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"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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Thursday, 25 May 2006
Big News, Small News
Topic: Couldn't be so...

Big News, Small News

Thursday, May 25, 2006, 7:30 in the evening in Washington, and half past midnight in London, the President Bush and Prime Minister Blair hold a joint press conference at the White House, the Prime Minster on his way back to Downing Street after a visit to Iraq. (If you fly west it's sort of on the way home.) Blair had been visiting with the new government there, almost complete but for someone to head two key ministries, one Interior, in charge of whatever sort of police force can be cobbled together to replace the religious and tribal militias all in black driving the streets and doing those revenge killings with the twenty or more bodies showing up each day here and there. It a bit of a problem. But the claim is there's now a working government there, elected by the people, and it has organized itself, or close enough. It's a turning point, just like killing Saddam Hussein's sons and displaying their bodies, Mussolini style, just like capturing their father, just like the trial of the father, just like the three previous elections. But this one is a real turning point, the others being false alarms or something. That's a hard sell. It's not exactly a "the boy who cried wolf" thing, but something like it. Cynics wait for the next real turning point, or the one after. Collect the series.

This press conference was supposed to be the big news event of the day, even though all the speculation that there would be some sort of announcement of troop reductions had, earlier in the day, been blown away. The press secretary, Tony Snow late of Fox News, had said no way - that wouldn't be the big news. But what would? He has a cool grin.

The problem was that there was competition for the big news of the day, things not on the schedule and hard to top.

The Enron trial ended unexpectedly with former CEO Ken Lay and his business buddy Jeff Skilling being convicted on almost all counts and facing at a minimum twenty years in jail each, with more likely longer sentences. Lay, formerly a key Bush supporter and the one who gave the most money to the man over all the long years, is going to jail. Out here in California we think of Enron for the year of the massive power shortages when they manipulated the energy market for fun and profit and our electric bills more than tripled. Others remember being told to hold on to their Enron stock by the folks who ran the company while those guys were dumping everything - and many Enron people lost all their assets and pretty much a lifetime of savings, as did investors who relied on analysts who had been basing their projection on cooked books. So this, the bad guys going to jail, was big news for lots of people. You might have caught Bill O'Reilly on Fox News arguing with the Fox business editor, that Cavuto fellow, that these guys didn't deserve jail time, asking Cavuto, over and over, what did they do to you after all? Bill was outraged. Cavuto looked depressed. He didn't want to fight, not with O'Reilly. Who does? O'Reilly was being the contrarian again, of course. It's a ratings thing. Or he's out of touch. Or he's mad.

Then too Senate finally passed an immigration bill, with a guest worker provision and offering some illegal immigrants a way to become citizens, setting up the mother of all conference committee fights as the House bill explicitly has none of that and calls for building a giant wall along the whole border with Mexico with armed guards and all that, for making anyone here without proper papers guilty of an aggravated felony, and all the rest. This won't be pretty - angry Republicans calling each other names and being outraged, while the Democrats run errands and catch up on the sports pages. The public? They must realize this means no legislation will go to the president for his signature and they're be no new law, and as much as Lou Dobbs on CNN and all the rest have whipped everyone into a frenzy that this is an immediate and dire problem that had to be solved now, it won't be, and life will go on, and tables will be bussed and lettuce won't cost three hundred dollars a head and the world won't end. Next year will be fine, or the year after. But the news was the Senate had just set up a big Republican showdown and there'd be a whole lot of screaming and posturing to come.

Then too, just before the George and Tony Show, there were new developments in the CIA leak case. The vice president could be called as a witness, as the prosecutor, Fitzgerald, wants to ask him, under oath this time, if what the defendant, his former chief of staff, said is true. Did he tell Scooter Libby that the pesky Wilson's wife was an undercover CIA agent who worked on uncovering secret nuclear proliferation deals and he should look into whether she set up the trip and then he should talk to the press? That seems to be what Libby testified to. Fitzgerald wants to know if this motivated Libby to lie to the grand jury, saying he didn't leak to anyone and he didn't know when or where he heard about the woman. The sly thing is that this is not about Cheney at all, just about the other guy's motivation. But then, if and when Cheney testifies, the whole effort to find out who illegally exposed a CIA agent and ruined her operations and thus damaged the nation would seem to point to one man. That man is not the defendant. But that's not Fitzgerald's aim, of course. This is just part of his case against Libby for perjury and obstruction of justice, just investigating the underlying motivation of the man charged. But it's hot. The story started here and was the buzz all over, all day. Fitzgerald is purposely not connecting the dots here. That's not what he's working on - he's methodical and focused on the one case. Everyone else is connecting the dots, of course. And just for the fun of it, the same day there was this - Fitzgerald wanting to understand a phone call from the reporter who wrote the column telling the world the woman was a CIA agent, Robert Novak, to the president's key advisor, Karl Rove, as the investigation started. It sure looks like Novak and Rove got together and tried to coordinate their stories to keep each other out of hot water, making sure no one would know anything. Just something to look into. The George and Tony Show - Iraq is a wonderful success story, we were right, but we're staying there and can't say when anyone gets to come home - seemed minor stuff, small beer as it were.

And congress was still ticked about the FBI's search of William Jefferson's office (the executive branch trying to intimidate and thus neuter the legislative branch and all that), and ABC reports they're after House Speaker Hastert on another matter, and the FBI says they're not, and Hastert wants to sue ABC for defamation or whatever, and ABC stands by their story, and Hastert suggests maybe someone at the FBI is planting stories about him because he complained about the Jefferson thing. It's all here, in all its silly detail. But there's the obvious bigger issue. Is the executive branch, for the first time in our history, trying to intimidate and thus neuter the legislative branch, essentially changing the way our government has worked for the last two hundred nineteen years. Many say yes, and this is big news, a fundamental change, a strategic move toward a unity executive government where the legislature and courts are somewhere between subordinate and irrelevant. Others say no, it's just a criminal matter or two handled in a new and exciting and much more effective way than the stuffy "separation of powers" traditions. Maybe so. But there is this - the FBI now wants to interview members of the House and Senate to determine whether they were responsible for leaking information about the Bush administration's warrantless spying program to the New York Times. What next? The IRS goes after tax records? So senators and congressmen (and congresswomen) are learning just who's the boss, and that what they and everyone else thought about the constitution was, apparently, quite wrong. The George and Tony Show - Iraq is a wonderful success story, we were right, but we're staying there and can't say when anyone gets to come home - seemed minor stuff, small beer as it were, compare to this, a kind of a slow motion coup if you think about it. Or maybe it's nothing. After all, there was this - the president ordered all the documents the FBI seized from congressman Jefferson's office sealed for forty-five days - so people could calm down. If it really is a slow motion coup, then going slow is important. People might forget the issue by July. Other things will come up. Have to be careful. Very clever.

As for the George and Tony Show, Tim Grieve offers a pleasant summary here -
Bush and Blair both described the formation of a government in Iraq as a chance for a fresh start for Iraq and what's left of the coalition that invaded it, but they had little fresh to say about their own plans. The first question out of the box: Does the formation of a government put the U.S. on a "sound footing" to bring its troops home? Bush seemed to be caught flat-footed, as if he didn't know that the question would be coming. He didn't have much of an answer.

The president was ready, however, when he was asked a variation of a question he's failed to answer before: What mistakes do you most regret about Iraq? "Saying, 'Bring it on,'" Bush said. "Kind of tough talk, sent the wrong signal to people. I learned some lessons about expressing myself in a more sophisticated manner. 'Wanted dead or alive,' that kind of talk. I think in certain parts of the world, it was misinterpreted. So I learned from that." Continuing, Bush said the "biggest mistake" from "our country's involvement in Iraq" was Abu Ghraib. "We've been paying for that for a long time," Bush said.

So far as we could tell, that was the extent of the news here.

For much of the press conference - really, right up until Bush abruptly cut it short by asking Blair if he could buy him dinner - the president seemed tired and a little listless. The reporters just seemed bored. There were other, more important stories they could be covering... But the reporters were stuck with the Blair-Bush Project, where they seemed to feel constrained to ask mostly about Iraq. There were no questions about immigration, nothing about upcoming midterm elections, nothing about Plamegate, not a word about the showdown between members of Congress and the Bush administration over the search of William Jefferson's office. The members of the White House press corps were right there in the room with two of the most powerful men in the world, but they were as far from the news of the day as they were the other day on Air Force One, where they were strapped in their seats watching "King Kong" during Michael Hayden's CIA confirmation hearings.

At one point in the sleepy proceedings tonight, Bush reminded a reporter that he'll be the commander in chief for another two-and-a-half years. A few minutes later, a British reporter asked Blair and Bush what they'll miss about one another once they're out of office. Bush said he'd miss Blair's red ties, and then he talked briefly about the prime minister's vision and resolve. Blair laughed, said he should leave it at that, then gently chided his countrymen for not asking more serious questions. If there's something he'll miss about Bush, he didn't bother to say what it is.
That was cold, but overall it was dull. The talking heads on television, doing the "instant analysis" were all over the only news - two years ago the president was embarrassed to admit he could not think of one mistake he made in office, and on Thursday, May 25, 2006, he admits three - he didn't realize that "Bring it on!" and "Wanted Dead or Alive" could be misinterpreted, and what happened at Abu Ghraib made us look bad. Of course you had to see it (video here) - he looked sad and thoughtful, and that had been carefully rehearsed. The soulful profile gaze that ceiling was masterful. Great theater. And it might have been effectible. Maybe he'll get some support now from the "reality based" folks, as he did alight on this earth briefly, but, on MSNBC, Newsweek's White House correspondent said just after he finished and the cameras moved to Blair, Bush leaned over to the reporters in the front row and gave them all a big sarcastic grin.

It's a game. He's winning.

Or he's not? See Howard Fineman on the Enron verdict here -
If you want a date to mark the beginning of the end of the Bush Era in American life, you may as well make it this one: May 25, 2006. The Enron jury in Houston didn't just put the wood to Ken Lay and Jeff Skilling. The jurors took a chain saw to the moral claims of the Texas-based corporate culture that had helped fuel the rise to power of President George W. Bush.
Ben Adler says that's horseshit here -
Ha! I would that it were so, but this is utter nonsense. If Enron was going to bring down the Bush presidency, it would have done so a long time ago. It was a much bigger news story a few years ago when it broke. And remember, back then Enron was Bush's largest donor throughout his political career. He still won re-election, and Enron barely even figured into the 2004 campaign. Now, several years of continued federal fiscal mismanagement later, and this unsurprising verdict is supposed to be the nail in Bush's coffin? All this really proves is the mainstream media's pile-on-him-when-he's-down-because-now-it's-safe-to mentality.
But really, it doesn't matter. Lay and Skilling are old history. Other things are happening.

But that was the big news on Thursday, May 25, 2006.

What about the small news?

The movie about how Jesus had a son by Mary Magdalene and now Opus Dei is trying to take over the world is still a hot topic.

Who cares?

Stanley Kurtz in the National Review here -
This movie is a salutary kick in the teeth for conservatives. There's no gainsaying the fact that the Narnia movie was a big deal. Having conceded that, the fact remains that when it comes to exercising influence on the fundamental levers of American culture, conservatives remain in a pathetically weakened position.

... I feel in a particularly strong position to reveal the entirely unsecret conspiracy against patriotism, tradition, and religion hiding in plain sight on our movie and television screens, in our universities, and on the pages of the mainstream press. Conservatives have forgotten just how precarious our position is. One cable news channel, talk radio, and the blogosphere do not an invincible army make. It only seems that way because we also have nominal control of the reigns of power. But lose our foothold in government, and conservatives are up a creek. The other side controls the levers of cultural power in this country, and we are the enemy in their eyes (and on their screens).

Conservatives need to face the fact that our position in this culture is genuinely precarious. If we lose our hold on power, we'll scream bloody murder on our outlets at everything the other side does. Yet those screams may only confirm our helplessness. The deep cultural dimension of our political battles makes an ordinary transfer of political power far more consequential than it was in the days when America had a bipartisan foreign policy and a broad cultural consensus. We can dream about forcing Republicans to the right and then riding back into power two years later, but one big loss could easily turn conservatives back into a marginal cultural force for some time.

Why have Democrats been so angry? It's because their taken-for-granted cultural superiority has been called into question by 9/11, the return of patriotism, a tough foreign policy, and the open defense of the sort of traditional values they thought were on the way out. Republican victories have punctured the cultural left's sense of the historical inevitability of their triumph, and that is at the root of their rage. By controlling the political agenda, conservatives control the cultural agenda as well (or at least a large part of it). But the truth is, other than the government, the left is still in control of our critical cultural institutions. Should the left recapture the government as well, it may well succeed in pushing traditionalists aside in the culture at large.

The battle is radicalizing. Big Love and The Da Vinci Code are far more direct and brazen attacks on tradition than we might have anticipated just a few years ago. Conservatives are the targets, and Hollywood is aiming and shooting repeatedly. Give credit to Tom Hanks, by the way. As producer of Big Love and star of The Da Vinci Code, he is clearly one of the captains of the not-so-secret conspiracy.
What? It's just a movie, and it seems not that good a movie. But it's a conspiracy against the beleaguered and outnumbered true conservatives. Right.

James Wolcott here -
It's entertaining watching Kurtz thrash around in frustration, making a silly spectacle of himself. "Why have Democrats been so angry?" he asks, then answers his own question as if the lies and horror of the botched Iraq occupation and the Katrina catastrophe played no part. I don't know any liberal Democrat who cleaves to a notion of "historical inevitability" - it's only the radicals of the far right and left who adhere to such absolute certitudes, while the vast majority believe that civilization muddles along in fits and starts, advancing here, retreating there. I bet Kurtz has never caught more than a glimpse of HBO's Big Love, for if he had he would realize that far from glamorizing or normalizing polygamy, the show depicts the financial and emotional pitfalls and cobweb complications of juggling wives and household arrangements, leading a secret life, and suffering the whims and schemes of a patriarchal leader (portrayed with gnawed mendacity and petty cruelty by Harry Dean Stanton). Like The Sopranos, it trains its attention on a snakepit of conspiratorial activity hidden behind a suburban facade. (If any show undermines Kurtzian notions of "tradition," it's Deadwood, and I never hear conservatives complain about it.)

Note that Kurtz neglects to mention that Hanks' credits also include producing and directing Band of Brothers, an HBO series of unimpeachable heroism and patriotism - hardly products of cultural subversion. Co-exec producer of Band of Brothers was Steven Spielberg, and just as his star-spangled work was heaved overboard by neocons and cultural conservatives after he offended their hawkish sensibilities with Munich, Hanks too is now being tarred as a cultural malefactor for his participation in The Da Vinci Code. Give it up, guys. You're never going to sour America on Tom Hanks; you're never, in short, going to be able to Swift Boat him.

If this is what Kurtz and his kind are like with The Da Vinci Code, I don't want to be around to hear the caterwauling that may occur should Oliver Stone's World Trade Center become a hit. It'll be like karoke night among the coyotes.
And there's Peggy Noonan, former Reagan speechwriter, in the Wall Street Journal here -
I do not understand the thinking of a studio that would make, for the amusement of a nation 85% to 90% of whose people identify themselves as Christian, a major movie aimed at attacking the central tenets of that faith, and insulting as poor fools its gulled adherents. Why would Tom Hanks lend his prestige to such a film? Why would Ron Howard? They're both already rich and relevant. A desire to seem fresh and in the middle of a big national conversation? But they don't seem young, they seem immature and destructive. And ungracious. They've been given so much by their country and era, such rich rewards and adulation throughout their long careers. This was no way to say thanks.
Be grateful for what the Christians gave you, you Hollywood Jews! It's so sad you can't be grateful.

Amazing. But a cool diversion from the real issues.

Posted by Alan at 23:05 PDT | Post Comment | Permalink
Updated: Friday, 26 May 2006 07:01 PDT home

Wednesday, 24 May 2006
Wonk Stuff: Authority as an End in Itself Regardless of Outcome
Topic: For policy wonks...

Wonk Stuff: Authority as an End in Itself Regardless of Outcome

Glancing through what that NYU journalism professor and big-time author Eric Alterman has to say on Wednesday, May 24, on his MSNBC web log, that day you would see Alterman quoting Andrew Bacevich.

Who's he? Well, Bacevich was born in Normal, Illinois, so he is, by default, or by birth, a normal person. And Normal is a real American place, even if Mitsubishi Motors North America now has their big factory there. Bacevich attended West Point, fought in the Vietnam War, and then had a twenty-year military career that ended in 1992. Now he's a professor of history at Boston University. That's all in the normal range.

But do normal people say this about how the troika of Cheney, Rumsfeld and Wolfowitz, the three key architects of current war (no, George Bush didn't think it up all by himself), felt about what happened on September 11, 2001, in New York and at the Pentagon? This is how he assumes they were thinking that day -
Yes, it was a disaster. Yes, it was terrible. But by God, this was a disaster that could be turned to enormous advantage. Here lay the chance to remove constraints on the exercise of American military power, enabling the Bush administration to shore up, expand, and perpetuate U.S. global hegemony. Toward that end, senior officials concocted this notion of a Global War on Terror, really a cover story for an effort to pacify and transform the broader Middle East, a gargantuan project which is doomed to fail. Committing the United States to that project presumed a radical redistribution of power within Washington. The hawks had to cut off at the knees institutions or people uncomfortable with the unconstrained exercise of American power. And who was that? Well, that was the CIA. That was the State Department, especially the State Department of Secretary Colin Powell. That was the Congress.
And so they did. Under Porter Goss the CIA was purged of anyone unwilling to provide only that intelligence that supported the administration's position. You supported the concept of how things were that the White House had, or you were gone. The new guy, Hayden, now inherits a neutered and compliant organization after Goss did the dirty work and really couldn't stay - his work was done at a high cost to morale, and "hatchet men" of course don't have the skill set to rebuild the organization into something more obedient. It's a narrow talent.

Of course Colin Powell was neutered in place, cut out of discussions and decisions, and Condoleezza Rice took his place at State, to bend the diplomats to the will of the policy makers. There had been many a tale of mid-level State Department people, asked for their analysis of how things were going in Iraq, sending back cables that things weren't going well and could be getting worse. They were forced out, or reassigned to Portugal or wherever. Under Rice there'd be no more of that.

Congress, with both houses firmly in control of the president's party, didn't need to be jerked around that much, but they got those background briefings on the small drone planes full of nasty chemicals and biological agents heading for Miami, and tightly edited versions of what the CIA had churned out, if they were thinking of balking at starting our first preemptive war. And the Democrats were not much of a problem - all you had to do was ask if they really wanted to be on the side of the terrorists who want to kill us all, or whether they thought Saddam Hussein was a good man. Raise questions and that's what the public would think, helped along by Fox News. It was a classic trap, and just about every major Democrat is still in it, or thinks they are. That's where the New York senator who would be the next president, Hillary Clinton, is now - supporting the war. What choice does she have? She can't say, now, that back then she was a just a silly woman who was manipulated by information she wasn't smart enough to see was rigged. No one votes for anyone who admits that. So congress was cut off at the knees, and rather easily.

The historian Andrew Bacevich is concerned with the "radical redistribution of power within Washington" in regard to what the war was really about - not terror around the world, not some sort of justice or revenge for what happened at the World Trade Center or the Pentagon, not about bringing democracy and Wal-Mart to Baghdad, and not that much about securing oil reserves. It was about power, as he puts it, about securing US "global hegemony" - attaining the position in the world where no one can tell us what to do or what not to do, where no laws that apply to others apply to us, nor do any treaties. So in an odd way it all was about freedom, after all. The freedom to do what we want no matter what anyone thinks. That may be the real core of what the neoconservatives and their Project for the New American Century was about. All else - Iran, Iraq, Syria, this war, that war, and how we wage each and all - is just detail.

So the aim of it all - the nation's plan - became the unconstrained exercise of American power, not for anything in particular (the rubes would buy anything proposed), but for the power itself. Think of it as meta-policy, or if you will, policy about policy. Systems people deal all the time with meta-data, the high-level data describing the actual data. Same sort of thing.

And it led to people like Thomas Freidman of the New York Times arguing we had to go to war, just to show we would - maybe Iraq was the wrong target entirely but it didn't matter. Freidman argued we couldn't appear weak, or passive, in this awful world. With that sort of thing who needs Fox News?

The interesting thing is the domestic mirror of the foreign policy that is not really policy at all. Just as militarily and diplomatically it doesn't much matter just what we do so long as whatever we do establishes we can do whatever it is and no one can stop us, it doesn't seem to matter whether how the nation is governed domestically as the real effort is to establish that the administration can do what it wishes and no one can limit the administration. All else is just detail.

There's an interesting discussion of that here from Kevin Drum, with this at its core -
This is actually my Grand Unified Theory of Bush. Pundits keep trying to figure out just what it is that makes Bush so different from other presidents, but most of them start by trying to figure out what he values. For example, maybe he's far more dedicated to hardline conservative ideology than any other president? That seems reasonable at first glance, but even a cursory look at the evidence turns up way too many exceptions for this to account for his record.

Pure, ruthless political calculation? There's plenty of that, but it really doesn't explain things like No Child Left Behind, the Iraq war, or his immigration policy.

Pandering to the Christian right? Nah. In fact, Bush's most striking feature in this regard is his cynical willingness to promise the Christian right the moon and then deliver almost nothing. They're right to be pissed off at him.

Unbridled fealty to business interests? That's probably the closest to the truth, but what about Sarbanes-Oxley or McCain-Feingold?

... So what is it that makes Bush so different? Just this: until Bush they also all cared about serious policy analysis. This was obviously more striking in some (Clinton) than in others (Reagan), but they all paid attention to it and it informed their actions.

But not Bush. He's subject to the same stew of competing interests and factions as any other president, but what truly makes him unique is what's missing: a respect for policy analysis. After eight months of working in the Bush White House, John DiIulio reported that "the lack of even basic policy knowledge, and the only casual interest in knowing more, was somewhat breathtaking."

Paul O'Neill described Bush in cabinet meetings as "a blind man in a roomful of deaf people." A senior White House official told Ron Suskind that the Bush White House is "just kids on Big Wheels who talk politics and know nothing. It's depressing." The meltdown at FEMA, the war with the CIA for being insufficiently hawkish, the lack of a serious plan for Social Security privatization, the staffing of postwar Iraq with inexperienced ideologues - all of these things have the same root cause: a belief that ideas are all that matter.
So the unconstrained exercise of executive power, not for anything in particular (the rubes would buy anything proposed), but for the power itself, is the idea that matters - establishing a domestic "radical redistribution of power within Washington" - a domestic homogony if you will. This would not be the unconstrained exercise of American power around the world, but the unconstrained exercise of executive plenary power. It really doesn't matter just what you do. What matters is fighting hard to establish the idea that you can do whatever it is you do and no one can stop you. It the local version of the global big idea.

Thus you have the warrantless spying on Americans business - saying yes, there is a law that forbids that, and yes it was broken on purpose, and yes, it continues to be broken, but the law doesn't really apply if you think of the constitution a certain way, and you're all wimps who can't do a thing about it anyway, so accept your role. You are just children who don't have the will, nor obviously the power, to do anything meaningful other than to agree with daddy. Just as we have pretty much said that to all the nations of the world, even our allies, that's the message to congress. The seven hundred fifty presidential signing statements explaining how what congress passed is fine, but in the real world of adults don't mean much, is part of the message. As for the courts? Just argue they really have no jurisdiction over executive decisions, or invoke the "state secrets" thing so they have to back off. No problem.

Of course things fall apart as actually governing is a bore and not seriously attempted. Nothing works out because no one planned? Details. Beside the point. FEMA a mess as the next hurricane season begins? Boring. Baghdad burning. Yeah, so? Think of the big picture.

For those of us who live in the real world, this is a bit frustrating. We pay taxes for this? We don't live in a theoretical world where it's important to establish a condition in which no one can question the country or the president. It's nice and all that, but some things still need attention - the economy, education, healthcare and health insurance, this immigration mess, energy costs, and all the rest. The White House and the neoconservative crowd may find all that just detail, but that's where most of us live. We like to call it reality. Yeah, it's boring.

But the administration's meta-policy actions can be just irritating. Yes, the president's poll numbers, the approval ratings, are about as low as those of Richard Nixon when he resigned, and his base is angry and Republicans running for office don't want him around on their campaign trails, and are opposing him on issue after issue in congress. But the president has to do the power thing and remind them he's the boss, the daddy, "the decider" - so on a Friday night (May 19) the administration puts on a little show of who's boss and has the FBI raid the office of a congressman. This is the first time in our history the executive branch has ever done that. It's a clear warning. This president is not like any other before. He doesn't give a hoot about this co-equal branches of government crap. Know the FBI is outside the door, and the FBI reports to the president. As does the IRS, and all sort of agencies that can make things bad for those who misbehave.

Of course the warning was tempered by the fact the congressman in question, William J. Jefferson of Louisiana, is a Democrat, accused of various payola schemes somehow involving Africa. And they have him on tape taking money as a bribe, and they found nine thousand of the marked bills in his freezer, so who's going to publicly protest a little raid on his office documents? You get the message and shut up. Such a thing has never been done before but times have changed.

Initially the story had been spun in the press as proof the Democrats were just as corrupt as the Republicans, and that got some traction until people started think about it. Abramoff ran a criminal enterprise that involved scores of major Republican politicians, the "Duke" Cunningham scandal sucked in the number three guy at the CIA and may involve Goss, the former director, Senator Frist, majority leader, may have done funny things with selling stock and insider information, and so on an so forth. Jefferson was a crook, but a freelancer, and not even slick - cash in the freezer in the kitchen offers no returns, nor does it accrue value. What was he thinking. Amateur.

But since the raid the unexpected has happened. The children don't seem to know their place, and, in fact, are saying they're not children. They're saying the executive branch just can't do this - legislative workspace is constitutionally off-limits to the Justice Department. Uppity kids.

Wednesday, May 24, the uproar was covered by the Washington Post here and Associated Press here -
In rare, election-year harmony, House Republican and Democratic leaders jointly demanded on Wednesday that the FBI return documents taken in a Capitol Hill raid that has quickly grown into a constitutional turf fight beyond party politics.

"The Justice Department must immediately return the papers it unconstitutionally seized," House Speaker Dennis Hastert, R-Ill., and Democratic Leader Nancy Pelosi, D-Calif., said in a statement.

After that, they said, Democratic Rep. William Jefferson of Louisiana must cooperate with the Justice Department's bribery investigation against him.

The leaders also said the Justice Department should not look at the documents or give them to investigators in the Jefferson case.

The developments capped a day of escalating charges, demands and behind-the-scene talks between House leaders and the Justice Department that ended with no resolution, according to officials of both parties.

House officials were drafting a joint resolution frowning on the raid. And Judiciary Committee Chairman James Sensenbrenner, R-Wis., announced a hearing next week titled, "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"
The message backfired. It's akin to our "shock and awe" and liberation of Iraq more than three years ago - instead of being awed the locals were pissed, and they keep saying their liberation looks like our occupation to them. We say we made things better, and they see a civil war, little power, not much drinkable water and sewage in the streets. They're not buying the message.

In the Jefferson business here, Pelosi said Jefferson should resign from the Ways and Means committee. He refused and filed a motion asking the federal judge in the case to order the FBI to return the material it seized from his office.

But that's minor stuff now -
Hastert, Pelosi and several other leaders of both parties in the Senate say the weekend raid violated the Constitution's separation of powers doctrine.

"These constitutional principles were not designed by the Founding Fathers to place anyone above the law," Hastert and Pelosi said. "Rather, they were designed to protect the Congress and the American people from abuses of power, and those principles deserve to be vigorously defended."
It wasn't supposed to work out this way - "Hastert on Tuesday complained directly to Bush that the raid violated the Constitution's separation of powers doctrine."

And the doctrine? See Matthew Yglesias here -
I know this is an out of season remark and all good liberals should be both distancing themselves from corrupt Rep. William Jefferson and mocking the GOP leadership for suddenly taking issue with the problem of executive branch overreach under circumstances that appear designed to make it easier for congressmen to take bribes, but Dennis Hastert and the other congressional leaders are right on the merits here.

There's a reason why security for Congress (and the Supreme Court) is provided neither by the Secret Service, nor by the FBI, nor by the DC Police Department, but rather by a special Capitol Police Department (or Supreme Court PD for the SCOTUS). This is also why the Constitution stipulates that members "shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place." There's a real separation of powers principle at stake here; the executive branch is not supposed to be charged with policing the behavior of the members of other branches of government. I'll shed no tears for Jefferson, but this is not unlike if the Bush administration were to use an illegal secret wiretap to catch an actual terrorist.

Now, of course, the flipside of this dynamic is that the legislative branch is supposed to police its own members. The House can vote to expel people for misconduct. The House has an ethics committee precisely because it's supposed to police its members. When push comes to shove in separation of powers cases, the executive always has the preponderance of power on its side. The only way to maintain the privileges of the Congress is for public opinion to support Congress. That's simply not going to happen in this instance because Hastert and the rest of the leadership have made it eminently clear that they're not going to keep corruption in check if left to their own devices. Virtually nobody respects Congress as an institution, or the congressional leadership as individuals at this point, and nobody should. So you get what we had here last week; I don't like it any more than Hastert does, but it wouldn't have happened if he'd been doing his job.
It's complicated. Or it's about the right of the president to have his agencies keep congress in line.

And late in the day, this -
The Speaker of the House of Representatives, Dennis Hastert, is under investigation by the FBI, which is seeking to determine his role in an ongoing public corruption probe into members of Congress, ABC News has learned from high level official sources.

Federal officials say the information implicating Hastert was developed from convicted lobbyists who are now cooperating with the government.

Part of the investigation involves a letter Hastert wrote three years ago, urging the Secretary of the Interior to block a casino on an Indian reservation that would have competed with other tribes.

The other tribes were represented by convicted lobbyist Jack Abramoff who reportedly has provided details of his dealings with Hastert as part of his plea agreement with the government.

The letter was written shortly after a fund-raiser for Hastert at a restaurant owned by Abramoff. Abramoff and his clients contributed more than $26,000 at the time.
Hastert shouldn't have complained to the president personally the day before? No, just a coincidence.

Okay, the issue is authority. Sometimes daddy has to assert his authority, even if he's wrong, just because authority is important. Everyone knows that. This may be "a radical redistribution of power within Washington" as the historian from Boston calls it, but it's all family dynamics.

There is that funny, minor movie, Matilda, directed by Danny DeVito, and the father's line in the film, disciplining his grade school daughter - "I'm smart; you're dumb. I'm big; you're little. And there's nothing you can do about it." He says that a lot. It doesn't work out so well for him.

"Happy families are all alike; every unhappy family is unhappy in its own way." - Leo Tolstoy, Anna Karenina, Chapter 1, the very first line...

It's too bad there is so much the government should be doing. But we get this.

Posted by Alan at 23:23 PDT | Post Comment | Permalink
Updated: Thursday, 25 May 2006 06:44 PDT home

Tuesday, 23 May 2006
Participatory Democracy: Start With a False Premise
Topic: Backgrounder

Participatory Democracy: Start With a False Premise

The false premise in question, these days, seems to be that anyone other than "the decider" get a say in things. May 14, 2006, in Tautology and Royalty, there was an extensive survey of the speciousness of the idea that when it comes to decisions about what we do as a nation has much to do with laws the congress enacts, the courts that rule on the application of those laws, what we vote for and public opinion in general. The executive branch says what the president decides is what counts, telling us that we've all really misunderstood the constitution all these years. He alone has the final say.

Thus the now famous signing statements -
Dec. 30, 2005: US interrogators cannot torture prisoners or otherwise subject them to cruel, inhuman, and degrading treatment.

Bush's signing statement: The president, as commander in chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks.

Dec. 30: When requested, scientific information ''prepared by government researchers and scientists shall be transmitted [to Congress] uncensored and without delay."

Bush's signing statement: The president can tell researchers to withhold any information from Congress if he decides its disclosure could impair foreign relations, national security, or the workings of the executive branch.

Dec. 23, 2004: Forbids US troops in Colombia from participating in any combat against rebels, except in cases of self-defense. Caps the number of US troops allowed in Colombia at 800.

Bush's signing statement: Only the president, as commander in chief, can place restrictions on the use of US armed forces, so the executive branch will construe the law ''as advisory in nature."
And on it goes. The Attorney General on national television suggests locking up journalists who report what they're told (video here) - and, yes, they do report what seems to be quite illegal and troubling, but much of it is, after all, classified. You don't reveal what's classified.

The amount of classified information, much of it previously available, has probably tripled now, but then, you have to trust them that it all should now be classified, as they have our best interests in mind (our safety) and say no one should question their good intentions. What other motive for shutting down access to even the most innocuous information could they have? They're not evil, power-mad people, just making sure we're all safe. If you think differently you must be one of those tin-foil hate conspiracy nuts. Everyone knows they're just doing their best to keep us safe.

That telephone business? The president himself said in a speech in Buffalo last year that no one's phone would be tapped without a FISA warrant. Then they said the FISA law really didn't apply if you thought about things carefully, then told us they only checked in on al Qaeda calls to and from the United States without warrants. If you're not al Qaeda no one is checking. So relax. Then they said, well, they did track other purely domestic calls without warrants, but they were all "terrorism related" somehow, but they couldn't explain how they knew as that was classified. Then there was no denial that they've collected most all phone records of everyone for the last four years and they've got banks of computers scanning them all for suspicious patterns. Just about all phone calls are included. And there is no oversight of any of that, and certainly no warrants. But no one is listening in on any particular call, unless the algorithm makes the big computers beep and gurgle, so what's the problem? Well, it's one "not quite what we said" after another. You can see why the Attorney General might want to lock up journalists. They undermine the trust we should have that this is all just fine.

In that tautology and royalty item there was, in the middle of all the little details, this - the Justice Department's Office of Professional Responsibility said that it couldn't investigate the role Justice Department lawyers played in the NSA's warrantless spying program because the Bush administration refused to give investigators the necessary security clearances. The Justice Department's Office of Professional Responsibility just up and quit the effort. What would be the point?

Tuesday, May 23, 2006, it happened again, but this time it was the FCC -
WASHINGTON, May 23 (Reuters) - The U.S. Federal Communications Commission will not pursue complaints about a spy agency's access to millions of telephone records because it cannot obtain classified material, the FCC's chairman said in a letter released on Tuesday.

Rep. Edward Markey, a Massachusetts Democrat, had asked communications regulators to investigate a newspaper report that AT&T Inc., Verizon Communications and BellSouth Corp. gave access to and turned over call records to help the National Security Agency fight terrorists.

"The classified nature of the NSA's activities makes us unable to investigate the alleged violations," FCC Chairman Kevin Martin said in the May 22 letter to Markey.
The FCC Chairman, Kevin Martin, used to be one of the Bush-Cheney campaign lawyers (think Florida recount, 2000), before he got this plum appointment. He says members of the FCC "take very seriously our charge to faithfully implement the nation's laws, including our authority to investigate potential violations of the Communications Act." But what can you do? The decider got his advice and classified it all at such a high level that even his own FCC just has to trust him. This is curious.

A logical reaction here - "So if the NSA won't allow the Justice Department to investigate, and the FCC won't even try, where does that leave us? Who polices the police?"

It seems to be a matter of trust, doesn't it? It's not just congress and the courts who must back off. The administration's own subordinate agencies have to back off.

The White House runs a tight ship. The circle of those who know and those who decide is very small indeed, just a few people. The idea seems to be that we chose this way of doing business in the last election (and maybe the one before it), so if you have a problem with any of it, in 2008 you get a chance to try something else, if more than half of the nation agrees with you and you can trick the new electronic voting machines into recording the vote you cast. Until then? Back off.

But people do persist in thinking they have some say in any of this, as is this from Kevin Drum in the Washington Monthly - a challenge to those who seem to have problems with the warrantless telephone scans. It's a bit of a thought experiment -
The NSA spying program raises plenty of sensitive issues, but at least one of them hasn't received the close scrutiny it deserves: it's fundamentally a system for identifying criminals by statistical analysis. Americans need to come to grips with whether they approve of this.

Take a different, but equally incendiary example. Suppose that we could semi-reliably create a statistical portrait of child molesters: their age, geographical location, gender, and calling and buying patterns. Suppose they tend to rent certain kinds of videos, make phone calls to certain kinds of chat lines, and call up other known child molesters.

Needless to say, the FBI could track these patterns using the same methods as the NSA and then exploit the results to create lists of "possible child molesters." And it might work. But would we be OK with the FBI tapping someone's phone just because they fit a statistical profile? Or staking out their house? Or investigating their friends?

And if we can do it for suspected terrorists and child molesters, how about tax evaders and unlicensed gun owners? Can we tap their phones too because they're the "kind of person" who might be breaking the law? Should a court grant a search warrant based on a statistical pattern rather than a showing of specific fact?

And if not, why not? After all, if you're not doing anything wrong, why would you object to being investigated? And if the statistical patterns just happen to target lots of wealthy Republicans or rural white gun collectors - well, that's how the cookie crumbles. If that's what the profiling turns up, then that's what the profiling turns up.

Any problems with that?
Well, the meta-problem is in this - "Americans need to come to grips with whether they approve of this." What Americans approve or disapprove doesn't really matter much, does it? If they disapprove, what are they going to do about it? There's not a thing possible now.

But say that was not so (or say that were not so, if you're one of those hopeful people who prefer the subjunctive mode). Grant the premise is that identifying criminals by statistical analysis is possible. Then what? Take care of them? How? As in Spielberg's silly Tom Cruise film Minority Report, is there something fundamentally wrong in the state removing people, one way or another, for crimes they are likely to commit, or statistically almost certain to commit, without having committed any crime? The blurb from the film - "In the future, criminals are caught before the crimes they commit, but one of the officers in the special unit is accused of one such crime and sets out to prove his innocence."

This is a science fiction scenario - Spielberg's film is based on a short story by Phillip K. Dick, and Asimov was in the very same territory in his Foundation trilogy. What do the folks at the White House read these days? They took that stuff seriously?

Well, the president himself turned to the author of Jurassic Park once, as noted here - "Fred Barnes recalls a visit to the White House last year by Michael Crichton, whose 2004 best-selling novel, 'State of Fear,' suggests that global warming is an unproven theory and an overstated threat."

The president may not be much of a reader, but he does read interesting stuff.

Grant the premise though, and ask yourself if you'd vote to change hundreds of years of legal precedent - the law only comes for you for what you do, not what you might do - because statistical analysis has become really good now. What's wrong with preventing a crime like a murder, as in the movie, or terrorist attack, as with the NSA pattern analysis of those billion or more phone records? You say there was no crime? The statistics say it's pretty much certain there would have been a crime.

Of course you see the real issue - who wrote the algorithms that drive the statistical analyses? Were they competent? Were they biased in any way, or careless, or unstable, or high on Twinkies, or jumpy from too much caffeine? Who cross-checked their work? Was the testing thorough at the code level and systems level? What about quality control and all the security stuff from version control to access control? Those of us who spent too many years in the systems industry may be more wary than the president and the president's men. But then, none of us is "the decider."

Drum follows up here saying that it may be too late to worry about all that, as he notes this from Noah Shachtman in Defense Tech -
The template, officials say, was created from a secret database of phone call records collected by the spy agency. It has been used since 9/11 to identify calling patterns that indicate possible terrorist activity. Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan.
Science fiction becomes science fact, or possible fact. No one is checking on flurries of calls to domestic numbers from Jakarta or Addis Ababa, or Munich? Who developed this template? He or she doesn't know narrowly fixing the geography masses things up, or at least opens big holes? Effective systems don't "think small." Any coder knows what you design will not account for what you don't expect, and the trick is, always, do your best not to limit yourself, on purpose, by your assumptions about what the users will do, or what data are churned out in the results. It can get tricky. Something you don't expect always bites you in the ass.

And Drum also digs up a quote from First Amendment lawyer Floyd Abrams, here, on the real problem, or the overarching one. Abrams advises the feds -
We basically said if you want to engage in data mining, which we said was a very good way to gather information to fight terrorism, you should go to the FISA court to get permission. You should go to the court established by Congress and get an OK from the court to do so, and if - if you didn't think that was the right way to do it, you ought to go to Congress and get them to give you more authority to go to that court and get permission.
Yeah, but they said the FISA court, and any law like that, doesn't matter.

The news from Germany, the same day, was that they went the other way, with this from Germany's highest court -
In a decision made public today, the justices stated that foreign policy tensions or a collective threat level such as after the attacks of 9/11/01 do not suffice to permit the dragnet/grid/screen [i.e. data mining] searches... The justices found that officials [seeking to do data-mining] must have put forward concrete grounds to believe there will be foreseeable attacks in Germany.
No, no, no - the Germans gave us the fascist police state, perfected in the former East Germany. What's this role-reversal crap, with us sifting though everybody's everything, looking to get the goods on someone - we don't know who, but we'll get them before they do bad things? The irony is just sad.

Drum's thoughts -
The Bush administration can't keep this out of the courts forever, and if they continue to refuse to ask Congress to modify the law, there's a good chance the entire program will get tossed out eventually.

... Computer-based searches might very well be an effective way of tracking down terrorists. They might also be an effective way of tracking down lots of other criminals. But if that's the case, Congress and the courts need to set down clear guidelines and clear oversight for how it can - and can't - be used. The executive branch can't be allowed to decide unilaterally what's legal and what isn't.

The implications of this stuff are pretty far reaching. The American public and its representatives need to stop hiding from it and decide exactly how far they want it to go.
Like that matters now?

Posted by Alan at 23:18 PDT | Post Comment | Permalink
Updated: Wednesday, 24 May 2006 07:59 PDT home

Monday, 22 May 2006
Key Players: Who's Your Daddy?
Topic: Couldn't be so...

Key Players: Who's Your Daddy?

The heads-up came via Wonkette here -
US News and World Report having searched far and wide, has found you a new enemy. They heard your cries - Scooter Libby's been caught, Karl Rove's proved to be useless at anything besides barely winning presidential elections, Dick Cheney's been too ridiculous to take seriously ever since he shot a guy in the face, Rice is too diplomatic, Gonzales not as creepy as Ashcroft, and George W. Bush is still George W. Bush. So who to hate? Who to insist is the sinister power behind the throne? Who's the devious, secretive mastermind? Apparently, it's David Addington. You know David Addington, right? Cheney's lawyer? Has a beard? Took Scooter's job?

Well, he's responsible for just about everything. Seriously. Torture, the Niger thing, Plamegate, he's all over the place. Totes evil. Nine damn pages of evil!
But, but, but... this not a new bad guy, if he is that. A scan of what has appeared in these pages finds six items that refer to David Addington and how he works.

Back in February here (see section three), we find he was central, as Newsweek had reported, in the resignation of the administration's deputy attorney general, a fellow named John Comey, and another assistant attorney general - they thought he was asking them to do what was clearly illegal and they just wouldn't do it. Newsweek at the time called it a palace revolt, and from here in Hollywood it looked like it would make a great movie -
The bad guys are really bad. The evil mastermind is Vice President Cheney (think Professor James Moriarty as played by Sidney Greenstreet, without the charm). His "muscle" - the enforcer - is his former counsel, David Addington, the fellow who is now his chief of staff, having been given Scooter Libby's job when Scooter was indicted on multiple felonies - short-tempered, nasty and smart as a whip. You don't mess with this Addington guy. Lurking in the background is John Yoo, the administration legal advisor, scribbling away at legal opinions late at night, giggling manically - ah, we can justify torture as long as the pain only simulates organ failure, and if you think real hard, the constitution does imply the president can break any law he wants! Think an Asian Peter Lorre.
And Newsweek had said this -
The chief opponent of the rebels, though by no means the only one, was an equally obscure, but immensely powerful, lawyer-bureaucrat. Intense, workaholic (even by insane White House standards), David Addington, formerly counsel, now chief of staff to the vice president, is a righteous, ascetic public servant.

... He is hardly anonymous inside the government, however. Presidential appointees quail before his volcanic temper, backed by assiduous preparation and acid sarcasm.

... Addington and a small band of like-minded lawyers set about providing that cover - a legal argument that the power of the president in time of war was virtually untrammeled. One of Addington's first jobs had been to draft a presidential order establishing military commissions to try unlawful combatants - terrorists caught on the global battlefield. The normal "interagency process" - getting agreement from lawyers at Defense, State, the intelligence agencies and so forth - proved glacial, as usual. So Addington, working with fellow conservative Deputy White House Counsel Timothy Flanigan, came up with a solution: cut virtually everyone else out.
That's a role an actor could really sink his teeth into. And US News and World Report is just getting around to him?

And two weeks ago in the New York Times there was this -
In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.
And this -
If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said. He added: "That's not what the N.S.A. lawyers think."
All that was discussed in these pages here, so this is not news. You just have to pay attention.

Wikipedia has a brief profile of Addington here with links to five or six major news items on the guy. The only detail of the entry that jumps out, for those of us who spent endless days in the warm and sleepy classrooms of the would-be Harvard of the South, is that this fellow is an honors graduate of the law school at Duke University. Who else got their law degree there? Richard Nixon. Angela Davis. Something odd goes on down there, in addition to the antics of the lacrosse team this year. The place creates some strange people, or nurtures them so they become all that they maybe shouldn't be. That's probably true of the rest of us from the other graduate programs of course.

In any event, the US News and World Report item that's all the buzz is a bit of filling in the corners, as the Hobbits say. It's by Chitra Ragavan and called Cheney's Guy, with the subhead - "He's barely known outside Washington's corridors of power, but David Addington is the most powerful man you've never heard of. Here's why."

The "why" has a lot to do with the presidential signing statements, those legal memoranda "in which the president and his lawyers take legislation sent over by Congress and put their stamp on it by saying what they believe the measure does and doesn't allow." Much has been said on that. Bush has signed seven hundred fifty, while former presidents made do with two or three a year. Addington seems to be the man who is behind that way of doing business.

And as for the president's authorization of, as Ragavan lists, military tribunals for terrorism suspects, secret detentions and aggressive interrogations of "unlawful enemy combatants," and warrantless electronic surveillance of terrorism suspects on US soil, including American citizens? Addington's idea, pretty much, as in "much of the criticism that has been directed at these measures has focused on Vice President Dick Cheney. In fact, however, it is a largely anonymous government lawyer, who now serves as Cheney's chief of staff, who has served as the ramrod driving the Bush administration's most secretive and controversial counterterrorism measures through the bureaucracy."

It goes like this -
Name one significant action taken by the Bush White House after 9/11, and chances are better than even that Addington had a role in it. So ubiquitous is he that one Justice Department lawyer calls Addington "Adam Smith's invisible hand" in national security matters. The White House assertion - later proved false - that Saddam Hussein tried to buy nuclear precursors from Niger to advance a banned weapons program? Addington helped vet that. The effort to discredit a former ambassador who publicly dismissed the Niger claim as baseless, by disclosing the name of his wife, a covert CIA officer? Addington was right in the middle of that, too, though he has not been accused of wrongdoing.
He's been busy.

And here's the core -
Addington began his government career 25 years ago, after graduating summa cum laude from the Georgetown University School of Foreign Service and with honors from the Duke University Law School. He started out as an assistant general counsel at the CIA and soon moved to Capitol Hill and served as the minority's counsel and chief counsel on the House intelligence and foreign affairs committees. There, he began his long association with Cheney, then a Wyoming congressman and member of the intelligence panel. Addington and Cheney - who served as President Gerald Ford's chief of staff - shared the same grim worldview: Watergate, Vietnam, and later, the Iran-contra scandal during President Reagan's second term had all dangerously eroded the powers of the presidency. "Addington believes that through sloppy lawyering as much as through politics," says former National Security Council deputy legal adviser Bryan Cunningham, "the executive branch has acquiesced to encroachment of its constitutional authority by Congress."

When Cheney became ranking Republican on the House select committee investigating the Iran-contra scandal, Addington helped write the strongly worded minority report that said the law barring aid to the Nicaraguan contras was unconstitutional because it improperly impinged on the president's power. The argument would become the cornerstone of the Bush administration's post-9/11 policies.

... Addington is a strong adherent of the so-called unitary executive theory, which is cited frequently and prominently in many of Bush's legislative signing statements. The theory holds that the president is solely in charge of the executive branch and that Congress, therefore, can't tell him how to carry out his executive functions, whom to pick for what jobs, or through whom he must report to Congress. Executive power, separation of power, a tight chain of command, and protecting the unitary executive - those became the guide stars of Addington's legal universe.
It seems the constitutional law classes at Duke aren't much like the ones that the late Peter Rodino taught at Seton Hall.

There's a lot too on political infighting, as in castrating the JAG guys at the Pentagon, but that's a bit arcane. It came down to the business with military tribunals and detainee treatment policies. They thought the rules should be followed. They lost.

What to of Addington himself? There's this -
According to critics, the reason Addington is such an effective bureaucratic infighter is that he's an intellectual bully. "David can be less than civilized," one official says. "He can be extremely unpleasant." Others say it's because Addington is a superb lawyer and a skilled debater who arms himself with a mind-numbing command of the facts and the law. Still others attribute Addington's power to the outsize influence of Cheney. "Addington does a very good job," says a former justice official who has observed him, "of harnessing the power of the vice president."

But it's a subtle kind of harnessing. Addington, according to current and former colleagues, rarely if ever invokes Cheney's name. An administration official says that it's sometimes unclear whether Addington is even consulting the vice president. But Cheney is always the elephant in the room. "People perceive that this is the real power center," says attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, "and if you cross them, they will destroy you."
But only Cheney carries a shotgun.

There's also a long section on Cheney refusing to release documents relating to that energy task force that he headed way back when. Addington fought that one all the way to the Supreme Court, and won.

And as for the post 9/11 business, there's this -
In the months after the attacks, the White House made three crucial decisions: to keep Congress out of the loop on major policy decisions like the creation of military commissions, to interpret laws as narrowly as possible, and to confine decision making to a small, trusted circle. "They've been so reluctant to seek out different views," says one former official. "It's not just Addington. It's how this administration works. It's a very narrow, tight group."

That core group consisted of Bush's counsel and now attorney general, Alberto Gonzales; his deputies, Timothy Flanigan and David Leitch; the Pentagon's influential general counsel, William Haynes; and a young attorney named John Yoo, who worked in the Justice Department's Office of Legal Counsel.

Whether or not he became the de facto leader of the group, as some administration officials say, Addington's involvement made for a formidable team. "You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power," says a former Justice Department official. "If you suggested anything less, you were considered a wimp."
So we get the "no wimps here" crowd doing their thing - deciding how wide the war should be, what to do with anyone detained, even American citizens, how to handle congress and the court, bypassing this law or that treaty, precisely defining what is not really torture but just aggressive questioning that only simulates death or major organ failure (the famous Bybee memo). Addington has his hand in it all.

The items ends with this -
Even his toughest critics in the administration say Addington believes utterly that he is acting in good faith. "He thinks he's on the side of the angels," says a former Justice Department official. "And that's what makes it so scary."
And so it is, but it's not news, just all the scattered detail collected and arranged in a well-written nine pages, and now you don't have to read the whole thing. But you could.

Or you could read Francis Wilkinson's cover story for the June issue of American Prospect, available on the web Monday, May 22nd here, arguing the "no wimps here" crowd in the White House has met its natural limit -
"Terrorist attacks are not caused by the use of strength; they are invited by the perception of weakness."

President George W. Bush has made that statement many times. So has Vice President Dick Cheney. And Defense Secretary Donald Rumsfeld. Multiple principals endlessly repeating themselves -- that's the mark of a premium White House talking point. Or in this case, a kind of gospel - poll-tested, market-driven, swing-voter-approved, and sanctioned by Kardinal Rove himself.

Like its religious counterpart, political liturgy does not reward literal interpretation. The "weakness" that invites our destruction is not a measurable, structural weakness of nations. It is more insidious than that. It is the weakness of men. Certain men of uncertain will. Unmanly men. Men who lack the grit and determination to command other men to expend their grit and determination in battle. Girly men. Men who snuggle before the domestic hearth of the Mommy Party. Men who fuss and fret over Mother Nature (when what she really needs is a good drilling). Men who wish to restrain the natural urges of natural men, to smother initiative and stifle competition beneath the suffocating pleats and ruffles of the Nanny State. Men who are effete. Men who cut and run. Men without guns or guts or glory. Men whose weakness abases and undermines the rugged individualism and frontier can-do that made the United States Numero Uno.

We have met the enemy. And he adores Judy Garland.
Yeah, yeah. So we've been told.

This item is also long but has some choice nuggets of snark -
No matter what ideological hue he projects, whether conservatism, corporatism, idealistic imperialism, or his studied tracings of Ronald Reagan's rugged sentimentalism, Bush has made manliness the centerpiece of his persona and his politics. Bush's flight-deck performance aboard the U.S.S. Abraham Lincoln - "Mission Accomplished" - long ago became Esperanto for "hubris." But as psychologist Stephen J. Ducat noted in his provocative book on masculine anxiety, The Wimp Factor, the event began as a ballsy celebration, first and foremost, of Bush's manhood. Observing the President's flight suit, which expressly accentuated his crotch, G. Gordon Liddy, the right's uncensored id, noted: "It makes the best of his manly characteristic."

We are in our sixth year of government by gonads. Through conscious, concerted, disciplined, and relentless effort, Bush and his party have succeeded in cowing critics and defeating Democrats by advancing images of, and insinuations about, manliness in the public sphere. In the Republican political schemata, this is a man's world. Men have made it dangerous. And only men - real Republican men - can make it safe again.
Government by gonads. Clever. Too bad it's true.

As in this -
For three straight elections, from 2000 through 2004, Republicans have outmanned the Democrats. Al Gore was dismissed as a hectoring schoolmarm, John Kerry as a flaky croissant, a kept man, a tin soldier. In between, Bush made no bones about the price of Democratic pusillanimity: Under its brief Democratic majority, he said, the U.S. Senate was simply "not interested in the security of the American people." And with another Election Day approaching, and their party depleted of both issues and credibility, the Republicans will no doubt seek to emasculate the opposition once again.
Of course they will. That's what they do. But not this time? Maybe -
... the testosterone is no longer flowing like $75 crude. Multiple mission failures have exposed Republican talking points as so much bluster. To underscore the farce, the gods of metaphor illustrated the tragic potential of power placed in irresponsible hands; after his beer-and-hunting nightmare in Texas, Vice-President Bottom awoke with an ass's head on his shoulders.

Now, rising out of the broken-back shamble of Republican machismo, is a veritable platoon of Democratic men. They have exceptionally macho profiles and an appetite for power. They are politically diverse but united in their contempt for the bully in the pulpit. They are fed up with schoolyard put-downs. They are disgusted by incompetence and callousness. And they are running for Congress.
The rest is a survey of all the vets running for office as Democrats. Attacking them all isn't going to work. There are more than fifty of them. Oops.

But then, the man at the top may not be able to resist trying to attack them all -
When Bush parades to a podium, his arms cantilevered to the side to make room for imaginary mass and muscle, he looks like a freshman swimming upstream against the hormonal currents of a high-school hallway. It's not enough for Bush to impress upon you the fact that he is leader of the world's sole superpower. He also wants you to think he can beat you up.

However, Bush is also a complicated case. Eager to telegraph his masculinity through walk and talk and posture, he nonetheless appears personally unthreatened by women, blacks, and gays, an immunity that distinguishes him from his culturally reactive, ever-anxious political base. He allowed himself to be tutored by a younger black woman - not in the domestic rigmarole of the welfare state but in the manly crucible of foreign affairs, where presidencies are made or broken. (He then let it be known he had been tutored by her and eventually named her secretary of state.) Of equal note, Bush's forays into homophobia are cynically electoral, not emotionally authentic; as soon as the polls close, the antigay claptrap is put in storage until it's needed to rouse the base next season. The biennial denigration of a few million Americans is nothing personal - just the price of power.

Much has been made of Bush's Oedipal drama over Iraq. But the father's legacy is evident everywhere - certainly in W's equation of masculine aggression with political survival. Before he became leader of the free world, Bush Sr. was a sports star, a war hero, a successful wildcatter in the rough and tumble drilling fields of west Texas. Yet he was tarred as a "wimp," depicted in political cartoons as an old biddy or, in Doonesbury, as so light in his loafers that he constituted no more than an asterisk.

If the father was too wimpy to master the arena, what of the son? Cheerleader, draft evader, oil business failure, he fell short of the father on nearly every masculine measure. For George W. Bush, no amount of aggression or masculine posing could be too much. To prevail in a brutal world of men like Karl Rove, W. was going to have to be one hell of a hard-ass.

The father's demise surely shaped the son's rise. But the raw material was there to be molded. Bush's college yearbook contains a photograph of him playing rugby. His left arm is wrapped around the neck of an opposing player, who is carrying the ball. His right hand is in a fist and appears to be sucker-punching his opponent in the face. The caption reads: "George Bush delivers illegal, but gratifying right hook to opposing ball carrier." A portrait of the cheap-shot artist as a young man.
Yep. The photo is here (bottom of the page). That's what we've had.

So Wilkinson is cheering on war vets running as Democrats, and invoking FDR -
Go get 'em boys. I hope every one of those guys - even those in races that are positively unwinnable - wrestles his Republican opponent to the ground and roars, asserting his Democratic manhood. We need the catharsis.

But after having wallowed in our fear these last five years, maybe what we need next are leaders who will raise us above it. The one man who taught us better than any other to conquer fear was no Governor Terminator. His muscles were unimpressive. He had no physical swagger to him at all. His military experience was a desk job. He wore no cowboy gear. He smoked cigarettes not like a Marlboro Man but filtered through a slender, feminine holder that could have been a prop from the Follies Bergere. He didn't promise to protect us. He made us believe we could protect ourselves - from the violence of fascism and the vicissitudes of capitalism alike. And he handed us the tools to do the job. We built the better part of the American century on the back of an aristocratic, polio-addled cripple. Now that was a man.
But he'd be swift-boated today. Ann Coulter would laugh at him. But maybe times are changing. Addington and Cheney and all the rest who never saw the inside of a uniform, sitting around laughing at wimps, many of whom served, could be replaced one day by those who know real wimps when the see them, sitting around laughing at "wimps." No more draft-dodging former college cheerleaders? That's a thought.


On a related note, one suspects that David Addington has a hand in the sudden in the sudden explosion of successful efforts to stop all kinds of embarrassing legal actions by invoking the "state secrets" ploy, as Henry Lanman explains here (Monday, May 22, SLATE.COM).

Lanman, a New York attorney, opens with what was discussed in these pages last week, and his summary is better -
Last Thursday, a federal court in Virginia threw out a lawsuit against the government that had been brought by a German citizen named Khalid el-Masri. El-Masri alleged that the government had violated U.S. law when - as part if its "extraordinary rendition" program - it authorized his abduction, drugging, confinement, and torture. His captors allegedly shuttled him on clandestine flights to and from places like Kabul, Baghdad, and Skopje, Macedonia, during the five months of his detention. He was released only when the government realized it had kidnapped the wrong man. El-Masri has substantial evidence to back up his story, and German prosecutors have verified much of it. And, while the government has not confirmed that it took el-Masri as part of its extraordinary rendition program, it has not shied away from admitting the program exists; it has in fact trumpeted it as an effective tool in the "war on terror." So why then was el-Masri's lawsuit thrown out? Because the judge accepted the government's claim that any alleged activities relating to el-Masri were "state secrets."

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government - tort suits, breach of contract claims - can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as "state secrets."

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases.

Maybe that hypothetical Los Alamos plaintiff couldn't have discovered exactly what was in the box that he tripped over. But, generally speaking, if the lawsuit could have proceeded without his knowing the contents of that box, it would.
Now thing have changed. The idea is not to exclude evidence, it's to dismiss the whole suit. And it seems to be working. Addington. The full discussion, with precedents, is worth a read.

The most interesting case is this -
Take, for instance, Hepting v. AT&T, which arises out of the NSA's warrantless wiretap program. It's a class-action suit, brought on behalf AT&T's customers who claim that the company violated various laws when it allegedly gave the NSA access to its facilities and databases. As part of their case, the plaintiffs have submitted 140 pages of technical documents that, they say, lay out how AT&T's collaboration with the NSA works. The government doesn't claim that these documents are classified. Yet when the New York Times - which also has copies of these documents - showed them to telecommunications and computer security experts, these experts concluded that the documents themselves demonstrate that "AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company's network." And, of course, the president himself has acknowledged the existence of the warrantless surveillance program.

That makes it awfully hard to understand how the core claims in this case - basically that the program exists and that AT&T participates in it - are so top-secret that, as the administration has claimed in its papers, the whole case must be dismissed before it gets started. Of course, it's not unimaginable that real state secrets could arise in this lawsuit, but if they did, there's no reason to think they couldn't be handled the same way such issues have been in the past - as discrete evidentiary matters. However, even this level of skepticism from the judiciary may be too much to ask; the court hearing el-Masri's case just rejected essentially the same argument.

Despite the burgeoning use of this privilege and the way it's been used to gut entire cases, the most disturbing aspect of the Bush administration's expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration's broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists - if the administration continues to broadly assert this privilege and courts continue to accept it - the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the "war on terror" violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it's a secret.
Addington. Nixon's Duke Law School. But then, people can fight back, as in this, news that broke after Lanman had written his piece -
An online news outlet published papers Monday that it said document AT&T's alleged role in a government effort to spy on Internet traffic.

The internal company documents and other materials were assembled by Mark Klein, a former AT&T technician. Klein also gave internal AT&T documents earlier this year to privacy advocate Electronic Frontier Foundation, which sued the telecommunications giant challenging the Bush administration's secretive domestic surveillance program.

It wasn't clear whether the documents published Monday by Wired News were the same as those at the heart of the lawsuit against AT&T. Wired News acknowledged it could not be sure, because the federal judge presiding over the case has sealed the records.

But Wired News said the AT&T documents "appear to be excerpted from material that was later filed in the lawsuit under seal."

The papers are a blend of corporate blueprints and Klein's own interpretation of them. They seem to provide a detailed account of how AT&T used "splitters" to tap into gigantic fiber-optic lines that carry Internet traffic.
What follows is a bit on splitters and routers and switches and hubs - geek stuff - but more basically it seems someone doesn't want to accept the "daddy state" where you're supposed to shut up and let the real men do things to protect you. Addington may very well have proposed using the "state secrets" thing as much as possible. It just doesn't work when the cat's out of the bag. The battles over "shut up, you're not supposed to know" are just beginning. Some think we live in an open democracy. This should be fun.

Posted by Alan at 22:33 PDT | Post Comment | Permalink
Updated: Monday, 22 May 2006 22:51 PDT home

Sunday, 21 May 2006
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The new issue of Just Above Sunset, the weekly magazine-format site that is parent to this daily web log, is now online. This is Volume 4, Number 21 for the week of May 21, 2006.

This week, four extended commentaries on where we are now, the first on the raging immigration debate. The second is on the trouble with finding context for the news, with putting things in perspective. That can get quite wild. The third? We seem to be living in a new America, and the array of evidence for that is extensive and a tad distressing. Finally, if you were a master marketing consultant how would you advise the White House as the polls reach new lows with each survey, and everyone, left and right, seems to have a problem with how things are going? The consultant discussed here has some wild ideas.

There are two items from the International Desk - Our Man in Paris, Ric Erickson, editor of MetropoleParis, returns with some night photography of the now customary Friday night madness, those thousands of rollerblade folks in the city streets. And there are notes on the Eurovision Song Contest, as there are each year in these pages, but this year there's news NBC is planning an American version of this cheesy thing. By the way, the Goth band from Finland won this year, those guys in the latex Klingon outfits.

In the Hollywood section there's a visit to the famous Hollywood studio no tourist ever sees. It's one of those places where the real work of film and television has been done since 1919, and if you're not in the industry cannot get in. And there are two Ferraris for you consideration, in local context, with photographs.

Southern California Photography this week includes our default Giverny out here. The Orangerie museum in the Paris Tuileries gardens has just reopened with the Monet water lilies, and here you'll find our real life version at the lotus pools at Will Rogers Memorial Park on Sunset Boulevard in Beverly Hills, at the north end of Rodeo Drive. It'll do. And there are new nature photos - egrets and more at the shore, in detail. And the botanicals are here again for those who insist, many from a hidden park in the mountains north of Malibu.

Our friend from Texas brings us more of the weird of course, and the quotes this week will get you thinking in new ways about the whole current immigration debate.

Direct links to specific pages -

Extended Observations on Current Events ______________________

Reframing: Pleasing Everyone, Pleasing No One
Context: Spinning Spinoza and Evil Albinos
Notes on the New America
Marketing: What George Bush Could Learn from the Consultant from France

The International Desk ______________________

Our Man in Paris: Friday Night Photographs - La rando du vendredi à Paris...
Pop Culture: A New European Import

Hollywood Matters ______________________

The Old Days: Pink, Blue, Green, Red
The Green Gumball
Wretched Excess: Another Ferrari in Malibu

Southern California Photography ______________________

Impressionism: Hollywood Nymphéas
Egrets in Context
Other Birds
Botanicals: Two Contrasting Settings

Quotes for the week of May 14, 2006 - We Are a Land of Immigrants

Posted by Alan at 15:05 PDT | Post Comment | Permalink

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