Scandal Alert: Congress Is Quietly Abandoning the 5th Amendment

The Atlantic
Conor Friedersdorf

Meet the prominent legislators who think it's okay to throw Americans in jail forever without charges or trial.

Reuters

What everyone must understand is that American politics doesn't work the way you'd think it would. Most people presume that government officials would never willfully withhold penicillin from men with syphilis just to see what would happen if the disease went untreated. It seems unlikely that officers would coerce enlisted men into exposing themselves to debilitating nerve gas. Few expected that President Obama would preside over the persecution of an NSA whistle-blower, or presume the guilt of all military-aged males killed by U.S. drone strikes. But it all happened.

Really thinking about all that may make it easier to believe what I'm about to tell you.

It may seem like imprisoning an American citizen without charges or trial transgresses against the United States Constitution and basic norms of Western justice dating back to the Magna Carta.

It may seem like reiterating the right to due process contained in the 5th Amendment would be uncontroversial.

It may seem like a United States senator would be widely ridiculed for suggesting that American citizens can be imprisoned indefinitely without chargers or trial, and that if numerous U.S. senators took that position, the press would treat the issue with at least as much urgency as "the fiscal cliff" or the possibility of a new assault weapons bill or likely nominees for Cabinet posts.

It may seem like the American citizens who vocally fret about the importance of adhering to the text of the Constitution would object as loudly as anyone to the prospect of indefinite detention.

But it isn't so.

The casual news consumer cannot rely on those seemingly reasonable heuristics to signal that very old norms are giving way, that important protections are being undermined, perhaps decisively.

We've lost the courage of our convictions -- we're that scared of terrorism (or of seeming soft on it).

News junkies likely know that I'm alluding to a specific law that has passed both the Senate and the House, and is presently in a conference committee, where lawmakers reconcile the two versions. Observers once worried that the law would permit the indefinite detention of American citizens, or at least force them to rely on uncertain court challenges if unjustly imprisoned. In response, Senator Dianne Feinstein tried to allay these concerns with an amendment:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.

Afterward everyone forgot about it pretty quickly. But not Charlie Savage. He's a journalist at The New York Times. If every journalist were more like him the United States government would be far less able to radically expand the president's unchecked authority without many people noticing.

Here is his scoop:

Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.  

Says Adam Serwer, another journalist who treats these issues with the urgency that they deserve:

Of the four main negotiators on the defense bill, only one of the Democrats, Rep. Adam Smith (D-Wash.), opposes domestic indefinite detention of Americans. The Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-Mich.), believes detaining Americans without charge or trial is constitutional, and only voted for the Feinstein amendment because he and some of his Republican colleagues in the Senate convinced themselves through a convoluted legal rationale that Feinstein's proposal didn't actually ban the practice. Both of the main Republican negotiators, House Armed Services Committee Chairman Howard "Buck" McKeon (R-Calif) and Senator John McCain (R-Ariz) believe it's constitutional to lock up American citizens suspected of terrorism without ever proving they're guilty.

There is a complication, as he notes: Civil liberties groups "aren't shedding any tears over the demise of the Feinstein-Lee amendment," because they objected to the fact that it protected only U.S. citizens and permanent residents, rather than all persons present in the United States. While I respect that principled stand, the more important thing is that this outcome puts us all at greater risk of having a core liberty violated, and that Senators McCain, Levin, and many other legislators suffer no consequences for failing to protect and defend the United States Constitution.
   
As Serwer puts it, "The demise of the Feinstein-Lee proposal doesn't necessarily mean that Americans suspected of terrorism in the US can be locked up forever without a trial. But it ensures that the next time a president tries to lock up an American citizen without trial -- as President George W. Bush previously tried -- it will be left up to the courts to decide whether or not it's legal."

Don't let the dearth of attention fool you -- this is a scandal. Congress has turned its back on safeguarding a core Constitutional protection and a centuries old requirement of Western justice.

Rage, rage against the dying of the 5th.

Report finds harsh CIA interrogations ineffective

Washington Post
Greg Miller

After a contentious closed-door vote, the Senate intelligence committee approved a long-awaited report Thursday concluding that harsh interrogation measures used by the CIA did not produce significant intelligence breakthroughs, officials said.

The 6,000-page document, which was not released to the public, was adopted by Democrats over the objections of most of the committee’s Republicans. The outcome reflects the level of partisan friction that continues to surround the CIA’s use of waterboarding and other severe interrogation techniques four years after they were banned.

The report is the most detailed independent examination to date of the agency’s efforts to “break” dozens of detainees through physical and psychological duress, a period of CIA history that has become a source of renewed controversy because of torture scenes in a forthcoming Hollywood film, “Zero Dark Thirty.”

Officials familiar with the report said it makes a detailed case that subjecting prisoners to ­“enhanced” interrogation techniques did not help the CIA find Osama bin Laden and often were counterproductive in the broader campaign against al-Qaeda.

The committee chairman, Sen. Dianne Feinstein ­(D-Calif.), declined to discuss specific findings but released a written statement describing decisions to allow the CIA to build a network of secret prisons and employ harsh interrogation measures as “terrible mistakes.”

“I also believe this report will settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques,” Feinstein said.

That conclusion has been disputed by high-ranking officials from the George W. Bush administration, including former vice president Richard B. Cheney and former CIA director Michael V. Hayden. Both of them argued that the use of waterboarding, sleep deprivation and other measures provided critical clues that helped track down bin Laden, the al-Qaeda leader who was killed in a U.S. raid in Pakistan in May 2011.

Largely because of those political battle lines, Republicans on the Senate intelligence committee refused to participate in the panel’s three-year investigation of the CIA interrogation program, and most opposed Thursday’s decision.

Sen. Saxby Chambliss of Georgia, the committee’s ranking Republican, said in a statement that the report “contains a number of significant errors and omissions about the history and utility of CIA’s detention program.” He also noted that the review was done “without interviewing any of the people involved.”

The 9 to 6 vote indicates that at least one Republican backed the report, although committee officials declined to provide a breakdown.

Other GOP lawmakers voiced support for the report’s conclusions. Sen. John McCain (Ariz.), who was a prisoner of war in Vietnam, issued a statement saying that the committee’s work shows that “cruel” treatment of prisoners “is not only wrong in principle and a stain on our country’s conscience, but also an ineffective and unreliable means of gathering intelligence.”

It could be months, if not years, before the public gets even a partial glimpse of the report or its 20 findings and conclusions. Feinstein said the committee will turn the voluminous document over to the Obama administration and the CIA to provide a chance for them to comment.

When that is completed, the committee will need to vote again on whether to release even a portion of the report, a move likely to face opposition from the CIA, which has fought to keep details of the interrogation program classified.

Even if it were released, the report would probably have little impact beyond providing new ammunition for a largely dormant interrogation debate.

The agency abandoned its harshest interrogation methods years before President Obama was elected, and the Justice Department began backing away from memos it had issued that had served as the legal basis for the program.

Earlier this year, the Justice Department closed investigations of alleged abuses, eliminating the prospect that CIA operatives who had gone beyond the approved methods would face criminal charges.

Civil liberties groups praised the report.

Petraeus may be called in U.S. inquiry on Benghazi: Feinstein

Reuters
Deborah Zabarenko

(Reuters) - Despite an adultery scandal that ended David Petraeus' tenure as CIA chief, the general may be called to testify in a Senate inquiry into the killing of four Americans at the U.S. consulate in Benghazi, Libya, Senator Dianne Feinstein said Sunday.

Feinstein, the chairwoman of the Senate Intelligence Committee, said on the "Fox News Sunday" program that Petraeus' resignation on Friday "was like a lightning bolt."

She said there will be an investigation into why the FBI failed to inform her and others on the intelligence committee before Friday about the extramarital affair between Petraeus and his biographer, Paula Broadwell, when the FBI probe had been proceeding for weeks.

The California Democrat said there was no connection between Petraeus' resignation and the September 11, 2012, killings in Benghazi. Petraeus had been scheduled to testify about the Benghazi case on Thursday in a closed session of the committee; Mike Morrell, the acting CIA director, is now expected to do so.

She said the committee may decide to call Petraeus in a future meeting of the intelligence panel on the Benghazi killings. Four U.S. citizens were killed, including Ambassador Christopher Stevens.

"My biggest concern is, there are literally hundreds of threat warnings in the material that has been accumulated," Feinstein said. "There were five attacks during the year, one prior attack on the consulate itself. The question I have is ... why wasn't something done about it?"

U.S. Representative Peter King, the Republican chairman of the House Homeland Security Committee, raised questions about why it took FBI investigators so long to inform President Barack Obama and others in his administration that Petraeus was involved.

FBI TIMELINE QUESTIONED

"The timeline has to be looked at and analyzed," the New York congressman said on CNN's "State of the Union. "Because obviously this was a matter involving a potential compromise of security and the president should have been told about it at the earliest stage."

Republican Senator Lindsey Graham said he was ready to turn the page on the scandal that prompted Petraeus to resign, but said the former general must testify before Congress about what he called a "national security failure" at Benghazi.

Graham, of South Carolina, called for a Watergate-style joint select committee of members of the House and Senate to investigate the matter.

Speaking on "Face the Nation" on CBS, Graham said the Pentagon and the U.S. intelligence community have much to explain in this case, but singled out Susan Rice, the U.S. ambassador to the United Nations, for her role.

"I don't, quite frankly, trust her rendition of Benghazi," Graham said. Rice initially described the attack as a spontaneous outburst rather than a planned attack. Her handling of the matter provided fodder to Republican opponents in the final months of Obama's re-election campaign.

Rice has been mentioned as a possible choice by Obama to succeed Secretary of State Hillary Clinton, but Graham said Rice's nomination to this post "would have incredibly difficult time getting through the Senate."

"I would not vote for her unless there's a tremendous opening up of information explaining herself in a way she has not yet done," Graham said of Rice.

New U.S. envoy in Israel to clear obstacles for Obama’s second term

Haaretz
Akiva Eldar

Dan Shapiro was not sent here to promote peace between Israeli and Palestinian leaders, but between Obama and American Jewish leaders.

Dan Shapiro and Shimon Peres

Dan Shapiro, the new American ambassador to Israel, submitted his credentials to President Shimon Peres on Wednesday. That same day, he submitted a declaration of support for Prime Minister Benjamin Netanyahu: In an interview with Channel 2 television, he downplayed the lack of trust between Netanyahu and U.S. President Barack Obama and the latter's rage and sense of insult over Netanyahu's appearance before Congress in May, treating their serial disputes as routine disagreements between friends. Shapiro noted that he was present at all the many meetings between Obama and Netanyahu. So who are we to cast doubt on a videotaped affidavit by an eyewitness?

The newly-arrived diplomat's decision to jump immediately into the media water and the friendly, almost fawning, content of his interview show that Shapiro was not sent here to promote peace between the Israeli leader and his Palestinian counterpart. Rather, his goal is to promote peace between the American president and American Jewish leaders. His main job will be to dismantle every Israeli land mine on his boss' road to a second term.

Obama didn't choose Shapiro because of the diplomatic experience the latter gained during his tenure as senior director for the Middle East and North Africa at the National Security Council; the diplomatic process has been presided over by Dennis Ross, who has no equal in his ability to tread water in the Israeli-Palestinian channel. Shapiro isn't here to try his luck in proximity talks between Netanyahu and Palestinian Authority President Mahmoud Abbas: He accompanied George Mitchell on all the latter's shuttle diplomacy between Jerusalem and Ramallah and knows quite well why that veteran mediator quit and returned his letter of appointment to Obama.

Rather, the qualifications that brought this energetic and likable young man to Tel Aviv 15 months before the American elections are his personal loyalty to Obama, his political experience, his deep Jewish roots (he comes from a traditional Jewish family ) and his fluent Hebrew (he also speaks some Arabic ).

Shapiro bet on Obama from the earliest days of the Democratic presidential primary race that began in 2007, at a time when most of his then-colleagues in the lobbying industry were predicting that Hillary Clinton would win. Supporting a black senator from Illinois was a natural choice for a young Jew raised (in Champaign, Illinois ) by liberal parents. And Obama's subsequent elevation of Shapiro to the top ranks of his Middle East team was also a natural choice: The Jewish adviser devoted a significant portion of his time and energy to countering the Jewish and Christian right's indefatigable attempts to portray Obama's peace efforts as proof of his alleged Muslim roots.

In 1993, after finishing his master's degree in Middle Eastern politics at Harvard University, Shapiro served on the staff of Lee Hamilton, then the chairman of the House Foreign Affairs Committee and a leading Democratic congressman. He cheered when Israel and the Palestinians signed the Oslo Accords and was a fervent admirer of then-Prime Minister Yitzhak Rabin.

After the Republicans captured both houses of Congress in 1994, Shapiro became Jewish senator Dianne Feinstein's senior foreign policy advisor. A year later, Feinstein refused to cosponsor a bill to move the American embassy from Tel Aviv to Jerusalem - one of the provocative initiatives the Israeli right and its supporters in Congress dreamed up in an effort to kill the nascent peace process.
Shapiro's first reports from the embassy on Tel Aviv's Hayarkon Street will presumably deal with the tent protests. Barring any surprises, next month he will report on the demise of the peace process, and perhaps also on a third intifada. When that happens, will Obama's campaign strategists still be asking him to tell us that the U.S-Israeli relationship is just as wonderful as it always was, and that the settlements are just a disagreement between friends?