The Washington Independent » russell feingold

Feingold to Oppose Bernanke

Mike Lillis — Fri, 22 Jan 2010 15:31:32 +0000

Here’s the statement just released by Sen. Russ Feingold (D-Wis.), explaining why he intends to oppose Federal Reserve Chairman Ben Bernanke’s bid for a second term:

A chief responsibility of the Chairman of the Federal Reserve is to ensure a sound financial system. Under the watch of Ben Bernanke, the Federal Reserve permitted grossly irresponsible financial activities that led to the worst financial crisis since the Great Depression. Under Chairman Bernanke’s watch predatory mortgage lending flourished, and ‘too big to fail’ financial giants were permitted to engage in activities that put our nation’s economy at risk.

And as it responds to the crisis it helped to usher in, the Federal Reserve under Chairman Bernanke’s leadership continues to resist appropriate efforts to review that response, how taxpayers’ money was being used, and whether it acted appropriately. When the full Senate considers his nomination, I will vote against another term for Chairman Bernanke.

Bernanke’s current term expires at the end of January, but with the Fed under fire for its handling of Wall Street’s financial collapse — particularly its opposition to disclosing where all of those taxpayer dollars went — more and more Democrats appear ready to line up in opposition to another term.

Holder Struggles to Defend 9/11 Trial Decisions

Daphne Eviatar — Thu, 19 Nov 2009 11:00:33 +0000

Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder surely knew he’d be facing a tough audience when he prepared to testify to the Senate Judiciary Committee on Wednesday. That may be why instead of delivering the written testimony he’d prepared, he focused his opening remarks on explaining his decision, announced last Friday, to try the alleged co-conspirators of the September 11, 2001 terrorist attacks in a New York federal court.

But the Attorney General also announced last week his parallel decision to try five other terror suspects in the newly reconsistituted military commissions just authorized by Congress and signed by the President. Instead of pacifying Republicans, however, it has instead opened up Holder and the Obama administration to harsh criticism from both sides of the aisle. That quickly became clear in the aggressive, even hostile questioning from Republicans yesterday, and repeated expressions of disappointment from some Democrats.

In attempting to explain his decision at the justice department oversight hearing on Wednesday, Holder said: “I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum. At the end of the day it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court.”

Republicans, however, repeatedly cast the choice of a civilian trial as undermining the war on terror. “This is war,” said Sen. Jeff Sessions (R-Ala.), the ranking Republican on the committee. “I think the decision you’ve made to try these cases in federal court represents a policy and political decision.”

Holder denied that politics had anything to do with it, and confirmed that he, too, believes we are “at war with a vicious enemy.” Yet the decision to continue to characterize the struggle against terrorism as a war left Holder struggling even more to explain his decision to choose a civilian trial over a military one for the men he believes sparked the whole conflict.

“Prosecuting the 9/11 defendants in federal court does not represent some larger judgment about whether we are at war,” he said. But “We need not cower in the face of this enemy.”

“It’s not cowering in fear of terrorists to decide the best way for this case to be tried is to be tried by military commissions,” Sessions retorted. “You’ve indicated the military commissions can be used. I assume you believe a military commission can fairly and objectively try certain of these cases.”

Holder affirmed that they can. But Sen. John Cornyn (R-TX) used that to argue that Holder was exercising bad judgment, because the evidence against Khalid Sheikh Mohammed and his co-conspirators now could all be thrown out in a federal court because they weren’t read their Miranda rights when they were seized.

Graham, in his questioning, noted that using two different justice systems will confuse military officers who capture terror suspects in the future. “Under your decisions, the point of trial would not be known,” he said. “So what should the military do at the point of capture? Custodial interrogation rights and Miranda rights attach at that time. But they’re not normally used by the military. What do we tell our soldiers and commanders when they capture somebody about how to interrogate and when to interrogate?”

Any lawyer defending a terror suspect captured on the battlefield in federal court, Graham argued, would argue that “questioning of my client without Miranda warnings would be a violation of domestic law.”

Holder assured Graham that Miranda warnings aren’t usually necessary when the military arrests a combatant overseas, although he acknowledged that the decision is made on a case-by-case basis, and did not explain how those decisions are made.

Many Senate Democrats, meanwhile, although supporting the decision to try the 9-11 suspects in federal court, were equally disturbed by Holder’s decision to use military commissions to try other detainees.

“I commend you for your decision” to try the 9/11 suspects in federal court, said Sen. Russell Feingold (D-Wisc.) “But I remain skeptical of the decision to try five others in military commissions.” Feingold noted that more than 200 terror suspects have been prosecuted in federal court since September 11, 2001, including Zacarias Moussaoui, the so-called 20th hijacker, who was charged and convicted in federal court by the Bush administration, with no objection from Republicans. Now, “it’s disheartening to hear that people have so little faith in our system of justice,” said Feingold.

Sen. Sheldon Whitehouse (D-R.I.), a former U.S. Attorney, added that unlike the federal court system, military commissions are an uncertain system of justice, even with the recent congressional amendments that reauthorized them. Under President Bush, the commissions convicted only three people, which included one guilty plea, Whitehouse noted, adding that he had doubts about the new commissions “being able to contribute same kind of reliabity and resilience that federal courts have obtained through tens of thousands of cases.” “Even a perfect military commission still bears some kind of question,” he said. “They are still untested.”

The result is that their verdicts are likely to be appealed, which will only “lead to delay in the outcome of the proceedings,” said Dick Durbin (D-Ill.).

Sen. Patrick Leahy (D-Vt., the committee chair, echoed that worry. “The concern I have is that military commissions have repeatedly been overturned by the Supreme court and have very little precedent,” he said. By contrast, “our federal courts have 200 years of precedent.”

What’s the Point of Those Military Commissions Again?

Daphne Eviatar — Sat, 14 Nov 2009 17:21:02 +0000

Yesterday’s announcement that the Obama administration will try Khalid Sheikh Mohammed and the other 9/11 suspects in federal court has been hailed as everything from “an important step forward for justice” by Human Rights Watch to “a step backwards for the security of our country [that] puts Americans unnecessarily at risk” by Senate Minority Leader Mitch McConnell (R-Ky.).

Glenn Greenwald has pointed out the irony of Republicans now raising fears of another terror attack simply because the president has decided to prosecute terror suspects in a way that’s consistent with American values.

But some important points are being drowned out by the hysteria. Retired Adm. John Hutson, now the dean of Franklin Pierce Law Center, yesterday observed that “there’s no particular reason to believe that if terrorists are going to take vengeance on the US for prosecuting these people, that that’s going to happen at the location or at a hard target.” A federal supermax prison or high-security New York City jail is actually “the least likely place for vengeance to be taken,” given the obstacles presented by all the security, he said on a conference call organized by Human Rights First. “The logical consequence of that stream of logic is that we not prosecute them at all to avoid some form of retribution.”

The other point largely overlooked is that while Attorney General Eric Holder announced plans to try the alleged 9/11 plotters in federal court, he also announced that the suspected USS Cole bomber, among others who’ve attacked U.S. soldiers or military targets, would be tried in the newly reconstituted military commissions. So are they getting a lesser trial?

“Despite the changes enacted by Congress this year, that untested system does not have the track record of fairness and justice that our criminal justice system has,” said Sen. Russell Feingold (D-Wis.) yesterday, after praising the decision to try KSM and his alleged co-conspirators in federal court.

Col. Morris Davis, the former chief military prosecutor for the commissions, made this important point Sunday in The Wall Street Journal: having two different justice systems “establish[es] a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

Another former military prosecutor, Lt. Col. Darrel Vandeveld, who resigned his post in protest last September, echoed that yesterday. “To say that you’ve achieved the gold standard for certain defendants by holding their trials in federal courts, and the rest can go to Gtmo, doesn’t necessarily resurrect the image of Gtmo or the military commissions as beacons of fairness. And if one of the stated goals in closing Gtmo is to restore America’s moral position in the world, the decision taken today won’t get us closer to accomplishing that.”

Holder’s justification for trying the Cole bomber and others by military commission is that in each case, their targets were a U.S. soldier or military installation. But isn’t that what we use our regularly constituted military courts for? Isn’t that why Major Nidal Malik Hassan, who last week apparently shot up 13 soldiers at the Fort Hood military base, is being tried by court martial? The only difference would appear to be that the suspects headed for military commissions are not American citizens. So that’s why they get an inferior justice system?

That decision combined with the implicit acknowledgment in Holder’s announcement yesterday that U.S. federal courts a superior form of justice to the military commissions just highlights a question that’s becoming increasingly difficult to answer: Just what is the purpose of those new military commissions?

Feingold: Legal Memos on ‘Blatantly Illegal’ Surveillance Still in Place

Spencer Ackerman — Fri, 10 Jul 2009 23:01:36 +0000

No real surprise that progressive Sen. Russ Feingold (D-Wis.) would be appalled by the inspectors general report on warrantless surveillance, but this is news to me:

“This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power. I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today.”

Forgive me if I’ve missed something, but I thought that those memoranda — principally John Yoo’s Nov. 2, 2001 Office of Legal Counsel memorandum underpinning the programs — were either significantly abridged or withdrawn outright. This is from page 182 of the memoir of Jack Goldsmith, the former Office of Legal Counsel head who worked hard to roll back the most extreme legal contentions of his Bush administration colleagues:

I am not permitted to say much about how Jim Comey, Patrick Philbin and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing. I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government.

Now, of course, significant aspects of the program have been codified in last year’s FISA Amendments Act — of which Feingold remains a staunch opponent. But does the legal architecture of the original PSP still remain in place?

I suppose if it does, one vehicle for calling attention to it — and perhaps doing something about it — is the debate over reauthorizing sections of the Patriot Act that will take place later this year.

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McChrystal’s First Message to His Troops

Spencer Ackerman — Mon, 22 Jun 2009 12:49:54 +0000

Small Wars Journal has a copy of Gen. Stanley McChrystal’s guidance to NATO’s International Security Assistance Force troops on how the Afghanistan war ought to be conducted. It’s reminiscent of Gens. David Petraeus and Raymond Odierno’s messages to the troops about counterinsurgency and what the missions in Iraq under their commands were. (And probably self-consciously so.) There’s a lot that’s been made about McChrystal’s Joint Special Operations Command background, with its enemy-centric focus, posing a problem for a population-centric counterinsurgency command, but ever since before McChrystal was nominated to command U.S. forces in Afghanistan, the counterinsurgency crowd has loved and embraced him.

The guidance shows why. McChrystal really could not have demonstrated a greater concern for population protection in this document: it’s the first operational message, and it’s repeated and expanded upon throughout. For those who have (reasonable) concerns about McChrystal’s barely explored involvement with torture in his previous job as the head of Joint Special Operations Command, there’s this:

4. Ensure Values Underpin our Effort. We must demonstrate thru our words and actions our commitment to fair play, our respect and sensitivity for the cultures and traditions of others, and an understanding that rule of law and humanity don’t end when fighting starts. Both our goals and conduct must be admired.

He doesn’t say the T-word, but the spirit is there, and much more beyond the torture issue, as well. On that issue, Sen. Russell Feingold (D-Wis.) noted in a little-noticed Senate statement for the record that despite McChrystal’s testimony that he was “uncomfortable” with “enhanced interrogation techniques” and worked to rein them in, he requested that his former commander, Gen. John Abizaid, grant him the latitude to use

a number of these techniques, including “sleep management,” “environmental manipulation,” and “control positions.” The request defined “control positions” as “requiring the detainee to stand, sit, kneel, squat, maintain sitting position with back against the wall, bend over chair, lean with head against wall, lie prone across chairs, stand with arms above head or raised to shoulders, or other normal physical training positions” and requested that “in the most exceptional circumstances, and on approval from [the commander]” interrogators be allowed to “use handcuffs to enforce the detainee’s position.”

It’s unclear to me whether Abizaid granted such approval and, if so, whether McChrystal authorized his troops to use those techniques. I have a request for comment out to USFOR-A and will report back if and when I hear more.

The New York Times reported this line of thinking from McChrystal’s subordinate commanders:

“We are going to bring the hurt to the insurgency and offer them an existential choice,” said another senior military officer.

“Those who are ideologically committed — we don’t expect them to change. They will fight, and they will die,” the officer said. “But for the many for whom ideology is not the motivation, we are going to offer them a serious motivation to stop, to make another choice.”

Distinguishing between those for whom it’s possible to deal with and those for whom it’s necessary to confront and defeat is the beginning of wisdom for military strategy in Afghanistan, and it’s not been much in evidence to date. (Except for, like, McChrystal’s scorned predecessor.) It’s entirely reasonable to wonder if it’s too late at this point. I can’t say I know one way or the other.

This is something to really pay attention to:

“Some of the fiercest fighting we run into is where it’s local,” said one Defense Department official, because those fighters are rooted in the community by tribe or local interests in narcotics, lumber harvesting or smuggling.

That’s a reference to southern Afghanistan. But do they fight for ideology there, or for other reasons?

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