Editorial November 22, 2013

TheWeekinCongress.com

Editorial

The rule has been that even if you qualify by service to be interred in a national cemetery such as at Arlington, VA you cannot be interred there if you have been convicted of a capital crime. There may be some argument for or against such a rule but it is relatively in keeping with some unwritten logic that one who is interred on public land should have a clean record.

 When you think about it how likely would it be that a person in a position to qualify for interment in a national cemetery (which requires being dead) could somehow arrange to commit a crime that is unsolved and then dies before the trial. Well, apparently that has happened as evidenced by S 1471, a bill that addresses that anomaly. The bill would authorize the Secretaries of Veterans Affairs or Army to reconsider a burial in a national cemetery if someone buried there is subject to charges of having committed a capital crime but was not convicted due to death or flight to avoid prosecution.

 How would that work? A soldier serves honorably in, say, Afghanistan, and is honorably discharged assuring his burial plot in a national cemetery. Then, sometime during the rest of his life he allegedly commits murder and is shot to death during the investigation or figures he has no defense and takes to the woods where eventually he dies having never been to trial. Either of those circumstances may raise suspicion but do not prove guilt because ‘having never been to trial’ is the operative phrase. Your case can remain open as law enforcement attempts to gather evidence. When the subject dies and not enough evidence is acquired to try the case (including evidence that might come out in the trial but won’t because the defendant is dead) the matter should not be heard in court and should become a cold case. Such a determination would not give solace to the victims loved ones or make the police look good but it is what it is; we are innocent until proven guilty…in court.

 S 1471 changes that. We have heard of a conviction in abstentia but even those determined judicial efforts are made in an official court. Under this bill the matter does appear in court but a court that is held privately by one of the Secretaries with no indication in the bill that their decisions would be reviewed by any overseeing body. Only the family of the deceased / accused can protest.

 One particular case or another considered by the Secretaries may be one where law enforcement believed it had all the evidence necessary for conviction but could not convict because the defendant was dead or missing. But still, the individual has not gone through due process and the court has not met it obligations to hear the case.

 So the Secretaries become the judges and the decision to exhume also requires the remains be relocated or, simply, the headstone is removed and the grave becomes unmarked. Removing the remains meets the needs of the bill, removing the headstone not only sweeps the matter under the rug but contradicts the precedent being established here; that even someone suspected of having committed a capital crime cannot be buried in a national cemetery. Headstone or not, you’re still buried there.

At the heart of this, the court cannot act on a case and the matter is not brought to trial. Without conviction the national cemetery rules should not apply. Unfortunately that is the way it goes sometimes; we have to live with the knowledge that a crime has most certainly been committed but we will not have the satisfaction of a court trial. Despite any diligence the Secretaries might put into making their decisions, this bill sets up a kind of kangaroo court and does so to try a defendant who has served in the military to protect the legal due process being denied him but who is not there to defend himself.

Dogged Journalism Is A Blessing, Not A Curse

 

By Lee H. Hamilton

 

“There is a limit to how much secrecy a democracy can stand.

Hamilton

Hamilton

Let’s start with the obvious: A democracy needs intelligence agencies. It needs to know what’s happening in the world — and understand the plans of allies and enemies — to keep the nation prepared and secure.

If intelligence work is going to be effective, much of it has to be done in secret. “National security” is not merely an excuse for keeping intelligence activity under wraps: often, the only way to protect our collective well-being is to pursue many national security activities, including intelligence-gathering, in the dark.

But that’s if they’re legitimately in the national interest. All too often, governments use secrecy to protect themselves politically or to shroud activities that, seen in the cold light of day, their citizens would reject. This is why secrecy in government can be dangerous, and should be subject to the checks and balances of our constitutional system.

However legitimate secrecy may be, though, there is a limit to how much a democracy can stand. As ordinary citizens, we need information about what our government is up to in order to make informed and discriminating choices about politicians and policies. Journalists and their media outlets are indispensable conveyors of this information. The work of the journalist, who often presses for a more open, accountable government, creates tensions with a government set upon guarding state secrets. But it’s a healthy, much-needed tension.

Which brings us to Edward Snowden’s revelations to the press about the National Security Agency and its vast efforts to monitor communications. Around Washington, Snowden is routinely excoriated, and he’s none too popular in the country at large, either. But whether he’s a hero or a criminal in your book, there’s no question that because of him, we know far more about the surveillance our government has been carrying out. The expansion of government power that the leaks reveal is without precedent in the modern era. Technology, along with the surveillance and monitoring it enables, has clearly outrun the policies to deal with it.

Although many commentators have raised questions about Snowden’s leaks, the journalists who have dug into the NSA files he provided are doing the job that democracy depends on them to do: getting information that details government actions and prompting a badly needed debate. It’s one of the most important ways to hold government accountable for the use of its power. Our ability to judge whether it acted appropriately or abusively and to act as responsible citizens is buttressed by journalists who are skilled at finding and keeping confidential sources, who know how to dig through copious records or amounts of data, who have learned how to build a story from a tip or a leak, and who are accurate, honest, rigorous and fair-minded.

Now, I don’t want to whitewash what’s happening in the media right now. There are plenty of worrisome trends. As a whole, media outlets are less interested than they used to be in accuracy, objectivity, and solid coverage, and more interested in advocacy, persuasion, and entertainment. Even at the largest papers, cutbacks have reined in their ability to cover the world and to launch expensive investigative work. The recent rise of alternatives — such as the non-profit ProPublica and the investigative reporting venture just announced by eBay founder Pierre Omidyar — may go some distance toward recovering what’s been lost, but they’re also an acknowledgement that we have lost ground.

And we’ve done so precisely at a time when we face a real challenge in constraining the reach of government into our lives. Its powers of monitoring and surveillance are astonishing and are being used aggressively. It is classifying secret information wholesale, it is vigorously seeking to prosecute leaks, and it is trying to intimidate journalists: all of these are signs of a national security state that is determined to bulk up.

Congress is only now beginning to stir; until recently it has been a passive and willing participant in secrecy. At a moment like this, we have to depend more than ever on the curiosity, skill and determination of good reporters to spur the kind of debate we should be having as our society tries to strike the right balance between security and freedom.

Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.


Publisher’s Letter

Filibusters somewhat protect minority interests in the Senate by allowing for legislation and nominees to be delayed, indefinitely, if completely unacceptable to the minority. The between the lines thinking is that the minority represents a smaller portion of voters but they still have the right to have their interests represented. The current question is has that ‘right’ been just a front to deny the personnel this president wants to nominate, individuals to operate the administration at the management level; the job he was elected to do?

Looking at the number of filibusters this Administration has faced; half of all filibusters ever taken up in the Senate, is pretty damning evidence that things weren’t going as usual. It is not a great leap to further conclude that those numbers indicate some of the filibusters had no specific political purpose beyond mucking up the works in the Administration.

Aside from the predictable outrage from Senate Republicans about the recent vote to end filibuster-like debates with a simple majority, what’s the big deal? So Republicans lost their parliamentary edge as the minority and the President gets his court nominees. Unless you are a Republican Senator living completely in the moment you know that this is six of one, half dozen of another and comes under the heading of what goes around, comes around; the time will come when Republicans are exactly in the position Democrats are now in. For now, though, giving the President his nominees is one of those unapproachable but necessary responsibilities the minority must endure. Senate Majority Leader Harry Reid’s decision to bring about this parliamentary change is one that both parties have considered several times, for the same reasons, over the past ten years. None have taken the step until now and, as the issue in the past wore on and cooler heads prevailed, opposition to the change was always centered on having to live with the change when they are again the majority dealing with a minority that is also too filibuster-willing.

The idea that this change is fundamental is correct but is somewhat hyperbolic; the job of the majority is to pass the legislation a majority of voters sent them to accomplish. The job of the minority is to represent the interests of those who elected them and opposing a nomination or legislation is part of that job. What this parliamentary move says is this, “Yes, you can have a qualifications issue or a political position issue but those matters can be brought out, debated and resolved without a filibuster.” It also says something to any party that uses rules to obstruct, not refine and improve; while you want to cater to your base, those who voted you in, you have to deal with the reality that a majority of voters voted against your party’s policies. The operative word is ‘minority’, a position you are in when the majority of voters didn’t vote for you. In that position you don’t get everything you want.