Recently, some scholars and government officials have called for the creation of “national security courts”—specialized hybrid tribunals that would review the preventive detention of suspected terrorists (both within and outside of the territorial United States), conduct the detainees’ criminal trials, or, in some cases, both.1 Advocates for these courts claim that they offer an attractive middle ground between adherence to traditional criminal processes and radical departures from those processes.2

For the reasons that follow, we, the undersigned members of the Constitution Project’s Liberty and Security Committee and its Coalition to Defend Checks and Balances, believe that the proposals to create these courts should be resisted. The proposals are surprisingly—indeed alarmingly—underdeveloped. More seriously, they neglect basic and fundamental principles of American constitutional law, and they assume incorrectly that the traditional processes have proven ineffective. The idea that there is a class of individuals for whom neither the normal civilian or military criminal justice systems suffice presupposes that such a class of individuals is readily identifiable—and in a manner that does not necessarily pre-judge their guilt. The idea that national security courts are a proper third way for dealing with such individuals presupposes that the purported defects in the current system are ones that cannot adequately be remedied within the confines of that system, and yet can be remedied in new tribunals without violating the Constitution.

We believe that the government can accomplish its legitimate goals using existing laws and legal procedures without resorting to such sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries. We separately address below proposals for a national security court for criminal prosecutions of terrorism suspects and proposals for such a court to review preventive detention decisions, and the reasons why each should be rejected.

A Critique of "National Security Courts"

On Thursday, June 26, the House Judiciary Committee will conduct hearings into the legal genesis of the Administration’s torture policies. Featured witnesses will be David Addington and John Yoo, who was the principal draftsman of the torture memoranda. KPFA and participating Pacifica Network stations will be carrying the hearing live, gavel-to-gavel, starting at 9:00 a.m. Eastern time. Pacifica’s Larry Bensky and Harper’s legal affairs contributor Scott Horton will be co-anchoring the broadcast, which can be monitored through a streaming webcast.

From the archive:

While the gregarious Mr. Yoo continues to insert himself into the limelight and is now the best-known, it’s clear that his role is subsidiary to that of Haynes and Addington.

From Mike, from May:

David Addington, Cheney's chief of staff, refused to testify without a subpoena. No date has been set for his appearance before Congress.

"We're one bomb away from getting rid of that obnoxious [FISA] court," Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004.

After 9/11 they and other top officials in the administration dealt with FISA they way they dealt with other laws they didn't like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.

From last year:

The most provocative aspect of Goldsmith's argument, however, is also the least persuasive. He contends that the problem was not that Addington and the administration did not care sufficiently about the law, but that they cared too intensely, so much so that they were "strangled by law." He claims that "this war has been lawyered to death," and describes government officials as overly chilled by the prospect that they might be held criminally accountable for actions taken in the name of the country's security. Goldsmith prefers the good old days when matters of national security and war were, for the most part, not regulated by federal legislation, and presidents, such as FDR, were free to shape their judgments without regard for law, and could concentrate instead on "political legitimation."

Also from last year:

In the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.

See also:

a typical display of Mr. Yoo’s dubious talents; "is it true that in America, Bush can fire prosecutors he doesn't like?"; In America today, the mentality of courtiers has reappeared; "Because the danger remains, we need to ensure our intelligence officials have all the tools they need to stop the terrorists"; "If a government defendant were to harm an enemy combatant ..."; the Fourth Amendment had no application to domestic military operations.

The Addington–Yoo Hearing, Gavel-to-gavel

Code is Law.

As Google's influence grows, a number of scholars and programmers have begun to argue that the company is acquiring too much power over our lives - invading our privacy, shaping our preferences, and controlling how we learn about and understand the world around us. To counter its pervasive effects, they are developing strategies to push back against Google, dilute its growing dominance of the information sphere, and make it more publicly accountable.

Some of the suggestions for fighting back are more practical than others, but taken together they represent an argument that "searching" is no longer a neutral tool, but has become a social force in itself - Google's hidden algorithms have the power to make or break reputations and fortunes, to shape public debates, and to change our view of the world.

The challenge is how to do this without undermining an online application that, even its critics concede, is one of the greatest learning and labor-saving devices of our time.

Two from last year:

Virgil Griffith, creator of Wikiscanner, announced LawScanner within two hours after Speaker Pelosi's declaration. The Register writes up the story: Code is Law, but Law is Sausage.

Mmmm, don't you just love the smell of PageRank in the morning?

War’s changing character is not only augmented by the emergence of the new media; the way the web and today’s communication devices are used to organize lives also instructs our understanding of how killing is organized. The argument put forward here is that the web’s emerging organizing principles — including a social as well as a technological dimension — increasingly govern the management of violence.

Also:

10: Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

Finally:

According to Sense Networks, all the location data that it gathers from mobile phones, GPS and Wi-Fi is completely anonymous so privacy should not be an issue.

Stopping Google

“A wonderful, important book…I’d recommend Little Brother over pretty much any book I’ve read this year, and I’d want to get it into the hands of as many smart thirteen-year-olds, male and female, as I can. Because I think it’ll change lives. Because some kids, maybe just a few, won’t be the same after they’ve read it. Maybe they’ll change politically, maybe technologically. Maybe it’ll just be the first book they loved or that spoke to their inner geek. Maybe they’ll want to argue about it and disagree with it. Maybe they’ll want to open their computer and see what’s in there. I don’t know. It made me want to be thirteen again right now, and reading it for the first time.” —Neil Gaiman, author of Sandman and American Gods on Little Brother

“A believable and frightening tale of a near-future San Francisco … Filled with sharp dialogue and detailed descriptions… within a tautly crafted fictional framework.” -Publishers Weekly starred review

“Readers will delight in the details of how Marcus attempts to stage a techno-revolution … Buy multiple copies; this book will be h4wt (that’s ‘hot,’ for the nonhackers).” -Booklist starred review

“Marcus is a wonderfully developed character: hyperaware of his surroundings, trying to redress past wrongs, and rebelling against authority … Raising pertinent questions and fostering discussion, this techno-thriller is an outstanding first purchase.” -School Library Journal starred review

"Little Brother is generally awesome in the more vernacular sense: It's pretty freaking cool ... a fluid, instantly ingratiating fiction writer ... he's also terrific at finding the human aura shimmering around technology." -The Los Angeles Times

“Read this book. You’ll learn a great deal about computer security, surveillance and how to counter it, and the risk of trading off freedom for ‘security.’ And you’ll have fun doing it.” —Tim O’Reilly

“I know many science fiction writers engaged in the cyber-world, but Cory Doctorow is a native…We should all hope and trust that our culture has the guts and moxie to follow this guy. He’s got a lot to tell us.” —Bruce Sterling

See also here, where you can download a soft copy.

Little Brother, by Cory Doctorow

Dmitry Orlov:

In the waning days of the American empire, we find ourselves mired in political crisis, with our foreign policy coming under sharp criticism and our economy in steep decline. These trends mirror the experience of the Soviet Union in the early 1980s. Reinventing Collapse examines the circumstances of the demise of the Soviet superpower and offers clear insights into how we might prepare for coming events.

Rather than focusing on doom and gloom, Reinventing Collapse suggests that there is room for optimism if we focus our efforts on personal and cultural transformation. With characteristic dry humor, Dmitry Orlov identifies three progressive stages of response to the looming crisis:

* Mitigation-alleviating the impact of the coming upheaval
* Adaptation-adjusting to the reality of changed conditions
* Opportunity-flourishing after the collapse

He argues that by examining maladaptive parts of our common cultural baggage, we can survive, thrive, and discover more meaningful and fulfilling lives, in spite of steadily deteriorating circumstances.

This challenging yet inspiring work is a must-read for anyone concerned about energy, geopolitics, international relations, and life in a post-Peak Oil world.

Reinventing Collapse: The Soviet Example and American Prospects

Andrew Bacevich reviews new books by Douglas Feith and Ricardo Sanchez.

Setting aside combat memoirs, of which there are a growing number, the literature of the Iraq War divides neatly into two categories. The first category, dominated by journalistic observers, indicts. The second category, accounts authored by insider participants, acquits. The two books reviewed here fall into the second category: They are exercises in self-exculpation. Pretending to explain, their actual purpose is to deflect responsibility.

Apart from the finger-pointing and score-settling, these two accounts do agree at least implicitly on a single issue: taken as a whole, the national security apparatus is irredeemably broken. The so-called “interagency process” created to harmonize the efforts of national security institutions so that the president receives sound and timely advice and to ensure that presidential decisions are promptly implemented, whether in Baghdad or within the Beltway, actually produces the opposite effect. From quite different vantage points, Feith and Sanchez affirm that the principal product generated by the interagency process is disharmony, dishonesty, and dysfunction. Whether a different process employing the same people or recruiting different people while retaining the existing process would yield different results is difficult to say. To imagine, however, that simply electing a new chief executive in November will fix the problem is surely to succumb to an illusion.

Fault Lines: Inside Rumsfeld's Pentagon

Benjamin Wittes’ Law and the Long War is required reading for anyone interested in the legal challenges posed by the war on terror.

A short book review.

Terror and the Law: The Limits of Judicial Reasoning in the Post-9/11 World

This new book by Benjamin Wittes is said to be required reading.

Six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror. It is losing not to Al Qaeda but to its own failure to construct a set of laws that will protect the American people—its military and executive branch, as well as its citizens—in the midst of a conflict unlike any it has faced in the past. Now, in the twilight of President Bush’s administration, Brookings Institution fellow Benjamin Wittes offers a vigorous analysis of the troubling legal legacy of the Bush administration as well as that of the U.S. Congress and the Supreme Court. Law and the Long War tells as no book has before the story of how America came to its current impasse in the debate over liberty, human rights, and counterterrorism and draws a road map for how the country and the next president might move forward.

Moving beyond the stale debate between those fixated on the executive branch as the key architect of counterterrorism policy and those who see the judiciary as the essential guarantor of liberty against governmental abuses, Wittes argues that the essential problem is that the Bush administration did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. In a line of argument that is sure to spark controversy, Wittes reveals an administration whose most significant failure was not that it was too aggressive in the substance of its action, but rather that it tried to shoulder the burden of aggressiveness on its own without seeking the support of other branches of government. Using startling new empirical research on the detainee population at Guantánamo Bay, Wittes avers that many of the administration’s actions were far more defensible than its many critics believed and actually warranted congressional support. Yet by resisting both congressional and judicial involvement in its controversial decisions, the executive branch ironically prevented both of those branches from sharing in the political accountability for necessary actions that challenged traditional American notions of due process and humane treatment.

Boldly offering a new way forward, Wittes concludes that the path toward fairer, more accountable rules for a conflict without end lies in the development of new bodies of law covering detention, interrogation, trial, and surveillance. Sure to discomfort and ignite debate, Law and the Long War is the first nonideological argument about a controversial issue of vital importance to all Americans.

Law and the Long War: The Future of Justice in the Age of Terror

In response to The Spy Who Blogged Me, from the May issue of The Walrus:

Niedzviecki asks why nobody seems to care, and it’s partly that these systems have been implemented in an incremental, technocratic manner, outside ordinary democratic processes, and therefore off the radar of the public and even elected representatives. But as he indicates, there is also widespread apathy about, if not outright acceptance of, increased surveillance in Western countries, none of which have seriously debated the full implications. With the recent speed of change, we are still too busy playing with these toys. We haven’t figured out whether any of them actually makes us safer, nor at what point their potential benefits outweigh the harm they wreak on our democratic way of life.Citizens are the proverbial frog swimming in water the state is slowly bringing to a boil. We thought we learned something with the case of Maher Arar. Sadly, it will take a lot of John Smiths being detained, rendered, denied jobs or mobility across the border, or linked to crimes they did not commit before a critical mass of citizens wakes up to the fact that we are living in a society where the freedoms we once took for granted are subject to new regimes of permission, and where any of us — Muslim or not — could be swept off the street based on a flawed “risk assessment.”

The Walrus » Letters » July/August 2008

He worries that the Air Force has taken a big hit while other services have remained largely unscathed for more serious violations. "I think there is a balance issue here."

Shake-up may lead to deeper overhaul