Follow the Leader?

Sunday was the anniversary of the Magna Carta. As Congress prepares to vote again on telecom immunity (the compromise plan on warrantless wiretapping), there are some news items from this week that Congress may wish to consider before making its decision on whether to support it.

Do we have any leaders left?

In an act of political courage rare today on either side of the Atlantic, Shadow Home Secretary David Davis resigned [1] from Parliament this week (forcing a new election), citing [2] the "slow strangulation" of freedoms by his government and "the ever-intrusive power of the state into our lives, the loss of privacy, the loss of freedom and the steady attrition undermining the rule of law." The day before, the House of Commons had passed a counter-terrorism measure allowing the government to hold citizens for 42 days without charge, an attack, Davis said, on the fundamental right of habeas corpus in the Magna Carta. (Our own Supreme Court this week just barely managed to reinstate habeas corpus here, striking that section of the 2006 Military Commissions Act.) Davis showed the courage of his convictions to stand on principle and publicly oppose it at considerable political cost. The video is inspiring [3].

The Labour Party is expected not to field an opponent for Mr. Davis. A poll [4] by The Daily Mail indicates why:

[5]

Here's more response to Davis' action from some of London's Sunday papers:

Suddenly, Labour is not laughing at David Davis [6] - The Observer

When a battle-weary David Davis got off the train home on Friday night, the condemnation of his colleagues ringing in his ears, he headed to his local pub for solace. His aides were waiting, with a sheaf of emails they stuffed straight into his hands.

They came from excited Tory activists, life-long Labour voters, ordinary people who had never written to politicians before: there was an offer of help from a Lib Dem constituency chairman and pledges of cash from pensioners. But one, he admits, gave him 'a lump in the throat': it was from a woman who worked on a local government project to encourage the alienated and unfranchised to vote. What he had done, she wrote, would 'make my job so much easier'.

David Davis is the new voice of the people [7] - The Independent

Tune in to the radio (for example, FiveLive's Friday morning phone-in, or yesterday's Any Answers), browse the internet and eavesdrop in pubs and canteens and you get the impression that he's really touched a nerve. People are admitting that, even though they've never thought of voting Tory, they agree with Mr Davis: in a slow but unstoppable process the Government has sacrificed too much of our individual liberty in the name of reducing petty crime and safeguarding national security.

A magnificent gesture that we must support [8] - The Observer

The political classes don't like this sort of thing. There's too much raw emotion involved. Like nervous prefects, they dismissed as vain, egotistical, narcissistic and irresponsible. He was, said one commentator of my acquaintance, suffering from a mid-life crisis and probably knew he didn't have the brains to be Home Secretary, which is why he had bailed out.

That very much captures what is wrong with the Westminster village, which is so consumed with the talk of power, the jockeying for power, the acquisition and loss of it, that there is very little space left in the minds of journalists and politicians for principles and ideas.

Now, back to telecom immunity.

It seems our Congress will consider a surveillance compromise that will, in effect, if early [9] reports [10] prove accurate, immunize the telecom companies for illegal surveillance activities carried out at the behest of the Bush administration, while pretending not to [11]. The ACLU (and others) sees huge loopholes and observes [12]:

It gives the attorney general the power to decide if cases against telecommunications companies will proceed. The AG only has to certify to the FISA court that the company didn’t spy or did so with a permission slip from the president. After the FISC dismisses the case, the court is barred from discussing what that dismissal was based on ... Why have privacy laws if the president can write you a note to disobey them? When the government asks companies to break the law in the future, they will have precedent that Congress will cover their tracks.

Many believe this fight is not over protecting the telecoms for warrantless domestic wiretapping – Qwest Communications' lawyers, of course, said no and Qwest is off the hook – but over preventing court cases that could reveal details of the surveillance program that will lead to prosecution of administration officials.

While this is about civil law, the principles and precedents at stake are strikingly similar to "unlawful orders" cases in the military. Here is an 1804 Supreme Court ruling pertaining directly to civil damages against a Navy captain for following an illegal order by President John Adams:

Little v. Barreme, 6 U.S. 2 Cranch 170 170 (1804) [13]

The Act of Congress of 9 February, 1799, authorized the seizure on the high seas of vessels of the United States bound or sailing to any port or place of the French Republic. This act did not authorize the capture of a vessel sailing from a French port, and the orders of the President of the United States to the commanders of the armed vessels of the United States enjoining the seizure of American vessels sailing from French ports will not protect them from a claim for damages for the capture of a vessel coming from a port of France.

Chief Justice MARSHALL [14]

I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.

It becomes therefore unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American, would excuse captain Little from damages for having seized and sent her into port, since had she actually been an American, the seizure would have been unlawful.

Captain Little then must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the circuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it.

Little followed the illegal order at his own peril, as did the present-day telecoms.

Here is another military case [15], United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108:

United States v. Keenan was a court case in the United States where the accused (Keenan) was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal."

There is nothing new here: Nuremburg, My Lai, Abu Ghraib. From the current Manual for Courts-Martial [16], para 14c(2)(a)(i):

"An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."

The principles are the same. Will we stand by them or stand aside?

From my vantage point out in the provinces, the leaders of our Congress have behaved for some time as if they are being blackmailed. As Glenn Greenwald put it this week [17], regarding leading Democrats,

That is the hallmark of the Democratic Party leadership: they are afraid of looking weak, and the way they try to solve that problem is by being guided by their fears and allowing themselves to be bullied into complying with the President's instructions. They actually still think that being bullied and always being afraid to take a stand will make them look strong. They have yet to figure out that it is that craven behavior which makes them look weak, and appropriately so, since it is weak.

Senator Kennedy, for one, is not. In a floor speech in December, Kennedy observed [18],

A lawsuit in California has produced evidence that at the government’s request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.

Think about that. The National Security Agency of the Bush Administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.

The surveillance was so flagrantly illegal that even lawyers in the Administration tried to fight it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was “the biggest legal mess I had ever encountered.”

It's that legal mess (and their own culpability) that the administration hopes Congress will clean up for them by stopping other such lawsuits in their tracks with the telecom compromise - with Congress becoming complicit in any further domestic surveillance of the sort Shadow Home Secretary David Davis decried in his statement last week.

Are Americans ready for leaders who like David Davis are strong enough to put principles before partisanship? The excited response to Davis suggests a latent public hunger for real leaders again, at least in England. Chances are, it exists here too. Has our own "village" misread the public, just as London's did? American politicians hoping to survive past November had better not. This week may be their last chance to demonstrate that they can still hunt, and not just roll over.