a HUGE story that got missed: the end of the 5th Amendment?

A moment of silence for `the fightin'" 5th Amendment. It was badly wounded Friday

Of all the Amendments in the Bill of Rights, the 5th is the one with the most unsavory reputation. To many "Taking the 5th" has always been seen as the last refuge of the guilty weasel, a way to get off on a technicality.    However, the 5th's weasel-protecting properties are a necessary consequence of the powerful protections it give us ordinary citizens against the power of the state.

  Unlike nearly every other country in the world, in the US you cannot be forced to answer charges leveled against you, nor be compelled to give testimony before a tribunal.  In the US  if the State wants to charge you with a crime, it is THEY who must prove you did something wrong.  You are not required to "prove" anything, much less your innocence.

All that however may have just changed.  In a shocking but  almost unnoticed development last week, A Federal Magistrate ruled a man can be held indefinitely because he failed to prove himself innocent:

A federal magistrate judge yesterday recommended rejecting a petition by the sole remaining enemy combatant being held on U.S. soil, finding that Ali Saleh Kahlah al-Marri had not offered persuasive evidence rebutting the government's allegations against him.

And of Course, that Shredder of the Constitution,  the Black Widow of the Bill of Rights, the Global War On Terror was given as the reason for this latest insult to our  fundamental civil rights

For those whose heads are too busy spinning from the constant onslaught of outrages manufactured by the administration to remember names, Al-Marri, a Qatari national and college student in Peoria Il., is the only "enemy combatant" still being held indefinitely in on us soil( the Military Brig where they are also  holding Padilla).

 But  don't feel too bad for him.   That whole being held in defiance of the law and due process?  Apparently, according to the Magistrate, that is his fault for being unable to disprove the FBI's allegations against him: (allegations mind you, there are NO charges pending against Al-Marri )

Magistrate Judge Robert C. Carr of the U.S. District Court of South Carolina upbraided Marri for declining to address detailed allegations contained in a declassified government report outlining his alleged links to al-Qaeda.

"The petitioner's refusal . . . is either a sophomoric approach to a serious issue, or worse, an attempt to subvert the judicial process and flout due process," Carr wrote. "The petitioner has squandered his opportunity to be heard by purposely not participating in a meaningful way."

Excuse me, Mr. Pot?  Shall I put that call though to Mr. Kettle now?

Yes the Judge is blaming the prisoner for failing to refute the FBI's Allegations against him.  It's his remaining silent and taking advantage of his constitutional rights that's subverting the judicial process.  Gotcha.

Oddly enough  apparently NOT qualifying as "Subverting the Judicial process" in Judge Carr's Mind is The government's sneaky legal maneuver in this case:

 

 Al-Marri was actually indicted for terrorism-related offenses in federal district court,... Motions were being heard...attorneys were preparing for trial,.

All of a sudden, federal prosecutors requested the presiding judge in the case to dismiss the indictment against al-Marri. The judge granted the request, but "with prejudice," which means that under the Sixth Amendment bar against double jeopardy, U.S. officials can now never bring those particular criminal charges against al-Marri again.([sic] NB: this is actually the 5th amendment protection, and more properly it's an estoppel issue not a double jeopardy one, but these are legal technicalities; the author's point is essentially correct-ED}

 Once the order of dismissal was entered ..U.S. officials secured an official "enemy combatant" designation from President Bush and immediately transferred al-Marri to the same military brig in South Carolina

So to be clear here, Judge Carr, is denying Al-Marri's habeas petition (Charge Me or Release Me) because he failed to adequately refute charges he can never legally be tried  on    

And just for the record,  those "Serious allegations" are,  according to the affidavit accompanying his arrest warrant Lying to and FBI agent about making an overseas phone call, and using a fake name and social security number to open 3 bank accounts, and credit card fraudd.  That's IT.  

So WHY is he being held as an enemy combatant?  Good question.    As you can see the Affiidavit does also  contains tons of references to 9/11, and known terrorists, but the link to this defendant are high tenuous and circumstantial.  (Mostly, interestingly enough, involving details of numbers Al-Marri called from a disposable phone and payphone, wonder how they might have gotten those)  frankly in my opinion, but few even rise to the level of admissible proof in a regular criminal trial.   (besides when's the last time you saw a a terrorist with a mullet?)

Frankly the FBI had a MUCH stronger case that Al-Marri was  a garden variety hacker and identity thief.  And had they Proceeded with the original trial it'smore than  likely they  could have safely locked him away for 20-30 YEARS.  Apparently , though making us safer AND honoring the law was too much to ask of  our government.  

Consider the incredible insult this case represents to everything we know about fairness and due process.   The government, first investigates and arrests Al-Masri and charges him with several crimes.  So far So good, everything working as it should.

    However, right before Al-Masri  has his constitutionally guaranteed trial to force the government to prove their case, the government instead drops  all charges against him, dismissing  them forever.    Rather than being then allowed to go free, however, the nightmare begins instead.  Al-Masri  finds himself being arrested and  taken to a military prison in South Carolina, charged with precisely nothing,  all on the strength of the fact that George W. Bush signed a Paper declaring him a bad guy.  The government essentially substitutes a signature on a  sheet of paper for 200 years of legal tradition.

Unfortunately this  is now only the first outrage  in this case.    After 3 long years lawyers for  Al-Masri manage to file a  "great Writ" of Habeas Corpus to force the government to either charge him, try him, and prove their case against him, OR let him go at once.   However,  the Judge denies his motion.

Why?

Well because the judge didn't feel Al-Marri  sufficiently disproved the charges that have never been formally  made against him.   (the Judge apparently having been absent the day they discussed the Constitution in Law school)  Then,  in a final rhetorical twist that very nearly defines the phrase "adding insult to injury", he  scolds Al Masri for attempting to "subvert due process"

I think I'd be angrier if I weren't in shock frankly.    I became a lawyer because I  actually truly believe in our legal system,  and believe that despite all its obvious flaws it was one of the fairest in the world.    However I feel like since Bush began his "unitary executive " rampage  we've  gone from living in a country that had a legal system that was the envy of the world, to one who's legal code was apparently written as a collaboration between Joseph Heller and Franz Kafka.



Update [2006-5-15 21:14:44 by Magorn]:

By popular demand: the 5th Amendment to the US Constitution (it's an action packed lil' bugger)

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What's in it for the readers? Time to END the WH press Dinner

There has been a great deal Sturm und Drang about the White House Press Corps Dinner, among Washington's chattering classes this week. Particularly they seem consumed with the performance of Our Hero Steven Colbert.  

After first attempting to ignore him, and they pronounce him unfunny, the talking heads of cable have now settled on depleting  our precious oxygen supplies to express their consternation, shock, and distemper  that a Satirist had the general ill grace and temerity to make fun of the rich and powerful people he was speaking to.  (That every word coming form his mouth was gospel truth only heightens the offense).

As usual though, The press is chasing exactly the wrong story and asking the wrong questions.  Leave it to Dan "The Bulldog " Froomkin, the WaPo's finest reporter to ask the right one:  

Why does this night exist at all?

The coziness of the dinner is a perfect example of what's gone wrong with access journalism. What's in it for the readers?

and he's just getting warmed up.  Preach it Brother Froomkin:

Once upon a time, I imagine, there was great value in throwing a party where journalists and politicians could mingle and shmooze and celebrate the things they have in common.

And indeed, if the press and this particular White House had an even moderately functional professional relationship, then a chance to build personal relationships would be a nice bonus.

But it's not a functional professional relationship. From the president down to the freshest press office intern, this White House seems to delight in not answering even our most basic questions.

So the last thing in the world we need is a big party where the only appropriate mode of communication is sucking up.

Can I get an Amen?

I SAID can I get an Amen?

Ideally, every chance we get to talk to these people, we should be pumping them for information. And ideally we would be consistent in expressing our frustration with them -- not for personal reasons, not for partisan reasons, but because they're making it nearly impossible for us to do our job which is to inform the public on what's going on in the White House and why.,

Froomkin nails it in a Nutshell.  

Events like the Dinner, and what it reveals about the incestuous, access-driven world of the Washington Media, are EXACTLY what drives us crazy about the mainstream media these days.   They have incredible access to the powers that be, supposedly on our behalf.  They are in a unique position to confront and challenge the Administration's lies and law-breaking. They should be our surrogates, demanding answers from our elected leaders.  Instead, they do nothing.   Why?  Because it might jeopardize their access.  It has gone  from  a means to an end , to  an end in and of itself.  Like cigarettes in prison, it has become the currency of  the powerless.  a way to establish a pecking order of the damned.   In their race to show off their access,  too many of the White House Press Corps have forgotten their basic job description, or what the access is supposed to be for.

Consider Dan's incredibly honest and self-critical account of his night at the Dinner:

 I found myself sitting next to -- of all people -- Kristen Silverberg.

Now you may not know who Kristen Silverberg is, but I've been following her movement through Bush's inner circle for quite a while now. First she was a campaign worker, then a young aide in the chief of staff's office, then a high-level policy adviser.

Silverberg was considered the White House's ultimate rising star, and she really caught my attention when -- after Karl Rove was promoted to deputy chief of staff and moved downstairs into an office just down the hall from the Oval -- Silverberg moved into the highly karmic second-floor space that he vacated, and that before him had been occupied by Hillary Clinton.

Not long after that, however, she decided to follow Condoleeezza Rice to the State Department, where she now serves as assistant secretary for international organization affairs.

Now this seems to be a SOMEBODY worth talking to, no?  A rise like that through the White House power structure certainly qualifies as meteoric to say the least.   Add to that the eyebrow-raising fact that she left the WH for the State Department despite being a  Rove protégé , and how she got to where she is right now is a big story by anyone's standards.   Even better, Froomkin has been following it for about a year now and so it totally prepared to get the inside skinny.   So sitting next to her was a HUGE score for him right?  Nope:

In pretty much any other circumstance, if I had a chance to talk to Kristen Silverberg, I would grill her about Bush's plans for Iran, or about her mentor Karl Rove, or on the inner workings of the White House.

But here she was sitting next to me as the guest of a Washington Post White House correspondent, and it wouldn't have been appropriate.

So Instead they have to settle for small talk and banalities.  Not to mention a frustrating face to face with the Lord of the Flies:

 We ended up talking about Karl Rove, but only in the most general terms. I noted that she might be Rove's protege, but that -- according to my wife, at least -- Rove is my greatest muse. (He does seem to inspire some of my finer columns .)As a result, Silverberg very kindly offered to introduce me to my muse. I said I couldn't possibly. She insisted. And next thing I knew we were over at table 54, chatting with Rove himself.

If you read Froomkin as regularly as I do, you know that he has followed and exposed Rove like no other journalist in Washington.  A head to head meeting between the two should have been an epic interview for the ages.   But any hope of that was lost because of the setting:

Of course, what I wanted to do was ask him: Why did he lie to journalists about not having been one of the people who leaked Valerie Plame's identity to Robert Novak? What exactly did he tell the grand jury last week? How does he feel about getting kicked across the hall into a windowless office? (He's moving into Michael Gerson's old digs.) Is there any serious chance of a detente with the press?

But this was not the time. Instead, I went back to my table with Silverberg, still not talking about Iran.

And not only had I gotten nothing useful out of Rove -- but now I was beholden to Silverberg.

And that's exactly why these dinners are a huge mistake. They do nothing for the press, who are constrained by the rules of the event not to do any actual reporting.  Therefore, they enlighten the readers not at all, and in fact, may do the exact opposite by spreading White House propaganda.  

Thanks to their careful stage managing, the "big-hearted Bush with the great sense of Humor" stories dominated the next news cycle.

Unfortunately that image of the President isn't even remotely close to true. Compare all those "good fellow" Bush stories that ran the next day to this bit of news that only the now unfairly maligned USA today reported:

.

" 'Colbert crossed the line,' said one top Bush aide, who rushed out of the hotel as soon as Colbert finished. Another said that the president was visibly angered by the sharp lines that kept coming.

" 'I've been there before, and I can see that he is [angry],' said a former top aide. 'He's got that look that he's ready to blow.'

Hmm Maybe Colbert's routine wasn't quite long enough after all.  Now it seems to me newsworthy that our president has so little emotional maturity and resilience that he almost lost his temper while absorbing Colbert's fairly mild criticism.    However, of all the press in attendance, only one paper chose to cover that angle.  Why?  

Nor is this the first time. Bush's temper and the press' total  lack of reporting on it, is a perfect example of what's wrong with the access game as played by WH press Corps.   Inside the WH and around town, the figure of the Purple-faced expletive-spewing, short-tempered W is well known and often commented on.  He is famous for blowing up at aides and underlings when they deliver bad news to him.  In a wartime president this would seem to be a serious character flaw and cause for concern.

 However instead of reporting on that, and risk getting a cold shoulder from  White House  sources, the Press corps dutifully feed America, W the genial, "Aw Shucks" "God-fearin" "g-droppin'" good ol Boy persona that Karl Rove turned this Yale-educated New Englander into during his first gubernatorial run.  

In other words they are not only not  doing their job, but have now become actively  complicit in creating a lie, to further their own quests for status and access.

Worse yet,  it's not like the Press's access actually does anything for  them. sider this moment from Tuesday's Press Briefing, not 48 hours after this night of bonhomie and "relationship building"

"Q I'm asking you, based on a reporter's curiosity, could he stand under a sign again that says, 'Mission Accomplished'?

Now given that Tuesday was the third anniversary of that infamous day, when Bush announced an "end to Major Combat Operations",  and things have gone so very badly since, (another 2000 dead 17,000 wounded)"  This seems to a perfectly legitimate question to ask and deserving of an equally simple answer like :

"well obviously given everything we know today, if we had it to do all over again, we wouldn't have used that phrase, But Hindsight is always 20-20 and we believed that at the time"

Now let's Compare that to the answer McClellan gave (or more precisely didn't give):

MR. McCLELLAN: Now, Peter, Democrats have tried to raise this issue, and, like I said, misrepresenting and distorting the past --

{  What??  How did he get to Democrats from that question? And how on Earth can you "misrepresent" something as widely covered as that carrier speech?}

"Q This is not --

"MR. McCLELLAN: -- which is what they're doing, does nothing to advance the goal of victory in Iraq.

{  Which also does Nothing to ANSWER THE QUESTION YOU WERE ASKED}

"Q I mean, it's a historical fact that we're all taking notice of --

"MR. McCLELLAN: Well, I think the focus ought to be on achieving victory in Iraq and the progress that's being made, and that's where it is. And you know exactly the Democrats are trying to distort the past.

{  Hmm I guess it must just be my Memory Hole is on the fritz again...I could have sworn Bush landed on a carrier and that "major combat operations are over" in Iraq.  But if Scotty says it's a distortion....}

"Q Let me ask it another way: Has the mission been accomplished?

"MR. McCLELLAN: Next question.{ "I care so little for your insignificant punk reporter ass that I am not even going to bother evading your direct questions, and there's not a damn thing you can do about it"

So you can CLEARLY see how a night of making nice with the Administration paid off in the briefing room for those reporters can't you?

 The press is supposed to have a professionally adversarial relationship with those in power.   That doesn't mean there cannot be a wary friendship between reporters and their subjects, but it does mean that it must first be based on mutual respect. That Simply doesn't exist with this White House.  The dynamic in Washington right now is far more like that of an abusive marriage.  

 The WH smacks reporters around, shows obvious contempt for them, and attacks them for bias when they have anything even slightly negative (even if true) to say.  Instead of hitting back, standing their ground and demanding the truth,  the press decides that the problem is them maybe they are just too shrill and mean.  It's even worse that they'll then play "the loving spouse" and dutifully laugh at all the president's jokes and applaud his wit in public forums like this.  
They seem to believe that maybe just maybe if they go out of their way to be extra deferential to the WH in their reporting;  if they just try a little harder to be nice, they will be liked and respected again.  

Anybody who's ever seen a Lifetime Movie of the Week knows how THAT story always ends.