Natl. Security

PI at NRN: Seals Says Dems "Caved" On FISA

Josh Kalven — Sat, 19 Jul 2008 15:38:27 -0700

During the "Future Leaders" panel at Netroots Nation yesterday, Dan Seals said congressional Democrats "caved" by voting for the recent Foreign Intelligence Surveillance Act bill:

Kirk Is Scared ... Of Osama's Lawyers

Adam Doster — Thu, 19 Jun 2008 13:54:05 -0700

Rep. Mark Kirk covered a lot of ground on WLS' Don Wade and Roma yesterday. In our rush to knock down his false claim on Chinese oil drilling and his major Obama-Osama gaffe, we forgot to highlight his objection to the recent Supreme Court ruling reinstating Habeas Corpus rights to Guantanamo Bay detainees, a decision Barack Obama supports.

Listen to Kirk assert that if we were to give Osama bin Laden the right to challenge his detention, "You could have a scene like Johnnie Cochran saying, 'If the headdress doesn't fit, you must acquit!' ":

Internal mp3

Kirk's silly analogy is based on the assumption that any legal standard extending habeas rights to bin Laden (or anyone else for that matter) necessarily means the statute is immoral and worthless. Tell that to the Founding Fathers, who inserted it in our Constitution as a basic human right, even before the Bill of Rights was enacted. From the Supreme Court decision (pdf):

"The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom."

Just because the man is one of the worst on the planet doesn't mean we shouldn't uphold our oldest and most foundational laws. As Anonymous Liberal writes, "The whole point of due process is to determine whether someone is guilty. It’s the punishment that is supposed to vary depending on the seriousness of the crime, not the process."

And frankly, what is Kirk so afraid of? It's implausible to imagine any jury hearing the challenge of bin Laden and then overturning his detention. The Nation's Chris Hayes clearly articulated this on MSNBC's Countdown last night:

HAYES: I don't actually understand what Giuliani and McCain and Bush and conservatives are so scared of. I mean, let's imagine we got Osama bin Laden in custody and he challenged his detention before a court of law. Do we really think that there's any court that would look at the evidence and say, "Okay, you're free to go, Mr. Bin Laden"? Of course not.

The whole idea of Habeas Corpus is to allow people who have been wrongly imprisoned to bring their case before a court -- an impartial fact-finder. And we know there are people in Guantanamo who probably are there for the wrong reasons and it would mean they could go home to their families.

But in the case of Osama bin Laden it's just ludicrous to imagine that Habeas Corpus would lead to him being released.

Ludicrous, indeed.

Additionally, Rob at Illinois Reason noticed a serious distortion lying under the surface of Kirk's Obama-Osama gaffe. Rob notes that, in the clip, Kirk is essentially suggesting that because Obama is in favor of Habeas Corpus, he wouldn't allow the U.S. government to kill bin Laden if they somehow found him but couldn't adequately detain him. In fact, Obama has made clear that he has no problem with the government taking Osama out, as this AP article reported:

“First of all, I think there is an executive order out on Osama bin Laden’s head,” the Illinois senator said at a news conference. “And if I’m president, and we have the opportunity to capture him, we may not be able to capture him alive.”

Obama’s campaign said he was referring to a classified Memorandum of Notification that President Clinton approved in 1998 - revealed in the 9/11 Commission report - that would allow the CIA to kill bin Laden if capture weren’t feasible.

Here's the transcript of the above exchange:

DON WADE: Barack Obama, in an interview with Jake Tapper on ABC’s Nightline, said that he thought that -- well, why don’t we play the quote. Here’s Barack Obama:

OBAMA (audio clip): What we know is that in previous terrorist attacks, for example the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons incapacitated.

DON WADE: Now, there are those who criticize that, saying, "Well if you put those people on trial, there’s the rules of discovery, we have to give away all kinds of evidence and stuff so Osama bin Laden learns everything we know and learns how to beat us the next time, like 2001."

ROMA: Yes, in 1993, he found out we were tapping his cell phone calls.

KIRK: Correct. I think that Osama bin Laden is not just a criminal, he’s a target. And you don’t want to confuse the objectives of the United States. Bin Laden is a military target of the United States that our military should kill. And for -- the danger that we have is if somehow he’s captured and we give full court rights to him, you know, you could have a scene like Johnnie Cochran saying, ‘if the headdress doesn’t fit, you must acquit.’ And that would be the wrong answer.

Lynn Sweet Watch: What About Clarke?

Josh Kalven — Wed, 18 Jun 2008 12:41:16 -0700

In her Sun-Times column today, Lynn Sweet reports on the sparring between the Obama and McCain camps yesterday over foreign policy. The piece is headlined: "Obama 'delusional'? McCain, ex-CIA chief doubt Obama's readiness to deal with terrorists." In it, she quotes former CIA head James Woolsey and McCain adviser Randy Scheunemann wailing away on Obama's foreign policy approach:

During a McCain campaign conference call with reporters, former CIA head James Woolsey said Obama's support of giving terrorists access to U.S. courts was an "extremely dangerous and an extremely naive approach to terrorism."

McCain senior foreign policy adviser Randy Scheunemann said if Obama "got that 3 a.m. phone call" -- a reference to an ad Sen. Hillary Clinton ran before the Texas and Ohio primaries questioning Obama's experience -- his response would be to "call the lawyers in the Justice Department." He also called Obama "delusional." [...]

Scheunemann also invoked a stereotype as he tried to make the point that terrorists are not common criminals. These terrorists, he said, were not "your run-of-the mill drug dealers on the South Side of Chicago."

In turn, Sweet devotes one graf to Obama's response:

"These are the same guys who helped to engineer the distraction of the war in Iraq at a time when we could've pinned down the people who actually committed 9/11," Obama told reporters on his campaign plane. "In part because of their failed strategies, we've got bin Laden still sending out audiotapes, so I don't think they have much standing to suggest that they've learned a lot of lessons from 9/11."

It's a decent rebuttal. Nonetheless, when a low-information voter reads about a terrorism-related back-and-forth between a politician and a former CIA director, whose argument do you think they're more likely to trust? That's why it would have been nice if Sweet had noted that Richard Clarke, former counter-terrorism adviser under the Clinton and Bush administrations, hammered the McCain camp hours before Obama himself responded.

During a conference call with Sen. John Kerry (D-MA), Clarke described himself as "disgusted" by the McCain campaign's tactics and accused the Republican surrogates of "completely and utterly distorting" the GOP record on terrorism. Clarke also noted that Obama has a "comprehensive terrorism strategy" and demanded that the McCain camp "show where in the record Senator Obama has ever said he is favor of a pure law enforcement approach."

Take a listen to his comments:

Internal mp3

Foster Comments On FISA Vote

Josh Kalven — Fri, 28 Mar 2008 13:47:10 -0700

After taping his upcoming response to President Bush's Saturday radio address at WBBM's studios in Chicago this morning, Bill Foster took questions from the media, including one from Public Affair's Jeff Berkowitz about proposed reforms of the Foreign Intelligence Surveillance Act (FISA).

Specifically, Berkowitz asked him about his recent vote against a bill originating in the Senate that offered immunity to those telecom companies who cooperated with the Bush administration's warrantless domestic wiretapping program. In response, Foster explained how he instead voted for the House compromise bill, which proposed that the phone companies be able to defend their actions in a secret court, rather than receive blanket immunity:

FOSTER: [Y]ou know, this was an important vote. And, I do not believe in blanket immunity for telecom companies or anyone else that may or may not have violated basic privacy understandings. I believe there is a huge difference between a scenario in which data was turned over in the immediate aftermath of September 11, with a clear understanding that people in the Administration thought that this was truly legal and data that may have been turned over under other circumstances.

And, I think the compromise that came out of the House Bill, which essentially established a secret court that allowed the telecoms to defend themselves, using the letters that they may or may not have received from the Administration, provides a very good intermediate compromise for the purposes of determining the civil immunity or non-immunity of these telecoms. So, I am a bigger fan of the compromise that came out of the House than the compromise that came out of the Senate and I voted that way.

(More after the jump ...)

BERKOWITZ: You said a “secret court,” coming out of the House Bill. Is that separate from the FISA courts?

FOSTER: Yes, yes. As I understand, there was a mechanism to provide—to allow the telecoms—the ability to present letters that they may or may not have gotten from the administration, encouraging them to turn over data. These are letters that, if they exist, would be protected under state secrets provisions by the Administration and the Administration currently would prevent [the telecoms] from presenting in open court. And, so, they are in a situation where the law says very clearly that, you know, you are immune if you got a letter saying certain things with certain assurances from the Administration. But, since [the telecoms] can’t present those letters in open court, then, for civil purposes, they can’t actually defend themselves and so the House Compromise provides a mechanism for them to present those letters, not in open court, but in a secret proceeding.