Thursday, April 30, 2009

Beck to the Future (4/30/09)

Response to the last "Beck to the Future" installment was at an all time high. This makes me happy, but come on when you have Glenn Beck + stealing baby blood + Glenn threatening to light his guest's grandmother on fire, you've got a sure fire recipe for success. I just pray that Glenn and I don't let you guys down this week.

5:00 - I'm watching Glenn in HD today. It's a life altering experience. Glenn is wearing jeans again. Come on Glenn. He's decided that denim is just his color. You go Glenn.

5:01 - Glenn is doing his "Hot List". This is a list of headlines from the day that Glenn runs through in approximately 47 seconds. It's the only thing on this show that even approaches actual information. This is precisely why he rushes through it.

5:04 - Glenn says that consumer spending being up is not a good sign for the economy. He's upset that people are spending money? I imagine Glenn is upset about this because he's already spent all his money buying supplies in an attempt to stock up for the apocalypse.

5:06 - Glenn is in the midst of comparing the problems in the economy to a cold and that we need to let the cold run its course without trying to fix it. Another brilliant idea from Glenn Beck. If it's broke don't fix it. Do me a favor Glenn, if you start experience flu-like symptoms, just let it run its course.

5:13 - Glenn welcomes another guest (he had a guest before, but she was lame and did not make the cut for the blog) his name is Yaron Brook. The name is pronounced Yawon Bwook... no wait... this guy just has a huge lisp... it is actually pronounced the normal way. This guy works at the Ayn Rand center, which means he has probably been arrested multiple times for trying to burn down U.S. government buildings. I imagine Glenn probably has a similar rap sheet.

5:14 - Glenn is telling us about freedom. Glenn and this dude say that freedom means not having a government at all. I can't take this guy seriously because he has such a huge lisp. He keeps saying the word "Chrysler" which is a problem because it comes out "Cwysler." Let's wap it up Yawon.

5:17 - Yawon just said that notions of altruism and collectivism have infected this country. Glenn agrees. Yes. Helping people out and working together is the ideological equivalent of swine flu that is slowly killing this country. The auditory equivalent of swine flu is listening to Glenn and Yawon attempt to tell me how the world should be.

5:21 - Okay we are in a commercial break, but I have to tell you about the Fox News commercial that was just on. They just said a special story on a later program would be Glenn Beck telling us what he is doing with his money. I imagine the plan is incredibly simple: Step 1) get knife; Step 2) cut open your mattress; Step 3) shove all your money in it.

5:24 - We're back. Another flippin guest. Good lord. This time it is David Baldacci who is an author of a series of national security/spy/terrorism novels. Glenn says that if you go to anyone's house you will see Baldacci's books on their bookshelf. Ummmm... don't think so Glenn. I can think of about 1,000 people I know that do not have one book by this guy. I'm sure that Glenn's bookshelf (read: the top of Glenn's toilet) is filled with them though because he picks them up beside the register at the grocery store while buying more supplies for the apocalypse.

5:28 - Commercial break. Next we will talk about swine flu and how it is destroying Mexico's economy. I have no doubt that Glenn hates swine and Mexico and hopes that the flu wipes out both.

5:33 - Let me tell you what is happening on the screen right now. Glenn is promoting his comedy tour. He has a video clip of the standup in which he is wearing an NRA t-shirt and cargo pants. Beside the video box is the famous "Unite or Die" cartoon with the snake in different several pieces. I have no doubt that what I'm seeing right now is infinitely more humorous than Glenn's standup.

5:35 - Glenn welcomes a new guest. He is "streaming" video of this guy from Cancun (WOOOOOOOOOO!!! SPRING BREAK!!!) who is talking about swine flu. When I say streaming you can barely see this dude's face. It looks and sounds like he is speaking to us from the future. Glenn asked him why he doesn't have a mask on and the guy says he doesn't think he needs it. Prognosis for his health: bleak.

5:42 - ANOTHER GUEST. Props to the people that set up these interviews for A) finding so many and B) making sure they are crazy enough to be on the show. This dude's name is Mike and he is the commissioner of Warren County, Ohio. This county returned over $300,000 of stimulus money (read: the people of this county now live in abject poverty). Both Glenn and Mike pay little attention to this and focus more on the fact that a trillion dollars stretches 68,000 miles into the air.

5:44 - How did this county end up with this stimulus money in the first place if Mike hates it so much? He tells us it is apparently because people in his office applied for it without his knowledge. These people have all disappeared under mysterious circumstances.

5:45 - Glenn likes Mike and keeps saying it is because he is a "regular guy." I believe that Mike finds this incredibly insulting.

5:46 - Guess what Glenn is talking about right now? If you didn't say Tea Parties then you are a moron. It's been 3 weeks since the Tea Parties and he's still talking about it. I think I just experienced a mild stroke.

5:49 - We are in another commercial break, but I gotta tell you about the infomercial that is on right now. It is for a device called the Slap Chop that goes to work on food. This guy just cut up some berries with it and made a delicious looking fruit salad.

5:50 - Glenn's back and he's still got Mike with him. MIIIIIIIIIIIKKKKKEEEE!!!! I don't know why I'm so excited to see him. I think it's just because he's such a "regular guy."

5:52 - Mike just said that he is a Libertarian. I'm sorry I just have an incredibly hard time reconciling anything that Mike says with the fact that he literally runs a governmental entity. I don't know if anyone has seen the show Parks and Recreation, but there is a character on there who is a Libertarian and runs a governmental office. The show makes fun of the irony of this. Mike is flesh and blood representation of this irony. Congrats Mike. You are famous.

5:57 - Glenn just said that his show doesn't have a theme. Uhhhhhhh.... disagree. Tea Parties, Glenn. The theme of your show is Tea Parties.

5:58 - He wants us to arm ourselves with knowledge. He sends a message to parents. If your kids are struggling then let them fail and they will be stronger. Or they will die. Either way you get to turn your head so that's a bonus.

Things to take away from today's show: 1) Mike has no idea what a Libertarian is; 2) The theme of Glenn's show is Tea Parties; 3) BUY A SLAP CHOP.

As Shakespeare Said: "A Gitmo by Any Other Name..."

Secretary of Defense Gates said today that we may bring 100 detainees from Gitmo and hold them in the United States after the prison is closed at the end of the year. Gates said that they may need to spend $50 million to build a new prison block for the detainees.

My frustration level at this situation is reaching an all time high. The closing of the prison at Guantanamo Bay is largely a symbolic step. For years the detainees held there were given no rights and were subjected to harsh treatment and interrogation. However, I think that we've cracked down on the harsh treatment and even some constitutional rights in the form of habeas corpus were extended to the detainees in Boumediene because the decision said that the prison there is effectively under the control of the United States. I think that if we kept Gitmo open that we would see even more constitutional rights extended to the prisoners there. But I digress. The point I'm trying to make here is that moving the remaining detainees from Gitmo to the U.S. solves nothing at this point. The problems now lie with what we are supposed to do with these guys not where they are held. The 100 prisoners that may be moved into the U.S. are going to be those prisoners that we can't try here and can't find another country which we can send them to so why move them at all. This means that these detainees may successfully challenge their detention through habeas corpus and secure their right to release from prison, but we can't actually grant them release. So we've extended them a constitutional right to challenge their detention, but cannot honor their constitutional right to release after a successful challenge. Their right to habeas is basically pointless. That is what we need to be concerned with.

Other than the fact that Obama ordered the prison to be closed within a year of the order there is no difference in them being held at Gitmo and them being held here in the United States. They have no chance of being released from either one of them so why spend money moving them and possibly spend millions more building a new cell block to hold them. Tell you what Secretary Gates, you can hold all them in my basement as long as you pay my mortgage. That should save you some money and will work to achieve the same goal of physically moving the detainees from detention in Cuba to detention in the continental U.S. You should use the millions you save to pay off other countries to take the detainees.

The frustrating part is that we've got no one to blame but ourselves for this mess. I'll try to sum up how we ended up in this mess in one long run on sentence. We run around willy-nilly capturing every guy we think looks like a terrorist, throw them into Gitmo, rough them up, tag them as "enemy combatants" in the war on terror, by doing this we permanently brand these guys as terrorists, we realize we went way too far, shut the whole operation down, and now we are left with a bunch of guys who may very well not be terrorists but whom no one wants (including us) because they have been permanently branded as terrorists by our actions. Great. How about we stop talking about where we are going to house these guys and start talking about how we are going to release them?

Wednesday, April 29, 2009

(State) Secrets Don't Make Friends

Mohamed v. Jeppesen Dataplan, Inc.

This decision by the Ninth Circuit concerns the state secrets doctrine. This doctrine allows the government to have evidence that amounts state secrets kept out of a trial or even to have an entire law suit dismissed because it is predicated on state secrets. The case here involves a civil suit brought against a private government contractor who aided the CIA in their "extraordinary rendition program." The suit is brought by several people who claim to be victims of extraordinary rendition. Remember that the CIA's rendition program involved taking suspected terrorists and flying them to various foreign countries (in this case Morocco and Egypt) where those suspects could be subjected to harsh imprisonment and interrogation. The government intervened in this case on behalf of the defendant to argue that the state secrets doctrine should put a stop to this suit.

In short, the court's opinion here says that the Reynolds evidentiary rule applies to this case and not the Totten complete bar rule. The plaintiffs argued that the Totten rule should bar this case because it involves a secret agreement between Jeppesen and the federal government. The court did not buy this and said that the rule is that a case is barred under Totten if it involves an agreement between the plaintiffs in the case and the government. Here the plaintiffs are not the ones with the agreement with the government, the defendants are, thus the court did not apply Totten.

The Reynolds rule says that evidence cannot be admitted in a case if that evidence rises to the level of a state secret. The court says here that the Reynolds rule is preferable to Totten because it fits more nicely with the notion of separation of powers and doesn't allow the executive branch to cut out the judicial branch all together in the state secrets arena. Basically, the court decides here that Reynolds bars the discovery of state secret evidence, but does not bar the litigation of the underlying facts. Therefore, as long as a party can prove the underlying facts through information that is not deemed to be a state secret then they can proceed with their case. Reynolds will only act to bar a case completely if information that is deemed to be a state secret is essential to the plaintiff establishing its prima facie case or is essential for the defendant to raise a necessary defense. I gather from this opinion that any information that might be deemed a state secret will be given to the judge for an in camera review so that he can determine whether or not to allow it.

Since this appeal was one of a 12(b)(6) motion the court did not have to determine whether any evidence was a state secret because no evidence has been discovered in the case yet. The court here remanded the case to the district court to allow it to move on. For a more detailed and informational explanation of the case check out SCOTUSblog's post.

Tuesday, April 28, 2009

Forecast for NYC Yesterday: Mostly Sunny With a High Chance of Insensitivity, Poor Communication, and Outright Panic

Remember how I said that the Navy SEALs killing those pirates was the most awesome story of the year so far? Well, the story of Air Force One flying over New York City yesterday is giving the snipers a run for their money. When I say awesome here I mean that I am in complete awe of how stupid this idea was. Let's recap what went on. People sitting at work in buildings in lower Manhattan and Jersey City saw a large commercial plane flying very low near the buildings in the area being shadowed by two F-16's. Understandably, these poor people (some of whom survived the 9/11 attacks) raced out of their buildings to avoid disaster. A little while after these mass evacuations they came to find out that what they saw was a back-up Air Force One flying around the area for a photo-op.

Ummmmmm.... I'm sorry, what? Oh you were just flying a large commercial looking airplane with fighter jet escort low over the site of the 9/11 attacks for a photo shoot. Man, that is a relief. I can't believe that I overreacted and ran screaming from my office building thinking that it would be the target of this enormous, jet fuel laden, guided missile. How silly of me. Please forgive me for bothering you with questions about this.

Come on man. I mean I saw this story yesterday and I thought it was a little bit stupid that they would fly Air Force One around NYC, but I didn't give it a lot of thought. Then I actually sat down and read the reports of this story and became completely nonplussed (I've linked to the definition of this word because most people don't know what it means and it is my goal in life to educate them) bordering on enraged. A report from the Goldman Sachs tower in New Jersey said that the aircraft's wing can with in a few dozen feet of the tower with the fighters flying right behind it. Some in another building reported that the plane caused the glass in the building to shiver and made it seem like the building was going to come down. People were reported to be out in the streets crying and shaking from the fear. I mean it sounds like this picture taking expedition caused complete chaos in a city that has been through enough already.

The absolute best part of this is to listen to the clowns who authorized this little jaunt try to downplay it. Louis E. Caldera, who is the director of the White House Military Office, is the person who authorized the event. He said that he was sorry for the distress that it caused to the people of the city. Thanks Lou. Your apology means alot to me while I recover in the hospital from the mild heart attack this little stunt caused me. The FAA apparently notified NY and NJ police, federal park police, and 911 operators about what was happening but told them not to talk to the public about it and that anyone that had questions about it should contact the FAA Air Traffic Security Coordinator. Oh so all I had to do was just hit #6 on my speed dial which is set to call my local Air Traffic Security Coordinator. Got it. Check. I mean, seriously?! When I see a low flying 747 over NYC my first reaction should be to calmly get my phone out and give my Air Traffic Security Coordinator a jingle? Here's how I see that conversation going:

Me: Uhhhhh... Hey, Barney? (Barney is what I envision the Air Traffic Security Coordinator's name to be) Yeah it's Matt, you got a minute?

Barney: Sure, Matt. What's up?

Me: Well I'm not trying to be a worry-wart or anything, but uhhhhhh... there is a 747 flying real low around Manhattan being tailed by a couple of F-16 fighters. Just wondering if you had a minute to talk about that?

Barney: Absolutely Matt. You want to meet at Starbucks in say ohhhhhhh... 15 minutes?

Me: Sounds good Barney. I should probably get out of this building anyway just in case we are under attack. See you then.

Barney: Hahaha. Alright Matt, see you in a little bit.

Calling up the FAA to find out whether what you are seeing is another catastrophic terrorist attack or a just the federal government trying out their new sweet digital camera they got is the most absurd thing I've ever heard in my life. If I were one of the people in those buildings my reaction would have been exactly the same as theirs. Let's get the HELL out of here. Also, another person who I thought showed an abnormal amount of insensitivity was White House Press Secretary Robert Gibbs. When asked whether he had heard about the flyover part of his answer was, "You might be surprised to know that I don't know every movement of Air Force One." Oh gosh, SORRY MR. GIBBS. Don't let me ask you too many questions about the government that you represent authorizing what appears to be a reenactment of one of the most devastating attacks on American soil. I can't help but think that the negative public reaction from the Air Force One flyover may have stopped another photo-op in which we were going to fly hundreds of Japanese Zeros over Pearl Harbor.

I literally can't fathom the break down of the decision making process in the federal government on this one to get a PICTURE. You want to know what would have been easier. Photoshop. With all the resources at the hands of the federal government I think we could have created a pretty amazing photoshop picture of Air Force One flying over NYC. It took my friend less than ten minutes to make this picture which I would consider to be pretty damn convincing if I didn't already know it was photoshopped:

I think that if my friend can make this image in less than 10 minutes while studying for his law school exams then some computer genius at the NSA can take a few minutes out from eavesdropping on my phone calls and conjure up a suitable picture.

This post is of course written to be funny, but I also think this is very serious. I write in the first person in parts here, but I don't live in NYC and wasn't there during 9/11 and I don't mean to make light of it. I only write this to draw attention to how incredibly stupid this is, and to express my anger at the people that are responsible. There is almost no way that no one recognized what a bad idea this was from the very start. If they wanted to do this they should have had to go around to every single person that lives in NYC and northern New Jersey and tell them personally what they planned on doing. That's not what they did though. Instead they put a lid on the whole thing and didn't allow the people that knew what was going to happen to say anything about it to everyone else. The people in that area deserve better. In the end, the same federal government that is supposed to protect us from terrorists instilled a similar kind of terror into the citizens of NYC and NJ yesterday, and that makes me skeptical as to their ability to deal with a real terrorist attack.

Monday, April 27, 2009

Gherebi v. Obama: D.C. District Shows "Substantial Support" for Obama's New Detention Standard

It's law school exam time so I've been a little bit slow in posting this, but this is an important decision because it begins to flesh out Obama's new detention standard. In short the decision by Judge Walton adopts Obama's new "substantial support" standard, defines what constitutes membership in al Qaeda or the Taliban is, and finds that the Authorization for Use of Military Force ("AUMF") does not derive from domestic criminal law.

The court's initial analysis focused on the independence of the AUMF. A couple of the petitioners in this case argued that the AUMF had to derive from domestic law since the war on terror (al Qaeda and the Taliban specifically) was not an international armed conflict, and therefore those captured in the war on terror could not be subject to military detention and had to be detained in the civilian criminal system. The decision rejects all of the arguments for AUMF as domestic law and says that the AUMF specifically authorized the President to use all "necessary and proper" authority to carry out the war on terror. It reasons that the fact that Common Article 3 of the Geneva Conventions (the part of the GCs that govern non-international armed conflict) is silent on detention in non-international armed conflict leaves detention procedures up to the nation. Furthermore, all parts of the Geneva Conventions merely act as constraints on the state that require them to detain prisoners rather than summarily executing them. Since the Geneva Conventions are just restraints and not authorizations, the authorization of detention is up to individual states.

The petitioners next argument was that members of al Qaeda or the Taliban cannot be held as enemy combatants because they are not members of an organized armed force. The court actually agrees with the petitioners on this saying that members of al Qaeda and the Taliban are not directly participating with an organized armed force. The court then recognizes that the Obama administration is no longer claiming to detain prisoners in the war on terror as "enemy combatants". The decision says that while members of al Qaeda or the Taliban are not combatants they are not civilians even when they are not directly participating in hostilities, therefore the President can detain anyone who is a member of an organization he determines carried out the 9/11 attacks (al Qaeda and the Taliban as laid out by the AUMF). Membership is determined by someone having a "structured role" in the "hierarchy" of al Qaeda or the Taliban. It's very important to note here that the court found that sympathizers, propogandists, or financiers cannot be considered members under this reasoning and therefore are not subject to military detention unless they directly participate in attacks. Others who cannot be militarily detained using the reasoning above are doctors, clerics, or those that merely shelter al Qaeda or Taliban members. In the end the court upholds the new "substantial support" standard proposed by the Obama administration, but refused to set a bright-line framework for determining what substantial support means deciding that a case by case analysis will be necessary.

I like this decision for a couple of reasons. First, it finally gives us some judicial lens with which to view the new detention standard. I was curious to see how courts would distinguish the new "substantial support" from the old standard of any ol' kind of support and here we get a glimpse as to how it might be different. Second, and more specifically, I like that the court recognizes the war on terror as a non-international armed conflict because I never thought that the war on terror was a full fledged armed conflict. Furthermore, I think that distinguishing the members of al Qaeda and the Taliban as something less than combatants but more than civilians is the right way to go.

I don't think that all parts of this opinion will stay the same through the appeals process. I think that the part of the opinion most likely to get changed is the argument that Common Article 3's lack of authorization for detention actually authorizes each individual nation to implement its own detention procedures. I'm always wary of an argument that derives its support from the lack of law's specificity. Other than that argument, pure gut feeling tells me that the D.C. Circuit will uphold this decision in its entirety and any changes that come could expand the government's powers a little bit. Supreme Court review is likely I think, but it is hard to say how that would turn out because by the time this gets to the Court the bench may be different. I think that if the Court were to review this case as it is composed today that we might see more specificity as to what "substantial support" means.

Friday, April 24, 2009

Beck to the Future (4/24/09)

Let's get him out here people! I'll get the chant going. Glenn, Glenn, Glenn, Glenn, Glenn, Glenn! WOOOOOOOOOOOOOO!!! There he is!!

5:00 - Glenn. Sweet green tie. No jeans today. He just told us not to become a slave to the government. Glenn, you've been reading the 13th Amendment. Good for you.

5:01 - Uh oh. Glenn is talking about Al Gore and global warming. I think I can see a vein about to pop out of his forehead. I believe this is partly from his anger at Al/global warming, and part from him trying to understand anything that Al Gore says.

5:03 - Apparently 4 million babies are being DNA tested every year and their blood is being kept at government and private labs. Glenn pretends to hate this, but I'm pretty sure that he is hoarding these babies' blood to create an army of tiny little Glenn clone babies.

5:08 - Glenn welcomes a woman, her name is Twila, and a Minnesota state legislator, Tom, who are absolutely opposed to stealing baby blood. This belief seems like something I could get behind, but I'm sure the insanity of the ensuing conversation will turn me against these people and in favor of stealing blood from babies.

5:09 - Tom just invoked this "little thing called the Constitution" (wait, what is that?) that is being violated by stealing baby blood. Tom thinks that with our medical technology that people may be using this baby blood to clone people. This statement marks Tom as a person that is at least as crazy as Glenn if not more. Glenn says he doesn't think that they will use the blood to clone. Don't be fooled Tom, Glenn is trying to hide the ball on his baby army. The first mission for the baby army will be to kill you Tom. Constant vigilance.

5:13 - Alright get ready for a Beck to the Future first. I agree with Glenn. I think that Glenn and I find common ground on not wanting people to steal baby blood. If the next segment is about anti-puppy killing we will really be on a roll.

5:16 - Nooooooooope. Next thing Glenn talks about is the Tea Parties. It's been 8 days since my last post, and Glenn is still talking about the g##!d*%$! Tea Parties, and the "real people" (read: tax criminals and secessionists) that were there.

5:17 - Commercial break.

5:20 - We're back. Glenn says it is not too late for Obama to turn things around. I'd say he's right. Obama has been president for less than 4 months. Barack, don't let Glenn rush you.

5:21 - GOOD GOD!! Glenn said the next video is going to "make blood shoot right out of your eyes". Uhhhhh... I'm gonna change the channel.

5:22 - Glenn welcomes a UCLA co-ed (read: eye candy) to his show to talk about how Planned Parenthood perpetuates manipulations of young women. Her name is Lila. Lila tells me that the video I'm about to see will shock me. I'll be the judge of that Lila.

5:27 - Glenn just played a clip of Hillary Clinton talking about the founder of Planned Parenthood, Margaret Sanger. Clinton says she admires Sanger and that is all. The caption below says "Clinton compares Sanger to Thomas Jefferson". Clinton says nothing about this. Recall that last week Glenn compared himself to Martin Luther King Jr.

5:28 - Commercial break. When we come back Glenn will be talking about waterboarding. Taking bets on whether Glenn actually waterboards the poor bastard that got the "gas" poured on him a couple weeks ago.

5:32 - Hello Glenn. Glenn senses the government is spiraling out of control. He knows this because his sanity is in a similar condition.

5:33 - Oh no. He's talking about Nancy Pelosi. He welcomes a lawyer named Jay who says that Pelosi knew about waterboarding a long time ago. This guy's tie is so shiny that there is no doubt in my mind that it is made of metal. I kind of agree with these guys that Pelosi is probably lying. I don't trust her farther than I can throw her.

5:34 - They say that the CIA told members of Congress, including Pelosi, that they were going to use waterboarding and no one objected. In an attempt to help his viewers and his guest understand how he feels Glenn compares Pelosi finding out about waterboarding and doing nothing about it to a situation where he called Jay and told him that he was going to go to Jay's grandma's house and maybe light her on fire and Jay doing nothing about it. Ummmm, Jay, you need to go to your grandma's house immediately after this and keep a weather eye on her. I need not remind you that Glenn attempted to light one of his employees on fire a couple weeks ago on national tv.

5:36 - Glenn uses the analogy of lighting Jay's grandma on fire again. Seriously, Jay, go ahead and end the interview now and go to grandma's house. Lock the doors.

5:38 - Good lord, these guys are saying that we should torture terrorists because they torture people. Great idea Glenn. I'm pretty sure that Martin Luther King, your historical equivalent, promoted such a policy.

5:42 - Back from commercial break. Still talking about Nancy Pelosi. I mean these guys are desperate to pin the blame on Nancy Pelosi.

5:44 - Glenn's guest just said that he knows the lawyers in the Bush administration and that they are the best and the brightest. I agree with you my friend. You know who else was the best and the brightest - Lord Voldemort.

5:45 - Glenn says goodbye to Jay. Thanks for coming out buddy. Take care of that metal tie.

5:49 - Back from commercial. Glenn is talking about the new amendment to the Hate Crimes bill. Glenn says he doesn't understand hate crimes because he feels that any crime he commits will be against someone he hates (read: Jay's grandma). Am I alone in understanding what a hate crime is? Glenn says to call him a "simpleton" if we think it's silly that he doesn't understand the difference. I think I will Glenn. Simpleton.

5:50 - His new guest says that she thinks Glenn understands the Hate Crimes bill very well. All this does is prove that she has no idea what a hate crime is either.

5:54 - Glenn thinks that we should have every class of people listed under classes in the Hate Crimes bill. Yes. Let's add wealthy white males like Glenn to the hate crimes list because they are often chained to the back of a car and dragged to death because they are male, white, and wealthy. I'm not sure if the mentally handicapped are on the Hate Crimes bill, but if so then Glenn is protected.

5:59 - Glenn says that if we want smaller government then people must be responsible for themselves. We can only trust responsible, well-centered people to govern themselves without government. If the human race were that evolved at this point Darwinism would have seen to it that Glenn Beck would not exist.

There it is. Another successful show Glenn. Congratulations. I gotta decide whether to go to the hospital and stop those bastards from stealing baby's blood or go to Jay's grandma's house and make sure that she is alright. Probably gonna go with grandma's house because I'm in the mood for a Werther's Original. Wait... what's that. Dear lord it's the defeaning sound of the sound of Glenn's baby army marching in unison down my street. THEY'RE ON TO ME!!!!

Wednesday, April 22, 2009

State of Play

Alright, I'm not turning this blog into pop culture commentary, but I have to talk about the new movie State of Play. First, this is a great movie. It keeps you interested from minute one. Secondly, one of the players in the movie is a fictitious private security contractor, PointCorp, and the allusions to the real world private security contracter Blackwater are shameless. You should know that I've been very interested in Blackwater's shennanigan for the past few years so I was a little predisposed to notice these things. Here is a list of similarities:

1) The PointCorp logo is a target around an eagle, similar to Blackwater's target around a bear paw.

2) PointCorp's CEO's first name was Erik, similar to Blackwater's founder Erik Prince.

3) PointCorp owned a 60,000 acre facility in northeastern North Carolina, similar to Blackwater's enormous compound in Moyock, NC.

4) PointCorp was hired to conduct operations in post-Katrina New Orleans just like Blackwater.

There may be more similarities, but these were the ones that jumped out at me. I just thought it was very interesting the lengths they went to to make PointCorp just like Blackwater. In summary, go see the movie.

Tuesday, April 21, 2009

News Recap (4/21/09): Torturers and Smiling Pirates

Torture investigations- Obama said today that he is not ruling out investigations and possible prosecutions of Bush administration officials that legally authorized CIA enhanced interrogation techniques. While the lawyers that authorized the actions (notably Jay Bybee, Stephen Bradbury and John Yoo) will be vulnerable to prosecution President Obama said that CIA officials who carried out the interrogations based on the legal authorization from the lawyers will not be investigated. The decision on whether to prosecute or not will be left up to Attorney General Eric Holder.

As angry as it makes me that these lawyers did everything they could to reason their way around the laws against torture I don't know if they should be prosecuted. I wholeheartedly believe that the interrogators shouldn't be prosecuted because they believed they were acting legally. The lawyers that authorized their actions are a different story. These are some of the most well educated attorneys in the country. They knew that the legal opinions they were giving were not well founded, but they gave the opinions anyway and people were tortured. These people that were tortured are some of the most dangerous terrorists in the world, but that shouldn't matter. Regardless, I think that prosecuting anyone in this situation could be a slippery slope and could lead to a great deal of intervention into sensitive government activity. The attorneys' actions are reprehensible, but they were facing a situation like this country has never seen. Dealing with the new terrorist threat was, and still is, a monumentally difficult situation in a lot of ways and one of the most difficult parts is determining the legal framework that we need to employ to effectively combat it. While condoning the CIA interrogation program violated already established international law I still think some slack should be cut to everyone involved. Although they may have been overzealous I believe that their ultimate goal was to protect the country.

Pirate to be tried in federal court- The fourth, and only surviving pirate, from the taking of the Maersk Alabama appeared before a federal magistrate judge in the Southern District of New York today to be arraigned. The court found that Abduwali Abdukhadir Muse could be tried as an adult (there is some dispute as to whether Muse is 16 or 18) for piracy, two conspiracy charges, and two firearms charges. As I said before, the piracy charge carries a mandatory life sentence. There are apparently some questions as to whether Muse came onto the U.S. Navy ship to seek medical attention or under a flag of truce. If either of those things are true then Muse cannot be tried for piracy, but it is unclear whether he can be tried for the other charges. Another jurisdictional question involves Somalia's status as a functioning nation, but I'm unclear as to what the inquiry here is. More on this story as it develops. Also, this related post is pretty funny.

Monday, April 20, 2009

Not a Drop to Drink

Waterboarding works... if you do it incessantly. The magic number for Khalid Shaikh Mohammed was 183 (Abu Zubaydah was waterboarded on 83 occassions). That's how many times he was waterboarded while in CIA custody. This information is supposed to be classified and redacted from the DoJ memos released last week, but apparently some of the copies didn't redact this information. When former CIA Direictor Michael Hayden was asked about this news he refused to answer saying that the info was still classified. Ummmm... don't think it is buddy. Pretty sure the cat's out of the bag.

I'm gonna go ahead and say that if you tickled me 183 times I would eventually crack and say anything to get you to stop whether it was true or not. This guy was made to feel like he was actually drowning 183 times. I think this supports the idea that torture is not an effective way to elicit information.

Sunday, April 19, 2009

Pirate Law 101

Disclaimer: This is a very brief discussion of the very basic jurisdictional elements in current, and potential future, piracy prosecutions. I got all this from a very interesting article by Michael Bahar, "Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations," which was published by in the 40th Volume, 1st issue of 2007 the Vanderbilt Journal of Transnational Law.

Now that the U.S. now has a Somali pirate in its custody and is allegedly considering whether to prosecute him or not I've got to ask myself under what power we can try him? When I started thinking about this I was pretty sure from a logical standpoint that we could do so. Maritime law usually grants countries broad powers in asserting jurisdiction over acts at sea even if the acts occur thousands of miles from its shores. So what precisely allows would allow the U.S. to prosecute this pirate if we decide to? What kinds of punishment attach? Can we tar and feather him and parade him down Constitution Avenue in D.C. in the back of a horse drawn wagon? Can we hang him and leave the body in front of New York Harbor with a sign around his neck that says "Ye be warned"? I'm fairly certain the last two options are out of the question, but what can we do.

Our ability to try pirates is recognized under international law in the form of both Article 101 of the 1982 United Nations Law of the Sea and Article 15 of the Geneva Conventions of the High Seas (the U.S. is a party to the Geneva Convention, but not to the United Nations act). Both of these laws recognize three types of activity that constitute piracy. The pirates that attacked the Maersk Alabama they will fall under the one that considers an act of violence, on the high seas, by a private party, against a ship outside the jurisdiction of any State, as an act of piracy. An act of piracy will trigger universal jurisdiction against the pirate which means that any State can try the pirate according to its laws. This means the U.S. can try the pirate we have in custody according to U.S. law. Article 1, Section 8 of the U.S. Constitution grants the U.S. the power to try pirates, and Title 18 section 1651 of the United States Code makes the crime of piracy punishable by life in prison. Will the U.S. try this pirate since it has the power? Maybe not. In 2006 the Navy apprehended 10 Somali pirates, but chose to turn them over to Kenyan authorities for trial. This may show that trials of pirates apprehended so far away may be more of a hassle than they are worth and are better tried by countries geographically closer to where the act took place.

It's important to note that what distinguishes piracy is that it is carried out by private actors, so state-sponsored pirates would not fall under universal jurisdiction. The Somali pirates all seem to be private actors so far. Something else interesting is that terrorism that takes place on the high seas would subject the terrorists to universal jurisdiction. This means that any terrorist committing acts of terrorism on the high seas could be tried by any country that apprehends them and could be subjected to harsh piracy laws. However, attacks by state-sponsored terrorists (Hezbollah maybe?) would not qualify for universal jurisdiction.

While I was writing this post I was struck by the historical similarities between piracy and terrorism. I'm probably not the first person to draw this connection, but it's new to me so I want to lay out what I think are the similarities. For hundreds of years before the invention of the airplane and the railroad, the only alternative to land travel was sea travel. Shipping was the way that countries carried out trade with each other. Shipping was the most effective way to move goods quickly and efficiently. Given the importance of maritime commerce, piracy was a major threat to the lifeblood of almost every country. Piracy could attack the economic viability of countries and could attack their ability to administer to imperial possessions. This is why laws against piracy were so severe and the powers of countries to deal with pirates were so broad. Pirates were considered enemies of all mankind. When you look at piracy in this light it is easy to make the connection between it and terrorism. Terrorists are capable of inflicting a great deal of damage. September 11th brought down two of the tallest buildings in the world, struck at the heart of the U.S. military, brought down 4 commercial airliners, and killed thousands of innocent people. The aftermath of the attack also shut down U.S. markets for days and did a great deal of economic damage. In response to the terrorist threat the U.S. went to war, and passed many harsh and controversial laws, some of which expanded governmental powers too far. If you look at anti-terrorism laws in countries like Israel and Russia you will see that the U.S. is not the only country to employ harsh and controversial practices to its fight against terror. Like pirates, terrorists are viewed as a threat common to all countries. The extreme reaction to terrorism is similar to the extreme reaction that governments had toward piracy hundreds of years ago. Again, I believe that the reactions are similar because of the similar danger to society that they pose. An important distinction between piracy and terrorism is that piracy is motivated mostly by pecuniary interests where as terrorism is more ideologically driven; however, both practices are able to shake a country to its core.

In conclusion, I'm talking about the legal standards surrounding modern-day piracy in Somalia because it is an important current event, and I think that recent events have gotten people interested in what is happening over there. It's important to understand what is happening in the present, but I also believe it is important that we recognize the historical similarities between piracy and terrorism. I think it gives a good glimpse as to how governments react towards enemies that threaten the foundations of their society.

Saturday, April 18, 2009

Jay Bybee's T-Shirt: "Torture? Fine by me."

Last week, the Obama administration released a series of memos from the Department of Justice's, Office of Legal Counsel to the CIA during the Bush administration. These much anticipated memos reveal the thought processes behind Bush administration officials in authorizing the CIA to use "enhanced interrogation techniques" (i.e. torture) on high value al Qaeda detainees. Given the fact that my final round of law school exams are coming up, I haven't had time to read through the memos in their entirety, but I will give you a general idea about what is in each one:

1. August 1, 2002, Jay Bybee to John Rizzo- This memo gave the go ahead to the CIA to use enhanced interrogation techniques to elicit information from al Qaeda operative Abu Zubaydah. Approved techniques include waterboarding and putting Zubaydah in a box and then putting a caterpillar in there with him (apparently Zubaydah is afraid of bugs). Note to anyone that tortures me in the future: putting me in a box with a spider will be a much more effective technique than waterboarding.

2. May 30, 2005, Stephen Bradbury to John Rizzo- This posits the theory that the Conventions Against Torture only prohibits the CIA from torturing someone on American soil, and even if the CAT did extend beyond that geographic scope that the CIA interrogation program would not violate its provisions. In summary, this one offers legal justification for torture at CIA "black sites" operated in foreign countries. The Obama administration ordered these black sites to be shuttered a couple of weeks ago.

3. May 10, 2005, Stephen Bradbury to John Rizzo- Advising the CIA that the set of advanced interrogation techniques it intended to use would not violate Title 18 sections 2340-2340(A).

4. May 10, 2005, Stephen Bradbury to John Rizzo- This one is longer, but seems to reach the same conclusion as #3.

From my brief skimming of these memos they appear to be very interesting. Gives you a glimpse in to what the CIA interrogation program actually did. I think the fact that they had to ask so many questions about whether what they were doing was legal or not may have been a good indicator that it wasn't.

Thursday, April 16, 2009

Beck to the Future - Part Deux

The pilot episode of my Glenn Beck live blog was pretty successful so I've decided to extend Glenn's contract for another three episodes. What does Glenn have in store for us today? I don't know, but we are about to find out.

5:00 - There he is. Glenn is wearing a nice suit jacket and tie with a pair of what appear to be Abercrombie and Fitch jeans. Glenn's ratings among those 12-16 just tripled.

5:01 - People Glenn insulted in 60 seconds: Obama (3x), Mexico's president Felipe Calderon, Homeland Security Secretary Janet Napolitano.

5:02 - Glenn is mocking those who mocked the "Tea Parties." GET 'EM GLENN! He says that the left-wing media is equating those that attended these events as extremists (cue picture of gun wielding terrorist). Glenn is sarcastically calling himself and extremist. I am sensing that he actually doesn't think he's an extremist. Oh Glenn, you are so clever.

5:05 - Glenn is now sarcastically listing all the reasons why he's an extremist. Caveat: Glenn is not actually saying he's an extremist, he's using the comedic tool of sarcasm to ridicule those that call him an extremist. Recall that last week Glenn poured what appeared to be gas on one of his employees.

5:07 - Glenn welcomes the CEO of the NRA (fellow extremist... not). This guy just told Diane Feinstein to tell him and his fellow NRA members to tell them "when and where to show up." Note to Diane Feinstein: when a top member of the NRA asks you "when and where to show up", DO NOT GO TO THAT PLACE.

5:08 - GB just told us that the only two organizations he belongs to are his church and the NRA. This establishes how in touch Glenn is with both society and his sanity.

5:11 - They are talking about a proposal by the UN to ban individual ownership of guns worldwide. They don't like it. NRA guy just said that when the glass breaks in your house not to call the UN for help. I absolutely agree with this guy. Do not call the UN. It will take them a REALLY long time for them to get there. Actually, it's unlikely that they will respond at all. Let me suggest calling the police.

5:16 - In a strange turn in the show Glenn just showed a picture of Martin Luther King and said that he changed the world without a gun and that's what we have to do. Recall that we just said goodbye to the CEO of the National Rifle Association. I don't know what to make of this.

5:19 - Glenn is in the process of comparing the Tea Party attendees to Martin Luther King. He also just said that instead of getting compared to MLK they are the victims of "teabagging" jokes. This officially makes Glenn the first person to invoke the spirit MLK and "teabagging" in the same sentence. Glenn Beck, you are a wordsmith.

5:20 - Commercial break. Forecast for the rest of the show: 90% chance of sarcasm.

5:24 - Glenn opens up with a clip of him in Texas at the Tea Party. Gretta Van Sustren just said it looks like Texas is ready to secede from the Union. Everyone in the background goes nuts cheering. Glenn nods knowingly and turns around. Glenn then says that those people love Amercia. This is the picture of sanity. Ooooo it looks like they are passing out Kool Aid in the background.

5:26 - Glenn welcomes Georgetown law professor Randy Barnett who is a states rights advocate. Finally someone that can challenge Glenn's raw intellect.

5:28 - This guy finally leaves. Thank god. What they were talking about was lame and Glenn could in no way understand what was coming out of the professor's mouth.

5:29 - Commercial break. Glenn will be talking about the Tea Parties when we come back. Or maybe he is having a tea party when he comes back. I'm not clear on which it is, but I'm hoping it's the latter.

5:33 - We're back. No actual tea party. Dammit. He's just talking about the tax-related Tea Parties again. Now he's playing clips from the "left-wing" media coverage (Read: every single respectable news station). Now showing a clip from CNN's coverage. This reporter from CNN is interviewing people at a Tea Party. Some lunatic is screaming about how his liberty is being taken away and now the crowd seems to be turning on her. The split-screen of Glenn's face shows that he is upset that the CNN reporter is repressing this lunatic's rights. Chances of that reporter getting out of that Tea Party alive - 7%.

5:40 - Some dude from a Tea Party is now on with Glenn. This guy just said that he is "jazzed up" twice in 5 seconds. This guy is getting me PSYCHED... jazzed even.

5:42 - Glenn says that we are now moving towards American Progressivism which he equates with Communism and Socialism. Tea Party guy just asked Glenn if he remembers "Life, Liberty, and the Pursuit of Happiness." Glenn does. Ooooo!!! Ooooo!!! I remember, I remember!

5:44 - Both of these guys are accusing Americans, liberals and conservatives, of hating capitalism. I question this tactic. Tea Party guy just said that fraud is a fact of life in business and that the government shouldn't regulate it. He says the market will take care of itself. There's no doubt in my mind that this guy is engaging in some securities violation as we speak.

5:46 - Glenn is plugging his "Common Sense Comedy Tour" which is a comedy tour, starring Glenn of course, for conservatives. He is SO versatile. Maybe the greatest entertainer of our time. OH SWEET MANNA FROM HEAVEN!!! Glenn is coming to Richmond June 6!!! Bar study break. Who's coming with me?

5:49 - Tea Party guy is STILL here. He's the only person I've ever seen that is more insane and "jazzed up" than Glenn. I couldn't despise him more if I tried.

5:53 - Glenn just said that we'll never be able to reach the crazy nut-jobs on either side of the political divide. Hmmmm... the irony of this statement coming from Glenn is not lost on me.

I'm ending this here because all Glenn did after the last commercial break was show this clip from Britain's version of American Idol that shows a British woman, Susan Boyle, who is in her late 40's, and is considerably more talented than Glenn. In a shameless display of self-aggrandizement, Glenn talks about how talented she is and then subtley compares himself to her. DO NOT MESS WITH SUSAN BOYLE GLENN!!! She's twice the lady you'll ever be.

Themes of the show: sarcasm, Tea Parties (not the fun ones with tea and scones, but the ones with insane people that don't think we have to pay taxes), and Susan Boyle.

The Last Time People Were This Interested In Pirates Johnny Depp Was Involved

Now that we've had some time to cool down from the story of the Navy SEALs straight facing those Somali pirates and freeing the U.S. ship captain (I talked about it for 72 hours straight, even in my sleep. This subsequently led my girlfriend to threaten to break up with me. Since she's wholly uninterested in my blog, I've chosen this forum to talk about the situation further), I think it is time to reflect on what is happening on and around the Horn of Africa. I read this post by Ilan Goldenberg at Democracy Arsenal which I mostly agree with. He says that the recent hostage situation involving the American captain has created a frenzy of public attention surrounding the Somali pirate situation as if it is some kind of new phenomenon. Of course, this is not true because pirates have been a problem in that part of the world for awhile, but no one here really paid a lot of attention until an American was captured. This is a typical reaction for most people. You don't pay attention to a problem until it strikes home for you, and it struck home to Americans when the Maersk Alabama was taken over by pirates and the captain was held hostage. Now all of the sudden people are calling for the complete obliteration of these scallywags. Goldenberg points to an article in the NY Post in which the author paints an apocalyptic end to the pirates after the U.S. turns its full military might against them. Great idea buddy. Let's get involved in an all out sea, air, and land assault on a bunch of well armed fishermen in glorified row boats. Maybe I'm understating the skill of these pirates seeing as how a relatively low number of them can take over enourmous ships using pretty rudimentary means, but I'm just saying that we shouldn't want to mobilize the rest of an already strained military to go out and fight these guys. I do believe that the U.S. and other countries need to step up their presence in the region and take the fight to the pirates, but we don't need to wage war over there. I think we can control the problem with a concerted effort that focuses naval assets of several countries on stemming the problem. I only say that we can stem the problem because I don't think we can stop it without fixing the root problem in Somalia which is a big one. I don't think I would be going to far out on a limb here by saying that Somalia is the most lawless country in the world and that the word government can be used only loosely in describing who is running the country. It's that kind of lawlessness that leads to an environment in which the pirates can act with impunity in country.

While the piracy is a problem I think it pales in comparison to the potential that Somalia has to be the next terrorist safe haven. They already have a major radical Islamic group called al Shabab who is growing increasingly powerful. A relatively weak government and strong radical presence creates an ideal situation for Somalia becoming the next terrorist safe haven in the mold of Afghanistan. Nearby Sudan used to be al Qaeda's base of operations before it moved to Afghanistan so the region is not new to radical Islam. It's Obama's new policy to attack and destroy terrorist safe havens, but that policy seems to be confined to Pakistan and Afghanistan thus far.

If Somalia becomes a base of operations for terrorists will we start turning military attention there? Will Somalia be the next Iraq? I don't me to be sensationalist, but Somalia will need a strong government that can control terrorist activity if it is truly not going to be a safe haven. The U.S.'s main goal in Iraq and Afghanistan is to get strong central governments set up so that they can turn those countries around and stop them from becoming bases for terrorist activity. I think that we can make life very uncomfortable for terrorists in Somalia by directing more surgical military action at them (special operations, drone attacks, etc.) without a full scale invasion, but I don't know if we can completely disrupt terrorist operations there. This is all assuming that Somalia becomes a hub of terrorist activity, which may not happen, but I think it has all the symptoms of a potential safe haven which deserves some serious attention.

Monday, April 13, 2009

Lifeboat of Death

I can't even begin to describe to you how hyped I am about this story. Contrary to Fox News (notably Glenn Beck), I believe we did the right thing by sending in negotiators, but I knew in my heart that it was gonna get real out there. Last night it did get real when U.S. Navy snipers killed* three pirates to free Captain Richard Phillips. The Navy decided to take action when they felt that Phillips's life was in imminent danger given the agitated state of the pirates and the fact that they had an AK-47 leveled at his back. A fourth pirate was actually aboard a U.S. Navy ship at the time and he is now being held while federal prosecutors decide whether to press charges or not. This fourth pirate is the first pirate to be held for an attack against an American citizen in modern U.S. history.

I mean this is a pretty amazing story. The pirates leveled a gun at Phillips's back and the snipers then shot all three pirates in the head while they were on a lifeboat that had to have been rocking around on the water. This is incredible. I'm already writing the screenplay. I've got calls into Seagal's people. I also see a spot for Haley Joel Osment and Angela Landsbury. Creative casting will be this movie's hallmark. The working title for the movie is also the title of this blog - "Lifeboat of Death."

* CNN is careful to point out that all three pirates were killed by head shots. If you didn't just fist pump at this news you need to check your pulse because you may be dead.

Saturday, April 11, 2009

Interlocutory Appeal in Maqaleh

About a week ago a D.C. District Court ruling extended habeas rights to detainees at Bagram Air Base in Afghanistan as long as the detainees were non-Afghan citizens that were not captured in Afghanistan. Naturally, the Justice Department was not down with that decision so they have filed for an interlocutory appeal (an appeal that comes before a final decision) calling on the D.C. Circuit Court to reverse the district's ruling.

The appeal makes a couple of minor arguments. Among those is the argument that Bagram is not under enough control by the U.S. to confer habeas rights. The other is a somewhat corollary argument that the prisoners at Bagram have never been held at a place that confers habeas rights and therefore the government cannot be accussed of attempting to circumvent the Constitution by transfering the prisoners from one place that has habeas protection to one that doesn't.

The motion's major argument is that allowing detainees at Bagram to have habeas rights will talk away from the military's ability to carry out operations in Afghanistan. The district court's ruling said that the "practical obstacles" in allowing habeas rights at Bagram were not as serious as alleged and therefore could not stop the extension of those rights to the detainees there. The government's motion here argues that the practical obstacles are substantial. I break the argument down into five parts: 1) it affects the military's judgment on where to detain individuals; 2) terrorists will be encouraged to conduct operations from Pakistan because they think the U.S. will be less likely to take prisoners in that country since it will have to be prepared to defend habeas petitions filed by those prisoners; 3) Bagram is in a dangerous theater of war; 4) there will be a flood of habeas petitions from prisoners already at the prison; 5) general logistical and security difficulties inherent in carrying out habeas proceedings at Bagram.

I'm not sure what to make of this situation. Let's face it, Bagram is different than Gitmo. I do believe that Bagram is essentially under as much U.S. control as Gitmo, which was a major factor in the Boumediene ruling so we can go ahead and check that off as a factor favoring habeas at Bagram. I'm not sure what kind of logistical hurdles exist in bringing lawyers in and all the other things that are necessary to carry out habeas at Bagram. Although I don't know what they are I do believe that logistical hurdles can be overcome. The biggest question I have and in my opinion the biggest potential danger is what affect would it have on military operations. A good number of future prisoners at Bagram will probably come from operations carried out in Pakistan. I don't want special forces operators to have to take into account the complexities of habeas litigation when they are carrying out their missions. I think that the legal obligations those guys should be concerned with are the laws of war, and not evidentiary questions that could arise at a habeas hearing at Bagram. Sure sometimes there will be sufficient documentation and other evidence available from military missions to support a hearing, but just as many times there may not be. What if an important apprehension is made during a spur of the moment mission where the only people that really have the evidence to show that the person should be detained are military personnel operating out in the field? Are we going to ask them to come back from the front lines to testify? Are we going to make them sit down and write out some kind of report? I don't want to pile extra burdens on the men out on the front lines. They have enough to deal with already. Again I don't know how habeas proceedings would go at Bagram and what methods we would have to use to effectively carry them out. I believe that constitutional protections such as habeas corpus need to be respected in the relatively new fight against terrorism, but I worry sometimes that our attempt to apply the best and most fair procedures as possible will, in some instances, hamstring us in the actual fight.

Friday, April 10, 2009

Black Out

A happy Good Friday to all. In celebration of the upcoming holiday new Director of the CIA Leon Pannetta dressed up as a pink bunny* and delivered an early Easter present to civil rights activists. Reuters reports today that the CIA is closing its controversial "black sites." Black sites are foreign facilities used by the CIA to hold and interrogate suspected terrorists. Interrogation methods used at these sites were alleged to be extremely severe. Pannetta said that the sites were being closed down in an attempt to make it clear that the CIA is falling in line with the Obama administration's new policies regarding detention and interrogation. The preferred method of staffing these black sites seems to have been to hire private contractors, but Pannetta aslo says that the CIA will no longer contract out interrogation operations.

I'm gonna be honest. I'm a little skeptical about this. These are black sites. "Black" means that the location of the sites is classified at the highest level. No one really knows where these sites are so how will we know that the CIA has closed them? And even if they do close the existing ones how will we know if they don't open others? I don't mean to sound like a conspiracy theorist, but those are the questions that immediately popped into my head when I saw this story. However, in the Easter spirit, I will choose to believe the new DCI on this one and take him at his word. As far as no longer farming out interrogations to contractors I think we can definitely keep an eye on that and see whether it is happening or not. I absolutely believe that we need to keep interrogations, as well as a lot of other things, in house so this is a big step. Kudos to Leon and the Obama administration for trying to clean things up a little.

*This is pure speculation. I have no actual evidence that Leon Pannetta dressed up in a pink bunny suit.

Thursday, April 9, 2009

Beck to the Future - The Pilot Installment

I've been told that live blogging is the heat. People need their information real time so that is how I'm going to give it to them. Today will be the first installment of "Beck to the Future", a series of live blogs following the Glenn Beck show on Fox News. Why the Glenn Beck show? I'll tell you why. Because I saw this clip from the Colbert Report the other day and I felt like my eyes had been opened for the very first time. Sure I'd heard of Glenn Beck before, but I didn't actually follow any of his shows. After I saw that clip depicting Glenn Beck weeping on national TV because he loves America so much I knew I could go no longer without Glenn Beck in my life. This will be my first time watching the show so join me, won't you? Let's delve into the dark heart of conservative television together. I will need you guys now more than ever. Let's begin:

4:58- I have Fox News on mute right now because I believe the most my brain can take of this station is 60 minutes.

5:00 - GLENN IS ON! He says his special guest is the governor of Texas. He just called the people working in Washington "clowns", and then talked in a British accent.

5:01 - He is unhappy that we are sending FBI hostage negotiators to try to free the captain captured by Somali pirates. Glenn seems to think that the resolution to the situation is obvious, but will not share it with us.

5:02 - Glenn is pouring gas on one of his show's workers because he disagrees with Obama's policies. It is unclear why he is doing this.

5:05 - SWEET JESUS HE JUST LIT A MATCH! Whew... it was just water in the gas can. That was close. Glenn is now calling for sanity in this country. When I say "calling for" I mean he is screaming at the camera.

5:06 - Rick Perry, governor of Texas, is now on. Glenn is asking him if he's regretting being on the show. Rick's words say no, but his eyes say yes.

5:07 - The banner on the bottom of the screen says "Economic Apocalypse". Rick also feels we need sanity in Washington.

5:08 - In a show of metaphorical genius, Glenn just compared border security to a bathtub. Rick Perry says that border security is an abject failure. I'll agree with him on this.

5:10 - Glenn is talking about an article in Time magazine that called him crazy. Time magazine... YOU BASTARDS!!! How dare you spew so much nonsensical vitriol about a true patriot like Glenn?!

5:11 - Glenn is complaining about the laws that require him to say that what he poured on his staffer was in fact water. These legal constraints are choking the life out of him. By the way, this guy is still sitting in the studio with Glenn and he is soaking wet. Glenn doesn't want him to leave because it is extremely cold in the studio and the guy is soaked in water. hahahahah... oh Glenn, you are such a card.

5:14 - He's now talking to a professor from Columbia about the recession. Good god, they just showed a map of the U.S. that put Hawaii approximately 1 inch southeast of Florida. This could be a subliminal message that the recession is going to force us to sell Hawaii to the Bahamas. Greedy Bahamas. Haven't we given you enough already?

5:17 - Glenn and this professor are getting along great together. They just shared a good belly laugh about how Cubans drive cars made in the 1950's and how silly "Progressives" (the best I can tell this is code for liberals) are.

5:23 - We are back from commercial break. Glenn wants to talk to the professor about municipal bonds. Glenn's eyes have glassed over because he doesn't understand anything about this. He is now preparing his next attack on liberal America.

5:25 - Glenn just said he called his stock broker 6 months ago to get all him money out of the stock market. I can only assume that this money is now filling Glenn's mattress at home.

5:27 - The professor is done. This is good for the professor I think. It was only a matter of time before Glenn poured gas on him. Commercial break. Oh goody. Special Easter thoughts from Glenn Beck next. You are going to want to stick around for this.


5:32 - He's talking about Jesus. Glenn wants us to stop arguing about religion.

5:33 - Glenn said that those ancient people surrounded by frogs and locusts had it worse than a country with 8.5% unemployment. On this point Glenn and I are in complete agreement.

5:34 - Clip from the movie "The Ten Commandments." I mean this is a long clip. I think Glenn may be taking the next 26 minutes off.

5:35 - Oooo he's back. Nope. Wait. Now a clip from "Passion of the Christ." Glenn believes that the crises in this country are preparing us for powerful miracles. They are just around the corner apparently. LEAD ME THERE GLENN!

5:38 - Commercial break. Rick Perry will be back along with Dr. Laura. The combination of these three people may represent one of the 4 horsemen of the apocalypse. Or maybe, just like Glenn said, it is just something else that we are going to have to struggle through. I can't decide which it is.

5:40 - We're back. They just played a 911 call from Marcus Luttrell to emergency services saying that he was chasing the guys that just killed his dog. For those of you who don't know who Marcus Luttrell is a Navy SEAL who wrote a book called "Lone Survivor" which is a great and moving book. Luttrell is a hero and a badass, and whoever killed his dog has got to be completely insane. I would list Glenn as a person of interest in this crime.

5:42 - Glenn let Governor Perry go and told him to hold it down in Texas.

5:44 - Glenn and Dr. Laura are talking about stay at home moms.

5:45 - Glenn is saying how he and his wife will be homeschooling their children. Shocker. This will ensure that Glenn's kids will be as socially well adjuested as he is. Glenn believes there is too much propoganda in schools. Word UP, Glenn. I saw a flyer for a Hitler Youth ralley at school just today.

5:46 - Commercial break. This is immediately followed by an ad saying that the Glenn Beck program is brought to you by the Evangelical Church of America. A more likely alliance there has never been.

5:49 - Glenn welcomes author Harlan Coben. Harlan's tie is the most heinous thing I've ever seen.

5:50 - Harlan and Glenn are talking about torture. Harlan says he is skeptical of anyone who won't let him punch a terrorist in the face if he can save innocent lives. You and me both Harlan.

5:51 - Harlan says that his mother doesn't remember his birth. Ummmm, I don't want this to be awkward Harlan, buuuuuuttt... you were adopted. I'm sorry Harlan. I didn't want you to have to find out like this. Sweet tie though.

5:52 - Glenn says goodbye to Harlan. He doesn't want any motherless freaks on his show.

5:54 - Glenn is talking about global warming. He is skeptical about global warming to say the least.

5:57 - Glenn tells us the earth has warmed 0.7 degrees Celsius in the past 100 years (the tone of his voice tells me he isn't alarmed by this). He sarcastically wipes his brow from the sweat caused by this seemingly small temperature increase. HAHAHAHA! GLENN! HAHAH! STOP! HA! I! HAHA! CAN'T! HAHAHA! BREATHE!

5:58 - One of Glenn's other staff members is getting married apparently. Good for her I say. I hope it works out. Glen just gave her a door mat that says "The Spin Stops Here." Glenn you are one cheap m****f****er. I think those kids are gonna make it though.

6:00 - SHOW'S OVER!!! We made it folks. Congratulations all around. I'm not sure we could have asked Glenn for a better show.

Recap: four guests (one governnor, one professor, one doctor, and one motherless bastard), one 911 phone call, two religiously based movie clips, one of the ugliest ties ever worn on TV, 0.7 degree Celsius, and one doormat that will soon grace my front porch.

Wednesday, April 8, 2009

Takin' It to the LIMMT

Those wily Iranians are at it again. The seemingly immortal New York District Attorney Robert Morgenthau announced yesterday that the NY DA's has filed an indictment against a Chinese company, LIMMT, that has been illegally selling banned materials to Iran in violation of United Nations bans as well as U.S. law. The 59 page, 118 count indictment can be found here and a New York Times article about the indictment can be found here. It is accused of selling metals that can be used in the production of nuclear weapons to an arm of the Iranian military called the Defense Industries Organization. In the sale of these materials LIMMT used U.S. banks in New York City to transfer money, and that is how the NYC DA got the case.

The question that jumped out at me when I saw this story was, why in the world Iran, or companies trying to do this kind of business with Iran, would use U.S. banks to facilitate these transactions? Seems kind of stupid to me since it is one of the U.S.'s goals in life to stop Iran from developing the bomb or advancing its military in any way. The indictment actually answers that question, and the answer is that due to the shear amount of global commerce that is carried out in U.S. dollars LIMMT had no choice but to go through U.S. banks. This posed a big problem for them because in 2006 the Treasury Department banned LIMMT from using the U.S. financial system in any way. In order to get around the Treasury sanctions, LIMMT simply used false names on its money transfers (a crime called "falsifying business records", and the only crime charged in the indictment) which worked to bypass the countermeasures the banks had in place to stop LIMMT from doing business.

I had an earlier post about financial crimes that were facilitating Iran's quest to acquire advanced military equipment. This one is more disturbing because the transactions involve material that is essential in enriching uranium and building an actual bomb. Further proof that Iran is actively pursuing a military nuclear agenda that needs to be halted because the introduction of more nuclear weapons to the Middle East (it's a not so well kept secret that Israel has nuclear weapons) will add a great deal of fuel to an already raging fire.

Something I found a little funny is the number of aliases the indictment credits to LIMMT's owner Li Fang Wei. He has seven aliases one of which is "Patric" (no "k"; way to disguise the name "Patrick" there Li), and another of which is "Sunny Bai." Listen, if you have seven aliases you are a criminal. I think that creates an unrebuttable presumption that you are up to no good. On top of that one of his nicknames is "Sunny" which is only slightly less criminal sounding than "Snake" or "Knuckles." Li, come up with some respectable nicknames for the next indictment.

Tuesday, April 7, 2009

Kiyemba Kraziness

Three major decisions/filings based on the D.C. Circuit's recent decision in Kiyemba v. Obama have come in the past two days. Remember Kiyemba deals with 17 Chinese Uighurs who have been held at Gitmo for more than 6 years. The D.C. Circuit's latest ruling said that the U.S. cannot be forced to release them into the U.S. even though their confinement has been deemed to be unlawful The first was the filing of a cert petition by the detainees' attorneys to overturn the D.C. Circuit's ruling.

Cert Petition

Petitioners are arguing that the Constitution requires a habeas court to grant a remedy (i.e. release from confinement) to a prisoner that has been successful in their habeas petition. Anything less, petitioners argue, would make a habeas court irrelevant. The petition goes on to argue that the D.C. Circuit improperly put the burden on the detainees to show why they should be released when the burden is actually on the government to show why it should still be able to hold them. It cites authority from Boumediene saying that the court must be able to grant conditional release as a remedy for habeas cases.

The petition also makes some interesting arguments against the D.C. Circuit's use of immigration law to back up its decision. It says that if immigration law is allowed to trump the Supreme Court's decision in Boumediene then it eviscerates the decision as well as the Constitution's Suspension Clause. I think this argument is summed up nicely by the line "The Suspension Clause may not be eluded by thumbing to a differe nt act of Congress." The argument goes on to cite Supreme Court precedent that has trumped immigration law in the past. The most fascinating, and slightly confusing, part of the immigration section actually comes before the argument I just summarized. Just before Petitioners talk about not allowing immigration law to invalidate Boumediene and the Constitution they argue that no immigration laws have been triggered in the case because they haven't applied for immigration. It goes on to say that immigration remedies are not foreclosed to the Executive branch once they are released and specifically mentions the option of deportation. This seems to be a non-starter because we can't deport the Uighurs. We've essentially tried to do that for years since their release has been granted but no country will take them (over 100 countries have already refused). They are originally from China but we can't send them there because of the high likelihood that they will be tortured or executed. This means that deportation is out because we can't send them to China or anywhere else in the world because no other country wants them.

The petition has other arguments of course, but I won't detail them here for the sake of brevity. Important things to think about with this litigation is the impact it will have on all Gitmo detainees. Do I want the Uighurs released? Yes I do. Do I think we should release them here? That is something I'm trepidatious about, but maybe not as much as other Gitmo prisoners. The Uighurs have received terrorist training, but by all accounts have no historical beef with the U.S. However, the U.S. has kept them in wrongful captivity for years so they may have developed some resentment. However, the big concern with this case is that a decision to allow the Uighurs to be released into this country will open the door for other Gitmo detainees to be released here if we can't find another country for them. That is a much more disturbing possiblity to me.

Motions in Opposition to Renewed Motions for Contempt

Two motions here and here were filed yesterday in the D.C. Circuit asking for a denial of Petitioners' motions to holder Secretary of Defense Gates in contempt for not effectuating their release from Gitmo. Again, those filing these motions are Uighurs. In an earlier post I talked about the contempt motions and said that they were fairly unrealistic. While I see their plight and want to get them relief, I also don't think that Gates is in a position where he can release them right now. These opposition motions argue that the Kiyemba decision settles the matter once and for all because it says that a federal court cannot force a Gitmo prisoner to be released into the U.S. therefore Gates can't be held in contempt for not releasing them. The original motions filed by the petitioners also argued that Gates did not need a judicial order to release them and that he could do it on his own. I will repeat what I said in my last post concerning this matter. There is no way that is going to happen.

Another D.C. Circuit Kiyemba Decision

In this decision the D.C. Circuit says that if the political branches find a country that will accept the Uighurs then the Uighurs cannot ask for a judicial review of the likelihood that they will be tortured in that country. The same goes for the potential for the Uighurs being prosecuted and detained in the country they are sent to. The court decided that it could not issue a protective habeas writ that protected a detainee from foreign prosecution because such a writ would violate international comity of laws.

I don't have a lot to say about this case in particular. I feel like it was rightly decided because allowing for judicial review of the other Executive's determination that there is a low likelihood for torture would venture too far into the province of the Executive. I'm in even more agreement about protection from foreign prosecution. The U.S. cannot infringe on another country's right to prosecute who it wants to. We just need to trust that the Executive will do its best not to send detainees to countries where they will be tortured or likely prosecuted and imprisoned again.

Thursday, April 2, 2009

Habeas Extends to Some at Bagram

Judge Bates of the D.C. District Court handed down his opinion in the Maqaleh v. Gates case today. This case was filed by detainees held at a military detention facility, similar to the one at Gitmo, at Bagram Air Base in Afghanistan. The question at issue in the case was whether the Boumediene opinion extended habeas corpus rights to some held at Bagram as long as they were not Afghan citizens or prisoners captured in Afghanistan. The opinion concludes that those held at the only distinguising characteristic between those held at Bagram and those held at Gitmo is their geographic location. I will highlight some parts of the opinion I believe are important.

The first thing that jumped out at me was very early on in the opinion when Judge Bates stated that the "objective degree of control" the U.S. has over Bagram was closely analogous to the kind of control the U.S. has over Gitmo. The amount of control the U.S. had over a facility located in another country was an important part of the Boumediene opinion. The opinion goes on to say that Bagram does present habeas obstacles that Gitmo didn't because Bagram is located in a war zone, but that those obstacles were not "insurmountable."

In examining the court's jurisdiction to hear the case, the opinion finds that Boumediene was an "as applied" rejection of section 7 of the Military Commissions Act. This meant that section 7 could still be constitutional when used in relation to habeas petitions from other prisons such as Bagram. In determining whether habeas applies to those at Bagram, Judge Bates broke the Supreme Court's 3 part test Boumediene test into 6 parts: 1) what is the detainee's citizenship; 2) what is his status (i.e. is he an enemy combatant?); 3) was the process that determined his status adequate; 4) where was he apprehended; 5) what kind of facility is he held in; and 6) what are the "practical obstacles" in extending habeas to him. The court decided to apply this test in an individualized manner to each detainee rather than a general application to all detainees at the same time. Three of the factors were the same for all detainees in this case in that they 1) were all enemy combatants 2) captured outside the U.S. and 3) none of them are U.S. citizens. It found that the fact that none of them are U.S. citizens is a mark against extending habeas to them, but that it is only one factor and all factors must be weighed. The court was also rather dismissive of the factor pertaining to the process that labeled the detainees "enemy combatants." It found that the process was broad and indiscriminate, and thus weighed in favor of the more structured habeas process.

An important part of the opinion comes when Judge Bates talks about the site of apprehension. The court noted that all four of the detainees in this case were captured outside of Afghanistan and then "rendered" to Bagram. Rendition, as you may know, has become a somewhat favored tool in the fight against terrorism and involves capturing a suspected terrorist in one country and then moving them to another for purposes of confinement or interrogation. This section is important because it lays out a limit to application of habeas rights. Bates finds that there is "a meaningful distinction between Bagram prisoners captured outside Afghanistan... and Bagram detainees who were captured on the battlefield in Afghanistan." The distinction is that those captured in Afghanistan were captured in a theater of war and therefore are subject to different rules, while those rendered into the country should be treated differently. The court says they should be treated differently because it is important to control the power of the Executive to render people to other countries so that the Constitution will not apply to them.

The court felt that the 3 factors in its test that are most important are: 1) site of detention; 2) process used to determine status; and 3) practical obstacles of entitlement to habeas. Site of detention hinges on degree of control which, as I said earlier, was a big factor in Boumediene. It found that the jurisdiction the U.S. has over Gitmo is significantly greater than that it has over Bagram; however, the court said that the most important aspect to examine was the "objective degree of control." This distinction between jurisdiction and degree of control allows the court to say that while jurisdiction over Bagram may not be complete, the objective degree of control over the facility is. A contrast is drawn between Bagram and Landsburg prison which was an allied prison facility set up after WWII. Landsburg was at the center of a major Supreme Court decsion in the case of Johnson v. Eisentrager, where the Court found, among other things, that the U.S. didn't have control over the prison. I won't go into detail about Eisentrager in this post, but Judge Bates sets up a spectrum to illustrate degree of control in this opinion with Gitmo at one end and Landsburg at the other, and says that Bagram is more on the Gitmo side of the spectrum. Taking away a little from finding objective control is the U.S.'s intent to stay for an extended period of time at Bagram. The court felt that there wasn't a clear showing of an inent to stay for an extended period of time so it weighed that against finding objective control. What this all boils down to is that Maqaleh finds that Bagram is objectively under the control of the U.S., but that the control is less than that at Gitmo and therefore this factor weighs slightly in favor of the detainees in this case, but not as much as it did in Boumediene.

As far as the process factor goes, the court found that Bagram uses Unlawful Enemy Combatant Review Board (UECRB) to determine if a detainee is an enemy combatant. The opinion quickly denounces the UECRBs as less procedurally effecitve than the CSRTs at Gitmo which were found to be procedurally lacking in Boumediene. In the UECRBs detainees are not allowed counsel and may only submit a written statement to the board, no oral argument. The UECRB process also has no type of appellate-like review, which even the CSRTs had. The court makes short order of this factor and finds that it weighs more strongly in favor of Bagram detainees than Gitmo detainees.

The court acknowledges that providing habeas to Bagram could have practical difficulties because it is in an active war zone. However, the opinion turns back to Eisentrager and finds that status review in that case had lots of procedural protections even though the status reviews took place in post-WWII China. It notes that with technological advances the U.S. should be more easily able to overcome difficulties in Afghanistan. The opinion also goes on to say that problems with gathering evidence and witnesses are overstate by the government's argument, and that any effect on the timeliness of carrying out the military's mission is overcome by providing a buffer of "reasonable time" before the habeas process begins.

It is at this point that the opinion draws another important boundary for habeas rights. It says that a practical problem does exist as to detainees that are Afghan citizens. These problems arise out of tension with the Afghan government in having the U.S. exert its laws over Afghan citizens. Another problem would be having habeas review order the release of a potentially dangerous Afghan citizen back into Afghanistan where he could commit further crimes. The court found this problem to be very serious and thus found that habeas does not extend to Afghan citizens held at Bagram. While the earlier limit of habeas only extending to those not apprehended in Afghanistan did not apply to any of the detainees in this case, the limit of habeas not extending to Afghan citizens does apply in this case. One of the detainees, Haji Wazir, is an Afghan citizen and thus this factor weighs against him receiving habeas rights, but might instead need to be transfered to Afghan custody. The last part of the opinion goes into another ground urged by the detainees upon which Wazir may receive habeas rights, but it said that the court would require additional briefing.

The bare bones conclusion of the opinion is this: habeas rights extend to detainees at Bagram as long as they are not Afghan citizens or as long as they were not captured in Afghanistan. The court found that section 7 of the Military Commissions Act is unconstitutional as applied to Bagram just as it is unconstitutional as applied to Gitmo (remember that courts have not found section 7 to be facially unconstitutional and therefore it may be constitutional in some instances). I want to note that the most important factor of the six laid out in Judge Bates's opinion is the one relating to site of detention and "objective degree of control" of that site. I think it is the most important not only because it is the one most analyzed, but because I think that it affects both the adequacy of process factor and the "practical obstacles" factor. It affects the adequacy of process factor a little bit less, but I think it affects that factor because it seems that an environment that is totally under U.S. control is much more conducive to a thorough process than one that is not under control. Control is very important to the "practical obstacles" factor, especially given Bates's analysis in this case, because objective control over the facility will allow the U.S. to have great ability to allow for detainee access to counsel as well as counsel/detainee access to evidence and witnesses.