Category: Rule of Law

Australian Internet Censorship

The Australian government is about to introduce nation-wide internet censorship, starting with a list of upwards of 10,000 banned websites and a second tier for controversial content, like pornography.

The proposed system consists of two tiers. Under the first, all Australian service providers must block access to around 10,000 Web sites on a list maintained by the Australian Communications and Media Authority, the federal monitor that oversees film classifications.

The second tier would require service providers to provide an optional filter that individuals could use to block material deemed unsuitable for children, like pornography or violence.

The government says the list, which is not available to the public, includes only illegal content, mostly child pornography. But critics worry about the lack of transparency and say the filter could be used to block a range of morally hazy topics, like gambling or euthanasia.

I don’t know what forces are compelling the Australian government to censor the web for their citizens — though I’d take a shot in the dark and guess conservative, likely religious groups, are seeking to stop people from accessing pornography. But when even Australia’s biggest internet provider, Telstra, is opposed, you know that the idea is  coming from a very conservative place. Censorship is a blight on free societies.  When done without transparency in a medium that allows for the greatest access to information ever known to man, citizens should be very concerned. The Chinafication of western societies is happening.

Conservatives here in the US often talk about not trusting the government with the ability to adequately spend taxpayer money. I’ll say this: I am willing to place a decent amount of trust in my government knowing how to spend my money to make our country better, but as soon as the government starts making decisions about what I can and cannot know, I become very distrustful.

I just joined this Facebook group ,”We Won’t Accept It – No To Mandatory Internet Censorship In Australia” — I’d hope you do the same if oppose massive internet censorship in Australia.

Liberal Lawyers

The Washington Post has a very interesting profile of the American Constitution Society, an organization which in many ways is developing into the liberal answer to the Federalist Society. Key Obama administration nominees and appointments, including future Attorney General Eric Holder, have connections with the ACS. ACS is an important, growing institution in the liberal community. Hopefully they will continue to find ways to have impact in the law and government during the Obama administration.

Credit Where Credit Is Due

One of the things that was most frustrating working for and with Chris Dodd during the course of the FISA fight is that while the blogosphere and a few rare liberal pundits (Keith Olbermann comes to mind) gave Dodd credit for standing up to the Bush administration and defending the rule of law, the mainstream press basically ignored his role in delaying retroactive immunity for telecom companies that illegally spied on Americans. Most big outlets focused their coverage of the Democratic Senate’s actions on FISA focused on Harry Reid, Patrick Leahy (as Judiciary chair), Jay Rockefeller, and Intelligence and Judiciary committee members like Ron Wyden, Russ Feingold, and Sheldon Whitehouse. While these were all key players in the legislative process, none of them did what Dodd did (while some actively fought against Dodd’s principled and lawful stand). I attribute the refusal of organizations like the New York Times and Washington Post to give Dodd his due were based on the fact that he wasn’t on either of the relevant committees and was running a presidential campaign. They just didn’t want to give him coverage, so instead of practicing good journalism, they largely ignored Chris Dodd’s role in trying to single-handedly stop bad FISA legislation.

I write all of this as preface to a piece by Ryan Singel of Wired’s Threat Level blog that came out yesterday. In writing about the current legal fight going on over the validity of the legislation passed last summer over Dodd’s objections, Singel ends up giving Dodd the greatest degree of credit for his work I have seen coming from any mainstream media outlet. Here is the first portion of Singel’s post:

The constitutionality of retroactive immunity for telecoms that helped Bush spy on Americans got its day in court Tuesday, a little less than a year after senator Christopher Dodd all but shuttered Congress with an ultimately futile one-man stand against the idea.

Tuesday’s courtroom showdown in San Francisco lacked the fireworks of Dodd’s fiery oration, but the judge handling the case gave some indication that he may take over as the one-man anti-immunity crusader.

“In essence that gives the attorney general carte blanche to immunize anyone.” Walker said, wondering what odd creature Congress had fashioned. “What other statute is like this statute?”

Lawyers for the Electronic Frontier Foundation told Walker that Congress had no right to give the attorney general a magic wand to make cases against the telecoms go away just by telling the judge a little bit about what happened. The group is suing AT&T for helping the government spy on Americans’ internet and phone usage.

“We have a right to an injunction against the telecoms,” EFF’s legal director Cindy Cohn said. “They are the gatekeepers … They have an independent duty to protect Americans’ privacy.”

A Democratically-controlled Congress bowed to election-year political pressures in the summer, legalizing much of the formerly lawless spying and creating a get-out-jail-card for the telecoms being sued for helping with the spying. [Emphasis added]

Dodd never got the credit he deserved outside the liberal blogosphere. It’s great to see that some journalists haven’t forgotten Chris Dodd’s role in the FISA fight. I’m glad Ryan Singel took the time to write Dodd into this post; he didn’t have to, but it was the right thing to do. Credit where credit is due to both Dodd and Singel.

Continuing Prosecutions for Bush Era Crimes

Ari Melber makes a great point about outstanding questions of how the Obama administration will be able to restore the rule of law and prosecute those responsible for a number of civil liberties violations, war crimes, and anti-American acts.

The immunity crowd has one more card to play. Crimes committed on behalf of national security, they say, are different. On closer inspection, that claim also dissolves into an elitist pitch for the powerful.

The fact is that there are U.S. soldiers sitting in jail right now for what happened at Abu Ghraib.

The question is not whether to prosecute those crimes; that process has already begun. The question is whether the Bush administration correctly prosecuted the people actually responsible for the conduct — or whether the entire episode was blamed on those low on the chain of command.

This is very salient, especially given the intrinsic desire for people inside the Beltway to try and put the past behind us regardless of the consequences. There is always a desire to take any action on a situation and presume that it is sufficient to count as handling the problem.  We’re already seeing a drumbeat for Obama to put the past behind him and not investigate Bush era officialdom for their role in torture, warrantless wiretapping, and the illegal politicization of the Justice Department. Melber makes a strong case that because prosecution on some of these matters has already begun, the question should rightly be on whether they need stop with the new administration.

Continuing prosecutions of higher level Bush administration officials involves recognizing that the buck will almost never stop at a lowly grunt doing a job they weren’t trained to do. This isn’t about retribution or prosecuting the political. It’s about ensuring that there is meaningful disincentive for any other executive branch officials to ever again maintain such a casual attitude towards the law and the rule of law that they will not bow before the pressure of a White House with no moral inclination to keep the US government’s actions in line with our principles and beliefs.

Retroactive Immunity Not a Done Deal?

This is very interesting and I’d like to know more. Cindy Cohn of the Electronic Frontier Foundation was quoted in the NY Times two days ago saying that retroactive immunity for telecom companies who illegally spied on Americans with the Bush administration could be reversed under an Obama administration.

In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.

The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.

A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.

“Nothing will be over by Jan. 20,” when Mr. Obama is inaugurated, Ms. Cohn said.

If this is a possibility, I hope one of the first acts of the Obama Justice Department is to withdraw certifications of immunity from these telecom companies.

It’s also heartening to see that the good people at the EFF are still fighting to uncover the truth and maintain the rule of law in the face of the 110th Congress caving like a house of cards to the Bush-Cheney administration’s demands for retroactive immunity and the gutting of FISA. Hopefully the EFF will find friendlier partners in the Obama administration.

DHS Study: Data Mining for Terrorists Not Feasible, Un-American

Yesterday Ryan Singel of Wired’s Threat Level blog posted a remarkable story about a Department of Homeland Security study which said that data mining for terrorists was not only unfeasible, but leads to un-American outcomes.

“Automated identification of terrorists through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts,” the report found. “Even in well-managed programs, such tools are likely to return significant rates of false positives, especially if the tools are highly automated.”

The 376-page report — entitled “Protecting Individual Privacy in the Struggle Against Terrorists” — comes as a rebuke to the Bush administration’s attempts to use high-tech surveillance and data-sifting tools to prevent another terrorist attack inside the United States.

…

In particular, the report continually stresses need for the government to follow the law — a none-too-subtle reference to the government’s secret warrantless wiretapping of Americans’ communications.

The committee was comprised of a number of technical and policy experts from government contractors, tech firms and academia. The group’s official name was the Committee on Technical and Privacy Dimensions of Information for Terrorism Prevention and Other National Goals.

The committee reiterated that the government should have useful tools to fight terrorism, but that they must be useful and respect Americans’ privacy.

Now would be a great time for Senate Homeland Security Committee Chair Joe Lieberman to call hearings and investigate whether any currently classified programs are relying on data mining techniques that this DHS commission says are neither effective nor produce results in line with American principles. Of course that’s not going to happen. Even as the Department of Homeland Security itself says data mining doesn’t work and only leads to violations of Americans’ rights, we cannot expect Lieberman and his Republican cohort to demand oversight.

Were Lieberman stripped of his Committee chairmanship, I believe Tom Carper of Delaware would be next in line to be Chair (Levin and Akaka both already chair committees). Would Senator Carper hold hearings on the federal government’s use of data mining? I don’t know. But the next Congress and the next administration owe it to the American people to start turning back the clock on the Bush administration’s abuses of surveillance powers.

The Bush administration and Republicans in Congress (with frequent assists from Democrats) have thrown a lot of dubious, illegal, and ineffective techniques at the problem of stopping terrorism since 2001. Data mining is one of the most odious and it’s way past time that the powers that be stop, look around, and realize that throwing everything but the kitchen sink at a problem doesn’t work. Massive invasions of American privacy and violations of American law don’t make us safer – they reduce who we are as a country, which is exactly what our enemies have sought to do for years. Fortunately some people at DHS have identified a problem area. It’s up to Congress and the next administration to rectify it.

Truth & Accountability

The New York Times (finally) editorializes on President Bush’s knowledge and approval of US torture policies.

The amount of time and energy devoted to this furtive exercise at the very highest levels of the government reminded us how little Americans know, in fact, about the ways Mr. Bush and his team undermined, subverted and broke the law in the name of saving the American way of life.

We have questions to ask, in particular, about the involvement of Ms. Rice, who has managed to escape blame for the catastrophic decisions made while she was Mr. Bush’s national security adviser, and Mr. Powell, a career Army officer who should know that torture has little value as an interrogation method and puts captured Americans at much greater risk. Did they raise objections or warn of the disastrous effect on America’s standing in the world? Did anyone?

Mr. Bush has sidestepped or quashed every attempt to uncover the breadth and depth of his sordid actions. Congress is likely to endorse a cover-up of the extent of the illegal wiretapping he authorized after 9/11, and we are still waiting, with diminishing hopes, for a long-promised report on what the Bush team really knew before the Iraq invasion about those absent weapons of mass destruction — as opposed to what it proclaimed.

At this point it seems that getting answers will have to wait, at least, for a new Congress and a new president. Ideally, there would be both truth and accountability. At the very minimum the public needs the full truth.

Some will call this a backward-looking distraction, but only by fully understanding what Mr. Bush has done over eight years to distort the rule of law and violate civil liberties and human rights can Americans ever hope to repair the damage and ensure it does not happen again. [Emphasis added]

I challenge the NY Times editorial board to not forget this editorial nor their request for truth and accountability stemming from the Bush administration’s violations of American and international law. They are right that there will be many – Republicans, DC pundits, and calcified Democrats – that don’t want to spend time finding out what went wrong inside the Bush White House and who must be held accountable for it. In fact, I expect this position to be pushed for with deafening volume. It will be up to major media outlets like the Times to stand in the way of this desire to level down and gloss over the violations of the rule of law. Without major media outlets advocating for truth and accountability, none will take place. Again, I hope that the editors of the New York Times do not forget the words they wrote today come January, 2009.

Show Trials?

The Atlantic’s Megan McArdle thinks the Nuremberg Trials were “show trials.”

Mmmm . . . I am in no way unhappy with the outcome of Nuremberg, but my understanding is that most international lawyers regard them basically as show trials. I’m not sure they’re a great example to use.

There is an almost unfathomable level of ignorance on display here. Steven D at Booman Tribune smacks McArdle down pretty hard, but my past work for and deep respect of Senator Chris Dodd demands I say more.

The Nuremberg Trials are mostly regarded as the highest point in Western respect for the rule of law. They are the antithesis of show trials, which is incidentally what Churchill and Stalin wanted. American leadership ensured that our respect of the rule of law was what defined us, not our desire to punish an enemy who we had just defeated.

Senator Dodd’s father, Tom Dodd, was a lead prosecutor at Nuremberg. Dodd recently published his father’s living history of his experience at the trials in a living history titled Letters From Nuremberg. On the campaign trail, Senator Dodd would frequently reference Nuremberg when talking about the necessity to defend the rule of law here in America. His favorite quote, something that I have since committed to memory, was from chief American prosecutor at Nuremberg, Justice Robert Jackson:

“That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

This is the essence of the rule of law and the importance of the Nuremberg Trials. It may well be the most significant action taken by the American government in the 20th to establish ourselves as defenders of the rule of law. The Bush administration has done immeasurable damage to our standing in the world by approving policies of torture, extraordinary rendition, and secret prisons – among many, many other things. McArdle’s glib dismissal of history and law is only shocking to the extent that she purports to be a libertarian. Otherwise such a passive acceptance of the abandonment of the rule of law in America is fairly indicative of what we have seen from the American press, a fact that goes a long way to explaining why the Bush administration has not been held accountable for their lawlessness.

Congress on Congress on FISA

Today I received a joint email from Patrick Leahy and John Conyers asking their supporters to contact the local newspapers and ask them to write in support of the House version of FISA reform legislation and against retroactive immunity for big telecom companies that helped the Bush administration spy on Americans without warrant. I always love it when I see incumbent Democrats use their email lists not for fund raising, but for activism on pressing issues in Congress. I think the Dodd campaign really helped define the extent to which this sort of activism is both possible and effective – and I’m glad to see other good Democrats take these lessons and apply them today.