Thursday, February 10, 2005

On the Dulling of Shining Examples

On the Dulling of Shining Examples

"Do yourself a favor. Read the guy his rights. It may be old-fashioned, but this will come out if we don't. It may take ten years, but it will hurt you, and the bureau's reputation, if you don't. Have it stand as a shining example of what we feel is right."

- Jack Cloonan, an FBI officer since 1972, who has worked antiterrorism cases


In the most recent New Yorker, Jane Mayer has written a comprehensive piece titled "Outsourcing Torture", which is being discussed by many, including scholars in the legal field. John C. Yoo was deputy assistant attorney general at the time he, along with his colleagues in the Bush administration, generated the now-famous set of internal legal memos advising the President that he had almost unfettered latitude in his prosecution of the war on terror. This laid a firm foundation for a shift in perspective that had been developing in the administration's attitude toward humantarian law, which had begun soon after 9/11, when administration attorneys began to advise President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror.

Yoo has been a chief advisor in arguing that the Constitution grants the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many legal scholars.

Some knowledgeable about Constitutional law believe that the right wing has been embracing constitutional theorist Bruce Ackerman’s theory of amendment via ‘constitutional moments’ all too readily . (Not on just this one issue, but in general). Ackerman has written, "We the People can reclaim our power to rewrite the Constitution in ways that express our modern constitutional identities. We can become masters of our own house."
Yet, Professor Ackerman has also written, regarding Abu Ghraib:

"America has taken the lead in the postwar period in holding officials in other countries legally responsible for their abuses of power. It is time to judge ourselves by the same rules we impose upon others...[..]..Abu Ghraib has put America on trial before the world. More important, it forces us to look at ourselves in the mirror and define the relationship of law to our public life. Unless we act decisively, the present scandal may serve as a prelude to a grim future."

At times when many readers slap an anti-American label on American citizens like me, I would solemnly remind them of what I am saying here. The Founding Fathers crafted one hell of a constitution and Bill of Rights. James Madison said, "Democracies have ever been spectacles of turbulence and contention, have ever been found incompatible with personal security or the rights of property, and have in general been as short in their lives as they have been violent in their death." He wasn't just whistling Dixie. (Pun intended - look at the nation we nearly lost in the 1860s.) Madison was on to something that has kept the United States Constitution alive longer than any other charter of government in history.

A republic differs from a democracy like the rule of law differs from the rule of the masses. In the case of Alberto Gonzales and John C. Yoo, I believe they are neglecting to respect the rule of law. All of this is going to come back and bite us in the tail. Our Constitution is going to be damaged, and so is the strength and power of the United States.

Thinking carefully about the new legal perspective which Yoo has been advocating, I have a reality-based fear that our Constitution won't be "living" much longer. If a president is free and willing to ignore law on a whim, it gravely damages the theory behind having a constitution to begin with. We are at the door to the potential of tyranny, if we are not already there. It is a silent tyranny of which many Americans will miss the signs due to partisan blindness and media misinformation.

Idealistic or not, we are all schooled to believe that our nation prides itself on its republican values, form and health. President Ronald Reagan's "shining city upon a hill" is not a vision embraced by one political party alone. We are one, but we are many and diverse. We all want our nation to represent our common values and we would expect them to act morally and with the utmost respect for the rule of law in all national undertakings. Torture is not a moral value. Torture is no "chamois cloth of dignity". We are taking steps closer to the legal acceptance of torture, which will surely not enhance our "shine".

Everything that has been done at the top filters down to guys like Jack Cloonan, a veteran FBI agent. He understood that a breakdown in the respect for law would serve to dull the shining example we have set, as worshippers of democracy, as a decent people in a decent civil society, as Americans from that visionary city upon a hill. It is one of the bedrock principles of the rule of law that a law-enforcement officer cannot break the law as a means of enforcing the law. Cloonan understood that when he professionally came to face a situation where he had to decide how to handle an al Qaeda figure by the name of Ibn Sheikh al-Libi, a man who had run Osama bin Laden's terrorist training camp in Afghanistan.

Read Cloonan's part in Jane Mayer's New Yorker story and think about how far the Bush administration has come to break down key legal perspective differences which have separated us from the terrorists.

From: Outsorucing Torture by Jane Mayer, New Yorker, Feb 14 & 21, 2005

A few months after September 11th, the U.S. gained custody of its first high-ranking Al Qaeda figure, Ibn al-Sheikh al-Libi. He had run bin Laden’s terrorist training camp in Khalden, Afghanistan, and was detained in Pakistan. Zacarias Moussaoui, who was already in U.S. custody, and Richard Reid, the Shoe Bomber, had both spent time at the Khalden camp. At the F.B.I.’s field office in New York, Jack Cloonan, an officer who had worked for the agency since 1972, struggled to maintain control of the legal process in Afghanistan. C.I.A. and F.B.I. agents were vying to take possession of Libi. Cloonan, who worked with Dan Coleman on anti-terrorism cases for many years, said he felt that “neither the Moussaoui case nor the Reid case was a slam dunk.” He became intent on securing Libi’s testimony as a witness against them. He advised his F.B.I. colleagues in Afghanistan to question Libi respectfully, “and handle this like it was being done right here, in my office in New York.” He recalled, “I remember talking on a secure line to them. I told them, ‘Do yourself a favor, read the guy his rights. It may be old-fashioned, but this will come out if we don’t. It may take ten years, but it will hurt you, and the bureau’s reputation, if you don’t. Have it stand as a shining example of what we feel is right.’”

Cloonan’s F.B.I. colleagues advised Libi of his rights and took turns with C.I.A. agents in questioning him. After a few days, F.B.I. officials felt that they were developing a good rapport with him. The C.I.A. agents, however, felt that he was lying to them, and needed tougher interrogation.

To Cloonan’s dismay, the C.I.A. reportedly rendered Libi to Egypt. He was seen boarding a plane in Afghanistan, restrained by handcuffs and ankle cuffs, his mouth covered by duct tape. Cloonan, who retired from the F.B.I. in 2002, said, “At least we got information in ways that wouldn’t shock the conscience of the court. And no one will have to seek revenge for what I did.” He added, We need to show the world that we can lead, and not just by military might.”

After Libi was taken to Egypt, the F.B.I. lost track of him. Yet he evidently played a crucial background role in Secretary of State Colin Powell’s momentous address to the United Nations Security Council in February, 2003, which argued the case for a preëmptive war against Iraq. In his speech, Powell did not refer to Libi by name, but he announced to the world that “a senior terrorist operative” who “was responsible for one of Al Qaeda’s training camps in Afghanistan” had told U.S. authorities that Saddam Hussein had offered to train two Al Qaeda operatives in the use of “chemical or biological weapons.”

Last summer, Newsweek reported that Libi, who was eventually transferred from Egypt to Guantánamo Bay, was the source of the incendiary charge cited by Powell, and that he had recanted. By then, the first anniversary of the U.S. invasion of Iraq had passed and the 9/11 Commission had declared that there was no known evidence of a working relationship between Saddam and Al Qaeda. Dan Coleman was disgusted when he heard about Libi’s false confession. “It was ridiculous for interrogators to think Libi would have known anything about Iraq,” he said. “I could have told them that. He ran a training camp. He wouldn’t have had anything to do with Iraq. Administration officials were always pushing us to come up with links, but there weren’t any. The reason they got bad information is that they beat it out of him. You never get good information from someone that way.”