As seen from Just Above Sunset

Saturday, 17 December 2005

Topic: Breaking News

Saturday Showdown: The Illegal Is Justified

"The illegal we do immediately. The unconstitutional takes a little longer." - Henry Kissinger, The New York Times, October 28, 1973

Yes, you don't have to be a weatherman to know which way the wind is blowing.

Elsewhere, in The Founding Fathers Superceded by John C. Yoo, digging under the disquieting events of the past week - from revelations that the military is keeping files on domestic dissidents (even Quaker grandmothers), to the administration agreeing to the McCain effort to state, flat out, we will not torture anyone, anywhere, to the senate refusing to extend the Patriot Act because it asked us to give up just too many of our rights, to Friday's news that the president had secretly authorized the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power - one could see something was up. A basic conflict was brewing, and it had to do the legal theory that the administration felt allowed any action the president took to be legal, no matter what statutes were on the books.

This is basic stuff, and the voices saying, "Now wait a minute," multiplied.

John C. Yoo was the Justice Department attorney who, from 2001 to 2003, provided the administration with the classified memoranda explaining why this "laws don't matter" approach was constitutional. As explained, that had two parts. The president's authority to override statute law derives from the 2001 congressional resolution authorizing the use of force to destroy al Qaida. Secondly, the congress, which passes laws, can only enforce them by either funding or not funding executive actions - they have no other legitimate power. As a corollary, the only other check on the executive's absolute power and autonomy comes every four years with the election of the president, where four years of unlimited authority are granted to the winner. It's an interesting theory.

In an email from Paris to here in Hollywood, Ric Erickson, editor of MetropoleParis, comments -

We survived 'voodoo' economics to get where we are - barely surviving. The question now is, can the United States survive Yoodoo law?

"The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government."

The axe cuts two ways. With the president having no authority over congress or the judiciary. Balances and checks. No branch more equal than any other.

"If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things."

This is saying that the constitutional theories of a political hack - Yoo - carry more legal weight than the judicial opinions of the Supreme Court of the United States. If so, why have a Supreme Court?

I've said it before - lawyers are going to live a long time, have whole careers, with this mess. But what do I know?

Well, Saturday, December 17th, discussion of this theory jumped from the world of academics and legal scholars, and comments on the web, to the mainstream, with Scott Shane in the New York Times offering Behind Power, One Principle as Bush Pushes Prerogatives - "A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency."

So it's out there now. Do we have a "constitutional crisis" on our hands? Maybe so.

Here's some detail on authorizing the National Security Agency (the NSA) to do domestic spying without bothering with warrants, ordering them to ignore a statute specifically regulating executive power (skim if you're not interested). From Daniel J. Solove there is this analysis -

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the government must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making ? 1802 unavailable.

FISA also has § 1844, which provides that "the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress." 50 U.S.C. § 1844. I don't know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.

Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. Thus far, however, the Bush Administration's "creative" interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as "creative" as Bill Clinton's interpretation of what "sex" is.

Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more "creativity."

President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law?

Saturday, December 17th he just said it was, so stuff it. Instead of the usual Saturday morning presidential address, usually taped the night before and carried here and there (and no one much listens to it), he gave the Saturday address live on national television, and he looked irritated, maybe angry. He was definitely in a bad mood. He said, yes, he had authorized the NSA to bypass the law, many times, and whoever leaked this to the Times was in deep trouble, and by the way, the senate blocking extension of the Patriot Act was irresponsible and dangerous and could kill us all or some such thing.

The Washington Post account of this curious out-of-tradition Saturday blast is here and the Associated Press version here -

President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.

... "This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.

... Appearing angry at times during his eight-minute address, Bush left no doubt that he will continue authorizing the program.

"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.

So that's that. In your face, wimps!

How about this -

This appears to me to be a true "line in the sand" moment for America, with a president openly and defiantly declaring himself ready to continue a program that legal scholars, members of Congress and - according to the Friday New York Times article that started this all - several NSA analysts themselves believe to be unconstitutional.

There appears to be no acknowledgement whatsoever of concerns voiced by critics of the program. There is the feeling in the air about all this - and perhaps it's just me - that we are being forced to a constitutional crisis by a president who no longer believes he needs to wear a mask to court public opinion. This reeks of raw will and power.

Well, it does bring matters to a head, doesn't it?

As for the legal theory underpinning this all, as noted in these pages, there are lots of implications. Josh Marshall here notes that this Yoo logic links back to the cave-in to McCain on banning torture - "By that reasoning the president must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper."

Yeah, lots of folks figured that out.

But here Marshall is just puzzled -

In his radio address today, discussing the NSA domestic wiretapping, the president said - "The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

How can this be true?

If I'm understanding this correctly, this program allowed the president to conduct warrantless wiretaps in cases where he could have conducted the same wiretaps with warrants by seeking a warrant from the FISA Court. If the wiretaps were against the "international communications of people with known links to al Qaeda and related terrorist organizations" then the FISA Court certainly would have issued the warrants.

So it's the same difference.

Is it? He could have got the warrants. Ordering the NSA to specifically not seek them is the "something else that is going on." It's a power thing, and his pride (and ego) are involved. That's where the anger comes from. He doesn't like limits. He's the president.

This is going to be interesting.

And two details deserve mention. In the Yoo item, there was a rundown on why the Times delayed publication of this NSA story - the right saying the Times published Friday to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out soon. And on the left folks were saying the Times delayed publication to make sure Bush was reelected in 2004 - some sort of plot by Judy Miller? Paul Farhi in the Washington Post here addresses the matter in great detail, including the internal battles at the Times to publish earlier.

Bob Patterson, columnist in these pages, says -

How very gallant of the New York Times to wait until after the "accountability moment called the 2004 elections."

How can we ever thank that bastion of journalistic integrity for their display of patriotism?

It's a lot more complicated than that.

Secondly, this business about the president by the Yoo reasoning must also be empowered to override the new law banning the use of torture, thus making the McCain Amendment truly a meaningless piece of paper, may be moot for an entirely different reason.

Lawmakers Back Use of Evidence Coerced From Detainees (NY Times) - "WASHINGTON, Dec. 16 - House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations."

As you recall, Britain's highest court recently ruled that intelligence extracted by torture is not admissible in any British court. It never has been, but the Blair government argued when someone else does it, not the British, there should be an exception. There may be really useful stuff in what was "extracted." Tony got slapped down, and he was not happy. (Discussed last week in these pages here.)

We're going the other way. Senator Lindsey Graham was pushing this. And is winning the day.

See this in Newsweek as lobbying was underway -

... the Bush administration may still secure something of a victory in the Graham bill. According to an amended draft of the measure being circulated Thursday among the sponsors, Graham has agreed to language that loosens the restrictions on terror evidence that's obtained through "coercive" interrogations that may occur in other countries. Whereas Graham's previous draft had forbidden the use of such evidence - in accordance with standard rules of military justice - the new draft says that it should be barred only "to the extent practicable." The latest bill language also now says that the "probative value" of evidence should be considered - in other words, whether the information is persuasive.

In theory, this would permit U.S. military tribunals to use evidence obtained through torture or abuse in the prisons of other countries. The new Graham draft also adds more restrictions on the rights of terror detainees to sue or launch an action against the U.S. government outside of a narrow appeals process.

Wes Hickman, a spokesman for Graham, said he had no immediate comment on the negotiations. However, a Republican Senate aide who spoke on condition that he would not be named conceded that new language had toughened the bill. "There was a clause in the original bill that said the [tribunals] had to exclude any statements that were the result of torture or coercion. Now that's been changed to a 'consideration' clause that says the tribunal board must take into account the source of the information."

He contended the change had been requested by military judge advocates general.

It passed.

As noted here the Graham amendment already strips detainees of their right to file for habeas corpus. The amendment adopted by the senate did allow detainees to appeal tribunal findings to the courts, "but that doesn't get at one of the most important functions of habeas corpus: the right to ask why you're being held when the government has either held no hearing at all, or held one and found you innocent."

Like it matters?

Yes, we are holding people who have been found innocent by tribunals. We don't know where to send them now. Any spare rooms at the White House?

Anyway, this seem to be the first time we have allowed "the fruits of torture" to be admissible in any venue. We're not like the Brits.

And the administration is sitting pretty.

Posted by Alan at 12:55 PST | Post Comment | Permalink
Updated: Saturday, 17 December 2005 12:59 PST home

Friday, 16 December 2005

Topic: Breaking News

Governance: The Founding Fathers Superceded by John C. Yoo

And just who is John C. Yoo? He's a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served as general counsel of the Senate Judiciary Committee, as a law clerk to Justice Clarence Thomas, and, from 2001 to 2003, as a deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice. Last year, Yoo acknowledged that he was the fellow who had written a particular memo while at the Justice Department - the one arguing that physical interrogations had to cause damage on the order of major organ failure before they were considered torture under American law, and although that was interesting and important, it really didn't matter much because the commander in chief was exempt from such laws.

The constitutional theory he espouses goes like this - neither the congress nor the judiciary (and by inference the laws they promulgate and interpret) have authority over an equal branch of government. The president, in the pursuit of his duties as president, is not subject to the laws. Citizens can offer their judgment of his performance once and only once, every four years at the ballot box.

This is the "constitutional assumption" underpinning much of what the White House approves as policy or action. Why else, when asked why no one had been held accountable for any errors in intelligence about the threat Iraq rally posed to us, the mistakes on the ground after we took over the place, the misjudgments regarding how we'd be "greeted" and the difficulties in reconstruction, there was this exchange, just after the election, with the Washington Post -

WP: Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

GWB: Well, we had an accountability moment, and that's called the 2004 election.

As Digby explains here, it's the Yoo reading of the constitution - the president has only one "accountability moment" while he is president. His re-election. Beyond that, he has been given a blank check. And that includes breaking the law since if the president does it then it's not illegal, the president being the executive branch that is not subject to any other branch of government. Congress has no right to abridge the president's war making powers. Its only constitutional remedy to a war with which they disagree is to deny funding.

It's all in Yoo's new book - The Powers of War and Peace (University of Chicago Press, October 2005).

You'll find a discussion of all this here from Christopher Shea in the Boston Globe - "In John Yoo's world, President Bush didn't need to ask Congress for permission to invade Iraq. And if the special forces captured a terrorist suspect who might know of an upcoming attack on the New York subway, Bush could order him placed on a torture rack - regardless of treaties the US has signed or whether Congress had passed laws banning torture."

The item explains Yoo's reasoning in some detail, and in historical perspective, and has some reactions - Michael J. Glennon, professor of international law at Tufts University's Fletcher School saying, ''Yoo concludes that for all intents and purposes we have an elected king." Lori Damrosch, a Columbia law professor, says the fact that President Bush sought congressional approval for the Iraq and Afghanistan wars, and that his father sought its blessing for the first Gulf War, shows that even they reject the Yoo position. Jane Stromseth, a professor of law at Georgetown, looking at our "founding documents" for support Yoo's position, comes up empty - ''The founders had a deep commitment to the idea that no one person should be able to take the country into war."

But Yoo is the man who has issued the key classified Justice Department legal opinions for the administration, and should anyone question what is going on, these can be used, behind closed doors, to argue whatever was done is constitutionally and legally just fine and dandy. If anything rises to arguments before the Supreme Court on whether the administration acted unconstitutionally here and there - as in obviously breaking the law - these can be trotted out to explain things.

Sorry for the long preamble, but this puts the events of Friday, December 16th, in context - Senate Rejects Extension of Patriot Act (AP) - "The Senate on Friday refused to reauthorize major portions of the USA Patriot Act after critics complained they infringed too much on Americans' privacy and liberty, dealing a huge defeat to the Bush administration and Republican leaders."

This was the same day the New York Times reported Bush Lets US Spy On Callers Without Courts. On the face of it, since wiretapping US citizens strictly requires a warrant, and they are easy to obtain quickly, and the president ordered the National Security Agency (NSA) to contact these wiretaps without involving any warrants, specifically telling the NSA not to involve any judge, panel or court, that's flat-out against the law. The Washington Post account is here Bush Authorized Domestic Spying.

As you see, the underlying conflict centers on what powers the chief executive and the executive branch has - what should be granted and what can just be assumed.

The sides line up, the traditionalists who think they understood Jefferson and the rest about the balance of powers in the constitution, and those who think Yoo's view on what Jefferson and the rest really meant is more compelling.

In this context too, as you recall, a few days earlier, this story broke - the Pentagon is spying on anti-war protesters right here at home. They say they're just trying to protect military bases from damage, but there was this -

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One "incident" included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald's National Salute to America's Heroes - a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: "US group exercising constitutional rights." Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense - yet they all remained in the database.

They're keeping a list.

This also is illegal and falls under the Posse Comitatus business from 1878 and came up with the FBI, not the military, back in the sixties, when the FBI was infiltrating peace demonstrations and assembling dossiers on John Lennon and stuff like that. Domestic spying and secret dossiers are a no-no. Exceptions can be made, but you show cause and get a warrant, or now you don't. The law reads that you do, but the argument is that such laws do not now apply to the executive branch.

You see there was the 1978 Foreign Intelligence Surveillance Act, passed after the FBI and other agencies got flack for spying on Americans. That law gives the government - with approval from a mysterious court panel in the Justice Department - the authority to conduct these covert wiretaps and surveillance of suspected terrorists and spies, even if they are citizens and here in the United States. But you had to ask.

Forget about that.

It all comes down to the pre-war resolution where the congress voted to give the president the power to do "whatever was necessary" to deal with Iraq and with terrorism in general. From the Times -

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

Did this resolution, in fact, confirm that the president, and by extension the executive branch, need not be hamstrung by any existing laws or treaties? Did the congress agree that their only remaining input into anything the nation does was to be to either fund or not fund what the president decides? Yoo provided the administration the legal opinion (classified) that this was precisely the case. The whole week was filled with the fallout from all that this implies.

As noted previously and discussed in detail, mid-week the administration "reversed course" and accepted Senator John McCain's call for a law banning cruel, inhumane and degrading treatment of foreign suspects in the war on terror. No more torture.

Why would the president concede? Perhaps it was more than the votes lining up in the house and senate - he couldn't stop this - and it was just moot. Nice law. Looks good on the books. Helps out image around the world. It just doesn't apply to me or to my administration. No big deal.

Of course some traditionalists, with the old view of the constitution, are pretty upset, like Jack Cafferty, CNN's "everyman" in this rant on Friday's "Situation Room" -

Who cares if the Patriot Act gets renewed? Want to abuse our civil liberties? Just do it! Who cares about the Geneva conventions? Want to torture prisoners? Just do it! Who cares about rules concerning the identity of CIA agents? Want to reveal the name of a covert operative? Just do it!

Who cares about whether the intelligence concerning WMD's is accurate? You want to invade Iraq? Just do it. Who cares about qualifications to serve on the nation's highest court? Want to nominate a personal friend with no qualifications? Just do it.

And the latest outrage, which I read about in "The New York Times" this morning, who cares about needing a court order to eavesdrop on American citizens? Want to wiretap their phones conversations? Just do it!

What a joke. A very cruel, very sad joke.

Yeah, well, that's the way it is in Yoo-World.

This Times scoop can, of course, be seen another way, as here -

This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

I am normally extremely wary of talking about impeachment. I think that impeachment is a trauma for the country, and that it should only be considered in extreme cases. Moreover, I think that the fact that Clinton was impeached raises the bar as far as impeaching Bush: two traumas in a row is really not good for the country, and even though my reluctance to go through a second impeachment benefits the very Republicans who needlessly inflicted the first on us, I don't care. It's bad for the country, and that matters most.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

You can click on the link and click "more" to see the relevant statutes "below the fold," but you get the idea. The president ordered his subordinates to violate the law.

But then note this passage from the account in the Washington Post -

The NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president, according to the Times.

That legal argument was similar to another 2002 memo authored primarily by Yoo, which outlined an extremely narrow definition of torture. That opinion, which was signed by another Justice official, was formally disavowed after it was disclosed by the Washington Post.

And what will happen with this one? It's hard to imagine this one will be disavowed. Friday morning, just after all this broke, on the "Today Show" Condoleezza Rice was saying, yeah, we did this, but we did nothing illegal. She knows her Yoo.

Of course, the problem really is not spying on Americas. Sometimes that may be justified - so you explain to a judge or some panel and get a warrant. They are some bad folks out there. Who would argue otherwise? The problem is who has to follow the law and who doesn't. The administration believes that the constitution explicitly authorizes that they need not follow the law, and they have the legal theory to support that. Others think Yoo is a nut and recently he was heckled when he spoke at UC Irvine out here. Constitutional law students gone wild? Something like that. He's become an odd sort of celebrity - the man who justifies the president as king.

Do recall these words from the president - "If this were a dictatorship we'd have it a lot easier. Just so long as I'm the dictator."

Everyone thought he was kidding. Now we have this - Shocked Lawmakers Demand Spy Program Probe (Katherine Shrader, AP). One thinks of Claude Raines in "Casablanca."

It comes down to Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee promising hearings early next year. And he's a Republican.

Bush is saying nothing, because if he said anything that would "tie his hands in fighting terrorists." Bush said in an interview late Friday on "The News Hour with Jim Lehrer" on PBS - "I will make this point - that whatever I do to protect the American people - and I have an obligation to do so - that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

No one at the NSA is saying anything. (The Times, curiously, says some of the folks at the NSA refused to do the wiretapping - they wouldn't go along, afraid if Kerry were elected they be in major legal trouble.)

We see also that "Vice President Dick Cheney and Bush chief of staff Andrew Card went to the Capitol Friday to meet with congressional leaders and the top members of the intelligence committees, who are often briefed on spy agencies' most classified programs." That must have been interesting.

And there's a twist too, as Tim Grieve points out here, quoting the Times -

"The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting."

Our question: When did the White House make its request, and what does "a year" mean? The Times is awfully light on details here, leaving itself open for speculation from the left as to whether the Times sat on the story through last year's presidential election. At the same time, the right is free to speculate about the Times' decision to run the story now, just as the Senate was about to take up and - as it turns out - vote down the reauthorization of the PATRIOT Act.

Yes, all day Friday you could read comments on the web from the right saying the Times published today to screw up the vote on the Patriot Act and mess up Bush, or that they wanted to make everyone forget the news of the successful elections in Iraq to mess up Bush, or (Matt Drudge) this was all tied to a new book the reporters had coming out next week. And on the left folks were saying the Times delayed publication to make sure Bush was reelected - some sort of plot by Judy Miller? Whatever.

Grieve called the reporters - Eric Lichtblau and James Risen - and asked. Why now? Why did you sit on this story for a year? Lichtblau told him to call Catherine Mathis in Corporate PR. She sent Grieve a FAX from the editor, William Keller. She didn't want to talk.

The reasons?

We start with the premise that a newspaper's job is to publish information that is a matter of public interest. Clearly a secret policy reversal that gives an American intelligence agency discretion to monitor communications within the country is a matter of public interest. From the outset, the question was not why we would publish it, but why we would not.

A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

We also continued reporting, and in the ensuing months two things happened that changed our thinking.

First, we developed a fuller picture of the concerns and misgivings that had been expressed during the life of the program. It is not our place to pass judgment on the legal or civil liberties questions involved in such a program, but it became clear those questions loomed larger within the government than we had previously understood.

Second, in the course of subsequent reporting we satisfied ourselves that we could write about this program - withholding a number of technical details - in a way that would not expose any intelligence-gathering methods or capabilities that are not already on the public record. The fact that the government eavesdrops on those suspected of terrorist connections is well known. The fact that the NSA can legally monitor communications within the United States with a warrant from the Foreign Intelligence Surveillance Court is also public information. What is new is that the NSA has for the past three years had the authority to eavesdrop on Americans and others inside the United States without a warrant. It is that expansion of authority - not the need for a robust anti-terror intelligence operation - that prompted debate within the government, and that is the subject of the article.

Okay, they said please don't reveal any of this or the bad guys will kill us all. Yeah, it's all completely true, and running the story might tip the election the other way - but what about the bad guys? They'd know we were onto them.

This is pretty clever. For more of the same see The Big Stall: How Bush Gamed The Media To Get Re-Elected In 2004. So this Times thing actually was typical, and one tends to forget things like this - (AP) "CBS News has shelved a '60 Minutes' report on the rationale for war in Iraq because it would be 'inappropriate' to air it so close to the presidential election, the network said on Saturday."

These guys are good. And they had Yoo.

__

Footnote:

Sometimes there's not any constitutional issue. Sometimes there's just spin, to put it kindly.

As you recall, an issue for the last several weeks is all the business about the prewar intelligence. The Democrats were saying Bush and Cheney had spun everyone and that's why he got his "do anything necessary" resolution from Congress. The White House line was Congress saw the "same intelligence" the president saw and made the decision to go to war along with him. This is the "we were all fooled" defense - or the "you're as dumb as I am" gambit.

Now we have a report from the nonpartisan Congressional Research Service. One of our senators from out here, Diane Feinstein, requested it. You can find it here.

"The president and a small number of presidentially designated Cabinet-level officials, including the vice president - in contrast to members of Congress - have access to a far greater overall volume of intelligence and to more sensitive intelligence information, including information regarding intelligence sources and methods."

"... the president and his most senior advisors arguably are better positioned to assess the quality of the community's intelligence more accurately than is Congress."

It seems the executive branch withholds from Congress four types of intelligence: the identities of intelligence sources; the methods used to collect and analyze intelligence; "raw" or "lightly" evaluated intelligence; and "certain written intelligence products tailored to the specific needs of the president and other high-level executive branch policymakers," including the President's Daily Briefing.

So? Just stop saying that everyone saw the same stuff.

Posted by Alan at 22:08 PST | Post Comment | Permalink
Updated: Friday, 16 December 2005 22:31 PST home

Thursday, 15 December 2005

Topic: Couldn't be so...

The Night of the Full Moon

Thursday, December 15, 2005 - a full moon rising over the Hollywood Hills and strange things in the news.

For example, mid-day out here, as the moon was still well below the horizon, word came for Washington that the Bush administration "reversed course" and accepted Senator John McCain's call for a law banning cruel, inhumane and degrading treatment of foreign suspects in the war on terror. The bare bones Associated Press wire story is here - under "the deal," CIA interrogators would be given the same legal rights as currently guaranteed members of the military who are accused of breaking interrogation guidelines - they can defend themselves by arguing doing really nasty and degrading things to people was reasonable for them to do because they believed they were obeying a legal order.

The odd thing is this was no "deal" at all. McCain was going to attach his "we do not torture" amendment to every bill he could, and got a veto-proof vote in the senate on that (90-9), and the day before the house had voted to do the same - 308 to 122, with 107 of the Republicans voting against the president. Yipes. The White House had been saying the president would veto any bill to which such an amendment was attached, even if the bill was to pay for the war, or even for more tax cuts for those earning over a million a year or whatever. The vice president had been to the hill to urge that the CIA be exempted from this - but now no exemption for the spooks. Lots of the press called this a compromise. No.

But the word "capitulation" seems too strong. It's more like, well, getting the matter out of the way. When you've lost the game - there was no way this wasn't going happen, as any veto would be overridden - what's the point of fighting on and looking stupid? In chess you tip over your own king. You concede and move on, rather than watching your pieces leave the board, one at a time, until you're trapped in checkmate. Heck, that's just depressing. In poker you fold a losing hand so you don't throw away good money - unless you're sure you can bluff it out. But when you hold nothing?

And anyway, this made political sense. As you recall, the White House strongly opposed an independent commission investigating the events of September 11, 2001 - they wanted a congressional investigation, which makes a lot of sense when your supporters control congress. But that just wasn't going to fly so the White House "reversed course" and called for an independent investigation and a did a whole lot of talking that up, and most folks now think that independent commission was the administration's idea. Same thing here - on television you could see the senator and the president sitting together, announcing this agreement that we do not torture and will not, and the president saying this was great as all parties worked toward a "shared goal" and got there. Yes, of course that makes no sense given what had happened in the last month or two, but the American public is used to such disconnects, so when the president said this agreement will "make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad" you get the idea the new spin will be this wasn't McCain's idea at all. McCain just help the president reach the president's goal.

That's how things work. Those who support the president will grudgingly concede McCain may have helped him straighten things out and do a good thing, but he was going to do the right thing anyway. Those who do not will claim McCain, a prisoner of war himself, slapped the president around and made him to the right thing. Take your choice.

The key person who worked to defeat the McCain amendment, the vice president, is no doubt fuming about all this, alone at his official Naval Observatory residence, grumbling. Secretary of Defense Rumsfeld too was with Cheney on this. They've worked hand in hand since the Ford administration, so maybe he's dropped by and they're sipping scotch, watching the full moon rise, and wondering what's wrong with America.

A friend in Canada, on the night of the full moon, is wondering about the president -

Admitting mistakes were made, now this.

The body-snatchers must have dropped off their pods about a week ago, and this imposter has obviously just climbed out of his pod and assumed the place of the president!

And from our Wall Street attorney friend in lower Manhattan - "You mean kind of like the movie "Dave?"

From upstate New York -

In "Dave" I recall the good guy got out alive! The difference between Hollywood and DC, eh?

Or is the difference actually that in Hollywood we get to glimpse good guys - occasionally.

Maybe so. But our upstate friend also asked this

So does this begin to look like McCain might somehow become the West Wing type presidential candidate in '08 that the world has been awaiting? He'll never have the neo-con far right, but they've HAD their moment in the sun! Is there a patch quilt way he might somehow emerge - or even be willing to even?

Just wondering aloud -

Rick, the News Guy in Atlanta, jumped in to add, "And maybe more to the point, could you vote for him? Could I? Could anyone here?"

Not me. Being right on one issue is not enough. To which Rick replied - "Ditto - although I guess it would depend on who the Democrats put up. I can't see them choosing anyone more conservative than McCain."

Dick in Rochester disagrees - "He is 'right' on a hell of a lot more than one issue. Unfortunately we pretty nearly never get to vote for the best, only the least bad."

From Hollywood -

I disagree on McCain. Later in a post I'll run down where he seems to stand on issue after issue, and where, each time, I think he's full of crap. He's a good man, and a decent one. He listens and he thinks. He just holds positions with which I disagree. Ah well, at least he's honest and honorable. That may be enough? Maybe so. That in itself would be refreshing.

But the matter is moot. Even if he spoke at Bob Jones University - and he did - the hard right is vehemently opposed to him, and the current neoconservatives see him as dangerous. And if he did somehow get the nomination, those Republicans who hate him would cancel out those in the middle who like him. He's dead in the water with his own party.

From upstate - "That only reinforces the point - we never get to vote for honest people - regardless of persuasion!"

Maybe so. We vote for pod people?

As an aside, on political matters, this full moon day was the day for the president to fold his hand on the torture business, as the voting in Iraq went rather well. As in this - "In a day remarkable for the absence of large-scale violence, millions of Iraqi voters, many of them dressed in their best and traveling with other family members, streamed to the polls today to cast ballots ..."

It worked. The president had a major success. One balances the other. Now let's see if they can form a government over there, and rewrite the constitution from the loose draft, and get along. As Fred Kaplan says here - " Watching these long-oppressed people exercising their franchise as citizens, hearing them express their hopes for a better, freer life - who could fail to be moved or to wish them well?" But then he covers what comes next, and it's not pretty. There's work to do - lots of it. An election is democratic, but not a democracy - not a working government.

What else happened on the full moon?

There was lots of coverage of what the president said in his exclusive interview with Brit Hume on Fox News. And the most interesting tidbit was this - "President Bush said yesterday he is confident that former House majority leader Tom DeLay (R-Tex.) is innocent of money-laundering charges, as he offered strong support for several top Republicans who have been battered by investigations ..."

He said DeLay was innocent. Were I Delay's defense attorney I'd argue to the jury that you couldn't possibly find my client guilty when the president of the whole damned United States says he isn't. Were I the prosecuting attorney I'd argue the president should be charged with jury tampering. How do you try a case when the man who runs the whole country has publicly said the accused in innocent? How can you even seat a jury?

The whole Fox News interview is here and it contains lots of goodies, like "The Brownie Kiss of Death" that everyone is talking about.

"The Brownie Kiss of Death" - if you don't remember - has to do with Michael Brown, the head of FEMA, and the Hurricane Katrina business. There's are lot of clips of the president saying, "You've doing a heck of a job, Brownie." A few days later Brown resigned in disgrace. You can buy t-shirts with "You've doing a heck of a job, Brownie" on the front. They're brown, of course. It's a running joke.

On Fox the president says this of Donald Rumsfeld - "He's done a heck of a job. He's conducted two wars, and at the same time is out to transfer my military from a military that was constructed for the post-Cold War to one that is going to be constructed to fight terrorism."

He's done a heck of a job? No, Rumsfeld is not on the way out. No one told the president about the running joke. It seems there's lots his people don't tell him.

For a full discussion of the Fox News interview see this from Tim Grieve. It's pretty amazing.

But Tim Grieve is best here -

Who, exactly, is allowed to be critical of the Bush administration these days?

We know it's not the Democrats. As Joe Lieberman said the other day, Democrats who distrust George W. Bush need to "acknowledge he'll be commander in chief for three more years" because "we undermine the president's credibility at our nation's peril."

We know it's not senators who believe that the Bush administration manipulated prewar intelligence. As Dick Cheney explained last month, it's "irresponsible" for them to speak out about their "dishonest and reprehensible" views.

We know it's not the United Nations. As John Bolton said the other day in remarks intended for the U.N.'s high commissioner on human rights, "It is inappropriate and illegitimate for an international civil servant to second-guess the conduct that we're engaged in in the war on terror with nothing more as evidence than what she reads in the newspapers."

We know it's not peace activists or other antiwar groups. As NBC News reported this week, the Pentagon is monitoring even the smallest gatherings as "threats" and "suspicious incidents."

And now we know it's not our neighbors to the north, either. ... the U.S. ambassador to Canada told Canadians this week that they should tone down their anti-Bush rhetoric - or else. "It may be smart election-year politics to thump your chest and constantly criticize your friend and your No. 1 trading partner," David Wilkins said at the Canada Club in Ottawa. "But it is a slippery slope, and all of us should hope that it doesn't have a long-term impact on our relationship."

Wilkins may not know much about Canada - before he got the ambassadorship, he'd visited the country only once, on a trip to Niagara Falls. But he certainly knows a thing or two about the value of long-term relationships. An old Bush family friend, Wilkins raised more than $200,000 for the president's 2004 reelection campaign. Which means, apparently, that he's pretty much free to say whatever he wants.

Of course he links to all the news stories supporting what he says.

It's all madness. It must be the full moon (here rising over the Hollywood Hills, Thursday, December 15, 2005, 6:15 pm - 18h15 - PST) -

Posted by Alan at 20:17 PST | Post Comment | Permalink
Updated: Thursday, 15 December 2005 20:21 PST home

Wednesday, 14 December 2005

Topic: Chasing the Zeitgeist

The Passing Parade: Incremental Changes and More of the Same

From here above the Sunset Strip, and stretched out below, the Los Angeles basin, following the national dialog - who said what and who avoided saying this or that that might have been problematic - is fairly easy. In the far room the television burbles away with the "experts" on Fox News and CNN and MSNBC (and PBS) explaining the significance this or that event, and these or those words. And a drive anywhere has the same on talk radio, which is fairly mind numbing but a relief from Elvis singing about Christmas being blue without you and one more version of "Let It Snow." (We have snow here in Los Angeles County, up in the mountains - you can see that in the distance, forty miles away. But it's not really the same thing.) And, as for keeping up on the news, there's a massive amount of information on the net.

The problem is, of course, separating the wheat from the chaff - separating what seems significant about who we are and where we're going from just stuff that happens. Stuff that happens? Tuesday, December 13th, kicking off at four in the morning, the Hollywood Foreign Press Association did their annual announcements of their nominations for the Golden Globe Awards. Movie stuff. But at that pre-dawn hour no one in his or her right mind would be down the street at the Beverly Hilton. The place is depressing enough during the day and evening, what with the blue-haired matrons stumbling out of the last Trader Vic's around. But this is an industry town and that means people in their right minds are not really important.

People do follow such things. After twenty-five years in Los Angeles, and the last fifteen smack in the middle of Hollywood, it's just hard to get excited about such stuff. At the last Oscar Party I attended, back in the nineties, at the home of a VP of Sony Pictures, I came in second at guessing the winners in all the categories. I don't remember what I won. I do remember I hadn't seen any of the films, which defines guessing in its purist form.

Some folks think such things matter, a lot, and others of us don't - we're on the trail of "big events." The industry folks think we're nutty. We think they're silly. Fine.

But what are these here big events? By mid-week, Wednesday, December 14th, for news hounds, policy wonks, and others chasing the zeitgeist, there were a few. The president had given the country both the third and the fourth in his series of four speeches explaining his unified theory of everything, or everything about what the administration got us into with this war and "the plan" for making it all work out fine. That was a good thing because there was news bubbling up that come January there would be new requests for supplemental, off-budget bills to fund it all, driving the cost to over a half-trillion. That also was a good thing because congress med-week was in some turmoil about renewing the Patriot Act with even some of the guys in the president's own party getting worried about the implications of the thing - even a government run by a dry-drunk frat boy from Texas everyone loves and trusts can have a bit too much power and all that. And by mid-week we learned the military is keeping files on anti-war folks just like back in the sixties. And the speeches justifying everything were also useful because the administration's effort to allow our folks to torture who we want, under certain conditions, got a tad cleverer.

So here we go.

The Two Speeches

The first was Monday the twelfth at the World Affairs Council in Philadelphia, and the second in front of the Woodrow Wilson Institute in Washington on Wednesday. This was notable because these were speeches not given in front of military personnel. Only the first of the speeches, at the Naval Academy, was in front of our armed forces. Even Fox News was wondering about Bush and Cheney making overtly political speeches in front of the troops, as you see here -

The attacks against critics at military settings may have put troops in the awkward position of undermining their own regulations. A Department of Defense directive doesn't allow service members in uniform to attend "partisan political events."

Questions have been raised about the military's attendance at events where Bush says something like "they spoke the truth then, they're speaking politics now." Several members of the military told FOX News that Bush is inviting the troops to take sides in a partisan debate in his speeches.

"This is a very bad sign," said retired Marine Gen. Joseph Hoar, who led Central Command in the early 1990s and is an administration critic. "This is the sort of thing that you find in other countries where the military and political, certain political parties are aligned."

Bush often appeared with troops in his 2004 campaign. Sen. John McCain, R-Ariz., endorsed him before hundreds of cheering soldiers.

"Where you have our uniformed members being put in a position where it looks like they're rooting for one side or another is very disconcerting," said Greg Noone, a former Navy lawyer.

Presidents have generally avoided such military settings due to the chance for attacks from opponents.

"They could be divisive," said Stephen Hess, a senior fellow in governance studies at the Brookings Institution. "And as commander-in-chief, he represents all the people as does the military defend all the people."

The counterargument is, of course, these four speeches, timed to end the day before the Iraqi elections, were statements of policy and strategy and purely informative - they were not political. But insofar as they were a defense of policy and a rebuttal to criticism, at a time when the president and his party were under fire and worried about the effect of the war on the 2006 mid-term elections (coupled with the spreading scandals and low poll numbers), in a broad sense, they were political. In these times any presidential speech is. But there has been a hint of "don't mess with me because the military backs me" in previous speeches. You don't want that whiff of Juan Peron or Joseph Stalin.

So the audience for speeches two through four were civilians.

Monday's speech was odd. It was cheerleading mixed with a reality check. (Transcript here.) The president said that the week's Iraqi elections "won't be perfect" as the Associated Press was reporting this: "Four U.S. Army soldiers died in a roadside bombing, gunmen killed a Sunni Arab candidate for parliament, and militants tried to blow up a leading Shiite politician in separate attacks Tuesday, the last day of campaigning for Iraq's election."

Indeed, that is not perfect.

But the president was also saying "every milestone" toward democracy in Iraq "has been achieved."

True, as far as the predetermined milestones are concerned. We hit the targets, pretty much. The constitution there was approved, a week or two late - except it wasn't finished and whatever government created by the election of the new parliament will have as its first task finishing it up, or starting again. As it stands now, the new constitution is more like a collection of ideas, and likely to be more divisive than unifying. It's a grab-bag. Some things are not yet certain. Just who gets the oil revenue, are there autonomous or fully united states in this new Iraq, will the laws be Islamic or secular, will women have rights and, if so, what rights? There's a bit of work to do. But we met the deadline. It's kind of like a student saying, "My term paper was on time - you got it - but I'll finish writing it later." Well, you call it a success. Details come later. Film at eleven.

So how did the speech go over? A scan of the media for insightful analysis of the Monday speech would yield you little. It came down to saying things are fine, there are some problems, and so be patient. What was there to say about that?

And as for public reaction, here (USA Today/CNN/Gallup the next day), you see some of that made sense to people, as sixty three percent of those polled said they believe that Iraq has made real progress toward democracy over the last two years. Right. No problem. But fifty-eight percent decided the president still doesn't have a clear plan for Iraq - just about the same number who thought that when the "National Strategy for Victory in Iraq" was finally unveiled to great fanfare in the first speech at Annapolis. Is that a way of saying things are getting better, but not because of anything the president or the administration has done? It was dumb luck? Maybe so, but the president's approval rating finally moved up a bit, from the thirties to forty-two percent.

Some of the jump in approval may be due to a change in tone.

As you recall, the venue for second of these four speeches - Wednesday, December 7th to the Council on Foreign Relations in Washington - was where the Council broke its tradition and granted the White House's special request - no questions. The president speaks and the president leaves - a first for any speaker at the Council on Foreign Relations. But the following Monday, after the third speech, he took questions - five of them.

This was really big news in Washington, as he usually doesn't, or more precisely, doesn't take questions from audiences that haven't been screened, or questions that haven't been screened. Something is up.

His political advisors must have sensed that had made him look defensive and detached. So they took a chance, and it went something like this:

REPORTER: Since the inception of the Iraqi war, I'd like to know the approximate total of Iraqis who have been killed. And by Iraqis I include civilians, military, police, insurgents, translators.

GWB: How many Iraqi citizens have died in this war? I would say 30,000, more or less, have died as a result of the initial incursion and the ongoing violence against Iraqis. We've lost about 2,140 of our own troops in Iraq. Yes.

SECOND REPORTER: Mr. President, thank you -

GWB: I'll repeat the question. If I don't like it, I'll make it up.

Oops. You could imagine his handlers cringing. They wanted him to project openness and honesty, and he said that? At least he didn't say, "Now watch this drive," and swing a golf club.

Another audience member asked why the White House persists in linking the war in Iraq to the attacks on the World Trade Center and Pentagon way back when. The answer? September 11, 2001 changed everything - "It said that oceans no longer protect us, that we can't take threats for granted, that if we see a threat we've got to deal with it, doesn't have to be military necessarily, but we've got to deal with it. We can't just hope for the best anymore."

Before that day he thought the oceans protected us? What? And because he now realizes that because the bad guys aren't afraid of water we need to do this preemptive war thing?

The problem for the handlers - how do we get this guy to seem to be connected to reality, to the serious stuff? That's the PR problem.

As mentioned previously, the day of this third speech Newsweek had hit the newsstands with its cover story Bush in the Bubble. There, the authors, Evan Thomas and Richard Wolffe, lay out many, many details that suggest a level of indifference, if not denial, "that is dangerous for a president who seeks to transform the world." They do point out that all presidents face "a tension between sticking to their guns and dealing with changing reality." And yes, it can be a mistake "to listen too closely to the ever-present (and often self-aggrandizing) critics." But the general idea was that this fellow might be the most isolated president we've ever had - and alarmingly detached from what's really going on. (And alarmingly simple-minded, but they didn't say that.)

In an interview with NBC's Brian Williams, the president said it may be his own fault that so many Americans think he's uninformed about the world, but it's not really so - "Frankly, it is probably part of my own fault for needling people. But it's a myth to think I don't know what's going on. And it's a myth to think that I'm not aware that there is [sic] opinions that don't agree with mine. Because I'm fully aware of that."

Ah, someone told him. And someone told him a few interviews might help - he should get out more. We'll see more of this - it's time to "humanize" the product.

That effort came to fruition with the fourth and final speech, Wednesday, December 14th, with this - "On the eve of Iraq's historic election, President Bush took responsibility Wednesday for "wrong" intelligence that led to the war, but he said removing Saddam Hussein was still necessary."

Whoa, Nelly! Is this a mea culpa? "As president I am responsible for the decision to go into Iraq." Was he wrong?

No. He was right, as he says. The intelligence was wrong - except, of course, much of it actually was right, and his crew ignored the part that was right and hyped the part that was wrong, that their own agencies and other governments and had told them was bogus crap.

But it's something. He says he knows something is wrong here. Too bad he doesn't see what the real problem is. The intelligence wasn't the problem. It was the notion Iraq was the problem, when the problem was larger and more diffused and not that simple.

The rest was boilerplate - "We cannot and will not leave Iraq until victory is achieved." Can't say what victory would look like, exactly, but we know all Americans love declarations like that so we'll say such things. There's a reasonable summary of the whole speech here, if you find that necessary. It isn't.

Who is buying this?

Andrew Sullivan here -

Something remarkable has been going on these past few weeks. The president has begun to be a real war-leader. He is conceding mistakes, he is preparing people for bad news, he is leveling with the American people, he is taking questions from audiences who aren't pre-selected or rehearsed. Some of us have been begging him to do this for, er, years. Now that he is, his ratings are nudging up. The truth is: most Americans want to win in Iraq. They will back a president who is honest with them and dedicated to victory. And those of us who have been deeply critical of the war's conduct thus far are fully prepared to back the only commander-in-chief we've got, if he's honest with us, corrects mistakes, and has a sane plan for progress. With Casey and Khalilzad and Rice, I think we have the best team we have yet deployed in the war. Let's pass the McCain Amendment and put the abuse and torture issues behind us, and fight this war the way Americans have always fought: humanely but relentlessly, for a better, freer world.

Yeah, onward and upward, except for the torture stuff.

Torture Tricks

The house overwhelming voted to support the efforts of Senator John McCain, symbolically echoing the senate vote on his amendment, to be posted to any bill possible, banning our side from using torture, anywhere, on anyone. Much has been written on this, here and elsewhere. The house vote, late Wednesday, December 14th, seems to be a slap at the White House, and the Republican house leadership did what the could to keep it from the floor, but that just didn't work. The vice president has been arguing there should be an exception for the CIA, and Rumsfeld that there should at least be some sort of retroactive release from liability for anything done or written in memos or policy about torture before there was this new rule that everyone had to follow the rules of the land, and in the military, the Uniform Code of Military Justice. No dice. No exceptions. No compromises.

But there is a way out, as reported here in the New York Times -

The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday.

The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said.

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

Call this the Rumsfeld gambit. You want to insist everyone follow the rules? We'll change them.

Very clever.

Big Bucks

That money issue mentioned up top?

Associated Press here -

The Pentagon is in the early stages of drafting a wartime request for up to $100 billion more for Iraq and Afghanistan, lawmakers say, a figure that would push spending related to the wars toward a staggering half-trillion dollars.

Reps. Bill Young, R-Fla., the chairman of the House appropriations defense panel, and John Murtha, D-Pa., the senior Democrat on that subcommittee, say the military has informally told them it wants $80 billion to $100 billion in a war-spending package that the White House is expected to send Congress next year.

That would be in addition to $50 billion Congress is about to give the Pentagon before lawmakers adjourn for the year for operations in Iraq for the beginning of 2006. Military commanders expect that pot to last through May.

Since the Sept. 11, 2001, terrorist attacks, Congress has approved more than $300 billion for Iraq and Afghanistan, including military operations, reconstruction, embassy security and foreign aid, as well as other costs related to the war on terrorism, according to the Congressional Research Service, which writes reports for Congress.

Asked about the upcoming spending package, Young offered the $80 billion to $100 billion range. "That's what I'm told," he said.

Murtha mentioned the $100 billion figure last week to reporters, saying "Twenty years it's going to take to settle this thing. The American people are not going to put up with it, can't afford it."

We have a choice?

New Orleans and the Gulf Coast will have to wait. But more tax cuts for the well off won't wait.

There's not much to say.

Patriot Games

As noted here, Wednesday, December 14th, the house voted 251 to 174 to renew the USA Patriot Act. This set up a confrontation over the revised version with a group of Democratic and Republican senators who say this new iteration would not go far enough to protect civil liberties.

You've got your FBI secret searches, monitored telephone calls and e-mails, and authority to obtain bank records and other personal documents in connection with terrorism investigations, without warrants or any show of cause, and those national security letters and other types of subpoenas that give the FBI "substantial latitude in deciding what records - including those from libraries - should be surrendered."

It seems a coalition of Democrats and moderates, and even conservative Republicans, in the Senate oppose the bill. They may filibuster.

How odd.

Enough is enough? The argument that it's a new world - everything changed on September 11, 2001 - seems to be failing. Should the administration say that louder and more often?

What do you do when the magic chant that worked so well doesn't produce magic any longer?

Stop Reading Here

Note this - the Pentagon is spying on anti-war protesters right here at home. They say they're just trying to protect military bases from damage.

But there's this -

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One "incident" included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald's National Salute to America's Heroes - a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: "US group exercising constitutional rights." Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense - yet they all remained in the database.

They're keeping a list? Hollywood and Vine? That's ten blocks east - and not near anything military.

Note this -

Everyone who reads this blog knows that I've consistently supported the Bush administration's Iraq policy. Tonight, however, I heard a profoundly disturbing report. NBC has obtained documents showing that the military has been collecting information on the identities and activities of anti-war protestors. While I strongly disagree with the protestors, it's their right as American citizens to express, in a non-violent fashion, their disagreement with the administration's policies. This is all-too reminiscent of the FBI's activities during the Vietnam era. Then, at least, there was concern about Communist infiltration of the anti-war movement. No such excuse exists today. The military's action is beyond the pale.

That's Marc Schulman. He and I have traded a few emails, and disagree on any number of things, but this is a worry.

Posted by Alan at 23:04 PST | Post Comment | Permalink
Updated: Wednesday, 14 December 2005 23:14 PST home

Tuesday, 13 December 2005

Topic: The Law

Jurisprudence and Prudence: Justice in the State Governed by Former Movie Stars

Capital punishment has been discussed before in these pages.

There was the extended discussion of Scott Turow's book Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (Farrar, Straus & Giroux) way back in mid-October of 2003, and, in late December of that year, The Culture of Death: Who We Should Kill and Why, a discussion of whether Saddam Hussein deserves the death penalty.

Posted on March 7, 2004 was the item Getting Even, a discussion of and commentary on Jeffrie G. Murphy's book, Getting Even: Forgiveness and Its Limits (Oxford University Press).

That item pointed back to an item the previous year by Antonin Scalia, one of the nine on the Supreme Court, an essay titled God's Justice and Ours. Antonin Scalia was sort of saying this - since the death penalty was "clearly permitted when the Eighth Amendment [which prohibits 'cruel and unusual punishments'] was adopted," and at that time the death penalty was applied for all felonies -including, for example, the felony of horse-thieving, "so it is clearly permitted today." Justice Scalia it seems has no doubt that if the crime of horse stealing carried a death penalty today in the United States - he would find that law constitutional. Well, that really is his logic. So if we study history, we could extend the death penalty to those people who practice witchcraft, adultery, homosexuality and, say, heresy? All we need to do is find those particular death penalty laws existing as of November 3, 1791, and re-instate them. Scalia derives his ideas also, it seems, from Romans 13 - government authority is derived from God and not from the people; he asserts his view was the consensus of Western thought until recent times - "a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals." Democracy, according to Scalia, creates problems, "It fosters civil disobedience." So screw it. Well, he's an odd duck.

Other discussions?

There was The Company We Keep (July 25, 2004), a discussion of which countries, like us, employ the death penalty. And A Minor Matter (March 6, 2005), opinion on the then recent Supreme Court decision that we really ought not execute minors.

Then there was An Idea Whose Time Has Come (March 20, 2005), a discussion of the idea proposed by a professor of constitutional law at UCLA that not only should we have a death penalty, we should have extended public executions involving torture and pain, and the family of the victim should be the ones inflicting that pain and death - but he doesn't think we will go for amending the constitution to allow that. And then he changes his mind. Maybe the whole idea wasn't that good an idea. In fact, in An Oklahoman Turns European (April 24, 2005) we see the father of one of the victims of the famous Oklahoma City bombing of the Federal Building there is a vocal opponent of the death penalty - Timmy didn't have to die, as he reasons it out.

So it's not as if this issue hasn't come up before.

Anyway, the nub of the matter, as Turow puts it in his book, is that, on the one hand, some crimes, like murder, are so extreme that they require the most extreme retribution. On the other hand, state-sanctioned killing reduces our society to its lowest common denominator, making all of us complicit in the taking of a life.

The basic question? "Should a democratic state ever be permitted to kill its citizens? If the people are the ultimate source of authority in a democracy, should the government be allowed to eliminate its citizens"

Who knows?

Those enthusiastic about the death penalty see it as "a statement of moral value" to be applied widely and often, to say who we are - to clearly show what we just won't tolerate. And there may be some merit in that. But some of us won't tolerate the concept that the state can decide to take anyone's life - as the decision is so often flawed, and even when it isn't flawed, shows something else about us all. We don't like what it shows.

And round and around it goes. But the position here has been consistent.

"It is the job of thinking people not to be on the side of the executioners." - Albert Camus (1913-1960)

But we just did it again, out here in California.

Tookie Williams Is Executed
The killer of four and Crips co-founder is given a lethal injection after Schwarzenegger denies clemency. He never admitted his guilt.
Jenifer Warren and Maura Dolan, Los Angeles Times, Tuesday, December 13, 2005, 2:18 AM PST

The bare bones -

Stanley Tookie Williams, whose self-described evolution from gang thug to antiviolence crusader won him an international following and nominations for a Nobel Peace Prize, was executed by lethal injection early today, hours after Gov. Arnold Schwarzenegger refused to spare his life.

His death was announced at 12:35 a.m.

During the execution, the inmate's friend Barbara Becnel and other supporters mouthed "God bless you" and "We love you" and blew kisses to Williams. Williams also seemed to mouth statements to Becnel.

The entire procedure took longer than usual. The execution team took about 12 minutes to find a vein in Williams' muscular left arm. While the personnel were probing, Williams repeatedly lifted his head off the gurney, winced visibly, and at one point appeared to say: "Still can't find it?"

So read Warren and Dolan if you want more detail of who said what.

And too, there's background like this -

Despite persistent pleas for mercy from around the globe, the governor earlier in the day had said Williams was unworthy of clemency because he had not admitted his brutal shotgun murders of four people during two robberies 26 years ago.

After the U.S. Supreme Court denied a request for a last-minute stay Monday evening, the co-founder of the infamous Crips street gang - who insisted he was innocent of the murders - became the 12th man executed by the state of California since voters reinstated capital punishment in 1978.

This was high drama out here. The racial implications were hanging heavy in the air - the dreaded black gangs had to be stopped, and for some whites, the lawless, hyper-masculine and testosterone-pumped virile (if not feral) sexually-threatening savage black man had to be put down, as you put down an animal. But that bubbled under the surface.

And would there be riots all over Los Angeles as we had when the police who beat the crap out of Rodney King were found guilty of nothing at all? No, this fellow was hardly a goofy innocent. Some screamed he was innocent. Not many were buying that line. He had not been a nice man. He was tried for murder, convicted and sentenced, in 1981, down in Torrance, a bedroom community of aerospace folks (Hughes, TRW, Northrop and all that) just south of the airport and, at the time, a white-bread place if there ever was one. But he would have been convicted in Compton or Watts. The angry in black community did not seem to want to burn down the city over the officially authorized execution of this particular guy. The Times quotes "African American activist" Eric Wattree - "We have to understand, this is our failure taking place here." The day was quiet.

As the Times points out, and as many can see, the theme here was really something else - what they call "society's dueling goals of redemption and retribution."

The argument came down to whether he should pay with his life for what he had done - or had all the writing, the series of books warning ghetto kids away from violence, the brokering of gang truces in Los Angeles and New Jersey, and all the rest, "redeemed him," and earned him life in prison without the possibility of parole, until he died of something other than the state's injections. Last year, after all, this guy's life had been made into a television movie - "Redemption," starring Jamie Foxx. Heck, Desmond Tutu and Snoop Dogg said the man's life should be spared. Joan Baez sang "Swing Low, Sweet Chariot" outside the prison walls hours before the execution, for - excuse the pun - goodness sake. This was high drama out here.

Arnold Schwarzenegger knows drama, or at least melodrama, and, as reported, said he saw no need to rehash or second-guess the many court decisions already rendered in the case. His thumb shot down, just like in the movies. Of course he was on solid ground. Sunday before the execution the state Supreme Court heard the argument that the 1981 trial was "fundamentally unfair" because the prosecutors had failed to disclose that a key witness, Alfred Coward, was a violent ex-felon. They said it didn't matter. The Ninth Circuit agreed the next day, as did the US Supreme Court. Alfred Coward may have been a violent ex-felon, and that should have been revealed, but it would not have made a difference.

So Stanley Tookie Williams is gone.

And the lead editorial in the Los Angeles Times, on newsstands an hour or two after the execution, said, well, It's not about Tookie.

It isn't?

The argument here is that Schwarzenegger should have granted clemency to the guy before, one Donald Beardslee, a convicted murderer executed in January with no big fanfare of any kind. The Times thinks Schwarzenegger should have made it clear that "no one would be put to death on his watch" - as they contend "a civilized society doesn't kill for retribution and should certainly not continue doing so when it's become clear that the judicial system's margin of error is unacceptably high."

Short form: Exacting retribution is uncivilized, and doing it incompetently is even worse.

What they don't mention is every film Schwarzenegger ever made is about retribution - the bad guys get what's coming to them, and no matter how they plead and whimper, they die, spectacularly, and noisily, with music. And there may be collateral damage (the title of one of his recent films, oddly enough), but stuff happens. This is what he knows. This is what made him who he is. He never said he was a policy expert or knew much about governance - he sold himself to the voters as the outsider who wouldn't be encumbered by all that, and what we really needed. What did the Times expect?

The Times says Schwarzenegger turned Williams down "because he does not consider capital punishment to be about our values as a society, but about the merits of the convicted supplicant." The man didn't seem sincere enough? He didn't grovel enough for the Terminator to spare him? Like this is a movie?

The Times position, that that capital punishment is always wrong because it is incompatible with our values, isn't in the script. They say that those who opposed Williams' plea argue that he deserved his fate, "but the people of California don't deserve to play the role of executioner." But that is role we have the script, and Arnold is our man.

We see also there are now 647 folks on Death Row out here, and next up is Clarence Ray Allen, scheduled for 17 January. He's seventy-five, blind and confined to a wheelchair. Can the state keep him alive until the 17th? This should be interesting. Didn't see that one in any of the Schwarzenegger movies.

James Wolcott here voices what may of us in the tiny minority who oppose the death penalty feel at the moment -

I held out the fugitive hope that the moderate side of Schwarzenegger might prevail as his wife tugged him in the direction of leniency and mercy. What a fool I am. Whatever Maria Shriver said or didn't say was of no consequence, nor were the pleas for clemency from citizens, famous and obscure alike, who felt Williams had done enough good over the last twenty years to deserve having his life spared.

The death penalty must be abolished. No former movie action hero - or Yale cheerleader with enough psychological baggage to sink the African Queen - should be entrusted with the power of life and death over his fellow citizens. These are essentially frivolous, uninformed men playacting blue-suited roles of grave responsibility. And, no, I don't think Bill Clinton should have executed Ricky Ray Rector either. Capital punishment must be de-politicized, and as long as politicians make the final decision, depoliticization is impossible. So abolish it.

Well, that is the bottom line, isn't it? No politician should be entrusted with the power of life and death over his fellow citizens. Yeah, think about those who aspire to politics, with their mixture of idealism and raw hunger for power over others, with their soaring egos and odd insecurities, and with their almost pathological narcissism.

But Wolcott is angry with these fools who are politicians. These are the people who get to say who lives and dies?

But how about this? No government should be entrusted with the power of life and death over its fellow citizens. We, as citizens, are entitled to life - a basic premise. If we do horrible things we can be punished. Grant the government that. But set aside what is called the "ultimate punishment." The government has no right to kill its citizens, as governments are notoriously mistaken again and again, and change their calculation of legal and illegal, right and wrong, as they correct themselves over the long years - and they're artificial constructs of convenience. Don't give them the power to kill their citizens.

Funny, you'd think most conservatives on the right - the less government is better folks - would see this. Ah well.

An aside - France abolished the death penalty in 1981 and you see here, Julien Dray, spokesman for the Socialist Party in France, saying, "Schwarzenegger has a lot of muscles, but apparently not much heart." That's not the point, but it's amusing.

Jeralyn Merritt, defense attorney of note, adds the basic facts here about governments being notoriously mistaken. Since 1973, 122 people in 25 states have been released from death row with evidence of their innocence. She says it's time for a moratorium. And she quotes Supreme Court Justice Brennan from 1994 - "Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent."

Also noted there, Sean Paul - "What requires more courage: revenge or forgiveness?"

What plays better politically?

And Susan Hu -

What matters for me is that murdering Tookie solves nothing, makes the United States look barbaric to the rest of the world, and destroys Tookie's future chances to influence more young people against entering the gang life. ...

And from Jeralyn Merritt's own memorandum to Schwarzenegger -

Clemency is about mercy. It is an act of grace. You have the opportunity to stop a needless killing. Tookie's execution will not bring the victims back. It will not heal. The welfare of the people of California is best served by the message clemency would send - one of hope to the tens of thousands of disadvantaged young people your administration has professed to care so deeply about. A denial of clemency will send a message of despair.

Note these last two items presume one of the jobs of government is to provide hope that things will be better. That's a "progressive" view, not a conservative one. It is well beyond obvious the conservative national government of Bush-Cheney-Rumsfeld operates on a far different premise - we're in deep danger and could all die and you should be very afraid and keep us in power to protect you. Mercy? Healing? We may have to torture people to keep you safe, and you really don't want to know about that. It's a cruel world and there is pure evil and there is no way you can think what is pure evil can ever change, or think those who perpetrate evil deserve anything less than horrible pain or death, as it's us or them.

Hell, Arnold Schwarzenegger is just a minor George Bush, with a different accent, but just about the same language skills, the same analytical skills, and the same distain for complexity. The political strategy is the same - keep up the level of fear and show you are eliminating, in one way or another, the evildoers you have made into cartoon bogeymen.

But that really does work.

By the way, Amnesty International here takes a completely different approach to the issue, pointing out the logic problem -

By refusing to stay Williams' execution, Gov. Schwarzenegger has failed to demonstrate genuine leadership on this issue. In his prepared statement, he said that he was placing his trust in California's criminal justice system, which the Senate Commission is currently investigating. Last year, the legislative body recognized the pervasive flaws plaguing the system and tasked the Commission with discovering and exposing the potentially lethal errors and bias that have metastasized throughout the state's administration of the death penalty.

As California's highest-ranking public official, Gov. Schwarzenegger has an obligation to guarantee that all of the state's laws are applied equally to everyone - even people on death row. But today, he abandoned that responsibility and left the more than 640 death row inmates to fend for themselves in the state's broken system. According to the Santa Clara Law Review, California's death penalty system is incapable of providing equal protection because it lacks "... the basic safeguards to avoid capricious, erroneous, and discriminatory application of the death penalty."

Hey, Arnold, you say you trust the courts got it right and your own commission says they often just don't get it right. What up with that?

Finally a good read is Jeanne over at Body and Soul telling us here how she tried to explain this all to her young daughter. The kid is confused about how it makes sense that when someone kills someone else we show that is really bad by killing them. Yeah, kids are a pain sometimes. She suggests there are leaned behaviors at play here -

We think there's some instinctive desire for vengeance that law and civilization help us overcome, but I wonder if there is not also an instinctive recoiling from vengeance, like the one I saw on my daughter's face last night. A deep-seated understanding that if killing is wrong, killing a killer is also wrong. I don't know, but I wonder if we have it all turned around. People don't have to learn not to be vengeful; they have to bury their natural compassion.

Maybe so. But we seem to have done that.

As Steve Lopez of the Los Angeles Times, who actually witnessed the execution, suggests here, this was a "macabre spectacle in a nation that preaches godly virtue to the world while resisting a global march away from the Medieval practice of capital punishment." But he was okay with it - as were most people.

__

It should be noted the next controversial death penalty case where there is a question of whether clemency should be granted is not the one out here with the seventy-five-year-old blind man in the wheelchair. This one concerns one Cory Maye of Jefferson Davis County, Mississippi.

Here's a quick summary -

In the process of executing a warranted no-knock search on Maye's neighbor in the middle of the night, cops burst into Maye's home, unannounced. Maye woke up and, fearing for his life (that of his 18-month-old child), fired on one of the police, who later died from the wound. The cop's death is a horrible tragedy, but the cause was the cops' mistake - breaking down the door of the wrong home - not Cory Maye's. If Maye reasonably believed his life was in danger, the shooting was self-defense.

Well, he was convicted of first-degree murder, given the death penalty, and scheduled for execution.

Read all about it here - all the details and lots of links. The local police mistakenly break down the door of a sleeping man, late at night, as part of drug raid. But the man wasn't named in the warrant, and wasn't a suspect. The man, frightened for himself and his infant daughter, fires at an intruder who had just rushed into his bedroom after the door had been kicked in.

The problem?

The man, who is black, has just killed the white son of the town's police chief. Oops. The police apparently beat Maye pretty comprehensively after he was arrested. And he's summarily convicted and sentenced to death by a mostly white jury. The man has no criminal record, and police changed their story about finding traces of drugs in his possession at the time of the raid. They turn up the next day, oddly enough.

Yeah, right.

This should be interesting.

Posted by Alan at 21:30 PST | Post Comment | Permalink
Updated: Wednesday, 14 December 2005 07:08 PST home

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