Obsidian Wings

Moral Values In Action

by hilzoy

Sometimes I wonder: will the Bush administration ever run out of issues on which to take completely appalling positions? They have defended torture and extraordinary rendition; they defend their right to imprison American citizens without warrants or charges, indefinitely; they seem to think it's OK both to defy the law and to spy on citizens without anything resembling legal checks; their AIDS prevention policies (backed up by our money) focus on unproven abstinence programs at the expense of programs favoring condoms, thereby sacrificing people's lives to conservative moral fantasies; they out undercover CIA agents for petty political reasons; they have saddled our children with huge amounts of debt without managing to do such basic things as really committing to rebuilding New Orleans, doing even the most basic things to secure our country, and so forth; they have gotten us into a needless war whose consequences will at best be very, very bad -- what on earth is left?

Human trafficking, that's what. From Knight-Ridder, via Balkinization:

"Three years ago, President Bush declared that he had "zero tolerance" for trafficking in humans by the government's overseas contractors, and two years ago Congress mandated a similar policy.

But notwithstanding the president's statement and the congressional edict, the Defense Department has yet to adopt a policy to bar human trafficking.

A proposal prohibiting defense contractor involvement in human trafficking for forced prostitution and labor was drafted by the Pentagon last summer, but five defense lobbying groups oppose key provisions and a final policy still appears to be months away, according to those involved and Defense Department records."

What sorts of "human trafficking" are at issue? Just buying women as sex slaves and little things like that.

"Bush declared zero tolerance for involvement in human trafficking by federal employees and contractors in a National Security Presidential Directive he signed in December 2002 after media reports detailing the alleged involvement of DynCorp employees in buying women and girls as sex slaves in Bosnia during the U.S. military's deployment there in the late 1990s.

Ultimately, the company fired eight employees for their alleged involvement in sex trafficking and illegal arms deals. (...)

This fall, the Chicago Tribune detailed how Middle Eastern firms working under American subcontracts in Iraq, and a chain of human brokers beneath them, engaged in the kind of abuses condemned elsewhere by the U.S. government as human trafficking. KBR, the Halliburton subsidiary, relies on more than 200 subcontractors to carry out a multibillion-dollar U.S. Army contract for privatization of military support operations in the war zone.

The Chicago Tribune retraced the journey of 12 Nepali men recruited from poor villages in one of the most remote and impoverished corners of the world and documented a trail of deceit, fraud and negligence stretching into Iraq. The men were kidnapped from an unprotected caravan and executed en route to jobs at an American military base in 2004."

But despite being instructed by Congress to create a policy to prevent human trafficking, the Bush administration has yet to come up with one, "at least in part because of concerns raised by the defense contractors." The contractors' concern?

"The lobbying groups opposing the plan say they're in favor of the idea in principle, but said they believe that implementing key portions of it overseas is unrealistic."

Wrong. Some proposal is literally "unrealistic" when it is actually impossible, or close to it. Thus, it is unrealistic to think that I will fly to work tomorrow by flapping my arms, or even that I will roll snake-eyes one hundred times in a row. It can also be unrealistic to think that someone else will do something, at least if you're not in a position to influence that person. But it is not in the least unrealistic to ask a contractor to verify that its subcontractors do not engage in human trafficking. If contractors were held accountable for their subcontractors' violations of human trafficking policies, I'm sure we would see them develop ways of verifying compliance pretty quickly.

What they mean, presumably, is that this would be too costly and time-consuming. But things only count as "too" costly and time-consuming when they cost more than the gains they realize are worth. To the extent that administration officials buy into the defense contractors' claim that it is "unrealistic" to expect them to make sure their subcontractors are not trafficking in human beings, they necessarily buy into their view of how much it matters that women not be bought and sold as sex slaves, and that men in impoverished villages in the third world not be tricked into indentured servitude in Iraq. Namely: it doesn't matter all that much.

What's next: the Bush administration coming out in favor of female genital mutilation?

Delayed Reaction to NSA Wiretapping

by Charles

After absorbing over a week of news regarding the warrantless surveillance by the NSA, I thought I'd write this down to keep it all straight.  Calls for impeachment are serious business, not to be taken lightly or quickly or without good reason, and several of those calls have been made.  From what I've seen so far, the person who has written the most clearly on the NSA surveillance matter has been Orrin Kerr, along with a few others such as Cass Sunstein (more from Sunstein here).  Going through the list of fundamental questions:

Post-Christmas Open Thread

by hilzoy

What would Bill O'Reilly make of me, I wonder? I love Christmas. I just love it. Partly this is because I have a very Christmas-y family, and we always had very Christmas-y Christmases. We made gingerbread cookies to hang on the tree; we made all sorts of decorations; we went carolling (except for my Mom, who is tone-deaf. The rest of us, however, all know all the verses of an alarming number of Christmas carols, as a result of carolling.) Every year, my Dad, who is really wonderful at reading things aloud, read part of A Christmas Carol. (Note to people with kids: I highly recommend this. Not only is it a great story, but there are lots of occasions when it's really handy to have large chunks of it memorized. To pick one example: just think of how many times one stares at an apparently endless mess of things one has let slide, things that must be attended to right now: at such moments, I find, saying to myself, in a dismal, gloomy over-the-top voice, "These are the chains I forged in life!" is truly the only possible response.)

Moreover, no doubt thanks to something my parents did right, it was never the stressful occasion I gather it is for other people. Christmas was always partly about the fun of getting presents, of course (we were kids, after all), but the real fun was trying to figure out what to get for everyone else: ideally, something it had never occurred to them to want, but which was absolutely, totally right. And yet this never became a burden or anything; it was just fun to try to find something great. (My Dad was a particular challenge: he always claimed only to want tennis balls. And he was telling the truth. It was a glorious day when I figured out a system for finding good presents for Dad: think of all the day-to-day items it had never occurred to him to replace -- dressing gown, wallet, etc., all of them ancient and full of holes, since my Dad is, to put it mildly, not the sort of person who bothers about that stuff -- and replace them.)

And getting together is always great. I really like everyone in my family, and (more luck!) I like my siblings' spouses too. We don't spend time pushing one another's buttons: we don't have buttons, for one thing, and if we did, the rest of us wouldn't spend time pushing them. And now that I have nephews, there's the further fun of trying to make Christmas as fun for them as it was for us.

There's just one thing: Christmas was not, for us, a religious holiday. This wasn't just because we weren't religious; it wasn't until I converted to Christianity that I realized that Christmas was a religious holiday for anyone. I mean: I knew that Christmas had to do with Jesus, but I'm not sure it had really occurred to me, as a kid, that Jesus had anything to do with religion. I had a book of Bible stories, but then I also had books about Greek and Norse myths, Grimm's fairy tales, and the like. I don't think I drew distinctions between them. Why did we celebrate a story about Jesus, but none about Zeus or Rumplestiltskin? It never occurred to me to ask, any more than I wondered why the Easter Bunny and groundhogs had their own holidays, but horses and raccoons did not.

So: we didn't celebrate generic 'holidays'; we celebrated Christmas. Moreover, we did it right: generosity and warmth and celebration, not greed and neurosis and stress. (Or at least: no more greed than is inherent in being a kid thinking about stockings.) But religion had no part in it at all.

-- I'm feeling sleepy today: the normal sleep deficit induced by being woken up at what is, for me, an incredibly early hour, several days running, by my delightful nephews piling onto the bed. So: how was your Christmas?

No Relief To Offer

by hilzoy

I have written previously about the case of Abu Bakker Qassim and A'del Abdu al-Hakim, the two Uighurs who are still being held at Guantanamo, four years after they were captured by bounty hunters and turned over to the US for cash, and nine months after a tribunal found that -- oops! -- they were not enemy combatants after all. Today the judge who is hearing their case issued an extraordinary decision.

In it, the judge reached two conclusions. The first is that the detention of Qassim and al-Hakim is illegal:

"The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."

The second is that there is nothing he can do about it:

"In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts “to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared “no longer enemy combatants.” Now facing that question, I find that a federal court has no relief to offer."

We are illegally detaining innocent people, and there is nothing that a federal court can do about it.

I'll stop for a moment to let that sink in.

Which Types of Electronic Surveillance are Covered by FISA?

I have all sorts of thoughts on the current intelligence issue, but they will have to wait until tomorrow after I fly to Denver. 

There is one underveloped point which was made by former associate attorney general (under Clinton) John Schmidt in the Chicago Tribune.  "Person" isn't the only important definition in the FISA authorization.  Not all forms of electronic surveillance are covered.  Here is the authorization language:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Now I obviously haven't heard a complete description of the secret monitoring program because it is, well, secret.  But the leaks we have been hearing tend to involve attempting to track the network of terrorists by linking known terrorists to other people by their calls.  (This leads to the international calls being connected in the United States issue for instance). F(1) would tend to suggest that FISA does not cover many of those types of situations.  If you tap a known terrorist's cell phone outside the United States, even if he calls someone who falls in the definition of "a United States Person" it is highly unlikely that you are "intentionally targeting that United States person".

F(2) also shows how ill-suited this law is for post-70s technology.  It is limited by "if such acquisition occurs in the United States" which is practically no protection at all in the days of satellite and off-shore switching. 

Also, it isn't clear at all how FISA applies to all sorts of signal intelligence work.  It isn't all about the content of the communications (often things will be encrytped or won't make sense).  Traffic analysis can be just as important.  If you see a sharp spike in communications between cell members and/or suspected cell members (even if you don't know what they are saying) followed by a communication silence you can bet they are about to initiate some sort of action.  How does FISA apply?  Section (f) seems to be all about content.  My point is not that I am comfortable with the whole program (as little as we know about it).  But I definitely don't see this as a clear-cut case at this point. 

This also highlights the problem of the war/law enforcement models.  I'm much less concerned about these types of taps so long as the information is NOT used in a criminal mode.  There is much less chance of this bleeding into areas of serious domestic concern (like overzealous anti-drug enforcement for example) if it can only be used for national security intelligence purposes, and not for criminal prosecutions.  But if we define the whole war on terror as something that has to get pushed through the criminal system that is going to be problematic. 

Anyhow, off to San Jose to pick up my grandmother and then to Denver.