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Tuesday, December 20, 2005

Trust

Today we return to the creed of the radical right’s defense of domestic spying, “I trust in the Bush admin’s good faith and in the process that led up to authorization of the program.” I don’t imagine that I have to work very hard to convince readers of this humble—but never credulous—blog that anyone who utters such a sentence in 2005 should not be trusted with any task more consequential than ordering pizza.  But because national security inevitably involves matters about which government cannot be perfectly transparent, it is not unreasonable to expect ordinary citizens to have some level of trust in their leaders regarding foreign and domestic intelligence to which we have no access (even if we do have a couple of “friends” in intelligence).  So for now, I’m going to pretend that the burden of argument is on me to explain why I don’t trust the Cheney Administration with any secret powers.

The first reason has to do with the law itself:  as Russ Feingold points out,

• FISA established a secret court that could issue wiretap orders if the government showed probable cause that the individual to be tapped is an “agent of a foreign power,” meaning he or she is affiliated with a foreign government or terrorist organization. This is an easier standard to meet than the criminal wiretap standard, which requires that there be: (1) probable cause that the individual to be tapped has committed, is committing, or is about to commit a crime, and (2) probable cause that communications concerning that crime will be obtained through the electronic surveillance.

• In the 27 years since it was established, the FISA court has turned down only a handful of applications for wiretap orders. The number of approved FISA wiretap orders has jumped since September 11, 2001, with 1,754 FISA orders issued last year, up from 934 such orders in 2001.

• FISA already addresses emergency situations where there is not time to get pre-approval from the court. It includes an emergency exception that permits government agents to install a wiretap and start monitoring phone and email conversations immediately, as long as they then go to the FISA court and get a court order within 72 hours.

(The full text of Feingold’s statement is up at TalkLeft.) FISA already gives any administration all the tools it needs to conduct surveillance of anyone suspected of being an “agent of a foreign power.” The Federal Intelligence and Surveillance Courts are “non-adversarial”; there are no challenges to any case brought before them by the government, and, as you can see, they almost always approve applications for wiretap orders.  So the idea that the radical-right Cheney Administration needed some extra-FISA authorization for really fast, really secret surveillance is simple nonsense.  Any person making such a claim is a person I do not trust, and any government making such a claim is a government I do not trust.

The idea that FISA speaks or belongs to a “pre-9/11” world is especially disingenuous.  Exactly how is FISA’s emergency exception inadequate to the world after 9/11?  It permits the government to begin surveillance immediately.  To make the kind of case Condoleezza Rice tried to make this past Sunday, you would have to argue that the Cheney Administration needed to bypass FISA in order to go back in time and install wiretaps before they decided to do so.

But there’s another reason I don’t trust the Cheney Administration, quite apart from its production of faux-news reporters and programs, its doctoring of scientific reports on the environment, its delusional claims of Iraqi WMD and Saddam’s links to al-Qaeda, and its response to natural disasters in the Gulf Coast in non-election years.  That reason is Jose Padilla.

Now, sometimes I’m as gullible as the next fellow.  (Just ask him!  He’ll tell you.) When the Department of Justice first announced its apprehension of Padilla, I got the impression that John Ashcroft himself had intercepted Padilla on his way to Dupont Circle, about to detonate a dirty bomb that would kill millions.  (Am I alone in this?  I need to ask the next fellow.  Do you get that impression too?) Only gradually did I learn that although Padilla was, in Bush’s words, “a bad guy” who may have had very, very bad thoughts, his dirty bomb was not about to go off in any American city anytime soon.  Instead, Padilla, for all his thuggery and all his contacts with al-Qaeda abroad, seems not to have gotten past the stage of having ideas for dirty-bomb-related program activities.  Nevertheless, this did not stop the Cheney Administration from adducing Padilla as Exhibit A in the domestic front of the War on Terror:

WASHINGTON (CNN)—President Bush on Tuesday plans to highlight the disruption of an alleged “dirty bomb” plot as proof of his view that government agencies are cooperating effectively to fight the terrorist threat, officials said. . . .

According to his prepared remarks, the president will make the case that having the intelligence analysis in the same department as the agencies that would respond to threats will streamline the government’s response time and reduce the possibilities for delay and confusion.
In those remarks, Bush refers to the arrest of Padilla as proof that his directives to improve coordination between the CIA, FBI and other government agencies “are yielding results.”

Remember those wild and crazy days of May-June 2002?  Padilla was the very first American citizen we nabbed in the post-9/11 world, and the Cheney Administration wasted no time or effort in trumpeting his arrest to that world.  Indeed, as you’ll recall, Padilla was deemed to be so dangerous that he was held for over three years without legal representation and without being charged with a crime.  So while we mourn the Cheney administration’s shredding of the fourth amendment, folks, let’s take a moment of silence to remember the passing of the fifth, as well.  You know, the bit about not being deprived of life, liberty, or property, without due process of law.

Exactly how close was Padilla to detonating his bomb?  Lewis Koch, writing in the Bulletin of Atomic Scientists, explains just what it takes:

The richest source of radioactivity is spent fuel rods. But spent nuclear rods are not exactly lying around like piles of abandoned automobiles. Terrorists looking to get the “dirt” for a dirty bomb from spent nuclear fuel rods would have to get them from a nuclear facility.

Putting aside the controversy surrounding security at U.S. nuclear power plants, a would-be dirty bomber faces a Herculean task. A spent fuel rod weighs about 28 kilograms, with 36 rods weighing more than a metric ton. Heavy shielding and remote controls are required in their handling, because each rod exposes anyone standing nearby (within a meter) to a lethal dose within seconds. To prevent a quick death from radiation, the thieves would need to encase the rods in a 40-plus-ton, lead-lined shipping cask (18 rods will fit in one cask) and use shielding and remote handling equipment to move the rods at every stage of the operation. After securing the rods in a protective cask, the thieves would need to move them to a location where they could be matched with explosives, then move them to the target site. All that shuttling means the gang would need a specialized truck built to handle the rods and cask. These trucks are, as one can imagine, large, cumbersome, slow-moving, and easily identifiable—not exactly stealthy.

Now, don’t get me wrong here.  I’m not suggesting that we should have waited until Padilla and his friends (if he had any) had collected a dozen or more rods and put down a rental deposit on a large, cumbersome, specially designed truck.  This humble and law-abiding blog will not become the online headquarters of Free José Now.  On the contrary, I think Padilla should have been charged and tried a long time ago, and it would be OK with me if he were convicted on conspiracy charges, too.  But that’s not my point.  My point is this:  based on how the Cheney Administration handled the arrest of Padilla, I don’t believe they’ve used their extra-FISA powers to apprehend a bunch of Padillas we don’t know about in the intervening years.  Everything about the Cheney Administration tells me that if they had uncovered more “agents of a foreign power” like Padilla, they’d have wasted no time in making the announcement, crediting themselves with having averted death and terrible devastation, and designating their would-be terrorist as an enemy combatant.  Honestly, they’re not shy about doing things like that.

So I tend not to think that the Cheney Administration needs super-secrecy in order to do lots of good anti-terrorist deeds they can’t tell us about.  Quite apart from the fact that they didn’t need to evade FISA to apprehend Padilla in the first place, there’s the fact that they used his arrest—and deprived him of certain rights we once considered inalienable in this country—as part of a PR campaign for their version of the post-9/11 world.  And that version looks like this:  as Lewis Koch writes,

The government’s case rests on an unusual argument. The spokesman for the Justice Department’s Criminal Division, Bryan Sierra, contends that U.S. Code 18, section 4001(a), which reads, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” provides no check on the president’s powers as commander in chief. Instead, Sierra cites section 4001(b)(1), which reads, “The control and management of federal penal and correctional institutions, except military or naval institutions, shall be vested in the attorney general.” And to whom does the attorney general report? The president. In other words, in the Justice Department’s tortured logic, as commander in chief, the president is not bound by Congress’s rules on imprisonment and detention.

This is a radical-right government at work, folks.  It specializes in tortured logic, just as it specializes in torturing suspects until they tell them whatever the Cheney Administration wants to hear.

And for lack of a steady supply of more Jose Padillas right here in the land of the free, your radical-right government has been snooping into interlibrary loan, interrogating college students [12/24:  nope, it turns out they haven’t been doing that—check the new link] and threatening scholars and publishers with “grave legal consequences for editing manuscripts from Iran and other disfavored nations.” I know, it’s sometimes too much to think that it’s really happening here.  But I believe that’s no excuse for being so foolish as to trust this government with anything as serious as national security, and I also believe I’m not alone in this belief.

Posted by Michael on 12/20 at 01:00 PM
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