Spy Court Judge Quits In Protest

Posted on December 21, 2005 by Team VCS

A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush’s secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.

Word of Robertson’s resignation came as two Senate Republicans joined the call for congressional investigations into the National Security Agency’s warrantless interception of telephone calls and e-mails to overseas locations by U.S. citizens suspected of links to terrorist groups. They questioned the legality of the operation and the extent to which the White House kept Congress informed.

Sens. Chuck Hagel (Neb.) and Olympia J. Snowe (Maine) echoed concerns raised by Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, who has promised hearings in the new year.

Hagel and Snowe joined Democrats Dianne Feinstein (Calif.), Carl M. Levin (Mich.) and Ron Wyden (Ore.) in calling for a joint investigation by the Senate judiciary and intelligence panels into the classified program.

The hearings would occur at the start of a midterm election year during which the prosecution of the Iraq war could figure prominently in House and Senate races.

Not all Republicans agreed with the need for hearings and backed White House assertions that the program is a vital tool in the war against al Qaeda.

“I am personally comfortable with everything I know about it,” Acting House Majority Leader Roy Blunt (R-Mo.) said in a phone interview.

At the White House, spokesman Scott McClellan was asked to explain why Bush last year said, “Any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” McClellan said the quote referred only to the USA Patriot Act.

Revelation of the program last week by the New York Times also spurred considerable debate among federal judges, including some who serve on the secret FISA court. For more than a quarter-century, that court had been seen as the only body that could legally authorize secret surveillance of espionage and terrorism suspects, and only when the Justice Department could show probable cause that its targets were foreign governments or their agents.

Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

Robertson is considered a liberal judge who has often ruled against the Bush administration’s assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld . Robertson held in that case that the Pentagon’s military commissions for prosecuting terrorism suspects at Guantanamo Bay, Cuba, were illegal and stacked against the detainees.

Some FISA judges said they were saddened by the news of Robertson’s resignation and want to hear more about the president’s program.

“I guess that’s a decision he’s made and I respect him,” said Judge George P. Kazen, another FISA judge. “But it’s just too quick for me to say I’ve got it all figured out.”

Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or from seeking outside legal opinions.

Sen. John D. Rockefeller IV (D-W.Va.) revealed Monday that he had written to Vice President Cheney the day he was first briefed on the program in July 2003, raising serious concerns about the surveillance effort. House Minority Leader Nancy Pelosi (D-Calif.) said she also expressed concerns in a letter to Cheney, which she did not make public.

The chairman of the Senate Select Committee on Intelligence, Pat Roberts (R-Kan.), issued a public rebuke of Rockefeller for making his letter public.

In response to a question about the letter, Sen. John McCain (R-Ariz.) suggested that Rockefeller should have done more if he was seriously concerned. “If I thought someone was breaking the law, I don’t care if it was classified or unclassified, I would stand up and say ‘the law’s being broken here.’ “

But Rockefeller said the secrecy surrounding the briefings left him with no other choice. “I made my concerns known to the vice president and to others who were briefed,” Rockefeller said. “The White House never addressed my concerns.”

Staff writers Jonathan Weisman and Charles Babington and researcher Julie Tate contributed to this report.

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What Torture Does to Torturers

Posted on December 21, 2005 by Team VCS

Last week, President Bush agreed to legislation banning cruel, inhumane, and degrading treatment of prisoners in US custody. His U-turn ended months of debate about the ethics of torture. Now come revelations that the White House approved eavesdropping on American citizens inside the United States without court-ordered warrants.

These two information-gathering methods are markedly different: One inflicts pain while the other invades privacy. But each has credible national security arguments in its favor. Each raises profound human rights objections. And each threatens to compromise the nation’s moral authority abroad.

But there’s another issue, largely unexplored, that speaks to a deeper concern: the effect of such activity on the perpetrators. What is the impact on those we ask to carry out those actions?

Stanley Milgram’s famous obedience experiments at Yale in the 1960s shed light here. He recruited individuals to test (so they were told) the role of punishment to promote learning. They were asked to follow an experimenter’s orders and administer increasingly powerful electric shocks – up to 450 volts – whenever a “learner” gave the wrong answer.

Unknown to those giving the shocks, the experiment was a fake. The experimenter in a gray lab coat was a plant. The learner was an actor mimicking anguish. No shocks were ever sent. The point was to see how long the recruits would persist (though Mr. Milgram didn’t use these words) in torturing their victim in obedience to authority. The sobering answer: a very long time.

One of Milgram’s recruits, William Menold, had just been discharged from combat duty in the US Army. Growing increasingly concerned for the learner he was zapping, he complained to the experimenter, who told him to carry on and that he would accept full responsibility. Mr. Menold recalls that he then “completely lost it, my reasoning power,” and became fully obedient. Milgram’s biographer, Thomas Blass, notes that Menold “described himself as an ’emotional wreck’ and a ‘basket case’ during the experiment and after he left the lab, realizing ‘that somebody could get me to do that stuff.'”

Would Menold have been so emotionally battered if the experiment had involved wiretaps rather than shocks? Hardly. But the two activities are on the same scale, if at different ends. If anywhere along that scale our nation makes citizens “do that stuff” to others, are we dehumanizing those who do it? In taking advantage of undefended victims, are we degrading our own personal integrity?

Those aren’t idle questions. Personal integrity isn’t achieved through inoculation. It’s a process. Rooted in core ethical values, it shapes itself, decision by decision, across a lifetime. It depends on consistency, continuity, and repetition. Each lapse makes the next one easier.

If that’s true for individuals, it’s also true for organizations and nations. When an individual merges unthinkingly “into an organizational structure,” warned Milgram, “a new creature replaces autonomous man, unhindered by the limitations of individual morality, freed of humane inhibition, mindful only of the sanctions of authority.”

Government agencies, especially those defending the nation through espionage and military action, depend on personal integrity. Yet they create these “sanctions of authority.” They can even require unethical actions. When they do, however, they risk creating in the perpetrators either an anguished guilt or an amoral numbness. A convicted Watergate-related figure, Egil “Bud” Krogh, recalls what it was like to sacrifice conscience for what he saw as President Nixon’s unquestionable authority. Whenever you do something like that, he says poignantly, “a little bit of your soul slips through your fingers.”

That’s not what democracy is about. None of us wants our public servants turned into pliant emotional wrecks. And none of us wants the nation cast in the role of the gray-coated Grand Experimenter, calmly overriding individual ethics in the name of collective expediency. With the torture debate over for now, it’s time to begin the conversation on the broader differences between moral and immoral authority.

Rushworth M. Kidder is president of the Institute for Global Ethics in Camden, Maine, and the author of “Moral Courage.”

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Arizona Senator decries Defense earmarks for games, museums

Posted on December 21, 2005 by Team VCS

Sen. John McCain, R-Ariz., Tuesday decried as “obscene” and “disgraceful” millions of dollars in earmarks in the fiscal 2006 Defense appropriations conference agreement and criticized colleagues for an excess of local and special interest items in the $453.5 billion spending bill.

 

The conference agreement provides funding for a slew of nondefense projects, ranging from grade-school programs to public parks and museums, many of which were added by appropriators during negotiations on a final version of the bill, McCain said. It is a sign, he said, that the current appropriations process is “broken.”

 

“I’m sure many Americans wonder if the spirit of sacrifice stops on the steps of the U.S. Capitol,” McCain said. “During a war, in a measure designed to give our fighting men and women the funds they need, the Congress has given in to its worst pork-barrel instincts.”

 

The 523-page conference report accompanying the spending bill, which passed the House early Monday morning and now awaits Senate action, includes $4.4 million for a technology center in Missouri, $2 million for a public park in San Francisco, $1 million for a Civil War center in Richmond, Va., and $850,000 for an education center and public park in Des Moines, Iowa.

 

It also earmarks money for several museums, including a $1.35 million allocation for an aviation museum in Pearl Harbor, Hawaii, and $3 million for a museum at Fort Belvoir, Va. A $500,000 line item was added in the conference report for the Arctic Winter Games in Alaska, home state of Senate Defense Appropriations Subcommittee Chairman Ted Stevens, a Republican.

 

“We are at war,” McCain said. “How many MREs [Meals Ready to Eat], flak-vests or bullets could we buy with all this money? How many dollars could we return to taxpayers?”

 

The Arizona Republican also criticized the conference report for containing policy language, which amounts to authorizing on an appropriations measure. Conferees included provisions protecting jobs and workers in Alaska and Hawaii, home states of Stevens and Senate Defense Appropriations Subcommittee ranking member Daniel Inouye, a Democrat, respectively.

 

McCain himself had successfully added a policy provision to the appropriations bill to ban torture of enemy combatants and other detainees held by U.S. personnel. But he said in his remarks that his detainee amendment was deemed germane to the Defense measure.

 

During his floor speech, McCain also called on other lawmakers to “fix” the appropriations process, and strip spending bills of earmarks. “The sooner, the better,” he said.

 

“Our system is broken if our national security is at stake and we carry on spending for the special interests as if nothing were wrong,” McCain said. “We want to have it all without making any sacrifices, so we simply borrow the money, pushing off the obligations onto our children and our grandchildren.”

 

McCain highlighted mostly local funding projects that were added by conferees after the House and Senate passed their own versions of the defense spending bill, items “that none of us have seen before.” But some pet projects survived the entire legislative process.

 

The conference report includes $2.6 million in Army research and development funds for a long-term hibernation study at the University of Alaska at Fairbanks. Conferees trimmed $400,000 off the $3 million the Senate bill earmarked for the study.

 

A House earmark setting aside $2 million in Navy operations and maintenance funds for a study of waterfree urinals survived the conference, though appropriators agreed to give the project $1 million less.

 

This water conservation initiative had been sought by Rep. Vernon Ehlers, R-Mich., whose district is headquarters to Falcon Waterfree Technologies, an industry leader in “no-flush” urinals that is trying to expand its federal contracting business.

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’78 Law Sought to Close Spy Loophole

Posted on December 20, 2005 by Team VCS

In 1978, Congress thought it had closed a loophole in the law when it passed the Foreign Intelligence Surveillance Act. The loophole concerned secret spying authorized by the president on grounds of national security.

    On Friday, many in Washington were surprised to learn that despite the 1978 law, President Bush and his advisors had claimed the power to authorize secret spying within the United States.

    The New York Times reported that Bush had authorized the National Security Agency to listen in on the phone calls of thousands of people in this country without getting permission from a court. Bush’s lawyers maintained that the president had the inherent authority as commander in chief to protect national security through secret spying. The account was confirmed by the Los Angeles Times.

    “This sounds like an extraordinarily broad exemption to FISA,” said Washington lawyer Kenneth C. Bass III, who worked on the 1978 law as an aide to President Carter. “This is well beyond the pale of what was anticipated back then.”

    Other lawyers who helped write the law thought it prohibited what Bush apparently authorized.

    “FISA was the sole authority for wiretapping” on national security grounds, said Jerry Berman, who worked on the 1978 law as a counsel to the American Civil Liberties Union. “The statute would be a futile exercise if the president retained the authority to conduct these wiretaps on his own.”

    As a general matter, the Constitution forbids the government from spying on Americans – including by listening in on their phone calls – without a court’s permission. The 4th Amendment says police or federal agents must show a magistrate some evidence of wrongdoing before they can obtain a warrant that authorizes them to listen in on phone calls.

    However, through most of the 20th century, presidents maintained they had the power to protect the nation’s security by, for example, spying on foreign agents who were operating in the United States. No one questioned that US intelligence agencies could tap the phones of Soviet agents.

    In the mid-1970s, Congress learned the White House had abused this power: Presidents, both Democratic and Republican, had authorized the FBI to tap the phones of hundreds of political activists and celebrities, including Martin Luther King Jr. and Vietnam War protesters.

    Those revelations led to the 1978 law. One provision says it is a crime for anyone to “intentionally engage in electronic surveillance” except as authorized by law or a court order. However, “the president, through the attorney general, may authorize electronic surveillance … to acquire foreign intelligence information” if officials obtain a warrant from a special court that operates inside the Justice Department.

    The judges of what is known as the FISA court may issue warrants for wiretaps when the government has evidence that a person is working for a “foreign power” or is involved in terrorism. This is not a high standard, legal experts say. The judges issue warrants virtually whenever the government applies for one, the Justice Department has said in the past.

    However, the law requires evidence that the wiretap target has links to a foreign government or a terrorist group. It would not permit, for example, the wiretaps of hundreds of Muslim men in the United States simply because they telephoned the Middle East.

    Top intelligence officials have in the past assured Congress that they follow the law and do not engage in secret spying. “There is a rigorous regime of checks and balances which we – the CIA, the NSA and the FBI – scrupulously adhere to whenever conversations of US persons are involved. We do not collect [information] against US persons unless they are agents of a foreign power,” then-CIA Director George J. Tenet told a House committee five years ago.

    After Sept. 11, Bush said he would use all the powers of the presidency to prevent another terrorist attack in the United States. His advisors feared then that secret Al Qaeda cells existed within the country and that further attacks were planned.

    Administration officials refused Friday to discuss the National Security Agency spying program or even to confirm its existence.

    Some former officials say it is important to put the program into the context of the time.

    “I wasn’t aware of this when I was at the White House, but there was a tremendous sense of urgency to take whatever steps were necessary to detect and disrupt any cells that were out there,” said Bradford A. Berenson, a White House lawyer during Bush’s first term. “The president was not going to let it be said that he had not used all the powers at his disposal to protect the American people.”

    This would not be the first time Bush has claimed that his power as commander in chief can override the law.

    The Constitution forbids the government from arresting and holding people in the United States without “due process of law.” Nonetheless, Bush has claimed the power as commander in chief to designate people as “enemy combatants” and imprison them indefinitely without filing charges.

    In 2002, US citizen Jose Padilla was arrested at Chicago’s O’Hare International Airport and held in military brigs for nearly three years. Civil libertarians said that was unconstitutional. His case had been heading toward the Supreme Court; the administration recently brought criminal charges against him, thereby thwarting a clear ruling on the issue.

    In the past, Congress has ratified treaties pledging that the United States and its agents will not use torture or inhumane treatment against captives. Once ratified, treaties become part of American law, according to the Constitution.

    But before this week, the White House maintained that the laws and treaties did not bind the president in handling terrorist leaders. White House lawyers wrote memos that appeared to justify the use of extreme measures – which critics called torture – in interrogating suspected terrorists.

    Civil libertarians say the latest revelations add to their frustration with the Bush administration. “If we are a nation of laws, then the president must be bound by the rule of law,” said Lisa Graves, senior counsel at the ACLU in Washington. “This is clearly in violation of FISA and a violation of the Constitution. The president, no matter who he is, does not have the power to decide which laws he will follow.

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Shocking The Conscience Of America

Posted on December 20, 2005 by Team VCS

If the events I am about to describe were taking place in a movie, or novel, I would lose my ability to suspend disbelief: Who could conceive of an American President and Vice President demanding that Congress give them authority to torture anyone, under any circumstances?

Yet that is exactly what happened. Until Congress — finally — showed some institutional pride and told Bush and Cheney that it would not tolerate torture.

To place this activity in context, I have been trying to think of a similar “un-American” low point in the American presidency. Possible candidates might include John Adams’s approval of the Alien and Sedition Act of 1798, or Abraham Lincoln’s suspension of habeas corpus during the Civil War.

But neither of these moments strikes me as sufficiently shameful. Indeed, not even Franklin Roosevelt’s horrific internment of Japanese-Americans during World War II is, in my view, as low a point as President Bush and Vice President Cheney’s call for the unrestricted, unreviewable power to torture. It seems the precedent for Bush and Cheney’s thinking resides in the Dark Ages, or Stalin’s Russia.

The Bush/Cheney presidency has been pushing the nation toward an atrocity unmatched in the annals of American infamy and ignominy. Thankfully, a few wiser men and women in Washington have saved us from the national disgrace Bush and Cheney insisted upon imposing on the nation.

If you have not been following this shameful saga, here is a brief recounting of the key events. A sensible resolution appears to be at hand.

McCain’s Torture Amendments

In October and November of 2005, Senator John McCain (R-AZ) offered amendments to the Defense Department’s authorization bill and its appropriations bill. Apparently, McCain sought to avoid having his amendments defeated based upon a parliamentary technicality. And he succeeded, attaching the amendments to both pieces of legislation.

The first McCain-sponsored amendment is titled “Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense.” It simply states that persons “in the custody or under the effective control of the Department of Defense” can only be interrogated pursuant to the United States Army Field Manual on Intelligence Interrogation. (The new edition is about to be released; let us hope it does not contain unwelcome surprises for Senator McCain, and that the Army has proceeded, here, in good faith, rather than trying to undermine the Senator’s legislation.)

The second McCain-sponsored amendment is titled “Prohibition On Cruel, Inhuman, or Degrading Treatment or Punishment of Person Under Custody or Control of the United States Government.” This provision requires individuals in the custody of, or under the physical control of, the United States Government, regardless of nationality or physical location, not be subjected “to cruel, inhuman, or degrading treatment or punishment.”

When officials in the White House leaned of these amendments, they tried to block them. Senate Majority Leader Bill Frist tried, but failed, to procedurally prevent Senator McCain from offering the amendments. Then the White House threatened that President Bush, who has not vetoed a single piece of legislation since assuming office, would veto any legislation that contained McCain’s amendments, even if it meant shutting off funds for the Department of Defense (a move that would have posed no small threat to national security).

Senator McCain, joined by former military judge and current Senator Lindsey Graham (R-SC), called the bluff of the White House, and pushed forward. The U.S. Senate voted 90 to 9 in favor of McCain’s amendments. (Senator Corzine (D-NJ), who was running for governor, was absent). The nine Senators who, with their votes, refused to prohibit torture deserve mention, for notwithstanding mealy rationalizations, their votes should haunt their political careers: Senators Allard (R-CL), Bond (R-MO), Coburn (R-OK), Cochran (R-MS), Cornyn (R-TX), Inhofe (R-OK), Roberts (R-KS), Sessions (R-AL), and Stevens (R-AK).

The Reasons For, and Importance of, The McCain Amendments

Bush has repeatedly said, “We do not torture.” Secretary of State Condoleezza Rice has repeatedly claimed the United States does not engage in “cruel, inhuman, or degrading treatment.” And CIA director Porter Goss says his agency “does not do torture. Torture does not work.”

Why, then, was it necessary to clarify the law? Because no one believes the Bush Administration on this issue. Recall the torture memos, in which the White House was defining away torture. As The Economist commented, the words of these officials count “for little when the administration has argued, first, that during time of war, the president can make just about anything legal, and, second, that the UN Convention Against Torture does not apply to interrogations of foreign terrorist suspects outside the United States.”

Senator McCain’s agenda has been clear. His first amendment is based on the military’s experiences in Afghanistan and Iraq: As he explained, “We placed extraordinary pressure of [American troops] to extract intelligence from detainees, but then threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that.”

McCain’s second amendment offers nothing new – yet is, paradoxically, extremely important nonetheless. The amendment restates what is, in fact, the law under the Universal Declaration of Human Rights, adopted by the United States in 1948; the International Covenant on Civil and Political Rights, to which the United States is a signatory; and the Convention Against Torture, negotiated by the Reagan Administration.

When ratifying the Convention Against Torture, the Senate imposed a reservation: that the implementing laws should define “cruel, inhuman, or degrading treatment” as prohibited by the U.S. Constitution’s Fifth, Eighth and Fourteenth Amendments. The Supreme Court has held that such treatment must “shock the conscience” to be beyond the pale. Strikes me that Bush and Cheney have shocked America’s conscience.

In addition, in 2004, Congress passed a bipartisan amendment to the Defense Authorization bill, reaffirming that detainees in U.S. custody could not be subject to torture or cruel treatment as those terms have been previously defined by the U.S. Government. “But since last year’s DOD bill,” Senator McCain informed his colleagues, “a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the United States.” Or as the Senator put it more bluntly, “They can apparently be treated inhumanely.”

The Bush/Cheney Administration’s reading of the law is malarkey. Judge Abe Sofaer, who negotiated the torture convention, wrote an OpEd explaining that there was never any intention to limit the torture convention to American soil. And this is another reason why McCain’s amendments are needed: The Washington Post’s report of an international network of CIA-run secret prisons raises the fear that the U.S. may, based on this distortion of the law, be torturing its prisoners whenever it finds it expedient to do so.

Common sense tells the world if Bush and Cheney did not want to engage in torture, they would not have been pulling out all the stops to block these amendments.

Stated Reasons For Opposition To McCain’s Amendments

The Administration’s public explanation for its opposition to McCain’s amendments, as made by those willing to carry sewage for them, bordered on pathetic. Senator Ted Stevens (R-AK) claimed during the Senate debate on the amendments that they would have a reverse impact, resulting in more torture.

Stevens reached this conclusion by claiming that the international teams that pursue terrorists, being aware of restrictions on Americans, would not give the United States custody of terrorists that they found. This contention is so full of holes that it is barely necessary to refute it.

Not all groups that sniff out terrorists are international. To the contrary, that is the exception to the rule. And typically, Americans command these undertakings, so the idea that prisoners accused of terrorism would be somehow taken away from America and tortured – against America’s will — by other nations is absurd.

In fact, the current practice is exactly the opposite: Through what is called “rendition,” America now allows its own suspects to be turned over to countries that torture more shamelessly, and that do not honor the kind of rights the U.S. Constitution guarantees.

McCain’s second amendment, by prohibiting torture of anyone, anywhere, who “in the custody of, or under the physical control of, the United States Government” ought to preclude rendition – and surely is intended to do so. (But clever lawyers may try to evade it with sophistry: If the U.S. truly transfers custody of a prisoner to another sovereign, is he still under the U.S.’s physical control? What if another country captures a U.S. suspect, and tortures him before turning him over?)

Reports indicated that Dick Cheney’s favorite argument – the one he makes in trip after trip to closed door meetings on Capitol Hill to get authority, at minimum, for the CIA to be able to torture — is the old “ticking bomb” argument. So frequently has this specious argument been employed to justify torture, it deserves to be shot down with more than a passing reference.

The “Ticking Bomb” Argument For Torture

The argument goes like this: A nuclear bomb has been planted in the heart of a major American city, and authorities have in custody a person who knows where it is located. To save possibly millions of lives, would it not be justified to torture this individual to get the information? Is not this lesser evil justified?

Of course it is. And this argument is a wonderful means to comfort those who have moral problems with torture. The beauty of this argument is that once you concede there are circumstances were torture might be justified, morally and legally (through what criminal law calls the defense of necessity: that an act is justified to save lives), you are on the other side of the line. You’ve joined the torture crowd.

Those who’ve invoked the argument range from Alan Dershowitz, to the Israeli Supreme Court, to the Schlesinger Report on Abu Ghraib, to the Robb/Silberman Pre-Iraq War Intelligence Report.

Most recently, and eloquently, the argument was set forth in the pages of The Weekly Standard, by Charles Krauthammer. His powerful essay, “The Truth about Torture: It’s time to be honest about doing terrible things,” received wide circulation on the internet.

With all these great minds, and moral authorities, relying on this argument, it is with some trepidation that I point out that it is phony. I do so for a number of very real reasons.

Fallacies In The “Ticking Bomb” Argument — The Clock Does Not Work

It is a rhetorical device. It is seductively simplistic, and compellingly logical. It is also pure fantasy. The conditions of ticking bomb scenarios are seldom real.

No one has more effectively probed the fallacies of this argument than Georgetown University School of Law professor David Luban. Writing in the Washington Post, in a piece entitled “Torture, American-Style,” Luban explains why, while it makes good television melodrama, this scenario does not produce critical thinking.

Professor Luban surgically dissects this argument at greater length in the October 2005 Virginia Law Review. His essay “Liberalism, Torture, and the Ticking Bomb” is very much worth the read. Citing moral philosopher Bernard Williams, Luban writes that “there are certain situations so monstrous that the idea that the processes of moral rationality could yield an answer in them is insane,” and “to spend time thinking what one would decide if one were in such a situation is also insane, if not merely frivolous.”

Indeed, shouldn’t the President, the Vice President, and those members of the Senate and House embracing the power to torture without justification, without court oversight, and without limits, look, instead, at what they are doing to us as a society? As professor Luban notes, “McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.”

Which brings us to the present situation.

Resolution Of The McCain Amendments

The House of Representatives, as far as the Republican leadership was concerned, was not willing to accept the McCain Amendments. No surprise there. Last year, Speaker of the House Dennis Hastert tried to slip a provision into a law authorizing the CIA to torture. But he got caught, and the effort died.

The House GOP leaders wanted to avoid letting this matter come to a recorded vote in the House. How many members would dare to vote for torture? Even though public opinion polls are all over the lot, as Maggie Gallagher found, when Gallup asked more specific questions, Americans recoiled.

For example, Gallup asked, “Would you be willing, or not willing, to have the U.S. Government torture known terrorists if they know details about future terrorist attacks in the U.S.?” Fifty-nine percent were not willing.

The poll asked if the following activities were right or wrong: forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours: (79 percent said this was wrong); having female interrogator make physical contact with Muslim men during religious observances that prohibit such contact (85 percent said this was wrong); threatening to transfer a prisoner to a country known to use torture: (62 percent said this was wrong); threatening prisoners with dogs (69 percent said this was wrong); using the technique of waterboarding, which simulates drowning (82 percent said this was wrong). The only 50/50 split came on sleep deprivation.

Senator McCain has been in negotiations with the House, and with the White House. Then Congressman John P. Murtha (D-Pa.) forced the issue in the House, calling for a motion to instruct the House conferee to accept the language of the McCain Amendments. “No circumstance whatsoever justifies torture. No emergencies, no state of war, no level of political instability,” Murtha, a heavily decorated and much respected veteran, said.

Only one lonely voice dared to speak on the House floor against this motion. Congressman C.W. Bill Young of Florida opposed the McCain amendments because he did not believe terrorists should have the protection of our Constitution. The argument was absurd. They already have that protection, and McCain’s amendments do not change the existing law. Young’s contention went nowhere. The vote sent a clear message to Bush and Cheney. The motion carried by 308 yeas and 122 nays. Those are 122 members of the House who have shamed themselves.

The Congress has given the Bush/Cheney White House no choice: Back down. Both the Senate and the House have told the President, if you veto, we will cram this down your throat. As Mr. Murtha put it: “No torture and no exceptions.”

Since Dick Cheney is so keen on torture, maybe he will give the nation a demonstration of waterboarding, which he does not seem to believe is cruel, inhumane, or degrading. No doubt he could be given a ticking clock to keep with him under water as well.

John W. Dean, a FindLaw columnist, is a former counsel to the president. 

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McCain says some torture justified

Posted on December 20, 2005 by Team VCS

Sen. John McCain, who pushed the White House to support a ban on torture, suggested Sunday that harsh treatment of a terrorism suspect who knew of an imminent attack would not violate international standards.

The Arizona Republican said legislation before Congress would establish in U.S. law the international standard banning any treatment of prisoners that “shocks the conscience.”

That would include, McCain said, mock executions and “water boarding,” in which a subject is made to think he is drowning.

Asked on ABC’s “This Week” whether such treatment of a terrorism suspect who could reveal information that could stop a terrorist operation would shock the conscience, McCain said it would not.

“In that million-to-one situation, then the president of the United States would authorize it and take responsibility for it,” McCain said.

“We’ve gone a long way from having that kind of scenario to having prisons around the world, to the renditions, to the things that have been done which are, in my view, not appropriate,” he said.

After months of rejecting a call for anti-torture legislation, President Bush last week accepted McCain’s proposal to ban cruel, inhuman and degrading treatment of terrorism suspects. Bush had threatened to veto any bill that contained the ban, while maintaining the U.S. did not condone torture.

“You can get into a debate about what shocks the conscience and what is cruel and inhuman, and to some extent, I suppose, that’s in the eye of the beholder,” Vice President Dick Cheney said Sunday in an interview to be broadcast Monday today on ABC News “Nightline.”

“But I believe, and we think it’s important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it’s important for us to be able to have effective interrogation of these people when we capture them.”

Cheney said he supported the compromise Bush worked out with McCain.

Abuses at Iraq’s Abu Ghraib prison and the U.S. detention center at Guantánamo Bay in Cuba, as well as reports of U.S. renditions of prisoners to countries in Europe, called into question claims that torture was neither ordered nor allowed.

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Torture Ban May Include a Backdoor

Posted on December 19, 2005 by Team VCS

U.S. President George W. Bush suffered a stinging defeat Thursday when overwhelming congressional support forced him to abandon his opposition to anti-torture legislation and reach an agreement with its sponsor, Sen. John McCain, an Arizona Republican.

The president’s reversal came after months of White House attempts — led by Vice President Dick Cheney and National Security Advisor Steven Hadley — to weaken the measure, which would prohibit the “cruel, inhuman, or degrading” treatment of any detainee in U.S. custody anywhere in the world.

The administration had been negotiating with McCain to either drop the measure or to modify it so that interrogators, especially those working for the Central Intelligence Agency (CIA), would have significant exemptions.

Bush had previously threatened to veto the bill and Vice President Cheney lobbied hard to change the McCain proposal to give interrogators more flexibility to use a range of extreme tactics on terrorism suspects.

McCain, who was tortured as a prisoner of war during the Vietnam War, made it clear that he would not change a single word in his proposal. The House of Representatives voted 308 to 122 to endorse the measure, which is an amendment to the massive defence spending bill that funds military operations in Iraq and Afghanistan. The supportive vote in the Senate was 90 to 9.

But in the deal worked out with the president, McCain was willing to add two paragraphs to give civilian interrogators legal protections that are already afforded to military interrogators. This means that civilians would be able to defend their use of interrogation tactics by arguing in court that a “person of ordinary sense and understanding would not know the practices were unlawful”.

However, experts say that if CIA or civilian personnel believe they were being directed to use an interrogation technique that was illegal, they would be obligated to disobey the order.

The new rules reportedly outlaw practices never before mentioned explicitly, such as forcing prisoners into stress positions and using police dogs. McCain hopes these will clarify unacceptable practices.

But he and other lawmakers are concerned that other additions to the Army’s Field Manual on interrogations — specifically, 10 new classified pages — may open a back door to condoning practices that McCain is trying to prohibit.

The president’s support came in an appearance with McCain in the Oval Office Thursday. “We’ve been happy to work with (Sen. McCain) to achieve a common objective, and that is to make it clear to the world that this government does not torture and that we adhere to the international convention [on] torture, whether it be here at home or abroad,” Bush said.

“We’ve sent a message to the world that the United States is not like the terrorists,” McCain added at the joint appearance.

“We are a nation that upholds values and standards of behaviour and treatment of all people, no matter how evil or bad they are. And I think that this will help us enormously in winning the war for the hearts and minds of people throughout the world.”

But the deal did not garner unanimous support. Rep. Duncan Hunter, a California Republican who is chairman of the powerful House Armed Services Committee, threatened yesterday to block the legislation unless the White House provides him with a written assurance that it would not interfere with the ability of intelligence officials to carry out their missions.

The Bush-McCain deal won applause from human rights groups.

“We’ve come a long way as a country since 9/11, and this development is a sign of that,” said Tom Malinowski, Washington advocacy director for Human Rights Watch. “We’ve gone from a sense of ‘anything goes’ to a recognition that torture hurts America even more than it hurts the enemy.”

But human rights advocates were already looking beyond McCain’s victory to a separate proposed amendment by Sen. Lindsey O. Graham, a South Carolina Republican and a former military judge, which would eliminate certain rights of detainees held at the U.S. facility at Guantanamo Bay, Cuba.

The Graham amendment would prevent detainees from using U.S. courts to invoke the right of habeas corpus to contest their treatment, including claims that they have been tortured. It would also effectively allow the U.S. government to indefinitely detain people at Guantanamo based on evidence obtained through “coercion”.

Tom Wilner, a lawyer who represents a group of Kuwaiti detainees at Guantanamo Bay, told the Washington Post that the Graham amendment would make McCain’s prohibition against torture essentially unenforceable, by giving U.S. troops an incentive to engage in coercive interrogations of detainees, without fear of being held liable.

The significance of the suspension of habeas corpus is likely to be a major congressional concern as debate continues.

According to Brian J. Foley, a professor at the Florida Atlantic School of Law in Jacksonville, “Our lawmakers are deluded, and are deluding us into believing, that excluding the courts from addressing prisoners’ claims about their treatment, which includes claims that they have been tortured, will somehow help us in the so-called war on terror.”

“It won’t, and it can’t. Instead, allegations about torture will be both unprovable and, importantly, un-disprovable, which will give propaganda fodder to our enemies.”

He told IPS, “Dangerously, the executive branch will be un-checkable, which will prevent us from knowing whether the president is actually fighting terrorists or merely beating confessions out of hapless, innocent men who were rounded up near a battlefield or sold to U.S. forces for a bounty — quite possibly by the real terrorists — and simply telling us we’re ‘winning the war’.”

It is generally acknowledged that mistaken identity has been a problem at Guantanamo Bay. More than 800 prisoners were initially taken there for detention. That number is now down to slightly more than 500.

The Defence Department will not comment in detail on the disposition of those who are no longer there, but it has been widely reported that some have been sent back to law enforcement authorities in their home countries for further detention. Others have simply been released, presumably because the government had no evidence that they were terrorists.

Some continue to be held through what appears to be administrative incompetence. For example, U.S. forces freed Saddiq Ahmad Turkistani from a Taliban prison in Kandahar, Afghanistan, in late 2001. He told reporters that he had been wrongly imprisoned for allegedly plotting to kill Osama bin Laden.

He professed hatred for al Qaeda and the Taliban — groups he said tortured him in prison — and offered to help the United States. Though cleared by U.S. officials, Turkistani was first taken to a U.S. military base in Afghanistan, and then sent to Guantanamo Bay.

Unlike many others prisoners at Guantanamo, he was not captured on the battlefield, nor was he a suspected terrorist. He was arrested in the “fog of war” that marked the early days of the U.S. war in Afghanistan. Though he was a potential ally, he found himself unable to challenge his detention.

Nearly four years later, Turkistani remains imprisoned at Guantanamo Bay, despite being cleared for release early this year after a government review concluded he is “no longer an enemy combatant”.

Turkistani’s lawyers and some U.S. officials speculate that he has been held by mistake. They say he remains incarcerated because the United States simply does not know what to do with him. (END/2005)

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America’s Anti-Torture Tradition

Posted on December 19, 2005 by Team VCS

It is nice that the Bush administration has finally been pressured into backing a ban on cruel and inhumane treatment of prisoners. But what remains shocking about this embarrassing and distasteful national debate is that we had to have it at all. This administration’s newfound enthusiasm for torture has not only damaged our international reputation, it has shattered one of our proudest American traditions.

Every schoolchild knows that Gen. George Washington made extraordinary efforts to protect America’s civilian population from the ravages of war. Fewer Americans know that Revolutionary War leaders, including Washington and the Continental Congress, considered the decent treatment of enemy combatants to be one of the principal strategic preoccupations of the American Revolution.

“In 1776,” wrote historian David Hackett Fischer in “Washington’s Crossing,” “American leaders believed it was not enough to win the war. They also had to win in a way that was consistent with the values of their society and the principles of their cause. One of their greatest achievements … was to manage the war in a manner that was true to the expanding humanitarian ideals of the American Revolution.”

The fact that the patriots refused to abandon these principles, even in the dark times when the war seemed lost, when the enemy controlled our cities and our ragged army was barefoot and starving, credits the character of Washington and the founding fathers and puts to shame the conduct of America’s present leadership.

Fischer writes that leaders in both the Continental Congress and the Continental Army resolved that the War of Independence would be conducted with a respect for human rights. This was all the more extraordinary because these courtesies were not reciprocated by King George’s armies. Indeed, the British conducted a deliberate campaign of atrocities against American soldiers and civilians. While Americans extended quarter to combatants as a matter of right and treated their prisoners with humanity, British regulars and German mercenaries were threatened by their own officers with severe punishment if they showed mercy to a surrendering American soldier. Captured Americans were tortured, starved and cruelly maltreated aboard prison ships.

Washington decided to behave differently. After capturing 1,000 Hessians in the Battle of Trenton, he ordered that enemy prisoners be treated with the same rights for which our young nation was fighting. In an order covering prisoners taken in the Battle of Princeton, Washington wrote: “Treat them with humanity, and let them have no reason to Complain of our Copying the brutal example of the British Army in their treatment of our unfortunate brethren…. Provide everything necessary for them on the road.”

John Adams argued that humane treatment of prisoners and deep concern for civilian populations not only reflected the American Revolution’s highest ideals, they were a moral and strategic requirement. His thoughts on the subject, expressed in a 1777 letter to his wife, might make a profitable read for Dick Cheney and Donald Rumsfeld as we endeavor to win hearts and minds in Iraq. Adams wrote: “I know of no policy, God is my witness, but this — Piety, Humanity and Honesty are the best Policy. Blasphemy, Cruelty and Villainy have prevailed and may again. But they won’t prevail against America, in this Contest, because I find the more of them are employed, the less they succeed.”

Even British military leaders involved in the atrocities recognized their negative effects on the overall war effort. In 1778, Col. Charles Stuart wrote to his father, the Earl of Bute: “Wherever our armies have marched, wherever they have encamped, every species of barbarity has been executed. We planted an irrevocable hatred wherever we went, which neither time nor measure will be able to eradicate.”

In the end, our founding fathers not only protected our national values, they defeated a militarily superior enemy. Indeed, it was their disciplined adherence to those values that helped them win a hopeless struggle against the best soldiers in Europe.

In accordance with this proud American tradition, President Lincoln instituted the first formal code of conduct for the humane treatment of prisoners of war in 1863. Lincoln’s order forbade any form of torture or cruelty, and it became the model for the 1929 Geneva Convention. Dwight Eisenhower made a point to guarantee exemplary treatment to German POWs in World War II, and Gen. Douglas McArthur ordered application of the Geneva Convention during the Korean War, even though the U.S. was not yet a signatory. In the Vietnam War, the United States extended the convention’s protection to Viet Cong prisoners even though the law did not technically require it.

Today, our president is again challenged to align the conduct of a war with the values of our nation. America’s treatment of its prisoners is a test of our faith in our country and the character of our leaders.

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Bush Gesture to McCain: Less than Meets the Eye

Posted on December 17, 2005 by Team VCS

    In deciding not to follow through on his threat to veto Sen. John McCain’s amendment against torture, Bush actually surrendered very little. Torture is still in the eyes of the beholders in the defense and intelligence communities.

    The unseemly spectacle of Vice President Dick Cheney and President George W. Bush openly opposing the McCain amendment banning torture for a torturous five months has done irreparable harm to America’s standing abroad. The damage will not be attenuated by the president’s reluctant acquiescence to the McCain amendment yesterday. The most that can be said is that the harm would have been still greater if McCain caved in to Cheney’s incredibly obtuse opposition, or if Bush had to veto must-pass defense legislation in order to defeat the amendment.

    The Bush-McCain compromise changes very little. The interrogation practices banned are limited to those not authorized by the United States Army Field Manual on Intelligence Interrogation, which can be – is being – revised. The New York Times reported on Wednesday that the Army has approved a 10-page secret addendum to the Army field manual, a move that one Pentagon official described as “a stick in McCain’s eye.” McCain’s chief of staff minced no words in describing the move as “politically obtuse” and undertaken without “one molecule of political due diligence.”

    The new manual, to be issued this month, spells out authorized interrogation techniques, but these remain classified. Having faced down Cheney, it will be interesting to see if McCain’s courage extends to facing down Defense Secretary Rumsfeld’s transparent attempt to vitiate the amendment. Or will McCain and his congressional colleagues settle for a Potemkin-village-type victory, and leave the field for the clever lawyers around Cheney and Rumsfeld. The pleasant noises that McCain was making yesterday and premature comments of eager-to-please Jane Harmon, vice-chair of the House Intelligence Committee, suggest that, in the end, most legislators will settle for Potemkin.

    The Crooks and the Crux

    One Army officer involved bemoaned the fact that confusion persists because of lack of clarity on what constitutes torture. “‘Cruel, inhuman, and degrading treatment’ is at the crux of the problem,” he said, “but we’ve never defined that.”

    The section of the McCain amendment applying to CIA and other civilian interrogators also hinges on what qualifies as cruel, inhuman and degrading treatment, but the amendment’s attempt to define it by referring to provisions in the US Constitution and the UN convention against torture leaves ample room for ambiguity and wide interpretation.

    Attorney General Alberto Gonzales said yesterday that the dispute between the White House and McCain was over “what constitutes cruel, inhumane, and degrading treatment” and used the rhetorical device of reductio ad absurdam, pointing out, “In some countries … those words mean you can’t even insult someone when you question them.” Appearing on CNN, Gonzales added:

    “Congress has defined what torture is, and it is intentional infliction of severe – I emphasize the word severe – intentional infliction of severe physical or mental pain or suffering.”

    Gonzales would not say whether this definition would include waterboarding. Those watching CNN will not have much reason to believe that anything has changed.

    National Security Adviser Stephen Hadley said yesterday that his negotiations with McCain centered on providing legal protection for interrogators. McCain had said earlier that granting such protection would undermine his amendment, but under the compromise with the White House, CIA officers and other civilians accused of abuse in interrogation would be able to argue that they believed they were obeying a legal order and would have the right to government counsel. In practice, this will make it very difficult to hold anyone accountable in US courts. A prosecutor would have to prove that a higher-up’s orders were so unreasonable that they fit the category of Nazi atrocities.

    No effort has been made to disguise what lies behind the administration’s position. Even Republican Sen. Lindsey Graham, a lawyer who has been considered a moderate on the issue of torture, has conceded that the “problem” is to find a way to protect interrogators who go too far. Perhaps it is my lack of legal training, but I do not think one can square this circle. There remains too much of a disconnect, for example, between the “we-do-not-torture” rhetoric and, for example, Gonzales’s refusal to rule out waterboarding.

    Other Fallout
• Dick Cheney, dubbed “Vice President for Torture” by the New York Times has been dealt a resolute rebuff. His open advocacy of torture, coming on the heels of the indictment of his chief of staff, has put a huge chink in his armor. Today’s revelations that he played a key role in the latest scandal, the use of the National Security Agency for warrant-less eavesdropping on US citizens, could be strike three. Despite the president’s protestations that the two have never been closer, Bush may soon be forced to put a considerable distance between himself and his éminence grise.

• The imperial presidency has been struck a blow – not fatal yet, but nonetheless damaging. Congress has summoned the courage to face Cheney and the president down, at least overtly, and that chips away at the image of invulnerability carefully cultivated by the administration. Congress people and Senators seem newly aware that their oath is to the Constitution, not the White House, and this can spell big trouble in the months ahead.

• The press is beginning to act like a responsible fourth estate. True, the New York Times sat on the NSA story for a whole year, but it was published before the final vote on the so-called Patriot Act – perhaps even in time to have some impact.

• After two years of intimidation by what happened to Ambassador Joseph Wilson and his wife Valerie, patriots within the national security establishment are showing a new willingness to reveal abuses to the press. “According to current and former intelligence officials” has become familiar attribution in major stories that blow the whistle on abuses and deceit.

• The George W. Bush White House is no longer the well-honed machine it once was. Clearly, Karl Rove and Dick Cheney are preoccupied with their legal problems, and the gaping hole left by their lack of timely advice has left the president to his own devices. His failure to do the smart thing last summer and meet with Cindy Sheehan, his identification with Cheney’s doomed stance on torture, his recent off-the-cuff appraisal of Iraqi casualties, his gratuitous remark that Donald Rumsfeld is doing “a heck of a job” (like the late Michael Brown of FEMA?) – all attest to a lack of adult supervision these days at the White House. And as Libby goes to trial, and if Karl Rove is indicted, things are likely to get still more dicey.

    Ray McGovern works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. He was a CIA analyst for 27 years and is co-founder of Veteran Intelligence Professionals for Sanity (VIPS).

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Securing America Without Destroying Liberties

Posted on December 17, 2005 by Team VCS

Remarks by US Senator Robert C. Byrd as delivered on the Senate floor. 

I believe in America. I believe in the dream of the Founders and Framers of our inspiring Constitution. I believe in the spirit that drove President Lincoln to risk all to preserve the Union. I believe in what President Kennedy challenged America to be.

    America, the great experiment of democracy, where the strong are also just, and the weak can feel secure, and the soul and promise of America stand as a beacon of freedom and a protector of liberty which lights and energizes people around the world.

    Today, sadly, that beacon is dimmed. This Administration’s America is becoming a place where the strong are arrogant and the weak are ignored.

    Yes, we hear high-flown language from this White House about bringing democracy to lands where democracy has never been. We seem mesmerized with glorious rhetoric about justice and liberty. But, does the rhetoric really match the reality of what our country has become since the heinous attacks of September 11?

    I speak of the actions of our own government, actions that have undermined the credibility of this nation around the world. These actions, taken one at a time, may seem justified. But taken as a whole, they form an unsettling picture and tell a troubling story.

    Do we remember the abuses at Abu Ghraib? They were explained as an aberration.

    Do we remember the abuses at Guantanamo Bay? They were denied as an exaggeration.

    Now, we read about this so-called policy of ‘rendition’ – a policy where the US taxpayers are funding secret prisons in foreign lands. What a word – rendition. It sounds so vague, almost harmless. But the practice of “rendition” is abhorrent. The Administration’s practice of ‘rendition’ is an affront to the principles of freedom – the very opposite of principles we claim we are trying to transplant to Iraq and other rogue nations.

    The Administration claims that “rendition” is a valuable weapon in the war on terror. But, what is the value of having America’s CIA sit as judge and jury while deciding just who might be a threat to our national security? Such determinations receive no review by a court of law. The CIA simply swings into action, abducts a person from some foreign country, and flies them off to who-knows-where. With no judicial review of guilt or innocence, a person can be held in secret prisons in unnamed countries, or even shipped off to yet another country to face torture at the hands of the secret police of brutal governments.

    Is this the America that our Founders conceived? Is this the America of which millions dream dreams? Is this the beacon of freedom inspiring other nations to follow?

    The United States should state clearly and without question that we will not torture prisoners and that we will abide by the treaties we sign. To fail to do so is to lose the very humanity, the morality, that makes America the hope for individual liberty around the world. The disgusting, degrading, and damaging practice of rendition should cease immediately.

    “It’s not about who they are. It’s about who we are.” Those are the words of my colleague, Senator John McCain. Senator McCain is a senior member of the Senate Armed Services Committee. He is a former prisoner of war, and he is exactly right.

    There is no moral high ground in torture. There is no moral high ground in the inhumane treatment of prisoners.

    Our misguided, thuggish practice of “rendition” has put a major blot on American foreign policy, and now comes this similarly alarming effort to reauthorize the Patriot Act retaining provisions which devastate many of our own citizens’ civil liberties here at home. What is happening to our cherished America? Any question raised about the wisdom of shredding Constitutional protections of civil liberties with roots that trail back centuries is met with the disclaimer that, “the world has changed” and that the 9-11 attacks are in effect a green light to trash the Constitution. To seize private library records, to search private property without the knowledge of the owner, to spy on ordinary citizens accused of no crime in a manner which is a sick perversion of our system of justice must not be allowed. Paranoia must not be allowed to chip away at our civil liberties. The United States of America must not adopt the thuggish tactics of our enemies. We must not trash the Fourth Amendment because the United States Senate is being stampeded at the end of a congressional session.

    Government fishing expeditions with search warrants written by FBI agents is not what the Framers had in mind. Spying on ordinary unsuspecting citizens without their knowledge is not what the Framers had in mind. Handing the government unilateral authority to keep all evidence secret from a target so that it may never be challenged in a court of law is not what the Framers had in mind. Yesterday we heard reports that the military has spied on Americans simply because they exercised their right to peaceably assemble and to speak their minds. Today we hear that the military is tapping phone lines in our own country without the consent of a judge. Labeling civil disobedience and political dissent as “domestic terrorism” is not what the Framers had in mind.

    Our nation is the most powerful nation in the world because we were founded on a principle of liberty. Benjamin Franklin said that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Our founding fathers, intent on addressing the abuses they have suffered at the hands of an over zealous government, established a system of checks and balances, ensuring that there is a separation of powers within government, so that no one body may run amok with its agenda. These checks are what safeguard freedom, and the American people are looking to us now to restore and protect that freedom.

    So many have died protecting those freedoms. We owe it to those brave men and women to deliberate meaningfully, and to ultimately protect those freedoms Americans cherish so deeply. The American people deserve nothing less.

    Earlier today, the Senate voted to stop a bill that would have allowed the abuses of American civil liberties to continue for another four years. The message of this vote is not just about the Patriot Act: it is a message that the Senate can stand up against an over-reaching executive that has sacrificed our liberties and stained our standing in the world.

    The Patriot Act has gone too far. Secret renditions should be stopped. Torture must be outlawed. Our military should not spy on our own people. The Senate has spoken: let us secure our country, but not by destroying our liberties.

    Thank God for checks and balances. Thank God for the United States Senate.

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