Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.
HL Mencken
One of the primary reasons that alternative media outlets like the Michigan Messenger exist is because the mainstream media seems to have a terrible time stating a simple truth, no matter how well supported or easily proven it may be. Far too many newspapers, magazines and TV pundit shows opperate on the premise that in order to be "balanced" or "objective" they must present the claims of two opposing sides and not take a stand on which side is telling the truth, even when the truth is, to borrow a hackneyed old phrase, as plain as the nose on their face. Because I disagree with that premise, let me counter it with this plain and simple statement: the Bush administration is lying to you.
That will come as a shock to few, of course; every government lies to its constituents and anyone who doubts that is hopelessly naive. But the lies coming from this administration about warrantless wiretaps, terrorism and the Foreign Intelligence Surveillance Act (FISA) elevate mendacity and arrogance to an art form. Hardly a day goes by without some new blatant falsehood escaping the lips of an administration official, falsehoods that are easily checked up on by any reporter -- or for that matter, any citizen -- with the ability to do a google search. Allow me to demonstrate.
The Bush administration has made much of the issue of telecom immunity. They have for months been demanding that Congress pass a law that gives the telecoms complete immunity from all lawsuits stemming from their cooperation with government surveillance efforts, even if those efforts are found to be unconstitutional. They've defended this with the repeated claim that without such immunity, the telecoms will be bankrupted by frivolous lawsuits costing "billions of dollars." This despite the fact that the ACLU's lawsuit on behalf of Studs Terkel and others against AT & T asks for no damages whatsoever. But that pales next to the lie that just came from Michael Mukasey, the new attorney general.
On March 27th, Mukasey gave a speech to the Commonwealth Club in San Francisco. The prepared text of his speech focused on political corruption and many news outlets reported that he had promised a crackdown on bribes and other forms of corruption. A couple of outlets mentioned that in the Q & A portion of his appearance, he was asked about the government's surveillance efforts in the war on terror and the telecom's cooperation in those efforts. But not a single mainstream media outlet that I can find called him on a couple of major lies he told in this regard. Like this one, reported in a positive op-ed at the Wall Street Journal:
"Forget the liability" the phone companies face, Mr. Mukasey said. "We face the prospect of disclosure in open court of what they did, which is to say the means and the methods by which we collect foreign intelligence against foreign targets."
When I first read this, my jaw dropped. Michael Mukasey is a former Federal judge who has handled multiple terrorism cases in the past. Surely he knows that such issues would never be discussed in open court, they would be heard either in camera (literally "in chamber," a court proceeding that takes place in private rather than in open court, almost always invoked in cases involving national security) or ex parte (proceedings where only one party, in this case the defendants in such a case, would present classified material to the judge alone, without the plaintiffs present)? Of course he knows that; he's held many such hearings himself. He's simply lying.
But to make the lie even more blatant, consider this: the FISA law explicitly requires that hearings to consider that sensitive information must be held both in camera and ex parte. Here's the relevant text from the FISA act:
(f) In camera and ex parte review by district courtWhenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.
It doesn't get much more clear than that. Mukasey is lying. But that's not the only lie he told during his speech last week. In fact, the other lie is far worse for the administration's credibility. During the Q & A, Mukasey claimed that the administration knew there was a call between an Al Qaeda safehouse in Afghanistan and someone in the US just prior to 9/11, but that FISA prevented them from intercepting or tracing the call that might have helped avoid 9/11. And he told this while getting all weepy eyed about the whole thing. The New York Sun reports the scene and the direct quote:
Attorney General Mukasey, in an emotional plea for broad surveillance authority in the war on terror, is warning that the price for failing to empower the government would be paid in American lives. Officials "shouldn't need a warrant when somebody with a phone in Iraq picks up a phone and calls somebody in the United States because that's the call that we may really want to know about. And before 9/11, that's the call that we didn't know about," Mr. Mukasey said yesterday as he took questions from the audience following a speech to a public affairs forum, the Commonwealth Club. "We knew that there has been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn't know precisely where it went."At that point in his answer, Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America's anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. ... We've got three thousand people who went to work that day and didn't come home to show for that," he said, struggling to maintain his composure.
The transcription is slightly wrong there. Having listened to the audio myself (you can find it here, at about the 50:30 mark), he clearly says there "had" been such a call and is referring to a call before 9/11. But I submit to you that it was not his composure Mukasey was struggling to hold on to but his integrity. The claim that the administration was prevented from surveilling that call because of FISA is either a flat out lie or is evidence of rank incompetence on the part of those charged with such surveillance.
There are two reasons for this. The first is that the administration, if they had evidence that this particular place was an Al Qaeda safe house, they could have (and obviously should have) asked for a standing warrant from the FISA court to intercept any calls from that safe house to the United States (they would need no such warrant for any calls from that house to anywhere outside the US). Such orders are authorized by FISA and last for 120 days (and can be extended indefinitely). If the administration failed to do so, that clearly brings their competence into question.
Far more importantly, though, even without a standing order for such surveillance, there was nothing in the law to prevent them from intercepting that call and then going to the FISA court and asking for a retroactive warrant. Again, this is clearly authorized by the FISA law. Here is the relevant text:
(f) Emergency ordersNotwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that--
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.
The attorney general can authorize such surveillance and then go to the FISA court within 72 hours to get a retroactive warrant. And bear in mind that the FISA court has, according to experts, denied a grand total of 3 requests for a warrant in 30 years of existence. There was nothing in the FISA law that could have legally prevented them from intercepting that call. Mr. Mukasey is lying, either about the existence of that call or about the administration being unable to intercept it.
And the reaction of the mainstream media to those lies? The Wall Street Journal's editorialists praised Mukasey as "an Attorney General worthy of the current moment." The New York Sun reported the fact that he got all choked up but never questioned the truth of what he said. Only the San Francisco Chronicle, as far as I've seen, even bothered to ask the right questions:
Mukasey did not specify the call to which he referred. He also did not explain why the government, if it knew of telephone calls from suspected foreign terrorists, hadn't sought a wiretapping warrant from a court established by Congress to authorize terrorist surveillance, or hadn't monitored all such calls without a warrant for 72 hours as allowed by law. The Justice Department did not respond to a request for more information.
Ironically, Mr. Mukasey in his speech quoted Teddy Roosevelt. Perhaps he should have quoted his cousin, Franklin Delano Roosevelt, or at least offered a paraphrase that seems to express the Bush administration's approach to governance: we have nothing to sell but fear itself. And you would hear talk this blunt from the mainstream media if they hadn't long ago transformed from government watchdog into passive lapdog, eager for a pat on the head and a scratch on the belly.
Comments
The Wall Street Journal's editorialists praised Mukasey as "an Attorney General worthy of the current moment."
Considering we're well into the post-1984 era, they may well be right about that.
Posted by: Coragyps | April 1, 2008 9:46 AM
Fantastic post and research....great work!
Posted by: JohnA | April 1, 2008 10:08 AM
Yes, and no one mentions that Bush brushed off the CIA agent sent to Crawford to explain urgency of situation with, "well, you've covered your ass" smart alecky comment in August 2001. Or that Condoleeza Rice didn't react to other hints of terrorism. Almost like they wanted the terrorists to strike so they could use that to get their agenda . . . Naw, no American president would do that, would he/she?
Posted by: BC | April 1, 2008 10:44 AM
I posted a less-well researched blurb here about the editorial in the WSJ a couple days ago. It's simply appalling what the media lets the Bush Administration get away with.
I had a discussion with my father (who is a partial Bush supporter), and he really didn't know what FISA was or when it had been enacted (1978), and had a complete misunderstanding of the current issue -- this despite reading/watching more "news" than I could ever do. It's clear that the media isn't really "liberal" when they consistently fail to present genuine facts, which only supports Bush.
Posted by: Braxton Thomason | April 1, 2008 10:49 AM
An excellent post, Ed. A perfect balance between anger and well-researched criticism. I think you do better reporting/commenting on these types of issues than just about anyone else I've read.
Keep up the good work.
Posted by: James Hanley | April 1, 2008 12:12 PM
Why is he still referred to as the "new" AG?
Posted by: FishyFred | April 1, 2008 12:30 PM
I have to say that, like Braxton's father, I watch a lot of news and I only know about FISA because of this blog. We've probably all seen the recent TV commercials trying to scare us, touting the idiocy that we'll be defenseless unless congress passes surveillance laws. They need to be fought more openly, I haven't seen any adds or major media coverage in rebuttal telling people the truth, and probably won't.
Posted by: paul | April 1, 2008 2:20 PM
That the mainstream media STILL acts deaf dumb and blind to the lies, etc. of the current administration is appalling.
I no longer read the daily paper.
Thank you for this blog.
Posted by: Rod | April 1, 2008 2:30 PM
Another excellent post, Ed. Thanks!
Posted by: satcomguy | April 1, 2008 5:36 PM
The main stream media drives me absolutely nuts. So many critical stories they simply ignore. What grinds on my nerves even more is the ditto-head conservative spin that the media is "liberal" and "biased." They're too freakin' incompetent to be biased.
Posted by: dogmeatib | April 1, 2008 8:02 PM
Much thanks for the terrific post. Sadly, it seems to be true: In order to get any context to the news, one really has to go to the blogs. I love newspapers, but they have become so irrelevant in helping people understand why events matter. Sigh.
Posted by: Lauri | April 1, 2008 8:21 PM
another excellent post, Ed - this "no research needed" journalism we see these days drives me batty...no need to investigate claims or follow up on quotes when PR people & press secretaries will give you your news on a silver platter, eh?
Posted by: CanadianChick | April 1, 2008 10:26 PM
dogmeat: I feel the same way about New Zealand's MSM. While its pretty clear that the media can be painfully wrong-headed it seems to me that its not political bias, but rather poor analytical skills and outright laziness that explains their poor performance.
As far as telecom immunities goes, I read a comment on Reason a while back that I feel offers a good way forward:
Posted by: James K | April 2, 2008 12:10 AM
I got this e-mail a while back, this seems to be a good place to post it. (Sorry about the length)
Fascist America, in 10 easy steps
Tuesday April 24, 2007
The Guardian
1. Invoke a terrifying internal and external enemy
After we were hit on September 11 2001, we were in a state of national shock. Less than six weeks later, on October 26 2001, the USA Patriot Act was passed by a Congress that had little chance to debate it; many said that they scarcely had time to read it. We were told we were now on a "war footing"; we were in a "global war" against a "global caliphate" intending to "wipe out civilisation". There have been other times of crisis in which the US accepted limits on civil liberties, such as during the civil war, when Lincoln declared martial law, and the second world war, when thousands of Japanese-American citizens were interned. But this situation, as Bruce Fein of the American Freedom Agenda notes, is unprecedented: all our other wars had an endpoint, so the pendulum was able to swing back toward freedom; this war is defined as open-ended in time and without national boundaries in space - the globe itself is the battlefield. "This time," Fein says, "there will be no defined end."
Creating a terrifying threat - hydra-like, secretive, evil - is an old trick. It can, like Hitler's invocation of a communist threat to the nation's security, be based on actual events (one Wisconsin academic has faced calls for his dismissal because he noted, among other things, that the alleged communist arson, the Reichstag fire of February 1933, was swiftly followed in Nazi Germany by passage of the Enabling Act, which replaced constitutional law with an open-ended state of emergency). Or the terrifying threat can be based, like the National Socialist evocation of the "global conspiracy of world Jewry", on myth.
It is not that global Islamist terrorism is not a severe danger; of course it is. I am arguing rather that the language used to convey the nature of the threat is different in a country such as Spain - which has also suffered violent terrorist attacks - than it is in America. Spanish citizens know that they face a grave security threat; what we as American citizens believe is that we are potentially threatened with the end of civilisation as we know it. Of course, this makes us more willing to accept restrictions on our freedoms.
2. Create a gulag
Once you have got everyone scared, the next step is to create a prison system outside the rule of law (as Bush put it, he wanted the American detention centre at Guantánamo Bay to be situated in legal "outer space") - where torture takes place.
At first, the people who are sent there are seen by citizens as outsiders: troublemakers, spies, "enemies of the people" or "criminals". Initially, citizens tend to support the secret prison system; it makes them feel safer and they do not identify with the prisoners. But soon enough, civil society leaders - opposition members, labour activists, clergy and journalists - are arrested and sent there as well.
This process took place in fascist shifts or anti-democracy crackdowns ranging from Italy and Germany in the 1920s and 1930s to the Latin American coups of the 1970s and beyond. It is standard practice for closing down an open society or crushing a pro-democracy uprising.
With its jails in Iraq and Afghanistan, and, of course, Guantánamo in Cuba, where detainees are abused, and kept indefinitely without trial and without access to the due process of the law, America certainly has its gulag now. Bush and his allies in Congress recently announced they would issue no information about the secret CIA "black site" prisons throughout the world, which are used to incarcerate people who have been seized off the street.
Gulags in history tend to metastasise, becoming ever larger and more secretive, ever more deadly and formalised. We know from first-hand accounts, photographs, videos and government documents that people, innocent and guilty, have been tortured in the US-run prisons we are aware of and those we can't investigate adequately.
But Americans still assume this system and detainee abuses involve only scary brown people with whom they don't generally identify. It was brave of the conservative pundit William Safire to quote the anti-Nazi pastor Martin Niemöller, who had been seized as a political prisoner: "First they came for the Jews." Most Americans don't understand yet that the destruction of the rule of law at Guantánamo set a dangerous precedent for them, too.
By the way, the establishment of military tribunals that deny prisoners due process tends to come early on in a fascist shift. Mussolini and Stalin set up such tribunals. On April 24 1934, the Nazis, too, set up the People's Court, which also bypassed the judicial system: prisoners were held indefinitely, often in isolation, and tortured, without being charged with offences, and were subjected to show trials. Eventually, the Special Courts became a parallel system that put pressure on the regular courts to abandon the rule of law in favour of Nazi ideology when making decisions.
3. Develop a thug caste
When leaders who seek what I call a "fascist shift" want to close down an open society, they send paramilitary groups of scary young men out to terrorise citizens. The Blackshirts roamed the Italian countryside beating up communists; the Brownshirts staged violent rallies throughout Germany. This paramilitary force is especially important in a democracy: you need citizens to fear thug violence and so you need thugs who are free from prosecution.
The years following 9/11 have proved a bonanza for America's security contractors, with the Bush administration outsourcing areas of work that traditionally fell to the US military. In the process, contracts worth hundreds of millions of dollars have been issued for security work by mercenaries at home and abroad. In Iraq, some of these contract operatives have been accused of involvement in torturing prisoners, harassing journalists and firing on Iraqi civilians. Under Order 17, issued to regulate contractors in Iraq by the one-time US administrator in Baghdad, Paul Bremer, these contractors are immune from prosecution
Yes, but that is in Iraq, you could argue; however, after Hurricane Katrina, the Department of Homeland Security hired and deployed hundreds of armed private security guards in New Orleans. The investigative journalist Jeremy Scahill interviewed one unnamed guard who reported having fired on unarmed civilians in the city. It was a natural disaster that underlay that episode - but the administration's endless war on terror means ongoing scope for what are in effect privately contracted armies to take on crisis and emergency management at home in US cities.
Thugs in America? Groups of angry young Republican men, dressed in identical shirts and trousers, menaced poll workers counting the votes in Florida in 2000. If you are reading history, you can imagine that there can be a need for "public order" on the next election day. Say there are protests, or a threat, on the day of an election; history would not rule out the presence of a private security firm at a polling station "to restore public order".
4. Set up an internal surveillance system
In Mussolini's Italy, in Nazi Germany, in communist East Germany, in communist China - in every closed society - secret police spy on ordinary people and encourage neighbours to spy on neighbours. The Stasi needed to keep only a minority of East Germans under surveillance to convince a majority that they themselves were being watched.
In 2005 and 2006, when James Risen and Eric Lichtblau wrote in the New York Times about a secret state programme to wiretap citizens' phones, read their emails and follow international financial transactions, it became clear to ordinary Americans that they, too, could be under state scrutiny.
In closed societies, this surveillance is cast as being about "national security"; the true function is to keep citizens docile and inhibit their activism and dissent.
5. Harass citizens' groups
The fifth thing you do is related to step four - you infiltrate and harass citizens' groups. It can be trivial: a church in Pasadena, whose minister preached that Jesus was in favour of peace, found itself being investigated by the Internal Revenue Service, while churches that got Republicans out to vote, which is equally illegal under US tax law, have been left alone.
Other harassment is more serious: the American Civil Liberties Union reports that thousands of ordinary American anti-war, environmental and other groups have been infiltrated by agents: a secret Pentagon database includes more than four dozen peaceful anti-war meetings, rallies or marches by American citizens in its category of 1,500 "suspicious incidents". The equally secret Counterintelligence Field Activity (Cifa) agency of the Department of Defense has been gathering information about domestic organisations engaged in peaceful political activities: Cifa is supposed to track "potential terrorist threats" as it watches ordinary US citizen activists. A little-noticed new law has redefined activism such as animal rights protests as "terrorism". So the definition of "terrorist" slowly expands to include the opposition.
6. Engage in arbitrary detention and release
This scares people. It is a kind of cat-and-mouse game. Nicholas D Kristof and Sheryl WuDunn, the investigative reporters who wrote China Wakes: the Struggle for the Soul of a Rising Power, describe pro-democracy activists in China, such as Wei Jingsheng, being arrested and released many times. In a closing or closed society there is a "list" of dissidents and opposition leaders: you are targeted in this way once you are on the list, and it is hard to get off the list.
In 2004, America's Transportation Security Administration confirmed that it had a list of passengers who were targeted for security searches or worse if they tried to fly. People who have found themselves on the list? Two middle-aged women peace activists in San Francisco; liberal Senator Edward Kennedy; a member of Venezuela's government - after Venezuela's president had criticised Bush; and thousands of ordinary US citizens.
Professor Walter F Murphy is emeritus of Princeton University; he is one of the foremost constitutional scholars in the nation and author of the classic Constitutional Democracy. Murphy is also a decorated former marine, and he is not even especially politically liberal. But on March 1 this year, he was denied a boarding pass at Newark, "because I was on the Terrorist Watch list".
"Have you been in any peace marches? We ban a lot of people from flying because of that," asked the airline employee.
"I explained," said Murphy, "that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution."
"That'll do it," the man said.
Anti-war marcher? Potential terrorist. Support the constitution? Potential terrorist. History shows that the categories of "enemy of the people" tend to expand ever deeper into civil life.
James Yee, a US citizen, was the Muslim chaplain at Guantánamo who was accused of mishandling classified documents. He was harassed by the US military before the charges against him were dropped. Yee has been detained and released several times. He is still of interest.
Brandon Mayfield, a US citizen and lawyer in Oregon, was mistakenly identified as a possible terrorist. His house was secretly broken into and his computer seized. Though he is innocent of the accusation against him, he is still on the list.
It is a standard practice of fascist societies that once you are on the list, you can't get off.
7. Target key individuals
Threaten civil servants, artists and academics with job loss if they don't toe the line. Mussolini went after the rectors of state universities who did not conform to the fascist line; so did Joseph Goebbels, who purged academics who were not pro-Nazi; so did Chile's Augusto Pinochet; so does the Chinese communist Politburo in punishing pro-democracy students and professors.
Academe is a tinderbox of activism, so those seeking a fascist shift punish academics and students with professional loss if they do not "coordinate", in Goebbels' term, ideologically. Since civil servants are the sector of society most vulnerable to being fired by a given regime, they are also a group that fascists typically "coordinate" early on: the Reich Law for the Re-establishment of a Professional Civil Service was passed on April 7 1933.
Bush supporters in state legislatures in several states put pressure on regents at state universities to penalise or fire academics who have been critical of the administration. As for civil servants, the Bush administration has derailed the career of one military lawyer who spoke up for fair trials for detainees, while an administration official publicly intimidated the law firms that represent detainees pro bono by threatening to call for their major corporate clients to boycott them.
Elsewhere, a CIA contract worker who said in a closed blog that "waterboarding is torture" was stripped of the security clearance she needed in order to do her job.
Most recently, the administration purged eight US attorneys for what looks like insufficient political loyalty. When Goebbels purged the civil service in April 1933, attorneys were "coordinated" too, a step that eased the way of the increasingly brutal laws to follow.
8. Control the press
Italy in the 1920s, Germany in the 30s, East Germany in the 50s, Czechoslovakia in the 60s, the Latin American dictatorships in the 70s, China in the 80s and 90s - all dictatorships and would-be dictators target newspapers and journalists. They threaten and harass them in more open societies that they are seeking to close, and they arrest them and worse in societies that have been closed already.
The Committee to Protect Journalists says arrests of US journalists are at an all-time high: Josh Wolf (no relation), a blogger in San Francisco, has been put in jail for a year for refusing to turn over video of an anti-war demonstration; Homeland Security brought a criminal complaint against reporter Greg Palast, claiming he threatened "critical infrastructure" when he and a TV producer were filming victims of Hurricane Katrina in Louisiana. Palast had written a bestseller critical of the Bush administration.
Other reporters and writers have been punished in other ways. Joseph C Wilson accused Bush, in a New York Times op-ed, of leading the country to war on the basis of a false charge that Saddam Hussein had acquired yellowcake uranium in Niger. His wife, Valerie Plame, was outed as a CIA spy - a form of retaliation that ended her career.
Prosecution and job loss are nothing, though, compared with how the US is treating journalists seeking to cover the conflict in Iraq in an unbiased way. The Committee to Protect Journalists has documented multiple accounts of the US military in Iraq firing upon or threatening to fire upon unembedded (meaning independent) reporters and camera operators from organisations ranging from al-Jazeera to the BBC. While westerners may question the accounts by al-Jazeera, they should pay attention to the accounts of reporters such as the BBC's Kate Adie. In some cases reporters have been wounded or killed, including ITN's Terry Lloyd in 2003. Both CBS and the Associated Press in Iraq had staff members seized by the US military and taken to violent prisons; the news organisations were unable to see the evidence against their staffers.
Over time in closing societies, real news is supplanted by fake news and false documents. Pinochet showed Chilean citizens falsified documents to back up his claim that terrorists had been about to attack the nation. The yellowcake charge, too, was based on forged papers.
You won't have a shutdown of news in modern America - it is not possible. But you can have, as Frank Rich and Sidney Blumenthal have pointed out, a steady stream of lies polluting the news well. What you already have is a White House directing a stream of false information that is so relentless that it is increasingly hard to sort out truth from untruth. In a fascist system, it's not the lies that count but the muddying. When citizens can't tell real news from fake, they give up their demands for accountability bit by bit.
9. Dissent equals treason
Cast dissent as "treason" and criticism as "espionage'. Every closing society does this, just as it elaborates laws that increasingly criminalise certain kinds of speech and expand the definition of "spy" and "traitor". When Bill Keller, the publisher of the New York Times, ran the Lichtblau/Risen stories, Bush called the Times' leaking of classified information "disgraceful", while Republicans in Congress called for Keller to be charged with treason, and rightwing commentators and news outlets kept up the "treason" drumbeat. Some commentators, as Conason noted, reminded readers smugly that one penalty for violating the Espionage Act is execution.
Conason is right to note how serious a threat that attack represented. It is also important to recall that the 1938 Moscow show trial accused the editor of Izvestia, Nikolai Bukharin, of treason; Bukharin was, in fact, executed. And it is important to remind Americans that when the 1917 Espionage Act was last widely invoked, during the infamous 1919 Palmer Raids, leftist activists were arrested without warrants in sweeping roundups, kept in jail for up to five months, and "beaten, starved, suffocated, tortured and threatened with death", according to the historian Myra MacPherson. After that, dissent was muted in America for a decade.
In Stalin's Soviet Union, dissidents were "enemies of the people". National Socialists called those who supported Weimar democracy "November traitors".
And here is where the circle closes: most Americans do not realise that since September of last year - when Congress wrongly, foolishly, passed the Military Commissions Act of 2006 - the president has the power to call any US citizen an "enemy combatant". He has the power to define what "enemy combatant" means. The president can also delegate to anyone he chooses in the executive branch the right to define "enemy combatant" any way he or she wants and then seize Americans accordingly.
Even if you or I are American citizens, even if we turn out to be completely innocent of what he has accused us of doing, he has the power to have us seized as we are changing planes at Newark tomorrow, or have us taken with a knock on the door; ship you or me to a navy brig; and keep you or me in isolation, possibly for months, while awaiting trial. (Prolonged isolation, as psychiatrists know, triggers psychosis in otherwise mentally healthy prisoners. That is why Stalin's gulag had an isolation cell, like Guantánamo's, in every satellite prison. Camp 6, the newest, most brutal facility at Guantánamo, is all isolation cells.)
We US citizens will get a trial eventually - for now. But legal rights activists at the Center for Constitutional Rights say that the Bush administration is trying increasingly aggressively to find ways to get around giving even US citizens fair trials. "Enemy combatant" is a status offence - it is not even something you have to have done. "We have absolutely moved over into a preventive detention model - you look like you could do something bad, you might do something bad, so we're going to hold you," says a spokeswoman of the CCR.
Most Americans surely do not get this yet. No wonder: it is hard to believe, even though it is true. In every closing society, at a certain point there are some high-profile arrests - usually of opposition leaders, clergy and journalists. Then everything goes quiet. After those arrests, there are still newspapers, courts, TV and radio, and the facades of a civil society. There just isn't real dissent. There just isn't freedom. If you look at history, just before those arrests is where we are now.
10. Suspend the rule of law
The John Warner Defense Authorization Act of 2007 gave the president new powers over the national guard. This means that in a national emergency - which the president now has enhanced powers to declare - he can send Michigan's militia to enforce a state of emergency that he has declared in Oregon, over the objections of the state's governor and its citizens.
Even as Americans were focused on Britney Spears's meltdown and the question of who fathered Anna Nicole's baby, the New York Times editorialised about this shift: "A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night ... Beyond actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or any 'other condition'."
Critics see this as a clear violation of the Posse Comitatus Act - which was meant to restrain the federal government from using the military for domestic law enforcement. The Democratic senator Patrick Leahy says the bill encourages a president to declare federal martial law. It also violates the very reason the founders set up our system of government as they did: having seen citizens bullied by a monarch's soldiers, the founders were terrified of exactly this kind of concentration of militias' power over American people in the hands of an oppressive executive or faction.
Posted by: Sergeant Zim | April 2, 2008 8:36 AM
B.C.:
Right on. You know what else no ones talks about, or has talked about, since for years now? How the Bushies, during their campaign and the first year of their presidency, bad-mouthed the Clinton admin for being too focused on terrorism and clearly stated that they thought counter terrorism a waste of time and resources which they would not indulge. The FBI knew those guys existed and had them under surveillance, many showed up in CIA files detailing their foreign activity. Both had information which, if it had been taken together by the people in the admin whose job it was to draw conclusions from intelligence reports (like Rice) should have made crystal clear that they were up to something. But it wasn't, because terrorism was a "non-issue".
Posted by: Julian | April 2, 2008 1:09 PM
oops, forgot to edit out that "since in teh second sentence" *face palm*.
Posted by: Julian | April 2, 2008 1:11 PM
.....
My editing skills must have taken the day off *sigh*.
Posted by: Julian | April 2, 2008 1:13 PM
One thing I haven't figured out about the telecomm immunity issue is why the Feds couldn't squash any suits against the telecomms by using the "state secrets" argument. Perhaps it's because the Feds aren't being sued directly.
Even so, if the telecomms can argue that the government's assertion of "state secrets" prevents them from defending themselves is it likely that suits against them would get very far?
Posted by: Larry | April 3, 2008 6:03 PM
Hi Ed,
I've been following this issue for a while now and have compiled a timeline, which you can find here:
http://www.cooperativeresearch.org/timeline.jsp?timeline=complete_911_timeline&projects_and_programs=complete_911_timeline_yemen_hub
This is not the first time the government has made this claim, about the 9th or 10th by my count, although Mukasey managed to garble it some. The safe house was not physically in Afghanistan, but in Yemen, and was merely relaying messages to the hijackers in the US from Afghanistan.
Also, the government is not saying that it could not intercept the calls (not just one call, there were several, from February 2000 to August 2001), but that it could not trace them because it did not get a warrant. Further, my understanding is that it is not saying it could not get a warrant, merely that doing so was arduous bureaucratically, and was not done. Please bear in mind that the safe house phone was registered to a close associate of Osama bin Laden named Ahmed al-Hada, who the NSA knew before 9/11 was involved in both the 1998 African embassy and 2000 USS Cole bombings.
The NSA's failure to trace the calls is inexplicable, and the 9/11 Commission's failure to deal with this issue properly (just two cryptic mentions on pages 87-88 and 222) is also inexplicable.
Posted by: Kevin Fenton | April 10, 2008 1:43 AM
Tremendous piece, Ed.
And great to read Kevin Fenton's comment!
nels from Belfast, ME
Posted by: Nelson Wight | April 10, 2008 7:36 AM