The recent California federal district court ruling that the Bush administration's warrantless wiretapping violated a 1978 surveillance law was the first significant judicial rebuke to post-9/11 government eavesdropping. For that reason alone, Judge Vaughn Walker's damages award to the Muslim charity Al-Haramain and its attorneys, targets of unlawful spying in 2004, is worthy of celebration. But the ruling won't change our current deeply troubling surveillance regime. In that sense, it is a timely reminder of unfinished business.
Ever since Barack Obama took office, accountability for rights violations during the "war on terror" has been thin. Victims of wrongful overseas detention, surveillance and torture have received no apology and no reparations. Despite an early commitment to close Guantánamo, 183 prisoners remain there. Indeed, Obama has released fewer detainees than Bush did during his last year in office. And despite an early promise to protect the First Amendment rights of Muslim charities, Obama has done nothing to change the onerous application of terrorism financing laws. Walker's decision is only the second to have ruled against the so-called Terrorist Surveillance Program. All other challenges--including one against the odious 2008 FISA Amendments Act (FAA), which The Nation has joined as a plaintiff--ultimately got booted at the courthouse door.
Even if Walker's opinion survives possible appeal, it will have no effect on the broad surveillance powers unleashed by the FAA, which passed with then-Senator Obama's support. Under that law, the government can dispense with individualized warrants, the cornerstone of Fourth Amendment privacy protections. Absent meaningful judicial review, we simply can't know how much surveillance the government is carrying out.
Continuity, not change, has characterized the conduct of Eric Holder's Justice Department. Walker documents, in his opinion, the government's persistent "refusal to cooperate with the court's orders," its improper use of procedural delays and even point-blank refusals to produce information. Yes, this was business as usual during the Bush era. But Walker was talking about events on Obama's watch.
Nor is Walker's experience unusual. In lawsuits by survivors of the CIA's "black sites" and Guantánamo's interrogation rooms, the government either keeps insisting that "state secrets" require outright dismissal or has stuck to the canard that noncitizens forcibly brought into US custody overseas lack all constitutional rights. In Guantánamo litigation, habeas lawyers complain about obfuscation, secrecy and delay not dissimilar from what they faced in the Bush era.
Blaming the lawyers is easy. But it is the otherwise near-absolute absence of accountability that makes Walker's opinion such a lonely beacon. This absence is, in large part, a result of the Obama administration's failure to explain to the American people that the surveillance program violated the Constitution, and that unlawful and futile torture was rife in Guantánamo and the black sites.
It is not too late to win the political, or the moral, battle. It is not too late to use the bully pulpit of the presidency to explain that reckless and illegal incursions into privacy rights are no road to security. It is only by taking on that battle that the Obama administration, and not just a handful of voices on the federal bench, can produce the real change its lawyers have been fighting.
By Dina Cappiello Associated Press Wednesday, October 14, 2009
An e-mail message buried by the Bush administration because of its conclusions on global warming surfaced Tuesday, nearly two years after it was first sent to the White House and never opened.
The e-mail and the 28-page document attached to it, released Tuesday by the Environmental Protection Agency, show that the agency concluded in December 2007 that six gases linked to global warming pose dangers to public welfare, and wanted to take steps to regulate their release from automobiles and the burning of gasoline.
The document specifically cites global warming's effects on air quality, agriculture, forestry, water resources and coastal areas as endangering public welfare.
That finding was rejected by the Bush White House, which strongly opposed using the Clean Air Act to address climate change and stalled on producing an "endangerment finding" that had been ordered by the Supreme Court in 2007.
As a result, the Dec. 5, 2007, e-mail sent by the agency to Susan Dudley, who headed the regulatory division at the Office of Management and Budget was never opened, according to Jason Burnett, the then-EPA official that wrote it.
The Bush administration and then-EPA AdministratorStephen L. Johnson also refused to release the document, which is labeled "deliberative, do not distribute," to Democratic lawmakers. The White House instead allowed three senators to review it in July 2008, when excerpts were released.
The Obama administration made a similar determination in April but also concluded that greenhouse gases endanger public health. The EPA is currently drafting the first greenhouse gas standards for automobiles and recently signaled that it would attempt to reduce climate-altering pollution from refineries, factories and other large industrial sources.
In response, the U.S. Chamber of Commerce and Republican lawmakers have criticized the EPA's reasoning and called for a more thorough vetting of the science. An internal review by a dozen federal agencies released in May also raised questions about the EPA's conclusion, saying the agency could have been more balanced and raising questions about the difficulty in linking global warming to health effects.
The agency released the e-mail and documents after receiving requests under the Freedom of Information Act.
Adora Andy, a spokeswoman for EPA Administrator Lisa P. Jackson, said the draft shows that the science in 2007 was as clear as it is today.
"The conclusions reached then by the EPA scientists should have been made public and should have been considered," she said Tuesday.
WASHINGTON — It was a heated debate during the Bush administration: What to do about evidence that Afghanistan’s powerful defense minister was involved in drug trafficking? Officials from the time say they needed him to help run the troubled country. So the answer, in the end: look the other way.
Today that debate will be even more fraught for a new administration, for the former defense minister, Marshal Muhammad Qasim Fahim, stands a strong chance of becoming the next vice president of Afghanistan.
In his bid for re-election, President Hamid Karzai of Afghanistan has surrounded himself with checkered figures who could bring him votes: warlords suspected of war crimes, corruption and trafficking in the country’s lucrative poppy crop. But none is as influential as Marshal Fahim, his running mate, whose trajectory in and out of power, and American favor, says much about the struggle the United States has had in dealing with corruption in Afghanistan.
As evidence of the tensions, Secretary of State Hillary Rodham Clinton bluntly told Mr. Karzai that running with Marshal Fahim would damage his standing with the United States and other countries, according to one senior administration official.
Now, the problem of how to grapple with Marshal Fahim adds to the complexity of managing an uneasy relationship with Mr. Karzai. Partial election results show Mr. Karzai leading other contenders, but allegations of fraud threaten to add to the credibility problems facing a second Karzai-led government.
If Marshal Fahim did take office, the administration official said, the United States would probably consider imposing sanctions like refusing to issue him a travel visa — something it does with other foreign officials suspected of corruption — though the official cautioned that the subject had not come up in internal deliberations.
The United States could take harsher steps, like going after the marshal’s finances, but this would be a remarkable move, given the deep American involvement in Afghanistan and the importance of its relationship with the Karzai government, said the official, who spoke on condition of anonymity because of the delicacy of the matter.
And Marshal Fahim is not the only Afghan official forcing such a tricky calculation. This summer President Obamacalled for an investigation of a warlord, Gen. Abdul Rashid Dostum, who is accused of involvement in the killings of thousands of Taliban prisoners of war early in the conflict. That demand fell on deaf ears: Mr. Karzai recently allowed General Dostum to return from exile, reinstating him to his government position. The general, in turn, has endorsed Mr. Karzai and campaigned for him.
Said Tayeb Jawad, the Afghan ambassador to the United States, said allegations of Marshal Fahim’s involvement in drugs were “politically motivated.”
As for the Obama administration’s opposition to his selection as vice president, Mr. Jawad said he was chosen for “the role he could play in national unity in Afghanistan, not for his ability to make foreign trips.”
The Bush administration had felt it had no choice but to rely on the warlords, many of them corrupt and brutal, who wielded power before and during the Karzai era.
In 2001, when United States forces swept into Afghanistan to overthrow the Taliban, Marshal Fahim, then a general, was a crucial ally as the military commander of the Northern Alliance.
He worked closely with the Central Intelligence Agency and was rewarded with millions of dollars in cash, according to current and former United States officials. After Mr. Karzai became head of Afghanistan’s transitional government, General Fahim was named defense minister.
In early 2002, at a Rose Garden ceremony with Mr. Karzai, then a darling of the White House, President George W. Bush announced that the United States would help create and train a new Afghan Army. That meant sending millions of dollars in aid to General Fahim and his ministry.
But by 2002, C.I.A. intelligence reports flowing into the Bush administration included evidence that Marshal Fahim was involved in Afghanistan’s lucrative drug trade, according to officials discussing the reports and the internal debate for the first time.
He had a history of narcotics trafficking before the invasion, the C.I.A. reports showed. But what was most alarming in the reports were allegations that he was still involved after regaining power and becoming defense minister. He now had a Soviet-made cargo plane at his disposal that was making flights north to transport heroin through Russia, returning laden with cash, the reports said, according to American officials who read them. Aides in the Defense Ministry were also said to be involved.
The reports stunned some United States officials, and ignited a high-level, secret scramble.
Hillary Mann Leverett, then director for Afghanistan at the National Security Council, recalled a secure videoconference discussion where the State Department warned it might be illegal to provide military assistance through Marshal Fahim.
“They pointed out that if Fahim was involved in narcotics trafficking, then there is a problem because there is a U.S. law that would prohibit military aid provided to a known narcotics trafficker,” Ms. Leverett said.
Alarmed, National Security Council officials took the matter to Stephen J. Hadley, then the deputy national security adviser. Another round of meetings followed, with Mr. Hadley ordering that the delicate debate be kept to a small number of senior administration officials, including Mr. Hadley and John E. McLaughlin, then C.I.A. deputy director, according to Ms. Leverett.
Meanwhile, the allegations of drug dealing by the top Afghan defense official were also raising concerns at the new American Embassy in Kabul, where officials say they considered whether they could meet with Marshal Fahim or provide him with funds.
Some United States officials in Washington and Kabul argued that there was no smoking gun proving his involvement in narcotics trafficking, and thus no need to break off contact with him. And eventually, the Bush administration hit on what officials thought was a solution: American military trainers would be directed to deal only with subordinates to Marshal Fahim, and not Marshal Fahim himself.
That would at least give the Bush administration the appearance of complying with the law.
But as it turns out, both Afghan and American officials now say that Marshal Fahim continued to meet routinely with top American officials, including Defense Secretary Donald H. Rumsfeld and Lt. Gen. Karl W. Eikenberry, then the American officer in charge of the military assistance to the new Afghan Army.
General Eikenberry, now the American ambassador to Afghanistan, said in an e-mail message earlier this year that at the time he was unaware of the debate at the White House and that he was never barred from meeting with Marshal Fahim.
In hindsight, several current and former administration officials say they have come to believe the decision to turn a blind eye to the warlords and drug traffickers who took advantage of the power vacuum in the aftermath of the Sept. 11 attacks was one of the fundamental strategic mistakes of the Afghan war. It sent a signal to the Afghan people that the most corrupt warlords had the backing of the United States, that the Karzai government had no real power or credibility and that the drug economy was the path to power in the country.
By late 2003, officials said, the Bush administration began to realize its mistake, and initiated what officials called its “warlord strategy” to try to ease key warlords out of power. Marshal Fahim remained defense minister until 2004 and was briefly Mr. Karzai’s running mate as vice president in elections that year, but Mr. Karzai then dropped him.
Marshal Fahim remains a powerful figure among Tajiks, the ethnic group in north Afghanistan, and Mr. Karzai, a Pashtun from the south, calculated that an alliance with the general would help him increase his support in northern Afghanistan.
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