There is a new article by Center for Constitutional Rights attorney and Georgetown University Law Center professor David Cole, entitled "Enemy Aliens." It is available for download free from the SSRN Electronic Paper Collection:

"Enemy Aliens"
Stanford Law Review, Vol. 54, P. 953, 2002

BY: DAVID D. COLE, Georgetown University Law Center

Here is the Abstract:

"In the wake of September 11, many have argued that the new sense of vulnerability that we all feel calls for a recalibration of the balance between liberty and security. In fact, however, much of what our government has done in the war on terrorism has not asked American citizens to make the difficult choice of deciding which of their liberties they are willing to sacrifice for increased security. Instead, the government has taken the politically easier route of selectively sacrificing the rights of aliens, and especially Arab and Muslim aliens, in the name of furthering national security. This is an easy way to avoid the difficult trade-offs because it allows the citizenry to have their rights and their security, too.

This article chronicles the government's response to September 11 to make the case that we have relied upon such a double standard. The article then argues that the double standard we have employed is wrong as a constitutional and normative matter, counterproductive in terms of increasing security, and likely to pave the way for future incursions on citizens' rights. As a normative matter, I contend that while it is not irrational to focus our investigation on certain Arabs and Muslims, given the makeup of Al Qaeda, it is not legitimate to deny to foreign citizens the constitutional rights of due process and political freedoms, as these rights do not turn on citizenship, but on personhood. As a security matter, I argue that the double standards we have relied upon undermine the legitimacy of the war on terrorism, and decrease the likelihood that we will get meaningful cooperation from the targeted communities as we search for potential threats.

Finally, as a historical matter, I show that what we do to immigrants today often creates precedents that can be extended to citizens tomorrow. The example alluded to in the article's title is the Enemy Alien Act of 1798, which authorizes the jailing of any citizen of a country with which we are at war, based solely on their nationality, and irrespective of their loyalty or conduct. Iin World War II, the underlying rationale for this law was extended to U.S. citizens of Japanese descent, through the prism of race, and ultimately 70,000 of the 110,000 detainees were U.S. citizens. Thus, I maintain that in assessing whether and to what extent liberty should be sacrificed in the name of security, we should avoid the easy way out of targeting vulnerable minorities, and should adopt only those measures that we would tolerate if applied equally to all. "

In an op-ed piece in today's New York Times, Washington Bends the Rules, James Bamford, author of a recent book on the National Security Agency, compares Ashcroft's recent actions to those of the government in Franz Kafka's The Trial.

"With increasing speed, the Justice Department of Attorney General John Ashcroft is starting to resemble the "always vengeful bureaucracy" that crushed Josef K. Recently, in two federal cases, the Justice Department argued that it is within the president's inherent power to indefinitely detain, without any charges, any person, including any United States citizen, whom the president (through the Justice Department) designates an "enemy combatant." Further, the person can be locked away, held incommunicado and denied counsel. Finally, Mr. Ashcroft argues that such a decision is not subject to review by federal or state courts. This situation is beyond even Kafka, who in his parable of punishment and paranoia at least supplied Josef K. with an attorney."

Bamford points out that despite Ashcroft's increasingly "draconian dictates," it is not Congress that has come to our aid but the judiciary. He interprets the recent FISA court opinion taking the FBI to task for its mispresentations in 75 secret snoop applications as a sign that the court is more than a little concerned with Ashcroft's attempts to expand the Justice Department's powers.

"What triggered the court's extraordinary public rebuke was Mr. Ashcroft's proposal last March to greatly increase the amount of intelligence information shared between the spies and the cops. Many fear that erasing the line between the two groups will open up, in particular, a Pandora's box of domestic electronic espionage by the F.B.I. and the National Security Agency."

Bamford's description of the secret court is a little eerie.

"Today, like a modern Star Chamber, the F.I.S.A. court meets behind a cipher-locked door in a windowless, bug-proof, vault-like room guarded 24 hours a day on the top floor of the Justice Department building. The 11 judges (increased from seven by the U.S.A. Patriot Act) hear only the government's side."

The FISA court has approved 10,000 interception requests in its twenty five year history. It has never turned one down. In the event it were to deny a request, there is a special FISA appeals court. It is the only appeals court in the country which has never heard a case. Its first case will be the Government's appeal of the recently released May 17 FISA Court order.

Bamford describes the FISA appeals court judges as "the Maytag repairmen of the federal judiciary." Government appeals from the FISA appeals court go directly to the U.S. Supreme Court--in closed session.

Bamford calls upon Congress to hold hearings, some of them open, on how to fix the system.

He compares the FISA Court's unprecedented public release of the May 17 opinion to Josef K. in Kafka's The Trial, when he was so tired of the fight he lost his will to resist. "The release of the May 17 opinion (by the court's new presiding judge) to the Senate Judiciary Committee, and the committee's release of it to the public, can reasonably be seen as cries for help."

U.S.A. Today reports Dr. Steven Hatfill again proclaimed his innocence and denounced Ashcroft at a news conference.

Hatfill has been so utterly outraged since the first day the media published his alleged involvement in the Anthrax mailings, he's convinced us and many others.

At today's press conference he said:

"I want to look my fellow Americans directly in the eye and declare to them, 'I am not the anthrax killer. I know nothing about the anthrax attacks. I had absolutely nothing to do with this terrible crime.'"

"My life is being destroyed by arrogant government bureaucrats who are pedaling groundless innuendo and half-information."

Hatfill's lawyers have filed an ethics complaint against Ashcroft and others involved in the investigation.

As Skippy said today over on his blog:

"Six words come to mind: wen ho lee and richard jewell."

Update: Instapundit tells of us Joel Mawbry's new article on NRO comparing Hatfield and Jewell and saying, basically, the Government ought to put up the evidence or shut up.

Daily Kos, as has become the norm, has an excellent analysis of the eroding support for a war with Iraq.

His prediction (and he has numbers to back it up):

"Expect public support for war to continue to erode as more and more prominent Republicans (and a few Democrats) make strong and persuasive arguments against the invasion."

Attorney General John Ashcroft is again under fire--this time for blocking attempts by Congress to review Justice Department counterterrorism policies and provide terror-related documents.

Republican Congressman F. James Sensenbrenner Jr. (R-Wis.), "has threatened to issue a subpoena for Ashcroft if answers are not provided by Labor Day."

Stay tuned....

We nodded in agreement all the way through Frank Rich's The Waco Road to Baghdad in today's New York Times.

Here's a sample:

"The White House keeps saying that no decision has been made about Iraq, but of course a decision has been made. Richard Perle, an administration Iraq hawk, gave away the game in yesterday's Times: "The failure to take on Saddam after what the president said" would lead to "a collapse of confidence." Translation: If Mr. Bush doesn't get rid of Saddam after all this saber rattling, he will look like the biggest wimp since -- well, his father. "

"Democrats, as timid in challenging Mr. Bush on Iraq as they were in letting his tax cut through Congress, keep calling for a "debate." What world are they living in? Mr. Bush is no sooner going to abandon his pursuit of Saddam than his crusade to eliminate the estate tax. These are his only core beliefs. "

"The questions left to be debated now are who's going to pay for the war, who's going to be killed in it, who's going to police what could be a decade-long cleanup. (So far the answer to all three seems to be first and foremost: the go-it-alone Americans.)"

" The loudest voices asking these questions are almost exclusively Republican: Brent Scowcroft, Chuck Hagel, Henry Kissinger, even Dick Armey. "

Are you against our Government invading Iraq? We certainly are. And so apparently are many of the leading Republicans in Congress, the State Department and past Administrations.

If you are wondering what you can do about it, here's a petition you can sign from Democrats.com to make your views known.

Among the points contained in the petition:

"George W. Bush has no authority under the Constitution to invade Iraq. The Constitution requires Congress to declare war, but Bush believes he can simply ignore the Constitution, in direct violation of his sworn oath to 'protect and defend the Constitution of the United States.' If Bush insists on starting a war without an Act of Congress, then Bush should be impeached."

"We call upon all genuinely patriotic Americans to join us in declaring our opposition to a US conquest of Iraq."

And this from MoveOn , a nationwide network with more than 450,000 online activists:

"As President Bush, Vice President Cheney, and Defense Secretary Rumsfeld drive the nation toward a war with Iraq, everyone from their top generals to Henry Kissinger is urging them to reconsider. MoveOn is organizing constituent meetings with the offices of every Senator in which we can urge them to critically examining the rationale for a war.

Check in with MoveOn Friday, August 16 to register for a meeting in your state and join thousands in voicing your concern about an Iraq war.

For more anti-war resources, including links to activism sites, articles and commentary, don't miss the Nation's No Rush To War.

For some thoughtful analysis on why we should oppose this war, check out Daily Kos's "Not Your Father's Gulf War," and its sequel.

ABC News Online is featuring an original report today posing the question Is Torture a Tool in the War on Terror?

Writer Peter Chang examines both whether the War on Terror has changed attitudes on using torture and the reactions to the U.S. refusal to sign the amendment to the U.N. treaty against torture.

Our refusal to approve the amendment is problematic because prisoners are subject to the law of the country in which they are detained which could result in harsher treatment for them than would be allowed under U.S. law.

Dr. Steven Hatfill Sunday denied being involved in the Anthrax Plot.

Last June he agreed to let FBI agents search his home. They promised him it would be secret. Today he faced news cameras as he angrily denounced the investigation and the charges.

"Within minutes of my signing the release to have my residence and property searched, television cameras, satellite TV trucks, overhead helicopters, were all swarming around my apartment lot," he said.

The F.B.I.'s response? "The F.B.I. does not alert the news media to the service of search warrants."

Maybe they don't do media alerts as a matter of course, but did they do it this time? Or did they leak it to a non-media source knowing or not caring it would subsequently reach the media? Or was it a rogue agent who leaked on his own?

Whichever way you slice and dice it, the FBI has some major explaining to do.

We admire Hatfield's spunk, particularly when he said:

"I acknowledge the right of the authorities and the press to satisfy themselves as to whether I am the anthrax mailer. This does not, however, give them the right to smear me and gratuitously make a wasteland of my life in the process. I will not be railroaded."

This is eerily reminiscent of Richard Jewell. Hatfield has already lost his job. If he's exonerated, you can bet he'll sue for big bucks. And we doubt the FBI will be saved by cover-your-ass statements like Hatfield is a "person of interest," not a suspect.

Update: Tapped today reminds us of Laura Rozen's American Prospect article from June 27, "Who is Steven Hatfill?"

As promised, here's what Larry Thompson, Deputy Attorney General, or "CEO of the Justice Department" as he referred to himself, said today at the ABA Criminal Justice Section Council Luncheon where he was the keynote speaker.

He addressed two topics: the detention of enemy combatants and corporate fraud. As to the first, it was pretty standard with some familiar buzz lines:

"The Constitution is not a suicide pact" and

"We will think outside the box. We will not think outside the Constitution."

His message was short: Enemy combatants who take up arms against America, including those who are U.S. citizens, are not entitled to enter the criminal justice and court systems. He analogized them to the famous WWII case of a few Germans captured here who were treated as enemy combatants. He said, "Their execution served a necessary purpose" in fighting WWII.

It should be noted that the Justice Department position is directly opposite that of the ABA. ABA President Robert Hirshon commissioned the ABA Task Force on Treatment of Enemy Combatants. The task force, chaired by Miami lawyer Neal Sonnett, included military law experts, prosecutors, judges and defense counsel. Here is the report, jsut released yesterday.

In a nutshell, the report calls for detained citizens to have the right to counsel and judicial review of their cases. The report did not address the rights of foreign nationals who are detained as combatants.

In his remarks yesterday, ABA President Hirshon said, "We accept the importance of intelligence gathering, we need it, but that doesn't mean you suspend the Constitution."

Back to Larry Thompson, who moved on to discussing corporate fraud. Thompson, who has extensive prosecutorial and defense experience in corporate fraud cases and is widely considered to be fair, smart and dedicated, an opinion shared by TalkLeft, has been named by President Bush to head up the new Corporate Fraud task force.

The fraud task force is an inter-agency task force that includes the DOJ, Treasury Dept., SEC, and other agencies. The task force will marshal law-enforcement resources.

Thompson said this means that we will be seeing a lot of indictments of the corporations themselves--charged as entities rather than indictments of just the employees. It won't be automatice that an employee's wrongdoing will lead to the indictment of the corporation, but it will be evaluated in every case.

Justice will use a seven factor analysis to determine whether to charge the coporations. We couldn't write as fast as he rattled them off, so here's those we did get: the corporation's history of wrongdoing; its response to learning of wrongdoing within the corporation, meaning what controls did they set in place to ensure it didn't happen again; the level within the corporation at which the fraud existed (how high up it was); and the pervasiveness of the behavior.

Only by prosecuting the corporations themselves, Thompson said, can there be systemic reform. This is because civil sanctions don't work and are not an effective deterrent. Corporations consider the loss of money to be a routine cost of doing business.

He urged lawyers to remember that when they represent a corporation, their client is not the managment team or individuals who retained them but the corporation itself, which means the shareholders and investors.

He was warmly received, particularly by defense lawyers in the group who have known and worked with him when he was in private practice. For the record, yes we know that some have alleged he has a conflict in leading the corporate task force because the law firm he practiced with and of which he was a partner represented some of the corporations who might be looked at. We are confident that Thompson knows what a conflict is and would have been the first to decline the position if he had an actual conflict.

After Thompson's speech we went over to the exhibition hall to see what the legal service providers were offering and what freebies they were giving away. As usual, the best of the bunch was Lexis-Nexis and Martindale Hubbell. In addition to the goodies they gave away, they had installed ten or more computers in the center of the room so the lawyers could check their email and surf the internet. They also provided the buses that ran all day long shuttling lawyers between the various hotels hosting different section meetings.

The CIA has been having a tough time recruiting. See, The Slowly Changing Face of the CIA Spy

No longer do they want their typical applicant--the white, middle-class male. After the agency's
post-9/11 travel ban was lifted,

"Recruiters held 200 campus events in six months, and the agency increased its Internet advertising and spent nights and weekends interviewing applicants in its Northern Virginia recruitment headquarters, located in an industrial park with a false business name. It also began holding dozens of orientation sessions across the country..."

What does it take to be an operative these days? The job could be your's if you "pass the polygraph tests and interviews, accept a $45,000 to $60,000 annual salary, and are willing to live a lie."

How big is the demand? After Sept. 11, "the demand for clandestine operators increased 70 percent."

Who made the first cut? "a professional athlete, a former beer company spokesman, an actor, a trial lawyer, a Middle Eastern-born naturalized citizen, a former Navy SEAL, an Army Special Forces member and a Marine....Only 10 percent are second-generation immigrants who could possibly fit in Middle Eastern, East African or Asian societies."

Earlier this week it was the Justice Department's Inspector General's report that caused a stir with its finding that weapons and computers belonging to the FBI and INS were lost or stolen.

Today it's Customs' turn. The Treasury Department's Inspector General's report discloses that thousands of computers and employee credentials have been reported stolen or missing during the last three years.

"Many of the computers could have contained information that was classified or related to law enforcement investigations, while the badges could be used for someone to pose as a customs officer or gain access to prohibited areas, according to the report and security experts."