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The 9th Circuit handed down a very important decision today in Quon v. Arch Wireless Operating Co. holding that users of text-messaging services ordinarily have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Judge Wardlaw wrote the opinion, joined by Judge Pregerson and District Judge Ronald Leighton. It's a bit of a surprise that the panel decided the issue so squarely, given that it was only lightly covered at oral argument, but it's a noteworthy holding that I think is correct and very important.
(continued over at the Volokh Conspiracy)
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Yesterday, the Senate armed services committee released a 63-page set of documents that illuminates how the Pentagon developed, selected, and approved its list of coercive interrogation techniques for Guantanamo Bay.
As Joby Warrick reports in today's Post, the documents clarify the role that the CIA (and senior government officials such as DoD General Counsel William "Jim" Haynes) played. "If the detainee dies, you're doing it wrong," CIA lawyer Jonathan Friedman proclaimed in a working group meeting that led to the development of this DoD memo on approved interrogation techniques.
Even more significant, the documents show how the military's Joint Personnel Recovery Agency helped develop interrogation techniques, borrowing extensively from the military's Survival, Evasion, Resistance, and Escape courses. (Mark Benjamin provides a detailed timeline in Salon for precisely how this unfolded.) These techniques—which include water-boarding, confinement to small boxes, and stress positions, among others—were developed to mimic the interrogation practices of our worst enemies, such as the North Koreans and the North Vietnamese. It speaks volumes that they were adopted by the United States at Gitmo.
Several things struck me while reading the documents last night:
Tabs 2 and 3 confirm Jane Mayer's reporting on the use of SERE practices as an interrogation template—both at Guantanamo and elsewhere by the CIA. There wasn't a lot of hard evidence to support this narrative, though, and many chalked up the similarities between the Guantanamo and SERE techniques to coincidence or chance. For instance, in Philippe Sands' new book, retired JAG officer Diane Beaver and retired Maj. Gen. Michael Dunlavey recount a somewhat hazy process by which tactics made their way into memo form. Both hint that personnel from the CIA and other agencies were placed at Guantanamo to seed ideas. The memos released yesterday, however, indicate that there was a much more deliberate effort to share the SERE/JPRA community's tactics, techniques, and procedures (TTPs, in military parlance) with the interrogation community at Guantanamo. (Tab 16 shows this link, too.)
Tab 4 discusses the military's psychological assessment of personnel during SERE training. Taken by itself, this is a sign that the military cares about its personnel and wants to avoid "crushing the spirit of the students." But in the interrogation context, this memo reads uncomfortably like Mengele or Cold War-era research on torture.
In the October 2002 meeting described in Tab 7, FBI agents report talk of "wet towel" treatment during interrogations, despite the fact that water-boarding was explicitly not authorized by Haynes and Rumsfeld at that point. So, it appears that DoD personnel at Guantanamo took the initiative to use SERE techniques before they were approved by higher HQ. These meeting notes also confirm the presence and role of CIA personnel. And they strongly suggest that the Justice Department memoranda authored in Washington—but previously thought to have not reached Guantanamo—were probably shared with Guantanamo lawyers and intelligence personnel in some manner. This connects those memoranda with the one that then-Lt. Col. Beaver authored, which ultimately made its way to Rumsfeld's desk in December 2002.
Tab 19 further documents the relationship between SERE training and the interrogation practices at Guantanamo. But at some point, probably around the time of Abu Ghraib and the post-scandal investigations of all Defense Department detention and interrogation operations, there comes a break. Tab 24 contains a memo by the head of the Joint Personnel Recovery Agency that comes pretty darn close to refusing any future orders to participate in interrogations. The uniformed military seems to be trying to correct its course—insisting that SERE techniques could only be used for "defensive" use (i.e., training pilots, special forces, etc.), not for "offensive" use (interrogating enemy fighters).
But by that point, three years had passed, and it may have been too late to undo the damage wrought by the Pentagon's torture policies.
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Last night at the National Constitution Center in Philadelphia, it was my pleasure to moderate the Sixth Annual Templeton Lecture on Economic Liberty. The lecture endowed by Dr. John Templeton was one of the first endowed programs of this magnificent center, and it has become one of Philadelphia's most looked-for events. Consequently, it is now a considerable distinction to be selected as a Templeton lecturer or respondent. The quality of the scholars who have been selected speaks for itself: Bruce Ackerman, Richard Epstein, Thomas Merrill, and Walter Dellinger, to name only a few. Moreover, because the Templeton understands "economic liberty" in the same broad manner as Madison defined "property"-"as a man is said to have a right to his property, he may be equally said to have a property in his rights"-the Templeton platform has been devoted to topics ranging from campaign finance reform and free speech, to immigration and human work, to eminent domain and the domain of human liberty, to, last evening, health care and its responsible management.
Somewhat unusually, the recent program consisted of two public figures, former HHS Secretary Tommy Thompson, now Akin, Gump's health care expert, and former Senate Majority Leader Tom Daschle who is in a similar spot for Alston & Bird. Both men know their stuff. The program give-and-take was lively, as this summary in Daily Kos suggests, and the intelligent audience-a good portion from co-sponsor AARP-had many questions, including about the respective positions of Sens. McCain and Obama, for whom Thompson and Daschle became unofficial stand-ins (Daschle is, in fact, national co-chair of the Obama campaign).
McCain's idea of separating health insurance from the employment relationship in favor of individually acquired coverage is controversial. It is intended to impose cost discipline through consumer bargaining, though as pointed out last evening, it represents a sharp break from the status quo and might well leave families paying more out of pocket. (Thompson challenged that premise, but earlier in the program, it had been recited without dispute that the average annual health cost for a family of four-insurance, co-pays, etc.-ranges from $8,200 to $11,500 per year, which is significantly more than McCain's proposed tax credit of $5,000. In any event, Thompson thought the McCain plan needed to incorporate insurance pools to really net competitive pricing from insurance companies.) By contrast, Obama's program relies heavily on Internet technology efficiencies and a government accountability model mandating sufficient levels of coverage and the inclusion of uninsured children and those with pre-existing conditions.
Whatever the theoretical merits of McCain's or Obama's models, it rather quickly became clear that the audience's dissatisfaction with the existing health care system was framing the response. Americans like to proclaim or think they have the best health care system in the world, but the life expectancy, preventable disease, and infant mortality stats do not bear that out. Americans endure higher costs than any other comparable industrialized nation and lower quality by WHO standards-lower, at least, than the 36 countries that rank above the United States. This poor report card seemed to work more against the McCain position, at least last evening. Not even the energetic presentation of Tommy Thompson could rescue it-in part, one suspects, because McCain's plan leaves the uninsured, well, uninsured and those with pre-existing conditions uninsured (absent some government guarantee that is not well-explained).
McCain no doubt wants desperately to separate himself from the incumbent, but the missed opportunities of the Bush administration were clearly being visited upon his ideas. Both presenters portrayed an infirm health system, the symptoms of which were hardly a surprise, such as the long-standing, but now impending, Medicare bankruptcy. And in the private sector, Thompson illustrated the ripple effect of uncontrolled costs emphasizing how the cost of health care undermined the market positions of major U.S. industries. For example, Thompson compared GM's $1,725 per car health care burden with Toyota's $225.
While many difficult questions were answered, there seemed to be no answer for what accounted for the lack of accomplishment during the Bush years, and the nominee of his party is just stuck with it. It seems the sitting president did little to take up, for example, Thompson's own innovative wellness and electronic prescription ideas when he was HHS secretary, let alone contemplate the progressive measures being suggested by Daschle and Obama for portable and readily accessible health records and an elimination of the paperwork of a highly fractionated insurance market that allows providers to charge wildly different prices for the same procedure.
Daschle and Thompson were in strong agreement on the need to build wellness into schools and businesses, but they pointed out, if one eats in virtually any public school cafeteria today, you will be served the food groups that feed obesity and diabetes and other diseases. Aristotle's conception of a healthy body and a healthy mind, it's not. And in another obvious category of improving health and lowering costs, Thompson at one point also wondered aloud why nicotine was not regulated by the FDA.
The lecture underscored that economic liberty depends upon more than a free market when the market is ill-informed or shaped by policies more in defense of the economic preserves of the well-fixed-be they drug, tobacco, or health insurance companies-than the average family. Whatever accounts for the failed legacy of the incumbent, everyone is now paying through health care costs that are rising four times faster than wages.
Despite all this, few left the evening without hope, since onstage was tangible proof of good minds, freed of partisan label and special interests, working together to address a nettlesome problem. It was a reminder of the plaque that the Gipper used to regularly point to on his desk: "There is no limit to what a man can do or where he can go, if he doesn't mind who gets the credit."
That was indeed a healthy reminder.