Friday, February 22, 2008

The Times and John McCain

Some people involved in McCain’s campaign for President in 2000 spoke to the NY Times on condition of anonymity. They recounted their concern at the time that the senator’s “appearance of a close bond” with lobbyist Vicki Iseman was potentially politically destructive. They outlined the steps they took to distance the candidate from the lobbyist.

According to senator McCain, this one story constitutes a “hit and run smear campaign” by the New York Times. If only he'd been given an opportunity to address this outrageous claim, instead of being shamelessly blind-sided. Oh wait, he was:

“The senator declined repeated interview requests, beginning in December. He also would not comment about the assertions that he had been confronted about Ms. Iseman…”

Well, it’s still simply appalling, Bill Bennett bleated on CNN, that the Times didn’t present any “counter evidence” to the claim (not contained in the article) that McCain always favored interests fronted by Iseman. Except they did:

“[Mark Salter] and Mr. Davis also said Mr. McCain had frequently denied requests from Ms. Iseman and the companies she represented. In 2006, Mr. McCain sought to break up cable subscription packages, which some of her clients opposed. And his proposals for satellite distribution of local television programs fell short of her clients’ hopes.”

Even if the story wasn't deplorable drive-by journalism, everyone in broadcast media zeroed in on the real issue. It's not whether (more) poor judgment by a man who would be president is relevant, it’s about the press and their responsibility to never use unnamed sources, ever, no matter how well their representations can be cross-checked and verified. It is the duty of the press to expose any and all of their sources, and not simply the verifiable facts those sources present, to public scrutiny. After all, its not like these “unnamed individuals” are running for public office and are thereby entitled to a private life!

And the use of unnamed sources is only troubling when it occurs in print. On CNN et.al., the phrases “a source close to the investigation,” “someone familiar with the campaign,” “an official in the pentagon” are in daily use, year in and year out. No blush of shame is ever evident on the face of the reporter who utters one.

Perhaps because CNN has proclaimed itself "the most trusted name in news," no more than the frequent repetition of this catch-phrase is needed to assure us that their unnamed sources are solid and reliable.

Wednesday, February 13, 2008

Shadow Justice

Brig. Gen. Thomas Hartmann, Legal Advisor to the Convening Authority in the Department of Defense Office of Military Commissions (to give his full title once), briefed the press on the process to be used to try Khalid Sheikh Mohammed and 5 others by military commission.

Gen. Hartmann took great pains to emphasize how the military commission system closely mirrors civilian and military courts, and that it was thus set up precisely "to ensure that every defendant receives a fair trial, consistent with American standards of justice.”

He enumerated what seemed to be the familiar rights of defendants in criminal proceedings and said that all are afforded to those tried by military commission:

“In the military commission process, every defendant has the following rights. The right to remain silent and to have no adverse inference drawn from it. The right to be represented by detailed military counsel, as well as civilian counsel of his own selection, at no expense to the government. The right to examine all evidence used against him by the prosecution. The right to obtain evidence and to call witnesses on his own behalf, including expert witnesses. The right to cross-examine every witness called by the prosecution. The right to be present during the presentation of evidence. The right to have military commission panel of at least five military members determine his guilt by a two-thirds majority or, in the case of a capital offense, a unanimous decisions of a military commission composed of at least 12 members. The right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court.”

“ We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield and I think we'll all agree are national treasures.”

If military commissions so closely mirror civilian and military judicial proceedings, why not use these proceedings, as was done with the original Twin Towers bombers? Why invent a new system if it essentially duplicates existing ones? When asked this the General was a bit evasive:

“Fundamentally it's because the president of the United States and the Congress of the United States created the Military Commission Act [hereafter ‘MCA’] and determined that that was the appropriate place to proceed with these people.”

In truth, military commissions aren’t so much the mirror of civilian and military courts as their shadow. While utilizing familiar language borrowed from civilian and military justice, the MCA very deliberately walls-off military commissions from civilian and military court proceedings. From initial incarceration to final appeal the military commission process runs in isolation from the rest of American jurisprudence. The detainee in custody is proscribed from seeking a ruling in any American court on the legality of his detention. He is barred from trial in any venue other than a military commission. He is barred from appealing a conviction based on any claim other than that the rules laid down in the MCA for military commissions were not followed.

Unlike defendants’ rights in regular military and civilian courts, the rights of defendants tried by military commission, while meant to echo and evoke familiar constitutional rights, do not find their source in the constitution. Detainees owe such rights as they have to something far more capricious:

“Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial.” (949a (a))

America may be (or have been), as the General reminded us, “a nation of laws and not men” but the world described by the MCA is very much a world of one man. The Secretary of Defense, not the law, not the constitution, has the final say in all matters arising from the conduct of military commissions. That is to say, the nature and extent of every “right” accorded a defendant is the sole discretion of the Secretary. Whether it is proper to describe what may be withdrawn or modified by the Secretary of Defense "as the Secretary considers practicable" a “right” at all is a legitimate question.

But let’s consider the putative rights of detainees in military commissions as listed by General Hartmann:

(1) “The right to remain silent and to have no adverse inference drawn from it.”

In civilian justice, the right to remain silent is a right against self-incrimination. This right, the MCA makes clear, defendants in military commission hearings do not have. 948b(B) of the MCA says those tried by military commission do not have the rights enumerated in the UCMJ, 831, Art. 31: “Compulsory Self-Incrimination Prohibited.” Noteworthy in particular is the inapplicability of article (d): “No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.”

While taking pains to ensure that coerced statements will not be excluded, the MCA prohibits the use of statements obtained by "torture." We know by now that the idiosyncratic definition of “torture” employed means that practices historically considered torture by the US (e.g., waterboarding), and still considered torture by the rest of the world, fail to qualify.

(2) “The right to examine all evidence used against him by the prosecution.”

General Hartmann was most insistent about this right:

“Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross- examination, subject to challenge…”

This is, plain and simple, complete fiction. The MCA makes it perfectly clear that in NO instance are defendants allowed to examine “every stitch…every whiff ” of the classified evidence against them. Under the provisions of section 949j (b) of the MCA the judge may delete classified information from documents given to the defense; or substitute either a non-classified summary of the classified information or a non-classified list of the “relevant facts that the classified information would tend to prove.”

Imagine being a defendant presented with the later. “Classified evidence tends to prove the following facts: (a) That you materially aided terrorists by supplying them with money; (b) That this money was used to purchase explosives; (c) That these same explosives were used in an attack that killed a civilian.” (Which makes this a capital crime). The names, dates and other specifics are withheld because the classified source of the information and vital operational methods might otherwise be identifiable.

Now it’s your turn to “confront,” and “challenge” this evidence against you. Since vital specifics are withheld, specifics which you might well be in a position to challenge, all that remains possible is a general, and so meaningless, denial.

The classified information from which these damning conclusions are drawn may be false. You may, in fact, be in possession of evidence which shows that it is false. But because you will never know the classified information, only some form of non-classified substitute, you can never put the two together in a meaningful “confrontation” of the evidence against you. In this scenario you may be executed based on evidence you could have proven was false, had you truly been able to "confront" it.

The General said he was told classified evidence will play little or no part in these first trials. This may well be so. Why highlight this travesty of justice in the trials that will receive the most public attention?

(3) “The right to obtain evidence and to call witnesses on his own behalf, including expert witnesses.”

The same restrictions which limit access to classified evidence limit access to its sources. So none of these may be on the defense witness list, no matter how vital they may be to a meaningful defense.

The MCA says the defendant will be given “reasonable opportunity to obtain witnesses.” Who determines what is reasonable? The same person who finally determines everything else: the Secretary of Defense. Will the opportunity be ‘reasonable’ by civilian standards? Who knows?

The witnesses the defendant calls can only be compelled to appear (as by subpoena) if in “a place where the United States shall have jurisdiction.” Those exculpatory witnesses elsewhere may decide for themselves whether or not they will put themselves in the hands of Americans and connect themselves with a “high profile terrorist” and his trial.

(4) "The right to cross-examine every witness called by the prosecution."

This sounds good, as it is meant to, but in a military commission proceeding, not all the witnesses against a defendant will be called. This is because hearsay evidence “not otherwise admissible under the rules of evidence applicable in trial by general courts-martial” is allowed in military commission proceedings [949a (E)]. It will only be excluded if the defendant can show that it is false. The ability to cross examine only the witnesses actually called, not those whose hearsay evidence is introduced, makes this right hollow:

Smith: “A classified source told me someone told him that the defendant often spoke of his hatred for freedom and his desire to commit the act with which he is charged.”

Cross examination (???) “Er, my client says he never did those things….?”

Smith: “My source says he did.”

The admissibility of hearsay also bears on right (2) “The right to examine all evidence used against him by the prosecution.” The defendant may be able to know what Smith will testify to, but how can that be described as a meaningful ‘examination' of the hearsay evidence Smith presents?

(5) “The right to an appeal to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the United States Supreme Court”

General Hartmann: “In this process, they all go through the Court of Military Commission Review first, and then to the D.C. Court of Appeals.”

Q: “So there is an eventual possible appeal to the civilian courts.”

General Hartmann: “Yes, absolutely, absolutely.”

Absolutely not. The Court of Military Commission Review may review only whether or not the procedures set out in the MCA were followed:

‘‘In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.”

Subsequent civilian court review is limited to one and only one court: the US Court of Appeals for the District of Columbia. No other civilian court has jurisdiction. The scope of such review is, again, confined to whether or not MCA procedures were followed:

‘‘The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of— (1) whether the final decision was consistent with the standards and procedures specified in this chapter; and (2) to the extent applicable, the Constitution and the laws of the United States.” (950g(c))

“To the extent applicable” is an important qualifier. The constitution has been very deliberately and systematically excluded from the military commission process. If it applies at all at the end of the process, to the verdict in a trial by military commission, is an open question.

This bears on the meaningfulness of final declaration in (5) of the possibility of appeal to the Supreme Court.

The MCA could be said to have been designed by the Supreme Court. The roadmap to constitutionality supplied by Hamdan and related cases virtually assures that the MCA will not be judged “repugnant to the Constitution, treaties, or laws of the United States.” If it is not, an appeal to the Supreme Court of a verdict in a trial by military commission can only result in the same limited review to determine whether lower courts acted in accordance with MCA provisions.

General Hartmann: “It's our obligation to move the process forward, to give these people their rights. We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield ….”

It would be a magnificent thing, if it were true. That we would afford to our enemies rights generally reserved for citizens would be the clearest possible evidence that we are, first and foremost, a nation of laws. But it's not true. We have opted instead for shadow justice in shadow trials, which says just as loudly and just as plainly that we are, after all, merely a nation of men.

Sunday, February 3, 2008

Bad Bill Clinton, Bad!

Let's sum up: According to Geoffrey R. Stone (“Bill Clinton's folly a party disgrace”), political discourse in the good old days was much harsher, and judged by that standard Bill Clinton’s recent remarks* about Barack Obama were “tepid.” In modern times, leading Democratic candidates have "for the most part...stayed above the slime." So shame on Bill Clinton for not carrying on this (quasi)tradition of the modern democratic party.

Mr. Stone apparently imagines the cringing servility currently exhibited by Democrats to be in a (largely imaginary) glorious democratic tradition of "mutual respect and robust but civil disagreement and debate." Having, at least in his mind, secured and maintained the moral high ground, it doesn't surprise him that Democrats "are particularly sensitive these days to any conduct that might undermine party unity and lessen the party's prospects for success in November." Really?

I would have said that “conduct that might lessen the prospects for success in November” was thoroughly descriptive of democratic leadership's behavior. What else should you call the determined efforts to be seen as the impotent enablers of a catastrophic leader?

Mr. Stone's article is an object lesson in the power of self-deception. Mr. Stone deceives himself that craven boot-licking makes Pelosi and Reid statesmen; and those two persons apparently sustain a similar fantasy, in spite of polling even lower in popularity than the most unpopular president in modern times.

Any elements of half-truth and omission in Clinton’s remarks (whatever they might be) are as unhelpful as they are anywhere else in political discourse. But a “personal attack and distortion,” “divisive and destructive behavior,” ruinous to democratic chances in November? Please.

I can’t make myself cringe over Bill Clinton’s supposed “conduct unbecoming” on the campaign trail. If it’s true that the Clinton’s, in the words of Mark Karlin of BuzzFlash, “have gone after Barack Obama with a ferocity that we have seen from neither of them in the last several years toward the Bush and Cheney Administration,” they rightly deserve our condemnation, but for following in the tradition of the modern democratic doormat, not for poisoning the otherwise oh-so-pure waters of democratic political discourse.

*Different commentators seem to have different remarks in mind when expressing their chagrin, moral outrage, etc.. These seem to be the main contenders:

(a) ‘Obama’s whole campaign is a fairy tale.’ But he didn't say that:
"Time's Gibbs repeated falsehood that Bill Clinton referred to Obama's candidacy as a 'fairy tale'"

(b) Clinton’s comparison of Obama’s North Carolina Campaign to that of Jesse Jackson’s in ‘84 and ‘88. The remarks about which Jesse Jackson said "Bill has done so much for race relations and inclusion, I would tend not to read a negative scenario into his comments."

(c) Clinton’s “hit job” remarks in reaction to Obama’s campaign document calling Hillary “the Senator from Punjab” ? Is the cavil at the use of the phrase "hit job"? because the document’s claims are so clearly meant to be understood in that fine old tradition of 'mutual respect,' blah, blah…?