Thanks ew. digg

I thought that the “journalists” might be joining us. Wasn’t that the point of Tice’s narrative?

But do we have a Chuck Krulak who will take on those who insist the restoration of our civil liberties (and the prosecution of those who took those liberties away) will be big gift to Osama bin Laden?

I’m not at all surprised at General Krulak’s willingness to stand up for what’s right; it’s in keeping with the truth-telling courage of his father, Lt. Gen. Victor Krulak, who died late last month at the age of 95. Here is a link to the eulogy given at his memorial service by Robert Coram, the biographer of a number of recent military figures. Here is a telling, and tragically amusing excerpt (apologies for the caps, but they’re in the original):

IN 1967, LIEUTENANT GENERAL KRULAK WAS COMMANDING GENERAL, FLEET MARINE FORCE, PACIFIC, AND FIRST AMONG THOSE BEING CONSIDERED FOR COMMANDANT OF THE MARINE CORPS. HE HAD EVERYTHING TO LOSE WHEN HE WENT TO THE WHITE HOUSE AND CONFRONTED PRESIDENT JOHNSON OVER HOW THE VIETNAM WAR WAS BEING PROSECUTED AND HOW TOO MANY RESTRAINTS WERE BEING PLACED UPON THE MILITARY.

THE OUTLINES OF THAT INCIDENT ARE WELL KNOWN. WHEN I ASKED THE GENERAL FOR MORE DETAILS, TO TELL ME WHAT HAPPENED NEXT, HE SAID, “PRESIDENT JOHNSON STOOD UP, PLACED HIS HAND IN THE SMALL OF MY BACK, AND PROPELLED ME OUT OF THE OVAL OFFICE.”

This incident in all likelihood cost Victor Krulak, the obvious candidate, the appointment as commandant of the Corps promotion to four stars. But he lived to see his son assume and perform that job 30 years later.Here is his wikipedia bio.

She describes a meeting at which high level intelligence advisors confirmed what we all know–that ending torture will not affect our ability to collect intelligence at all.

Last Thursday night I had one of my frequent bouts of insomnia and, as I often do on such occasions, I turned on my radio to the local NPR station. It was broadcasting a BBC World Service interview with some American who was adamantly justifying the Bush-Cheney cabal’s use of torture, and who asserted with absolute assurance that tortuous interrogations had prevented several terrorist attacks. Needless to say the skeptical BBC interviewer kept leading him on and giving him more rope. When the interview was over I drowseyly heard the announcer rattle off his name, which I didn’t quite catch, and then say he was a former speech writeer for Bush. I think he might have said “Michael Gerson” but I can’t swear to it.

I was quite stunned that this person, who had been in the administration, flat out admitted proudly that the BC admin had engaged in torture and was proud that they had served their country in doing so. I had never heard of any other person affiliated with the the Cabal doing so. Have I missed something?

In any case, I spent a fair amount of time the next day trying to find the piece linked on the BBC website but to no avail. I thought I had found it listed the BBC/WS schedule on the website as having run at 0930 hours GMT on Friday, January 23, which was the right time. However when I listened to it, although some of the content was on the same topic, I didn’t hear the piece I heard (I think!) the previous night. Perhaps I was dreaming, but I don’t think so. Or maybe BBC scrubbed it at someone’s behest. I’m going to look again and post a link if I find it. What I remember was so explicit and so in-your-face that I would think it could be quite damaging if in fact it was someone as close to the center of the pit as Gerson. The search is not helped by the fact that the BBC/WS site appears to be under-servered and frequently times out.

I got a prediction.

[Out of concern for those who could not care less about the basis for it, or just can’t stand my writing, it’s in the last two paragraphs.]

I know William Ockham at least will recall this, but last year – – before the fall [and/or the Fall] and before Marty Lederman left Balkinization – Jack Balkin put up a series of posts considering AOT distinctions between the concept of the “Security State” versus the “Surveillance State” – including:

how both were a fait accompli –
that completely eliminating either was pure innocent fantasy –
that we needed a serious public discussion about the distinctions and where we draw the lines –
and arguing that in many ways the former at least is a ‘good thing’.

There was an element of fatalism to his analysis – of course – but he pushed his propositions and the discussion in the directions of the acknowledging [and defining] what I’d call CORE PRIVACY.

[I can’t recall now but even the term might have come from him. In any event, he raised the concept of core privacy partly in contrast with traditional and historical conceptions of privacy – primarily on the basis that most of those are have been myths for some time].

IMO the entire range of this discussion – and more, given his current job – is, without meaning to suggest PBHO read the series [If he did, would that surprise anyone here? Talk about ‘change’.] – very much within the ‘big think’ stuff that, from my reading of his two books

[and consistent with the way his positions are expressed, from the caution shown in his interviews, to speeches so dense with all manner of references, they should come with footnotes, to the spareness shown in the end product of decision-making, and all of it suffused with a sense of pre-deliberated sure-footed elegance I can’t recall seeing in my life from politicians – stage magicians, okay – tho I’m a little too ‘young’ to have experienced FDR, leave aside Lincoln].

I’m going to make a wee prediction: first on one aspect of his internal deliberations [easy, since it’s already so public] – then as to the outcome [which – I dunno – might rile up some folks] – – about the FAA [the FISA Amendment Act] in the course of which I raise a third reason why then-Senator Obama would flip-flop on that, the first two being respectively electoral convenience and the nature of his own style of “deliberative process” [which I’ll not dwell on here], that third reason being why IMO he’s going to delay action on what we all here surely realize is the effective implementation of the TIA by the BCAdmin, contrary to the clear PUBLIC expressions of the will of Congress [as if that meant anything to them].

Many, perhaps most, certainly the lawyers here will know that the ‘nuts and bolts’ of a 4th Amendment challenge launched in the context of a suppression hearing very often boils down to the court being called on to consider how the 4th and the precedents of jurisprudence on the 4th suggest parameters for legitimate expectations of privacy, and applying that analysis to the peculiar facts of the case.

I started practicing law before the FISA of 1978, but it’s non-existence then didn’t have any practical meaning to the vast majority of cases involving communications surveilled and intercepted by government investigators: there was already a long history resulting in voluminous jurisprudence on the 4th Amendment, a fair slice of which involved what we then [accurately] and today [euphemistically] call ‘wiretapping’ – it being then a generation before the appearance – to say nothing of the prevalence – of written e-communications over the Internet.

A fairly recent post by Ms E Wheel provides a useful point of departure: the revelation by the office of US attorney Patrick Fitzgerald that the investigation into MacBlago has included surveillance on the outside entrances of places he is understood to conduct whatever it is MacBlago conceives of as his ‘business’, among other things, mainly we would suppose, in an effort to put – and prove – a face and a name to a disembodied voice that might be ‘intercepted’ in communication with one or more others while inside.

For a long time since the ‘fruits’ of wiretapping began to be used in criminal cases, the courts have notionally extended the 4th amendment to our phone conversations [and then our emails], the same as if the communications in them were “in [our] persons, houses, papers, and effects” – – and it’s pretty easy, as well as completely publicly accessible, to see how that would have and in fact did come about.

But not always, or universally. Some here [I’m one.] will recall the phenomenon of the “party line”, from when it wasn’t, like today, a specially set-up feature, for whatever purpose [mostly political and policy briefings, I’m sure], but the only form in which the telephone as a utility was available in some areas and contexts. And it played a part in the analysis I referred to, being: whether the two [usually it was two] participants in what was argued by one side as being a ‘private communication’, analagous to at least one form of intercourse that was/is typically assumed to occur within one’s own “house”, was, having regard to all that one might assume the participants actually knew, plus those the participants ‘must have’ known, conducted in ‘circumstances’ to which the law was intended to extend the ‘EXPECTATION of privacy’ implied in the 4th amendment.

Ask yourself now what your own personal ‘expectation’ of privacy is, as to your reading of this response; as to my own ‘expectation’ of such in posting it; as to any response you might post to it here. ‘Extend’ that to your phone call later today to order a pizza; to your phone call this evening to one of your children away at college; to your email to one of the other members of your bi-weekly book club. Does it matter to you that each and every one of these communications is being ‘intercepted’ under some government program that might as well be called the TIA? More to my point: Does knowing that make a difference to your ‘expectation of privacy’?

Like a number of the lawyers who post here, I’ve worked with the concepts of probable cause and spheres of expectations of privacy throughout my career. And all during that time, I’ve felt comfortable that I could rely on a body of reported, publicly-available precedents derived from years to decades, sometimes extending into centuries, making up a huge body of accepted jurisprudence, the vast bulk of which is irrelevant to the point of this comment, but ALL of which is subject to review, reconsideration and RE-STATEMENT to reflect modern reality.

I’m thinking that this, among many other things of course, is pretty much what President Obama is thinking about when he considers the reality and the effects of what the Bush administration has brought about with its illegal expansion of government surveillance of the citizenry.

No one can predict with any precision where President Obama will end up on this – or indeed whether where precisely he ends up on this will be deferred to in Congress [though pretty clearly Congress and even some judges, including one entire court, have deferred to much of the said Bush illegality, whether they admit so or not] – but I think he’s deferring coming to a decision until he knows what all this entails, which obviously will take time [and the assistance of a guide: how about Mike McConnell? Oh: he’s now working in the WH you say?].

Nonetheless, I predict that, when he’s done thinking [and when he thinks his administration can bear it], we will see a brand spanking new conceptualization of whether and how those words in the 4th amendment – “[our] persons, houses, papers, and effects” – apply in this Age of Communication, that will reflect far more accurately, and far less idealistically, what the government is already doing.

[I would LIKE to think we’ll hear from him on his views as to how probable cause operates in relation to chasing foreign communications into the domestic sphere – but I have no clue whether he might see that the way I do, and I very much doubt his day involves lurking here.]

All of which goes to show that–even for the noted efforts with Obama’s own facebook infrastructure–we probably don’t have the political might yet that is behind the fight against torture

late to this thread but I need to make an important point which cannot be understated;

the “powerful force” that is behind the push toward indorcing torture is cheney/rove(bush) and their fear of prosecution

he has their entire arsenol of corporate propagandist hacks doing every thing possible, they need to get public acceptance of torture mainstream

it is our job disabusing them of their meme, torture PREVENTS us from gathering inteligence it does not facilitate, torture CAUSES terrorist events it does not prevent them, torture EMBOLDENs our enemy it does not discourage our enemy, torture CONVINCES more terrorists it does not disuade them