Sunday, January 29, 2006

Where are the Mr. Smiths In Washington?

Mr. Smith Comes to Washington
By Paul Savoy
Common Dreams

Saturday 28 January 2006

Dad always used to say the only causes worth fighting for were the lost causes.

- Jimmy Stewart as Senator Jefferson Smith in "Mr. Smith Goes to Washington."
How many senators does is take to launch a filibuster? If you said 41, you'd be wrong. It takes only one.

The term, filibuster, from a Dutch word meaning "pirate," describes a hallowed tradition of unlimited debate in the Senate based on the principle that any senator has the right to talk his head off for as long as he wants on any issue. That is, until at least 60 senators vote to shut him up.

In the classic Frank Capra film, "Mr. Smith Goes to Washington," Jimmy Stewart, playing freshman Senator Jefferson Smith, carries on a one-man filibuster for more than 23 hours until he passes out from exhaustion. Smith, an idealistic senator from an unnamed state, reads from the Declaration of Independence, and summons his colleagues to get up there with that Lady of Liberty on top of the Capitol Dome and take a stand against "compromise with human liberties."

Senator John Kerry, in announcing that he and Senator Edward Kennedy would participate in a filibuster against the confirmation of Judge Samuel Alito, said, "It's not 'Mr. Smith Goes to Washington.' . . . It takes more than two or three people to filibuster successfully."

At least five other Democrats have announced their support for the filibuster: Senate Minority Leader Harry Reid, Assistant Minority Leader Dick Durbin, Dianne Feinstein, and Hillary Rodham Clinton. But, in trying to block the confirmation, each of these senators may have to be a "Senator Smith" to succeed in demonstrating the danger a Justice Alito would pose to civil rights and civil liberties.

Judiciary Committee Chairman Arlen Specter has defended Judge Alito's refusal to answer specific questions from Democratic senators aimed at showing the American people just how frightening a Justice Alito would be. The distinguished senator from Pennsylvania has declared that the nominee "has answered questions as far he could go." Judge Alito said it would not be "appropriate" for a judicial nominee to express his views on issues that might come before him if he were appointed to the Court. Well, it turns out that Judge Alito and Senator Specter are wrong. Who says? The Supreme Court. That's who says.

In 2002, the Supreme Court, in Republican Party of Minnesota v. White, 536 U.S. 765, declared that it is not only proper for a judicial candidate to express his views on disputed legal issues - the First Amendment guarantees him the right to do so. In an opinion written by Justice Antonin Scalia, and joined by then-Chief Justice Rehnquist, and Justices O'Connor, Kennedy, and Thomas, the Court concluded that a Minnesota canon of judicial conduct which prohibited a candidate for judicial office from announcing his position on abortion rights and other controversial issues violated his right to freedom of speech under the First Amendment.

The Minnesota decision yields three fundamental constitutional principles:

First, a judicial nominee has a First Amendment right to express his specific legal views on controversial issues even if they are likely to come before him should he be confirmed.

Second, a necessary corollary of the nominee's right to express his views is the right of the people and their representatives in the Senate to know them. This right entitles the people to know not only a nominee's judicial philosophy or general legal views, but, according to the Court in the Minnesota case, how those views are "exemplified by application to a particular issue of construction likely to come before [the] court - for example, whether a particular statute runs afoul of any provision of the Constitution."

Third, and most important, in the absence of specific answers to senators' questions about a nominee's views, his confirmation would be a violation of the Constitution's Article II requirement that the Senate exercise its "Advice and Consent" function in an informed manner. This implication from the Court's Minnesota decision, as Justice Ruth Bader Ginsburg explained in her dissent, is clear: "[B]y the court's reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm."
The Court specifically rebuffed the kinds of arguments Judge Alito's supporters have made in defense of his refusal to answer questions about whether he believes Roe v. Wade should be overruled, or if the President acted unlawfully when he ordered electronic eavesdropping on Americans without a warrant. Announcing his views, Alito's defenders argue, would compromise his impartiality. They say that a preconceived view about the law would make a judge less open-minded in deciding particular cases.

Resoundingly rejecting this argument, Justice Scalia, writing for the majority in the Minnesota case, said, "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law."

Quoting from an earlier opinion by Rehnquist regarding the Supreme Court itself, Scalia continued: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another."

"Indeed, even if it were possible to select judges who did not have preconceived views on legal issues," Scalia declared, "it would hardly be desirable to do so." Quoting Rehnquist again, Scalia wrote: "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." The "blank mind" argument, Scalia quipped, "contemplates a federal bench filled with the unfit."

A discussion by a judicial candidate of his constitutional views is not the same as a promise to produce a particular result. While Justice Scalia indicated that "pledges or promises" remain unprotected by the First Amendment, his opinion for the Court makes clear that it is perfectly proper for a judicial candidate to go beyond a discussion of his judicial record or his methodology for deciding cases, and to say, for example, whether he believes the Constitution protects a woman's right to an abortion, or whether he would overrule Roe.

Although the Minnesota case articulated a right of a judicial candidate to express his views in the context of a process of electing judges, the Court's First Amendment rationale necessarily extends to the federal system of nomination and confirmation, and, as a necessary corollary, to the people's right to know the views of a candidate or nominee. In an election, a judicial candidate has a First Amendment right to announce his legal views because under our judicial system, the Supreme Court explained, judges not only find the law and apply it; they often "make law themselves" or "set aside the law enacted by the Legislature." Therefore, citizens need to know how a candidate is likely to change the law by overruling precedent or invalidating statutes or executive orders. This power of judicial lawmaking exists whether a judge is elected directly by the people, or nominated by the President and confirmed by the people's representatives in the Senate. In both cases, the people have a right to know what kind of imprint a candidate or nominee is likely to make on judge-made law.

To be sure, Judge Alito remained free not to state his views. However, as Senator Feinstein pointed out during the confirmation hearings, if a nominee chooses to remain silent, senators are entitled to vote against him for this reason and this reason alone. This may thrust the nominee on the horns of a dilemma, but he cannot escape it by pleading judicial ethics. "[I]f you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know."

A CNN/USA Today/Gallup poll conducted after the confirmation hearings shows that 54 percent of the American people support Judge Alito's appointment. But when asked about their support if they became convinced Alito would overturn Roe, opinions dramatically shifted: from 54 percent in favor, to 56 percent against his confirmation.

The people's "right to know" is therefore central to the confirmation process. So, it is hard to understand why Democratic senators on the Judiciary Committee were not trumpeting the Supreme Court's Minnesota decision from the Capitol Dome. Whatever the reason, the effect has been to keep the people in the dark about a constitutional right to know a nominee's legal views.

The "Advice and Consent" function of the Senate mandated by Article II of the Constitution means informed consent. For too long, trying to understand how a nominee would shape the fate of millions of Americans has been like reading tea leaves. Today, in light of the Minnesota decision, senators would be violating their constitutional duty under Article II if the Senate were to vote on Judge Alito's nomination without more information about how he is likely to decide some of the most momentous issues of our time.

The prospect of an unconstitutional confirmation gives rise to "extraordinary circumstances" - the standard agreed upon by a bipartisan group of 7 Republican and 7 Democratic senators (the so-called Gang of 14) to justify a filibuster.

To defeat a "cloture" motion to end debate, supporters of a filibuster do not actually have to gather 41 votes to defeat the motion; they merely have to persuade enough colleagues to simply abstain from voting so that filibuster opponents do not achieve the 60 votes required for cloture. For example, a 59-29 vote to end debate, with 12 senators abstaining, would not be sufficient to carry a cloture motion, and Judge Alito's nomination could not be brought to an up-or-down vote.

The abstention option provides the necessary cover for Democratic senators who do not want to participate in a filibuster, but who can be persuaded to at least refrain from denying colleagues the Senate's more than 200-year-old privilege to speak on an issue for as long as a senator wishes. Respecting that privilege is imperative when, as here, a filibuster is conducted to (1) inform the American people of their First Amendment right to know a nominee's views, and (2) honor a senator's duty under Article II to block a judicial appointment that would be unconstitutional.

No answers should mean no confirmation.


Paul Savoy is a former prosecutor and professor of constitutional law, and a past dean of the John F. Kennedy University School of Law.

Judge, Jury, and an unmanned predator aircraft,0,1166270,full.story?coll=la-home-headlines

From the Los Angeles Times
CIA Expands Use of Drones in Terror War
'Targeted killing' with missile-firing Predators is a way to hit Al Qaeda in remote areas, officials say. Host nations are not always given notice.
By Josh Meyer
Times Staff Writer

January 29, 2006

WASHINGTON — Despite protests from other countries, the United States is expanding a top-secret effort to kill suspected terrorists with drone-fired missiles as it pursues an increasingly decentralized Al Qaeda, U.S. officials say.

The CIA's failed Jan. 13 attempt to assassinate Al Qaeda second-in-command Ayman Zawahiri in Pakistan was the latest strike in the "targeted killing" program, a highly classified initiative that officials say has broadened as the network splintered and fled Afghanistan.

The strike against Zawahiri reportedly killed as many as 18 civilians, many of them women and children, and triggered protests in Pakistan. Similar U.S. attacks using unmanned Predator aircraft equipped with Hellfire missiles have angered citizens and political leaders in Afghanistan, Iraq and Yemen.

Little is known about the targeted-killing program. The Bush administration has refused to discuss how many strikes it has made, how many people have died, or how it chooses targets. No U.S. officials were willing to speak about it on the record because the program is classified.

Several U.S. officials confirmed at least 19 occasions since Sept. 11 on which Predators successfully fired Hellfire missiles on terrorist suspects overseas, including 10 in Iraq in one month last year. The Predator strikes have killed at least four senior Al Qaeda leaders, but also many civilians, and it is not known how many times they missed their targets.

Critics of the program dispute its legality under U.S. and international law, and say it is administered by the CIA with little oversight. U.S. intelligence officials insist it is one of their most tightly regulated, carefully vetted programs.

Lee Strickland, a former CIA counsel who retired in 2004 from the agency's Senior Intelligence Service, confirmed that the Predator program had grown to keep pace with the spread of Al Qaeda commanders. The CIA believes they are branching out to gain recruits, financing and influence.

Many groups of Islamic militants are believed to be operating in lawless pockets of the Middle East, Asia and Africa where it is perilous for U.S. troops to try to capture them, and difficult to discern the leaders.

"Paradoxically, as a result of our success the target has become even more decentralized, even more diffused and presents a more difficult target — no question about that," said Strickland, now director of the Center for Information Policy at the University of Maryland.

"It's clear that the U.S. is prepared to use and deploy these weapons in a fairly wide theater," he said.

Current and former intelligence officials said they could not disclose which countries could be subject to Predator strikes. But the presence of Al Qaeda or its affiliates has been documented in dozens of nations, including Somalia, Morocco and Indonesia.

High-ranking U.S. and allied counter-terrorism officials said the program's expansion was not merely geographic. They said it had grown from targeting a small number of senior Al Qaeda commanders after the Sept. 11 attacks to a more loosely defined effort to kill possibly scores of suspected terrorists, depending on where they were found and what they were doing.

"We have the plans in place to do them globally," said a former counter-terrorism official who worked at the CIA and State Department, which coordinates such efforts with other governments.

"In most cases, we need the approval of the host country to do them. However, there are a few countries where the president has decided that we can whack someone without the approval or knowledge of the host government."

The CIA and the Pentagon have deployed at least several dozen of the Predator drones throughout Iraq, Afghanistan and along the borders of Pakistan, U.S. officials confirmed. The CIA also has sent the remote-controlled aircraft into the skies over Yemen and some other countries believed to be Al Qaeda havens, particularly those without a strong government or military with which the United States can work in tandem, a current U.S. counter-terrorism official told The Times.

Such incursions are highly sensitive because they could violate the sovereignty of those nations and anger U.S. allies, the official said, speaking on condition of anonymity.

The Predator, built by General Atomics Aeronautical Systems Inc. of San Diego, is a slender craft, 27 feet long with a 49-foot wingspan. It makes a clearly audible buzzing sound, and can hover above a target for many hours and fly as low as 15,000 feet to get good reconnaissance footage. They are often operated by CIA or Pentagon officials at computer consoles in the United States.

The drones were designed for surveillance and have been used for that purpose since at least the mid-1990s, beginning with the conflict in the Balkans. After the Sept. 11 attacks, President Bush ordered a rapid escalation of a project to arm the Predators with missiles, an effort that had been mired in bureaucratic squabbles and technical glitches.

Now the Predator is an integral part of the military's counter-insurgency effort, especially in Iraq. But the CIA also runs a more secretive — and more controversial — Predator program that targets suspected terrorists outside combat zones.

The CIA does not even acknowledge that such a targeted-killing program exists, and some attacks have been explained away as car bombings or other incidents. It is not known how many militants or bystanders have been killed by Predator strikes, but anecdotal evidence suggests the number is significant.

In some cases, the destruction was so complete that it was impossible to establish who was killed, or even how many people.

Among the senior Al Qaeda leaders killed in Predator strikes were military commander Mohammed Atef in Afghanistan in November 2001 and Qaed Sinan Harithi, a suspected mastermind of the bombing of the U.S. destroyer Cole in Yemen, in 2002. Last year, Predators took out two Al Qaeda leaders in Pakistan: Haitham Yemeni in May and Abu Hamza Rabia in December, one month after another missile strike missed him.

The attack on Rabia in North Waziristan also killed his Syrian bodyguards and the 17-year-old son and the 8-year-old nephew of the owner of the house that was struck, according to a U.S. official and Amnesty International, which has lodged complaints with the Bush administration following each suspected Predator strike.

Another apparent Predator missile strike killed a former Taliban commander, Nek Mohammed, in South Waziristan in June 2004, along with five others. A local observer said the strike was so precise that it didn't damage any of the buildings around the lawn where Mohammed was seated. At the time, the Pakistani army said Mohammed had been killed in clashes with its soldiers.

Michael Scheuer, the former chief of the CIA's special unit hunting Osama bin Laden and Al Qaeda, said he was aware of at least four successful targeted-killing strikes in Afghanistan alone by November 2004, when he left the agency.

In the attack on Zawahiri, word spread quickly that a U.S. plane had been buzzing above the target beforehand. Afterward, villagers reportedly found evidence of U.S. involvement.

The missiles intended for Bin Laden's chief deputy incinerated several houses in Damadola, a village near Pakistan's northwestern border with Afghanistan. But Zawahiri was not there, U.S. officials now believe. Pakistan said it was investigating whether the strikes killed other high-ranking militants.

There were some well-publicized failures before the Zawahiri strike. In February 2002, a Predator tracked and killed a tall man in flowing robes along the Pakistan-Afghanistan border. The CIA believed it was firing at Bin Laden, but the victim turned out to be someone else.

Before the Sept. 11 attacks, the U.S. government had targeted Bin Laden in at least one Cruise missile strike. But the CIA was reluctant to engage in targeted killings because it said the laws regarding assassinations were too vague and the agency could face criminal charges.

Even today, documents and interviews suggest that the U.S. policy on targeted killings is still evolving.

Some critics, including a U.N. human rights watchdog group and Amnesty International, have urged the Bush administration to be more open about how it decides whom to kill and under what circumstances.

A U.N. report in the wake of the 2002 strike in Yemen called it "an alarming precedent [and] a clear case of extrajudicial killing" in violation of international laws and treaties. The Bush administration, which did not return calls seeking comment for this story, has said it does not recognize the mandate of the U.N. special body in connection with its military actions against Al Qaeda, according to Amnesty International.

"Zawahiri is an easy case. No one is going to question us going after him," said Juliette N. Kayyem, a former U.S. government counter-terrorism consultant and Justice Department lawyer. "But where can you do it and who can you do it against? Who authorizes it? All of these are totally unregulated areas of presidential authority."

"Paris, it's easy to say we won't do it there," said Kayyem, now a Harvard University law professor specializing in terrorism-related legal issues. "But what about Lebanon?"

Paul Pillar, a former CIA deputy counter-terrorism chief, said the authority claimed by the Bush administration was murky.

"I don't think anyone is dealing with solid footing here. There is legal as well as operational doctrine that is being developed as we go along," Pillar said. "We are pretty much in uncharted territory here."

Pillar, who was also the CIA's National Intelligence Officer for the Near East and South Asia before retiring in mid-2005, said there had long been disagreement within the intelligence community over whether targeted killings were legally permissible, or even a good idea.

Before Sept. 11, Pillar said, CIA officers were issued vaguely worded guidelines that seemed to give them authority to kill Bin Laden, but only during an attempt to capture him.

The 9/11 commission investigating the attacks in New York and Washington concluded that such vaguely worded laws and policies gave little reassurance to those who might be pulling the trigger that they would not face disciplinary action — or even criminal charges.

Although presidents Ford and Reagan issued executive orders in 1976 and 1981 prohibiting U.S. intelligence agents from engaging in assassinations, the Bush administration claimed the right to kill suspected terrorists under war powers given to the president by Congress after the Sept. 11 attacks.

It is the same justification Bush has used for a recently disclosed domestic spying program that has the National Security Agency eavesdropping on American citizens without warrants, and a CIA "extraordinary rendition" program to seize suspected terrorists overseas and transport them to other countries with reputations for torture.

Strickland, like some other officials, said the Predator program served as a deterrent to foreign governments, militias and other groups that might be harboring Al Qaeda cells.

"You give shelter to Al Qaeda figures, you may well get your village blown up," Strickland said. "Conversely, you have to note that this can also create local animosity and instability."

The CIA's lawyers play a central role in deciding when a strike is justified, current and former U.S. officials said. The lawyers analyze the credibility of the evidence, how many bystanders might be killed, and whether the target is enough of a threat to warrant the strike.

Other agencies, including the Justice Department, are sometimes consulted, Strickland said. "The legal input is broad and extensive," he said.

Scheuer said he believed the process was too cumbersome, and that the agency had lost precious opportunities to slay terrorists because it was afraid of killing civilians.

But others said they had urged the Bush administration to adopt a multi-agency system of checks and balances similar to that used by Israel, which for decades has convened informal tribunals to assess each proposed targeted killing before carrying it out.

Amos N. Guiora, a senior Israeli military judge advocate who participated in such tribunals, said that although the failed Zawahiri strike itself appeared to be justifiable, the result suggested a lack of adequate deliberations on the quality of the intelligence.

"I think [the] attack was a major screw-up, because so many kids died. It raises questions about the entire process," said Guiora, who now a professor at Case Western Law School and director of its Institute for Global Security Law and Policy.

"It shows the absolute need to have a well-thought-through and developed process that examines the action from a legal perspective, an intelligence perspective and an operational perspective. Because the price you pay here is that you are going to have to be hesitant the next time you pull the trigger."