shoulda, woulda, coulda

s'funny how what sounded impossible a coupl'a years ago sounds like a slam-dunk today ...

nader:	what about the more serious violations of habeas corpus. you know after 9-11 bush rounded up thousands of them, americans, many of them muslim americans or arabic americans and they were thrown in jail without charges, they didn't have lawyers, some of them were pretty mistreated in new york city. you know they were all released eventually.
napolitano:	correct.
nader:	is that what you mean also about throwing people in jail without charges violating habeas corpus?
napolitano:	well that is so obviously a violation of the natural law, the natural right to be brought before a neutral arbiter within moments of the government taking your freedom away from you. and the constitution itself, as the supreme court in the boumediene case pretty much said, wherever the government goes, the constitution goes with it and wherever the constitution goes are the rights of the constitution as a guarantee and habeas corpus cannot be suspended by the president ever. it can only be suspended by the congress in times of rebellion which in read milligan says meaning rebellion of such magnitude that judges can't get into their court houses. that has not happened in american history. so what president bush did with the suspension of habeas corpus, with the whole concept of guantanamo bay, with the whole idea that he could avoid and evade federal laws, treaties, federal judges and the constitution was blatantly unconstitutional and is some cases criminal.
nader:	what's the sanction for president bush and vice president cheney?
napolitano:	there's been no sanction except what history will say about them.
nader:	what should be the sanctions?
napolitano:	they should have been indicted. they absolutely should have been indicted for torturing, for spying, for arresting without warrants. i'd like to say they should be indicted for lying but believe it or not, unless you're under oath, lying is not a crime. at least not an indictable crime. it's a moral crime.
nader:	so you think george w. bush and dick cheney should even though they've left office, they haven't escaped the criminal laws, they should be indicted and prosecuted?
napolitano:	the evidence in this book and in others, our colleague the great vincent bugliosi has amassed an incredible amount of evidence. the purpose of this book was not to amass that evidence but i do discuss it, is overwhelming when you compare it to the level of evidence required for a normal indictment that george w. bush as president and dick cheney as vice president participated in criminal conspiracies to violate the federal law and the guaranteed civil liberties of hundreds, maybe thousands of human beings.

(hat tip to crooks and liars)

no one could have predicted ...

... that it could happen to me.

rep. jane harman (d-ca), proving that some of today's civil libertarians are just yesterday's neocons reeling from their own petard:

december 21, 2005:

i have been briefed since 2003 on a highly classified nsa foreign collection program that targeted al qaeda. i believe the program is essential to u.s. national security and that its disclosure has damaged critical intelligence capabilities ... like many americans, i am deeply concerned by reports that this program in fact goes far beyond the measures to target al qaeda about which i was briefed.

today:

i'm just very disappointed that my country — i'm an american citizen just like you are — could have permitted what i think is a gross abuse of power in recent years. i'm one member of congress who may be caught up in it, but i have a bully pulpit and i can fight back. i'm thinking about others who have no bully pulpit and may not be aware, as i was not, that right now somewhere, someone's listening in on their conversations, and they're innocent americans.

a modest proposal

for a modest president of a modest nation, offered to firedoglake's jane hamsher by constitutional lawyer bruce fein:

jane:	... so, ah, george bush pardons everybody on the way out the door, there's a new president: what would you like to see happen in a new administration, in order to be able to look back, and i'm assuming that you're not one of the people who says "let bygones be bygones, let's all look forward" ... ?
bruce:	the first thing the president ought to do is announce that we don't have any war against international terrorism, that these are criminals, and we will treat them as criminals, we'll capture them as criminals, and try them, prosecute them, and punish them as criminals. second thing he should do is say "i don't have any power to detain americans as enemy combatants, ah, we either charge you with [a] crime or let you alone." third thing he'd say "i do not have any power to violate federal laws in gathering foreign intelligence. i can't commit torture, i can't violate fisa, i can't open your mail, except in accordance with what congress has prescribed." fourth thing he should say is "i'm not gonna invoke execute privilege and use secrecy to prevent you from knowing what i'm doing. absent weapons systems, my government will be transparent, and i'll make certain all my officials come and testify before congress. there may be need for executive sessions, if there's sensitive information, but i will not claim executive privilege and hide from congress anything." another thing that he should say is "i do not have authority to engage in extraordinary rendition. i can't go abroad and simply kidnap people, stick them in an interrogation chamber, torture them, dump them out without any political or legal recourses. and i won't do that. that is a formula for returning the world to a hobbesian state of nature, and authorizing other foreign governments to kidnap americans who might be sympathetic to some indigenous force, chechens in russia for instance, or tibetans in china. and the fifth thing he should say is "i'm shutting down the military commissions in guantanamo. all those people charged will be moved to civilian, ah, sector for trial consistent with due process, and all the guantanamo bay detainees will have a right to habeas corpus and i'm not detaining even non-citizens as enemy combatants. if i think i have evidence they've committed a crime, i prosecute them, otherwise, y'know, they can go back." and perhaps the most important thing — i don't have enough time to fully amplify on this idea — is to say "the united states of america chief, really cardinal mission, is to protect america and make it a more perfect union. we don't need and it doesn't make us safer to have a military footprint all over the globe. and i will work to eliminate all of our foreign troops abroad. defense will mean we'll have a defense against anyone who wants to attack us. if anyone attacks us, we'll incinerate them, but other than that, we, um, wish other people in the world happiness and freedom but we're not gonna sacrifice our men and women to protect the lives of people who have no loyalty, no taxes that pay to the united states, they're not u.s. citizens or who aren't involved in any way. we don't go abroad in search of dragons, as john quincy adams said in 1826, to project our power abroad. it's that, that craving for international stature and prestige that's caused disaster to the constitution of the united states," and i'd want to see a president of the united states say "that era is over." "now i'm a president of modesty. i don't want to leave my footprints in the sands of time based upon fighting wars and attempting to transform the world in our own image. we've got enough problems making ourselves a more perfect union, and i'm not gonna do something that i don't know how to do, and in any event, it's not up to me to risk men and women's lives for a people who owe no loyalty to the united states." that is what i'd like to see. now regards to the people who are outgoing? i'd want to say the president should announce that he certainly will open criminal investigations if there was wrongdoing in the prior administration, ah, and he's gonna make certain that and pledge that he would expect a succeeding administration after his to do the same, if his administration committed any wrongdoing. um, and so he's not gonna hold this administration up to any more immunity than he would grant a predecessor administration.
jane:	i hope we get that president.

warrentless wiretaps 101

the cliff notes edition, courtesy of duncan black (aka atrios @ eschaton):

look, all the parsing of statements is a waste of time. they were eavesdropping on whoever they wanted to without any warrants or oversight. whether or not "whoever they wanted to" included, say, the john kerry campaign or markos moulitsas is still an open question. they obviously claimed the power to do so, it just isn't clear if they did it.