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Alito and His Coaches

WASHINGTON, D.C.–In the first hours of Samuel Alito’s Senate confirmation hearings on Monday, Judiciary Committee member Lindsey Graham, the Republican senator from South Carolina, may very well have irreparably compromised himself.

At the hearing, Graham told Alito, nominee for the U.S. Supreme Court, that he had already decided in Alito’s favor. “I don’t know what kind of vote you’re going to get, but you’ll make it through. It’s possible you could talk me out of voting for you, but I doubt it. So I won’t even try to challenge you along those lines.”

That certainly ought to be the case. Graham is one of a group of Republicans who have been coaching Alito behind the scenes. The Wall Street Journal‘s Washington Wire reported before the hearings began:

“On Thursday, Sen. Lindsey Graham of South Carolina, one of the ‘gang of 14’ who sits on Judiciary, joined a so-called moot court session at the White House.”

The coaching session for Alito has raised a few eyebrows.

“Coaching a judicial nominee behind-the-scenes is not the proper role for a Judiciary Committee member who must subsequently sit in judgment on that nominee,” writes Think Progress, a project of the American Progress Action Fund. “It could be a violation of the ethical duties of a senator.”

Writing about the Alito situation, Think Progress cites Senate Rule 37 in the Senate Ethics Manual. The rule says: “No Member, officer, or employee shall engage in any outside business or professional activity or employment for compensation which is inconsistent or in conflict with the conscientious performance of official duties.”

Think Progress further cites the ethics manual, saying that language has been interpreted as prohibiting “compensated employment or uncompensated positions on boards, commissions, or advisory councils where such service could create a conflict with an individual’s Senate duties due to appropriation, oversight, authorization, or legislative jurisdiction as a result of Senate duties.”

If this is true, how can Graham make an impartial decision about Alito based on what he learns at the Alito hearings? Graham has already made up his mind.

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FBI Turned Loose

[Since 9-11] the Constitution has gone from an objective to be satisfied to an obstacle to national defense. . . . As these changes mount, at what point do we become other than a free and democratic nation? George Washington University law professor Jonathan Turley, Los Angeles Times, January 2, 2003


Civil liberties had their origin and must find their ultimate guarantee in the faith of the people. If that faith should be lost, five or nine [votes on the Supreme Court] could not long supply its want. Supreme Court Justice Robert Jackson, Douglas v. City of Jeannette (1943)


On June 6, in a closed-door session, the Senate Intelligence Committee approved a bill that, if Congress and the president agree (and he will), would dramatically expand the FBI’s powers under the Patriot Act to issue secret administrative subpoenas for an unprecedented range of personal records—without having to go to a judge.

The FBI will write its own subpoenas—just as British customs officials in the colonies did before the American Revolution—using general search warrants (writs of assistance) to go into homes and offices at will to look for contraband. These raids so inflamed 18th-century Americans that the “general search warrant” was one of the precipitating causes of our revolution.

The ACLU’s superb Washington staff bluntly explains the impact of the proposal: “This power would let agents seize personal records [it deems relevant to an intelligence investigation] from medical facilities, libraries, hotels, gun dealers, banks and any other businesses, without having to appear before a judge, and without any evidence that the people whose records are collected are involved in any criminal activity.” (Emphasis added.)

If the FBI is targeting you in its dragnet operations for some amorphous connection to terrorism (do you go to a mosque or organize against the war?) you will not know that your personal records have been seized—and put into any number of data banks.

Since these are secret administrative subpoenas, the third-party record holders who get them can’t tell you what they’ve given up to the FBI.

While this unleashing of the FBI was being debated at a May 24 open hearing of the Senate Intelligence Committee, several Democrats asked a highly pertinent question of a witness, Valerie Caproni, general counsel for the FBI: Is there any evidence that the delay—caused by having to get a judge’s approval for a subpoena—has ever harmed national security?

This was her answer: “Can we show you, because of delays, that a bomb went off? No, but it could happen tomorrow. It could.”

The administration’s shadow Constitution, made up as Bush goes along, trashes the rule of law on the basis of what might happen.

That’s how so many thousands of Japanese Americans were herded into internment camps during the Second World War as the army gave false prospective information to President Franklin Roosevelt and the Supreme Court. If anything like 9-11 happens here again, startled speculation, fueled by fear, could bring back those internment camps—with a multicultural range of inmates.

Listening to the FBI general counsel’s testimony before the Senate Intelligence Committee was Democratic senator Dianne Feinstein of California, who, until that moment, had been a stalwart defender of the Patriot Act, much to the administration’s delight. Hearing Valerie Caproni justify awarding the FBI such overwhelming authority that this administration had previously failed to get through, Senator Feinstein was somewhat shaken.

“This is a very broad power,” she said, “with no check on that power. It’s carte blanche for a fishing expedition.” She got it!

Because that vote was taken at a closed session of the Intelligence Committee, the yeas and nays have not been officially revealed. (And George W. Bush calls this “a transparent democracy”!) But I have learned that four Democrats voted against the bill as a whole, including the FBI’s expanded administrative subpoenas. They were Dianne Feinstein, Jon Corzine of New Jersey, Carl Levin of Michigan, and Ron Wyden of Oregon.

Republican Pat Roberts of Kansas, the aggressive chairman of the Senate Intelligence Committee, moved this bill fast to steal a march on the Senate Judiciary Committee, which also has oversight authority over the Justice Department and its FBI.

Among the Democrats on the Senate Judiciary Committee, ranking minority member Patrick Leahy of Vermont, Richard Durbin of Illinois, and Russell Feingold of Wisconsin—the latter being the only senator to vote against the Patriot Act in 2001—should mount strong opposition to the administrative subpoenas and other parts of the bill.

For example, empowering the FBI to get from postal inspectors, The New York Times reports, the “names, addresses and all other material appearing on the outside of letters sent to or from people connected to foreign intelligence investigations.”

(These mail covers also fish widely, and with little meaningful judicial supervision. It’s the FBI that guesses how you may be “connected.”)

Lisa Graves, the admirably knowledgeable senior counsel for legislative strategy at the ACLU, says the Intelligence Committee, fearing this bill would lose in the Judiciary Committee, quickly moved to get it out first as a fait accompli, so those who oppose it can be charged with being “soft on terror.”

In the May 18 Counterpunch, Lisa Graves adds: “I guess now we’ll have to see whether the people on the Judiciary Committee will have the political courage to stand up on this.”

I also wonder how long before New York senators Chuck Schumer and Hillary Rodham Clinton address themselves to these secret FBI vacuum cleaners of information.

And it would be useful if the so-called Democratic leadership (Harry Reid, Nancy Pelosi, and the strutting Howard Dean) would join Bob Barr of the American Conservative Union in saying loud and clear that this bill “would essentially render the Fourth Amendment protections against unreasonable searches and seizure completely meaningless.” To be continued.

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Cloud Over the Constitution

The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation’s history. These claims put President George W. Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security . . . —Stuart Taylor Jr., former New York Times Supreme Court reporter, “America’s Best Choice?,” Legal Times, November 15, 2004


In a scathing lead editorial (November 22), “Mr. Gonzales’ Record,” The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president’s appointment of Alberto Gonzales to be this nation’s chief law enforcement officer, the daily protector of the Constitution: “Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his government—in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts—qualified to serve as attorney general?”

As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.

Actually, The Washington Post‘s challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave in—after harrumphing at Gonzales for some hours.

I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what’s actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.

Even the Democrats’ attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That’s like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he’d get his way.

The Democrats prefer to hold their fire until the next Supreme Court nominee. As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.

In a recent detailed summary of Gonzales’s record as White House counsel, the Reporters Committee for Freedom of the Press (I’m on its steering committee) emphasized: “Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny.”

So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the website of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating anti–Patriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.

Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration’s subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.

The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: membership department; NY, NY 10004; 212-549-2585).

Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.

He warned: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.”

The changes in the air have become much more than slight. The twilight is deepening, but so is the resistance—despite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.

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The Letter

In the following letter to the Defense Department on September 19, 2002, Sibel Edmonds’s lawyers requested a probe of alleged peculiarities surrounding FBI translations of documents and wiretaps:

“Mrs. Dickerson was a contract monitor at the FBI Washington Field Office translations department and was granted a security clearance by the FBI to work as contract monitor to perform translation services for the FBI commencing in October or November 2001. However, Mrs. Dickerson had past and ongoing associations with one or more subject(s) or target(s) of an ongoing FBI investigation and failed to disclose those associations to the FBI. In June 2002, the FBI confirmed in an unclassified briefing to the U.S. Senate Judiciary Committee that Mrs. Dickerson did, in fact, have undisclosed contacts with a foreign official who was the subject or target of an FBI investigation.

“Ms. Edmonds believes there is credible evidence that both Mrs. Dickerson and her husband, Major Dickerson, had ongoing improper and undisclosed contacts with one or more foreign officials. . . . We believe that those associations and the frequency of such associations were not reported by the Dickersons as required by FBI/DOJ and DOD requirements, and that these associations are such that the Dickersons would be vulnerable to coercion, exploitation, or pressure from a foreign government.

“Moreover, the Dickersons made statements to Ms. Edmonds and others that reflect that the Dickersons have a substantial financial interest in a foreign country that makes both of them vulnerable to foreign influence.

“In addition, Mrs. Dickerson was assigned to translate information obtained from FBI wire-taps concerning one or more subject(s) or target(s) of an investigation, but she had past and ongoing improper and undisclosed contacts with the subject(s) or target(s). Mrs. Dickerson is suspected of leaking information to one or more targets of an FBI investigation to which she was assigned to perform translation services.

“Mrs. Dickerson also improperly instructed Ms. Edmonds and another employee at the FBI not to listen and translate certain FBI wire-taps because Mrs. Dickerson claimed that she knew the subject(s) and was confident that there would be nothing important to translate concerning those subject(s) or their conversations.

“When Ms. Edmonds refused to go along with Mrs. Dickerson’s instruction and, after Ms. Edmonds reported Mrs. Dickerson’s conduct to FBI management, Mrs. Dickerson threatened the lives and safety of Ms. Edmonds and her family members, who were citizens of, and resided in, a foreign country.”

After the IG report was classified last week, Senators Leahy and Grassley once again wrote Ashcroft asking it to be unclassified.

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Untrue Confessions

During last week’s Judiciary Committee hearing at which Attorney General John Ashcroft was grilled about the issue of torture, New York’s Chuck Schumer cautioned, “We ought to be reasonable about this. I think there are very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

But in criminal cases, as the recent spate of overturned death row convictions has shown, confessions coerced by physical or psychological brutality often turn out to be wrongful confessions.

Northwestern law professor Steven A. Drizin and University of California-Irvine criminology professor Richard A. Leo say that, according to studies, faulty confessions were the “primary cause of wrongful conviction in 14 to 25 percent of the documented cases.” In addition, confession sometimes sets in motion an irreversible presumption of guilt. “The problem with military and police interrogators is that they believe they can tell whether a suspect or prisoner is guilty or innocent by observing his or her behavior,” Saul Kassin, a psychology professor at Williams College, tells the Voice. “Once they make that judgment, they interrogate with the presumption of guilt, and this allows them to believe that what the suspects say is the truth.”

In the 1989 Central Park jogger case, the five young men arrested and found guilty—and later cleared—claimed they were coerced into making confessions by the police, who they said hit them, called them liars, and told them they’d be freed only after confessing. Brute force isn’t the only tactic, of course. In 1985, Eddie Joe Lloyd, a mentally ill man in Detroit, confessed to the rape and murder of a 16-year-old girl. Police interviewed him several times in a hospital, while he was heavily medicated, and fed him evidence he could not possibly have known. Post-conviction DNA testing led to Lloyd’s being set free.

In a 9-11 related case, Abdullah Higazy, an Egyptian student studying in New York, was coerced by the FBI into admitting that he owned a pilot’s radio found in his hotel room across from the WTC. Higazy was cleared only after the radio was actually claimed by an American commercial airline pilot.