Daily Blurb #2

The Shame of President Moshe Katzav

I first met Moshe Katzav 20 years ago when I shepherded him around Los Angeles for the Israel Bonds organization. He  was then a minister in the Shamir Government and a very high ranking member of the Likud Party.   He struck me as a soft spoken and particularly decent man who was still filled to the brim with Zionist idealism.  I wasn’t then surprised when he was chosen over several other candidates to become Israel’s eighth president in 2002.  His personality and demeanor – restrained, humble and avuncular, seemed to fit the job description and matched the dignified air of  many of his predecessors.

How shocking it is then to witness his fall from grace and the revelations of his consistent pattern of womanizing and sexual harassment over the course of many years.  His conviction two days ago in a Tel Aviv court on charges of rape and sexual harassment brings unparalleled disgrace to the institution of the presidency, an office whose occupants have usually been considered beyond reproach.  Certainly Katzav’s predecessor, Ezer Weizmann, did great injury to the office when he was forced to resign over corruption charges dating back to his own time as a party politician.

But there has never been anything in Israel quite like this.  It says a great deal about the quality of the men who lead the Jewish nation when so many of them are unable to exhibit sexual restraint – and I include Benjamin Netanyahu, Ehud Olmert, Shimon Peres and Yitzhak Mordechai- all well known womanizers, in that category.  It is a statement of profound sorrow that there is such little regard for dignified conduct among those men who regularly proclaim the Jewish people ” a light unto the world.”

The Future of Guantanomo

Karl Rove provided a particularly biting response in the WSJ to Barack Obama’s statement on December 22 that the prison facility on the Cuban coast is  “probably the No. 1 recruitment tool for al Qaeda and its affiliates.”  Rove rips into that assertion by producing abundant evidence, drawn from al Qaeda’s own communications,  that Guantanomo barely registers as a blip on the terror organization’s radar. ” Far more numerous and more extensive in these documents, ” Rove writes, ” are complaints about the existence of Israel, the U.S. military presence in the Middle East, Western notions of democracy and freedom, Western culture, and the fact that al Qaeda’s leaders see America as the obstacle to their achieving a restoration of the Golden Age of Islam.”

Obama’s own deadline for closing the facility passed nearly twelve months ago and the matter is obviously weighing on his mind.  The trouble is that neither he, nor anyone else in his administration has come up with an adequate replacement for the facility. No other country wants the inmates and the temptation to try all of them in American civil courts is fraught with the danger of clever lawyers securing hung juries on technicalities.   Beyond that, of course, is the absolute lie that Guantanomo exists as some kind of gulag where prisoners are systematically humiliated and deprived of basic human rights.  Marc A. Thiessen quite adequately dispatched this notion in his impressively well researched book Courting Disaster:  How the CIA Kept America Safe , an argument for the Bush Administration’s  terrorist detention policies which has received no  rebuttal by the liberal press.

As the months pass, it seems clear that the Bush detention policies are being vindicated because there are no adequate alternatives.  Perhaps this realization will also drive home the awareness of the seriousness of the threat the Bush Administration once faced from terror operatives and the continuing seriousness in which any American administration must perceive that challenge.

The Weather

Los Angeles is poised to experience the wettest winter in its history;  Blizzards, some of the worst in living memory, have shut down flights throughout the East Coast of the United States; Heathrow Airport in the U.K., the busiest airport hub in the world, was forced to shut down for three days as passengers curled up on terminal floors awaiting rescheduled flights; in Australia half of the State of Queensland – an area the size of Germany and France combined – is under water, experiencing the wost flooding the country’s history.  Everywhere you look this winter there are record freezing temperatures, incessant rain and tales of tragedy from an inclemency that shows little sign of abating.

Is the weather  itself then answering the question of global warming?   Well, it depends who you ask.   Most climatologists still maintain that there is a global warming trend of about 1 degree celsius over the past 150 years.   But that this is tied to natural activity in the sun and its own cycles and that the earth regularly passes through warming phases which have nothing to do with human activity.  There are others, of course, who declare that the frigid weather around the world is actual evidence of global warming since warmer ocean currents, caused by the melting of the polar ice caps,  force colder air into the atmosphere which leads to condensation and storms.  The National Wildlife Federation has even gone so far to state in a recent report that the world is experiencing milder winters, which is a result, naturally, of global warming

Pat Michaels, a climatologist and senior fellow at the Cato Institute  doesn’t think so.  ” You can make up any analogy you want, but the fact is that computer models don’t show such change , ”   “It is,”  said Michaels,  “the core problem of climatology:  It is attempting to explain everything even when everything becomes contradictory.”  Myron Ebell, director of the Center of Energy and Environment at the Competitive Enterprise Institute adds: ” They make this stuff up as they go along,”

What the current global weather patterns place in evidence is the fact that if  the weather is notoriously difficult for computer models  to predict,  then our future climate may be as well.   The hubris of the scientists at the IPCC ( Intergovernmental Panel on Climate Change) and Al Gore and his acolytes aside, it might be time to admit that in fact there is a substantial debate on this issue and that both science and the world’s population in general could substantially benefit from its broader exploration.

The Volunteer Attorneys

The battle over the attorneys continues.  First the Bush administration fired nine Justice Department attorneys in December, 2006 occasioning a Congressional investigation of Attorney-General Alberto Gonzales’ conduct and resulting, a year later, in his resignation.  Then the Obama administration launched an investigation into the conduct of Legal Counsel to the President’s office, helmed by John Yoo and Jay Bybee to determine the extent of their liability for giving legal sanction to the CIA’s enhanced interrogation program.  Unlike Gonzales, Yoo and Bybee emerged innocent of all charges, even if they were badly singed by the process. 

Now its the Republicans’ turn.  In his book Courting Disaster, former  Department of Defense speech writer Marc Thiessen devoted an extensive chapter to the way in which several Obama appointees to the Justice Department had voluntarily defended Guantanomo Bay detainees.  U.S. justice calls for every man to have his innocence defended in court by legal counsel and indeed our courts are mandated to appoint  legal counsel where the accused has not elected to defend himself .    But should those who have volunteered to represent the enemies of the state be serving in our own Department of Justice? 

That is the volatile question posed by Keep America Safe, an organization co-founded by Liz Cheney, the daughter of former Vice President Dick Cheney.  In an advertisement distributed through YouTube, Cheney demands that  Attorney-General Eric Holder identify the seven Department of Justice attorneys who once served as voluntary counsel for the Guantanomo Bay al Qaeda inmates.  Should Holder be forced to disclose those names and why is it important? 

The Wall Street Journal Weekend Journal posed that very question two attorneys who should know something about the issue.  Steve Jones was the Oklahoma City based attorney who defended Timothy McVeigh after his arrest in 1996 on charges of planning the bombing of the Alfred P. Murrah Federal building in Oklahoma City.  Andrew C. Mc Carthy was the lead federal prosecutor of the plotters of the World Trade Center bombing in New York in 1993. 

Jones leads off with a case for attorneys who defend unpopular clients.  He  states that it has long been the position of American system of justice to offer a defense of criminals who our system labels innocent until proven guilty.  John Adams defended British soldiers accused of shooting several Boston’s citizens in 1770 and suffered public opprobrium for doing so.  But that did not stop him from becoming our second president. 

As an attorney Abraham Lincoln also took up unpopular causes, as did many of our distinguished federal judges.  Jones concludes that “neither history nor experience demonstrates that the points being made by Ms. Cheney and her allies have any merit.  They merely represent “forensic vigilantism,” and “a political lynch mob mentality.” 

Not so, says McCarthy.   It is not an American tradition for U.S. attorneys to volunteer to represent enemies of the state, but rather a modern anomaly.  The prisoners at Guantanomo Bay, were not U.S. citizens who had been deprived of their right to habeas corpus but unprivileged, alien enemy combatants.   U.S. law has also not traditionally extended the right of legal counsel in habeas corpus cases, even to U.S. citizens – and until 2004, enemy prisoners were not entitled to challenge their detention at all.  Moreover, he defends the Keep America Safe advertisement in its insistence that when attorney volunteer to participate in cases, where there is no requirement of representation of legal counsel, that choice likely reflects their policy preferences.  

On balance, Jones’ case comes out as unconvincing.   It fails to answer the question of how the American public should regard those who voluntarily (rather than as draftees, as he was) defend non-citizen enemies of the state and whether it has a right to have the political orientation and policy biases exposed through a demonstration of their choices. 

There is almost no question that at a time of grave national security risk (or war, as Mc Carthy calls it), the country’s legal team should be composed of individuals, who, at the very least, place the country’s security first and individual human rights in only a secondary position.  For as the John Yoo episode well demonstrated, we rely upon these attorneys for the legal justification of our national security policy.  If their position is that the individual rights of terrorists trumps the need for the American public to be protected, then we should demand their resignation. 

In the end, this debate exemplifies the struggle between the exigencies of national defense on the one hand and the rights of individuals to privacy and protection on the other.  In another sense it also illustrates the battle between those who reject American particularism, which requires that American law apply to just Americans  – and those who support the notion that American protections and privileges should have universal application.    

Does the decision of the so called ‘al- Qaeda Seven’ to defend non-citizen enemy combatants make them, ipso facto, supporters of al Qaeda’s ideology?  Of course not.  But equally it does not makes them heroes of conscience whom we should reward with employment in an important national office tasked with responsibility for our safety and well being.

FIGHTING OVER THE CONSTITUTION

One of the things that has always perplexed me about the contentious debate surrounding the Guantanomo Bay detention policies is the argument that constitutional protections, enshrined in the U.S. Constitution, should be extended to enemy combatants.

The United States Constitution has been one of the most effective and resilient documents ever produced by human hand.   Despite a cataclysmic civil war, the malfeasance of certain presidents and the pressures brought to bear on the republic by a depression and two world wars, the founding document of the republic has stood the test of time and is a profound statement of what human beings as a collective can create with sufficient faith and determination.

But the Constitution has also come in for rhetorical abuse and no more so than last week when Barak Obama and Dick Cheney faced off in separate locations against one another, concerning the Bush Administration’s detention policies.  Cheney claimed that the (policies) “prevented the violent death of thousands, if not hundreds of thousands, of innocent people, “ while Obama’s stated  that “rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries.”

It is no accident that Obama’s speech was delivered from the National Archives, the marble building which houses the U.S. Constitution.  The President’s supporters have made it clear that they regard Guantanomo Bay and the Bush Administration as a direct assault on the Constitution and that claim can be heard loud and clear from politicians like Nancy Pelosi to singers like Bruce Springsteen.

But the United States Constitution was written, as far as I am aware, with only American citizens in mind, to safeguard their liberty and freedom – not to defend and protect those who have no respect for our constitutional safeguards and in fact wish to destroy them.

Did the founders of this country ever conceive of the Constitution as a universalistic document designed to protect the rights of all human beings – even antagonists allegedly pledged to the destruction of the country?

Hardly.  James Madison, the acknowledged father of the Constitution, in the Federalist Papers, went out of his way to draw a distinction between citizens and non -citizens – and how rights would be apportioned between them.  

Does the same Constitution prevent us, particularly in the light of the devastating attacks of 9/11, from detaining non-citizen suspects indefinitely, in violation of habeas corpus, in  order to prevent other potential attacks?  

If one argues that the first obligation of government is the common defense of the country – a point noted in both the Declaration of Independence and the preamble to the Constitution, there is almost no argument.  Habeas Corpus, an English doctrine and one of the only British legal concepts imported into the U.S. Constitution, was itself never designed to give enemies of the state, rights. The great British legal scholar Blackstone described the Writ of Habeas Corpus as  allowing “the King at all times, as entitled to have an account of why the liberty of any of his subjects is restrained, wherever that restraint my be inflicted.”

Should interrogation techniques, designed to elicit crucial information vital to the security and safety of the nation, be dispensed with because they violate constitutional safeguards?

Well that depends on whether you regard the Constitution as a mere adjunct to the Universal Declaration of Human Rights or as a document which stands alone, independent of other international or supranational agreements. There is of course the argument that the Universal Declaration of Human Rights, ratified in 1949 by Congress under Article III of the Constitution, is already a part of U.S law.

But it is not part of the Constitution which is a significant difference.

Barack Obama, constitutional scholar though he may be, was not making a legal argument based on the Constitution;   He was making a political argument based on international human rights law. So while Obama may have may made the symbolic inference that the Guantanomo Bay detention policies abuse constitutional safeguards, what he is really arguing is that they abuse universal human rights safeguards, which is another thing.

The problem, on the other hand, with Cheney’s point of view is that he, and others in the Bush Administration, were never able to validate the severity of the threat, since the projected events never occurred. But it must be left to each government administration make threat assessments and to respond accordingly. 

We should never forget that the U.S. Constitution stands as the ultimate American symbol of independence  – the independence of its judiciary, separated from both the legal and executive branches; the independence of its citizenry, which has a direct share in the proper and effective administration of government. And the independence of its polity from those of others around the world.   International humanitarian law, which comes packaged to us in the nebulous expression “human rights,” should never be allowed to override governmental obligations to protect U.S. citizenry.

Where there  is a conflict between a constitutional mandate – such as the  government’s duty to provide a common defense, and a universal human right – such as the right to due process for foreign nationals, the Constitution, the true symbol of American independence, must prevail. 

Dick Cheney mentioned in his remarks that whatever choices the President makes concerning the defense of this country, those choices should not be based on slogans and campaign rhetoric, but on a truthful telling of history.  I would add that it is not just the truthful telling of history that is necessary – but the truthful acceptance of the Constitutions’ uniqueness and independence which should always be a president’s overriding concern.