America's Gathering Storm

 

By David K. Shipler 

              It’s too bad that Supreme Court justices and other government leaders aren’t required to live for two or three years in some dictatorship before they take office in the United States. Better yet, in one of the countries that have used democracy to undermine democracy. Then perhaps they would recognize the signs of a gathering storm, when the friction of the air seems to change and the wind turns ominous.

              The Supreme Court and the Republican Party are laying the ground for autocracy. They are corrupting the constitutional interplay among the three branches of government, among the shared and competing interests in a complex society, and therefore among the rulers and the ruled.

              The Republicans have abdicated the key role that political parties must play in every free society—filtering out extremist demagogues. And the radical right on the Supreme Court has now granted broad immunity to presidents who commit crimes with “official acts.” This junction of political and judicial mischief could not come at a more perilous time, with a Republican authoritarian poised to return to the presidency carrying a coherent ideological blueprint he did not have in hand his first time around. He would commit felonies against democracy virtually unfettered. This is the perfect storm.

The Scourge of Military Commissions

By David K. Shipler

                Of all the self-inflicted wounds by the United States since 9/11, the flawed military commissions set up to try suspected foreign terrorists rank high on the list. At Guantanamo, the commissions have been bogged down in a swamp of dubious ethical, legal, and procedural practices. Their constitutionality has been challenged, their partial secrecy denounced.

Some of their military judges have demonstrated bias, and one was reprimanded this week by the powerful Court of Appeals for the D.C. Circuit, which vacated all his orders back to Nov. 19, 2015, the date he initiated a conflict of interest by applying to the Justice Department to be an immigration judge. All rulings on his orders by the Court of Military Commission Review were also set aside, wiping the slate almost clean of pretrial decisions in the case, now requiring re-argument on many of the issues. It was a telling illustration of the mess that’s been created.

Without the military commissions, it’s a good bet that the most prominent prisoners at Guantanamo would have been executed years ago, or at least be sitting on death row waiting for the needle. They would have been tried in civilian federal courts, which Republicans have blocked, although the courts are the jewel in the crown of the American judicial system. If juries had found them guilty, it’s hard to imagine anything but the death penalty. Instead, the alleged organizers of the 9/11 attacks and the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more than 15 years, at taxpayers’ expense, waiting for trial by military commissions that are so ill-conceived as to be vulnerable to obstruction by prosecutors and multiple motions by defense attorneys seeking to guard their clients’ rights.

Terrorism: The Ambiguity of Intelligence

By David K. Shipler

A strange aura of infallibility still surrounds the gatherers of secrets. Oddly, the false premise of the Iraq war seems not to have damaged public trust in the spy, the interrogator, and the computerized dragnet that captures and sifts petabytes of data. Whatever is hidden, and is ferreted out, carries a presumption of accuracy so seductive as to have beguiled a couple of federal judges, who have issued an unprecedented ruling that unverified intelligence reports deserve unquestioned acceptance. Only the Supreme Court has the power to break this spell, which it will consider doing tomorrow. [Update: The Court on June 11 decided not to review any of the seven habeas corpus decisions by the D.C. Circuit Court of Appeals, letting stand the pernicious opinion in Latif, described below.]

The espionage agencies’ reputations have been bolstered by the spectacular intelligence coups that have led to Osama bin Laden and, most recently, to the foiling of an aircraft bombing plot by a double agent who infiltrated al-Qaeda in the Arabian Peninsula to pose as the bomber himself. Nevertheless, scattered among the dramatic successes are untold numbers of dubious reports, false positives, half-truths, and outright absurdities. Such is the nature of intelligence work, according to those in the business.