Month: March 2004

The Bad Kerrey

I am reminded why I came to loathe Bob Kerrey. He’s one of those self-serving “bi-partisan” iconoclasts who refuses to deal in the real world. His questioning of Cohen is typical.

The idea that Clinton, in the fall of 2000, could have invaded Afghanistan without the support of congress, any of our allies or the American people is so ludicrous I can’t believe he’s even making the argument. Apparently, Bob thinks that it is perfectly permissable, indeed it is required, that a president make military decisions in a complete political vacuum.

Clearly, the Clinton administration could only prepare a response to the Cole bombing, (which nobody in the entire world saw as such an imminent threat that it required all out war) that they had every reason to believe would likely be carried out by the next administration, be it Gore or Bush. That’s the way our bi-partisan foreign policy used to work and it is the way it should work. If Bob Kerrey or anybody else thinks that a lame duck president should go it alone and invade a country without any political support at home or abroad just one month before the presidential elections he has a hole in his head.

As Cohen pointed out, the Republican congress was a bunch of rabid dogs who had no qualms about accusing Clinton of everything from rape to treason. Invading Afghanistan against the wishes of the military and the rest of the world, ignoring all of the political considerations would have been insane. Kerrey is, as he’s always been at least half the time, a useless grandstanding tool for the GOP on this stuff. You can certainly criticize Clinton for a lot of things in this matter, but this isn’t one of them.

I don’t even think Bush could could have invaded Afghanistan before 9/11. Up to now, I was just wishing he would have, you know, acted like he gave a shit and did what he could to thwart what everybody seemed to know was a big plot, likely on American soil. It had worked with the millenium bombing and there is ample evidence that we might have “connected the dots” if a little more attention had been paid. I didn’t realize that we are now saying that Clinton or Bush should have willy nilly invaded Afghanistan without any support of anybody, including the military.

Update: Yglesias has more on Kerrey’s backing of Chalabi and the INC (along with — surprise — our good friend Joe Loserman.)

He also appeared on Matthews making the same self-serving tough guy points. However, Trent Lott came on soon after and had the predictable effect of making Kerrey look moderate, sane and reasonable by comparison. Context is everything, I guess.

Chapter One

For those who are curious about the juicy details of Clarke’s book, Tim at the road to surfdom is excerpting and commenting on it. Here’s just one little tasty bit:

On one screen, I could see the Situation Room. I grabbed Mike Fenzel. “How’s it going over here?” I asked.

“It’s fine, Major Fenzel whispered, “but I can’t hear the crisis conference because Mrs Cheney keeps turning down the volume so she can hear CNN…and the Vice President keeps hanging up the line to you.” Mrs Cheney was more than just a family member who had to be protected. Like her husband, she was a right wing ideologue and she was offering her advice and opinions in the bunker.

Try to imagine if Hillary….

These excerpts are in addition to his interesting posts from yesterday on The Age Of Sacred Terror, one of the authors of which, Daniel Benjamin, appeared on CNN yesterday backing Clarke up all the way.

BLITZER: Clarke is the latest former Bush administration official to question the handling of the war on terror. The former Treasury Secretary Paul O’Neill has said the Bush White House was looking to out of Saddam Hussein from the very start of the administration.

And the former chief U.S. weapons inspector David Kay who found no evidence of weapons of mass destruction in Iraq has questioned the intelligence the Bush administration used to justify the war against Saddam Hussein.

So is Richard Clarke a courageous whistle-blower or an angry ex- employee with an axe to grind? Joining us is another former national security council staffer, Dan Benjamin, was director of counterterrorism in the Clinton administration. He’s the co-author of the book “The Age of Sacred Terror.” You worked for Richard Clarke the Clinton White House.

DAN BENJAMIN, DIRECTOR, COUNTERTERRORISM IN CLINTON ADMINISTRATION: That’s correct. For the last two years of the ’90s.

BLITZER: So what do you make of his allegations?

BENJAMIN: His allegations track with what the discontent he was expressing for quite awhile after the new team came into office in January of 2001.

And I have to say that his critique of the emphases in the war on terror also tracks with what a lot of us in the counterterrorism community have been saying. It very much stands up to what we have said in our book, “The Age of Sacred Terror.”

BLITZER: But the White House is coming back and saying, you know what? You had eight years in the Clinton administration to get rid of Osama bin Laden, to destroy the al Qaeda. You had repeated terror threats, the first World Trade Center, the Cole, the twin embassy bombings. You didn’t do it over eight years.

BENJAMIN: Well there’s no question it was a tragedy that we couldn’t get him in those first eight years. But what is also the case is that we were working flat-out to get him. We found out how hard it is to get him. We’ve been working flat-out since 9/11 and have still not been able to find and to capture, kill bin Laden.

I think Dick’s argument here is that we could have done better and might have had more successes and possibly even more prevention had we been working flat-out after the new team came in in January 2001.

BLITZER: Which raises this question, he was a career federal civil servant, highly respected going back to earlier Republican administrations as well. Were you surprised when he was held over into the Bush administration?

BENJAMIN: Not very. Dick is first of all deeply patriotic, he is eager to work for the government. I think that his whole life was invested in this kind of work. And I think he found it deeply rewarding to be so close to these issues, to really work on national security.

This has been his entire life. So I wasn’t very surprised. And I must say he’s also been very, very highly valued in Washington. He’s known as an insider’s insider who knows where all the levers and pullies are in government.

BLITZER: At the same time he was demoted at the beginning. During the Clinton administration, he had a cabinet-level jobs as counterterrorism czar. And he was demoted to a certain degree in the Bush administration.

BENJAMIN: During the Clinton administration, at end, he had a place at table as someone who was going to speak specifically for counterterrorism issues. And he was made national coordinator for counterterrorism.

He was stripped of that rank when the new team came in because frankly they didn’t think that terrorism was such a big issue that any one person should be at the table to speak for it.

And historically, that has meant that terrorism has not been taken as seriously in the discussions of national security policy.

BLITZER: The other charge that they’re making against Richard Clarke is that his — one of his best friends, Rand Beers, worked for you on the Clinton administration on the National Security Council. He teach, of course, with him at Harvard, at the Kennedy School. And that Rand Beers is now one of the top national security advisers to John Kerry.

In other words, politics behind these allegations.

BENJAMIN: I don’t think it’s politics because I think Dick is doing so well in the private sector with his consulting and with his speaking that I don’t think he’s looking for a way to get back in.

And what’s more is everyone in Washington, everyone in the political world knows exactly what Dick’s strengths are and his failings.

I don’t think he needs to audition for a job. This is because he felt strongly about the issues.

BLITZER: Are you surprised the way the White House is now going after him?

BENJAMIN: I’m not surprised. These are very, very serious accusations. And in fact, they go to the president’s perceived strength in the election. Of course, they’re going to fight back hard.

BLITZER: One final question. One of the charges the vice president made and others in the White House is once he was demoted at the start of the administration, he didn’t attend a lot of the high- level meetings where the decision were made.

So as a result, he didn’t know what the president and vice president were really doing to fight Osama bin Laden.

BENJAMIN: Well that’s impossible. Dick was the pointman in charge of coordinating counterterrorism policy. If he didn’t know what the policy was, and he didn’t know what steps were being taken, then no one did. And there was no policy.

So it’s simply inconceivable. If there were principals’ levels meetings on terrorism, he had to be there.

One of Tim’s commenters mentions that my good friend Jim Wilkinson was all over FOXNews calling it “a book of lies.” He also appears on this Blitzer transcript rebutting Benjamin, in full character assassination mode, almost frothing at the mouth:

JAMES WILKINSON, DEP. NATL. SECURITY ADVISER: You know when I go try to buy this book tonight I’m going to look probably in the fantasy fiction section of my local bookstore. But there are so many inaccuracies in this book. For example, he says that he could never get a meeting. He asked for one meeting with the president of the United States. He asked for that during this time of research and he to briefed on cybersecurity. I brought an email I want to read to you. He claims he could never get a meeting yet, Wolf, I work for Condi Rice and we meet with her every single morning in the situation room. Anyone is welcome to come to those meetings and Dick Clarke refused to come to those meetings. He thought they were beneath him. Let me read you a note that was sent to him.

“Condi noted your absence this morning and asked me to remind you of the importance she attaches to the meeting and her expectation that all senior directors will be there.”

Why didn’t Dick Clarke go to these meetings? Let me remind you, it was Dick Clarke that was in charge of terrorism for this country when the attacks on the USS Cole happened. It was Dick Clarke who was in charge of terrorism for this country when the attacks on the embassies in Africa happened. It was Dick Clarke who was in charge of terrorism for this country when the threat was building towards 9/11 and it was Dick Clarke who was in charge of terrorism for this country in June when the FBI said 16 of 19 hijackers were already here, Wolf. And on the day of 9/11, he was giving a speech on cybersecurity. This book is full of so many inaccuracies.

BLITZER: What about…

WILKINSON: Wolf, let me finish. The terrorists weren’t overseas, the terrorists were here in America. By June, the FBI says 16 of 19 terrorists in the 9/11 attacks were already here. I just don’t see what this focus on process and titles and meetings. Let me also point something. If you look in this book you find interesting things such as reported in the “Washington Post” this morning. He’s talking about how he sits back and visualizes chanting by bin Laden and bin Laden has a mystical mind control over U.S. officials. This is sort of “X-Files” stuff, and this is a man in charge of terrorism, Wolf, who is supposed to be focused on it and he was focused on meetings.

BLITZER: What about the other charge that he makes is that the president and the vice president, the secretary of defense, the deputy secretary of defense, they were all literally obsessed with Saddam Hussein and Iraq after 9/11, even though the CIA and the FBI repeatedly told them Saddam Hussein had nothing to do with Osama bin Laden or 9/11.

WILKINSON: Let me ask the question this way, let me go even further than you. Wouldn’t your viewers have found it strange if the president didn’t ask about Iraq? Wouldn’t they have found it strange if they didn’t order his counterterrorism team and his FBI director and his intelligence director to look in every corner of the globe for who might be involved? I just don’t see the point with all this Iraq business.

I was working at central command for the last year as you know from our time together. In the northern and southern no-fly zone, Iraq was shooting at our pilots hundreds of times a day. Iraq had dug in deep. Iraq was threatening its neighbors. I just don’t see the point of this Iraq connection. I think the American people would be comforted to know that this president wanted to know everything possible. I want to bring up another point, Wolf.

I brought with me a copy of the January issue of “Publisher’s Weekly.” It shows that this was supposed to come out April 27 of this year. Do you think it’s a coincidence, and you’ve been in this town a long, could it be a coincidence that this book is released the very week he’s giving his public testimony before the 9/11 commission. A commission we’ve spent hours with. We’ve given documents, 800 tapes, cooperating with fully and private, working on these sorts of issues. Is that a coincidence? I think the publisher and Dick Clarke have some answering to do. Why is he focused on book tours and these sorts of things. He should have been focused on terrorism like this president is.

Can you believe this shit? Clarke shouldn’t be “focused on book tours” because he should have been focused on terrorism like the president is now. OK. And, you’ve got to love, “I just don’t see the point of this Iraq connection.”

Wilkinson needs to lay off the coffee and krispy kreme’s. He’s bordering on incoherence.

Tim also mentions Kevin Drum’s opinion that the Bush administration is being foolish not to admit to what he thinks is a reasonable explanation as to why they didn’t care much about terrorism:

The answer seems pretty simple to me: most people before 9/11 thought of terrorism as simply one among many foreign policy problems. There wasn’t really any compelling reason to develop a crash program to deal with it.

I think that is missing the whole point of Clarke’s story, frankly. I don’t think it’s unreasonable that the administration might not have known the scope of the terrorist threat before taking office. But, the minute they entered the White House, the entire national security establishment was warning them about it and they blew them off. That’s the entire thrust of what Clarke, Benjamin, Kerrick and others have all said which is that the Bush administration was distinctly uninterested in terrorism even though throughout the spring and summer of 2001 people were screaming that there was a huge amount of chatter and something really big was about to happen. They were focused on Iraq and missile defense and the rest of their fossilized agenda despite what all of the experts were telling them.

And besides, it really shouldn’t have been a surprise. I knew that al Qaeda was the likely culprit the minute I saw the WTC with a big hole in it and I’m no terrorism expert. The African embassy bombings were in 1998. The USS Cole was bombed in October of 2000 (which, considering the total lack of bipartisan patriotism on the part of Republicans, explains why Clinton didn’t move on al Qaeda then. The GOP thugs would have tried to impeach him again for wagging the dog on behalf of Gore in the presidential campaign. I’m sure that was another reason why they counterterrorism guys were were just a little bit surprised when the Bush people told them to take a hike.)

The issue of terrorism may not have been on a hot burner in most Americans’ minds, but after the millenium plot was foiled I think everybody certainly assumed that the government was very much aware of and working on the threat. The Clinton team was. The Bushies weren’t — and we paid, bigtime. That’s why Clarke came forward.

Update: Read this great post by Avedon on the subject. Fiesty and wise.

Running Of The Bullshit

In an interview on PBS television Thursday, Wolfowitz said Zapatero’s withdrawal plan didn’t seem very Spanish.

“The Spaniards are courageous people. I mean, we know it from their whole culture of bullfighting,” Wolfowitz said. “I don’t think they run in the face of an enemy. They haven’t run in the face of the Basque terrorists. I hope they don’t run in the face of these people.”

I’m beginning to think that the lead in the water in DC is a much bigger problem that we realize.

All Hail Howard Dean

I knew he was the right man for the job. I am still not as sangiune about Nader as everyone else seems to be:

Dr. Dean’s new Rx:

“To that end, according to a well-placed source close to Dean, Kerry and Dean have discussed Dean’s projected role in challenging Ralph Nader, whose fourth run for president has Democrats, Independents and even some Greens apoplectic. Dean has been careful to praise Nader’s accomplishments before urging people not to be seduced by a quixotic campaign. This is a tactical move to avoid driving people into Nader’s arms by being too combative. But should Nader manage to get on the ballot in some key states and threaten to throw them to Bush, expect the gloves to come off.”

In The Supreme Court is suspicious. By Dahlia Lithwick over at Slate, she discussed the case I referenced below in my post about a national ID card. The case was heard by the court today:

One after another dismisses the national ID card debate as not at issue here. One after another suggests—and to a rather frightening degree, at times—that this case has nothing to do with innocent people, or ordinary people. This case has to do with “suspicious” people, and—as you were no doubt aware—suspicious people are not like you or me.

[…]

We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves—unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward—to use Scalia’s formulation—and cooperate. This idea that the “suspicious people” (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police’s historical treatment of them. It’s a shame Justice Clarence Thomas doesn’t speak today. One can imagine that he has at least some idea of what it means to hold “suspicious” people to a different constitutional standard.

Read the whole thing. Somehow I’m getting the idea that the court is in the process of abandoning legal principle generally in favor of some sort of “common sense” view of the law that says the government can do what it wants because an innocent person has nothing to worry about.

Clarke and Wolfowitz and Mylroie

Matthew Yglesias says:

…you really ought to read Peter Bergen’s article on Laurie Mylroie. Especially in light of Wolfowitz’s pre-9/11 remark (reported in Clarke’s book) that rather than go after al-Qaeda we should go after Saddam Hussein because he sponsored terrorism against the United States it appears more and more to be the case here that a big part of the problem is simply that Wolfowitz is a believer in her conspiracy theory. I’ve heard in a second-hand kind of way that this is the case, and Clarke’s stuff seems to lend that account even more plausibility than what Bergen gives us.

Actually, there’s quite a bit more evidence. In a post from last August, in which I wrote about this Wolfowitz/Mylroie connection I linked to Josh Marshall’s reporting on the backround controversy surrounding Sam Tannenhaus’ article on Wolfowitz in the August 2003 issue of Vanity Fair. Josh said:

As noted here a couple days ago, the Tanenhaus article says that Wolfowitz is “confident” that Saddam played some role in the 1993 World Trade Center bombing and that he had “entertained” the notion that Saddam had played some role in the 1995 Oklahoma City bombing as well. (Tanenhaus sources Wolfowitz’s ideas about Oklahoma City to a “longtime friend” of the Deputy Secretary.)

The exact quotes remain on backround and have never been revealed. But, in an earlier story, Time magazine reported:

One reason so many hawks seemed ready to make the case for retaliating against Saddam as well as bin Laden may have been the influence of Laurie Mylroie, a conservative scholar who had convinced herself and a number of influential conservatives, although not the U.S. intelligence community, that Iraq had been behind the 1993 World Trade Center bombing, and was very likely behind 9/11, too. But as eccentric as her argument was to the U.S. intelligence community, it was hailed by Wolfowitz, who wrote in a blurb to her book that it “argues powerfully that the mastermind of the 1993 World Trade Center bombing was actually an agent of Iraqi intelligence.” And invade-Iraq cheerleader Richard Perle, formerly head of Rumsfeld’s Defense Policy Board, wrote in his own blurb: “Laurie Myroie has amassed convincing evidence of Saddam Hussein’s involvement in the first attempt to blow up the World Trade Center. If she is right, and there are simple ways to test her hypothesis, we would be justified in concluding that Saddam was probably involved in the September 11, 2001, attacks as well.”

Clarke said that after 9/11 Wolfowitz wondered why the government was spending so much time on one apparently irrelevant man. Two days after the attacks, Wolfowitz made his famous Al Haig style comment in which he said (and which was slapped down immediately by Colin Powell):

I think one has to say it’s not just simply a matter of capturing people and holding them accountable, but removing the sanctuaries, removing the support systems, ending states who sponsor terrorism. And that’s why it has to be a broad and sustained campaign.

It is indisputable that Wolfowitz swallowed whole the ridiculous theory that terrorists are unable to function without state sponsorship, as his comments above illustrate. This theory was set forth again last July by Mylroie testimony before congress in which she said:

Prior to the February 26, 1993, bombing of the World Trade Center, it was assumed that major terrorist attacks against the U.S. were state-sponsored. But that bombing is said to mark the start of a new kind of terrorism that does not involve states.

That notion is dubious. Rather, the claim that a new, stateless terrorism emerged with the 1993 Trade Center bombing was a convenient explanation in that it required no military response. Once promulgated, it was hastily accepted–even before much progress had been made in the investigation of that attack itself.

There isn’t time to properly address that issue in this testimony. Study of Revenge: Saddam Hussein’s Unfinished War against America contains the fullest account of this author’s argument that there is no new source of major terrorist attacks on the U.S. They were state-sponsored–and remain so. That that is not understood is the result of a major intelligence and policy failure that occurred in the 1990s.

In the time allotted here, I want to address three major terrorist plots that have been attributed to so-called “loose networks,” including al Qaeda, and illustrate that there is significant evidence to suggest that Iraq was involved: the 1993 Trade Center bombing; the 1995 plot in the Philippines to bomb a dozen US airplanes; and the 9/11 attacks.

According to Tannenhaus, as of August 2003 Wolfowitz still agreed with her about the WTC bombings. Perhaps by then he had accepted that Iraq had nothing to do with 9/11, but his statements right after the attacks certainly comport with what Richard Clarke reports was his reaction to the information that Al Qaeda was to blame.

Loser

Via SK Bubba I finally got to see the clip of the notorious Dennis Miller Eric Alterman “interview.”

I don’t think Jon Stewart has anything to worry about. Conservatives are not funny and they aren’t entertaining. It’s just a fact.

Big Night

Clarke’s interview was even more devastating than I anticipated. Perhaps it was his delivery and demeanor, but it was the single most hard hitting criticism I’ve yet heard of Bush’s terrorism policy. His charges were very ineffectually rebutted by Steven Hadley who seemed to be describing a Bob Woodward daydream rather than the Bush Whitehouse. Nobody ever really believed that Bush was in charge, particularly before 9/11. Even those who support the Bush administration always trusted in his advisors — the vaunted grown-ups. In light of these charges, Hadley’s description of Bush fighting his own team and insisting that the terrorism threat be a priority is embarrassingly absurd.

I have had some conversations recently with independent men who were completely persuaded after 9/11 that Bush was a ballsy guy who would do what needed to be done. They believe that the government knew things that the rest of us couldn’t possibly have known. But, when they see a guy like Clarke, the ultimate non-partisan expert/insider saying that what we knew was ignored, these fellows are going to be pissed. If Bush loses these guys, he loses the election.

This may be the most important moment of the campaign. Bush’s only real strength is the hagiography that was carefully cultivated after the attacks. Without that, they have very little. In fact, he becomes a failure of epic proportions. His entire campaign rests on the idea that Bush handled 9/11 flawlessly.

The press must be pushed on this. I already knew all of this stuff and it seemed very powerful to me. I would hope that the media would feel the heat from this story as well. The Democrats need to get together and push this over the next week, as the testimony at the hearings is highlighted. It is the chink in Bush’s codpiece and it’s time to administer a deadly blow.

Show Me Your Papers

Kevin the Political Animal muses about a national ID card, wondering a bit why some people are so adamantly against it. But, he has some reservations after reading this post by Mark Kleiman in which Mark wondered if it might be a good idea to curtail people’s ability to buy alcohol rather than their ability to drive by using the drivers license to designate that a person convicted of an alcohol related offense isn’t allowed to drink — just as minors’ drivers licenses do. Kevin then asks:

…when a driver’s license starts becoming overtly more than just a driver’s license, where does it end? Once people get the idea that it can be used to regulate more than just driving, why not use the same card to regulate and track sex offenders? Or resident aliens? Or handgun licensing? Or criminal records? It would be mighty handy to have all that stuff in one place, wouldn’t it?

Yes it would and that is just one of the reasons you can add me to the list of libertarian wackos who are horrified at the prospect of a national ID card. It’s not out of a knee jerk hatred of government, it’s out of a lifetime observing bureaucrats, cops and politicians. I don’t trust bureaucrats to handle information well; they screw it up a lot already and it’s only getting worse with more information about individuals that’s being collected.

This is one of the main arguments against the CAPPS II system, which is really a beta test of a national ID card database. Aside from a humongous error rate, and total unaccountability, you can see that the slippery slope has already had an effect. Here’s how Anita Ramasastry explains the problem in a column from last Wednesday on FindLaw:

CAPPS II is designed to use commercial and government data to verify passenger identity, and to decide whether individual fliers pose security risks. The Transportation Security Administration (TSA) is the agency tasked with implementing this program.

The program was initially intended to detect terrorists and keep them off airplanes. In August 2003, however, TSA announced that CAPPS II would also serve as a law enforcement tool to identify individuals wanted for violent crimes.

Based on privacy concerns that I have discussed in a previous column, Congress voted to block funding for CAPPS II unless the TSA could satisfy eight criteria relating to privacy, security, accuracy and oversight. (TSA may, at this time, move forward in testing CAPPS II, however.) In addition, Congress also asked the General Accounting Office (GAO) to conduct a review of CAPPS II to determine whether it met the relevant criteria.

This February, that report came in. And it concluded that CAPPS II has numerous problems, as I will explain.

Then today, March 17, a second report was released by the DHS. It confirmed that the TSA was involved in the transfer of JetBlue Airways passenger information to a Department of Defense subcontractor, Torch Concepts, for use in a data mining study (which I also discussed in an earlier column). Moreover, the DHS report found that, “The TSA employees involved acted without appropriate regard for individual privacy interests or the spirit of the Privacy Act of 1974.”

[…]

Readers may object that we can live with a few errors in order to get greater security. But the American Civil Liberties Union (ACLU) has pointed out that even a small error rate would create huge problems.

With CAPPS II checking an estimated billion transactions, the ACLU points out, “[e]ven if we assume an unrealistic accuracy rate of 99.9%, mistakes will be made on approximately one million transactions, and 100,000 separate individuals.” (Emphasis added.) So even a tiny error rate will lead to many, many errors.

She also note that the commercial information they included such as credit reports are notoriously subject to error (or criminal manipulation as with identity theft) and much government information is secret and unchallegeable. The slippery slope is already in force as the TSA — the Transportation Safety Administration is now in the business of helping law enforcement track down criminals. Why would they stop at that? How about IRS leins, bounced checks, or criminal convictions? And certainly there is no reason that they wouldn’t use political activity as a criteria. In fact, they seem to have done that already.

As for law enforcement, I believe we need to hold the line on the fourth amendment in general. If we require people to have a national ID card, then it stands to reason that we will also be required to show it to law enforcement. And it won’t be just another picture ID, it will likely be a hi-tech card with a magnetic strip that connects to a huge amount of information that I don’t think the police have a right to access without probable cause. Right now a case is before the Supreme Court challenging a Nevada law that makes it a crime for a person to refuse to identify himself to police.

Under Nevada law, a citizen must reveal his or her name to a police officer who has reasonable suspicion that the person might be involved in a crime. Even if the suspect is innocent, the mere act of refusing to identify oneself is – itself – a crime.

Analysts say the law creates a legal irony. If the police officer possessed enough evidence to place the suspect under arrest, the suspect would be given a Miranda warning that he or she had the right to remain silent. But if the police officer possessed only reasonable suspicion – not the higher standard of probable cause needed to justify an arrest – a suspect could be arrested and convicted merely for refusing to identify himself.

[…]

In urging the US Supreme Court to overturn his conviction, Hiibel and his lawyers argue that police are free to ask a suspect any questions they want, but the suspect does not have to answer.

A law that can send someone to jail for refusing to speak violates both Fourth Amendment privacy protections and Fifth Amendment guarantees against being compelled to make incriminating statements, they say. “It is inimical to a free society that mere silence can lead to imprisonment,” writes James Logan, a Nevada public defender and one of Hiibel’s lawyers, in his brief to the court.

The Nevada Attorney General’s Office counters that the state’s interest in investigating crimes outweighs Hiibel’s interest in keeping his identity private. “A person does not have a Fourth Amendment right to refuse to identify himself when detained on reasonable suspicion,” says Conrad Hafen, senior deputy attorney general, in his brief. Asking someone’s name is a minimal intrusion, Mr. Hafen says. Rather than forcing a suspect to make incriminating statements, repeating one’s name does not provide evidence of a crime but merely assists an investigation, he says.

“Though the name may link the person to an outstanding warrant, it does not compel the person to inform the officer that he has an outstanding warrant,” Hafen says. “A person’s name is more like a fingerprint, voice exemplar, or handwriting analysis. It is used by law enforcement to identify the person.”

Experts in electronic privacy disagree. “A name is now no longer a simple identifier: it is the key to a vast, cross-referenced system of public and private databases, which lay bare the most intimate features of an individual’s life,” says Marc Rotenberg, in a friend-of-the-court brief filed by the Electronic Privacy Information Center.

A national ID card would make it simpler to access all that information that the government has no business knowing unless they have probable cause to believe you have committed a crime. It should not be simple. Law enforcement should have to make a case before a judge in order to get it.

I don’t trust politicians ever to do the right thing out of the goodness of their hearts. Privacy and freedom are so closely linked in my mind as to be the same thing and they must be protected in law with sufficient safeguards against political repression and government surveillance. Allowing the government to access commercial information and generate even more, while requiring citizens to carry and produce a card that has the means for any government representative to access it, is a recipe for a police state. I know that sounds hysterical, but these things do happen, even to free nations if they don’t remain vigilant against it.

Jon Stewart Wonders:

“Are they going to make us marry gay?”

“I think it must be mandatory because why else would anybody care? Unless the government is going to force you to make man-love, I really don’t know why it would keep you up at night.”

Little does he know that the next step is mandatory polygamous man-on-dog love with Fido and Fifi, as well. It’s only a matter of time.

Via: The Sideshow