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Consider:

"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"







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Wednesday, 28 December 2005

Topic: Chasing the Zeitgeist

Storm Warnings: Rough Weather Ahead
Wednesday morning, December 28th, Bob Patterson, the Just Above Sunset correspondent who writes the World's Laziest Journalist and Book Wrangler columns each week, sent a quick email - "Check out the top stories on Smirking Chimp this morning - it's beginning to sound like a lynch mob."

It did, but with a name like "Smirking Chimp" you would expect impeachment was in the air there. That's not a very respectful way to refer to the president, and the site is what could be called an aggregator - they provide links to and text from comments all over the web and in the newspapers and magazines, all critical of the administration, relying on the Fair Use Doctrine to keep them out of copyright trouble. They recently reposted two of Bob's columns, without asking permission, but who would protest? They drive traffic to Just Above Sunset. No problem. But they are a bit one-sided. You don't get a lot of careful analysis there. You get rants, some clever, many angry, and few with much depth. It's a bit of an echo chamber.

What seemed to catch Bob's eye was Wednesday's collection, with things like Chris Floyd in Empire Burlesque offering Clowntime Is Over: The Last Stand Of The American Republic, James Ridgeway in Village Voice offering Bush Impeachment Not Out Of The Question, Claudia Long in The Great Divide offering Big Brother on Steroids, Ruth Conniff in The Progressive with Impeachment Buzz, Reg Henry in the Pittsburgh Post-Gazette with It's Good to be King George, and one cited everywhere, Thomas G. Donlan in Barron's, of all places, saying The pursuit of terrorism does not authorize the president to make up new laws. That was odd. But there was the expected too - Katrina vanden Heuvel, editor of The Nation, with The I-word is Gaining Ground, and Bill Gallagher with King George Dismisses Constitution, Tramples on Rights of all Americans. And Jerry Mazza offered Patience, Mr. Bush? How About Impeachment, Now?

That's the lynch mob.

Well, last week the New York Times revealed the president had ordered the National Security Agency to wiretap the foreign calls of American citizens without seeking court permission, as required by the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978. He said he had, in effect, broken the law, and wasn't going to stop. He was keeping us safe, and anyway, the law didn't apply to him for a number of reasons.

Some see that as dangerous. Others see that as necessary - sometimes you need an "above any law" somewhat dictatorial leader to keep us all alive.

And of course there's the other lynch mob. At the media aggregator Crooks and Liars you can watch a clip from Fox News here - Brit Hume filling in for Neil Cavuto asking John Podhoretz if the New York Times should be charged with treason. There's a lot of that on the other side.

But we have, as Jonathan Schell, argues here, reached a watershed in the evolution of all that has been happening. Regarding President Bush, he says this -
Previously when it was caught engaging in disgraceful, illegal or merely mistaken or incompetent behavior, he would simply deny it. "We have found the weapons of mass destruction!" "We do not torture!" However, further developments in the torture matter revealed a shift. Even as he denied the existence of torture, he and his officials began to defend his right to order it. His Attorney General, Alberto Gonzales, refused at his confirmation hearings to state that the torture called waterboarding, in which someone is brought to the edge of drowning, was prohibited. Then when Senator John McCain sponsored a bill prohibiting cruel, inhuman and degrading treatment of prisoners, Bush threatened to veto the legislation to which it was attached. It was only in the face of majority votes in both houses against such treatment that he retreated from his claim.

But in the wiretapping matter, he has so far exhibited no such vacillation. Secret law-breaking has been supplanted by brazen law-breaking. The difference is critical. If abuses of power are kept secret, there is still the possibility that, when exposed, they will be stopped. But if they are exposed and still permitted to continue, then every remedy has failed, and the abuse is permanently ratified. In this case, what will be ratified is a presidency that has risen above the law.

The danger is not abstract or merely symbolic. Bush's abuses of presidential power are the most extensive in American history. He has launched an aggressive war ("war of choice," in today's euphemism) on false grounds. He has presided over a system of torture and sought to legitimize it by specious definitions of the word. He has asserted a wholesale right to lock up American citizens and others indefinitely without any legal showing or the right to see a lawyer or anyone else. He has kidnapped people in foreign countries and sent them to other countries, where they were tortured. In rationalizing these and other acts, his officials have laid claim to the unlimited, uncheckable and unreviewable powers he has asserted in the wiretapping case. He has tried to drop a thick shroud of secrecy over these and other actions.
That's about it. The president has asked for us to ratify this all, rolling the dice, betting that the will of the people will force congress and the courts to accept that he has unlimited power.

He may be right. See Steve Benen here, reviewing why the Democrats will say little about all this -
If the controversy boils down to "Bush wants to spy on bad guys and Dems aren't happy about it," it's a phony debate that skirts the real issues. However, if it's "We need to eavesdrop in order to protect the country" vs. "Go right ahead, just follow the law and allow for some checks and balances," it's at least a fair fight based on the facts.
But it's not going to be a fair fight. All the president's supporters are hammering home that all the president is trying to do is fight the bad guys, and opposing that, of some minor details, is reckless.

Jonathan Schell on those minor details -
The deeper challenge Bush has thrown down, therefore, is whether the country wants to embrace the new form of government he is creating by executive fiat or to continue with the old constitutional form. He is now in effect saying, "Yes, I am above the law - I am the law, which is nothing more than what I and my hired lawyers say it is - and if you don't like it, I dare you to do something about it."

... If Congress accepts his usurpation of its legislative power, they will be no Congress and might as well stop meeting. Either the President must uphold the laws of the United States, which are Congress's laws, or he must leave office.
No, there's the third alternative - everyone agrees with the president and his authority has no limits.

Well, one can move away from the Cassandra voices of the left saying that we're losing the republic and all we fought for since 1776 (the sky is falling and we're faced with a big-brother dictator in the making), and from those on the right saying this is no big deal and we've always needed a strong leader (unleash our duly elected hero-savior from the surly bonds of the useless laws). One can turn to folks who can put this in perspective.

Who would that be? Oh, maybe constitutional scholars.

One of those would be Cass Sunstein at the University of Chicago. Who's he? According to this he's the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at their law school and also a member of the Department of Political Science - a Harvard man, undergraduate and law too. The link has more - his many books and how he clerked for Thurgood Marshall and all the rest. He's a big gun. You even see him on television now and then - Wednesday, December 28th on MSNBC's "Hardball" for example. They gave him about ten seconds.

But he's thinking long and hard about all this, mainly at The University of Chicago Law School Faculty Blog. Yes, there is such a thing. And it's not much like The Smirking Chimp at all. No rants. It's not as exciting? Yes, it's detailed and dry and, actually, useful.

MSNBC may have given him ten seconds, but he stretches out at the blog, with, on the same day, The President's 'Inherent' Power. He's puzzled.

Here's the issue -
The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.
So what do you do with that?

Well, you look back to when president Truman attempted to have the federal government take over the steel industry (Youngstown Steel and Tube, 343 U.S. at 587) - there was a strike and we were at war and we needed steel. The Supreme Court slapped Truman down real hard, and we could look to that -
In his concurring opinion in The Steel Seizure Case, Justice Jackson tried to refine the battle between (1) and (2) by drawing attention to Congress. He suggested that we might also adopt two other positions. (3) The President has such authority because Congress has said that he does, thus augmenting the President's own power with "all that Congress can delegate." (4) The President lacks such authority because Congress has said that he doesn't, ensuring that his own power "is at its lowest ebb."

... We have seen (4) in the argument that FISA bans the President from engaging in such surveillance without going through the FISA process. Naturally, the Department of Justice, attempting to protect the President's prerogatives, emphasizes "inherent" power and implies that Congress lacks the authority to intrude on it.
Well, that may not be very useful.

All this is discussed here by "Armando" at Daily Kos and it all comes down to the professor saying we should see "if progress can be made by bracketing the most fundamental questions about 'inherent' authority and by giving careful attention to what Congress has done." But "Armando" points out a conflict is unavoidable here - "The President is defying a law duly enacted by Congress. And NO Supreme Court case has countenanced such a power grab by a President."

Yes, they shot down Harry Truman over this, and "Armando" points to the Hamdi ruling, that cited the Truman slap-down -
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
And that's the battle.

"Armando" -
In short, there is no support in the case law for the assertion that the President has plenary power when acting as Commander in Chief. It is contrary to the Constitution, the Federalist Papers, particularly Federalist 69, and all Supreme Court jurisprudence. It is an outlandish and yes, preposterous assertion by the Bush Administration.

Professor Sunstein would do well to be straightforward on this. He comes closer today, but still seems unable to say it straight out.
Well, one must be careful.

But something is really odd here. There's a lot of tap dancing around what's really going on. It looks like a power grab, a coup of some sort, where those seeking unlimited power have just taken it and hope these constitutional scholars will futz around until it's too late to change anything. Bush has the military behind him, and Fox News. What else does he need? This fellow in Chicago, as thoughtful as he is, doesn't matter much.

What is a bother with this NSA wiretapping business, however, is what was bound to happen on a practical level. As reported by the New York Times on Wednesday, December 28th, here -
Defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the NSA program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.
Yeah, but the bottom line here getting reconsideration because of two issues, disclosure and illegal search. We're not talking about tossing out something someone said because the cops didn't read him his Mirada rights. Here the issue is the prosecution having evidence they did not reveal to the defense team, or using evidence that, even if revealed, was obtained illegally. You cannot do either. The accused is supposed to know what the evidence is that is being used against him. That's kind of basic. And just as you cannot use evidence obtained by torture (yet), so you cannot use evidence you gathered by breaking the law, which is also kind of basic.

Noted defense attorney Jeralyn Merritt here runs down what this means in terms of bad guys we've put away -
- Gerry Spence, who represents Oregon lawyer Brandon Mayfield in his civil action against the US for arresting and detaining him as a material witness in the Spain bombings. Mayfield was later released with no charges brought.

- Lawyers for the Lackawanna (Buffalo) 6 and Portland 7 are considering challenges, as are those representing Jose Padilla's co-defendants.

- David B. Smith intends to bring a challenge for David Faris, charged in Ohio with plotting to blow up the Brooklyn Bridge: [He] said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush.

- The co-defendants of Jose Padilla are gearing up: [They] plan to file a motion as early as next week to determine if the NSA program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants.

- John Zwerling, one of my pals from Alexandria, VA., will be filing as well, on behalf of Seifullah Chapman. Chapman was a follower of Ali al-Timimi, a Muslim scholar convicted of inciting his disciples to wage war against the US. Al-Timini is serving a life sentence, Chapman is serving 65 years. [Zwerling] said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if NSA wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information. "We want to know, Did this NSA program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."
And so on and so forth.

And it seems some federal prosecutors tell the Times the NSA warrantless surveillance could be a problem for the Government in both past and future cases.

Merritt of course points to Brady v. Maryland - the government and prosecutors are required to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses. This includes information that might impact their guilt or their sentence. And she points to Kyles v. Whitley, 514 U.S. 419 (1995) - the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. "Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies." Other government agencies would include the NSA, of course.

This could get really interesting, as she cites also the basic 18 U.S.C. Section 3504 -
(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States -

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; ...

(b) As used in this section "unlawful act" means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.
Damn, that's a problem. And Merritt points out that the government can't avoid answering the defense requests simply by asserting the material is classified. "Once it is established that a defendant has standing to make the challenge, at a minimum I think the Government could be compelled to submit the information to the Judge for a decision on whether it is relevant and helpful to the defense and should be turned over. In the event of an adverse decision by the Court, the Government should have only two choices: either turn over the information or refuse and dismiss the criminal charges."

So we mighty have to let these people go? Who'd have guessed?

And late in the day it got ever more interesting with this - Terror suspect challenges US president's 'unchecked' -
Lawyers for an American 'war on terror' detainee said they had petitioned the Supreme Court to examine the US president's powers, citing "the danger of an unchecked Executive Branch".

In a filing on Tuesday, lawyers for terror suspect Jose Padilla cited evasive government moves to avoid a high court examination of his case as reason for requesting a "certiorari" review of a lower court decision challenging the president's wartime powers.

"The government's actions highlight the need for this court to grant certiorari to preserve the vital checks and balances" implicit in the US Constitution, the petition said.

Referring to a series of "strategic maneuvers" to keep Padilla's case from being heard in court, the petition said the government's actions "highlight the danger of an unchecked Executive Branch."

Padilla's detention "raises questions of profound constitutional importance about the government's military power over citizens in the homeland," the petition said.
This is odd, and those "strategic maneuvers" were discussed in these pages here last week - in September Padilla's lawyers petitioned the Supreme Court to review the government's powers to detain him without charge or trial, and in response the government moved to transfer Padilla to civilian custody for trial. Maybe he wasn't a bad guy. Maybe they didn't want his case to be reviewed, as we had held him for more than three years without explaining why. So we changed the charges, from "he's an enemy combatant and we can lock him up forever without charges or trial" to "he's just a criminal and let's have a trail." A Virginia appeals court rejected that - it looked like lame attempt to avoid Supreme Court scrutiny. Now he wants a hearing.

The countermove? This - "The U.S. government on Wednesday asked the Supreme Court to transfer American 'enemy combatant' Jose Padilla from U.S. military custody to federal authorities in Florida - one week after an appeals court refused a similar request."

It gets odder and odder. What rights does the president have? Is anything he says so, just because he says it? People are fighting for, at the very least, some clarification here.

And then, speaking of odd things, the Wall Street Journal reports what up with Move America Forward, as they have a new campaign -
The television commercials are attention-grabbing: Newly found Iraqi documents show that Saddam Hussein possessed weapons of mass destruction, including anthrax and mustard gas, and had "extensive ties" to al Qaeda. The discoveries are being covered up by those "willing to undermine support for the war on terrorism to selfishly advance their shameless political ambitions."

The hard-hitting spots are part of a recent public-relations barrage aimed at reversing a decline in public support for President Bush's handling of Iraq. But these advertisements aren't paid for by the Republican National Committee or other established White House allies. Instead, they are sponsored by Move America Forward, a media-savvy outside advocacy group that has become one of the loudest - and most controversial - voices in the Iraq debate.
So that's the new push? There really were weapons of mass destruction, including anthrax and mustard gas, and Saddam Hussein did have "extensive ties" to al Qaeda?

No doubt CNN and the rest will handle this like the Swift Boat thing and Kerry. Let's hear both sides. "Some assert the earth is flat and the sun revolves around the earth, while most say this is not so, but in the interest of fairness we must report both sides of the controversy, in depth, for many weeks." Hell, it worked before.

And now that there have been elections in Iraq, and they seem to working on forming some sort of government, things will be just fine. So don't listen to the Knight-Ridder folks, who almost always get things right, when they report this -
KIRKUK, Iraq - Kurdish leaders have inserted more than 10,000 of their militia members into Iraqi army divisions in northern Iraq to lay the groundwork to swarm south, seize the oil-rich city of Kirkuk and possibly half of Mosul, Iraq's third-largest city, and secure the borders of an independent Kurdistan.

Five days of interviews with Kurdish leaders and troops in the region suggest that U.S. plans to bring unity to Iraq before withdrawing American troops by training and equipping a national army aren't gaining traction. Instead, some troops who are formally under U.S. and Iraqi national command are preparing to protect territory and ethnic and religious interests in the event of Iraq's fragmentation, which many of them think is inevitable.

The soldiers said that while they wore Iraqi army uniforms they still considered themselves members of the Peshmerga - the Kurdish militia - and were awaiting orders from Kurdish leaders to break ranks. Many said they wouldn't hesitate to kill their Iraqi army comrades, especially Arabs, if a fight for an independent Kurdistan erupted.

... The interviews with Kurdish troops ... suggested that as the American military transfers more bases and areas of control to Iraqi units, it may be handing the nation to militias that are bent more on advancing ethnic and religious interests than on defeating the insurgency and preserving national unity.
You do recall the Kurds still viewed themselves as an independent and autonomous entity when they entered into Iraq's first new oil contract, without notifying the central government (LA Times here). Would they rise up with Kurds from Turkey, Iran, and Syria to form an independent state? Now? "The government in Baghdad will be too weak to use force against the will of the Kurdish people.''

So that's ten thousand Kurds in the Iraqi army ready to fight in a civil war. The Shiites who will run the place align themselves with Iran. The Sunnis, out of power, keep blowing up things.

Spin that.

Even if you seize unlimited power, some things just don't work out.

Posted by Alan at 20:51 PST | Post Comment | Permalink
Updated: Thursday, 29 December 2005 16:02 PST home

Tuesday, 27 December 2005

Topic: World View

A matter of perspective...

Ric Erickson, editor of MetropoleParis, whose "Our Man in Paris" columns appear each week in Just Above Sunset, seems to be amused by what he sees in the European press that seems to all point back to California, and maybe Hollywood specifically, as the center of some sort of madness. People always think that of Hollywood, but they may be onto something.

Tuesday, December 27th, Ric pointed me to the exploits of an extremely wealthy car dealer, Robert Holmes Tuttle, whose father, Holmes Tuttle, ran a group of dealerships in and around Beverly Hills. The son expanded that. Until recently he was managing partner of the Tuttle-Click Automotive Group down in Irvine, in ultra-conservative Orange County, home of the John Birch society and all that. This Tuttle-Click Automotive Group is one of the largest chains of dealers in the country - they're all over California and Arizona. But Robert Holmes Tuttle doesn't do that any longer. He's now our ambassador to Saint James Court, or, if you will, our ambassador to Great Britain. He's been there since the middle this year, putting his foot in his mouth.

Selling cars is something he could do. International diplomacy seems a bit more difficult for him. As with Michael Brown, who made the transition from the American Arabian Horse Society, where he was in-house council, to running FEMA, presidential appointments can make you feel real good about yourself, even if you have no qualifications for the job. But then things can turn to dust real fast.

So what's up with the fellow Ric calls "Tuttle, Hometown Hollywood Boy" these days?

Well, there's this -
- US Embassy Close to Admitting Syria Rendition Flight
- Statement Contradicts Ambassador's Interview
- Correction Could Leave Britain Open to Challenge
That's from The Guardian (UK), as it seems our embassy there was forced to correct a claim by ambassador Tuttle, that there is "no evidence ... that there have been any renditions carried out in the country of Syria."

There is. And now he's put the Brits in an awkward position. He claimed we would never fly suspected terrorists to Syria. Syria has one of the worst torture records in the Middle East. But a clarifying statement acknowledged media reports of a suspect taken from the United States to Syria.

Yep, he's got that administration problem. Say it simply never happened, discover it's all over the press and there's pretty good evidence it did happen, then say perhaps it might be true but we should all be patient until all the facts are in. Then get rid of the damned facts, if you can. The obvious two lessons to be learned here are clear. Say very little - don't ever issue blanket denials - and read the papers, or at least have someone coach you on current events.

Like he'd never heard of Maher Arar, that Canadian software engineer whose family long ago immigrated to Canada from Syria? He was arrested in New York three years ago and transferred to Jordan, then to Syria, where he said he was tortured. He first came up in these pages here (December 2003) and five other times (most recently here last August). This was big deal and all over the press, particularly in Canada of course. It's not like no one knew of such a thing.

So what does this glorified car salesman say in his BBC interview? This - "I don't think there is any evidence that there have been any renditions carried out in the country of Syria. There is no evidence of that. And I think we have to take what the secretary [Condoleezza Rice] says at face value. It is something very important, it is done very carefully and she has said we do not authorize, condone torture in any way, shape or form."

Trust Condi. We'd never do such a thing. But then our embassy spokeswoman two days later says the ambassador "recognized that there had been a media report of a rendition to Syria but reiterated that the United States is not in a position to comment on specific allegations of intelligence activities that appear in the press."

That fits the pattern mentioned above.

Perhaps someone should offer to provide Tuttle a press summary every few days, a briefing on what's happening in the world, and quiz him to make sure he gets the basics, kind of like the White House staff preparing that CD of news stories for the president three days after Hurricane Katrina, so he could catch up on the news - "There was a big Hurricane, sir, and perhaps you should be briefed." Someone should have told Tuttle about the Arar thing. Maybe someone should start briefing him on current issues in the world of diplomacy. Then he might have not stepped into a flat denial but been a little more, say, diplomatic.

But now the spokeswoman had to say things regarding the reports the CIA used British airports to refuel for rendition flights, which would contravene British law - "We take our actions in the fight against terrorism with full respect for our international obligations and with full respect for the sovereignty of our partners."

She covered for him, but he came pretty close to an admission of at least one flight to Syria refueling in the UK. When asked if he knew whether we had sought permission from Britain, Tuttle said Rice had maintained that rendition would respect each country's sovereignty. His reply would seem to imply we had sought permission, possibly leaving the British government open to challenge. They're sweating now.

Such things happen when you send a Beverly Hills car salesman in to do a job international diplomacy. The item notes also last month Tuttle "vigorously denied British media reports that American forces used white phosphorus as a weapon in Iraq," only to be undercut by an admission from the Pentagon the next day.

This guy needs to get in the loop. He needs a quick primer on what's going on. Someone must have told him that wasn't necessary. He was misinformed.

So who is he? The official blurb on him, from the embassy is here - Stanford and an MBA from USC, and a successful businessman and all that. And the unofficial version is here -
A managing partner of the Tuttle-Click Automotive Group, Tuttle also worked as director of presidential personnel in the Reagan White House. His father, Holmes, earned a footnote in the history books in 1946 when he sold a car to an out-of-work actor named Ronald Reagan.

Tuttle and his immediate family made at least $201,725 in political contributions during the 2000, 2002 and 2004 election cycles, none of which went to Democrats. That figure includes $8,000 to the Bush campaign, $25,000 to Bush's second inaugural committee and $5,000 to the Bush-Cheney recount fund established after the 2000 election. Separately, Tuttle's automotive company donated $100,000 to the president's first inaugural committee. Tuttle was also listed as a Pioneer for Bush's 2004 reelection campaign for having raised more than $100,000 in contributions for the president.
You get the idea. He paid his dues. He got the gig. No one told him he had to do anything. Typical.

So what else did Ric in Paris notice?

This in the December 27th New York Times from Richard Bernstein - Hometown Snubs Schwarzenegger Over Death Penalty. Parisians would see that in the International Herald Tribune, the Times' European paper. And of course that got bigger play there than here. As one of the few countries in the world that still executes criminals, we are seen there as somewhat barbaric for insisting governments have the right to kill their own citizens. France dropped that in the eighties. There is no death penalty in Europe. They do think it barbaric.

Here in California, two-thirds of the population doesn't. Schwarzenegger knows that. Here the story was a joke on the news shows.

From the Times -
For years the quaint Austrian town of Graz trumpeted its special relationship with its outsize native son, Arnold Schwarzenegger.

Born in a village nearby and schooled in Graz, Mr. Schwarzenegger was an honorary citizen and holder of the town's Ring of Honor. Most conspicuously, the local sports stadium was named after him.

But early on Monday, under cover of darkness, his name was removed from the arena in a sort of uncontested divorce between the California governor and the town council, which had been horrified that he rejected pleas to spare the life of Stanley Tookie Williams, former leader of the Crips gang, who was executed by the state of California two weeks ago.

The 15,000-seat stadium had been named after Mr. Schwarzenegger in 1997 as an act of both self-promotion and fealty toward the poor farmer's son and international celebrity, who has always identified Graz as his native place.

But when he declined to commute Mr. Williams's death penalty, the reaction was swift and angry in Graz, which, like most places in Europe, sees the death penalty as a medieval atrocity.

"I submitted a petition to the City Council to remove his name from the stadium, and to take away his status as an honorary citizen," Sigrid Binder, the leader of the Green Party, said in a recent interview. "The petition was accepted by a majority on the council."
The Williams execution was covered in these pages, in detail, here, but what's going on with Graz is a whole different thing. Schwarzenegger had already sent back the town's Ring of Honor, and tried to preempt these folks by telling them to take his name off everything there.

Why? He's in deep trouble out here. He's up for reelection next year, and running at thirty-six percent approval ratings. His special election to change the rules went down in flames - all six of his initiatives were defeated. He told everyone the public employees unions were all greedy bastards, and then the folks rallied behind the police and teachers and firemen. He had said he'd never consult and work with the state legislature on tax issues and state funding - they were all "economic girly-men." It was his way or nothing. Now he can't get anything done.

All that backfired.

And then the people of Graz did him a favor. Folks out her really like executions. Now he has leverage. He told these wimps to stuff it. He gets points out here for that. It's something.

Ric in Paris also sent along this from The Guardian from March 2003 -
The United States is conducting a secret 'dirty tricks' campaign against UN Security Council delegations in New York as part of its battle to win votes in favour of war against Iraq.

Details of the aggressive surveillance operation, which involves interception of the home and office telephones and the emails of UN delegates in New York, are revealed in a document leaked to The Observer.

The disclosures were made in a memorandum written by a top official at the National Security Agency - the US body which intercepts communications around the world - and circulated to both senior agents in his organisation and to a friendly foreign intelligence agency asking for its input.
This of course ties into the current issue here, Bush authorizing the NSA to spy on American citizens without any warrants, telling the NSA to ignore the clear law in the matter, and saying the law did not apply to anything he ordered, as he was the president.

Why did Ric send this now? Perhaps because of this - Rice Authorized National Security Agency To Spy On UN Security Council In Run-Up To War, Former Officials Say (Jason Leopold, Tuesday, December 27, 2005, Raw Story) -
President Bush and other top officials in his administration used the National Security Agency to secretly wiretap the home and office telephones and monitor private email accounts of members of the United Nations Security Council in early 2003 to determine how foreign delegates would vote on a U.N. resolution that paved the way for the U.S.-led war in Iraq, NSA documents show.

Two former NSA officials familiar with the agency's campaign to spy on U.N. members say then-National Security Adviser Condoleezza Rice authorized the plan at the request of President Bush, who wanted to know how delegates were going to vote. Rice did not immediately return a call for comment.

The former officials said Defense Secretary Donald Rumsfeld also participated in discussions about the plan, which involved "stepping up" efforts to eavesdrop on diplomats.
The "news" (this is old stuff) was that even though Bush says all this massive scanning of telephone conversations and emails was to protect us from terrorism, it was too good a source of information to pass up in other matters.

This news of the NSA spying on the UN received some coverage in newspapers at the time, but now we're talking about using the NSA intercepts for political purposes too, not just tracking down communications regarding potential terrorist threats. The old story becomes new again.

We were wiretapping Hans Blix, and the home phones of diplomats to see how they'd vote and why. Eavesdropping on UN diplomats is authorized under the US Foreign Intelligence Services Act, even if it's still considered a violation of the Vienna Convention on Diplomatic Relations.

But the lie is the problem. The tool to uncover potential terrorist threats is really useful. The administration says they only use it for that purpose. But that doesn't seem so.

So what else was it used for, or on whom? John Kerry? Patrick Fitzgerald? Ex-wives? One never knows.

Oddly, though, for some of us the worrisome thing is not in these "big brother" issues.

There's something even more troubling than the government sweeping all electronic communication and consolidating its power by spying on everyone.

Of course Robert Steinback in the Miami Herald covers that and other matters here -
If, back in 2001, anyone had told me that four years after bin Laden's attack our president would admit that he broke U.S. law against domestic spying and ignored the Constitution - and then expect the American people to congratulate him for it - I would have presumed the girders of our very Republic had crumbled.

Had anyone said our president would invade a country and kill 30,000 of its people claiming a threat that never, in fact, existed, then admit he would have invaded even if he had known there was no threat - and expect America to be pleased by this - I would have thought our nation's sensibilities and honor had been eviscerated.

If I had been informed that our nation's leaders would embrace torture as a legitimate tool of warfare, hold prisoners for years without charges and operate secret prisons overseas - and call such procedures necessary for the nation's security - I would have laughed at the folly of protecting human rights by destroying them.

If someone had predicted the president's staff would out a CIA agent as revenge against a critic, defy a law against domestic propaganda by bankrolling supposedly independent journalists and commentators, and ridicule a 37-year Marie Corps veteran for questioning U.S. military policy - and that the populace would be more interested in whether Angelina is about to make Brad a daddy - I would have called the prediction an absurd fantasy.
But that is where we are. The president has thrown down the gauntlet. He is changing things, and this is a direct challenge. He broke the law, and will continue breaking it. This changes how the country is run, and the question is, are there enough people who will congratulate him for the change, so he can become something like "dictator for life," or will enough folks say no.

The man likes big gambles - like the preemptive war based on thin evidence of a justifiable threat. That's the way he thinks. Grab for what you want, and see what happens.

This is the biggest gamble. Has he read the situation right? Is this the moment he can take ultimate power? Maybe so.

In any event, that issue is what Ric in Paris inadvertently raised in the third item. Ric should send even more news nuggets. They get you thinking, even if that's alarming at times.

Posted by Alan at 20:49 PST | Post Comment | Permalink
Updated: Tuesday, 27 December 2005 20:56 PST home

Monday, 26 December 2005

Topic: Chasing the Zeitgeist


The Week the Year Ends

Okay, the Christmas holiday is over, and, like all other obscure writers on current events and the culture, the editor and columnists here at Just Above Sunset really ought to be working on the both the "looking back" columns (what just happened) and the looking forward columns (what seems to be going to happen). But everyone does that. There are a ton of those out there. One could build a column just by pointing to this one or that, and saying that one seems to make sense, this one doesn't, this is interesting and odd, and that is both wrong and dull. The object of such a column, of which you would find many here over the last three years, is to get a sense of the national dialog - in these pages called chasing the zeitgeist - a sort of "this is the American dialog" reporting.

On the other hand, often one writes just to get one's thoughts organized, not for an audience. The idea is not to plead some case or promulgate some particular point of view, but only to look at events and see if there's a way to make some sense of them. It's just, really, trying to figure out what's going on. If readers want to tag along for the ride, that's fine. But there are no promises. Some things just don't make sense. And some things do, and they are troubling.

Of course, not much happened over the Christmas holiday - congress had adjourned and the president was at Camp David, and the Monday after Christmas was a holiday. The markets were closed, no mail, no shouting matches and no hot accusations in Washington. The president then flew off to Crawford, Texas. Cindy Sheehan didn't follow him. The weekend "talking heads" shows - politics and spin - were mainly given over to year-end retrospectives.

Everyone agreed it was a bad year for the administration. Iraq didn't turn out so well - even with the elections. If only the Shiite-run court hadn't "disqualified" a few hundred Sunni candidates after the fact, saying they used to like Saddam Hussein or something (story here) so even if they won they couldn't take their seats in the new government. What are these Shiite guys, Republicans? And Hurricane Katrina came up - yeah, the president took four days to understand it was kind of serious, then said Michael Brown was doing a heck of a job, and then Brown resigned. Oops. There was the effort to dramatically change Social Security. That went nowhere. Folks would like to keep their guaranteed old age income, no matter how meager, that they actually paid for over all the years. The idea of playing the stock market as an alternative - and winning big, or not - just seemed stupid to most folks. The Harriet Miers nomination was an embarrassment. The vice president's Chief of Staff had to resign after being indicted on five felony counts. Some folks too brought up the Terry Schiavo business, where the president abruptly ended his vacation and flew back to Washington in the middle of the night to sign legislation to keep her body functioning. I guess it was supposed to be great symbolism for the "right to life" folks and embarrass the "moral relativists" on the left. All the polls showed almost all Americans saw this as just none of the federal government's business - people knew cynical grandstanding when they saw it, and the courts, even those with conservative judges appointed by the president or his father, refused to bend the law so the more-moral-than-you folks could win some points. And doesn't take a genius to understand a good number of folks in New Orleans might feel a tad resentful the president cut his vacation short for a midnight flight back to DC to keep the body of one brain-dead woman functioning but couldn't be bothered for four whole days to deal with thousands dying in New Orleans and on the Gulf Coast and a major city being destroyed. Well, he had other things to do, and at the time that Sheehan woman was out on the road by the ranch, causing trouble.

What else? The Post reveals our secret prison system where we disappear people, and the German fellow we picked up and on whom we used "enhanced interrogation" and held for seven months turns out to be a nobody, one of many mistakes, and in general our word is not trusted any longer. We do not torture, we do not kidnap people, and we do not "disappear" people forever with no explanation. We say we don't. But no one is buying. And in late December Italy issues an arrest warrant - actually an EU warrant - for twenty-two CIA guys who they say kidnapped a fellow off the streets of Milan who was never seen again, and we lied to them about it. Not good.

And news story after news story reveals the "intelligence" we used to justify the Iraq war was crap, and we knew it, but key people pushed it into the White House, bypassing those who evaluate such stuff for a living (we pay them to do that), and foreign governments who warned us the "intelligence" was bogus. How does the song go? What a fool believes, he sees? Oops. Sorry about the dead people.

So it was a bad year, and it ended badly, as in these summaries:

Associated Press - "The Republican-controlled Congress is staggering home for the holidays. Democrats, demoralized after last year's election losses, have a spring in their step after outmaneuvering President Bush and GOP congressional leaders in a series of session-ending clashes."

Washington Post - "After four years in which Congress repeatedly lay down while President Bush dictated his priorities, 2005 will go down as the year legislators stood up. This week's uprising against a four-year extension of the USA Patriot Act was the latest example of a new willingness by lawmakers in both parties to challenge Bush and his notions of expansive executive power ... Since this spring, Congress has forced Bush to scrap plans for a broad restructuring of Social Security, accept tighter restrictions on the treatment of detainees and rewrite his immigration plan. Lawmakers have rebuffed Bush's call to make permanent his first-term tax cuts and helped force the president to speak more candidly about setbacks in Iraq."

Los Angeles Times - "Since taking office, Bush has placed the highest priority on unifying his party behind an agenda of bold conservative change, even at the price of provoking intense resistance from Democrats and sharply polarizing the electorate ... In the past, that sort of brinksmanship has allowed Bush and the GOP to win big changes in policy with small legislative margins. That formula worked again this week when both chambers narrowly passed the budget-cutting legislation without a single Democratic vote. Yet the same strategy produced two stinging defeats for the GOP when Senate Democrats, helped by a handful of Republicans, held together for filibusters that blocked the Arctic drilling and the long-term renewal of the Patriot Act."

New York Times - "At nearly every crucial turn in recent weeks, it was a group of Republicans, painfully aware of President Bush's decline in popularity, who broke from the White House and the party leadership in the House and Senate and forced concessions in major legislation or stalled it until the bitter end."

Not a good end to not a good year (those four quotes were, by the way, assembled by Tim Grieve here). Sometime you can't win for losing.

The president won the last election. Kerry lost. So he had a mandate, and all that "political capital" he was going to spend. The problem is, of course, he misread the mandate. Pulling the lever for Bush and not Kerry was not saying everything the winner proposes on all issues is what you want. Everything is not, in spite of what the president would like to believe, so black and white. "More than half the people voted for me so more than half the people agree with anything I do, because they made their choice - and I won."

It doesn't work that way. It's just not that simple. Every issue was not settled once and for all in one election. Folks voted the way they did for all sorts of reasons, and one suspects that very few voted for "anything the man does at all is fine by me." You'd have to be a simple-minded fool to read it that way, or willfully simple-minded and not a complete fool, only self-deluded. But you can't call the president names like that, so maybe he just thinks everyone else is a simple-minded fool and will believe him if he keep saying his win means anything he does in the next four years is just what the majority wants, and that's the only thing the vote could mean - that is, he relies on the stupidity of the general population. So he keeps telling us just what the vote meant.

But that's not working either now. (For a good discussion of the "misread mandate" idea see Jay Cost here.) Some major initiatives have gone down in flames, although Republicans held firm and got their cuts in social programs - almost thirteen billion dollars cut from student loan programs over the next five years to keep the riff-raff out of college, cuts in Medicaid Medicare to teach folks personal responsibility, cuts in subsidies for heating oil for the poor, and cuts keeping a two or three hundred thousand more kids out of Head Start, along with cutting meals at schools for the poor. And they got credit card reform, raising payments, and a reform of the bankruptcy laws so no one without a good lawyer can hide behind those any more, and an array of deep tax cuts for those in earning big money. That's something. But the trend has been negative.

And the New Year does not promise to be better. The Fitzgerald probe into the CIA spy business will probably get Karl Rove indicted, perhaps even for destroying evidence (see this), and two legal-eagles on MSNBC on Monday, December 26th, were suggesting Cheney may be next after Rove. Yipes! Of course, Tom DeLay, the house leader, is now gone, under felony indictment, the senate leader, Bill Frist, is under investigation by the SEC and Justice over possible insider stock trades. Then there's Jack Abramoff, master Republican lobbyist, now working on a plea bargain to stay out of jail, and likely to give up six or eight Republican congressmen to save his butt, which would be the biggest corruption scandal in fifty or a hundred years (background here). There's a sea of troubles brewing. Who knows what these next few months will bring?

And bubbling along under all that is the really basic issue raised by the recent revelation that the president ordered the National Security Agency (NSA) to do domestic spying, previously forbidden, on Americans, which would require probable cause and a warrant, without any warrants or any judicial review. It was okay because although it was against the law, the law didn't apply to him. No wonder the story broke. Someone was sure to go to the press and say they were being asked to break the law on the president's word alone, and that just didn't seem right at all.

You see that battle brewing here. The New York Times broke this story and, as mentioned last week, Jonathan Alter in Newsweek broke this - "I learned this week that on December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation."

Keeping a lid on such things is hard, and Monday, December 26th, the Washington Post says the same thing happened with them - White House officials, including John Negroponte and Porter Goss, met with Executive Publisher Leonard Downie and made a similar request concerning Dana Priest's article on secret CIA prisons. Leonard Downie isn't taking but others are -
"When senior administration officials raised national security questions about details in Dana's story during her reporting, at their request we met with them on more than one occasion," Downie says. "The meetings were off the record for the purpose of discussing national security issues in her story." At least one of the meetings involved John Negroponte, the director of national intelligence, and CIA Director Porter Goss, the sources said.
Hey, what good is a democracy if you cannot muzzle the press? Or something... We live in very odd times.

As reviewed last week here, the NSA domestic spying is an odd business. The president has pretty much said he's flat-out breaking the law, and will keep on doing it, because either 1.) the congress, when they approved him to use "appropriate force" to go after the terrorists and those who supported the terrorists, implicitly approved him breaking any laws that got in his way, even laws the congress had passed, or 2.) the constitution gives him, in times of war (even if one hasn't been officially declared here), broad authority to do anything necessary, so whatever congress or any law says just doesn't matter.

Couple that with concerted efforts to keep the press quiet, and you get something very odd. Even Chicago Tribune columnist Steve Chapman, a very conservative fellow for the most part, is a bit unnerved by all this - "To call this an imperial presidency is unfair to emperors."

Everyone is quoting his Christmas weekend column (here) -
President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did, but doesn't think he should be constrained by their intentions.

He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.

His conservative allies say Bush is acting to uphold the essential prerogatives of his office. Vice President Cheney says the administration's secret eavesdropping program is justified because "I believe in a strong, robust executive authority, and I think that the world we live in demands it."

But the theory boils down to a consistent and self-serving formula: What's good for George W. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.
And the middle of this item reviews many of the high-handed administration tactics, but the end is reserved for the NSA business -
The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raises the question: Why?

The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. The court that handles such requests hardly ever refuses. But Bush bridles at the notion that the president should ever have to ask permission of anyone.

He claims he can ignore the law because Congress granted permission when it authorized him to use force against Al Qaeda. But we know that can't be true. Atty. Gen. Alberto Gonzales says the administration didn't ask for a revision of the law to give the president explicit power to order such wiretaps because Congress - a Republican Congress, mind you - wouldn't have agreed. So the administration decided: Who needs Congress?

What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.
This sort of stuff from the conservative side cannot be good. This coming year is going to be rough. The administration back down, or we get martial law? This middle ground is making folks very uncomfortable.

And the plot thickens - because maybe the government could NOT easily have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. As reported many places, like in the Los Angeles Times on Christmas Day here, this isn't exactly wiretapping we're talking about here. Cryptography expert Bruce Schneier - "It's really obvious to me that it's a look-at-everything type program." -
One former senior Pentagon official who has overseen such "data mining" said he also believed the NSA was probably conducting such wholesale surveillance.

"It's a reasonable hypothesis," the official said, adding that he believed it was necessary against savvy terrorists who would otherwise remain undetected.

One former NSA signals-intelligence analyst, Russell D. Tice, said the agency has long had such ability.

"I'm not allowed to say one way or another what the NSA is or is not doing. But the technology exists," said Tice, who left the NSA this year.

"Say Aunt Molly in Oklahoma calls her niece at an Army base in Germany and says, 'Isn't it horrible about those terrorists and Sept. 11?' " Tice said: That conversation would not only be captured by NSA satellites listening in on Germany - which is legal - but flagged and listened to by NSA analysts and possibly transcribed for further investigation.

"All you would have to do is move the vacuum cleaner a little to the left and begin sucking up the other end of that conversation," Tice said. "You move it a little more and you could be picking up everything people are saying from California to New York."

In interviews, current and former intelligence officials said communications technology was so advanced that it would probably be next to impossible for the NSA to filter out all of the U.S.-based electronic communications even if it wanted to when casting a wide net for terrorists

Some administration critics in Congress have begun speculating that the administration is specifically directing the NSA to conduct such surveillance on people in the U.S.

"Based on how much their story keeps changing, I think there's more to the story", said Susan McCue, chief of staff to Senate Minority Leader Harry Reid (D-Nev.). "A lot of people on Capitol Hill think that."
Sure there is. The previous law may be moot -
Because data mining entails tracing potentially millions of innocent links to find a few suspicious ones, authorities would immediately encounter problems establishing probable cause to proceed. Then, the experts say, authorities would have to obtain warrants under the surveillance act for vast numbers of phone numbers and e-mail addresses.
Or they could ask the law be changed. But they said they wouldn't ask. They'd have to reveal too much, like this (NY Times) - "The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said."

According to this in the Boston Globe we're talking two million pieces of communications an hour. We've been doing it overseas for years. Doing it here is new. Here we're protected by the Fourth Amendment -
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Have we outgrown that one? Shall we toss it out?

If you've made a phone call overseas, or received one, if you've sent an email overseas, or received one, since September 2001, should you assume it's been opened, read, and recorded by the government? Maybe not the middle assumption - not read - although it has been scanned for patterns.

And maybe this is protecting us. But do we get to discuss it?

Should we amend the Constitution to allow this, or just trust the administration that this is necessary and limited, and they didn't use the intercepts to check up on John Kerry last election cycle, or to get a sense of what was in Patrick Fitzgerald's' office emails, or anything like that. Surely they'd not do that.

In any event, as tough is the last year was for the president and the administration the next year looks to be just as difficult. This year they have a bigger and far more basic task - to sell the "trust us, you don't want to know, you have no right to know, don't argue" imperial presidency. And they have the core thirty-five to forty percent who are fine with this. Let's see how they pitch this to the middle-of-the-road swing voters, and see who goes to jail, and what kind of government we get in Iraq, and all the rest.

It'll be an interesting year.

Posted by Alan at 22:00 PST | Post Comment | Permalink
Updated: Tuesday, 27 December 2005 06:32 PST home

Saturday, 24 December 2005

Topic: Announcements

The Holiday Package

The new issue of Just Above Sunset, the weekly web magazine that is parent to this daily web log, is now available. This is Volume 3, Number 52 for the week of Sunday, December 25, 2005 - the last issue of the year.

This week's issue, the Christmas issue, has been posted a day early for obvious reasons - all those presents to wrap and then the family gets together and all the rest. So here's the Christmas issue with pages and pages of appropriate photos, along with the expected commentary from here, London and Paris.

This week the major events in the political world are covered in depth. We live in extraordinary times. And everyone struggles to explain it all, so the competing narratives are assessed here. There's no quick summary, but we're at some turning point. Dig in.

"Our Man in London," Mike McCahill, sums up the year there, in his own ironic way from triumphs (real ones) to the bombings, to the annual Queen's Christmas Address. And from Paris, Ric Erickson, sends a tale of his struggles with the devils of technology, and an ironic and complex illustration that sums it all up.

Bob Patterson is back dealing with Christmas issues here in this odd land of palm trees and surfers, and in his book column wording who read those things any more.

There's a lot of photography. From Georgia, a rooftop and chimney that may foil Santa, and from lower Manhattan, the ultimate Christmas in New York shot - palm trees and pretty lights at the Winter Garden. That's very cool.

Southern California Photography is how we do Christmas at the beach, and if you've never had a surfer Christmas, these shots will fix that. And with the highest surf in forty-five years, you get a sense the Pacific sometime isn't - but it's amazing. And there are Christmas botanicals, of course.

The quotes this week are for Christmas of course, but unlike any you'll find elsewhere. And there's a link to a new thirty-five shot Christmas photo album.

Direct links to specific pages -

Current Events ______________________

Seventies Reruns: The Good Old Days Return
Press Notes: Now and then you have a "pile-on" day…
Documentation and Observations: Filling in the Corners of the Domestic Spying Dispute
The National Script: Whose Story Makes Sense?
Stopping for Christmas: Some Odds and Ends Just Don't Get Tied Up

The International Desk ______________________

Our Man in London: A Prince's Speech - Reviewing the Year 2005
Our Man in Paris: The Ginza Ninja

Bob Patterson ______________________

WLJ Weekly: from the desk of the World's Laziest Journalist - Surf's Up! Santa's Coming!
Book Wrangler: On The Road To Illiteracy In The USA?

Guest Photography ______________________

Georgia: Preparing for Santa in Georgia
New York: The Palm Court at the Winter Garden

Southern California Photography ______________________

Christmas at the Beach: So Very Los Angeles
The Pacific: On the Shore Just Before Christmas
Botanicals: Christmas Blooms

Quotes for the week of December 25, 2005 - Christmas and More

Links and Recommendations: A Beach Christmas Album

This web log will go dark until Monday.


Posted by Alan at 06:38 PST | Post Comment | Permalink
Updated: Saturday, 24 December 2005 06:39 PST home

Friday, 23 December 2005

Topic: Couldn't be so...

Stopping for Christmas: Some Odds and Ends Just Don't Get Tied Up

Friday, December 23rd, the political stage was going dark - kill the lights, strike the set, and everyone take a long weekend for Christmas, or Hanukkah, or Solstice, or whatever you'd like, even if O'Reilly and Gibson over at Fox News are angrily defensive and saying that you are disrespectful of their specific holiday. Those of us who are a bit more ecumenical, in a different way than they use that word, wish them well. We will celebrate what we like. They can do the same, and we'll smile as they curse us. Who has the energy to make this time of the year mean-spirited? What's the point? They say we hate them and their view of militant goodness fighting tooth and claw with secular evil. Yes, some of us thought Jesus - the original version - was fine. This new avenging and angry Jesus, Bringer of Death, is a real drag. But whatever. Their prayer at Christmas dinner will be for God to eliminate us all, painfully. But we wish them a Happy Holiday, whatever it is they seem to be celebrating. We'll just say "peace on earth and good will to all men." They don't believe in that - peace is immoral when there are bad guys everywhere and "good will" in their view is reserved for the "right men" and certainly not all men. Fine. You have your holiday, and we'll have ours. And we'll come back to all this next week.

As the leaders of the nation, great and small, fled Washington for the holiday, there were some loose ends that may need some attention when everyone returns.

There's this one, and a story worthy of O'Henry. It's not the deeply ironic "Gift of the Magi" - but it'll do.

From the Associated Press, via the local paper here - Chinese Muslims in Limbo at Guantanamo -
Washington, Friday, December 23, 2005 - Two Chinese Muslims can be held indefinitely in the U.S. military prison at Guantanamo Bay, Cuba, even though their confinement is unlawful, a federal judge ruled Thursday.

Abu Bakker Qassim and A'Del Abdu Al-Hakim, who were captured in Pakistan in 2001, had asked to be released after the government determined nine months ago that they were not "enemy combatants."

U.S. District Judge James Robertson, who has criticized the government for holding the two ethnic Uighurs, said their "indefinite imprisonment at Guantanamo Bay is unlawful."

At the same time, he said, the federal courts have "no relief to offer" the two men.
But it's Christmas time! Can't something be done?

No. You'll find a complete discussion of why nothing can be done here. Four years ago these two were captured by bounty hunters and turned over to us for cash. Nine months ago a military tribunal found that they were not enemy combatants after all. Someone just wanted some money and these two guys were sold to us as really, really bad guys. We paid, but we were had. It happens to us all. We buy something as advertised and when we get it home find out it doesn't work or isn't what they said it was. Oh well.

So we let them go? We can't, and for those who like source documents, you can read the decision here.

The first finding - this is illegal -
The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.
Well, that's clear, but then -
In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts "to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared "no longer enemy combatants." Now facing that question, I find that a federal court has no relief to offer.
These two are stuck. Yes, we are illegally detaining innocent people, and there is nothing that a federal court can do about it.

Form the analysis (Hilzoy) -
Why did the judge reach this conclusion? He goes through various options. He does not need to order them to be produced in court: that's only appropriate when some fact needs to be established, which is not the case here; in any case, producing the detainees in court would leave unresolved the question what to do with them in the event he decides that they should be released. He cannot just order the government to open the gates of the camp at Guantanamo and let Qassim and al-Hakim walk free: they'd be walking out onto a military base, and judges do not have the power to order that someone be admitted to a military installation. No other country is willing to take them. The obvious solution is to release them into the United States.
But that won't work. They're Chinese nationals who received military training in Afghanistan under the Taliban, and China wants them back. And any requiring their release into the United States "would have national security and diplomatic implications beyond the competence or the authority of this Court."

So what to do? Nothing?

Mark Kleiman, the policy professor out here at UCLA, says the president ought to do something -
Of course, the lack of power in the court to order a remedy for the Uigurs' wrongs shouldn't matter. When court of competent jurisdiction finds that an act of the executive branch is illegal, the President, having taken an oath to "faithfully execute" an office whose chief duty is to "take care that the laws be faithfully executed," is oath-bound to order that the illegal activity cease. His failure to do so is grounds for impeachment.

But we have a President whose word isn't worth the spit behind it, and a Congressional majority blinded by partisanship. So the illegal (and inhumane) action of holding innocent non-combatants prisoner will continue, forever or until we elect a better President, whichever comes first.
So noted. But maybe as a Christmas gesture, the president will... not likely.

And a second thing will need some attention soon.

What's with this this - "Iraq's leading Shiite religious bloc said Friday it is ready to discuss Sunni Arab participation in a coalition government, while thousands of Sunnis and some secular Shiites demonstrated in the streets claiming election fraud." The fundamentalist pro-Iranian Shiite guys won big, and the less strictly religious among them and the Sunnis looked at the thousand or so "irregularities" in the voting and took to the streets. This is not good. The vote was to be the "coming together" moment for the new and improved Iraq. Now we get hints of civil war, the same day we announce we drawing down by two battalions, as thing are getting so much better.

What's out back-up plan here? One sense we don't do those. Experience shows we don't.

Ah well, it only gets more curious. Note this from MSNBC - the Cheney-neoconsevative man who was going to run Iraq got less than one percent of the vote in "his country." Out of two and a half million votes in Baghdad, Ahmed Chalabi got 8,645 votes. As Josh Marshall notes, "Anbar province, the center of the Sunni insurgency, was never going to be Chalabi's base. But you'd have thought there might be more than 113 voters who'd vote for the guy." Basra - 0.34 percent of the vote. This guy was a political force to be reckoned with?

Last month he was in Washington meeting with Vice President Dick Cheney and Secretary of State Condoleezza Rice, and was all over the television.

MSNBC: "The election results in Iraq may present Chalabi's ardent U.S. supporters with a quandary: Chalabi, as well as other losing candidates, is alleging fraud in the election, even though the Bush administration hailed the vote as a historic step for democracy in Iraq." Oops. And during the election, Chalabi's campaign posters proclaimed, "We Liberated Iraq." No one was buying that.

It's time to rethink this all. There's no good way to spin this, but they'll come up with something.

Another loose end... Last week NBC reported that the Pentagon was keeping a database of "suspicious incidents" that included such things as antiwar demonstrations and protests against military recruiters (the Quaker grandmothers in Florida, as was mentioned previously in Press Notes). The law says that data, if it is not used in any action, must be purged in ninety days, but that isn't happening -
I now know that the database of "suspicious incidents" in the United States first revealed by NBC Nightly News last Tuesday and subject of my blog last week is the Joint Protection Enterprise Network (JPEN) database, an intelligence and law enforcement sharing system managed by the Defense Department's Counterintelligence Field Activity (CIFA).

What is clear about JPEN is that the military is not inadvertently keeping information on U.S. persons. It is violating the law. And what is more, it even wants to do it more.

... According to a JPEN classified briefing obtained by this blogger, the 90-day "data content limit...creates issues for long-term correlation and analysis."

... The managers of JPEN are hardly being inadvertent about either the 90-day restriction or the intentional collection of information on U.S. persons. So far, it appears that they have broken the law. And what is more, they are agitating internally to find ways of circumventing the legal restrictions.
Oh hell, we'll all be in the Pentagon database. What difference does it make now?

Another loose end... All this stuff about the NSA snooping with wiretaps and scanning email and all the rest? The administration says they know it's kind of against the law, but the fact of the matter is that when congress authorized "appropriate" force to take care of terrorists and those who support them, they were saying that would be okay. Now, in the Washington Post, someone who was there, Tom Daschle, who negotiated this "Authorization for Use of Military Force" with the White House, says categorically that this just isn't so. Congress never intended to give the president the power to perform domestic wiretapping.

Note this:
On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.
And then the White House, hours before the vote, tried to add this:
: (a) IN GENERAL ? That the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001....
Daschle says this:
This last-minute change would have given the president broad authority to exercise expansive powers not just overseas - where we all understood he wanted authority to act - but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
Well, maybe Tom's memory is faulty. But maybe someone took notes, not that it matters now.

As an aside, the same day the Justice Department explained why breaking the laws here, on wiretapping domestically, while clearly illegal, is actually, really and certainly constitutional. That'll make your head spin. See a detailed discussion here. The claim is a tad shaky.

This topic will return after the holidays.

And that nominee to the Supreme Court up for hearings in January, Judge Alito? That's another loose end. Someone dug up a memo in the Reagan archives from he worked for the Big Guy.
Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step-by-step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.
This should be interesting.

What's going on here? Bruce Reed calls it executive activism -
The spy court Bush skirted has been a bigger rubber stamp than Tom DeLay, approving all 1758 requests for secret surveillance last year.

For all the high-minded huffing and puffing about checks and balances, the most interesting question in any presidential scandal is much simpler: Why did he do it? This scandal is a paranoiac's delight, confirming the worst fears of libertarians, communitarians, and vegetarians that the federal government is out to get them. Some conspiracy theorists will no doubt conclude that the Bush administration deliberately overreached in a clever attempt to turn the citizenry against their government.

The black-helicopter crowd can relax. If the Bush White House really cared about spying on Americans, they wouldn't leave it to a few data miners at NSA and gumshoes at the FBI. This scandal has little to do with wars, spies, or laws, and everything to do with presidential power.

From the beginning, President Bush and Vice President Cheney have made a fetish of asserting the power of the executive.

... Unfortunately, Bush and Cheney fail to understand that the extent of a president's power doesn't rest in how far he is willing to stretch the statutes or the Constitution. Presidential power comes from the force of a president's argument, the righteousness of a president's cause, and the support and consent of the American people.

... There may well be times in war when ends justify the means. But just as torture undermines America's cause in the larger war on terror, asserting powers the president does not have to pursue ends he cannot explain is more likely to weaken the presidency than to strengthen it.
Well, some fetishes can be fun. There are hundreds of magazine full of such stuff. But a fetish of "asserting the power of the executive" is just wrong.

Well, there will be a few things to deal with when the holidays are over.

Posted by Alan at 17:02 PST | Post Comment | Permalink
Updated: Friday, 23 December 2005 17:14 PST home

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