Balkinization  

Saturday, June 26, 2004

A Good Thing Dick Cheney Wasn't On the Golden Globe Awards

JB

or the Howard Stern Show, or the FCC would have fined his ass. Wait, can I say that on this blog?

Legal Scholars Assess the Torture Memos

JB

Several legal academics, including Cass Sunstein and myself, are quoted in this New York Times article by Adam Liptak on the OLC and Defense Department torture memos. Cass, by nature a gentle soul, does not mince words here: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless." John Yoo, who worked at the OLC when the memos were written, dismisses the criticisms, saying they were mostly "political rather than legal."

Beyond the simple incompetence of these memos, however, is their misunderstanding of the duties of Justice Department lawyers. The Justice Department does not represent the President. It represents the nation. The Justice Department, and particularly the OLC, is not supposed to tell the President how he can get away with whatever he wants to get away with. Rather, its job is to explain to the President how to ensure that the laws be faithfully executed, as the U.S. Constitution puts it. These memos fail that test. Indeed, they go out of their way to make questionable claims about the scope of the President's power, arguing at one point that far from having a duty to faithfully execute the laws, the President is not bound by them at all. These memos do not read as if the authors were acting as counsel for the nation. They read as if someone in the White House told them to write a memo that stretched the law as much as possible in order to conclude that the President can do whatever he wants.

These memos make bad legal arguments. But quite apart from their incompetence, they are also bad lawyering; they misunderstand the ethical role of the government lawyer.

The Clinton Presidencies and The New Coalition

JB

Two valuable posts from Mark Schmitt over at the Decembrist. The first explains that Clinton's Presidency from 1993 through 1994 is quite different from his presidency from 1995 on. The latter, and not the former, involved the famous Clintonian triangulation. Although Mark does not mention it, it is worth pointing out that after 1998 Clinton's tactics changed again. The Lewinsky scandal led him to seek support from Democratic liberals in order to stay alive. However, precisely because of the Lewinsky scandal, he did not in fact make many important domestic policy initiatives during this period, so the alliance with his party's liberal wing did not amount to much.

The second post is about how Kerry can govern if he defeats Bush in 2004:

In short, President Kerry will only be able to govern if he is able to split the Republican Party. The split has already opened thanks to the White House's ideology of total control and the embarrassment and chaos it has caused; Bush's defeat will open it much wider, freeing Republican moderates to acknowledge the insanity of the past three and a half years. But Kerry must complete the split, just as Reagan completed the split of the Democratic Party, and we must allow/encourage him to do it. Otherwise, we're doomed to watch him negotiate the terms of surrender of his presidency to a soulless cat-murderer.

This seems right; I would add another level of analysis. The tenor of Bush's presidency was set early on by the fact that his party controlled all the branches of government although it did not enjoy wide ranging popular support (the Congress was almost evenly divided and Bush lost the popular vote). This encouraged Bush to try to ram though legislation with only a very tiny majority. His Administration wanted to get what it could while it still controlled all the levers of power.

If Kerry wins in 2004, he will face a very different set of considerations. He will probably not control both houses of Congress. That means that he will have to form a working coalition of Democrats and moderate Republicans to push for any of his legislative priorities. Knowing that you must form a bipartisan coalition gives an Administration a very different tone and style than knowing that you don't have to pay very much attention to your political opponents. The alignment of political forces will thus push Kerry toward conciliation and compromise. The frustration of the past four years and a widely shared belief that partisan demonization has gone too far will help him achieve this goal. But everything will not be sweetness and light. Bush partisans will be quite bitter about their loss. If Kerry wants to govern effectively and set a new tone, he will have to reach out to moderate Republicans very early and establish that they matter. That will give people incentives to believe that cooperation is better than divisiveness and confrontation.

On Hating the President

Cass Sunstein

Why did so many people hate Clinton, and why do so many people hate Bush? Here are the rudiments of a tentative general account: 1) The executive branch, in any year or even any month, makes a huge number of decisions. Just as a statistical matter, some of these will inevitably show some kind of major procedural or substantive problem (call these "potential scandals"). The decisions might turn out to be badly wrong. Or there will be at least the perception and possibly the reality of some kind of self-dealing or corruption. Even if a presidential administration shows unimpeachable integrity 99.9% of the time, the 0.1% will produce large numbers; and in the mix will be clear errors of judgment. 2) Countless people have a strong incentive, material or otherwise, to seek out and make loud noise about the potential scandals, and to portray them as much worse than they are. These include political adversaries or members of the news media. If 2) is put together with 1), it's inevitable that a lot of attention will be given to plausible reasons to hate a president. 3) Information spreads quickly, especially among like-minded people; and when like-minded people talk with or listen mostly to one another, they go to extremes. (There's evidence for this in countless domains, including the decisions of federal judges; in many areas of law, Republican appointees get super-conservative when sitting with fellow Republican appointees, and Democratic appointees get super-liberal when sitting only with fellow Democratic appointees.)

The result? A short-hand phrase (eg, the Patriot Act) or even a word or a name (Whitewater, Haliburton, Ashcroft) will soon trigger a set of intense negative associations among basically sensible people, even when the intensity of the negative reaction is quite senseless.

This isn't to deny that distinctive predispositions and interesting mechanisms lie behind, eg, hatred of Clinton or hatred of Bush, and it doesn't take a stand on whether intense negative reactions are justified. The claim is only that because of 1, 2, and 3, hatred of the President, among large numbers of citizens, is inevitable, at least after a nontrivial period of time (eg two years).

David Brooks on the state of liberal public intellectuals

JB

David Brooks thinks American liberals have lost it because Michael Moore is no Jean Paul Sartre. That's a bit like saying that American conservatives are intellectually bankrupt because Rush Limbaugh is no Edmund Burke. Come to think of it, he may be on to something.....

Implicit in Brooks' objection to Michael Moore is that we expect more from liberals-- they are supposed to be even tempered, judicious, able to see the other person's point of view and not given to exaggeration or hyperbole. Indeed, many liberals like to cultivate these traits, because they think that they are necessary to sound public deliberation.

But Brooks does not demand the same of conservatives. I've seen no broadsides from Brooks delivered against Ann Coulter for calling liberals traitors, or against Sean Hannity for his wish that America be delivered from evil, which he helpfully defines as "Terrorism, Despotism, and Liberalism." Excuse me David, but have you seen the trash being poured out in generous heaps by the most popular right wing pundits? Perhaps you should be more focused on preserving the integrity of the public face of American conservatism. No movement should be particularly proud of having Rush Limbaugh, Michael Savage and Bill O'Reilly among its most recognizable spokesmen.



Thursday, June 24, 2004

Why Did The Right Hate Clinton?

JB

Max Boot wonders:

The mystery of Clinton is that he was an essentially conservative president -- perhaps the most conservative Democrat in the White House since Grover Cleveland -- and yet he was loathed by conservatives. So much so that he was accused of all sorts of awful things he didn't actually do, from murdering Vince Foster to being in cahoots with the Chinese. I don't blame Clinton for getting a tad upset about the nutty accusations tossed his way and for not being able to figure out what a good ole boy with a saxophone and a smile had ever done to justify such venom.

Max thinks the answer is character. Kevin Drum thinks it's the culture wars. I have a different theory. Clinton was hated not simply because of who he was but because of the structure of political forces that brought him into power and defined his presidency.

Boot points out that "Clinton's presidency ("The era of big government is over!") essentially ratified the huge transformations wrought by Ronald Reagan." Put more correctly, Clinton understood that the Democrats could get back in the White House if they appealed to parts of the coalition of voters that had elected Ronald Reagan and George H.W. Bush. And so he set out consciously to do that. He fractured the existing winning coalition by producing a combination of economic policies designed to appeal to middle class voters while accepting certain elements of the values agenda that had played so well for the Republicans. He focused on issues like crime and welfare, emphasized his populist roots and religious sensibilities, while at the same time maintaining strong ties to secularism, feminism, and civil rights. In this way Clinton threatened to create a new winning coalition by borrowing the rhetoric of his political opponents and becoming a more "Republican version" of a Democrat.

You might think that Republicans would welcome such a candidate. Well, many independent and moderate republican voters did. But Republican politicians, and the conservative base of the party did not. They believed that Clinton was a Democrat who stole their ideas and rhetoric, and was secretly committed to promoting a liberal secular agenda. He was trying to put one over on the American public. Moreover, Clinton gained the White House at a time when Republicans believed that theirs was the "natural party of government," to use a phrase sometimes associated with the British Conservative Party. They had put together an effective coalition of interests that had dominated Presidential politics for some time. Who was this upstart to keep them out of the White House? So for many members of the Republican base, Clinton was easy to hate. He was a liberal wolf in sheep's clothing and he had no right to take the Presidency from the party it rightfully belonged to.

Clinton is not the first President of this type. In fact, there have been at least three in our nation's history: They are Clinton, Grover Cleveland, and Richard Nixon. Cleveland co-opted economic elements from the Republican Party and became the first Democrat to win the White House since the Civil War, taking the Presidency from the natural party of government since Reconstruction, that is, the Republicans. Cleveland actually won the popluar vote three times, but was denied the presidency the second time because he lost the electoral college. Nixon also co-opted wide swaths of the Democratic liberal domestic agenda while forming a new coalition that split apart traditional Democratic constituencies. Just as conservatives did not trust Clinton, liberals did not trust what was then called the "New" Nixon. He was a conservative wolf in sheep's clothing, who had stolen the White House from the party that had dominated it since 1932. (I'll get to Eisenhower in a moment, don't worry).

When a President does what Clinton, Nixon, or Cleveland does, break apart an older winning political coalition by coopting elements of that coalition's message, party regulars on the other side cannot easily fight back on the issues. That is because the President is by nature a straddler-- he is skimming off the most popular elements of the party's platform and leaving them with the less popular elements. So there is only one thing to do: stoke up public resentment against the co-opting or straddling President by undermining his legitimacy and destroying trust and confidence in his ability to govern.

The way this is done is through scandal.

What Nixon, Clinton, and Cleveland all have in common is that all three presidencies were littered with either scandals or attempts at proving scandals. There are other scandal plagued presidencies, to be sure, but my point is that the threat to coalitions produced by a co-opting President is likely to lead to an Administration where his political foes try to take him down through scandals and assaults on his character (Tricky Dick, Slick Willie, "Ma, Ma, Where's My Pa" Cleveland) rather than through a direct confrontation on the issues. Such Presidents tend to generate enormous hatred from party regulars on the other side, precisely because they believe that he is illegitimate and morally bankrupt.

Let me close by considering how I think this analysis applies to two other presidents who might be seen as co-opters. One is Dwight Eisenhower. The other is George W. Bush.

Eisenhower acquiesced in the basic contours of the New Deal and provided a moderate Republicanism that co-opted many elements of Roosevelt's and Truman's policies. But he was not subject to the same degree of scandal mongering that greeted Richard Nixon. Why? One reason is that he arrived in the White House with an enormous reservoir of trust. He was a war hero and most Democrats thought he was an admirable fellow: indeed, many of them had wanted him to run as a Democrat.

Which brings us, at last, to George W. Bush. Does Bush fit the pattern of co-opting Presidents like Clinton, Nixon, and Cleveland? To a certain degree he does, although the circumstances of his Presidency different in many respects. He is more a follower and reviver of Reganism than a co-opter of Clintonism. Nevertheless, let's consider the factors in common: First, Bush is to some degree a co-opter of the rhetoric if not the exact policies of his political opponents-- that was the point of "compassionate conservatism." Second, in the eyes of many Democrats, he lacked legitimacy, due to the shenanigans in Florida and the Supreme Court's decision in Bush v. Gore. And many Democrats hated the fact that Bush gained enormous political legitimacy from 9-11, i.e., that he was given legitimacy not by the American electorate but by Osama bin Ladin. Note that this meshes with the co-optation in a unique way: For some time after 9-11, there was very little space between the views of Democrats and the President on foreign policy. Third, once in office, Bush quickly showed that he was a wolf in sheep's clothing-- compassionate conservatism was largely a matter of rhetoric; the reality was a strongly pro-business agenda.

All of these reasons suggest that George W. Bush's Presidency has structural features that are similar to those of Clinton's, Nixon's and Cleveland's Presidencies. That means that we should expect that his political opponents will hate him quite fiercely, and that they will attack him through scandals and attacks on his character.
Whether those attacks succeed (or, equally important, whether they should succeed) in any particular case depends on a whole host of factors, including, among others, whether the President really does have serious character flaws and whether he really does have something to hide. We should not assume that because all of these Presidents were hated that they were equally flawed and equally culpable. Rather, I'm trying to get a handle on the sturctural features of American politics that would produce this level of hatred and these sorts of attacks.

Torture and the Iraq Constitution

Cass Sunstein

The interim Constitution of Iraq has played surprisingly little role in public debates involving the Department of Justice, the United States, and torture. The infamous and reckless Bybee memorandum, by the Office of Legal Counsel, ventured two key conclusions. The first, and more plausible, is that American officials have the legal authority to engage in “cruel, inhuman, or degrading” treatment of prisoners, if that treatment falls short of torture. The second, and far less plausible, is that as Commander-in-Chief, the President might well have the authority to torture suspected terrorists, and that Congress might well lack the constitutional power to infringe on the President’s authority to engage in torture.

Let's compare the interim Constitution of Iraq. As for the second issue, that document is unambiguous: Article 15(j) announces, flatly, that “torture in all its forms, physical or mental, shall be prohibited under all circumstances.” (The last three words are of course the crucial ones.) But Iraq's interim Constitution goes much further. While OLC says that "cruel, inhuman, or degrading" acts are permissible, Article 15(j) of the Constitution of Iraq imposes an absolute ban on “cruel, inhuman, or degrading treatment,” even if that treatment falls short of torture. The most ironic point is that the OLC uses the same words ("cruel, inhuman, or degrading") as the Constitution of Iraq, with OLC approving the very treament that the Iraqi Constitution bans.




Wednesday, June 23, 2004

Guest Blogger: Sandy Levinson

JB

I'm delighted to announce that my dear friend and co-author, Sanford Levinson, who is, among his many other accomplishments, one of the most distinguished members of the American legal academy, will be guest blogging on Balkinization. Sandy is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at The University of Texas School of Law, as well as a member of the Political Science Department at U.T. His books include Constitutional Faith (1987), Written in Stone (1998), and Wrestling with Diversity (2003), and he is currently at work on a book on torture for Oxford University Press.

The Administration backtracks on torture

Sandy Levinson

The news conference yesterday with Alberto Gonzales--incidentally, does anyone seriously think his prospects for nomination to the Supreme Court have not been set back by recent disclosures?--and others was extraordinary in a number of ways. But the press wasn't knowledgeable enough to interrogate Gonzales and the others as fully as they should have. Thus, much was made of the premise that the United States simply doesn't "torture," though, of course, the US adopts a definition of "torture" that is considerably more interrogator-friendly, shall we say, than that set out in the United Nations Convention. As a matter of fact, several of the reporters asked some fairly good questions about what exactly the US means by "torture," though Gonzales was evasive in his answer. More seriously, none of the reporters asked about the American practices of "rendering" people in our custody to other countries where torture is almost certain to take place. Going back to the end of 2002, a number of articles in the mainstream press, including a stunning article in a January 2003 issue of The Economist, have alluded to the practice. It is crystal clear that it violates the UN convention and calls into question the Administration's insistence that it has not in effect accepted torture as a policy. Gonzales might have said, of course, citing the Senate language, that it doesn't violate US policy to "render" prisoners unless we believe that it is "likely" that torture will occur and, of course, we choose to believe assurances by Jordan, Egypt, and Morocco, among others, that torture won't occur. But, of course, there is no reason whatsoever to believe that we're even asking for such assurances or that anyone should believe them.

What is also Orwellian is the insistence that not only does the US not "torture" (given the OLC interpretation of the Senate definition, of course), but that we treat prisoner's "humanely." This is true if and only if one defines "humane treatment" as "not being tortured." But part of the OLC argument, which is altogether correct, is that "merely" "inhuman and degrading" treatment does not necessarily rise to the level of "torture," even under the UN definition. One hopes that reporters will have further opportunities to ask exactly what the United States means by "humane" treatment. It would be especially useful to get such answers from the ostensible person in charge, i.e., George W. Bush, who seems to have played no role in the vigorous debates that Gonzales describes.



Iraq and FDR

Cass Sunstein

I think that Jack Balkin, of this very blog, was the first to give public attention to a most curious provision of Iraq's interim Constitution. Article 14 provides, "The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people."

Where did this provision come from? It's certainly jarring to American ears. But in terms of the history of constitutional thinking, it is in a direct line with a largely forgotten episode in American history: Franklin Delano Roosevelt's call for a Second Bill of Rights in 1944. When America's national security was last threatened, its wheelchair-bound president attempted a large-scale redefintion of the country's commitments. He contended that we had come to accept an economic Bill of Rights that would include:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;


The right of every family to a decent home;


The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

FDR unified these rights under the general rubric of "security," which, he argued, was the overriding goal of the post-war era.

Though pretty much forgotten at home, FDR's Second Bill has had a huge international influence. It helped to form the basis of the Universal Declaration of Human Rights, and from that point the contents of numerous constitutions throughout the globe -- including, now, the interim Constitution of Iraq.

Imperial Presidency Alive and Well

JB

The newspaper accounts have not been covering this point, but nothing in the documents released yesterday repudiates the theory of the Commander-in-Chief power at the heart of the OLC torture memo. Indeed, the President's claim that he had the authority as Commander-in-Chief to "suspend" the Geneva Conventions but chose not to in certain cases, and reserved the right to suspend these obligations in the future is entirely consistent with this view.

The position Bush and other members of the Administration have been taking is that although the President may do what he likes as Commander-in-Chief, he insists that we be humane, except, of course, where national security dictates otherwise. Note that this is no concession at all: The Administration still has the power to do what it likes whenever it likes but insists that it won't use that power wrongfully.

In other words, this is just another version of "trust us."


White House Backs Away from Torture Memo

JB

Today the White House disowned the legal advice of its top people, the Washington Post reports:

President Bush's aides yesterday disavowed an internal Justice Department opinion that torturing terrorism suspects might be legally defensible, saying it had created the false impression that the government was claiming authority to use interrogation techniques barred by international law.

Responding to pressure from Congress and outrage around the world, officials at the White House and the Justice Department derided the August 2002 legal memo on aggressive interrogation tactics, calling parts of it overbroad and irrelevant and saying it would be rewritten.

In a highly unusual repudiation of its department's own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department's Office of Legal Counsel on the subject of interrogations will be reviewed.

As part of a public relations offensive, the administration also declassified and released hundreds of pages of internal documents that it said demonstrated that Bush had never authorized torture against detainees from the wars in Afghanistan and Iraq. In doing so, the administration revealed details of the interrogation tactics being used on prisoners, an extraordinary disclosure for an administration that has argued that the release of such information would help the enemy.


However, the Post explains, the Administration still hasn't come clean about all of its interrogation practices:
None of the documents provided by the White House governed practices at Abu Ghraib and other military prisons in Iraq, although some of the ideas approved at least temporarily -- such as stripping prisoners -- would be mirrored in the graphic photos that drew international condemnation and heavy scrutiny of U.S. detention practices. . . .

The documents that were released and the White House briefing focused on military interrogations and left many questions unanswered. Gonzales refused to comment on techniques used by the CIA, beyond saying that they "are lawful and do not constitute torture." He also would not discuss the president's involvement in the deliberations.


And, in a particularly remarkable maneuver, the White House Counsel plans to repudiate himself.
At issue was an Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel to Gonzales. A Justice Department official said yesterday that the administration planned to scrap a provision in it opining that interrogators who torture al Qaeda or Taliban captives could be exempt from prosecution under the president's powers as commander in chief. "I don't believe it was necessary," the official said. "The president never asked us to overrule" laws barring torture, he said. Bush has not authorized any interrogations that would employ methods outside the law, he said.

Gonzales said that memo and a related Pentagon memo had been meant to "explore the limits of the legal landscape," and to his knowledge had "never made it to the hands of soldiers in the field, nor to the president." He acknowledged that some of the conclusions were "controversial" and "subject to misinterpretation."


All of this begs the most important question: Why would the White House Counsel have requested such a memo in the first place? Generally speaking, when a superior asks a subordinate to do legal work, there is usually a back and forth about what questions are to be asked and what conclusions the memo is going to reach. That is especially the case when, as in the Bybee memo, the result is a finished product. To say that this memo was simply dropped on Gonzales' lap is ridiculous. Rather, it is more likely that Gonzales, and Bybee, and the rest of the team went over the memo with some care.

The question I have for the White House is, why isn't Gonzales resigning over this? And why hasn't the White House strongly repudiated Bybee, who now sits on the 9th Circuit Court of Appeals? The reason seems clear enough: This wasn't a frolic and detour; Gonzales and Bybee were doing exactly what was asked of them.



Tuesday, June 22, 2004

Guest Blogger: Cass Sunstein

JB

I've invited University of Chicago law professor Cass Sunstein to guest blog on Balkinization. He'll be putting up a post in the next couple of days.

Cass is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago's Law School, and also has an appointment in the Political Science department. I consider him the most important legal scholar of my generation. There are few people I can think of who have made more important contributions to legal scholarship in such a wide number of different subjects. He's also an old hand at the op-ed form, having written for all the major newspapers as well being a regular contributor to the New Republic. His latest book, which is coming out this week from Basic Books, is called The Second Bill of Rights. I'm delighted to have him aboard.


The Election and the Constitution

JB

Jonathan Chait thinks the 2004 election isn't very important. Matthew Yglesias disagrees, pointing out that the election will decide, at the very least, whether Bush's tax cuts become permanent, and which team will have to deal with the many exigencies that await us.

I think there is another reason why the election of 2004 is important. It concerns the American Constitution.

The Bush Administration has promoted a highly controversial constitutional vision of the Presidency. It seeks to push the envelope of presidential power while preventing oversight by the Judicial and Legislative branches of government. This vision of the Presidency is organized around the notion that the Commander-in-Chief can do pretty much whatever he likes in time of emergency, and what constitutes an emergency is determined by the Commander-in-Chief. It is the constitutional equivalent of Bush's repeated declaration that he is a War President and his is a War Presidency, that 9-11 "changed everything" and that the President must be free to do whatever he can to protect the Homeland.

In the past three years, the Bush Administration has reinterpreted the Presidency, and hence the constitutional system of checks and balances, in the image of an all-powerful Commander-in-Chief. In its most extreme form, it produces the logic of the OLC torture memo, which asserts that Congress may not interfere in any way with the President-as-Commander-in-Chief, and that all laws and international obligations that might interfere with his decisions as Commander-in-Chief must be construed not to apply to him. This view of Presidential Caesarism (for that is what it is), is accompanied by an obsessive concern for secrecy and avoiding all forms of transparency and accountability. Although this Administration's disdain for accountability and transparency has been defended most recently in terms of the Commander-in-Chief Power, this trait emerged long before September 11th; it was at the heart of Vice President Cheney's refusal to reveal the members of his Energy Task Force, and President Bush's decision to withhold access to presidential papers.

Make no mistake: The Administration's vision of the Presidency is a constitutional interpretation, and, more to the point, it is an interpretation that the Administration can make a lasting part of our Constitutional system if it is returned to office. Even if the Supreme Court stands up to the Bush Administration in the series of cases that will come down this week or next, the Courts need the support of Congress to really check the power of the Presidency, and the Republican-controlled Congress has been so far unable or unwilling to exercise any significant oversight over this Presidency. Indeed, the greatest oversight has come from the independent bipartisan 9/11 Commission, which the Administration (not surprisingly) opposed, and which Republican leaders in Congress tried to close down early.

If President Bush is reelected in 2004, there is no reason to think that we will not see an even more aggressive attempt to redefine the powers of the Presidency at the expense of accountability and transparency. The Republican leadership in Congress has had no stomach for challenging the President in any important issue of foreign policy, and many conservative intellectuals have been cheerleaders for an ever more powerful Executive and for the political glorification of a War Presidency. The Administration well understands this, and so it has attempted to govern, as much as possible, through the constitutional persona of Commander-in-Chief. It sees that the way to maintain and increase political power in the present moment is to play the War on Terrorism card repeatedly and without shame or scruple, and turn the Commander-in-Chief Clause into the single most important grant of power in the U.S. Constitution. As the OLC memo shows, in the constitutional vision of the Bush Administration, the constitutional power of the Commander-in-Chief clause is more important than the President's duty to take care that the laws be faithfully executed; it trumps the legislative power of Congress; it is even more important that the procedural protections of the Bill of Rights. The Constitution we are likely to inherit from a second Bush Administration will be a bit like the famous New Yorker cartoon of the New Yorker's vision of the World, with the Commander-in-Chief Clause dominating the page in powerful, large letters, and the rest of the Constitutional text shrinking away into tiny, barely readable prose.

Add to this the fact that, if elected, President Bush will be able to appoint one, and possibly two or three Justices to the Supreme Court, who will be all the more willing to allow the President to do as he likes. Even if, as I hope, the Supreme Court raps the Administration across the knuckles in the next few weeks, those decisions can easily be distinguished and undermined in the next series of cases decided by a Court stocked with conservative true believers. With all three branches of government sharing a common ideological vision, the Bush Administration will be able to solidify its Caesarist vision of the Presidency for years to come. That is a prospect that should worry any of the friends of liberty.


UPDATE: Ernie Miller shows us what the new Constitution will look like.



Monday, June 21, 2004

Experimenting With Comments

JB

As faithful readers of this blog know, I've not had a comments section. But the latest version of Blogger allows you to have them, and I'd like to try them for the next few weeks to see how they work and whether readers like having them. Lots of people have been kind enough to send e-mails with their reactions to posts. Now they can publish comments instead. Have fun and play nice.



Misleaders Who Mislead

JB

In both senses of the word. The Philadelphia Inquirer takes the President to the woodshed (link via a proud Philadelphian, Atrios):

A poll of Americans taken in March of this year found that 57 percent of those polled believed that Iraq under Saddam Hussein substantially supported al-Qaeda or was directly involved in the Sept. 11 attacks.

Where did they get that misguided idea? Why, it was from their president, their vice president, their defense secretary, their national security adviser and other key players in the war on terror, of course.

Through assertion, implication and innuendo, the Bush administration - backed by an amen chorus of talk-show babblers and oped writers who filled in the blanks that White House rhetoric artfully left - has labored to plant the notion that invading Iraq was a logical, urgent response to Sept. 11.

What other impressions did the Bush team work to insinuate into public opinion, before and after its preemptive strike at Hussein?

That Iraq had a robust weapons program and was ready and willing to hand off biological or chemical weapons to a terrorist group; and that it would soon have a nuclear bomb.

That the bulk of the Iraqi people would greet Americans as liberators, with cheers and flowers.

That the Bush Doctrine of unilateral and preemptive military action against suspected enemies would make the United States safer and more respected.

That the Abu Ghraib prison abuses were a surprising, inexplicable outburst of evil by a small set of reservists from rural Pennsylvania, Maryland and West Virginia.

Let's review how those claims are faring in the court of reality:

Iraq and al-Qaeda:The Sept. 11 Commission, evenly split by party and led by a Republican, issued this conclusion last week: "We have no credible evidence that Iraq and al-Qaeda cooperated on attacks against the United States... . There is no convincing evidence that any government financially supported al-Qaeda before 11 September."

Weapons of mass destruction: As you may recall, the top American WMD hunter, David Kay, told Congress in January: "We were almost all wrong" about Hussein's WMD capability at the time of the March 2003 invasion. (That "we" includes this Editorial Board.)

The post-invasion hunt for WMD has produced two finds: one old artillery shell with the nerve agent sarin, another with mustard gas. The President has conceded that the main evidence he cited for Hussein's nuclear program was a forgery.

They love us, they really love us: The appallingly bloody insurgency in Iraq is now more than a year old. At least 70 people died in a wave of car bombings in Iraq last week. The Associated Press reported last week that a poll taken by the Coalition Provisional Authority found that 92 percent of Iraqis polled considered Americans "occupiers." A whopping 2 percent thought of us as "liberators."

The Bush Doctrine: A new group of 27 former military leaders and diplomats, including many Republicans appointed or promoted by President Bush's father, issued a blistering critique of the Bush foreign policy last week.

Calling his policies "overbearing," "insensitive" and "disdainful," the group said, as a result: "Our security has been weakened... . Never in the two and a quarter centuries of our history has the United States been so isolated among the nations, so broadly feared and distrusted."

Abu Ghraib: The administration's attempt to defuse the Abu Ghraib furor by blaming it all on a few low-level miscreants has triggered a flood of contrary evidence. It's clear now that the military and administration had been warned early and often, by multiple sources, about abuses. It's clear that dubious practices at prisons in Iraq and Afghanistan had been debated at high levels in the Pentagon and White House, and that military attorneys of high integrity had opposed efforts to treat the Geneva Conventions as a dead letter in the war on terror.

Ed Koch, when he was the voluble mayor of New York City, used to love to ask, "How'm I doin'?"

Given this sorry roster of fibs, flubs and fantasies, the Bush White House ought to be afraid to ask the American public the same question.

Instead, it has entered full-tilt spin mode. To counter the Sept. 11 panel's flat rejection of its implicit rationale for the Iraq invasion, the President, vice president and their surrogates have split semantic hairs like finicky medieval theologians.

It is true, as the President stressed last week, that he never flat-out said Saddam Hussein helped plan the Sept. 11 attacks.

It is also beside the point.

He said many other things, misleading things, to plant the idea that invading Iraq was a logical extension of - rather than a fatal distraction from - the effort to dismantle al-Qaeda.

In a nationally televised address in October 2002, just days before Congress passed a resolution authorizing force against Iraq, he said: "Iraq could decide on any given day to provide a biologial or chemical weapon to a terrorist group or individual terrorists. An alliance with terrorists could allow the Iraqi regime to attack America without leaving any fingerprints."

In the letter the President sent Congress explaining his decision to invade, he wrote: "The use of armed force against Iraq is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

What impression was he trying to leave there? We report, you decide.

Much of the evidence that administration officials cited to back up the claims in that speech and that letter have since been debunked or called into serious question. The Sept. 11 panel said flatly that the plot leader, Mohamed Atta, did not meet in Prague with an Iraqi agent, a favorite canard of Vice President Cheney. The CIA never confirmed Bush's repeated claim that Iraqis trained al-Qaeda members in bomb-making.

Yes, there were contacts between Osama bin Laden and ranking Iraqis a dozen or so years ago.

And the United States helped arm bin Laden to fight the Soviet Union in Afghanistan in the 1980s; the Sept. 11 hijackers were trained at American flight schools. Does that mean the U.S. government was in league with al-Qaeda? That, of course, is preposterous.

There may well have been, as the Weekly Standard magazine has reported, a "non-aggression pact" between Osama and Saddam. Those who harp on that never answer an obvious question: Why would close collaborators need to be prodded by a third party (Sudan) to agree to a "non-aggression" pact?

The evidence cited of Iraqi-Osama collaboration was always, at its strongest, tissue thin. Now, pieces of it appear to have been, like many of the wilder WMD claims, churned up by the Iraqi National Congress exile group to give the Bush White House the terrifying tales it needed to sell regime change (the INC's goal) to the American public.

Did the President and his top advisers lie to the American people? Or were they themselves deceived, by the INC, faulty intelligence and their own tendency to hear what they wanted to hear?

For now, those questions are unanswerable and essentially besides the point.

What matters is that Americans grasp a central point: The multipronged rationale behind this rushed invasion has been revealed as a house of cards.

(Deposing Hussein always was a legitimate strategic goal, given his history as an aggressor and butcher - but not in this reckless way, with these wrongful justifications.)

Consider the house of cards, and two other glaring facts.

First, preparation for the invasion's aftermath was tragically inept. That easily predictable failure has cost many Iraqis, Americans and others their lives.

Second, the prison abuses, which stem from poor planning for occupation and a bid to place U.S. behavior above international law, have lost America the moral high ground it rightfully occupied on Sept. 12, 2001.

Now, ask yourself, along with those 27 American diplomats and warriors: Have the last two years made America more secure, more respected?

The answer is obvious and appalling. The answer is no.


The moral of the story: when you mislead the nation about national security, you endanger national security.



Don't Ask, Don't Tell, Don't Win

JB

A study published today offers some results of a failed policy:

Even with concerns growing about waning numbers of military troops, 770 people were discharged for homosexuality last year under the military's "don't ask, don't tell" policy, a study to be released today shows.

The figure, however, is significantly lower than the record 1,227 discharges in 2001 — just before the attacks on Afghanistan and Iraq. Since "don't ask, don't tell" was adopted in 1994, nearly 10,000 military personnel have been discharged — including linguists, nuclear warfare experts and other key specialists. . . .

Aaron Belkin, author of the study, said: "For the first time, we can see how [the policy] has impacted every corner of the military and goes to the heart of the military readiness argument." . . .
The study found that the Army, the largest of the services, was responsible for about 41% of all discharges. The Army has invoked "stop-loss" authority to keep soldiers from retiring or otherwise leaving if they're deployed to Iraq or Afghanistan. . . .

Hundreds of those discharged had held key positions, including 90 nuclear power engineers, 150 rocket and missile specialists, and 49 nuclear, chemical and biological warfare specialists.

Of 88 linguists let go, at least were seven Arabic specialists.


In 1948 Harry Truman desegregated the Armed Forces over the objections of the Joint Chiefs of Staff, who thought it would damage morale. They were wrong. He was right. If anything, desegregating the military made it possible for lots of minorities to succeed in the Armed Forces. Just ask Colin Powell.

One of Bill Clinton's great failures was initially proposing the right of gays to serve openly in the military, and then backing off and folding his tent in the face of opposition by military officials and right-wing homophobes. As so often happened in his first few years in office, Clinton chose the wrong moment to push for reform and then let his opponents roll him. This combination of political ineptness and moral cowardice led to the Don't Ask Don't Tell Policy, which, while nominally better than the policy of complete exclusion it replaced, nevertheless left gay and lesbian servicemen in an untenable legal limbo.

Of course, once the Republicans-- the party of great moral clarity-- took the White House, there was no chance that this injustice would be righted anytime soon.

I miss Harry Truman. And that's not just because I'm from Missouri.


Moral Clarity, Part 2

JB

As I read this New York Times article about how certain conservative pundits are happily gearing up once again to decry the Clinton Presidency on the grounds that he was immoral and brought dishonor to the country, I began to wonder, what planet are they on? What vision of morality do they have? There is a moral crisis in the highest levels of government today, and they are paying no attention to it. Indeed, they are trying to direct our attention away from it.

Clinton was hardly a paragon of virtue: He had an affair and lied repeatedly about it, including under oath. But the Administration that followed him violated the civil liberties and the human rights of countless individuals, misled the public about its reasons for going to war, and justified abuse and torture. Clinton lied about his sexual behavior; this Administration has lied about far more serious matters. After the close of the Clinton Administration the world knew that American Presidents have affairs and lie about them under oath. After this Administration, we know that our country violates international human rights and enages in torture. Which is the more serious moral crisis for our nation? Which of these has brought greater dishonor on our land?:

"Yes, it's terrible to be caught," the Spectator wrote, "though rather delightful to commit moral error when no one is looking."

You mean, like getting caught in ordering attack dogs turned on prisoners, abusing them in violation of international law, or placing them in secret detention without informing the International Red Cross?
"I have found that the best way to get a rousing response from a crowd is to say that whatever disagreements you may have with President Bush on one issue or another, nobody can argue that he hasn't restored honor to the White house," said Gary L. Bauer, chairman of the organization American Values.

With all due respect, Mr. Bauer is on drugs.



A Quick Recap on Torture

JB

for those of you who were napping, from the Washington Post editorial page:

What might lead us to describe Mr. Rumsfeld or some other "senior civilian or military official" as "ordering or authorizing or permitting" torture or violation of international treaties and U.S. law? We could start with Mr. Rumsfeld's own admission during the same news conference that he had personally approved the detention of several prisoners in Iraq without registering them with the International Committee of the Red Cross. This creation of "ghost prisoners" was described by Maj. Gen. Antonio M. Taguba, who investigated abuses at Abu Ghraib prison, as "deceptive, contrary to Army doctrine and in violation of international law." Failure to promptly register detainees with the Red Cross is an unambiguous breach of the Fourth Geneva Convention; Mr. Rumsfeld said that he approved such action on several occasions, at the request of another senior official, CIA Director George J. Tenet.

Did senior officials order torture? We know of two relevant cases so far. One was Mr. Rumsfeld's December 2002 authorization of the use of techniques including hooding, nudity, stress positions, "fear of dogs" and physical contact with prisoners at the Guantanamo Bay base. A second was the distribution in September 2003 by the office of the top U.S. commander in Iraq, Lt. Gen. Ricardo S. Sanchez, of an interrogation policy that included these techniques as well as others, among them sleep and dietary manipulation. In both cases lawyers inside the military objected that the policies would lead to violations of international law, including the convention banning torture. Both were eventually modified, but not before they were used for the handling of prisoners. In the case of the Abu Ghraib prison, the policy apparently remained in effect for months.

Did senior officials "permit" torture? A Pentagon-led task force concluded in March 2003, with the support of the Justice Department, that the president was authorized to order torture as part of his war-making powers and that those who followed his orders could be immunized from punishment. Dictators who wish to justify torture, and those who would mistreat Americans, have no need to read our editorials: They can download from the Internet the 50-page legal brief issued by Mr. Rumsfeld's chief counsel.


Frankly, we're just waiting for the other shoe to drop. But this is pretty bad all by itself. It's worth considering whether there is already enough evidence to prosecute any top Bush Administration officials for war crimes, that is, if we had happened to be on the losing side of a conflict.

I'm also sure the Administration is breathing a sigh of relief that it repudiated the country's signature on the International Criminal Court on May 6, 2002. Hmmm, wasn't that just as the invasion was being planned?



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