Certain Doubt

Indefinite Detention

Wednesday, December 29th, 2010

Along with many others in my circle of friends I have been scratching my head over the recent decision by the Obama administration to continue the Bush administration policy on indefinite detentions.

While I can understand the stance that such detentions are a “useful tool” in dealing with terrorists which the government feels would be difficult to try in a court of law, I believe that Habeus Corpus and the right to a fair trial are too important to be thrown away for the sake of convenience. Furthermore, president Obama’s campaign assertion that if elected he would close Guantanamo and work to restore the rule of law with respect to things like torture flies in the face of his decision to maintain presidential authority to unilaterally side step the court system in favor of military tribunals, an arbitrary and capricious system which leaves virtually all who get swept up in it in legal limbo, incarcerated without trial, without charges and even without access to legal representation.

Recently I had a conversation with a friend about indefinite detentions. He expressed the opinion that indefinite detention was “a useful tool,” and that “Indefinite detention doesn’t negate habeas corpus as long as there is a sufficient hearing.”

I am not a lawyer. However, even as a lay person, I fail to see how indefinite detention doesn’t put a serious crimp in the notion of habeus corpus and the right to a fair trial.

From Wikipedia:

A writ of habeas corpus is a summons with the force of a court order, addressed to the custodian (a prison official for example) demanding that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine if the custodian has lawful authority to detain the person. If the custodian does not have authority to detain the prisoner, then he must be released from custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus.

If the executive claims for himself and himself alone the ability to detain an individual indefinitely, without any oversight, where does a prisoner’s right to habeus corpus come in? Without a legal system in place which allows for an appeal of one’s detention, is not the process of arrest and detention – or if we are to be truly honest, imprisonment – arbitrary , subject not to the will of a recognized legal authority but instead to the whims and convenience of a single individual?

Recognize here we are not dealing with the minutae of the president’s constitutional power. Any leader may well claim he has the the ability to detain individuals based on some nebulous war powers granted by a compliant legislature. What I am arguing is that by expanding his power to arrest and detain individuals without right of appeal, Obama is negating the legal system upon which the legitimacy of his office rests. He is like the fish who, by dreaming of flight, negates the existence of the very water which he needs to survive. (sorry, I’ve been reading too much Zizek.)

When one gets to the matter of a right to a fair trial things get even stickier.

Habeas corpus … is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law then habeas corpus may not be a useful remedy.

The truly heinous thing about the President’s decision to continue Guantanamo and reinstate military tribunals is not the denial of Habeus Corpus but the denial of the right to a fair trial. If one allows for indefinite imprisonment – with no right to a fair trial – doesn’t this negate our entire legal system?

“Okay sure,” you say, “but the detainees in Guantanamo are foreigners and terrorists to boot.” The president is well within his rights to classify terrorists differently than ordinary citizens.” The problem with this stance is that our legal system is based upon the notion that anyone accused of a crime is innocent until proven guilty. The moment you throw this away, the moment you make a differentiation between American citizen’s legal rights and the rights of those suspected of terrorism you are creating two separate sets of laws.

The way I see it, in order to have a fair and just system of laws you can’t have one set of rules that apply to one group of people and another set that applies to another. To do so would be to declare a kind of legal apartheid. For example, are the “detainees” in Guantanamo any less deserving of legal respect and rights because George W. Bush or Barrack Obama decide that they are “terrorists” or “unlawful combatants?”

I don’t consider president Obama’s actions as a slippery slope. I see them as a double standard. I see them as blatant hypocrisy; a fundamental re-writing of hundreds of years of established legal precedent. As he has studied constitutional law, Obama has to recognize the dangers of the precedents he is setting. He may feel capable of applying an expanded presidential power over imprisonment. But what of the next president? Or the president after that? Once you open the door to allowing presidents the authority to decide who is to be locked up without trial you close the door on equality and justice.

Personally I don’t see indefinite detention as morally, ethically, or legally right, regardless of how and why it is being used. If I am thrown in jail indefinitely, solely on the say-so of a president, premier, dictator or any other autocrat, without right to a fair trial, to face my accusers or even know what it is that I am accused of, I fail to see how that decision making process can in any way be considered fair and impartial.

If you were thrown in jail in this manner would you think you had received a fair shake?

I doubt it.

As a final footnote the Wikipedia article contains this interesting tidbit:

The writ of habeas corpus is one of what are called the “extraordinary”, “common law”, or “prerogative writs”, which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom.

The irony of a writ originally issued in the name of a ruler to protect his subjects from the excesses of the courts now applied to protect the subjects from the excesses of the ruler himself seems somewhat poignant.

Enough blather,

All the best for the New Year.

Tags: detainees, detention, government, indefinite, law, legal, Obama, prison, suspect, Terrorism, Thomas Vincent, unconstitutional, unfair, Vincent, war
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Poisoned Punch

Tuesday, December 14th, 2010

I’ve been trying to come to terms with Obama’s recent actions vis-a-vis his “compromise” on the Bush tax cuts for the rich. I think I’ve finally succeeded. I no longer feel the President is a Judas to the progressive cause. It took me a while to see it but the sum total of his actions since he got in office – health care, bailing out GM, stepping back from forcing bank execs to trim their bloated bonuses – it is clear, Obama never had any intention of fighting for progressive causes like strong unions, protecting jobs, and maintaining a strong social safety net. He didn’t sell out the left; he was never on the left.

The problem is, I no longer feel that Obama is a stealth conservative either. Though many in the progressive movement delight in labeling him the best republican president since Bill Clinton, ideologically, Obama is not aligned with republicans like, Newt Gingrich, Mitch McConnell, and John Boehner. Despite his personal quagmire in Afghanistan, he is really not part of the neo-con cabal of Bush/Cheney. And he certainly is no fan of Sarah Barracuda and her gang of “we’re not really racist, wink wink,” teabaggers.

Obama is like the rube who sells the family cow for a handful of beans.

To go behind closed doors and come out with a “deal” that leaves Mitch McConnell looking like a cat with canary feathers hanging out of his mouth says more about Obama’s (and Joe Biden’s) pathetic skills at horse trading than it does ideology.

Actually, the president as rube metaphor isn’t completely fitting. If for no other reason that the President is not a wide eyed “pie-in-the-sky” dreamer. Obama is smart enough to know that ignoring his base to strike a bargain with the devil is not a politically shrewd move.

As I indicated in my last post, it is my strong feeling that Obama didn’t cave in to the republicans. The republicans are whores. They have no power save what the super wealthy give them. If Obama caved to anyone, he caved to the super wealthy pimps who hold the republican’s leashes. Need evidence? Consider the following quote from Spencer Bachus, the incoming Republican chairman of the House Financial Services Committee:

Bachus, in an interview Wednesday night, said he brings a “main street” perspective to the committee, as opposed to Wall Street. “In Washington, the view is that the banks are to be regulated, and my view is that Washington and the regulators are there to serve the banks,” he said.

Need further proof? Check out the inheritance tax clause in the tax bill before Congress. There are provisions in this section that the republicans didn’t even ask for. There is absolutely no reason to think that lowering inheritance tax will help balance the budget. Nor will it create a single job. The only reason that clause is in there is a sop to ultra wealthy campaign contributors who can make or break Obama in the next election. The only problem for the president is that like the bank bail-out he has not gotten a single thing in writing that will guarantee the uber rich won’t turn on him as soon as the tax bill passes and throw their weight behind someone like Mitt Romney who is willing to go to the mat to protect the rights of the super rich to shit on everyone less wealthy than themselves.

Obama’s complete capitulation to the corporate elite in this country makes him seem more like the guy in Jonestown who pretty much knows the Kool-aide is spiked but he goes along with the plan to drink it anyway because “it’s the best deal available.”

The problem with the current situation in our country isn’t ideology. It is not partisan politics. It is the fact that this country is no longer a democracy. The President is drinking Kool-aide he knows is poisoned at the behest of a handful of very rich, very powerful men in the hopes that in 2012 they will give him just enough of the antidote to keep his political aspirations alive for a second term.

Obama is drinking the poisoned punch of tax cuts. But we’re the ones who will get the stomach ache.

Tags: Bachus, Bacus, banks, democrat, Jonestown, Kool-aide, Obama, republican, tax cuts, taxes, Thomas Vincent, Vincent
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Stupider

Monday, November 29th, 2010

Stupid:

- Slow to learn or understand; obtuse

- Dazed, stunned or stupefied.

Will machines surpass people? Like a pesky weed, the question keeps popping up again and again. Some are sanguine about the possibilities:

“It seems plausible that with technology we can, in the fairly near future,” says sci-fi legend Vernor Vinge, “create (or become) creatures who surpass humans in every intellectual and creative dimension.”

Others are less so:

The science fiction author Ken MacLeod described the idea of the singularity (the point where machines surpass us) as “the Rapture of the nerds.” Kevin Kelly, an editor at Wired magazine, notes, “People who predict a very utopian future always predict that it is going to happen before they die.”

I believe if – or even when – machines do overtake man, it will not be because of advances in artificial intelligence but instead because of retreats on the human front. To put it bluntly, humans are not losing the race against machines because machines are speeding up; they are losing because man is slowing down.

By any measure, mankind – at least the American version – ain’t getting any smarter. For example, You can’t pick up a paper today without reading about declining test scores and failing schools. One only need take a ride on any inner city bus to wonder if our intellectual gene pool isn’t leaking. And no wonder. Survivor, Dancing with the Stars, Monday Night Football, Fox News, and Sarah Palin. At the rate we’re going, give us another decade and the average IQ of all Americans will be about as robust as soggy toast.

In many ways, I feel the tipping point at which machines pass us by has already been reached. The best evidence I can give of this is our use of machines in war. In a recent front page article in the New York Times entitled “War Machines: Recruiting Robots for Combat,” John Markoff presents a great example of how we have already lost the battle:

In a mock city here used by Army Rangers for urban combat training, a 15-inch robot with a video camera scuttles around a bomb factory on a spying mission. Overhead an almost silent drone aircraft with a four-foot wingspan transmits images of the buildings below. Onto the scene rolls a sinister-looking vehicle on tank treads, about the size of a riding lawn mower, equipped with a machine gun and a grenade launcher.

Three backpack-clad technicians, standing out of the line of fire, operate the three robots with wireless video-game-style controllers. One swivels the video camera on the armed robot until it spots a sniper on a rooftop. The machine gun pirouettes, points and fires in two rapid bursts. Had the bullets been real, the target would have been destroyed.

In his piece, Markoff dutifully trots our arguments for and against the use of robotics in warfare. The arguments against, largely fall under the heading of morality, ethics, legality and foreign policy.

“Wars will be started very easily and with minimal costs” as automation increases, predicted Wendell Wallach, a scholar at the Yale Interdisciplinary Center for Bioethics and chairman of its technology and ethics study group…The short-term benefits being derived from roboticizing aspects of warfare are likely to be far outweighed by the long-term consequences,” said Mr. Wallach, the Yale scholar, suggesting that wars would occur more readily and that a technological arms race would develop

On the side of man machine interaction in war, Markoff quotes an array of “military strategists, officers, and weapons designers” whose defense of robots in war focus on the “practical” benefits that the machines offer – they are never distracted, they never panic, they never tire, they are more precise in targeting – in other words, they are more effective at killing than humans. As an added bonus, manufacturers never miss an opportunity to note how robots take soldiers out of the line of fire. Lastly, the claim is made that civilian casualties can be reduced because of the aforementioned precision and the fact that because they are machines “they can fire second.”

(The claim about reduced civilian casualties seems somewhat dubious in light of the high rate of “collateral damage” in recent Predator drone strikes in Pakistan.)

The point here, however, is that Markoff and those he quotes who have been examining the issue of robots in war, virtually all raise straw men arguments. Drones and robots may keep soldiers out of harms way and even cut down on civilian casualties. So what? So does not fighting wars in the first place. Robotic sentries like MAARS may be able to “follow the military rules of engagement,” by “using voice warnings and tear gas before firing guns.” Super. Wouldn’t it be better to simply close our bases and bring our occupying forces home? If we did that, we wouldn’t need the robots at all. I fail to see how even the best robotic sentry in the world can win us friends and influence in foreign lands when what the people there really need are good roads, bridges, hospitals, and most importantly, jobs!

Sadly, even some of the arguments against using robots in war border on the absurd. For example, how can one be guilty of “war crimes” for employing a weapons system when there are no existing laws, international or otherwise, governing the use of that weapon? As for the argument that robotic soldiers will make war more likely, Humans have been killing each other for millennia before robots came along. Not being able to keep soldiers “out of harm’s way,” never stopped presidents from finding ways of entering foreign wars before now. Even if the U.N. decided to outlaw drones and bots tomorrow, I fear man would still be just as likely to engage in war.

The most ridiculous discussion about robots in war, however, has to be the imbroglio over whether to allow robots to make autonomous life and death battlefield decisions or whether to require that humans remain the ones pulling the trigger. Supporters of robotic warfare may try to reassure us that the United States will always hold to the convention that humans must remain in control. All it will take for that convention to be swept away, however, is for someone we are fighting against to decide to allow autonomous robots to do their fighting for them. The superior tactical advantage enjoyed by those employing automated killing machines means that all armies would have to follow suit or risk losing the next war.Given their obvious disregard for life and liberty, it seems clear that should they get their hands on robotic military technology, al Qaeda would not hesitate to send autonomous robots against us.

With regard to the debate over human soldiers versus machines, I feel it is too late already. The genie is already out of the bottle. The more prevalent robotics becomes, the sooner the day will come when we face killing robots deployed by an enemy without even the few meager scruples we still employ.

The final absurdity – the ultimate in surrealism – is a battlefield where the parties on both sides of a conflict employ fully autonomous killing machines. After all, since robots are so much better and more efficient at killing than humans, why involve humans at all? Of course, if no humans are involved in the conflict, why fight at all? Therein lies the real question in the debate. It is not important whether humans control the machines or whether the machines should be let loose like savage hunting dogs. The only truly important thing is, the decision to go to war in the first place. I’m sad to say I see little hope on that score. From Viet-Nam to Iraq and Afghanistan and on to Yemen, Iran and North Korea, the people who make the decisions to deploy our armies seem to have learned nothing. If anything, our leaders seem less moral, less sensible, less wise and certainly less intelligent in their decision making to go to war than they have ever been. And it is this decision making that is the critical part of any evaluation of intelligence.

In the end I am not worried about robots getting smarter. I’m more concerned that we humans are getting stupider.

Tags: artificial intelligence, dumb, intelligence, machines, robots, singularity, smart, stupid, war
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Much Ado About Nothing

Thursday, November 11th, 2010

The recent court case surrounding the Government’s targeted Assassination program is likely to wind up being “Much Ado About Nothing.”

In my last post: “Down The Rabbit Hole,”
I commented on the recent suit brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) against the government and their efforts to maintain a secret “kill lists” of terrorists, a list that can include American citizens.

In the piece I put forth my opinion that I thought the ACLU and the CCR had a good case. I still think their arguments are valid. I am not so sanguine today, however, on their chances of winning their case.

The case revolves around the Obama Administration’s attempts to target and kill Anwar Al-Aulaqi, the American born cleric the government accuses of being involved in recent attempted terrorist actions against the United States. On Aug. 30, the ACLU and the CCR filed suit in Federal court on behalf of Anwar al-Aulaqi’s father, Nasser al-Aulaqi. According to the conservative site the Investigative Project:

Awlaki’s father has claimed that his son has been added to CIA and Pentagon targeting lists using secret criteria and evidence for determining whether a U.S. citizen can be targeted for lethal action. Based on this, the lawsuit is asking a federal judge to prevent the government from intentionally killing Anwar Awlaki without showing that he presents a concrete, specific, and imminent threat to life or physical safety. It also asks that the government show that there are no means other than lethal force that could reasonably be employed to neutralize the threat.

Interestingly, the government’s response doesn’t address the issues the ACLU and CCR want addressed – namely whether the Obama Administration should be allowed to maintain secret lists of enemies slated for assassination without any oversight. Instead, the government is focusing first and foremost on the narrow procedural question of whether Nasser Al-Aulaqi has legal “standing” in the case. As he is only a relative and not the party who is actually being targeted, the government’s contention is that he cannot challenge the government’s action in the name of his son.

Even more bizarrely, the government insists that even if Nasser has standing, the case should be dismissed because the court lacks the authority to rule on the matter because the “…requested injunction would necessarily and improperly inject the courts into decisions of the President and his advisors about how to protect the American people from the threat of armed attacks.”
In its response to the government’s claim the ACLU and the CCR presented an impassioned argument raising the specter of unchecked Presidential power. Again from the investigative Project:

…this is “a case concerning the Executive’s authority to carry out the killing of an American whom it has named an enemy of the state,” Jaffer argued. He called the policy “extreme” and “terrifying.” If the court accepts the government’s argument “then the President will have unchecked authority to assassinate any US citizen, and it will be unreviewable by a court,” he said.

This argument, which commentator Glenn Greenwald of Salon.com sums up concisely as: “…if the president has th[is] inherent authority. . . . then what can’t he do?” is akin to the concept in debate known as “the slippery slope.” Instead of addressing the charges, however, the government’s lawyers responded in true high school debate tradition, calling the charges “ridiculous” and “absurd.”

The challengers also sought to display the government’s desire to have the case thrown out because the courts have no authority to rule on an executive’s decisions on how to protect the American people as an extreme position:

Speaking broadly about the government’s claims of supremacy in this area, Jaffer explained, “this is a bigger case than the government is suggesting. It’s not just arguing that the court has no role to play now. They are saying that the court has no role to play period.”

As I said, I think the ACLU and the CCR have a strong argument to make. Regardless of how one feels about Al-Aulaqi and what he may or may not have done, regardless of whether Nassar Al-Aulaqi has “standing,” granting the executive – any executive – unreviewable authority to target and kill American citizens using secret criteria and classified evidence is a terrible precedent to set.

Any decision that gives the president the power to unilaterally decide this or that American is a danger to the country and to then target and kill them extra-judicially is a power that is ripe for abuse.

The government’s argument that the courts have no place reviewing the president’s powers is specious. The very function of the judiciary as laid out in the constitution is to watch over both the executive and the legislative branches of government. Are the government’s lawyers contending that the executive should be allowed to do anything anytime, anywhere? It seems to me that is no longer the definition of a president, but rather that of an autocrat.

Unfortunately, however, I think the entire case is moot. Not only has the judge in the case, US District Judge John D. Bates, decided not to examine the merits or implications of the targeted killing program, he has limited the case to the procedural question of whether Anwar al-Awlaki is willing and able to bring the suit himself, and whether the judiciary should insert itself into the issue.

In my opinion, the argument that, “…Awlaki must show that his son is willing yet unable to bring the suit himself,” is laughable in the extreme. The man is under constant threat of assassination. Would you turn yourself in to a government who is actively trying to kill you? Would you throw yourself upon the mercy of a court that hasn’t even ruled on whether it has jurisdiction in the case?

However, Judge Bates has seemed skeptical of such arguments. “Why shouldn’t I look at the public statements of al-Awlaki and conclude that he does not desire to bring this case?” he asked. “He doesn’t respect the U.S. court system. He doesn’t believe it has any jurisdiction over a Muslim?”

Curiously, virtually all the “public statements” the government used to make their case that Aulaqi is a notorious terrorist come from MEMRI and SITE, two “independent” internet sites devoted to releasing video of terrorist organizations. Although the government and now Judge Bates seem convinced by these videos, MEMRI and SITE are notorious at producing their videos without ever sourcing where they came from. This is not to state I think Al-Aulaki is an innocent bystander. However, if a major source of the government’s “evidence” about a given terrorist are videos whose source is unknown, that does little to reassure me that the government’s decisions about who is to be assassinated should be unreviewable.

The case had the promise of being one that could frame a necessary debate about executive power. Sadly, however,it has devolved from a major policy debate to a rather boring procedural decision. And given Judge Bates history, – (he was the judge responsible for dismissing two suits brought by Valerie Plame and her husband as well as dismissing the GAO’s attempt to learn with whom Vice President Cheney met in his secret energy conference. ) – the question of whether the Judge is likely to rule in favor of anyone challenging the powers of the executive branch is….

Certainly Doubtful.

Tags: ACLU, Assassination, Aulaqi, Awlaki, Bates, CCR, Certain Doubt, Executive, government, judge, legal, Much Ado About Nothing, Obama, president, tergeted killing, Thomas Vincent, Vincent
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