Saturday, December 24, 2005

Another day, another revelation

I am happy that the torture story has stayed in the news, especially since Secretary of State Rice's recent visit to Europe, where she gave a non-denial denial that secret prisons exist and that the U.S. kidnaps people and has them tortured. It seems like every day now there is a new story about the U.S. spying on Americans without warrants; or torturing detainees; or lying about it.

Here are a couple new ones:

22 Purported CIA Operatives Accused of Kidnapping Imam
An Italian court has issued European arrest warrants for 22 purported CIA operatives accused of kidnapping a radical imam in Milan, and expanded the dragnet for the suspects to 25 countries, a prosecutor said today.
The abduction is one of several controversial cases in which American intelligence agencies are suspected of using European soil and airspace to imprison or to transport terror suspects to third countries without judicial authorization. These so-called extraordinary renditions are one of the most controversial elements of the Bush administration's efforts to fight terrorism.
In the Italian case, 22 CIA operatives including the Milan station chief were accused of snatching Hassan Osama Nasr, a Muslim cleric better known as Abu Omar, as he walked to a mosque in Milan nearly three years ago.
He was spirited away on a secret flight to his native Egypt where he was imprisoned and, he later told friends, tortured...

Berlusconi said this week that while he did not believe the CIA had kidnapped Abu Omar, he thought such an operation was completely justifiable.
"You can't tackle terrorism with a law book in your hand," Berlusconi said. "If they fight with a sword, you have to defend yourself with a sword. ... When hundreds of thousands of lives are at risk, countries have to use the secret methods and arms available to them to defend those lives.''

...The Europe-wide arrest warrant was created after the Sept. 11, 2001, attacks in the United States, designed as a way to better apprehend terror suspects who cross European borders with ease. Law enforcement agencies in member countries are obliged to detain and hand over people named in the warrants.
FBI Monitors for Radiation at Some Mosques
Federal law enforcement officials said Friday that FBI agents have secretly monitored radiation levels at mosques, businesses and homes for several years in large cities, including Los Angeles, to determine whether radioactive, or "dirty," bombs were being assembled.
The officials said no suspicious radiation levels have been found.
The disclosure, following the revelation a week ago that the government has secretly spied on U.S. citizens without court permission, angered some U.S. Muslim leaders. They cited a Supreme Court ruling three months before the Sept. 11, 2001, attacks in which the justices rejected such government monitoring...
But Justice Department officials said the monitoring was lawful. They said investigators used special equipment to gauge radiation levels at homes, businesses, warehouses and centers of some Muslim groups, and that the testing was sometimes carried out in or near parking lots and driveways — areas the government believes to be public property. The equipment also checked for chemical weapons.
They said the testing was still taking place. It was first reported Friday by U.S. News & World Report.
"This is being done in a manner that protects U.S. constitutional rights," said Brian Roehrkasse, a Justice Department spokesman. "FBI agents do not intrude across any constitutionally protected areas without proper legal authority."
...Another federal source, who asked not to be identified because the program has been secret, said government lawyers reviewed the process and found it legal for the tests to proceed without agents first seeking court authorization.
The tests are frequent and could pose grave logistical problems if court permission had to be routinely sought, he said.
"The FBI believes it has the legal authority," the official said. "A parking lot or a driveway is not necessarily private property, and our equipment is not intrusive."

In [the June 11, 2001, Supreme Court decision that found a similar monitoring program to be unlawful], government agents used thermal imaging to determine whether marijuana was being grown inside a home in Florence, Ore. The imaging device detected infrared radiation inside the house similar to that from marijuana beds, and the homeowner, Danny Kyllo, was arrested. He challenged the legality of the search.
In a 5-4 Supreme Court decision written by Justice Antonin Scalia, the court ruled that the test was an illegal search that violated the 4th Amendment.
"The surveillance is a search, and is presumptively unreasonable without a warrant," Scalia wrote.
Justice John Paul Stevens, writing a dissent, said no privacy was compromised and that the agents in Oregon gathered "information in the public domain" by operating the detection device outside the home.
Earlier this month:

12/22/05: Police Infiltrate Protests, Videotapes Show

12/21/05: Judge Reportedly Resigns Over U.S. Spy Program

12/20/05: F.B.I. Watched Activist Groups, New Files Show

12/18/05: Planted PR Stories Not News to Military: U.S. officials in Iraq knew that a contractor was paying local papers. Discretion was the key.

12/16/05: Bush Lets U.S. Spy on Callers Without Courts

12/13/05: Inquiry Details Claims of C.I.A. Prisons in Europe

12/9/05: Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim

12/6/05: German Sues Over Abduction Said to Be at Hands of C.I.A.

Wednesday, December 21, 2005

I don't get it

NY TIMES: Court Refuses U.S. Bid to Shift Terror Suspect

WASHINGTON, Dec. 21 - A federal appeals court delivered a sharp rebuke to the Bush administration Wednesday, refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges...

What made the action by the United States Court of Appeals for the Fourth Circuit in Richmond, Va., so startling, lawyers and others said, was that it came from a panel of judges who in September had provided the administration with a sweeping court victory, saying President Bush had the authority to detain Mr. Padilla, an American citizen, indefinitely without trial as an enemy combatant.

But the judges were clearly angered when the administration suddenly shifted course on Nov. 22, saying it no longer needed that authority because it now wanted to try Mr. Padilla in a civilian court. The move came just days before the government was to file legal papers in Mr. Padilla's appeal to the Supreme Court. The government said that as a result of the shift, the court no longer needed to take up the case. Many legal analysts speculated at the time that the administration's sudden change in approach was an effort to avoid Supreme Court review of the Fourth Circuit ruling.

In the opinion on Wednesday, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding Mr. Padilla's detention for more than three years in a military brig as an enemy combatant.

Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to the government's requests because that would compound what was "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."


Prof. Carl W. Tobias of the University of Richmond Law School, who has written about the government's legal strategy in terrorist cases, said that the ruling on Wednesday was an extraordinary rebuff to the Bush administration by the judicial branch.

"It's obvious that the government thought that its motion to transfer Padilla would be perfunctory," Professor Tobias said. But administration lawyers had not counted on the possibility that the appeals court judges would feel ill used in expending their institutional capital in support of Mr. Bush's action only to have the government decide that it no longer wanted the authority that it had sought so strongly.


Ms. Scolinos said the department was considering what to do in light of the court's refusal to authorize the transfer of Mr. Padilla. The likely outcome of the appeals court panel's decision, some lawyers believed, was that the Supreme Court would be obliged to consider the case.

Jonathan M. Freiman, a lawyer for Mr. Padilla (pronounced puh-DILL-ah), said that the appeals court "seems to have agreed with what we asserted in our brief, that the government has been attempting to evade Supreme Court review."

Mr. Padilla ... was arrested at O'Hare International Airport on May 8, 2002. Government officials initially portrayed him as someone who was considering a plot to explode a radioactive "dirty bomb" in some American city and then to destroy gas lines to destroy public buildings.

In the criminal indictment issued by a grand jury in Florida, the government no longer asserted either of those charges and instead charged him with fighting against American forces alongside Al Qaeda soldiers in Afghanistan.


[Judge Luttig] said the government "must surely understand" that it has left the impression that Mr. Padilla may have been held for more than three years by mistake.
Maybe I misjudged Luttig, who when first hearing the Padilla case implied that this President ( the one who warned about Saddam's "nuclear mujahideen") should be allowed to do anything he wants. I thought he was a thug who didn't care about the civil liberties of potentially innocent people. But maybe Luttig just had the extraordinarily bad sense to trust this President (the one who said, "you're doing a heck of a job, Brownie") to be a good enough judge of character to only deem guilty people enemy combatants. Maybe Luttig realizes he made a mistake when he assumed this President wouldn't make those kind of mistakes.