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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, July 26, 2006

Celebrating UN deaths - acknowledging civil wars - blocking judicial review

(updated below - updated again - and updated again)

Several items of note:

(1) Here's another item to discuss in the next newspaper article about the "Angry Left": members of the Little Green Footballs community last night celebrate the death by Israeli bombing of four UN peacekeepers (UPDATE - the proprieter of LGF is apparently (and understandably) embarrassed by the comments appearing on his site and has therefore re-directed the link I had to that page to another blog. He has not, however, removed the comments from his blog).

5- I would not put it against the Israelites, nor hold it against them, to have targeted this position based on the revelation, yesterday, that Indian UN 'peacekeepers' were complicent in the kidnapping/murder of Israelites, earlier.

20 - Too bad Kofi wasn't there, too.

22 - So what is Koffi going to do about it even if they did? I understand the paper cuts from a strongly worded letter can really hurt if desert sand gets in them. We are all at war with the UN, time to admit it.

37- I'm finding it hard to feel bad for these so-called peacekeepers. Most of them blindly shilled for Hezbollah while attacking Israel.

I do not believe that Israel intentionally targeted them, but even if they did, their anti-Israeli propaganda made them a fair target in this war. Much like the trial and execution of people like Lord Haw Haw and Tokyo Rose. Anything that would help bolster Hezobllah's morale has to be seen as a weapon.

38 - I know it sounds a bit harsh, but I wish that it were deliberate, and that Israel came right out and said so.

All the UN seems to do is rape children, enable terrorists and act openly hostile towards Israel, If I'm Israel, I say any UN 'Peacekeeping' teams in the region will also be subject to attack.

63 - On the other hand, who could blame Israel for not shedding great big tears for the blue-helmeted terror enablers?

70 - I never wish death on anybody (well, most anybody) and it is a tragedy that two people died but...

I be laughing my ass off if somebody launched one right in Kofi's office while he was groping his secretary.

That was just from the first 100 comments (more here). Consider the mindest required to celebrate the death of U.N. peacekeepers. It's time for another news article on the Angry Left.

(2) Don Rumsfeld gave a little noticed press briefing yesterday after meeting with the Iraqi Prime Minister and, rather remarkably, refused to deny that Iraq is in the midst of a "civil war" (but he explained that whatever one wants to call it, it's not all that bad, because it's only raging wildly and uncontrollably in 3 of 17 Iraqi provinces):

Q. Is the country closer to a civil war?

SEC. RUMSFELD: Oh, I don't know. You know, I thought about that last night, and just musing over the words, the phrase, and what constitutes it. If you think of our Civil War, this is really very different. If you think of civil wars in other countries, this is really quite different. There is -- there is a good deal of violence in Baghdad and two or three other provinces, and yet in 14 other provinces there's very little violence or numbers of incidents. So it's a -- it's a highly concentrated thing. It clearly is being stimulated by people who would like to have what could be characterized as a civil war and win it, but I'm not going to be the one to decide if, when or at all.

If even Don Rumsfeld acknowledges the possibility that Iraq now has a civil war, that is a rather potent indication of what is going on in that country.

(3) The significance of the Bush administration's defeat last week in the EFF/AT&T federal court case was illustrated by yesterday's dismissal by a federal court in Chicago of a different lawsuit brought by the ACLU against AT&T, this one challenging the legality of AT&T's cooperation with the Bush administration's domestic telephone data-collection program. The Bush administration, as always, invoked the "state secrets" doctrine in this case to claim that the federal court could not litigate the claims without risking disclosure of state secrets, and the federal judge accepted -- as federal judges almost always do -- the administration's assertion that "state secrets" would be revealed merely by AT&T's confirmation or denial of their participation in this program. That is why it was so remarkable when the EFF/AT&T judge outright rejected that claim last week -- because it was such a rare departure from the federal courts' deference to the executive's invocation of this doctrine.

This Chicago case presented a more difficult challenge than did the EFF case for the plaintiffs to overcome the "state secrets" assertion. Whereas the NSA warrantless eavesdropping program has been confirmed by the administration (thereby making it hard to argue that its existence is a "state secret"), the administration has never confirmed the existence of the data-collection program. Nonetheless, well-sourced news reports, along with Republicans in Congress, have confirmed the existence of this likely illegal effort to chronicle all domestic calls made or received by all Americans. But the administration has, yet again, prevented a judicial determination as to whether its behavior is legal.

The administration plainly believes that it is entitled to engage in conduct which violates the law while blocking courts from ruling on the legality that behavior. What is the point of having laws if political officials can violate them and then immunize themselves from being held accountable in a court of law -- as the Bush administration, at least thus far, has successfully done?

(4) It is difficult to chronicle at once all of the dangers and abuses of the Specter FISA bill because they are so numerous. One of the more pernicious aspects of it that has been overlooked is that, as Bill Weaver points out, it mandates that all legal questions surrounding warrantless eavesdropping -- including the question of its constitutionality -- be decided by the FISA court, which means that (a) only one side will be present in court to argue these issues (the Bush administration) and (b) all proceedings, including the decision itself, may very well be secret.

It is one thing for specific warrant applications to be conducted in secret, with only one side present, and with even the decision itself always sealed from the public -- the standard operating procedures for the FISA court. But those procedures are so plainly inappropriate for deciding critical questions of constitutional law which determine the protections guaranteed by the Bill of Rights to all Americans against the Government. The parameters of the Fourth Amendment and decisions as to whether our highest government officials have been continuously violating it cannot possibly be determined in secret and then kept secret from American citizens.

But that is what would likely happen with the Specter bill. Add that to the list of reasons as to why defeat of the Specter bill is so urgent.

UPDATE:

(5) Oddly, the very pro-Israel New York Sun says that the Israel-U.N. incident "could prove a turning point in Israel's war to rid its northern border of Hezbollah." I don't see why that would be the case. Almost every war has incidents of this sort. The U.S. bombed the Chinese embassy in Belgrade, killed a group of Canadian troops in Afghanistan in an F-16 strike, and shot missiles at media offices in Baghdad. Incidents of this type are not uncommon.

Additionally, it was somewhat surprising that Kofi Annan would so quickly and impulsively make such serious accusations against Israel -- namely, that the bombing of the U.N. observation post was "deliberate," rather than accidental. That may well be the case, but it may very well not be, and it is hard to see how Annan could know that already.

Either way, I don't see how this incident will have much of an effect on what Israel is doing. Those who were already opposed to Israel's conduct will use this incident to confirm their views, and those who defend Israel's conduct will simply dismiss its importance as an unfortunate and inevitable part of war, and they'll blame Hezbollah (and the ambitious ones will blame Syrian and Iran). Israel and the U.S. have already decided that world opinion will not impede what they are doing here, rendering this incident inconsequential, at least in terms of the effect it will have on the war.

UPDATE II:

(6) As Steve Benen notes, the The Washington Post this morning has published an editorial responding to Arlen Specter's frivolous Op-Ed on Monday. The whole editorial is devoted to explaining basic constitutional law principles to Specter and warns: "would thereby legitimize not only whatever the NSA may now be doing but lots of other surveillance it might dream up." For whatever reasons, Democratic Senators listen to the Post editorial page, and if the Post is going to be serious and devoted in its opposition to that bill, that would unquestionably be helpful in inducing the Senate Democrats to consider a filibuster.

UPDATE III:

(7) I wouldn't say that this factual account of the Israeli bombing from the Guardian justifies Kofi Annan's accusation that the bombing was "deliberate" -- that is an accusation which ought not to be made absent definitive proof, especially in such volatile circumstances -- but if the facts in the Guardian story are accurate, it would certainly lend support to the claim that the Israelis were, at the very least, completely reckless with regard to the lives of the U.N. peacekeepers.

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