Enemy Combatants To Get Welfare?

In his first news conference as an administration official, National Intelligence Director Dennis Blair suggested on March 26 that Gitmo detainees may soon be coming to a Social Services agency near you:

During his news conference, Blair also said the Obama administration is still wrestling with what to do with the remaining 240 detainees at the Guantanamo Bay Naval Base, which the president has ordered closed

Some of the detainees, deemed non-threatening, may be released into the United States as free men, Blair confirmed.

That would happen when they can't be returned to their home countries, because the governments either won't take them or the U.S. fears they will be abused or tortured. That is the case with 17 Uighers (WEE'-gurz), Chinese Muslim separatists who were cleared for release from the jail long ago. The U.S. can't find a country willing to take them, and it will not turn them over to China.

Blair said the former prisoners would have get some sort of assistance to start their new lives in the United States.

"We can't put them out on the street," he said.

Blair also said the administration has abandoned waterboarding, but is considering other, unspecified "enhanced interrogation techniques."

Border Security Initiative Gets Mixed Reviews

On Tuesday, March 24, DHS Secretary Napolitano announced the administration's $700 million southwest border security initiative calling for "additional personnel, increased intelligence capability and better coordination with state, local and Mexican law enforcement authorities." However, some federal and state lawmakers say more needs to be done.

A plan by President Barack Obama to send more federal agents to the Mexican border is inadequate to control growing drug violence in the two countries, an influential U.S. senator said on Wednesday, and he said he would seek $385 million more from Congress.

Senator Joseph Lieberman, chairman of the Homeland Security Committee, said he would try to quickly pass funding to hire 1,600 more Customs and Border Patrol agents and extra immigration officers, build up law enforcement centers and fight human trafficking....

"I don't think it's enough," Lieberman said at a hearing of his committee. "The danger here is clear and present. It threatens to get worse."

More reaction from elected officials here. And Investor's Business Daily also finds the plan wanting, noting that what it calls "a wall of bureaucracy" is an insufficient method for securing the border.

Update: The head of the Border Patrol union is underwhelmed by the plan. And HumanEvents.com is really underwhelmed.

State Secrets Privilege To Be Tested

The Obama administration now seeks to invoke a more extensive state-secrets privilege then its predecessor, despite what was said on the campaign trail. Sound familiar? A ruling from Judge Vaughn R. Walker could be handed down at any moment:

Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.

The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama's Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff -- proposing that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.

The suit by the al-Haramain Islamic Foundation has proceeded further than any other in challenging the use of warrantless wiretaps, threatening to expose the inner workings of that program. It is the second time the new Justice Department has followed its predecessors in claiming the state-secrets privilege, which would allow the government to exclude evidence in a civil case on grounds that it jeopardizes national security.

See our earlier post on this matter here.

Update: Judge Walker denied the government's motion on April 17.

The War on Terror: Just Words?

More changes in the Obama administration's approved lexicon according to the Washington Post:

The end of the Global War on Terror -- or at least the use of that phrase -- has been codified at the Pentagon. Reports that the phrase was being retired have been circulating for some time amongst senior administration officials, and this morning speechwriters and other staff were notified via this e-mail to use "Overseas Contingency Operation" instead.

"Recently, in a LtGen [John] Bergman, USMC, statement for the 25 March [congressional] hearing, OMB required that the following change be made before going to the Hill," Dave Riedel, of the Office of Security Review, wrote in an e-mail.

"OMB says: 'This Administration prefers to avoid using the term "Long War" or "Global War on Terror" [GWOT]. Please use "Overseas Contingency Operation.'"

Riedel asked recipients to "Please pass on to your speech writers and try to catch this change before the statements make it to OMB."

In The Tyranny of Words by Stuart Chase, the author observes that "Language is apparently a sword which cuts both ways. With its help man can conquer the unknown; with it he can grievously wound himself."

The AIG Bonus Tax: Constitutional?

In full damage-control mode, the U.S. House of Representatives on March 19 to much fanfare rushed through a bill to tax those notorious and controversial AIG bonuses. This legislation, which would impose a 90% tax rate on bonuses paid after Dec. 31, 2008, by any company (not just AIG) that received more than $5 billion in government bailout money, is meant to correct an error or omission by the in the so-called stimulus bill--a massive piece of spending legislation that was also rushed through both chambers by the Democrats without the American people, let alone the lawmakers themselves, having a chance to read it. Apparently Sen. Christopher Dodd (D-CT) or his staff egged on by the Obama administration inserted 1lth-hour language in the stimulus bill that permitted these taxpayer-funded bonuses.

Some legal observers maintain that the House-imposed tax levy violates Article 1, Section 9, of the Constitution (which rules out "bills of attainder or ex post facto laws), while others disagree based on the premise that the courts generally defer to Congress on tax matters.

So what is a bill of attainder anyway? In his outstanding book The Supreme Court, the late Chief Justice William Rehnquist wrote that in a 5-4 decision, the high court struck down--in Ex Parte Garland and Ex Parte Cummings--certain post-Civil War loyalty oaths on grounds they were unconstitutional bills of attainder and ex post facto laws.

The Constitution prohibited both the state and the national governments from enacting either of these things, so the question before the Court was whether the act of Congress or the Missouri statute came within the definition of the prohibited acts. These clauses of the Constitution are not of the broad, general nature of the Due Process Cause but refer to rather precise legal terms that had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them without the benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment. An ex post facto law was a law that punished for conduct that had occurred before its enactment. An early case from the Court, Calder v. Bull, had rather strongly intimated that this provision only applied to criminal laws.

Senate approval is required before the tax measure can become the law of the land. Some senators oppose the bill in its current form on constitutional or other grounds. There is also the issue of freedom of contract; that is, the law generally honors contracts freely entered into by private parties.

Even if the Senate and House ultimately agree on a measure, legal challenges are likely. And who knows how many additional loopholes will work their way into the final bill.

We're not losing sleep by any means over these corrupt Wall Street firms or their fat-cat executives (although we are losing sleep over the remnants of our 401(k)). There is no justification for making the taxpayer pick up the tab for these outrageous bonuses, which amounted to an incredible $165 million in AIG's case. However, leaving aside the constitutionality for a moment, the idea that the government could target the income of certain narrow groups of people sets an unsettling precedent, doesn't it?

The Terrorist Next Door?

In John Gregory Dunne's novel Dutch Shea Jr., the title character, a lawyer on the edge, has an relationship with a judge nicknamed "Structured Setting Martha." When sentencing perpetrators, the judge would always say "I think you'd be better off in a structured setting."

Unlike garden-variety criminals, Gitmo detainees apparently aren't better off in a structured setting.

Attorney General Eric Holder said some detainees being held at Guantanamo Bay, Cuba, may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners.

Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases of the approximately 250 detainees to determine which will be put on trial and which may be released to comply with plans to close the detention facility by next year.

Presumably the 9/11 plotters currently jailed at Gitmo will be locked up indefinitely. In legal papers released on March 10, the detainees were unrepentant about their involvement in the attack: "The five detainees...have filed a document with the military commission...expressing pride at their accomplishment and accepting full responsibility for the killing of nearly 3,000 people." The full document can be accessed here.

Terrorism Redefined as a "Man-Caused Disaster"

DHS Secretary Napolitano said on March 13 that that the administration would "soon" unveil a plan to address the U.S.-Mexico border violence.

In an interview with Newsweek, Napolitano similarly indicated that more law enforcement assets will be sent to the border in the coming weeks: "She said their mandate would be not just preventing drugs and cartel members from entering the United States but stemming the flow of cash and weapons from the U.S. to Mexico."

Yet oddly enough, one of the administrations priorities is to launch an investigation of Sheriff Joe Arpaio.

Separately, in an interview with the German news organization Spiegel, Napolitano suggested that in the new administration the word "terrorism" is going the way of enemy combatant.

SPIEGEL: Madame Secretary, in your first testimony to the US Congress as Homeland Security Secretary you never mentioned the word "terrorism." Does Islamist terrorism suddenly no longer pose a threat to your country?

Napolitano: Of course it does. I presume there is always a threat from terrorism. In my speech, although I did not use the word "terrorism," I referred to "man-caused" disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur.

Meanwhile, the Washington Times is less than enamored with Napolitano's stewardship of the agency:

Department of Homeland Security chief Janet Napolitano seems to be floundering on immigration and national security issues.

Not only is she continuing her quixotic campaign against Real ID, the main federal law safeguarding the integrity of drivers' licenses and keeping them out of the hands of terrorists, but she has also been weak and apologetic about the efforts of Immigration and Customs Enforcement to do its job - removing illegal aliens from the United States.

And congratulations to Justice Sotomayor, who yesterday received Senate confirmation of her appointment. Click here for a review of a book written by one of her new colleagues.