by TChris

If the Bush administration had its way, we wouldn't know anything about the ACLU's lawsuit challenging a provision of the Patriot Act that requires telephone companies and ISP's to hand over a customer's records to the FBI without notice to the customer. Because the law prohibits the communications company from revealing the existence of the FBI's demand, the ACLU filed its suit "under seal," keeping it out of the public record of court filings. The ACLU then asked the court to unseal the lawsuit. Predictably, the government doesn't think it's use (or abuse) of the Patriot Act is anybody's business; it asked the court to keep everything about the case a secret.

Judge Victor Marrero is looking for a middle ground. He's likely to release those documents (in whole or in part) that would not jeopardize national security. Of course, the government will argue that releasing anything but the ACLU's address will jeopardize national security, but it's likely that enough information will be released to provide a better sense of the facts upon which the suit is based.

The ACLU is joined in the suit by an unidentified recipient of a demand for records -- presumably a communications company.

The A.C.L.U. argues that the F.B.I. letters are unconstitutional because they violate the due process rights of the businesses and people who receive them, and because the order prohibiting discussion of the investigation violates free expression rights. The group contends that the government should be required to seek approval from a judge before issuing a letter and recipients should have a way to question the order.

When the ACLU posted a general description of the lawsuit on its website and included some scheduling information, the government told the ACLU to remove the scheduling information -- in the apparent belief that the public has no right to know whether or when the court will act in the lawsuit. After Judge Marrero allowed the release of some documents, the ACLU restored a statement that the suit will probably be heard at the end of the summer.

Just in time for the election. No wonder the Justice Department wants to keep it quiet.

by TChris

MSNBC is catching up with TalkLeft in its coverage of one of the vital stories of our time. Back on April 23, TalkLeft let you know that the State of Louisiana is trying to protect the state's aesthetic interests by outlawing plumber's butt. Today, MSNBC reports that the Louisiana House Criminal Justice Committee approved the bill. This crucial piece of fashion legislation should go before the full House within the next two months.

by TChris

As Talkleft noted a few days ago, the Oklahoma Pardon and Parole Board recommended clemency for Osbaldo Torres, whose pending execution violates the Vienna Convention according to the Mexican government and the International Court of Justice. Clemency would provide assurance that Torres won't be killed, but Torres' life might be spared even if the Governor rejects his clemency request.

The Oklahoma Court of Criminal Appeals stayed Torres' execution indefinitely while it considers whether the death sentence violates international law because Torres wasn't given access to the Mexican consulate after his arrest. The court ordered an evidentiary hearing on that issue within 60 days.

The Governor is likely to let the court system do its thing before he acts on Torres' clemency request. If the court invalidates the death sentence, the clemency request becomes moot and the Governor doesn't risk taking political heat by granting or denying the request. He has no incentive to decide a question that the courts might decide for him.

UPDATE: Wrong again. Rather than waiting, Governor Brad Henry had the courage to commute Torres' sentence to life imprisonment.

by TChris

TalkLeft reported yesterday on another credibility problem in the Bush administration: Nicholas Berg's family says that Berg was detained by the U.S. military, causing him to delay his departure from Iraq, while the government claims that Berg was detained by the Iraqi police but was never by the U.S. military. The family complains that Berg might be alive if the military hadn't detained him without cause. Today, Berg's family produced evidence to support their version of events.

A U.S. diplomatic official in Iraq told the family of slain American Nicholas Berg in early April that he was being detained by the U.S. military, according to e-mails provided by the family Thursday.

"I have confirmed that your son, Nick, is being detained by the U.S. military in Mosul. He is safe. He was picked up approximately one week ago. We will try to obtain additional information regarding his detention and a contact person you can communicate with directly," the e-mail said.

Is the Bush government programmed to deny every fact that might be unfavorable to the administration, without bothering to investigate?

Update: According to Reuters, the Iraqi police chief has also contradicted the government's story. The Reuters report contains harsh words for the Bush administration from Nick's father, Michael Berg.

"My son died for the sins of George Bush and Donald Rumsfeld. This administration did this," Berg said in an interview with radio station KYW-AM.

Today the AP reports on alleged prior prisoner abuse by Abu Ghraib prison guard Charles Graner (purported father of the child expected by Lynndie England.)

His ex-wife once accused him of dragging her out of a room by her hair and trying to throw her down the stairs during a fight over their breakup. At the Pennsylvania prison where he worked as a low-level guard in civilian life, the Army reservist was accused in two lawsuits of brutality. In one, an inmate said Graner planted a razor blade in a plate of his potatoes. The lawsuits were dismissed and no charges were ever filed in the dispute with his wife, but the accusations continue to haunt Graner now that he faces court-martial in the abuse scandal.

We reported Graner's ex-wife's comments here:

Graner married Staci Dean in 1990, after she had become pregnant with the first of their two children. Their marriage ended in 2002 in a bitter divorce. Police were called to the home in March 2001, after the couple had separated. In Fayette County court papers, Staci Graner, who has since remarried and declined to be interviewed, reported that her husband came into the room where she was sleeping and yanked her head by the hair, banged her head against a wall, and tried to throw her down the steps. Criminal charges were not filed.

We also reported this abuse allegation a few days ago :

Bump and Update: Among the photos seen by Congress were many depicting Lynndie England having consensual sex with numerous soldiers in front of the Iraqi prisoners:

Shocking shots of sexcapades involving Pfc. Lynndie England were among the hundreds of X-rated photos and videos from the Abu Ghraib prison scandal shown to lawmakers in a top-secret Capitol conference room yesterday.
"She was having sex with numerous partners. It appeared to be consensual," said a lawmaker who saw the photos. And, videos showed the disgraced soldier - made notorious in a photo showing her holding a leash looped around an Iraqi prisoner's neck - engaged in graphic sex acts with other soldiers in front of Iraqi prisoners, Pentagon officials told NBC Nightly News. "Almost everybody was naked all the time," another lawmaker said.

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Original Post 5/12 9:15 pm

Members of Congress today were provided additional photos depicting abuse of Iraqi prisoners. What did they see? According to the Dallas Morning News:

• Military dogs snarling at cowering prisoners.

• Iraqi women forced to expose their breasts.

• Sex acts between male and female U.S. soldiers and forced homosexual acts between prisoners.

• A prisoner forced to violate himself with an object.

• A man beating himself against a wall as though to knock himself unconscious.

"I don't know how the hell these people got into our Army," said Sen. Ben Nighthorse Campbell, R-Colo., after viewing what he called a fraction of the images.

Law Prof Eric Muller of Is That Legal? asks, "Did the Justice Department Lie to the Supreme Court?" Check out the April 28 oral argument exchange Eric cites in the Hamdi and Padilla cases, between Justice Ginsburg and Paul Clement, the Deputy Solicitor General.

Eric says:

...we now know that the Justice Department has been involved in reviewing and approving methods of interrogation that have been used in at least some post-9/11 cases. Given that, I think it now fair to inquire--and I hope a relevant
congressional committee will do so--whether the Solicitor General's office knew, or could have known through the exercise of ordinary diligence, that our executive was using techniques of "mild torture" in interrogating prisoners of war and enemy combatants. Did Deputy Solicitor General Paul Clement make a knowingly or recklessly false assertion to the United States Supreme Court in order to bolster the government's legal position?

by TChris

Another story of one person taking a stand and making a difference: Kenneth Lavon Johnson sat at a "whites only" lunch counter in 1960. He stayed at the counter after being refused service, was arrested, convicted, sentenced to jail, and expelled from Southern University School of Law. A unanimous Supreme Court reversed his conviction in 1961. In Johnson's words: "The civil rights movement was on the move."

Johnson entered Howard University School of Law, graduated, and eventually became a judge in Baltimore. Now he's returning to Southern University. The school that expelled him is awarding him an honorary juris doctrate degree.

It is a sweet honor because I lived through it; I thought I was going to get killed when we sat at that counter. It's sweet also because, I hope, it will teach young people they can take stands in life for a cause greater than themselves. They probably will lose today, but if they are patient and persevere and endure as we did, they probably will win tomorrow. And the world will be better for their efforts.

The New York Times today reports that the CIA has used harsh, coercive measures against Al Qaeda detainees. We think that's a gross understatement. If the article is true, why not call it what it is: torture:

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as "water boarding," in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

....Counterrorism officials say detainees have also been sent to third countries, where they are convinced that they might be executed, or tricked into believing they were being sent to such places. Some have been hooded, roughed up, soaked with water and deprived of food, light and medications.

These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees.

The FBI won't participate in the conduct:

John Kerry said in a radio interview Wednesday he would choose Republican SenatorJohn McCain as Defense Secretary--or possibly Republican John Warner. We think Gary Hart would be a much better choice....for Defense Secretary or for Secretary of State.

McCain said "no thanks" when he heard about Kerry's comments.

TalkLeft received over 25,000 unique visitors Wednesday. That's a new record for us. Thanks to all for stopping by.

Defense Secretary Donald Rumsfeld testified Wednesday before the Senate Appropriations Committee on the Pentagon's request for an additional $25 billion to fund the Iraq war. For the first time publicly, he admitted the U.S. might lose the war in Iraq.

Rumsfeld said the prison abuse scandal had delivered a "body blow" to the nation-building effort in Iraq that has cost the lives of more than 770 U.S. troops. "Will it happen right on time? I think so. I hope so. Will it be perfect? No ... Is it possible it won't work? Yes," Rumsfeld said.

There was a great exchange between Sen. Dick Durbin (D-IL) and Rumsfeld and Generaly Myers--we've posted the transcript here--in which Rumsfeld defends the treatment of Guantanamo prisoners and engages in legal hair-splitting over the Adminstration's refusal to apply the Geneva Convention to them.

We've reproduced an exhibit introduced at the hearing consisting of the Interrogation Rules for Prisoners in Iraq (pdf.) Rumsfeld insisted they complied with the Geneva Convention. Durbin vociferously disagrees. Monday, Sen. Durbin delivered a blistering floor speech on the Iraq War and Bush's judicial nomination of William Haynes for a lifetime seat on the 4th Circuit Court of Appeals.

Some of the most flagrant legal violations have taken place at Guantanamo Bay. The administration claims that the detainees are not entitled to the protections of the Geneva Conventions, though they may be treated in accordance with some provisions of the conventions ``to the extent appropriate and consistent with military necessity.'' There is no room for hairsplitting when it comes to the law. This kind of policy sends a signal to lower ranking officials that the law is an obstacle to be overcome, not a bright line that cannot be crossed.

Contrary to this position, the Geneva Conventions protect all captured combatants and civilians. The official commentary on the conventions explains: ``There is no intermediate status; nobody in enemy hands can fall outside the law.'' The Geneva Conventions do not allow the hairsplitting which this administration has engaged in at Guantanamo and other places where there are detainees in this war on terrorism.