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.

Posted 12:05 PM by JB [link] (85) comments

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.




Posted 11:57 AM by Cass Sunstein [link] (49) comments

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.

Posted 11:30 PM by JB [link] (29) comments

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.




Posted 6:18 PM by Sandy Levinson [link] (68) comments

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.

Posted 11:56 AM by Cass Sunstein [link] (37) comments

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."

Posted 11:09 AM by JB [link] (73) comments

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.

Posted 10:24 AM by JB [link] (28) comments

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.

Posted 7:04 PM by JB [link] (70) comments

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.

Posted 12:01 AM by JB [link] (138) comments

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.

Posted 6:55 PM by JB [link] (350) comments

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.

Posted 4:22 PM by JB [link] (27) comments

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.

Posted 4:02 PM by JB [link] (20) comments

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.

Posted 10:24 AM by JB [link] (21) comments

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?

Posted 10:01 AM by JB [link] (49) comments

Lie Big or Go Home

JB

The New York Times reports that President Bush, a day after reiterating his apparently baseless assertions of a working relationship between Iraq and Al Qaeda, argued that 9/11 attacks justified the Iraq war:

Today, as he stood before a sea of uniformed soldiers, Mr. Bush said over and over again that 9/11 was the reason the United States had to go to war in Iraq more than a year ago.

Why does the President keep doing this? Because he's got nothing left.

I realize that many people are outraged at the baldfaced nature of the President's and Vice President's increasingly blatant prevarications. But in the coming months no one should expect that the President will back away from his insinuations about Saddam/Al-Qaeda connections. Indeed, he will keep trying to connect the Iraq war to the 9/11 attacks in every way possible. He will simply continually redefine his terms to reach his desired conclusion. If the 9/11 Commission says there was no collaboration between Iraq and Al Qaeda, he will say that the Commission agreed that there were "contacts," even if those contacts occurred years ago and didn't lead to anything.

Of course, on this theory of "contacts," John Kerry would be in cahoots with George W. Bush, since they've had numerous contacts over the years. Indeed, we probably have greater reason to declare war on members of the Reagan Administration, who had numerous contacts with Saddam, some of which led to actual cooperation.

The President knows that his Presidency is going down the drain. Desperate times call for desperate measures. His Administration is already deeply morally compromised; why should he scruple to be honest at this point?

Posted 5:29 PM by JB [link] (28) comments

Radioactive Judicial Candidates

JB

One of the little noted side effects of the Iraq war is that the Administration's eagerness to remove legal constraints from its interrogation of detainees in Iraq, Afghanistan, and Guantanamo Bay may well have torpedoed the chances of a number of Administration lawyers to become federal judges or Justices on the Supreme Court. These ambitious people may well have thought that doing the Administration's bidding would propel them into judicial office. In the case of Jay Bybee, who now sits on the 9th Circuit Court of appeals, the strategy worked. But that was before the Abu Ghraib scandals and the release of the OLC and Defense Department torture memos. Bush Administation lawyers who can be found to have participated in any way with these decisions are probably radioactive. Their judicial prospects are pretty much destroyed.

One of the most interesting examples is Alberto Gonzales, the President's counsel. People have long assumed that Gonzales, who would have been the first Latino nominee, was at the top of the list for any future Supreme Court appointment. But Gonzales' participation in memos attempting to escape the obligations of American and international law means that the Bush Administration would face a very lengthy confirmation battle if it tried to nominate him. Even if Bush wins a second term, the torture memo will give Democrats (and many Republicans) ample reason to oppose him.

There is a bit of poetic justice in this result. The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.

Posted 1:23 PM by JB [link] (44) comments

Senate Violates Constitution, Tells President He May Not Torture

JB

From the Atlanta Journal Constitution:

The Senate, on a swift voice vote, approved an amendment to the defense authorization bill restating U.S. opposition to using torture and requiring the Pentagon to provide Congress with the guidelines it uses to ensure compliance with that principle.

This is in clear defiance of the profound and scholarly interpretation of our Constitution provided by the Office of Legal Counsel and the Defense Department. As the Defense Department memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."

Bad Senate. Very Bad! You should be ashamed of yourself for preventing our Commander-in-Chief from torturing people. Don't you have any respect for the Constitution? The President always knows best. Repeat after me: The President always knows best.

Posted 10:56 AM by JB [link] (24) comments

Lies and the Desperate Liars Who Tell Them

JB

Yesterday:

President Bush yesterday defended Vice President Dick Cheney's assertion this week that Saddam Hussein had longstanding ties with Al Qaeda, even as critics charged that the White House had no new proof of a connection.

At a news conference with Afghan president Hamid Karzai, Bush stood by his vice president, saying Hussein ''had ties to terrorist organizations," though he did not specifically mention Al Qaeda. . . .

Bush has previously said there was ''no evidence" linking Hussein to the Sept. 11, 2001, attacks, but he and other members of his administration have continued to say they believe there were ties between Hussein and Al Qaeda. In a speech to the conservative Madison Institute in Orlando on Monday, Cheney called Hussein ''a patron of terrorism" and said ''he had long established ties with Al Qaeda."

An April poll by the University of Maryland's Program on International Policy Attitudes found that 57 percent of Americans surveyed believed that Iraq was helping Al Qaeda before the war, including 20 percent who believed Iraq was linked to the Sept. 11 attacks.

However, a former top weapons inspector said yesterday he and other investigators have not found evidence of a Hussein-Al Qaeda link.

''At various times Al Qaeda people came through Baghdad and in some cases resided there," said David Kay, former head of the CIA's Iraq Survey Group, which searched for Iraqi weapons of mass destruction and links to terrorism. ''But we simply did not find any evidence of extensive links with Al Qaeda, or for that matter any real links at all."

''Cheney's speech is evidence-free," Kay said. ''It is an assertion, but doesn't say why we should be believe this now."

Cheney's comments Monday echoed a January interview with National Public Radio in which he said, ''There's overwhelming evidence there was a connection between Al Qaeda and the Iraqi government. I am very confident that there was an established relationship there."

Today:

WASHINGTON -- Bluntly contradicting the Bush administration, the commission investigating the Sept. 11 attacks reported Wednesday there was "no credible evidence" that Saddam Hussein helped al-Qaida target the United States. . . .

Bin Laden made overtures to Saddam for assistance, the commission said in the staff report, as he did with leaders in Sudan, Iran, Afghanistan and elsewhere as he sought to build an Islamic army.

While Saddam dispatched a senior Iraqi intelligence official to Sudan to meet with bin Laden in 1994, the commission said it had not turned up evidence of a "collaborative relationship." . . .

The Iraq connection long suggested by administration officials gained no currency in the report.

"Bin Laden is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded," the report said. "There have been reports that contacts between Iraq and al-Qaida also occurred" after bin Laden moved his operations to Afghanistan in 1996, "but they do not appear to have resulted in a collaborative relationship," it said.

"Two senior bin Laden associates have adamantly denied that any ties existed between al-Qaida and Iraq," the report said.

Will the issuance of the report cause Dick Cheney to change his tune? Don't bet on it. The President is still behind in the polls.

Posted 11:58 AM by JB [link] (25) comments

Karpinski: I Was Ordered to Treat Prisoners Like Dogs

JB

The BBC reports that General Janice Karpinski says her superiors ordered her to treat prisoners like dogs, just like they were treated at the Guantanamo Bay naval base.

The US commander at the centre of the Iraqi prisoner scandal says she was told to treat detainees like dogs.

Brig Gen Janis Karpinski told the BBC she was being made a "convenient scapegoat" for abuse ordered by others.

Top US commander for Iraq, Gen Ricardo Sanchez, should be asked what he knew about the abuse, she told BBC Radio 4's On The Ropes programme. . . .

Gen Karpinski said more damaging information was likely to emerge at those trials.

Gen Karpinski was in charge of the military police unit that ran Abu Ghraib and other prisons when the abuses were committed. She has been suspended but not charged. . . .

Gen Karpinski said military intelligence took over part of the Abu Ghraib jail to "Gitmoize" their interrogations - make them more like what was happening in the US detention camp at Guantanamo Bay, Cuba, which is nicknamed "Gitmo".

She said current Iraqi prisons chief Maj Gen Geoffrey Miller - who was in charge at Guantanamo Bay - visited her in Baghdad and said: "At Guantanamo Bay we learned that the prisoners have to earn every single thing that they have."

"He said they are like dogs and if you allow them to believe at any point that they are more than a dog then you've lost control of them."

Gen Karpinski repeated that she knew nothing of the humiliation and torture of Iraq prisoners that was going on inside Abu Ghraib - she was made a scapegoat.

Remember that Karpinski is trying to direct blame away from herself, so it is only natural that she would place blame on higher ups. Nevertheless, her charges are serious and need to be investigated thoroughly.

Posted 10:57 PM by JB [link] (31) comments

Thank God It's Standing

JB

Today the Supreme Court rejected Michael Newdow's challenge to public school teachers leading the Pledge of Allegiance using the words "under God." The Court held that Newdow did not have standing to raise the issue on behalf of his daughter. The Washington Post has the story. The text of the opinion is available here.

This is exactly what I hoped the Court would do. I wanted them to avoid a decision on the merits because the legal claims on the merits are very difficult indeed. Here are two discussions in February 2003 and March of this year. However, as I said in this post, despite the fact that the law is largely on his side "If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle." The Supreme Court today proved me right, holding against Newdow without badly mangling the law of the Establishment Clause. (The law of standing, on the other hand, is already so badly mangled that it's hard to see what more damage they could possibly do to it.)

Justice John Paul Stevens wrote the majority opinon. Chief Justice William Rehnquist, joined by Justices O'Connor and Thomas, also wrote to state their view that the recitation of the "under God" version of the Pledge does not violate the Constitution.

I'll have more when I get a chance to read the opinions.

UPDATE: Clarence Thomas uses the opportunity to argue that the Establishment Clause should not be held applicable to the States. Now we know what it would be like to have Judge Roy Moore on the Supreme Court.

Posted 11:01 AM by JB [link] (24) comments

It's Official: Bush Administration Received Legal Advice Permitting Torture

JB

Today the Washington Post published a copy of the Aug. 1, 2002, memorandum "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush. The Memorandum was signed by Assistant Attorney General Jay S. Bybee, whom President Bush subsequently appointed to the 9th Circuit Court of Appeals.

The Gonzales/Bybee/OLC memo concludes that

under the circumstances of the current war against Al Qaeda and its allies, application of Section 2340A [a federal ban on torture] to interrogations undertaken persuant to the President's-Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

Michael Froomkin analyzes the memo on his blog. The most important point is that this OLC memo is not a draft but official advice to the President. The OLC memo did not state that torture was wrong and that our government should not engage in it. Instead, it offered official advice about how to enagage in torture and escape criminal prosecution, or, in the alternative, to define prisoner abuse as not technically torture in order to escape criminal prosecution.

The Defense Department "torture memo" dated March 6, 2003 is from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba. It was first published by the Wall Street Journal. The torture memo is based on the Gonzalez/Bybee/OLC memo. The Gonzalez/Bybee/OLC memo is, if anything, even more damning to the Administration.

At hearings last week, Attorney General John Ashcroft refused to provide either memo to the Senate, while refusing to explain why or what legal privilege he was invoking to justify his actions.

Posted 10:26 AM by JB [link] (27) comments

Some Lawyers, Making a Difference

JB

As a tonic to the embarassment of the Administration's torture memo, here's a New York Times story about litigation by Navy Lt. Cmdrs. Charles Swift and Philip Sundel, who have been challenging the Administration's detention policies. They have been ably assisted by Georgetown Law Professor Neal Katyal, who I am proud to say is a former student of mine (Thanks to Ann Bartow for the pointer).

Posted 10:08 AM by JB [link] (25) comments

Dance to the Constitution

JB

You can download the text of the U.S. Constitution for your iPod, courtesy of the American Constitution Society. It's a great start, but it's only the beginning. Somebody needs to do a spoken version version on mp3s, with hip hop accompaniment. We the People, yo, check it out!

In the meantime, the Oyez Project has released mp3 files of famous Supreme Court arguments.

Posted 9:58 AM by JB [link] (29) comments

A Few Bad Apples at the Top of the Barrel

JB

According to this report from the London Telegraph (link via Mark Kleiman), the recent torture scandals may well be due to the misguided efforts of a few individuals. Unfortunately, they appear to be top political appointees in the Bush Administration:

New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay was authorised at the top of the Bush administration will emerge in Washington this week, adding further to pressure on the White House.

The Telegraph understands that four confidential Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American television network, which is preparing to make them public shortly.

According to lawyers familiar with the Red Cross reports, they will contradict previous testimony by senior Pentagon officials who have claimed that the abuse in the Abu Ghraib prison was an isolated incident.

"There are some extremely damaging documents around, which link senior figures to the abuses," said Scott Horton, the former chairman of the New York Bar Association, who has been advising Pentagon lawyers unhappy at the administration's approach. "The biggest bombs in this case have yet to be dropped."

A string of leaked government memos over the past few days has revealed that President George W Bush was advised by Justice Department officials and the White House lawyer, Alberto Gonzalez, that Geneva Conventions on torture did not apply to "unlawful combatants", captured during the war on terror.

Members of Congress are now demanding access to all White House memos on interrogation techniques, a request so far refused by the United States attorney-general, John Ashcroft.

As the growing scandal threatens to undermine President Bush's re-election campaign, senior aides have acknowledged for the first time that the abuse of detainees can no longer be presented as the isolated acts of a handful of soldiers at the Abu Ghraib.

"It's now clear to everyone that there was a debate in the administration about how far interrogators could go," said a legal adviser to the Pentagon. "And the answer they came up with was 'pretty far'. Now that it's in the open, the administration is having to change that answer somewhat."

Posted 12:02 PM by JB [link] (25) comments

Moral Clarity

JB

From the President's June 10th press conference:

Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander- in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.

Q Have you seen the memos?

THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions.

. . . . .

Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.

. . . . .

Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.

. . . . .

Please note what the President did not say: He did not say (1) that we Americans do not engage in torture, (2) that torture is immoral, (3) that international and U.S. law does not permit it, or (4) that even if the law permitted it, which it does not, we would not engage in it.

Clearly, the President is setting a moral example for the members of his Administration and for the country as a whole. The problem is that it is a disgraceful example. He has used every trick in the book to avoid confronting his Administration's complicity, and he does not even have the moral courage to denounce the most blatant abuses of human rights. Instead, he merely asserts that his subordinates should follow the law, that is, whatever legal arguments they can come up with to defend whatever they want to do.

Is this the sort of principled stand that wins the hearts and minds of the rest of the world? The world already suspects us of moral hypocrisy. The President has merely given them additional reasons to do so.

Posted 11:26 AM by JB [link] (22) comments

Kerry/Clark?

JB

I used the Washington Post's Veep-O-Matic today to pick Kerry's running mate. Figuring that this election is going to be about Iraq more than anything else, the four criteria I used were: military service, foreign policy/defense expertise, big name, and from a battleground state. The one name that came back with all four criteria was Wesley Clark. (Clark also satisfies two other conditions that I didn't include but could have: He is a Southerner and not a professional politician).

You can just imagine him debating Dick Cheney: Cheney will say something completely crazy about foreign policy, and Clark will just look at him with a stern glance and a sorry shake of the head.

He seems the logical choice on paper. But Clark's campaign skills have yet to be fully developed. Will Kerry pick him instead of Bill Richardson, Dick Gephardt, Bill Nelson or John Edwards? Your guess is as good as mine.

Posted 12:48 PM by JB [link] (726) comments

Yoo: If you don't like our torture, vote us out of office

JB

John Yoo, who served in the Office of Legal Counsel from 2001 to 2003, tries, without much success, to defend the Bush Administration in this op-ed in the Los Angeles Times.

I've only met John once, at a Federalist Society panel on judicial nominations. He was charming, polite, and his arguments were lawyerly and well made, although since I was on the other side I wasn't fully persuaded. In this case, however, I have to say that I don't think the arguments he offers in the op-ed are very good at all. He also engages in a non-sequitur, dragging out the old ticking time bomb scenario (or in this case, "a nuclear weapon in an American city") to conclude that there must be general authorization for all "strategic and tactical decisions" a President might make as Commander-in-Chief. But the fact that we might give the President the benefit of the doubt in the ticking time bomb situation does not imply that he should be free from all congressional oversight.

Yoo also tries to defend one of the most wrongheaded claims in the torture memo, the claim that Congressional laws that impinge on the President's assertions of his Commander-in-Chief power should be construed not to apply to the President. I think this argument, taken to its logical conclusion, destroys the checks and balances in our Constitution and makes the President unaccountable to the Rule of Law.

There is one thing in this op-ed that I do agree with: At the very end, Yoo says: "If the American people disagree with [the President's] policy [on prisoner interrogations], they have options: Congress can change the law, or the electorate can change the administration."

And there you have it. If you don't like what we are doing, throw us out of office. We dare you. Double dare you.

I think we should take up that challenge, don't you?

Posted 1:47 PM by JB [link] (22) comments

Too Profane to Mention?

JB

Ernie Miller points out that after having revived the doctrine of broadcast profanity with great fanfare this year, the FCC seems to be backing away from it. The FCC's recent consent decree with Clear Channel makes no reference to profane language, it only restricts obscene and indecent broadcasts. And in case you are wondering, that's not because nothing broadcast by Clear Channel was profane under the FCC's new definition.

Ernie is not sure whether the FCC has abandoned its new profanity doctrine or whether they plan to spring it again on some other broadcaster for thinly disguised political reasons. I'd like to believe that they are quietly backing away from what was, quite simply, a terrible idea.

Posted 11:48 AM by JB [link] (63) comments

Arguments That Make You Ashamed to be a Lawyer

JB

I've been spending some time thinking about the legal claims made in the Pentagon's "torture memo." They sound like legal arguments, to be sure. But they are so mindlessly wrong-headed that you wonder how people can argue themselves into these conclusions.

The key argument in the memo stems from the fact that in order to implement our obligations under international conventions against torture, Congress passed a law making it criminal to engage in torture overseas. The memo then sets out to prove that this law does not bind the President. Why? Because all statutes should be construed to avoid constitutional difficulties. Preventing the President from using torture would pose a constitutional difficulty because it would impinge on his powers as Commander-in-Chief. As the memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combantants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." Taken to its logical conclusion, this argument would suggest that Congress may never place any restraints on anything that the President wishes do do under his powers as Commander-in-Chief because to do so might create a constitutional conflict with his powers as Commander-in-Chief. In short, the argument, taken to its logical conclusion, gives the President plenary power to do anything as long as he believes it is within his powers as Commander-in-Chief.

This is an assertion of power that would make Richard Nixon proud. (See the post below on Nixon's theory of presidential power.). Even the Iran Contra conspirators during the Reagan Administration did not make so strong a claim. They argued that the Boland Amendment, which prevented the expenditure of funds to the contras, did not apply to the activities of the National Security Council. Whether that argument was correct or not is besides the point. What is important is that they did not presume that Congressional legislation related to the conduct of war and foreign policy could not bind the President. The torture memo takes a much stronger position. It truly makes the President a King, someone who must be presumed to do no wrong. If the President adopted this position, and acted upon it, it would be grounds for impeachment.

The second argument is that people engaged in torture at the direction of the Executive may not be prosecuted for war crimes because they were following the orders of a superior. The memo recognizes that following orders is not a defense under both American and international law if the subordinate knows or has reason to know that the order is unlawful. After reciting various authorities to this effect, the memo then twists that legal formulation and concludes that "In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogiations except where the conduct goes so far as to be patently unlawful."

Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

Posted 12:14 PM by JB [link] (21) comments

Above the Law?

JB

In the past few days there has been much discussion of the recently released secret Pentagon "torture memo". The report argues that the President, under his powers as commander-in-chief, has the right to order torture of suspects regardless of the Eighth Amendment's ban on cruel and unusual punishments, existing laws, and international agreements to the contrary. It also argues that people acting at the president's request can escape prosecution for crimes on the grounds that they are only following orders.

There is a pretty serious problem with the arguments in the memo, given that the Article II, section 3 of the Constitution states that the Executive "shall take care that the laws be faithfully executed." That suggests that the Commander-in-Chief power described in Article II, section 2, clause 1, however, great it may be, cannot be exercised through violation of law.

In any case, I thought I'd offer some historical perspective on the controversy. To begin with, here, (reprinted from my constitutional law casebook), is Richard Nixon making arguments remarkably similar to those in the torture memo. These come from an interview with David Frost following his resignation as a result of the Watergate scandal:

Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position.

Nixon argued that the President is not above the law because the President determines what the law is, and subordinates who follow the President's orders are thereby immunized. It follows that if the President determines that torture does not violate the law, it does not violate the law, and if he orders his subordinates to torture people, they are immunized from later prosecution.

Next, here's Abraham Lincoln,who wrote the following in an 1863 letter to Ohio Democrats after they passed a resolution denouncing his policy of military arrests and suspension of habeas corpus:

You ask, in substance, whether I really claim that I may override all the guarantied rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion of Invasion. The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution.

Lincoln's argument, although flawed in its interpretation of Article I, section 9, is far more subtle than Nixon's. Lincoln does not assert that he automatically determines what the law is simply because he is President. Rather, he argues that the Constitution specifically contemplates that the writ of habeas corpus can be suspended in time of emergency, but does not specify who must make that decision (he is wrong about that-- my view is that under Article I, section 9, Congress must authorize the President; the President cannot do it alone). Someone has to make a decision in times of emergency about suspension of the writ, Lincoln argues, and therefore President is permitted to make a gamble: If he exercises his powers justly, he will be exonerated. If he abuses his powers, then he is subject to sanction, including not only being thrown out of office in a subsequent election, but also impeachment, and subsequently, indictment, and criminal prosecution.

Note that Lincoln is not saying, unlike Nixon, that the Commander-in-Chief power allows him to do anything, and that all of his actions are necessarily legal. Rather Lincoln is saying that Article I, section 9 gives him the power to suspend the writ of habeas corpus and detain people indefinitely if he deems necessary, and that his decision will be subject to political oversight later on. In this passage, Lincoln does not say that he can overturn any existing laws (in another famous statement, he suggests he should be able to disregard a single law to preserve all the others). He does not say that he can violate the Eighth Amendment's prohibition on cruel and unusual punishments, laws specifically prohibiting torture, or the country's treaty obligations, or commit what would otherwise be war crimes. He merely says that a particular clause of the Constitution allows detention of people in times of emergency, that in the absence of a clear statement as to who makes this decision, he has the right to make it, and that he will be held to account if he abuses his power. How much more so should he be held to account if he violates the Constitution or the law.

Moreover, Lincoln's argument requires a certain degree of political transparency. It requires that the people be able to know whether the President has made a difficult decision in order to preserve the country. The problem with the present torture scandals is that, as far as we know, the Bush Administration never wished its policies regarding torture, or its actual practices of prisoner abuse, to see the light of day. Rather, it was merely luck that photographs of what went on at Abu Ghraib were released to the media, which then set the stage for further revelations. And unlike Lincoln, the Bush Administration does not believe that it can be held accountable for its actions if abuse is proved. Indeed, it continues to insist that it should be allowed to do what it wants, however it wants, without interference from Congress or anyone else.

The Bush Administration has been pursuing a logic very much like Nixon's. The President, because he is Commander-in-Chief, does not violate the law if he thinks a particular action is necessary. Rather, he determines what the law is. This way of thinking twists the Rule of Law beyond recognition. It is a chilling reminder of what people seduced by power and convinced of their utter rectitude will do to justify their actions.

Posted 9:05 AM by JB [link] (26) comments

Ronald Reagan: An Assessment

JB

President Ronald Reagan passed away today in California. He and his successor, George H.W. Bush, successfully presided over the end of the Cold War, leading to a period of American hegemony that we find ourselves in today. Reagan was a staunch anti-communist. However, after ramping up military investments early in his Presidency, Reagan had the good sense to reach out to Mikhail Gorbachev and seek arms controls just as the Soviet Empire was crumbling. By the time he left office, the Cold War was all but over, and his successor, George H.W. Bush, used his considerable diplomatic skills to smooth the transition.

Reagan was a popular president-- his approval ratings are very close to those of Bill Clinton, another popular two-term President. He had a sunny and optimistic disposition that made many Americans feel that the problems they faced could be solved. Although many Americans did not like his policies, they liked the man himself.

His domestic policies were less successful than his foreign policy. His experiments with supply side economics eventually produced enormous budget deficits. Both he and his successor George H.W. Bush had to compensate for the fiscal problems his early policies created by raising taxes, which eventually helped cost Bush the 1992 election. Reagan's domestic policies and cuts in social programs exacerbated increasing income and wealth inequality in the United States which continues to this day. His decision to underfund enforcement of financial regulations led directly to the Savings and Loan Crisis which culminated during George H.W. Bush's presidency, and cost the country billions of dollars.

The most serious blemish on his presidency was the Iran Contra scandal, in which members of his Administration misled and in some cases lied to Congress, engaging in covert transactions in the 1980s to provide funds to the Nicaraguan contra rebels from profits gained by selling arms to Iran. Congress had enacted legislation prohibiting the Defense Department, the CIA, or any other government agency from providing military aid to the contras. The U.S. also had a trade and arms embargo with Iran. The Reagan Administration attempted to get around these legal restrictions by using the National Security Council to supervise covert military aid to the contras and secretly sell and ship arms to Iran, using the proceeds to fund the contras.

Not only did members of the Reagan Administration violate federal law but they also obstructed Congressional investigations into the matter, thus creating a constitutional crisis. Barely a decade after Nixon's resignation, the country had no taste for a second impeachment investigation, but the violations of the Constitution implicated in the Iran-Contra scandal were very serious indeed. In 1992 Reagan's successor, George H.W. Bush, pardoned Caspar Weinberger and other officials who had been indicted or convicted for withholding information on or obstructing investigation of the affair. The pardons forestalled further inquiry into the matter.

In the long run, Presidents are judged by the balance of their successes and failures. By any account, Reagan's Presidency had its share of accomplishments. And politically Reagan was an absolutely pivotal figure, who helped create the successful political coalition of religious conservatives, economic conservatives, suburbanites, Southerners, and working class whites that forms the contemporary Republican Party. Reagan's political success can be measured by the fact that he shaped the terms of debate for the next several presidents who succeeded him. Indeed, Bill Clinton's remark that "the end of big government is over" was an acknowledgement that Reagan's presidency had fundamentally shifted the terms of political debate.

Of the twentieth century presidents, Reagan falls somewhere in the middle of the pack. He was not as great a figure as FDR, Truman, Wilson, or Teddy Roosevelt. On the other hand, he was certainly more successful than Taft, Harding, Coolidge, Hoover, Nixon, Carter, and George H.W. Bush. Reagan is a combination of successes and failures, of accomplishments and liabilities. He falls into the middle category of presidents like Eisenhower, Kennedy and Johnson, (all of whom, coincidentally, served one after another in the middle of the century), who had both important accomplishments and failures, although he is really like none of them.

Reagan is the only successful president in the twentieth century who was also a strongly ideological conservative (I do not count the environmentalist, trustbusting TR as a conservative, and Eisenhower was far more moderate than today's conservatives). Liberals, by contrast, are spoiled for choice, for they can point to several great and near great presidents in the twentieth century. For this reason alone, we can expect continuing and fervent attempts by conservatives to canonize Reagan in as many ways as possible. In some ways that is unfortunate, for these attempts will probably keep Reagan a more divisive figure than he should be. In hindsight, I predict that both liberals and conservatives will find things to admire about the man. And in twenty years' time we will have a much better picture of his accomplishments.

Posted 9:57 PM by JB [link] (72) comments

Josh Marshall and "Real Voters"

JB

I think Josh Marshall mischaracterizes the situation when he accuses "Republicans (and also non-Republicans) [of arguing] that non-white voters somehow aren't quite real voters. The point is often framed as noting how up-the-creek Democrats would be without black voters."

Parties are made up of collations of voters. It's pretty clear that blacks are key members of the Democratic Party's coalition, just as white Christian evangelicals are key parts of the Republican Party's coalition. (In fact, white evangelicals are likely to split their votes more evenly among the two parties than are African-Americans.).

Unlike Josh, I don't think this sort of rhetoric is trying to argue that blacks aren't real voters. No one is claiming that they aren't American citizens. (That insinuation is more likely to be raised with respect to other minorities, like Asians or Latinos. On the other hand, it has been insinuated about the Labor Party in Israeli elections in years past because of consistent support for Labor by Israel's Arab citizens.)

Rather, reminding people that Democrats would do terribly without a particular constituency (like blacks) is usually offered to insinuate that Democratic politicians are too much influenced by the interests of blacks (or gays or, in the case of the recent South Dakota House election, Native Americans.) Arguing that Democrats would be nowhere politically without the black vote is a way of saying that Democrats care about blacks too much and aren't paying enough attention to the interests of white voters. You can see how this sort of rhetoric meshed easily over the years with the Republican southern strategy. (By the way, I think that some Democrats, particularly in the North and East, do pretty much the same thing with the Religious Right-- they make hay by arguing that the Republican Party is in the pocket of the Religious Right. This is an exaggeration, as I shall explain below).

There are two ironies about this sort of argument. First, it tends to be made about the groups most loyal to the party in question, but not about swing voters. But swing voters may in fact, as their name implies, be the most crucial determinants of who actually wins elections. Take Latinos as an example. In the 2000 Presidential election, Democrats got about 62 percent of the Latino vote, while the Republicans got about 35 percent. That's a margin of 27 percent for the Democrats, and it was crucial to Democrats doing as well as they did. However, you don't hear all that many Republicans going around arguing that the Democrats would be nowhere without the Latino vote. But that's not because it's not true. In fact, Latino voters do make a crucial difference for Democrats. Rather, it's because Republicans really want the Latino vote. Ideally, they'd like to increase Latino support from about 35 percent to 40 percent or more. If they can do that they will do very well in national elections.

Thus, even though Latinos are crucial to Democratic margins of victory, most Republicans don't want to piss off Latinos by blaming them for Democratic successes. Indeed, the last thing they want to insinuate is that the Democrats are altogether too solicitous of the interests of Latinos, because Republicans want to claim that they are the ones who really care about the things that Latinos care about.

Contrast this to African Americans. For some time now, lots of (but certainly not all) Republicans, particularly in the South and the West, have pretty much written off the black vote, and so they are perfectly happy reminding their white constituents that the Democrats are altogether too cozy with African-Americans and are not paying enough attention to the interests of disgruntled white voters.

The second irony follows from the first. The insinuation that Democrats are too wedded to black interests is particularly ironic because the more loyal a group is to a particular party, the easier it sometimes is to take them for granted. Both African-Americans and the Religious Right have often felt taken for granted by the two major political parties for this very reason. Both blacks and the Religious Right have no place else to go if the two parties stiff them. And so the two major political parties regularly do stiff them on all sorts of issues.

Posted 2:59 PM by JB [link] (3) comments

Fallout from the Clinton Wars

JB

The Seattle Times offers this explanation for why President Bush sought legal counsel from a private attorney.

Georgetown University law professor Paul Rothstein cautioned against "overstating" the possibility of Bush's personal involvement in the leak. But he said the president's decision suggested, at least, that Bush might be anticipating a grand-jury appearance.

"My eyebrows went up when I heard about it," Rothstein said. "I think we have to read this move as some kind of feeling that there's some chance, no matter how remote, that there may be some personal liability on the president's part, or that someone might try to suggest there is."

White House officials declined to explain why Bush contacted Sharp. They also refused to say whether other top officials had sought legal advice, although a spokesman for Cheney left the impression that the vice president had consulted a lawyer.

Bush's need to rely on a private attorney, rather than White House counsel, may have its roots in the legal troubles of former President Clinton.

Faced with possible prosecution in the Whitewater probe, Clinton turned to the White House counsel for help, thinking his consultations would be kept secret under traditional attorney-client privileges.

But two federal appeals courts ruled in 1997 and 1998 that presidential communications with White House counsel weren't privileged when they were about personal, rather than governmental, matters. The rulings changed the presidency forever.

"It means the president needs his own lawyer if he's going to talk about personal liability, whether it's civil or criminal," Rothstein said.

Posted 6:23 PM by JB [link] (21) comments

Capitol Hill Blue: Bush Feeling the Pressure

JB

One must take this report from Capitol Hill Blue, suggesting that Bush is turning into an evangelical version of Richard Nixon, with a grain of salt. (link via Atrios). The one thing that does sound right is that the President, now some three and a half years in office, is feeling the pressure of failed policies and slipping poll numbers. Who in his position would not? For all of the jokes people make about Bush's lack of interest in the world, and his lack of interest in public policy, he is, above all, a savvy politician. And good politicians are always keenly aware of what other people think of them and their accomplishments. So, even if Bush reads only digests of news stories prepared by his advisors, you can bet that he and his chief political advisor Karl Rove are paying close attention to how the Administration's policies have been playing. He knows that things have not gone well. He must feel a terrible weight on his shoulders.

Posted 2:26 PM by JB [link] (17) comments

Naughty, Naughty, George

JB

Capitol Hill Blue offers an account of grand jury testimony in the Plame case that explains why President Bush suddenly needed to hire a lawyer.

Apparently Karl Rove also needs the services of a good attorney.

So let's see: Top Administration officials outed an undercover CIA operative out of political spite and Defense Department officials gave Ahmed Chalabi classified information about Iranian codes which he then leaked to the Iranians.

As the President likes to remind us: "You are either with us or against us in the fight against terror."

Which side is this Administration on again?

UPDATE: Matthew Ygelsias believes he has the answer.

Posted 10:39 PM by JB [link] (20) comments

Justice Department: Constitution? We Don't Need Your Stinking Constitution

JB

In a news conference on Tuesday, the Justice Department offered evidence that Jose Padilla, whom it has held in a military prison for two years, is a dangerous terrorist. This evidence, they argue, justifies their unprecedented violation of the constitutional rights of an American citizen. Justice Department officials stated that Padilla had confessed to meetings with Al Qaeda operatives and that he had planned to blow up apartment buildings by leaking natural gas and setting it on fire.

Of course, the word "confessed" has to be used advisedly here. These are merely the second hand reports of Justice Department officials who desperately need to justify their actions before an increasingly skeptical public. Padilla has never been allowed to speak for himself. Moreover, he has been held in solitary confinement and subjected to repeated interrogations for two years without being able to meet with a lawyer for most of this period. (He was allowed to meet with a lawyer for the first time in the past few months). That is to say, Padilla has been denied all of the basic protections that the Bill of Rights affords citizens of the United States, which are designed to prevent overreaching by overzealous government officials. Remember, even Terry Nichols and Timothy McVeigh, who masterminded the Oklahoma City bombing, were given the protections of the Bill of Rights. Jose Padilla should receive no less.

Let me state once again that I have no reason to doubt that Padilla is a bad fellow. He is, by all accounts, a street tough who got caught up in radical Islamic movements. But we really have no idea whether what the Justice Department is telling us is true or has been spun and stretched to justify their actions. We do not know whether Padilla really said what he is supposed to have said, and, perhaps more importantly, we do not know whether he was coerced into saying it.

Coerced into saying it, you ask? My goodness, we are Americans! We do not torture or coerce persons in our custody. Unfortunately, we have learned, much to our dismay, that our government has repeatedly employed coercive tactics, up to and including actual torture, against people it thinks may have information relevant to its continuing War on Terror. The evidence has come in from Guantanamo Bay, from Afghanistan, and most recently from Iraq.

Given these precedents, the trust we would like to afford government officials who, after all, are seeking to protect us, has been fatally undermined. What reason do we have to believe, given the information about prisoner abuse and torture that has recently come to light, that Jose Padilla has not been subjected to coercive interrogation techniques that violate not only international human rights agreements but also our own Bill of Rights? None whatsoever. And that is why what the Justice Department says to justify its violation of Padilla's rights is worthless. The government asks us to trust them. But it has destroyed the very basis of that trust.

The Justice Department admits that if it had given Padilla his rights, he would have obtained a lawyer and been free from its two year regimen of interrogations and solitary confinement. Had Padilla been given the rights that every American citizen is born with under our Constitution, Deputy Attorney General James Comey remarked, "he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope -- pray, really -- that we didn't lose him."

In other words, Comey admitted that the government did not have sufficient evidence to charge Padilla with a crime and keep him in custody. He would be a free man. But of course, that's what citizens of this country who are not charged with any crime are supposed to be in this country. Free.

Imagine that this had happened to you. Or to someone you love. Suppose that in the middle of the night the government had taken you and held you incommunicado in a military prison and coerced statements from you in violation of your constitutional rights. "But they would never do that to me," you respond. "I haven't done anything wrong." But the government doesn't know that. They think you are an enemy of the state. And so they keep you in prison until you say something they want to hear. And then they hold a press conference in which they use your words to demonstrate that they were justified in holding you in the first place. "But our government would never do such a thing," you protest. "We're the good guys. We don't make mistakes. We don't imprison innocent people. We don't spin the facts. We can be TRUSTED." Indeed. But the reason we are the good guys is that we believe in the Rule of Law and the Bill of Rights. Once we abandon those protections, we begin to resemble the very things we are fighting against.

Posted 10:08 AM by JB [link] (7) comments

What's A Few No Bid Contracts Among Friends?

JB

Dick Cheney has long insisted that he has severed all connections with Halliburton, the company he formerly ran, the company which recieved no-bid contracts for the Iraqi occupation from the U.S. Government, and which, incidentally overcharged the military on several occaisions.

Apparently, however, not all connections were severed. According to Reuters, Cheney may have diverted business to his former firm.

A newly unearthed Pentagon e-mail about Halliburton contracts in Iraq prompted fresh calls on Capitol Hill on Tuesday for probes into whether Vice President Dick Cheney helped his old firm get the deals.

The e-mail, reported by Time magazine, provided "clear evidence" of a relationship between Cheney and multibillion-dollar contracts Halliburton has received for rebuilding Iraq, Sen. Patrick Leahy said.

"It totally contradicts the vice president's previous assertions of having no contact" with federal officials about Halliburton's Iraq deals, Leahy, a Vermont Democrat, said in a conference call set up by John Kerry's presidential campaign. "It would be irresponsible not to hold hearings."

The March 2003 Pentagon e-mail says action on a no-bid Halliburton contract to rebuild Iraq's oil industry was "coordinated" with Cheney's office. Cheney was chief executive officer of the oilfield services giant from 1995 until he joined George W. Bush's presidential ticket in 2000.

But, so far, at least, the Republicans who control Congress don't want to hold hearings. Can you really blame them? After all, they've already had to deal with the 9-11 Commission's revelations of the Administration's incompetence in dealing with terrorism, as well as the revelations of prisoner abuse at Abu Ghraib. Calling attention to to possible financial corruption by the Vice-President is probably not going to make them any happier.

Nevertheless, Congress should hold hearings on this issue immediately. I've been quite concerned about the lack of attention paid to the question of profiteering during this war. Cushy contracts were offered to friends of the Administration without having to go through the usual competitive bidding rules, and those companies then proceeded to line their pockets with unnecessary charges while American soldiers were being shot and killed. It's enough to make any patriotic American's blood boil. When will Congressional leaders recognize that this is a serious matter?

Posted 5:47 PM by JB [link] (16) comments