policy will also be addressed. Here are some articles to start us off.
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No Fly List Hassles (09 Oct 06): Last night, 60 Minutes had a piece on government inanity in the fight against terror. Everybody who boards a plane in the US has his name checked against a 'No Fly List' of terrorist suspects. Many names on the list are preposterous, such as dead people or the 9/11 hijackers themselves. Great inconvenience results when a terrorist has a common name. One real life example is 'Robert Johnson'. The show presented a whole roomful of Robert Johnsons who experience great inconvenience and even humiliation when they try to fly, including hours of delay and occasional strip searches. The list has only the name and no other identifying characteristics. Various brief interviews with befuddled high government officials did little to reassure me. Furthermore, the list is missing some key known terrorists.
Many conservatives have blasted those liberals and libertarians who are concerned with infringement of civil rights in the war on terror. These vociferous conservatives have mysteriously forgotten a key conservative principle: the seemingly infinite capacity of the government to screw up. Still, the lack of sheer common sense is not only annoying but even frightening.
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Other Articles
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Politics of Counter-Terrorism
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Introduction (12 Nov 06): Now that the Democrats are in power, concerns are being raised that they might appease militant Muslim constituencies. As though President 'Islam is Peace' Bush had not already been doing that! The Republicans also have Islamic constituencies they have been busy appeasing: the Wahhabi-promoting Saudis, the terror-promoting Pakistanis, the personal-agenda Challabis, the new Shariah-oriented government in Iraq, etc., etc. Still, we must keep an eye on the Democrats. I would certainly consider the appointment of Alcee Hastings to head the House Intelligence Committee to be a serious mistake, though that has more to do with corruption than Islam.
The unspoken sub-theme here, of course, is that since some blacks are Muslim, then the black caucus may perceive an attack on militant Muslims to be an attack on political allies. Those conservatives who speak this way are basically assuming that the black caucus cannot be trusted with national security. This is a serious charge against elected officials and calls into question the foundations of democracy. I'd like to see the evidence first, please.
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Will Pelosi Nominate Hastings? (12 Nov 06): Will Nancy Pelosi, the new Democratic Speaker of the House, nominate Alcee Hastings to head the Intelligence Committee? Will she resist pressure from the Black Caucus? Though not convicted, Hastings has a sufficiently troubling record that he should not be nominated, unless the alleged facts surrounding him are outright fabrication.
Pelosi is in a box of her own devising. The panel's ranking Democrat is her fellow Californian Jane Harman — smart and hardworking but also abrasive, ambitious and, in Pelosi's estimation, insufficiently partisan on the committee. So Pelosi, once the intelligence panel's ranking Democrat herself, has made clear that she doesn't intend to name Harman to the chairmanship.
The wrong decision, in my view, but one that's magnified by the unfortunate fact that next in line is Florida Rep. Alcee Hastings. In 1989, after being acquitted in a criminal trial, Hastings was stripped of his position as a federal judge — impeached by the House in which he now serves and convicted by the Senate — for conspiring to extort a $150,000 bribe in a case before him, repeatedly lying about it under oath and manufacturing evidence at his trial.
Ordinarily, that might doom Hastings's chances, but the situation is further inflamed by racial politics: Hastings is African American, and the Congressional Black Caucus has made it clear that it will not tolerate his rejection. Another black lawmaker, Georgia's Sanford Bishop, was passed over to accommodate Harman, who reclaimed her seniority when she returned to Congress in 2000 after a gubernatorial run. And the black caucus is still smarting over Pelosi's move to oust Louisiana's William J. Jefferson from the Ways and Means Committee after the FBI found a freezerful of cash in Jefferson's home.
-- Ruth Marcus in the WP, 1 Nov 06 Here is another take on this important story:
"Be assured that I'm going to be a judge for life," Mr. Hastings told reporters in 1983 after his acquittal. But the arguments that swayed a Miami jury did not sway the Congress. The Democrat-controlled House of Representatives impeached Hastings for bribery and perjury by a lopsided vote of 413 to 3. Then the Democrat-controlled Senate convicted him on eight articles of impeachment by well over the required two-thirds majority in 1989. Thus Mr. Hastings became only the sixth judge in the history of our Republic (and only the third in the 20th Century) to be removed by Congress. He was, and is, an utter disgrace to the nation and to the legal profession. Among those voting to impeach him were Ms. Pelosi herself, Maryland Rep. Steny Hoyer, the Democratic whip who is likely to become the new House majority leader, and Mr. Hastings' fellow African-American Congressman, Michigan's John Conyers, who took pains to deny that race had anything to do with the removal of the bribe-taking jurist.
Article I, section 3, clause 7, of the Constitution reads as follows:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States....
Alas, in its vote convicting and removing Hastings, the Senate neglected to include language barring him from seeking future office. Hastings was promptly elected to Congress in 1992 as the representative of a new, specially-designed majority-black district.
Since shamelessly taking his seat in the very House that overwhelmingly impeached him, Congressman Hastings has not appeared chastened by his scandal-plagued past. Reports circulate that the 'Judge' is the subject of speculation about a conflict of interest. ...
[. . .]
Back to the present. The disgraced judge-cum-legislator's record on national security — the most basic criterion for leading the intelligence committee at any time, much less in the midst of a war on terror — has not been reassuring. In the 109th Congress alone, Mr. Hastings voted consistently against key counterterrorism tools, including the Electronic Surveillance Modernization Act, the Intelligence and Law Enforcement Resolution, and the USA PATRIOT and Terrorism Prevention Reauthorization Act. He has been an opponent of the trial by military commissions of unlawful terrorist combatants as well as border control, NSA communications intercepts, and terrorist financing tracking measures.
Mr. Hastings' dubious record contrasts greatly with that of the centrist Ms. Harman. While highly critical at times of the Bush administration's conduct of intelligence and counterterrorism operations, Ms. Harman has displayed a keen understanding of intelligence issues, and has introduced quite sensible legislation on national security concerns, including government-wide security clearances and enhanced seaport security. Despite the strong case against Hastings, Pham does indulge in a bit of disingenuous politics when he further blasts Hastings (and Pelosi by implication) for their opposition to various controversial measures to fight terrorism, such as the PATRIOT Act, the warrantless wiretappings, the military courts with modified or non-existent rights for the accused, and so forth. As I have said several times, I agree that we need some of these measures to fight terrorism, but they must be implemented with the greatest care. The conservatives have appeared far too cavalier in dismissing the legitimate civil rights concerns rather than adding constructively to the difficult and crucial debate. Remember that opposition to, say, the PATRIOT Act, does not necessarily mean opposition to the entire act but perhaps only to certain controversial portions of it. Non-CATO conservatives rarely bother to be honest about this subtle distinction.
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Is John Conyers a Threat? (12 Nov 06): An article in Investors Daily alleges that Representative John Conyers of Michigan, slated to be the new chairman of the House Judiciary Committee, is perilously close to a Muslim constituency that wishes to thwart government efforts to protect the nation against terrorism. Due to the gravity of this allegation, I will quote the article in full, and then I will respond to it.
John Conyers, son of a leftist Detroit union activist, represents the largest Arab population in the country. His district includes Dearborn, Mich., nicknamed 'Dearbornistan' by locals fed up with cultural encroachment and terror fears from a steady influx of Mideast immigrants.
Conyers, who runs an Arabic version of his official Web site, does the bidding of these new constituents and the militant Islamist activists who feed off them. They want to kill the Patriot Act and prevent the FBI from profiling Muslim suspects in terror investigations. They also want to end the use of undisclosed evidence against suspected Arab terrorists in deportation proceedings.
And the 77-year-old Conyers has vowed to deliver those changes for them.
"The policies of the Bush administration have sent a wave of fear through our immigrant communities and targeted our Arab and Muslim neighbors," he growls.
He'll soon be in a position to act on his promises. And he has the full backing of the expected speaker of the House. Nancy Pelosi, D-Calif., wants to criminalize FBI and Customs Service profiling of Muslim terror suspects.
"Since Sept. 11, many Muslim Americans have been subjected to searches at airports and other locations based upon their religion and national origin," she said. "We must make it illegal."
Conyers, a lawyer by trade, last decade pushed through a bill to help stop what he called 'DWB', driving while black. He dubs post-9/11 profiling 'flying while Muslim'.
Pelosi has also promised Muslims she'll 'correct the Patriot Act', one of the most valuable tools the FBI has in ferreting out jihadist cells lurking in Muslim communities.
Conyers is one of the top recipients of donations from the Arab-American Leadership PAC. And not surprisingly, he has a long history of pandering to Arab and Muslim voters.
During the first Gulf War, for instance, Conyers fought FBI outreach efforts in the Arab and Muslim community in Detroit that were designed to gather intelligence on potential cells and protect the home front. Conyers and other Detroit-area Democrats at the time, David Bonior and John Dingell, threatened to hold hearings unless the FBI stopped counterterrorism interviews.
The FBI met with them privately to explain the national security benefits of outreach, but could not allay their concerns. In the end, the FBI backed off. Today, Hamas, Hezbollah and the al-Qaida-tied Muslim Brotherhood are all active in the area.
Expect Conyers and Pelosi to kick open the doors of Congress to Islamists from the Council on American-Islamic Relations and other militant groups. They will have unfettered access, even though many of their leaders have been tied to terrorism (some CAIR officials have landed in the big house). In 2003, Conyers hosted the first dinner on the Hill that celebrated the end of Ramadan for such Muslim leaders. It's now a tradition. Incoming Democrat freshman Keith Ellison, a Louis Farrakhan disciple and first Muslim member of Congress, will no doubt expand the invitation list.
Conyers has also sponsored one of the Islamists' favorite bills in Congress. HR 635, which has 40 co-signers, would create a select committee to investigate President Bush for allegedly manipulating prewar intelligence and torturing al-Qaida detainees. The goal of his bill is to build grounds for impeachment.
Conyers led the defense of Bill Clinton in last decade's impeachment hearings and is clearly out for blood. So are many of the constituents he serves. At the same time, we know from the antics of various black politicians and 'reverends' that some black leaders are not above playing the race card. Likewise, some Republicans have shamelessly used scare-tactics and insultingly simplistic arguments to argue in favor of the Iraq war. This is called 'politics as usual', and there is no reason to think that the Black Caucus is much worse in this respect. It would be best to focus on specific crimes, e.g. those of the CAIR leadership. But if we do this, the we must be fair. There is ample reason to suspect that pre-war intelligence was manipulated and that the Geneva Conventions were disregarded. I think that impeachment would be politically unwise, and so does Speaker Pelosi. However, some new investigations led by Democrats seem entirely reasonable to me. Who is afraid of the spotlight?
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CAIR's Congress? (13 Nov 06): Robert Spencer of Jihad Watch continues in the same vein as the previous article, regarding the potential threat to domestic security from CAIR's alleged new influence on Capitol Hill following the Democratic midterm victory. Notice that he does not end his title with a question mark!
Nancy Pelosi, D-CA, who is likely to be the next House Speaker, has announced her intention to 'correct the Patriot Act' and wants to criminalize scrutiny of Muslims at airports and elsewhere: "Since September 11, many Muslim Americans have been subjected to searches at airports and other locations based upon their religion and national origin. We must make it illegal." Since religion is the one factor that the jihadists themselves invariably point to as the motivation for their violent actions, Pelosi is calling upon investigators to ignore the single most important key to understanding jihadist strategy and goals. If she gets her way, any Muslim who is searched at an airport at any time will be able to claim that he is being illegally profiled; a law criminalizing searches of Muslims at airports would have a chilling effect upon any effort to investigate jihad terror activity in the Muslim community.
Helping pass such a law will be John Conyers, D-MI, the probable new chairman of the House Judiciary Committee. "The policies of the Bush administration", he has declared, "have sent a wave of fear through our immigrant communities and targeted our Arab and Muslim neighbors."
Conyers has also masterminded House Resolution 288, which condemns 'religious intolerance' but clearly singles out Islam as needing special protection from such criticism. It states that "it should never be official policy of the United States Government to disparage the Quran, Islam, or any religion in any way, shape, or form", and "calls upon local, State, and Federal authorities to work to prevent bias-motivated crimes and acts against all individuals, including those of the Islamic faith." The bill was referred to the House subcommittee on the Constitution in June 2005, but Conyers, as chairman of the Judiciary Committee, could rescue it from legislative oblivion. At the same time, I fully comprehend that CAIR has members who have been convicted of some relationship with terrorism, such as laundering funds intended for charity, and that CAIR as a whole most likely whitewashes if not advances the cause of some Muslim terrorist groups. Those convictions are examples of the further incriminating element needed for surveillance. Even public apology for terrorist groups might count towards the probable cause, but here is where a good judge must definitely intervene. Some conservatives pontificate about 'legislating judges', but sometimes I think they wish to neutralize judges on issues they care about.
The fact remains that many Muslims are no doubt innocent of all aggressive activities or intentions and simply follow their religion as a family tradition. They may well think that Islam is no more than the common virtues, such as telling the truth and not stealing. They may not even read books or websites like Jihad Watch, and they should not be harassed. Non-CATO conservatives have shown a disturbing indifference to the potential innocent victims of the war on terror, e.g. in denying rights to captives. (Surely more than a few have been turned in by unscrupulous bounty hunters, or were simply in the wrong place at the wrong time.) For God's sake, let's have some brains here! We need as much help as possible from the Islamic community in the struggle against terrorism. If only for our own good, we must take extra pains to avoid antagonizing any innocents. Otherwise, we just play into CAIR's hands.
Moreover, I doubt that Conyers really sympathizes with the 'Islamicist' agenda per se and wishes to inflict mischief upon the American people. Rather, I suspect that 'civil rights' has become something of a shibboleth for him (as well as fellow members of the Black Caucus), and he has a simplistic anti-government animus regarding legitimate investigations of possible suspects. The solution, again, is to craft the surveillance laws very carefully, so that Islam is not the sole criterion. The Republicans and non-libertarian conservatives are trying to rush this and similar measures through without adequate thought and debate, and this is quite irresponsible of them. Where are the discussions of the subtle balancing of security and civil rights? I scan the web constantly and have found little. Perhaps I should read a more sophisticated kind of literature, but since this is a discussion that affects the entire public, that discussion should definitely spill over onto the web.
Where I fully agree with Spencer is on firmly rejecting any attempt to make Islam any kind of sacred cow, as far as discussion is concerned. It is a fact of life that any religion is capable of being associated with aggressive acts, and Islam has the worst record by far, at least regarding contemporary events. Further, the behavior of the prophet himself raises important questions about the centrality of aggression to the religion as a whole, as Spencer correctly points out. Conyers' attempt to stifle public and official discussion should be rejected out of hand. Unlike the previous civil rights issues, there is no subtlety here. It is simply a question of one of the most basic rights of all: freedom of thought and speech. I wonder if there are not more than a few conservative Christians who would like to enforce a similar taboo regarding Christianity? Don't let him open the door.
UPDATE (13 Nov 06): Here is Robert Spencer at a recent conference offering some ideas to counter terrorism that I can mostly agree with. He suggests investigating mosques to make sure that they neither preach any kind of Islamic militancy, nor exchange money with such groups. Perhaps it would be too sweeping to investigate all mosques, but certainly this would be reasonable for mosques that are alleged to preach any kind of Wahhabi doctrine. I would also feel more comfortable targeting mosques rather than individuals, since organizations are better able to protect themselves if innocent, and most of the terrorism orginates from fiery religious speeches infecting the brains of Muslim youth (not characteristically poverty striken by the way).
I could also favor stringent ideological tests for Muslims seeking residence or citizenship in America, but those who are already citizens must be treated the same as other Americans, or the whole rule of law starts to fray.
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Imams Profiled at Airport (22 Nov 06): Robert Spencer defends the recent incident in which some imams were thrown off a plane. He claims that they were acting peculiarly, and there was some database evidence that made them potentially suspect. He worries that Democrats like Pelosi will make profiling of any Muslims illegal at airports and similar places. In general, as argued above, I think that no American citizen should be 'profiled' purely on religion; there must be some other solid element of probable cause. One should not be profiled for being a Muslim but for being a militant Muslim, even if only in espoused ideology rather than in deeds to date. However, I am willing to lower the bar in the case of airline flights and similar vulnerable situations affecting the public good. The whole issue is complex and requires extensive discussion.
I might add that, in my opinion, merely being an imam increases the chance that one takes jihad seriously, compared to, say, some ordinary, decent Muslim citizen working at a gas station or grocery store. So, even though I feel more strongly about civil rights than many conservatives seem to, I am prepared to take the bold step of declaring militant (i.e. orthodox) Islam to be something other than a religion, i.e. an aggressive ideology, to be taken as seriously as we would have taken Nazi agents infiltrating America during WWII. But there must be evidence of serious intent towards jihad.
UPDATE (23 Nov 06): Let's be honest, though, that Islam is a special case. Even though I argue that one should not profile a Muslim without some evidence of ill intent that goes beyond mere religion, it does not follow that a random Muslim is 'innocent' in quite the same way as a random person of another faith. The fact remains that 'true' (i.e. orthodox) Islam clearly mandates taking over the world in the name of Islam, either through aggression or subversion. An individual Muslim may not believe this, but the probability is greater that he believes this than does a non-Muslim, other things being equal. We are talking about probabilities and correlations, which gets us into a murky area. One could even argue that Muslims really have a duty to understand their religion and change it, or convert out of it. In a modern society, one cannot claim ignorance of the law, so why should one claim ignorance of oneself, or of one's own ideology? I see no problem with at least putting stringent tests on future Muslim immigration into this country. Perhaps it would be going too far to have them sign loyalty oaths to the constitution, but perhaps some elementary quiz on the constitution might be proposed as a test for voting, or something like that. (No shariah!) Above all, there should be much candid public discussion of the orthodox ideology, which is necessarily that of the prophet, whose thought and behavior is normative for all time.
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The PATRIOT Act
Introduction (28 Feb 07): It may not seem logical to open a section on this important topic so late, but until now I had been concerned with particular news items, such as the NSA wiretaps, without taking the time to look at the bigger picture. Unfortunately, I don't have the time right now to write much on the PATRIOT Act, about which I still know relatively little, so this section will serve for a while as a placeholder for articles as I discover them.
Come to think of it, it is perfectly logical not to have addressed the PATRIOT Act as a whole, since the 'devil is in the details', such as particular forms of surveillance and their safeguards, or the reported suspension of Habeas Corpus, or seemingly dictatorial executive powers in times of war, or crossing the threshold on torture, and other civil rights novelties that may seem like monstrosities, at least on the surface. I have covered all of these on various occasions.
Since it is not just the more hawkish conservatives who may feel that the Constitution 'is not a suicide pact', we must be careful to take natural human fears into account and avoid robotic intransigence on civil rights. Of course, I am very concerned that such ' reasonable flexibility' may very well result in the proverbial 'slippery slope' towards authoritarianism. Frankly, I think the American public over-reacted to 9/11 and failed to display maturity. Certainly, the Congress did.
Was Osama trying to provoke us into abandoning our freedoms and becoming bogged down in useless wars? I can believe that at some level he is capable of that kind of satanic cunning, and that we are childish enough to swallow the bait. Even so, legal matters should be considered on a case by case basis, and we must avoid knee-jerk absolutism, either in favor of civil rights or of the right to self-defense.
Resources
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NSA Wiretaps
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Introduction (April 06): The War on Terror has made domestic security a key issue. I would like to examine the legal aspects which have dominated the news. Clearly, we must now walk a tightrope between defending against terrorism and preserving our liberties. The discussion so far indicates that the tightrope is quite slippery!
For example, there has been much press in recent months about President Bush's 'warrantless domestic wiretapping'. The administration claims the right and obligation to listen in on conversations between Americans and suspected Al Qaeda operatives overseas. The civil rights advocates are concerned that Americans' rights are being violated. Legal experts such as law professor Jonathan Turley have proclaimed that "This is one of the most serious constitutional crises that we've ever faced in the country." In particular, it violates provisions of the FISA law. Other law professors have disagreed, such as John C. Eastman, who claims that "Even if Congress didn't authorize wiretapping, and even if Congress specifically prohibited it, the fact that this is the exercising of the commander in chief's executive power to thwart an attack on the United States makes it not just within the president's constitutional authority, but ... his constitutional responsibility." This refers to Article II, Section 2 of the U.S. Constitution, which designates the President the Commander in Chief. This has generally been interpreted as giving him the right to repel attacks, notwithstanding that Congress has the power to declare war. Clearly, the experts are divided!
This raises interesting and fundamental constitutional questions. After all, we boast of being a nation 'governed by laws' and consider this the basis of our greatness. It is disturbing to think that the President might be careless or even arrogant regarding his constitutional prerogatives. On the other hand, the modern dangers of terrorism are unprecedented. This issue needs to be examined in detail, both legally and from a military and technological point of view.
For the moment, I don't understand why Bush doesn't just set up some procedure to get the warrants. The Administration claims that modern surveillance technology cannot be hampered by the delays involved in obtaining the warrants. Yet I have heard that he can get them up to three days after the wiretapping, and that the secret FISA court has acted like a rubber stamp, granted virtually all warrant requests. It seems to me that the administration could work something out, and it doesn't need to be so stubborn. I am perplexed!
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Fired CIA Leaker
25 April 06: A new issue has been raised by the recent firing of a career CIA analyst over alleged leaks to the press regarding CIA 'renditions' (i.e. kidnappings with interrogation and possible torture) of terrorist suspects in foreign countries. Whether or not these renditions are legal, it seems to me that a spy agency simply cannot operate if professionals leak classified information, so I feel little sympathy for the fired officer. However, this discussion of the issue by two retired CIA experts raises a troublesome question. One of the experts, Ray McGovern, argues that war crimes were being committed, and that under international law, as upheld at the Nuremberg trials, an officer cannot participate in a war crime, even when ordered to. Nazi officers were executed for this reason. Furthermore, he claims that the CIA's Inspector General, as well as the Congressional oversight committees, are basically toothless, so that the fired officer had nobody but the press to turn to. I don't know if this argument is correct, but it is certainly something to think about. In general, I agree that we may need tough new methods to deal with the extreme dangers of terrorism in a nuclear age, but it seems essential to me that the laws be clearly defined, and in agreement with the law and with our treaties, or we risk a slippery slope of creeping tyranny. That fear may be somewhat theoretical at the moment, but I agree with the civil rights advocates that we must at least worry about it and discuss it thoroughly.
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NSA Telephone Database
Introduction (12 May 06): This poll may change the picture dramatically in the president's favor:
Fear of terrorists wins out over constitutional procedure. Of course, the problem here is that the public is presented with a false dilemma. There is no need to choose between following the law and monitoring terrorists. We must monitor terrorists, but it should be done within the law. There is much debate about whether the law is indeed being broken, but I am uncomfortable with the fact that so many law professors (and even moderate Republicans like Senator Specter) think that Bush has crossed the line. Part of my apprehension is the slippery slope argument, namely, that once civil liberties start eroding, the momentum may be unstoppable. We must remember that constitutional questions are rather arcane to the general public. Only those with a knowledge of history can realize how fragile the constitution might be. This may sound elitist, but I wonder if the Bill of Rights would pass if put to a vote today. I don't understand why the administration doesn't make every effort to appear respectful of the letter of the law. I suppose they look at the polls and think they can get away with it. As Benjamin Franklin said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." I might add, though, that the Democrats and civil liberties advocates are foolish not to appear more concerned about domestic security. They should constantly stress how important it is to fight terrorism. Their heart doesn't seem to be in it, and that is what concerns moderate Americans.
Many conservatives, such as Senator Kit Bond (R-Mo), feel that our security is compromised by a disclosure such as the recent USA Today article describing how millions of Americans have had their phone calls monitored. They believe that almost any disclosure of our surveillance methods helps the terrorists. I am no expert on this, but I cannot agree. If we are to remain a serious and intelligent democracy, rather than a nation of fearful peasants, then the public must know what the government is up to, at least in general terms. Of course, the details of surveillance must be secret, but it seems unnecessary to conceal the broad outlines of our surveillance efforts. The terrorists have technologically skilled people working for them, so they can surmise that we are listening to them and using computers to look for patterns. Even specific algorithms are well within the public domain. I can see no reason not to have a meaningful public debate about this, and I resent the attempts of many conservatives to use scare tactics and the patriotism card to silence people.
Besides the Franklin quote, I have found these:
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Justice Louis Brandeis, 1928 I think it might be best to err on the side of Constitutional purism. I'm surprised that so many Republicans are not more concerned. Does 'conservatism' no longer mean anything but 'tax breaks for the rich'?
17 May 06: The article by Cunningham and Martin presents a particularly detailed discussion of the legalities. Cunningham is a former lawyer in the NSC under Bush and in the CIA under Clinton. Martin is director of the Center for National Security Studies, a thinktank that focuses on civil liberties in the context of national security. Hence, they are well qualified to give both sides of the story.
First, it should be understood that the NSA telephone database program, to the best of our knowledge, works by feeding millions of phone numbers, stripped of identifying information, into computers, which then 'connect the dots' by tracing who called whom. I will suppose that the NSA at least has the legal authority to identify the phone numbers of known terrorists or suspects, which it then connects to other phone numbers to look for patterns.
Cunningham begins by asserting that the NSA program is 'almost certainly absolutely legal', based on his information. The US Supreme Court said in 1979 that 'Americans do not have any expectation of privacy in telephone toll records and, therefore, the Fourth Amendment warrant requirement doesn't apply'. Furthermore, the records were turned over voluntarily by the phone companies, so the issue of a warrant is really irrelevant. Finally, he maintains that legal mechanisms exist, outside of the FISA courts, to get warrants if necessary, since the contents of the calls are excluded from the investigation.
Martin disagrees sharply, claiming that Congress responded to the 1979 Supreme Court decision by passing 'a whole series of laws', such as the Stored Communications Act or the Pen Register laws, which state that the telephone companies may not voluntarily disclose the 'information' to the government but must first get a court order or a subpoena. As for the distinction between mere phone numbers and the contents of the calls, she maintains that even the numbers, stripped of identifying information, require a court order, but her language in relating the law is a bit imprecise. For example, she says that Congress intended a court order if the government wants to know 'everyone you've called' or 'who's called you', but that doesn't specify whether this means just phone numbers or also the names associated with those phone numbers. Perhaps Congress was not sufficiently explicit in drafting the laws. Furthermore, she claims, Congress intended that only the FBI be allowed to request court orders, with the case of the NSA being 'not at all clear'.
Cunningham counters that the 'Pen Register FISA statutes' apply only to 'live transmissions of your telephone-calling data', an expression which is not altogether clear to me. He then states that, as far as 'telephone toll records' are concerned, the Communications Act specifically exempts records in which there's no 'individually identifiable information in it'. What exactly are the 'telephone toll records'? Are they just numbers, their mutual connections, and the duration of those connections? This seems to be the case. Cunningham feels that the government has been very careful to follow the letter of the law and protect the civil liberties of American citizens, just as Congress intended. The names have been stripped, and the numbers are analyzed for patterns by mere computers, which can have no perverse motives unless they are so programmed. The whole procedure is highly anonymous, until a suspicious pattern is found that requires a court order. It is not a dragnet. Such an analysis might have prevented 9/11, he claims.
Then Martin responds by saying that 'the Congress specifically anticipated this' and still requires a court order, even if the government seeks only the telephone numbers called by a specific person, and even if those numbers are already stored in a database (so that no real-time recording of data is necessary). As she admits, she reads the law quite differently from Cunningham, which suggests that the law is rather ambiguous. Furthermore, the anonymity of the stored numbers is misleading, as a computer could match the numbers to names almost immediately. And a massive database now exists in government hands for any further data-mining, by any government agency, for any purpose the government deems suitable. She says she is in favor of finding the numbers called by Al Qaeda, but this must be done legally with a court order, and there is no need to collect millions of numbers.
Cunningham finishes by mentioning the great value of the database, based on his experience as a federal prosecutor on drug cases, because 'you can not only immediately identify the network of cells inside the United States, you can also begin to understand the tradecraft of the terrorists, the way they do their business'. All this could be done without knowing the identities behind the numbers, and when it came time to close in on a suspicious number, a court order could be sought. He reminds the reader that the Bush and Clinton administrations were both 'excoriated' because they failed to prevent 9/11, which might have been possible with such intelligence.
What do I think of all this? No doubt the database idea could be of great benefit in preventing terrorist attacks. Computers could do much more to find suspicious patterns much faster than humans ever could. And I could imagine such a program being implemented in a way which truly maintains the anonymity of Americans, until a court order is warranted for a specific set of numbers. The main problems seem to be that the current laws are ambiguous or inadequte, and that most civil libertarians and many citizens simply don't trust the government. As for the ambiguity, I feel that the government should make every effort not to stretch the meaning of the law, nor to take advantage of loopholes, and to wait on the opinion of the courts if necessary. The current administration has at least appeared rather arrogant in this regard. Its peremptory attitude has prevented Congress and the Executive from working together to clarify and modernize the laws (as Jane Harman and others have proposed). And as for distrust in the government, this is always a good idea. Naturally, the federal investigators feel that they are the heroes trying to prevent terrorism, and should therefore be trusted, but we Americans have a long and honorable tradition of checks and balances and suspicion regarding the motives of officials. You never know when rotten apples in high places, perhaps aided by a little mass hysteria, might start abusing their power. It has certainly happened before. Yet the danger of terrorism in an age of WMD remains, and time is critical. So I blame both the administration and the civil libertarians for not working more closely on hammering their differences out, but I put more blame on the administration. I get the distinct impression that it has been thumbing its nose at the critics, under the assumption that enough Americans are sufficiently afraid to give the government a free pass. That is not the way for a mature democracy to proceed.
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Spying on Bank Records
Introduction (23 Jun 06): Now we learn that the government is spying on bank records. This may reignite the contentious discussion regarding the tradeoff between security and civil rights. My basic feeling (so far) is that programs like the NSA wiretapping and the bank data mining are good ideas and necessary to pursue terrorists capable of mass murder. The main problem is that conservatives insist it must all be super-secret, to the point of labeling as 'traitors' those newspapers which report on this. Nonsense! Of course the terrorists know that we are using technology to track them in any way we can. They are intelligent enough to surmise the broad outlines, so there is no reason the American public can't hear about this too. (Michael Barone absurdly implies that only after the NYT report on NSA wiretapping did it occur to Al Qaeda that their calls might be monitored! He also simply asserts that the President has domestic surveillance rights under his vaguely-worded constitutional war powers, when in fact this is being hotly contested by eminent law professors.)
Of course, the details must be kept secret, but enough can be revealed so that the public can decide on the right balance between security and civil liberties. And there should be rigorous surveillance of these programs by a broad bi-partisan or non-partisan committee of respected judges and the like, not just a few pliant FISA judges. I feel pretty sure, based on my common sense, that there is no reason why these programs must be kept in utter secrecy. That is where it starts to get creepy. As usual, the correct political solution is a judicious balance of interests. Instead, we have the customary crazed partisans shooting their mouths off. It is especially peculiar that the anti-government Republicans are telling the public to shut up and trust the government. Let us recall that CATO feels otherwise.
Frankly, I'm not quite sure what all the fuss is about. I already knew that the IRS has my financial secrets, and how much to I trust them? Or what about all the private data companies that probably know more about me than I do? Where is the outcry over that? There's no secrecy anymore! We might as well learn to live with it. Still, I would like to know, at the very least, that the government is tapping my phone or my bank records. I'm not clear on just how much these major newspapers have revealed, but it seems that some politicians want to nail them for the mere disclosure of a program. I think the public should know something about this, but I also think that the government leakers should be prosecuted in accordance with the law. They took an oath about handling classified information. The real problem is how easily the most basic and important information gets classified.
27 Jun 06: James Pinkerton notes that even though Gabriel Schoenfeld makes a strong case that the New York Times can be prosecuted under the Espionage Act of 1917, the adminstration seems disinclined to taking any action. He suggests that this is because the New York Times won a 'media battle' and now the administration is 'intimidated'. This would explain, he says, why they are 'now willing to accept closer Congressional supervision'. Whoa! Talk about spin! Perhaps they are reacting to a legitimate concern on the part of the public. Perhaps the democratic process is working. This process could not work without the information supplied by the media. I still maintain that the public should know in broad outline about all government programs. Otherwise what kind of a democracy do we have? But this doesn't justify leaks and violations of security oaths. There should be laws mandating that all programs be known in general terms. The idea of utter secrecy seems dangerous to me, and unnecessary, but perhaps I am naive in some respects.
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Supreme Court Speaks
Introduction (30 Jun 06): Yesterday, the Supreme Court handed down the most important decision of the term, regarding Salim Ahmed Hamdan, who was Osama bin Laden's chauffeur and one of 10 Guantanamo detainees facing a military tribunal. The court decided that the Bush administration does not have the authority to try the alleged terrorist by military tribunal, which would have made prosecution much easier for the government (and enabled it to protect intelligence sources and methods). Today, we are informed that the administration has refused to rule out using military tribunals to try the detainees, apparently defying the court. Perhaps it will seek new authority from Congress. At any rate, and according to my understanding, the court is powerless to enforce its will; only the Congress can impeach the president. For now, I will post some articles until I can sort this out. This issue seems, at least on the surface, to have grave implications for the rule of law and the fight against terrorists.
UPDATE (30 Jun 06): Berkeley law professor John Yoo is quite irate about the court's decision, which he says is unprecedented and contrary to the prerogatives accorded to previous Commanders in Chief during wartime, such as Washington, Jackson, Lincoln and FDR. He claims that the President needs military tribunals when prosecuting war criminals, in order to safeguard intelligence sources and methods, and to avoid a 'legal circus' like the one recently on display with Zacarias Moussaoui. Hmmm. This makes me wonder. If trials can indeed be a 'legal circus', then what does this say about the criminal justice system for ordinary citizens? Maybe I'd better not go there.
Linda Greenhouse writes that the ruling was such a 'sweeping and categorical defeat' that it left human rights lawyers 'almost speechless with surprise and delight'. The court's chief criticism was that the administration had not obtained Congressional authorization. It also insisted that the President does not, in effect, have a 'blank check' during wartime to conduct it as he sees fit, particularly with regards to the justice system. The court also denied the administration's claim that Congress had stripped the judiciary of the right to review the case! However, that only applies to pending cases and presumably not to new ones.
The decision was historic, ranking with its 1974 order to Nixon to turn over the Watergate tapes, or with its 1952 decision overturning Truman's seizure of the steel mills, a decision mentioned at length by Justice Kennedy. The majority justices were Stevens, Kennedy, Souter, Ginsberg and Breyer; the dissenters were Scalia, Thomas and Alito. The new Chief Justice Roberts recused himself, having ruled on the case in a lower court.
Disappointed Republican senators promised to work with the administration to introduce the appropriate legislation, which Bush had resisted. This may not be so easy, since the court also ruled that certain Geneva Conventions apply, which give the detainees considerable legal rights, specifically access to 'a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people'. This is probably why the administration didn't welcome new legislation earlier. Particular rights emphasized by the court, but resisted by the administration, are that the defendant has the right to attend his trial and that the prosecution cannot introduce hearsay evidence, unsworn testimony, or evidence obtained through coercion.
Here is my initial reaction, for what it is worth. I understand the danger of terrorists with WMD, and I understand that intelligence sources and methods must be protected. No doubt all the justices understand this too. I also realize that there is a rabidly anti-American portion of the left that wants to attack Bush in any way it can. But the number of eyebrow-raising problems with this President keeps piling up: faulty, cherry-picked intelligence on WMD; preemptively attacking a nation that had not attacked us and that was not helping Al Qaeda in any serious way; a crusading, quasi-imperialistic foreign policy; frequent defiance of the courts, including signing statements; controversial new domestic intelligence programs; and a very broad, almost regal, interpretation of the President's war powers. Any one of these issues might be excusable in itself, but the overall pattern is troubling. A major part of the problem is that we are faced with the unprecedented situation of terrorists with WMD attacking the homeland. Another major part of the problem is that the Constitution is vague and poorly worded with regard to the President's wartime powers.
Most Republicans back Bush, many of them rather vociferously. Is the court ruling an indication that the Republican party may not be trusted to preserve civil and constitutional liberties? Two of the three dissenting judges were appointed by President Bush, and the recused judge would have dissented. If the Republicans hold onto power long enough to appoint more justices, then we may lose some precious liberties we now take for granted. This may seem like an overreaction to a ruling that concerns only terrorists, but that ruling is also a litmus test of the overall philosophy of the justices. It is worrisome that the administration did not try to work with the courts and avoid the appearance of arrogance, which it has displayed on other occasions as well. And it is noteworthy that there are many conservatives who are worried about executive overreach, such as George Will or the folks at the CATO Institute.
Also, I must say that one cannot count on the 'wisdom' of the public to preserve our constitutional liberties. We enjoy these liberties in the first place, because we were fortunate enough to have an erudite and inspired elite of 'Founding Fathers' presiding over the birth of our nation. These liberties did not arise by taking a poll. It now seems not too unreasonable to worry that we may be losing them as a consequence of the post 9/11 hysteria. I do not say this is happening, but we must be vigilant. The histrionic tone of the hawks in countless articles is not reassuring. Do they not care as deeply about the Constitution as they care about fighting terrorists? It is hardly an open and shut case, as they seem to assume, and those who think otherwise are neither stupid nor treasonous.
UPDATE (02 Jul 06): Mark Steyn makes the point that it is contrary to the intention of the Geneva Conventions to treat terrorists like regular combatants of war. The recent Supreme Court decision seems to say otherwise, with its admonition to the administration to provide detainees with nearly full legal rights. Steyn even gives his article a characteristically screaming headline: Supreme Court Authorizes Jihad. As a matter of fact, the Supreme Court has not ordered the administration to release the terrorists, which is what counts most. And all the apoplectic conservatives seem to be forgetting that those legal rights are not primarily for the benefit of the terrorists. As far as I am concerned, they are primarily for innocents who may have been swept up, for example, by bounty hunters. Surely there are a few. How come nobody on TV ever talks about them?
I am alarmed at how increasingly vociferous the Republicans are getting about the Supreme Court, the New York Times, and other institutions they love to paint as 'liberal'. Such disrespect for the Supreme Court is offensive to any responsible citizen. As for the New York Times, they were only reporting on what everybody knew, that the finances of terrorists are being monitored. (According to John McLaughlin, the SWIFT banking company already had a website, so there was no big secret there.) At most, it is the leakers who should be prosecuted. (And what about the administration leaking the name of CIA agent Valerie Plame? Talk about selective outrage!) The Republicans are continuing their decades-old tactic of ugly rabble-rousing and extreme partisanship. For sure, there are plenty of juveniles on the Left who are equally crass, like many of the bloggers, but the Democratic politicians seem to have better manners, always on the defensive and too lame to respond effectively to the Republicans.
UPDATE (03 Jul 06): The WSJ article makes it clear that the Republican partisans are getting all frothed up over nothing. Not only frothed up but basically accusing the justices of treason. Many of these conservative websites, like the National Review, claim to be intellectual, in some sense, but that didn't prevent a knee-jerk reaction this time. It is because the war in Iraq is going badly, the American public knows it, and the hawks in their desperation are resorting to name-calling and extreme partisanship. If they can't be a bit more subtle, it will backfire on them. The public is not that dumb.
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Profiling Terrorists
Introduction (01 Jul 06): Lately there has been much discussion about the balance to be struck between fighting terrorists and preserving civil liberties. As often in politics, we are presented with a false choice. For example, I have agreed in principle with the NSA's 'connect the dots' wiretapping program and the bank searches, but I am worried about the administration's arrogant attitude and obsession with secrecy. In a functioning democracy, the public must be informed about what the government is doing, and even in the case of sensitive intelligence programs the public has a right to know the broad outlines. Only then can we be sure that these powerful programs are being properly monitored to prevent abuses. For this reason alone, there must always be checks and balances, which mean nothing without an informed public. The belligerence of the 'conservative' press regarding total secrecy is disturbing, as is the administration's unwillingness to work closely with Congress to make sure that all programs are fully authorized and monitored.
Another program that I favor is the profiling of likely terrorist suspects. This is controversial, because it would necessarily include many Muslims. Indeed, from the American point of view, the suspects would be overwhelmingly Muslim. This raises all kinds of civil rights concerns, because of a past history of racism in this country. However, while most Muslims may not be terrorists, or even terrorist sympathizers, it is a simple fact that almost all of the anti-American terrorists are Muslims. Therefore, religion must be a criterion in profiling likely terrorists. It should not be the only criterion, but it must be a major criterion. At the same time, there must be supervision and safeguards, to make sure that innocent Muslims are not harassed. This may not be easy, but it is necessary. This topic will require more discussion.
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Frontline: The Lodi Case
11 Oct 06: This excellent documentary shows how difficult it is to walk the tightrope between fighting terrorism and preserving civil liberties. Note that the documentary can be viewed online in its entirety.
It appears that a Muslim man from Lodi, California may spend the rest of his life in prison based on flimsy evidence. According to James Wedick, an FBI street agent and supervisor for 35 years, the suspects were 'led' by their interrogators in a way Wedick finds shocking and unprofessional. He claims that the suspects were unsophisticated people who did not realize the gravity of the charges and who just wanted to please their interrogators and go home. Furthermore, Wedick claims that there was no corroborating evidence. Alarmingly, the judge rejected Wedick as a witness for the defense because he would 'confuse' the jury. Wedick says he has made no money for defending these suspects. (The FBI did provide a defense, which can be found on the website. Basically, they claim that the 'leading' questions were to confirm earlier admissions, but the videotape of those admissions is not available to the public. Also, it is claimed that leading questions are acceptable for prosecutors, even if not allowed in court.)
It must be said that the witnesses did have scrapbooks in their homes with pictures and news clippings of Muslim militancy from around the world. Even so, we are supposed to convict people for their actual crimes and not for their ideas. (Keeping immigrants out based on ideology is another matter.) It is disturbing that FBI agents could get away with leading the witnesses. The average person may not understand what is wrong with this, but those who understand the law know very well the abuses which may result. It is also disturbing that people can be convicted for serious crimes without physical evidence. Often, the word of other suspicious characters may be sufficient, and this is an aspect of American law that needs to be discussed much further.
There is a special problem with Muslims, because they really do tend to think in terms of Islam vs. the world. Based on what I have read, I do not think it is unfair to suspect the majority of them of feeling more loyalty to Islam than to their country. Indeed, many of them have voiced the opinion that it is the duty of Muslims to fight on behalf of other Muslims, no matter who is attacking them. Such an 'attack' may even be taken by Muslims to include free-speech and other democratic liberties, as we saw with the Mohammed cartoons. One may reasonably ask how many American Muslims have helped authorities to thwart terrorist attacks; I do not know. On the other hand, aggressive and unfair police tactics could alienate many potential friends of the US.
FRONTLINE makes the point that most of the 450+ prosecution 'successes' against domestic Islamic terrorism turned out to be minor charges. One
DEFEATING JIHAD
by Serge Trifkovic, released March 2006,
Amazon book review
Four years after 9-11 the backbone of Islamic terrorist network is far from broken. Experts warn that for every Jihadist in custody or dead there are a few more at large, and that there will be many more New Yorks, Balis, and Madrids in the years to come. Future targets may also include vital infrastructure and energy installations. The reach and operational capability of Islamist terror cells is growing. They are present in areas previously closed to the recruiters of future 'martyrs', notably in Iraq, and in countries where a mere decade ago they did not have a significant presence, most notably Indonesia. The network is now global and capable of simultaneous attacks in different countries, e.g. in Turkey and Morocco. Al-Quaeda and its loosely linked offshoots are fielding a second generation of terrorists, many of them Muslim immigrants and their offspring in the Western world. The decentralized pattern of new threats makes counter-terrorist measures difficult. There is no command and control system to disrupt: just self-motivated groups of young people, some deeply embedded in Western host-societies.
As I said, the debacle in Iraq illustrates the futility of reforming the world. Many an empire has met its doom through an insatiable desire to extend its influence as far and wide as possible, sometimes with good motives. Our economy is propped up by massive debt, while a resurgent Asia is breathing down our necks. I agree with Trifkovic that we should take a defensive 'paleolithic' approach to the Muslim threat, rather than an offensive 'neoconservative' approach.
Disaster Center: The Al-Qaeda Manual
Combating Terrorism Center: The Management of Savagery
Robert Spencer: The Complicity of Muslim Silence
Global Aspirations of Militant Islam
CIA Expert: Political Islam Not A Threat
Islam and Civil Rights
Patrick Poole: The Muslim Brotherhood 'Project'
Ehrenfeld & Lappen: The Truth about the Muslim Brotherhood
James Brandon: The Caliphate: One Nation, under Allah
"Islam obliges Muslims to possess power so that they can intimidate - I would not say terrorize - the enemies of Islam."
Fareed Zakaria: Osama Needs More Mud Huts
SPENCER REBUFFS CIA ANALYSIS
Robert Spencer, Jihad Watch, 22 Sep 06
This story contends that the U.S. still lacks understanding of Al-Qaeda, but it reveals a much larger problem. Not only does the intelligence community have "only a single office devoted to understanding political Islam," but the director of that one, Emile Nakhleh, says: "Political Islam is not a threat. The threat is if the people become disenchanted with the political process and democracy, and opt for violence."
The fundamental problem is that people simply don't want to study an unsanitized version of Islam, in which one can clearly see that it is incompatible with Western democratic values. A divinely ordained law, provided once and for all by some prophet, is simply a violation of the essence of our constitution. That is all there is to it. Yet the truly faithful must have an ardent desire to see this law become reality, and they do. The Muslim militants have explicitly stated that they believe democracy to be a violation of the law of Allah.
HOW TERRIBLE IS THE TERROR THREAT?
Max Rodenbeck, NYRB, 30 Nov 06
Military action is sometimes necessary to combat terrorism, but it is often not the best way to do so. When Israel withdrew from southern Lebanon in 2000, after a twenty-two-year occupation, it left behind a far stronger and more determined adversary in Hezbollah than it had started with. The Peruvian army spent twenty years in an ugly, scorched-earth campaign against Sendero Luminoso guerrillas, during which nearly 70,000 people were killed. The group was defeated and disbanded after a change in tactics when a seventy-man police team took just six months, using incisive analysis and good intelligence, to capture its leader. In the cases where brute military action has succeeded, as in Uruguay and Argentina in the 1970s and 1980s, it was at the cost of democracy and human rights.
Let's be honest, though, that Islam is a special case. Even though I argue that one should not profile a Muslim without some evidence of ill intent that goes beyond mere religion, it does not follow that a random Muslim is 'innocent' in quite the same way as a random person of another faith. The fact remains that 'true' (i.e. orthodox) Islam clearly mandates taking over the world in the name of Islam, either through aggression or subversion. An individual Muslim may not believe this, but the probability is greater that he believes this than does a non-Muslim, other things being equal. We are talking about probabilities and correlations, which gets us into a murky area. One could even argue that Muslims really have a duty to understand their religion and change it, or convert out of it. In a modern society, one cannot claim ignorance of the law, so why should one claim ignorance of oneself, or of one's own ideology? I see no problem with at least putting stringent tests on future Muslim immigration into this country. Perhaps it would be going too far to have them sign loyalty oaths to the constitution, but perhaps some elementary quiz on the constitution might be proposed as a test for voting, or something like that. (No shariah!) Above all, there should be much candid public discussion of the orthodox ideology, which is that of the prophet, whose thought and behavior is supposed to be normative for all time.
So it's tricky! If I am a customs official at an airport, and I see some young men from Saudi Arabia or Pakistan, who are clearly Muslims (beards, 'Allahu Akbar!', and all), and who also have an angry attitude, or simply glowering eyes, does that constitute the 'element of probable cause'? Isn't it likelier that angry-looking young Muslims might be up to no good? I believe that the officials at airports in Israel are allowed to screen anyone they please, based on instinct and experience. I think this is fair enough for airplanes and other terror-prone situations that affect the public good.
UPDATE (23 Nov 06): On the other hand, read this.
Weekly Standard: The Pakistan Connection
Telegraph: University students at centre of terror plots
The Sun: Hunt on for baby bombers [more]
Paul Sperry (Hoover Institution): Lashkar-e-Taiba in Washington
P. David Hornik (FPM): Apocalypse Soon
ABC News: Firebombs Used in India have U.S. Officials Worried
Times Online: Al-Qaeda 'planning big British attack'
CAP: A Poll of Terrorism Experts
Jerusalem Post: Number of US visas to Saudis doubles
Michelle Malkin: 11 Egyptian students with visas disappear
WSJ: Why did Congress kill a measure to keep felons out of U.S. ports?
CAP: Who's Protecting Our Ports? Not Homeland Security, Says GAO
Introduction
No Fly List Hassles
Other Articles
Larry Korb: Six Steps to a Safer America
Daniel Pipes: Israelis Show How to Do Counterterrorism
Washington Post: Tip Followed 'A05 Attacks on London Transit
J. Peter Pham (FSM): Smarter Commercial Aviation Security
Evan Thomas (Newsweek): The New Age of Terror
David Rivkin (WSJ): What the Brits Can Teach Us About Intel
Times: Muslims face extra travel checks in UK
Jacob Laskin (FPM): The Lessons of London
John Yoo (UC Berkeley): Anti-Terror Weapons We're Afraid to Use
Emily Hunt (WINEP): Virtual Incompetence
John Allen Paulos (ABC News): How to Prevent Nuclear Terror
Daniel Pipes: U.S. Improvising on Security Five Years After 9/11
CAP: Chemical Plant Priorities
CAP: Get Serious About Biosecurity
NYT: FBI Struggling to Reinvent Itself to Fight Terror
Iraq Slogger: New Counterinsurgency Manual Hits Net
CAP: Implementing Recommendations from the 9/11 Commission
GAO: US vulnerable to WMD attack
Steve Coll: Can the US be made safe from nuclear terrorism?
Introduction
Will Pelosi Nominate Hastings?
Is John Conyers a Threat?
CAIR's Congress?
Imams Profiled at Airport
Other Articles
PELOSI'S UNINTELLIGENT CHOICE
Ruth Marcus, Washington Post, 1 Nov 06
If Democrats win control of the House next week, Nancy Pelosi's first test as speaker will arrive long before the 110th Congress convenes. Her choice to head the House intelligence committee — unlike other House committees, this one is left entirely up to the party leadership — will speak volumes about whether a Speaker Pelosi will be able to resist a return to paint-by-numbers Democratic Party interest-group politics as usual.
SPEAKER PELOSI'S IMPENDING INTELLIGENCE FAILURE
J. Peter Pham, TCS Daily, 9 Nov 06
Taped conversations between Hastings and Borders confirmed that the judge was a party to the plot. Hastings was also criminally prosecuted for bribery, but his accomplice Borders went to prison rather than testify against him. Hastings was acquitted thanks to Borders' silence. Borders was then pardoned by President Clinton. ...
I must agree that, his acquittal in Florida notwithstanding, the lopsided votes of the Democratically-controlled House and Senate confirm that Hastings should not even be in public office, let alone as head of the House Intelligence Committee. If Pelosi appoints him, she will start off her tenure with an irrevocable blunder. If the Black Caucus really stands so strongly behind Hastings, then that reflects very poorly on them too, though this no doubt has more to do with unthinking racial politics than with any desire to harm America's security. After all, even Conyers voted to impeach Hastings. And didn't Pelosi herself reputidate 'Cold Cash' Jefferson? Let's not condemn Pelosi yet.
Terence J. Anderson (WP): An Intelligent Choice for A Key Panel
CNN: Incoming House intelligence chief Reyes botches easy intel quiz
JOHN CONYERS AND THE MUSLIM CAUCUS
Investors Daily, 9 Nov 06
The likely new chairman of the House Judiciary Committee says he's just fighting bigotry in leading a Democrat jihad to deny law enforcement key terror-fighting tools. But he is in the pocket of Islamists.
More over-simplified and slightly bigoted rhetoric from our conservative friends. I certainly favor surveilling Muslims who also have a known connection to terrorism, even if the connection is merely ideological. For example, it might be enough for suspects to have attended lectures by a militant mullah (even though this could conceivably have been out of curiosity). I have written extensively on the genuine dangers of militant Islam, but a Muslim must not be suspected of espousing such views just because he is Muslim. There must be a higher threshold of probable cause. Who is to say that innocent Muslims have not or will not be harassed by broad-brush sweeps? Government investigations must be conducted with the greatest care and according to guidelines that have been thoroughly debated by both sides of the aisle on Capitol Hill. Republicans have resisted this debate, preferring to smear the civil rights proponents, some of whom are no doubt extreme. It is not so much that the government is malicious as it is prone to error. We have had a vivid demonstration of this regarding the WMD fiasco in Iraq. A little humility is in order. Conservatives and hawks of all stripes have been too arrogant in dismissing legitimate civil rights concerns.
CAIR'S CONGRESS
Robert Spencer, FrontPageMag, 13 Nov 06
With the Democratic victory in the midterm elections, one big winner was the Council on American Islamic Relations (CAIR). The American Islamic pressure group now has a chance to advance its agenda in numerous ways, with energetic water-carrying by, among others, the Speaker of the House, the chairman of the House Judiciary Committee, and the first Muslim member of Congress.
Again, while I quite agree that an aggressive and intolerant tradition is to be found at the heart of Islam, I still object to scrutinizing a Muslim simply because he is Muslim, without advancing some other element of probable cause. As with the CAIR critics mentioned above, Spencer does not specify this crucial detail, which is why we need honest and experienced judges and well-written laws. I remind the reader once again that rejection of, say, the PATRIOT Act, does not necessarily mean rejection of all of it. The supporters of such legislation just can't be honest about this essential point!
Breitbart: 6 Imams Removed From Twin Cities Flight
Robert Spencer: Why nobody should apologize for the six imams
Audrey Hudson (WT): How the imams terrorized an airliner
Richard Miniter (NY Post): About those Imams
Kenneth R. Timmerman: The Trans-Atlantic Terror Divide
Michael Scheuer: Statement before the House Committee
Justin Raimondo: Nukes, Spooks, and the Specter of 9/11
Department of Justice: Preserving Life and Liberty
Barney Keller: A necessary piece of national security
Heather Mac Donald: No Green Light To Spy on Americans
Heather Mac Donald: In Defense Of the Patriot Act
Jamie Glazov: The Un-PATRIOT-ic Left
ACLU: DOJ website is misleading
EFF: PATRIOT Act vis-a-vis online activities
ALA: USA PATRIOT Act and Intellectual Freedom
Matt Welch: Get Ready for PATRIOT II
David Cole: Patriot Act's Big Brother
Timothy Lynch: Patriot Act reduces privacy, undercuts judicial review
Diana Lithwick: A Guide to the Patriot Act, Part 1
Diana Lithwick: A Guide to the Patriot Act, Part 2
Diana Lithwick: A Guide to the Patriot Act, Part 3
Diana Lithwick: A Guide to the Patriot Act, Part 4
John Podesta: USA Patriot Act: The Good, the Bad, and the Sunset
Linda Feldmann (CSM): Patriot Act, Part II
Introduction
Pro & Con
Other Articles
Jacob Laksin: The Legal Left's War on National Security
FISA court recently upheld Bush's 'warrantless wiretapping'.
Michael Hayden: What NSA Has Been Doing to Defend the Nation
Former NSA director defends his agency.
Cinnamon Stillwell: A September 10 State of Mind
Controversial NSA domestic surveillance was reasonable and legal.
Heather MacDonald: Talking Sense on 'Spying'
Insentient computers cannot 'eavesdrop'. FISA needs to be revised.
Andrew Cohen: The Legal War On Terror
At what point do presidential war powers trump civil liberties?
David Cole: NSA Spying Myths
Bush is overreaching. Existing law permits surveillance of terrorists.
Lawrence Tribe: On the legality of the NSA wiretapping
In a letter to Democratic Representative Conyers.
John McCain: Bush broke law on wiretapping
The ex-POW, pro-war Republican senator joins Specter, Lugar...
Rep. Jane Harman: FISA warrants can cover NSA program
Who says Democrats can't be serious about defense?
George Will: No Checks, Many Imbalances [more]
Will is a classic conservative, distrustful of the state.
Steve Chapman: The Self-Emasculation of Congress
Unacceptable: NSA wiretapping 'probable cause' up to President.
NYT: Judges on Secretive Panel Speak Out on Spy Program
Not a rubber stamp! FISA judges say Bush must obey law.
WP: Sen. Specter to try to block NSA program's funding
Specter and Harman are troubled by NSA wiretapping.
Scott Lehigh: Our monarch, above the law
These 'signing statements' worry me too.
AP: Judge calls Net wiretap rules 'gobbledygook'
How often do judges use such intemperate language?
Wired: Ex-NSA Chief Assails Bush Taps
That's pretty high up.
Think Progress: Key Republicans criticize phone taps
It's not the surveillance but the procedure. Legality matters.
CCR: Letter Opposing the Hayden CIA Nomination
CCR is considered part of the 'legal Left' by FrontPageMag.
BBC: US 'to end warrantless wiretaps'
FT: Secret court to govern wiretapping
Wired: Point, Click ... Eavesdrop: How the FBI Wiretap Net Operates
Federal Source to ABC News: We Know Who You're Calling.
Of course, the question of leakers arises, who have broken the law. This cannot be condoned, but I still feel that there must be some safe procedure in place for the public to be informed. The oversight committees are apparently asleep at the switch. The public has a right to know. We must be treated like citizens.
"Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." James Madison to Thomas Jefferson, May 13, 1798
Bryan Cunningham (ex-NSA lawyer) vs. Kate Martin (CNSS)
Heather MacDonald: Another Specious Privacy Scandal
Steve Chapman: We're All Suspects Now
USA Today: Poll: 51% oppose NSA database
Jonathan Turley: Down to the Fourth Estate
Peter Brookes: NSA Needs Phone Records to Connect the Dots
ACLU et al: Open Letter to Sen. Specter
David Ignatius: Spy Tools In Need Of a Law
Ronald A. Cass: NSA, the Media, Security, & Liberty
Yahoo News: BellSouth demands USA Today retract NSA claims
Bruce Shapiro: The Wiretapping Tango
Eric Alterman: A Nation of Suspects
Dana Milbank: FBI Raid Hits a Constitutional Nerve [more]
Onnesha Roychoudhuri: Inside the NSA Data Mine
Heather Mac Donald: National Security Be Damned (at the NYT)
Jonathan Turley: Bush Flouts the Law (video) [more]
Debra J. Saunders: Artifices of Impeachment
Michael Barone: The New York Times at War With America
N.Y. Times editor: On Our Banking Records Report
Gabriel Schoenfeld: The Case for Prosecuting the New York Times
John Nichols (The Nation): Bush's Guide to Good Leaks and Bad Leaks
Eleanor Clift (Newsweek): The GOP's Media Bashing
Nicole Gelinas (City Journal): Subverting the War on Terror
David Remnick (New Yorker): The White House vs. The Times
BBC: US Guantanamo Tribunals 'Illegal'
BBC: Bush Refuses to Abandon Tribunals
Charles Lane (WaPo): High Court Rejects Detainee Tribunal [more]
Linda Greenhouse (NYT): Justices Broadly Reject Military Tribunals
David Rivkin (WSJ): What the Hamdan Ruling Actually Says
Jane Mayer (New Yorker): Legal Mind Behind Bush's GWOT
Dennis Byrne (blogger): Cutting Through the Hyperbole on Hamdan
Ronald A. Cass: Hamdan v. Rumsfeld: Common Sense at War
Mark Steyn: Court Finds Right to Jihad in Constitution
CATO Institute: A (Tentative) Guide for the Perplexed
David Corn: The Gitmo Decision
Slate: The Most Important Decision on Presidential Power. Ever.
New Yorker: Powell: Cheney Staffers Don't Care About Constitution
Jeff Jacoby: Liberal exaggeration on Bush dictatorship
Paul Craig Roberts: The Grave Threat is the Bush Administration
T. Mann and N. Ornstein: The threat of Bush's signing statements
Martin Garbus: Police-State Powers Are Our Biggest Threat
Daniel Pipes: Writings about Profiling to Find Terrorists
Jacob Laskin (FPM): The Lessons of London
Robert Spencer: Why We MUST Profile
Daniel Pipes: What Security Measures vis-a-vis American Muslims?