Monday, July 31, 2006

Signing Statements

Sunday, July 30, 2006

A Lesson on the Flag Burning Amendment

If you click this link, would it be a crime for you to close your browser window?

(via Prof. Myers at Pharyngula)

Thursday, July 27, 2006

Ignoring Hamdan: With Justifications for Warrantless Surveillance and Torture in Shambles, Bush Administration Pretends Not to Notice

(updated below, with correction)

My latest column for the Legal Intelligencer is now online. Here's the lede:
In last month’s landmark U.S. Supreme Court decision Hamdan v. Rumsfeld, the Supreme Court held that the Guantanamo Bay military tribunals violate the laws of war and the Uniform Code of Military Justice (UCMJ). The court held that Common Article 3 of the Geneva Conventions governs as a matter of treaty obligation to all conflicts, including those involving so-called “enemy combatants,” the category invented by Bush administration lawyers to skirt the Geneva Conventions’ rules and allow the president to order prohibited conduct.

One clear implication of the decision was that a wide range of torture and harsh interrogation techniques that arguably do not violate constitutional “due process” obligations remain illegal under Geneva and U.S. statutes implementing it, such as the War Crimes Act, the 1994 anti-torture statute and the UCMJ. Another was that the only real defense for the Bush administration’s warrantless surveillance programs that ignored the Foreign Intelligence Surveillance Act (FISA) had been devastated.
Full text of the article here.


TChris at TalkLeft points out one place where the Bush Administration is following Hamdan's holdings: it is seeking legislation from Congress that would override the Geneva Convention. By making violation of Geneva legal, this would appear to meet the Hamdan majority's objection, and in the words of Attorney General Gonzalez, render Geneva "quaint." As a matter of domestic constitutional law, the most recent directly conflicting law or treaty governs.
Not unexpectedly, the White House is doing its best to circumvent the Supreme Court's Hamdan decision. A draft of the administration's proposed legislation would purport to codify the president's authority to try (if and when he gets around to it) detainees before the same military commissions that the Court found wanting in the Hamdan case.

The draft bill would permit secret trials, secret even from the detainee, who could be excluded. The bill would allow convictions to be based on hearsay, depriving the detainee of the opportunity to confront his accuser, and would allow evidence obtained by coercion to be used against the detainee.
Professor David Cole explains why such a move would be legal, but foolhardy:
Were Congress to approve the tribunals in their present form, it would thereby be authorizing a violation of Common Article 3. Congress unquestionably has the legal power, as a matter of domestic law, to authorize such a violation. Treaties and legislation are said to be of the same stature, and therefore Congress may override treaties by enacting superseding laws. But passing a law that blatantly violates a treaty obligation is no small matter. And the U.S. has a strong interest in respecting the Geneva Conventions, since they protect our own soldiers when captured abroad. It is one thing to put forward an arguable interpretation of the treaty, as the administration did in contending that Common Article 3 simply did not apply in Hamdan's case. It is another thing to blatantly violate the treaty. As a result, the Hamdan decision is likely to force the administration to make whatever procedures it adopts conform to the dictates of Common Article 3.
Kagro X at the Next Hurrah has more on how Hamdan is "not applicable to torture, spying, or... Hamdan."

Second Update:

Correction: Contrary to what I wrote in the column, it wasn't Eisenhower who backed down following the Youngstown Steel Seizure case. It was Truman:
Within minutes of the Court's ruling Truman ordered Commerce Secretary Charles Sawyer to return the steel mills to their owners. Sawyer did so immediately. The Steelworkers went out on strike again shortly thereafter. The strike lasted for more than fifty days until the President threatened to use the somewhat cumbersome procedures under the Selective Service Act to seize the mills.

Truman was stunned by the decision, which he continued to attack years later in his Memoirs. Justice Black was concerned enough that Truman would take the decision personally that he invited Truman and his fellow Justices to a party at his home. Truman, still smarting from the defeat, was mollified somewhat by Black's hospitality; as he told Black, "Hugo, I don't much care for your law, but, by golly, this bourbon is good".
(hat tip to Steve Vladeck for the correction)

Tuesday, July 25, 2006

Blogs Will Not Replace the Mainstream Media

Briefly stated:
In short, blogs are a pretty good substitute for an op-ed page. They are rarely good substitutes for news reporting.
They are also great sources of expertise, analysis and in depth focus on particular issues. Another excellent use is for aggregating a much wider range of sources, perspectives and stories than could ever be done in a single newspaper.

(hat tip to Ezra Klein)

Judge Dismisses NSA Surveillance Lawsuit

From Business Week Online:
"The court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government's intelligence activities," U.S. District Judge Matthew F. Kennelly said.
It's not the last case on this issue, but the President's alleged right to secretly spy on Americans in violation of the law without telling Congress scored a win here.

Innocent People Placed on Terrorist Watch List Just to Meet Homeland Security Quotas and Earn Bonus Pay

The lede from ABC News in Denver:
You could be on a secret government database or watch list for simply taking a picture on an airplane. Some federal air marshals say they're reporting your actions to meet a quota, even though some top officials deny it.

The air marshals, whose identities are being concealed, told 7NEWS that they're required to submit at least one report a month. If they don't, there's no raise, no bonus, no awards and no special assignments.

"Innocent passengers are being entered into an international intelligence database as suspicious persons, acting in a suspicious manner on an aircraft ... and they did nothing wrong," said one federal air marshal.
Another key graf:
What kind of impact would it have for a flying individual to be named in an SDR?

"That could have serious impact ... They could be placed on a watch list. They could wind up on databases that identify them as potential terrorists or a threat to an aircraft. It could be very serious," said Don Strange, a former agent in charge of air marshals in Atlanta. He lost his job attempting to change policies inside the agency.
One more:
"To meet this quota, to get their raises, do you think federal air marshals in Las Vegas are making some of this stuff up?" Kovaleski asked.

"I know they are. It's a joke," an air marshal replied.
Even if the so-called "Terrorist Surveillance Program" were as limited as President Bush claims (only listening to calls if someone who is a terrorist or is suspected of being a terrorist is on the phone), I imagine that being on these air marshal list would also open you up to the NSA listening to your calls without even any secret FISA court warrants. Providing incentives to create mistakes in labeling Americans for suspicion is not a good idea.

Sunday, July 23, 2006

Yet A Few More Bad Apples . . .

. . . from a Rotten Branch

DK, guest-blogging at Talking Points Memo points to a new Human Rights Watch report that "collects accounts from soldiers in Iraq who participated in and witnessed detainee abuse."

We've all known about a lot of this "no blood, no foul" nonsense for a long time know, including the fact that authorization came directly from the top, including Secretary of Defense Donald Rumsfeld and the President of the United States for abuse, mistreatment, and torture, in violation of the Geneva Conventions and U.S. laws against torture. DK was "struck by the existence of written documentation authorizing the abuse." He points to two key excerpts:
In March 2004, when Lagouranis and another interrogator voiced concerns about the techniques, their supervising MI officer provided them with an Interrogation Rules of Engagement card, authorizing the use of dogs, exposure to hot and cold temperatures, sleep deprivation, forced exercises and use of painful stress positions, and environmental manipulation (allowing strobe lights and loud music):

When we were doing that stuff it was under the direction of Chief Warrant Officer [name withheld]; he was telling us, this is what he wants. But when he told us this, you know, of course, we got a little worried. So we asked for IROE [Interrogation Rules of Engagement] and he gave us the IROE that his unit was supposedly using.

I think it was sort of an outdated IROE now that I think about it, because I felt—because I saw others later that were different. I think he was using one from Afghanistan or something like that. But everything that he said, as far as I could tell, was it was legal on the IROE [i.e., the techniques were detailed in the IROE:] that we could use dogs, we could use environmental manipulation, sleep deprivation, sort of stress positions. But who knows—I don't know if it was legal or not, what we were doing.
But what torture bureaucracy would be complete without a computerized torture template checklist?
There was an authorization template on a computer, a sheet that you would print out, or actually just type it in. And it was a checklist. And it was all already typed out for you, environmental controls, hot and cold, you know, strobe lights, music, so forth. Working dogs, which, when I was there, wasn’t being used. But you would just check what you want to use off, and if you planned on using a harsh interrogation you’d just get it signed off.

I never saw a sheet that wasn’t signed. It would be signed off by the commander, whoever that was, whether it was 03 [captain] or 06 [colonel], whoever was in charge at the time. . . . When the 06 was there, yeah, he would sign off on that. . . . He would sign off on that every time it was done.
Anyone who believes it was just a few bad apples is fooling themselves.

If you want to read up on the applicable legal standards, which are confirmed to be applicable following Hamdan, read here.

Saturday, July 22, 2006

Neoconservatism Jumps the Shark (Again)

Updated twice below

Cartoonist Predicts the Future, Neoconservatives Play Along

As if the invasion of Iraq to find nonexistent WMDs based on crude forgeries from Italy ordered by somebody that nobody appears interested in investigating were not ridiculous enough, we now are forced to witness crude calls from Fox News and frenzied voices across the neoconservative spectrum for the U.S. to commit itself to World War III (or IV, depending on who you ask), and go on to invasions of Syria or Iran (for the sake of peace and democracy and "benevolent global hegemony"!). Deja vu much?

I, and many others, have pointed out that Iran has long been seen as the telos, the end point, of the Bush Administration's War in Iraq:

"Anyone can go to Baghdad. Real men go to Tehran."
--Senior Bush Official, May 2003

The Anonymous Liberal believes that neoconservatism has finally jumped the shark:

And it [the domino theory of Mideast adventurism in for the sake of Freedom] sounded good; it was a hit. Still reeling from 9/11, many otherwise sober thinkers eagerly lapped it up. But it was unsustainable. Reality eventually caught up with the neocons. Rather than reshaping the Middle East to our liking, the war in Iraq bogged down our armed forces, emboldened our enemies, diminished our influence and credibility, and greatly limited our options in dealing with other potential threats.

Unwilling to acknowledge these facts, but lacking any new material, the neocons found themselves in a bit of a rut. So, like sitcom writers trying to milk a few more laughs out of an increasingly overused catch-phrase, the neocons shifted gears ever so slightly and began calling for regime change again, this time in Iran. At this point, Kristol, Steyn, and company were increasingly looking like caricatures of themselves, but their views were still given a polite audience and considered "serious."

But then Israel entered the picture. Provocative acts by Hamas and Hezbollah led to a major Israeli offensive against both groups. Virtually overnight, Southern Lebanon was once again a war zone. This sudden and unexpected escalation of the Israeli conflict inspired the neocons. Before long they were engaged in the kind armchair war-mongering not seen since the heady days of 2003.

In a column in the Weekly Standard entitled "It's Our War", Bill Kristol called for regime change in Syria and Iran, including an immediate military strike against Iran's nuclear facilities. He also called upon President Bush to leave the G8 summit, fly directly to Israel, and declare our intention to join the conflict against Israel's enemies. Other neoconservative pundits such as Michael Ledeen, John Podhoretz, John Hinderaker quickly joined Kristol's call to arms.

But I suspect Kristol's column will be remembered more for the people it shocked than the people it convinced. If there was a moment when neo-conservatism officially jumped the shark, this was it.
Digby recognizes that the Neocons' dreams of a general Middle Eastern War have been long announced, but hardly taken seriously enough:

When are Americans going to take the neocons seriously?

I'm not talking about the Republican party here or the movement conservatives. I'm speaking specifically of the group that can be called the true neocons of the era: The PNAC signatories and their supporters throughout the rightwing think tank intelligensia.

. . .

Despite a reputation for Straussian opacity, the truth is that they have always made their plans known. There is no mystery about what they are about. To a shocking degree they have successfully promoted their agenda within the Republican establishment for the last two decades. And in the last six years we have seen them act without hesitation to opportunistically advance their strategic goals, regardless of the price.

These guys have been around for a long time, but I honestly never thought they would ever be granted the kind of power they would need to do what they sought to do.

How foolish of me.
(On a slightly off-topic note, here is a scholarly essay on Strauss by Scott Horton at Balkinization: Was Leo Strauss democracy’s best friend? In a letter written at the time of his emigration, Strauss describes his political principles - Fascist, Authoritarian, Imperialist) believes War Itself is the goal:

Now, you could marvel at the brazenness of all this: the same people who helped lead us into the biggest foreign policy disaster in 30 years trying to push another war (or wars) on us without so much as a prefatory “sorry about the whole Iraq thing, old boy.” But the current squawking also strikes me as a useful reminder of how very, very important war is in the neoconservative vision. It is as central to that vision as peace is to the classical liberal vision.

For the neoconservatives, it’s not about Israel. It’s about war. War is a bracing tonic for the national spirit and in all its forms it presents opportunities for national greatness. “Ultimately, American purpose can find its voice only in Washington,” David Brooks once wrote. And Washington’s never louder or more powerful than when it has a war to fight.

. . .

It could be the Serbs. It could be Iraq. If we’re really feeling our oats, it might even be China. Even now, when the United States faces a genuine enemy in Al Qaeda, some neoconservatives are hedging their bets: If we wrap up this war on terror thing too quickly, let’s give great-power conflict a chance.

Who we’re fighting is secondary. That we’re fighting is the main thing. To be a neoconservative is to thrill to the sound of gunfire. (From a nice, safe distance, generally.)
If fighting itself is the goal, Billmon shows that the Iraq War has been an unqualified success:

But the sheikh's pronouncement, coupled with the unexpected developments on the Kurdistan front, serves as a reminder of how complex the mosaic of conflict is getting in the Middle East. So many hatreds, so little time!

Let's see. We've got: Israeli Jews fighting Lebanese Shi'a and Palestinian Sunnis; Palestinian Fatah militants who've stopped fighting Hamas militants, but only because they're both fighting the Israelis; Saudi Sunni fundamentalists issuing fatwas against Hezbollah Shi'a fundamentalists; Egyptian Sunni fundamentalists backing those same Hezbollah Shi'a fundamentalists; Iraqi Sunnis killing Iraqi Shi'a and vice versa; Iraqi Shi'a (the Mahdi Army) jousting with Iraqi Shi'a (the Badr Brigade); Iraqi Kurds trying to push Sunni Arabs and both Sunni and Shi'a Turkomen out of Kirkuk; Turks threatening to invade Kurdistan; Iranians allegedly shelling Kurdistan, Syrian Kurds rebelling against Syrian Allawites who are despised by Syria's Sunni majority but allied with the Lebanese Shi'a who are hated and feared by the House of Saud and its Sunni fundamentalist minions. Oh, and American and Israeli neocons threatening to bomb both Syria and Iran.

. . .

It's been the neocon habit to pooh-pooh stability as a false comfort. But if something isn't done to restrain the hatreds and keep them from multiplying, one of these days soon the region (and all who depend on the region's oil) may find out what it feels like to trade in a false comfort for a real nightmare.
Meanwhile, Bush appears to have little interest in interceding in the fighting between the Israelis, Palestinians, Lebonese, and Hezbollah:

One former senior administration official said Bush is only emboldened by the pressure from U.N. officials and European leaders to lead a call for a cease-fire . . . "He thinks he is playing in a longer-term game than the tacticians," said the former official, who spoke anonymously so he could discuss his views candidly. "The tacticians would say: 'Get an immediate cease-fire. Deal first with the humanitarian factors.' The president would say: 'You have an opportunity to really grind down Hezbollah. Let's take it, even if there are other serious consequences that will have to be managed.' "
Secretary of State Rice appears to be of the same opinion:

"What we're seeing here, in a sense, is the growing -- the birth pangs of a new
Middle East."
Digby reads these remarks as a "moment of clarity":

The conflict in the mideast has always had a certain kabuki element. In the past when these situations would flare up, Israel would take an aggressive action to demonstrate that it wasn't a pushover and the US would step in like a Dutch uncle and reluctantly pull the pissed off Israelis back. In a dangerous part of the world, these face-saving kabukis can prevent things from hurtling out of control while allowing each side to stage a little bloodletting. It's an ugly, ugly business, but ultimately it has managed to help keep this volatile region from hurtling out of control. The "honest broker" thing may have always been phony, but sometimes a phony "honest broker" is all you need.

This time, the US has abandoned that role and they are letting Israel off the leash to do some real damage before they "step in."

. . .

I haven't bought into all the 1914 stuff that's been going around, but I'm heading that way. It will be sheer luck if we avoid serious consequences from letting these dimwit megalomaniacs loose on the world.

Maureen Dowd is highly critical of Bush's and Rice's comments:

Condi doesn’t want to talk to Hezbollah or its sponsors, Syria and Iran — “Syria knows what it needs to do,’’ she says with asperity — and she doesn’t want a cease-fire. She wants “a sustainable cease-fire,’’ which means she wants to give the Israelis more time to decimate Hezbollah bunkers with the precision-guided bombs that the Bush administration is racing to deliver.

“I could have gotten on a plane and rushed over and started shuttling, and it wouldn’t have been clear what I was shuttling to do,” she said.

Keep more civilians from being killed? Or at least keep America from being even more despised in the Middle East and around the globe?

. . .

Having inadvertently built up Iran with his failures in Iraq, W. is eager now to send Iran a shock-and-awe message through Israel.

The Bush counselor Dan Bartlett told The Washington Post that the president “mourns the loss of every life, yet out of this tragic development he believes a moment of clarity has arrived.”

W. continues to present simplicity as clarity. When will he ever learn that clarity is the last thing you’re going to find in the Middle East, and that trying to superimpose it with force usually makes things worse? That’s what both the Israelis and Ronald Reagan learned in the early 1980’s when they tried disastrously to remake Lebanon.

The cowboy president bet the ranch on Iraq, and that war has made almost any other American action in the Arab world, and any Pax Americana that might have been created there, impossible.
Digby reaches into the Memory Hole and pulls out this flawed gem:

"God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them."
Prof. Juan Cole is left "shaken and trembling" at Bush's simplistic, fictional view of the world.

Reviewing the same discussion as Cole, Cenk Uygur is left more shaken by Bush's proud understanding that "Russia's big and so is China."

Almost lost in the shadows of the Iraq War and the Lebonon War, let's not forget that the ostensibly proximate reason for our current posture in the Middle East is Al Qaeda, which is still out there.

Despite all of this insanity, John in DC at AMERICAblog notes that, unbelievably, Republicans plan to run on their adeptness at national security and war issues:

I swear, there is no carnage, no mayhem, no disaster that the Republicans won't try to turn around to their advantage. They ignore the Middle East, war erupts, they do nothing about it, and now Cheney is out there saying that this shows everyone should vote Republican. Uh huh.

So, why not help Cheney out. What other great issues should the Republicans run on this fall?

- Losing New Orleans
- Ignoring North Korea
- Botching Iraq
- Doing nothing about high gas prices
- Trying to privatize social security
- Screwing Alzheimers and Parkinsons patients by vetoing stem cell research
- Polluting the environment
- Breaking the budget
Makes sense to me. But he forgot:

- "Compassionate conservatism";
- Failing to fund or begin serious rebuilding in New Orleans;
- Cutting anti-terrorism funding for New York City;
- Illegal warrantless surveillance on U.S. citizens;
- The (rejected and discredited) claim that the President is the Unitary Authority on all national security issues and laws concerning torture (ordered by the Secretary of Defense, who is still employed), Spurious claims to have the authority to set aside laws he dislikes after signing them into law;
- Calls to jail journalists for the content of their speech;
- Seriously contemplating a nuclear first strike;
- and the Congressional Republicans' refusal to do anything about any of this, but instead scapegoating immigrants and gays.

Digby sees a "tipping point" in many voters' "comfortable understanding of the two parties: the Republicans are tough men who can handle national security and the Democrats are sensitive women who will help you when you need help (if you're a pathetic loser who actually needs help that is.)"

The upcoming midterms should be a pretty good indication of whether he's right.


Greenwald has more in "Neoconservatism and the White House -- Still Married"

Lawyers, Guns & Money discusses the weakness of the "resolve" argument.

Gregory Djerejian delivers "A Plea for Basic Sanity: No To A Neo-Con Ressentiment":

Three years ago, I would have poo-pooed anyone using the word "radicals" to describe the neo-cons. No more. Any group that can so brazenly (and breezily) avoid a real reckoning with the continuing crisis in Iraq--which is descending into civil war as we speak--any movement that has the gall to suggest as some panacea that we mount significant military operations in Iran and Syria and god knows where else (with Israel in Lebanon to boot), well, their credibility is at a very low ebb indeed, and they very much need to be urgently reined in. Yes, it is scary when, in the pages of respectable papers like the FT, one hears more and more the intimations there is something of a bona fide radical-wing in Washington. Could it be, you know, true? Well, we're getting there, it seems...To help stem the follies, it is time to call spades, spades. Is it not, for instance, and as George Will has pointed out, a grotesque misnomer to describe the neo-cons as resembling anything remotely conservative anymore, given that they appear blissfully unawares of the resource strains we are operating under given the hot wars in Iraq and Afghanistan, and given how gungo-ho at the ready they are to pursue their neo-Trotskyite fantasies by moving into wars Nos. 3 and 4 in the 'region'?
Crooks and Liars has video of Chris Matthews and Pat Robertson discussing the issue:

MATTHEWS: We’ve killed 50,000 Iraqis in a war that was supposed to be a two-day wonder. When are we going to notice that the neocons don’t know what they’re talking about? They’re not looking at this country’s long term interest. They’re bound up in regional and global ideology and they have had no experience, I’ll say it again, in even a schoolyard fight. They don’t know what physical fighting is all about. They went to school and were intellectuals but they want our government to be their big brother. I don’t get it. I don’t know why we keep falling for it. And the President, you say, is he free of these guys or not?

BUCHANAN: Well, the President, he fell for it after 9/11 when they put that little pre-cooked meal in front of him, after they knocked down Afghanistan. And so they said, "Let’s do Iraq now." And Wolfowitz and all the rest of them. But let me say this, Chris. I think the president realizes now that we went into Iraq to pursue weapons that did not exist, a country that did not attack us, did not threaten us, and now we have created a great base camp for terrorism in the Anbar province that did not exist. In response to Mr Shrum, you attack Iran, Hezbollah will retaliate against the 25,000 Americans in Lebanon. You will have massive hostage taking and killings. Are these people nuts? You’ve got to ask yourself. I certainly hope the president is not listening to them because I really question whether they’ve got America’s national interest at heart. They’re calling for wars against people that never attacked us. I don’t care how bad they are. There are wicked people all over this world but you don’t go after people unless they come after you.

Second Update:

Prof. Cole has a post up with the following intriguing detail: "Matthew Kalman reveals that Israel's wideranging assault on Lebanon has been planned in a general way for years, and a specific plan has been in the works for over a year. The 'Three Week War' was shown to Washington think tanks and officials last year on powerpoint by a senior Israeli army officer."

After a length excerpt he states:
That is why I was so shaken by George W. Bush's overheard conversation with Tony Blair about the war. He clearly thought that it broke out because Syria used Hizbullah to create a provocation. The President of the United States did not know that this war was a long-planned Israeli war of choice.

Why is that scarey? Because the Israeli planning had to have been done in conjunction with Donald Rumsfeld at the US Department of Defense. The US Department of Defense is committed to rapidly re-arming Israel and providing it precision laser-guided weaponry, and to giving it time to substantially degrade Hizbullah's missile capabilities. The two are partners in the war effort.

. . .

What is scary is that Cheney and Rumsfeld don't appear to have let W. in on the whole thing. They told him that Bashar al-Asad of Syria stirred up a little trouble because he was afraid that Iraq the Model and the Lebanese Cedar Revolution might be such huge successes that they would topple him by example (just as, after Poland and the Czech Velvet Revolution, other Eastern European strongmen fell). (Don't fall down laughing at the idea of Iraq and Lebanon as Republican Party success stories; people in Washington, DC, coccoon a lot and have odd ideas about the way the world is.) So, Bush thought, if that is all that is going on, then someone just needs to call al-Asad and reassure him that we're not going to take him out, and get him to rein in Hizbullah. And then the war would suddenly stop. No one told Bush that this war was actually an Israeli war of choice and that al-Asad had nothing to do with it, that, indeed, it could only happen because al-Asad is already irrelevant.

. . .

By its assault on Middle Eastern states, whether it takes the form of military confrontation or of "pressure" to "democratize, Neoconservatism in Washington and Tel Aviv has increased the power and saliency of militia rule throughout the region. The transition under American auspices of Iraq from a strong if odious central state to equally odious militia rule and chaotic violence is only the most obvious example of this process. More people have been killed in terror attacks in Iraq every month since February than were killed on September 11, 2001 in the US, and since Iraq is 11 times less populous than the US, the 6,000 killed in May and June are equivalent to 66,000 killed in civil war violence in the US. Condi Rice echoes the old Neocon theory of "creative chaos" when she confuses the Lebanon war with "the birth pangs" of a "new" Middle East. The chief outcome of the "war on terror" has been the proliferation of asymmetrical challengers. Israel's assault on the very fabric of the Lebanese state seems likely to weaken or collapse it and further that proliferation. Since asymmetrical challengers often turn to terrorism as a tactic, the "war on terror" has been, at the level of political society below that of high politics and the state, the most efficient engine for the production of terrorism in history.
After making very clear how angry he is with the lot of American neoconservative war theorists, James Wolcott notes how "the neocons remain ravenous in their hunger to widen the theater of war, their propaganda/disinformation apparatus unchastened by their appalling misjudgements over Iraq and their cynical playing on the public's fear and Bush's sense of mission." Giving the most recent example, Wolcott takes issue with Amir Taheri, who Wolcott has "come to think of" as "Ahmad Chalabi 2.0." He continues:
Just as Chalabi schmoozed, exaggerated, and lied in his role as neocon lobbyist and go-between to draw the U.S. into Iraq, where he could nobly serve as America's handpicked puppet, Taheri has been brewing dark clouds of impending-doom-if-America-doesn't-act-now in op-ed after op-ed and bubbling springs of bullshit,* taking his case to the White House, where any knave is welcome if he furthers the War Party's agenda.

Taheri is also author of a not inconsiderable fib about yellow badges, intended to raise the always potent specter of Nazi Germany and hasten a reckoning with the Iranian regime.
Perhaps someday he, like Chalabi, will be able to crow among the ruins that he too is a 'hero in error.' Crows feed on carrion, after all.

*"It was in 1989 that Taheri was first exposed as a journalistic felon," wrote Larry Cohler-Esses in The Nation. "The book he published the year before, Nest of Spies, examined the rule and fall of the Shah of Iran. Taheri received many respectful reviews, but in The New Republic Shaul Bakhash, a reigning doyen of Persian studies, checked Taheri's footnotes. Suddenly a book review became an investigative exposé. Bakhash, a history professor at George Mason University and a former fellow at Princeton's Institute for Advanced Study, detailed case after case in which Taheri cited nonexistent sources, concocted nonexistent substance in cases where the sources existed and distorted the substance beyond recognition when it was present. Taheri 'repeatedly refers us to books where the information he cites simply does not exist,' Bakhash wrote. 'Often the documents cannot be found in the volumes to which he attributes them.... [He] repeatedly reads things into the documents that are simply not there.' In one case, noted Bakhash, Taheri cited an earlier article of his own--but offered content he himself never wrote in that article. Bakhash concluded that Nest of Spies was 'the sort of book that gives contemporary history a bad name.' In a response published two months later, Taheri failed to rebut Bakhash's charges."
Cross-posted as a Daily Kos diary

Friday, July 21, 2006

Judge Allows NSA Case to Move Forward; Bush Administration Continues to Ignore Hamdan

Glenn Greenwald details the Northern District of California's rejection of the Bush Administration's motion to dismiss on state secrets grounds the illegal NSA surveillance lawsuit brought against AT&T. Here's his lede:

The Bush adminstration suffered an enormous defeat today, as a federal district court denied its motion to dismiss the lawsuit brought by the Electronic Frontier Foundation against AT&T, which alleges that the administration's NSA warrantless eavesdropping program (and AT&T's cooperation with it) is illegal. Most significantly, the district court, which is in the Northern District of California, rejected the administration's claim that allowing the litigation to proceed would jeopardize the disclosure of "state secrets," a doctrine which the administration has repeatedly exploited to prevent judicial review of its conduct. Traditionally, courts almost always defer to the executive's invocation of that claim and accept the President's claim that national security requires dismissal of the case. But this time, the court rejected that claim.

In a subsequent post, Greenwald ties this important decision to the need to block Arlen Specter's unbelievably stupid and irresponsible attempt to allow unlimited warrantless surveillance outside of the FISA court's procedures, and to end this important judicial review.

Prof. Marty Lederman has a refresher course for Arlen Specter on the Supreme Court's landmark Youngstown decision on the limits of executive power.

In related news, Lederman explains how the Bush Administration is continuing to assert the legal theories repudiated by the Supreme Court in Hamdan as if Hamdan never happened:
As I noted here, DOJ is asserting the rather remarkable view that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program." A response to this proposition from a group of constitutional scholars and former government officials (of which I am part) is here.

On Monday, DOJ submitted answers to 109 Questions on the NSA/FISA issue that the Senate Judiciary Committee posed to the Attorney General following his testimony last February. It's about what you'd expect: DOJ refuses to answer virtually all factual inquiries about the NSA program; strongly suggests that there are other secret surveillance programs in addition to the "Terorrist Surveillance Program" that are not limited in the ways the TSP is said to be; and won't reveal any internal deliberations or memoranda -- except, of course, those that it chooses to disclose.

Saturday, July 15, 2006

What is Arlen Specter Thinking?

One of the first posts on this blog was a direct appeal to Arlen Specter to stick up for Congressional Power in the face of lawbreaking and unconstitutional assertions of total Executive authority.

I got a nice form letter back from him after mailing off my thoughts, but we now see that despite his occasional murmorings about reining in the President's illegal programs and dangerous theories, Specter decided instead to give up everything, in a so-called "compromise."

Compromising nothing, the President instead would get everything, as explained helpfully by Prof. Jack Balkin:
In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.
Prof. Marty Lederman terms it the "Specter Monstrosity." Prof. Orin Kerr has further analysis.

Even the Washington Post (eventually, after its news division got the story exactly wrong) realized this:
SENATE JUDICIARY Committee Chairman Arlen Specter (R-Pa.) has cast his agreement with the White House on legislation concerning the National Security Agency's warrantless surveillance as a compromise -- one in which President Bush accepts judicial review of the program. It isn't a compromise, except quite dramatically on the senator's part. Mr. Specter's bill began as a flawed but well-intentioned effort to get the program in front of the courts, but it has been turned into a green light for domestic spying. It must not pass.

. . .

This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power. Mr. Specter has not been briefed on the NSA's program. Yet he's proposing revolutionary changes to the very fiber of the law of domestic surveillance -- changes not advocated by key legislators who have detailed knowledge of the program. This week a remarkable congressional debate began on how terrorists should face trial, with Congress finally asserting its role in reining in overbroad assertions of presidential power. What a tragedy it would be if at the same time, it accede to those powers on the fundamental rights of Americans.
Georgia10 explains how Specter completely caved:
To the reporters who tout this as a "compromise" measure, please direct me to the exact part of the bill that reflects any sort of concession by the White House. Let's recap, shall we?
  • Telecom executives won't be forced to testify before Congress.
  • The President is still free to use one of his infamous signing statements to avoid complying with the law. Indeed, the bill explicitly states that it "does not unconstitutionally retract any constitutional authority the president has" to collect information from foreign nations and their agents.
  • As far as I can tell, the bill doesn't mandate that the program go to the FISA court for review. According to the New York Times, "The White House insisted that the language of Mr. Specter's proposal make it optional, rather than mandatory, for the administration to submit the program to the court because Mr. Bush was concerned about lessening "the institutional authority of his office," Mr. Specter said."
  • According to Specter, the FISA court wouldn't have to make its findings public. So it could find the program unconstitutional, but no one would know its decision to be able to enforce it.
  • Oh, and it gives the President the power to order anyone to spy on Americans without a court order:
The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order. It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight. It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal towiretap outside of FISA at the direction of the president. link
But all of this is the side salad to the main entry--killing off the current lawsuits challenging the program. There are dozens of them initiated throughout the nation (the latest estimate I've come across is about 100. Seems high, though not entirely impossible). Each of those represents a chance that the program would be declared unconstitutional.

Specter's bill gives the government the power to halt all of these lawsuits and drag them into the dark shadows of the FISA court. It allows Gonzales--through a mere affidavit that the public proceedings may harm national security--to force a transfer to the super-secretive FISA court. Adjudication before the FISA court means that outside attorneys would not be able to present their client's cases to the court. It means limited access to evidence. It means secret decisions. And if that isn't repulsive enough, the FISA court would be allowed to dismiss a challenge to the spying program "for any reason."

The Specter "Compromise" bill should be vehemently opposed. Rep. Jane Harman sounds like she gets it.
    (The Editors are grateful for "small government conservatives" and their love for Calvinball.)

    Tuesday, July 11, 2006

    Lieberman of the Lieberman Party

    In a show of the strength, confidence and conviction that we all know him for, Joementum laid the groundwork today for running for Senate in the event (just in case) he loses the Connecticut Democratic Party primary to Ned Lamont: he filed papers to run in the "Connecticut for Lieberman" party. So how do you designate his party affiliation after his name?

    I'll go with Lieberman (Lieberman-CT).

    Thermonuclear Blog Warfare

    What has dancing furry conventioneers and Morman rap, a Shatner video followed by a Leonard Nimoy music video, another Shatner video, but this one followed by Connie Chung, long uncomfortable moments with Chewbacca's family and Kids Incorporated, “Dschinghis Kahn” and Octopus Bomb, Starbucks employees singing We Built This City, Teen Steam and Wendy's grill skillz, inexplicably annoying music videos from artists like Carl Lewis, Tiny Tim, Hasselhoff, more Hasselhoff, the Beach Boys, Billy Squier, Wesley Willis, Dio, Pat Benatar, Dr. Hook, and assorted bad hair bands, Princess Leia singing, Mr. T fashion design, and a grudge match between Colin Powell and John Ashcroft?

    Answer: The Great Annoying Video War of Aught-Six.

    All of this senseless violence... senseless.


    Hostilities are continuing.

    And, now there's a dedicated new player in the mix, Axis of the Really Annoying.

    Monday, July 10, 2006

    The Swiftboating of Jack Murtha

    Taylor Marsh has a must-read compilation of the vast, varied and apparently coordinated attack launched against decorated veteran and longtime hawk turned Iraq War gadfly Rep. John Murtha (D-Pa). Truly ugly stuff.

    Wednesday, July 05, 2006

    Military and Bush Administration Divide Over Iran

    Sy Hersh has much more reporting on the simmering dispute with Iran, including the military's "rebellion" over plans that include use of nuclear weapons there:
    In late April, the military leadership, headed by General Pace, achieved a major victory when the White House dropped its insistence that the plan for a bombing campaign include the possible use of a nuclear device to destroy Iran’s uranium-enrichment plant at Natanz, nearly two hundred miles south of Tehran. The huge complex includes large underground facilities built into seventy-five-foot-deep holes in the ground and designed to hold as many as fifty thousand centrifuges. “Bush and Cheney were dead serious about the nuclear planning,” the former senior intelligence official told me. “And Pace stood up to them. Then the world came back: ‘O.K., the nuclear option is politically unacceptable.’ ” At the time, a number of retired officers, including two Army major generals who served in Iraq, Paul Eaton and Charles Swannack, Jr., had begun speaking out against the Administration’s handling of the Iraq war. This period is known to many in the Pentagon as “the April Revolution.”

    “An event like this doesn’t get papered over very quickly,” the former official added. “The bad feelings over the nuclear option are still felt. The civilian hierarchy feels extraordinarily betrayed by the brass, and the brass feel they were tricked into it”—the nuclear planning—“by being asked to provide all options in the planning papers.”

    There's much more here.

    Fox News Host: Dept. of Censorship Needed

    NSA Spying May Have Preceded 9/11

    One of the Bush Administration's continual justifications for the warrantless, illegal and unconstitutional spying on American citizens is that 9/11 "changed everything," and that our civil liberties and laws restricting surveillance without court oversight were rendered quaint by September 11. According to
    The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

    . . .

    The NSA initiative, code-named "Pioneer Groundbreaker," asked AT&T unit AT&T Solutions to build exclusively for NSA use a network operations center which duplicated AT&T's Bedminster, New Jersey facility, the court papers claimed. That plan was abandoned in favor of the NSA acquiring the monitoring technology itself, plaintiffs' lawyers Bruce Afran said.

    Bush, Cheney, Libby and the Exposure of Valerie Plame and CIA Assets Working against WMD Proliferation

    Murray Waas continues to pursue the story of the Bush Administration's response to Ambassador Wilson's op-ed in the New York Times. He reports that "Bush told prosecutors he directed Cheney to disclose classified information that would not only defend his administration but also discredit Wilson."
    But Bush told investigators that he was unaware that Cheney had directed I. Lewis "Scooter" Libby, the vice president's chief of staff, to covertly leak the classified information to the media instead of releasing it to the public after undergoing the formal governmental declassification processes.

    Bush also said during his interview with prosecutors that he had never directed anyone to disclose the identity of then-covert CIA officer Valerie Plame, Wilson's wife. Bush said he had no information that Cheney had disclosed Plame's identity or directed anyone else to do so.

    Libby has said that neither the president nor the vice president directed him or other administration officials to disclose Plame's CIA employment to the press. Cheney has also denied having any role in the disclosure.

    . . .

    A senior government official who has spoken to the president about the matter said that although Bush encouraged Cheney to get information out to rebut Wilson's charges, Bush was unaware that Cheney had directed Libby to leak classified information. The White House has pointed out that the president and vice president have broad executive powers to declassify whatever information they believe to be in the public interest. Meanwhile, court papers filed by Fitzgerald in April suggest that Libby was reluctant to leak any classified information to the press, and only did so after being assured that his actions were approved by both the president and vice president.

    . . .

    A senior government official familiar with the matter said that in directing Libby to leak the classified information to Miller and other reporters, Cheney said words to the effect of, "The president wants this out," or "The president wants this done."

    Rehabilitating Ulysses S. Grant

    Nathan Newman argues that Grant was our "Greatest President":
    What we should honor and remember by honoring Ulysses Grant is that his vision of racial justice was the will of the American people-- all its people -- and that the following hundred years of segregation was an illegitimate betrayal of that democratic will. In that, Grant was the true founder and implementor of the modern American nation of equal rights and if the flowering of that nation was delayed for a century with his departure from office, that's all the more reason to remember his original vision and courage-- and defy those who try to bury that memory.