At a panel hosted by the American Constitution Society today, Assistant Attorney General David Kris, who heads that National Security Division at the Department of Justice, defended the administrations' record and argued that the increased cooperation between intelligence and law enforcement has allowed the government to both protect America from national security threats and preserve civil liberties.
"In a number of cases, criminal justice system and law enforcement methods have yielded, critical, extremely valuable intelligence information," Kris said. But on Kris' claim that the administration's approach also preserved civil liberties, the ACS crowd, which contained a number of lawyers from groups like Human Rights First and the ACLU, were skeptical. Kris suggested that the presence of lawyers on law enforcement teams provided a kind of check against civil-liberties abuses: “More lawyers means more legal involvement and oversight, either formal and informal of intelligence operations," Kris said. But one audience member pointed out that it was the lawyers in the Bush administration who rubber-stamped torture and warrantless surveillance. Kris tried to avoid slamming the previous administration in his response, but I'm not sure how successful he was. "You have to have good strong people with character in these positions," for this oversight process to work well, Kris admitted. Heh.
Perhaps the two places where Kris' argument that the Obama administration had struck an appropriate balance between civil liberties and national security seemed most hollow was on the renewed military commissions and on the Foreign Intelligence Surveillance Act. The administration has supported a reauthorization of the PATRIOT Act that says when the government requests a wiretap, they don't even have to describe the target to the judge--so Kris' claim that the current state of FISA isn't a threat to civil liberties isn't so persuasive.
Months ago, Kris testified to Congress that charging "material support" for terrorism under the military commissions might not stand up to judicial review because material support is generally considered a criminal offense, not a war crime. But when I asked him whether that meant the administration wouldn't be leveling material support charges against detainees under the military commissions, he said no, because legal experts within the administration hadn't settled the issue yet.
Kris defended criminal proceedings against terrorists by arguing that they "deprive them of any shred of legitimacy...and that deprivation of legitimacy derives directly from the perceived fairness of the proceedings that convicted them," Kris also defended the renewed military commissions process that was so discredited during the prior administration. It seems odd to argue that criminal proceedings are so important to fighting terrorism because of their perceived legitimacy, and then argue for the revival of the military commissions process, which at one time even the president criticized as illegitimate.
I don't mean to be hard on Kris. It's just that the current administration's behavior on civil liberties issues has been almost entirely at odds with the high standards set by their rhetoric. Kris seemed to understand that. He said that he hoped the audience would "enjoy their box lunches" with the amount of salt they were going to have to take his speech with.
-- A. Serwer
