Following up on a prior post regarding Habeas Corpus:

The Habeas Corpus Restoration Act of 2007 is likely to be going up for a vote this week and you may find it of interest to follow the informal vote count (below). This legislation is in direct response to a provision of the Military Commissions Act of 2006 (“suspend[ing] habeas corpus for any alien determined to be an ‘unlawful enemy combatant’ engaged in hostilities or having supported hostilities against the United States”). A more complete breakdown of the anticipated vote count is available at restore-habeas.org. Please note that ACS does not take a position on specific legislation.

From the site:

This week, we have a critical opportunity to restore habeas corpus.

The Habeas Corpus Restoration Act gives us a chance to reverse one of the Bush Administration’s many assaults on our civil liberties.

We all want to make America safe from terrorism, but becoming a nation that sanctions the unlawful detention of its own residents — detaining and jailing them without the chance to appear before a judge — does not make us safe. Instead, it violates a value that we have held dear for centuries — safeguarding our individual freedom before arbitrary state action.

See also:

Killing Habeas Corpus by Jeffrey Toobin for The New Yorker

Mr Deghayes was captured in Pakistan – his family claim by bounty hunters – after the US attacked Afghanistan. They say he had gone there to start a business exporting dried fruit to a leading supermarket.

In the dossier, he claims to have seen US guards kill people, witnessed prisoners being partially drowned, and saw the Qur’an thrown into a toilet by a US guard.

The new claims come after earlier Guardian reports of Mr Deghayes’s ill treatment, including allegations that he was left blinded in one eye after a soldier plunged his finger into it, and claims that he had human excrement smeared on his face.

As several Guantanamo prisoners slowly are allowed release, no doubt more and more of these former prisoners will tell such stories. The “few bad apples” defense simply won’t match the systemic magnitude of the prisoners’ stories of abuse. Referring back to the New Yorker piece on “black sites,” it seems our government already has quite a handle on creating a systemic torture regimen for its “detainees.”

“The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”

[...]

A former member of a C.I.A. transport team has described the “takeout” of prisoners as a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location. A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories during the takeout of detainees, likened the treatment to “sodomy.” He said, “It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability. The interrogation became a process not just of getting information but of utterly subordinating the detainee through humiliation.” The former C.I.A. officer confirmed that the agency frequently photographed the prisoners naked, “because it’s demoralizing.”

[...]

Ramzi Kassem, who teaches at Yale Law School, said that a Yemeni client of his, Sanad al-Kazimi, who is now in Guantánamo, alleged that he had received similar treatment in the Dark Prison, the facility near Kabul. Kazimi claimed to have been suspended by his arms for long periods, causing his legs to swell painfully. “It’s so traumatic, he can barely speak of it,” Kassem said. “He breaks down in tears.” Kazimi also claimed that, while hanging, he was beaten with electric cables.

There is no well-mannered “intellectually honest” State Department lawyer, no distinguished law professor, no “follower” of the philosophy of Christ, who can justify, excuse or otherwise explain the systematic dehumanization and degradation of Guantanamo, the “Black Sites,” and Abu Ghraib. This administration’s evisceration of the Geneva Conventions, its persistent forwarding of the theory of a “unitary executive,” and the petulance of its divine-righted “decider” each in its own way have contributed to the culture of lawlessness and human degradation of Guantanamo. There is no law but the Decider’s law. And there is no act, however cruel, degrading or perverted, that cannot be coolly and systematically committed in the name of the Decider’s War on Terror. A man sodomized, his face smeared with feces – this is an end result, a logical conclusion to the “advocacy” of genteel government lawyers, the novel theories of legal “scholars,” and the “necessary steps” of a self-described “Christian.”

In January of 2009 it will be tempting for America, before itself and before the world, to write-off the Cheney-Bush administration as an aberration. But throughout this current administration’s lawlessness, Congress bi-partisanly either meekly assented to or actively promoted every one of the administration’s actions involving “detainee” treatment. Most importantly, we the people have assented as well. Perhaps we are too willing, as in the case of Abu Ghraib, to accept the “bad apples” defense our government puts forth. Perhaps we are unwilling to look squarely at what we’ve allowed our government systematically to do to countless human beings. Perhaps it’s too disturbing for us to admit having a part in.

Jack Balkin:

Behind the current events is a more troubling trend. As Sandy Levinson and I have written, we are in a gradual transition from a National Security State to a National Surveillance State. We pointed out that although the Republicans got first crack at constructing many features of this emerging state, it would be a bipartisan effort. The only issue will be what kind of national surveillance state we would have, and whether government would put in place the appropriate checks and balances to protect civil liberties, prevent the multiplication of secret laws and secret methods of enforcement, and restrain an increasingly ambitious executive.So far the answers to this question have not been reassuring. Whether controlled by Republicans or Democrats, Congress seems willing to bestow more and more unaccountable power to the President of the United States. The Democratic Party, which has long prided itself on its support for civil liberties, seems altogether to have lost its soul, and the Republican Party, which long contained a strong element of libertarianism and respect for individual freedom– particularly in economic matters– has given up any claims to providing a counterweight to a deluded and incompetent President.

The order by a judge on the top-secret Foreign Intelligence Surveillance Act court has never been publicly acknowledged by administration officials—and the details of it (including the identity of the judge who wrote it) remain highly classified. But the judge, in an order several months ago, apparently concluded that the administration had overstepped its legal authorities in conducting warrantless eavesdropping even under the scaled-back surveillance program that the White House first agreed to permit the FISA court to review earlier this year, said one lawyer who has been briefed on the order but who asked not to be publicly identified because of its sensitivity.

The first public reference to the order came obliquely this week from House Minority Leader John Boehner—one of a number of senior Republicans who have been leading the White House-backed campaign to persuade Congress to rush through an expanded eavesdropping measure before it leaves for August recess at the end of this week.

So, this FISA court ruling supposedly explains the “emergency.”

But instead of answering questions, an “oblique reference” to a secret opinion about a secret program written by a nameless judge only raises more questions. Were there other aspects of the surveillance program (remember – apparently cleaned-up in the hopes of passing FISA court muster) that the FISA judge determined violated the law? The only information leaked to the press is that which selectively bolsters the administration’s sudden insistence on a specific revision of the FISA statutes. Unfortunately, oblique references and self-serving leaks may prove sufficient in moving Congress toward unquestioningly revising the FISA statutes.

And if Congress’s fear of not looking “tough on terrorism” is not enough to move them, the Capitol’s subjection to one of Michael Chertoff’s “gut feelings” may better drive the administration’s point home.

More at WaPo:

Since March, the administration has quickly tried to build a case for the legislation, while concealing from the public and many in Congress a key event that appears to have driven the effort.

“It clearly shows that Congress has been playing with half a deck,” said Jim Dempsey, policy director for the Center for Democracy and Technology. “The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence.”

Under pressure from President Bush, Democratic leaders in Congress are scrambling to pass legislation this week to expand the government’s electronic wiretapping powers.Democratic leaders have expressed a new willingness to work with the White House to amend the Foreign Intelligence Surveillance Act to make it easier for the National Security Agency to eavesdrop on some purely foreign telephone calls and e-mail. Such a step now requires court approval.

It would be the first change in the law since the Bush administration’s program of wiretapping without warrants became public in December 2005.
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The administration says that digital technology and the globalization of the telecommunications industry have created a legal quandary for the intelligence community. Some purely international telephone calls are now routed through telephone switches inside the United States, which means such “transit traffic” can be subject to federal surveillance laws requiring search warrants for any government eavesdropping.

Under the program of wiretapping without warrants, which began soon after the Sept. 11 attacks, the N.S.A. eavesdropped on the transit traffic without seeking court approval. But in January, the administration placed the program back under the FISA law, which meant warrants were required for surveillance of the transit traffic.

After years of the administration saying that FISA need not be amended to accommodate “terrorist surveillance,” suddenly there is a just-discovered hole in the FISA statutes? And members of Congress, in the words of the NYT, are scrambling to speedily amend the statutes? How familiar this sounds.

Wired‘s Ryan Singel writes a thorough piece seriously questioning the “sudden emergency” of this FISA “reform” drive, as well as the potential for abuses especially prevalent in the administration’s proposed bill. The piece is well worth reading in its entirety, but here’s a snippet:

… the Administration’s proposed bill would let the government order the nation’s telecoms and internet providers to open their networks so that the government can build out spying complexes on their networks. The law would only require that foreign intelligence gathering be a “significant purpose” of the installation. So in essence the government could order the nation’s backbone providers to let the government turn the internet into one giant monitoring device and examine internet traffic for signs of copyright infringement, domestic political dissent, pornography and parking ticket violators, so long as the NSA’s computer algorithms also scan packets for the term “Al Qaeda.”

The Democrats’ legislation would allow employees to sue within 180 days of their last affected paychecks. Senate Democrats are working on a similar bill.

Ledbetter, who will not be helped by the legislation, said she hopes it helps other people. “I just want to open the doors for women in the future so they can be treated fairly,” she said in an interview.

The White House has threatened to veto the bill, and has enough votes in the House to make it stick.

As John Sweeney says in the article, this legislation wouldn’t even be necessary if the five justices in the majority hadn’t “bent over backwards, ignoring both precedent and common sense.”

The Professors over at Balkinization surmise that “for political reasons, the President is going to shy away from playing this [executive privilige] card unless he has to– but that won’t stop others from promoting the idea vigorously.”

Then again, in the summer of 2002, plenty of folks thought, for political reasons, the President wasn’t really going to play the card of pre-emptive war against Iraq unless he had to, though others promoted the idea vigorously.

“In some instances, Presidents Reagan and Clinton may have been pleased with the work of the U.S. attorneys, who, after all, they had appointed,” Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, speculated in a 2006 memo outlining Bush’s alternative approach. “In other instances, Presidents Reagan and Clinton may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys.”

This is precisely why the Administration had the provision inserted into the Patriot Act which negated the necessity of Senate confirmation for US attorneys.

When, for example, Donald Rumsfeld tendered his resignation as Secretary of Defense, there were Senate confirmation hearings for replacement Robert Gates. Not only did these hearings allow the Senate to assess the merits of the new appointment, it also allowed for the Senate to engage in oversight over the Defense Department. The Senate raised issues of Defense Department operations under Rumsfeld’s tenure and questioned Gates as to his plans and priorities for the Defense Department going forward.

Moreover, the confirmation process acts as the only practical protection against the President’s use of US Attorneys for primarily political ends. When Sampson writes that Reagan and Clinton “may simply have been unwilling to commit the resources necessary to remove the U.S. attorneys,” Sampson is precisely correct. The precious resources of political capital lost during confirmation hearing for replacements would outweigh the benefit of attempting to fire independently-minded attorneys and attempting to replace them with political sycophants. Confirmation hearings would bring front-and-center the reasons for both the firings, and then close scrutinization of the replacement attorneys. These are necessary and fundamental oversight powers of the Congress.

The new Patriot Act provision allowed for an end-run around this process. Simply put, the Administration sought to insulate itself from the “resource costs” of purely political and cronyistic use of officers of the federal courts.

Meanwhile, Josh Marshall “gets down to the real nub” of the “Purge”: fired US Attorney Carol Lamb‘s corruption investigation was leading her toward the Executive Branch.

Congress, the Constitution and War: The Limits on Presidential Power

President Bush doesn’t seem to care that Congress wants a bigger role in guiding the Iraq war. Talking about his plan to send in 20,000 additional troops, he said on “60 Minutes” that he knows Congress can vote against it, “but I’ve made my decision and we’re going forward.”

It is hardly the first time this president has insisted that he is “the decider,” or even the first time he’s used the Constitution to justify it, as Vice President Dick Cheney did when he told Fox News: “The Constitution is very clear that the president is, in fact, under Article 2, the commander in chief.”

But Mr. Cheney told only half the story. Congress has war powers, too, and with 70 percent of Americans now opposed to President Bush’s handling of the war, according to an ABC News/Washington Post poll, it is becoming more assertive about them. Congress is poised to pass a resolution denouncing the troop increase. Down the line, Congress may well consider mandatory caps on the number of troops in Iraq, or setting a date for withdrawal.

If it does, we may be headed toward a constitutional clash, with the administration trying to read powers into the Constitution — as it has with its “enemy combatant” doctrine and presidential “signing statements” — that the Founders did not put there. The Constitution’s drafters were intent on balancing power so no one branch could drift toward despotism. The system of checks and balances that runs through the document divides the war power between the president and Congress.

The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.

But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.

The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”

In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.

When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice, declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”

The court has repeatedly reinforced this principle. In 1952, in the steel seizure case, it ruled that President Harry Truman could not seize steel mills to avert a strike — even though steel was needed for the Korean War — because Congress had set out a different way of handling the labor unrest. More recently, in Hamdan v. Rumsfeld, it held that President Bush must follow Congressional guidelines when he sets up military tribunals for detainees.

Past Congresses have enacted just the sort of restrictions the Bush administration is trying to foreclose today. During the Vietnam War, the Foreign Assistance Act of 1974 capped the number of American military personnel in South Vietnam at 4,000 within six months. The Lebanon Emergency Assistance Act of 1983 required the president to get Congress’s approval for any substantial increase in the number or role of armed forces in Lebanon.

There is little question that Congress could use its power of the purse to end a war. But cutting off financing is a drastic step, and one that members of Congress are understandably reluctant to take, because it can look like a refusal to support the troops. The Constitution’s text, Supreme Court cases and history show, however, that Congress can instead pass laws that set the terms of military engagement. Whether it would be wise for Congress to adopt such limits is debatable; whether it has the authority to do so should not be.

The Bush administration insists that if Congress tries to manage the Iraq war, it will leave the commander in chief with too little authority. But the greater danger is the one Madison recognized at the nation’s founding — that all the power will be left with the person “most interested in war, and most prone to it.”