"Smith and Amash's effort comes amid a bipartisan backlash against indefinite detention that has already produced legislation on the state level. Republican-dominated legislatures in Arizona, Maine, and Virginia have passed anti-NDAA legislation. Proponents of indefinite detention argue that Congress' 2001 authorization of the use of military force against Al Qaeda and the Taliban permits the indefinite detention without trial of American citizens, even those apprehended in the United States. But the Supreme Court has not definitively ruled on the issue. Opponents counter that indefinite detention of American citizens in the United States is unconstitutional."
The Wall Street Journal has a conniption fit about conservative opposition to the NDAA: "The ACLU tea partiers may be well-intentioned but they are woefully uninformed about the war on the terror. Their efforts would undermine executive war-fighting authority and the legitimacy of a terrorist detention and military tribunal system that has been established over many Congresses, endorsed by two Presidents and confirmed by the Supreme Court. They should stick to shrinking the entitlement state."
"In less than a week’s time a second state has put a foot down making it clear that it will not cooperate with Federal Law which is blatantly unconstitutional. Yesterday Arizona became the second state to pass a nullification of the National Defense Authorization Act (NDAA)."
“The major defining feature of the Obama administration on this issue is the eagerness with which it embraced the stunning evisceration of civil rights and liberties that was a hallmark of the Bush administration, and then deepened those outrageous programs,” said Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, who is an attorney representing many Occupy protesters swept up in last fall’s mass arrests. “He has successfully counted on the acquiescent silence of the liberals.”
I don’t think any “climate movement” is going to reverse the tide of history, for one reason: We are all climate change. It is not the evil “1%” destroying the planet. We are all of us part of that destruction. This is the great, conflicted, complex situation we find ourselves in. I am climate change. You are climate change. Our culture is climate change. And climate change itself is just the tip of a much bigger iceberg, if you’ll pardon the terrible but appropriate pun. If we were to wake up tomorrow to the news that climate change were a hoax or a huge mistake, we would still be living in a world in which extinction rates were between 100 and 1000 times natural levels and in which we have managed to destroy 25 percent of the world’s wildlife in the last four decades alone.
“You are unable to say that [such a book] consisting of political speech could not be captured under [NDAA section] 1021?” the judge asked.
“We can’t say that,” Torrance answered.
“Are you telling me that no U.S. citizen can be detained under 1021?” Forest asked.
“That’s not a reasonable fear,” the government lawyer said.
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“Say it’s reasonable to fear you will be unlucky [and face] detention, trial. What does ‘directly supported’ mean?” she asked.
“We have not said anything about that …” Torrance answered.
“What do you think it means?” the judge asked. “Give me an example that distinguishes between direct and indirect support. Give me a single example.”
“We have not come to a position on that,” he said.
“So assume you are a U.S. citizen trying not to run afoul of this law. What does it [the phrase] mean to you?” the judge said.
“I couldn’t offer any specific language,” Torrance answered. “I don’t have a specific example.”
"(Judge) Forrest also repeatedly asked for assurances – at least five times – that the NDAA would not sweep up people like the plaintiffs: journalists engaged in journalism and citizens engaged in peaceful protest. Again, every time, the lawyers for Obama and Panetta said that they could not give her such assurances. [...] We now have it from the U.S. government lawyers’ own mouths: This law may put journalists at risk, or at least the lawyers explicitly refused to rule out that option for their client – and, as Forrest put it, they have “one very big client.”"
"That night, Obama prepared his party’s congressional leaders. He warned Senate Majority Leader Harry M. Reid (D-Nev.) and House Minority Leader Nancy Pelosi (D-Calif.) that he might return to the position under discussion the previous Sunday — that is, cuts to Social Security, Medicare and Medicaid in exchange for just $800 billion in tax increases. [...] White House officials said this week that the offer is still on the table."
“There's not a lot of choice here, that’s the sad part of this,” says Matt McKinnon, political and legislative director of the Machinists union (IAM), which is affiliated with AFL-CIO and endorsed the president earlier this year. “He’s been a disappointment in several areas, but he came through with some decent appointees.”
The expected endorsement represents the reality that organized labor leaders still feel trapped in a two-party system, with a not-always labor-friendly Democratic Party on one side and a downright hostile Republican Party on the other.
Voting isn't everything. "I think Emma Goldman had a point in saying that if voting changed anything they would ban it. I think Howard Zinn had a point in saying that it doesn't matter who is sitting in the White House so much as who is doing the sitting in. The relentless ubiquitous question of how you can change the world if you refuse to engage in electoral politics strikes me as crazy. Women didn't vote themselves the right to vote. Workers didn't elect the eight hour day. India didn't vote the British out."
"When the long history of political infiltration is reviewed, the Occupy Movement should be surprised if it is not infiltrated. Almost every movement in modern history has been infiltrated by police and others using many of the same tactics we are now seeing in Occupy. "
"The purpose of this FAQ is not to attack libertarianism, but some of the more fallacious arguments within it. That done, libertarians can then reformulate or reject these arguments. This is also needed to help people place libertarianism and its arguments in context. It is very hard to find any literature about libertarianism that was NOT written by its advocates. This isolation from normal political discourse makes it difficult to evaluate libertarian claims without much more research or analysis than most of us have time for. Compare this to (for example) the extensive literature of socialism and communism written by ideologues, scholars, pundits, etc. on all sides. Libertarianism is scantily analyzed outside its own movement. Let's fix that."
Always good to have a reference, this is it. "Rush Limbaugh is not backing down after widespread condemnation over his misogynistic attack on Sandra Fluke, a Georgetown University Law School student who testified before Congress recently about the problems caused when women lack access to contraception. " Multiple clips for future show and tells.
"Barack Obama has halted the macabre parade of hooded, shackled suspects in orange jumpsuits stumbling off American planes into the tropical sunshine at Guantanamo, but he has not done so by restoring the rule of law. Instead, to a great extent, he has replaced Bush’s policy with a global campaign to simply kill a wide range of people in cold blood: terrorism suspects, resistance fighters, and anyone else added to secret lists for secret reasons. From a uniquely American “exceptionalist” point of view, killing suspects instead of capturing them is a convenient way to avoid the embarrassment of sweeping up hundreds of mostly innocent people in an indiscriminate global dragnet and then not knowing what to do with them. The dead tell no tales. Public outrage is contained within the faraway countries where the killings take place and does not cause domestic political problems."
Iraq ten years after: instead of one Saddam, many little ones. "Yassir was detained in 2007. For three years she heard nothing of him and assumed he was dead like his brothers. Then one day she took a phone call from an officer who said she could go to visit him if she paid a bribe. She borrowed the money from her neighbour and set off for the prison. "We waited until they brought him," she said. "His hands and legs were tied in metal chains like a criminal. I didn't know him from the torture. He wasn't my son, he was someone else.""
Your former Undersecretary of Defense and mine, Douglas Feith, speaking with Philippe Sands (”The Green Light,” Vanity Fair about the good old days when he played a role in approving torture:
“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.”
Crudely indeed. This rings a couple of bells for me. One is Sir Richard Rich in Robert Bolt’s “A Man for All Seasons.” Early on in the story he disdains a mere teaching position Thomas More offers him, preferring the wealth and glamour of being a player in the time of Henry VIII. Ultimately he perjures himself to send Thomas More to the executioner’s block and gain, in return for an appointment to high office.
As Bolt has More put it, Sir Rich gave his soul not even for the whole world, but for Wales. Feith gave his… for what? The chance to brag to a disgusted interviewer. And, I suppose, for a teaching position at Georgetown.
The other memory the statement evoked is still a sad one for me: Eric Alterman’s recent remark, at a book reading I attended, that “principles are a form of moral vanity.” Alterman might well argue that opposing impeachment as inopportune and impolitic is not the same as undermining solemn treaty and human rights obligations. On the other hand, it’s precisely the latter transgressions that impeachment would punish (or would have punished). Which is worse — mocking the principle of human rights, or mocking the principle that justice should be done for abrogating those rights?
I’ll add that I’ve been reading Alterman’s book — not his most recent one, but the more scholarly and interesting “When Presidents Lie.” More on that another time, maybe. Suffice it to say two thumbs up, and one reader still puzzled by Alterman’s concluding advice to presidents in that book (“…do not, under any circumstances, lie”), set against his allergic reaction to the remedy of impeachment for those who do so and worse.
===== EDIT, 4/10: asterisks in title. I had no complaints, but the title appears via RSS feed in aggregators and some blogs, so a belated effort not to offend others seemed called for.
I haven’t meant to keep quiet here quite this much since last Thursday — but now the pause may get extended through the weekend. We’re on the road to Connecticut to see an old friend, so new posts may not be possible and won’t be a priority.
===
I watched part 2 of Frontline’s “Bush’s War” documentary last night. If you haven’t seen it, I recommend it; with a good Internet connection, you can watch it online.
One might quibble with the title; it wasn’t just Bush’s war: it was Rummy’s, Cheney’s, Condi’s, Powell’s, Tenet’s, Bremer’s, Franks’s, Casey’s, and Sanchez’s war as well — and ours too, at least for those of us (like me) who let ourselves be swayed into ever supporting it. I feel like I’ve said mymeaculpas — and probably ought to extend them sometime. But so what, it’s still “mea culpa” and that doesn’t undo anything.
As far as the documentary itself: there’s a real value to retrospectives like this even if you think you follow the news closely. For me, having Condoleezza Rice’s role laid out as it was last night was revelatory. She obviously is the “last man standing”, so to speak, among the original Iraq war cabinet — and the “surge” is laid at her doorstep and that of Philip Zelikow, of 9/11 Commission fame.* They both failed to see that local “clear, hold, build” occupation successes — such as they were — in places like Tal Afar couldn’t be replicated across all of Iraq, even with a few thousand more U.S. troops. Rumsfeld was actually an opponent of a “clear, hold, build” strategy executed by U.S. troops, arguing that was the job of (nonexistent) Iraqi military units.
But at least one thing I don’t buy in the documentary is the implication that higher level administration officials — Cheney, Tenet — really, truly expected WMD to be found; they knew they’d been twisting arms or had their arms twisted to turn up what little fool’s gold they’d come up with.
===== * And, apparently unbeknownst to that commission, an author of the 2002 NSS (National Security Strategy) advocating preemptive and preventive defense.
Here’s some stuff Bush has said about and during his trip to Africa:
America is trapped in this notion that we care about human life.
I mean, you got the Dalai Lama crowd. You’ve got global warming folks.
We believe in human rights and human dignity. We believe in the human condition.
We live in a world where everything’s, like, instant.
[Condoleeza Rice] asked me whether or not I really cared about Africa and my answer to her then is the same answer I will give to you now: Absolutely, it’s in our national interests that America help deal with hopelessness.*
You’re right, my presidency does end. And that’s one of the great things about American democracy.
As ever, it’salltrue. Before the trip, Dubya really turned the tables on one foreign radio journalist who was acting a little too smart during a roundtable in the Roosevelt room:
Q: Mr. President, I’m impressed by your policy statement on Africa today. THE PRESIDENT: Were you listening?
===== * Added context bonus: this was from a Bush response during “Joint Press Availability” with President Kikwete of Tanzania, at the State House in Dar es Salaam, Tanzania. NOTE: Most items via “Whatever it is, I’m against it,” but I found the last one all by myself.
#Kenneth Pollack — Incredibly Enough, He’s Even Stupider Than You Thought (Jonathan Schwarz, “A Tiny Revolution”) — Schwarz reviews Pollack’s book “Persian Puzzle”, in which Pollack thinks it odd and irrational that Iranians were stocking up on naval equipment, which implied to Mr. “Threatening Storm” that they were spoiling for a fight with the good old U.S.A. Turns out they had a pretty decent reason for doing so — the US was sinking Iranian ships. Schwarz:
…it’s standard in government bureaucracies for people to become blithering idiots who have no idea what’s going on right in front of their face. So Pollack isn’t unusual in that regard. But it takes a special man to use his own blithering idiocy about his own country as justification to believe another country is mysterious and incomprehensible. Kenneth Pollack is that special man.
#This is the way, step inside (Spencer Ackerman, “toohotfortnr”) — Ackerman wades into Jonah Goldberg’s “Liberal Fascism” book and finds its definition of fascism overbroad, not applicable to Goldberg’s “exhibit A” — the Wilson era — even by Goldberg’s own definition. Ackerman concludes:
I’m starting to think Jonah Goldberg is not an intelligent man.
#Bad News for Mike Gravel (Jim MacDonald, “Making Light”) — New Hampshire citizen gets a two question phone call from a pollster:
“Are you planning to vote in the Democratic primary?”
“Sure am.”
“Who are you planning to vote for?”
“Mike Gravel.”
“Oh, you mean you’re going to vote in the Republican primary.”
“No, Mike Gravel is a Democrat. Two-term Democratic senator from Alaska.”
“Are you sure?
“Yes.”
“I can press when there needs to be pressed; I can hold hands when there needs to be — hold hands. [...]
And what ends up happening in this process is that the leaders will commit, and then they’ll get their committees to work, and it gets stuck. And that’s when I’ll have to work with Condi Rice to unstick it.
Ahem. Does Laura know about this? Does she help? WIIIAI: “I’d put a joke in here, but each version of “Like the time I got my () stuck in ()” I come up with is more disturbing than the one before.”
#The Republican debates according to a 9-year old (DailyKos diarist 8ackgr0und N015e) — This guy gave his 9 year old the job of following the GOP debate on Saturday: “Follow me below the fold for the 9-year old’s rendition of a fight between Sarge, Wrinkles, Bunny Ears, Oily, Beagle Eyes and Carrot Face…” From the resulting transcript:
They are rude Interrupt alot!
Beagle Eyes
Arrogant foreign policy
We need 400,000 troops
Don’t let politicians get involved
Leave it to military with blood on their boots. [...]
Sarge
John Micane never supported amnesty
Charge $5,000 to stay
attack ads
Wrinkles
Immigrants should not be rewarded
Fight.Fight. Interrupt. Fight
Oily
Do not sent 12,000,000
Ronald Reagan on some commercial. [...]
Sarge
Obama doesn’t have the background to lead.
No candidate likes Obama.
Republicans don’t think he’ll be a good president.
Obama gonna win.
To his great credit, Senator Cardin announced his opposition to the Mukasey nomination earlier this afternoon. In the nub of what commenter Brett rightly calls a fine speech, Senator Cardin rehearsed Mukasey’s written answers to Cardin’s handful of written questions: that he would prosecute individuals who have committed acts of torture, that the Department of Justice has an obligation to prosecute such acts, that no “exceptional circumstances” exist justifying torture, and that he, Mukasey, would never authorize torture.
The question, of course, was what Mukasey is willing to define as torture — and what he’s willing to commit to before Congress about that. Cardin continued:
I therefore have great difficulty understanding Judge Mukasey’s refusal to say that waterboarding is torture, and to leave open the possibility that waterboarding would be permitted as an interrogation technique. Judge Mukasey now acknowledges that he understands what is generally meant by waterboarding, after he stated he was not familiar with this technique during his confirmation hearing.
The questions asked to Judge Mukasey during his confirmation hearing, and in subsequent written questions from the Committee, do not ask about a specific technique that may have been authorized by the President for use on detainees. Our questions to Judge Mukasey related to waterboarding as generally understood. It was not a hypothetical question. The United States has prosecuted Japanese soldiers for using waterboarding during World War II. In 2006, the Army released an updated version of the Field Manual that prohibits the use of waterboarding by our soldiers. The military acted after the passage of the McCain amendment in 2005, which, first, requires Department of Defense personnel to use the Army Field Manual guidelines when interrogating detainees. Second, the McCain amendment prohibits the use of “cruel, inhuman and degrading treatment or punishment of persons under the detention, custody, or control of the United States Government.”
During our final panel of witnesses at the confirmation hearing, I asked Admiral John Hutson about this matter. Admiral Hutson is a distinguished and highly decorated military lawyer, and in his capacity as the former Navy Judge Advocate General was the senior uniformed legal advisor to the Secretary of the Navy and the Chief of Naval Operations. Admiral Hutson testified, in sum, that the Attorney General as our chief law enforcement officer has to be absolutely unequivocal as to what is torture and what is not. We should not even be close to the line of what is torture. Admiral Hutson testified that waterboarding is one of the most iconic examples of torture, and it was devised during the Spanish Inquisition. Its use has been repudiated for centuries.
So it appeared to me, Mr. President, that Judge Mukasey was yielding to White House pressure on the issue of waterboarding. This is troubling to me because of the critical importance of the independence of the Attorney General.
On November 1, 2007, President Bush implied that if Judge Mukasey answered the question on waterboarding he would give “terrorists a window into which techniques we may use, and which ones we may not use.”
I want the Attorney General and the President to tell the world that the United States will not permit the use of torture. I am concerned that after signing the McCain amendment into law the President issued a signing statement saying his administration would interpret the new law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief, and consistent with the constitutional limitations on the judicial power.” This vague language may mean that the Administration is still claiming the right to torture detainees. I was saddened to read the October 2007 New York Times report that the Justice Department had issued classified legal opinions in 2005 which have not been rescinded and which continue to authorize the use of waterboarding against detainees. [...]
I am privileged to serve as the Senate Co-Chairman of the U.S. Helsinki Commission and as a U.S. delegate to the Organization for Security and Cooperation in Europe (OSCE). [...] Sadly, I find that I spend most of my time in the OSCE today trying to defend the United States against international criticism. The leadership of the United States is being questioned and challenged, and I cannot find the right answer to give my colleagues, particularly on the issue of torture.
Judge Mukasey is a good person and an honorable man. However, on the critical issue of standing up to this Administration as an independent advisor against the use of torture, I have my doubts.
For that reason, Mr. President, I will vote against his confirmation tomorrow morning in the Judiciary Committee.
I note without great surprise that Senator Cardin elected not to follow my sage advice and widen the scope of the case against Mukasey to his notion of voter fraud as a problem commensurate with vote suppression. Cardin may be right to claim that Mukasey would “bring a refreshing change to the Department of Justice,” and would “begin to restore the morale at the Department, along with the respect for professional career attorneys.” But unless the next Attorney General brings a fundamentally different set of priorities to civil rights enforcement — and an independence he refused to show regarding torture — the change will be illusory and the restoration of morale will be short-lived. Mukasey’s defeat would be no major setback for civil rights enforcement if he was planning to continue the voter fraud wild goose chase.
I also note (with with somewhat greater surprise) that the Senator also elected not to stress his own excellent written question regarding prosecuting conspiracies to commit torture — a question that should be sending shivers down John Yoo and David Addington’s backs, to name some of the littler fish the charge could apply to.
But those are quibbles, as is my wish that he’d said this sooner. I set against those quibbles the very great goods of Senator Cardin calling out the President on his signing statement gutting the meaning of the McCain amendment; Senator Cardin decrying the newly revealed “torture v.2.0″ OLC documents; Senator Cardin candidly describing to his fellow senators the loss of reputation he knows our country has suffered for Bush, Cheney, Addington, Yoo et al’s addictions to the abuse of power; and above all his enunciation of the Cardin Rule: “we should not even be close to the line of what is torture.”
In a dark time, Cardin’s speech today was a moment Maryland progressives and Democrats can be proud of. Thank you, Senator Cardin.
Senator Ben Cardin (D-MD) has remained silent through the weekend on how he’ll vote on Michael Mukasey for Attorney General.
By now it may hardly matter. Hopes that the Bush administration’s latest apologist for unfettered presidential power would be defeated in the Judiciary Committee were probably extinguished when Senator Arlen Specter (R-PA) confirmed he’d vote for Mukasey. The resulting unanimous GOP “yes” vote, combined with Senator Feinstein’s (D-CA) and Schumer’s (D-NY) support, means that Mukasey will probably at least eke out a narrow win in the committee.
It’s a shame, because Senator Cardin had a chance not just to join the fight for a renewed constitutional republic, but to lead it. Had he come out with a “no” signal ahead of Feinstein and Schumer, the pressure might have increased on those two Senators to delay and reconsider their vote — especially if Cardin had forcefully raised new concerns about Mukasey — concerns that speak directly to millions of American minority voters. To see why, watch the video of Cardin’s October 17 and 18 exchanges with Mukasey on voter ID and vote suppression:
This comes via the redoubtable Bradblog, where a transcript of both exchanges can be found. The key exchange came early on, after Cardin had briefly recapped a Georgia photo voter ID law purporting to solve a problem of fraudulent voting. The cost and effort to get the IDs made the law “the modern equivalent of the poll tax” by a judge who struck it down. Cardin reminded Mukasey that the law had been vetted and approved by the Gonzales Justice Department’s politicized Civil Rights Division, and then asked where Mukasey’s priorities would lie:
[SENATOR BEN CARDIN]…So I guess my question to you is, will your priority, in your instructions to the Civil Rights Division, be the traditional role of the Dept. of Justice in trying to remove obstacles to particularly minorities being able to vote, or will it be more to try to do the Georgia-type of Voter ID laws?
JUDGE MICHAEL MUKASEY: Respectfully, I don’t think it’s an either/or proposition. I think that voter enfranchisement, voter empowerment, opening up the vote, opening up access to the vote, and preventing people who shouldn’t vote from voting, are essentially two sides of the same coin.
But as Senator Cardin had already pointed out, “the Secretary of State of Georgia could give us no examples of people using false identification or false persons to vote.” As Senator Kennedy wrote in followup questions*submitted in writing, “In the past 5 years… there have been only 86 convictions [of voter fraud] nationwide — mostly involving poor, immigrant, or minority voters who had no intention of violating the law, but didn’t know that they were not legally allowed to register to vote.”
By contrast, vote suppression is common and intentional — as Senator Cardin has reason to know: his opponent last year, Michael Steele, not only hired Philadelphia homeless people to distribute fake “voter ballots” falsely claiming he’d been endorsed by local African-American Democratic politicians, but acknowledged the effort to defraud voters after the election and “just had to laugh at” criticism of the tactic.
So while they’re theoretically “two sides of the same coin,” vote suppression is real, while systematic, intentional vote fraud is essentially imaginary. As Brad Friedman notes, Judge Mukasey was quick to agree that overt trickery (publicizing the wrong election date, threatening arrests for outstanding tickets, and the like) is criminal. But Mukasey was much less enthusiastic about condemning legislative vote suppression such as the Georgia photo voter ID bill — even though that’s part of the job description of the Civil Rights Division he hopes to oversee. The judge went so far as to criticize the “modern day poll tax” statement as “a little over the top.”
More troublingly, in written answers to Senator Kennedy, Mukasey was unwilling to take the Justice Department approval of the Georgia law as evidence of a problem in the department:
ANSWER: I completely agree that the Department’s priorities should focus on the most prevalent and significant voting problems. At this time, however, I do not have sufficient information to determine whether the Department’s priorities comport with that approach, although I assume that they do.
Recapping, Mukasey assumes all is well at the Civil Rights Division’s priorities, even though they approved a blatantly discriminatory and vote suppressive law.
Senator Cardin appeared to be pleased with the answers Mukasey gave him regarding civil rights and voting law enforcement, doubtless valuing the respectful manner in which Mukasey delivered those answers. John Nichols, writing for The Nation, considers Mukasey worse than Gonzales, in part because he’s smoother:
Mukasey gives every indication that he is as enthusiastic as was Gonzales about helping the president to bend and break they law. The scary thing is that Mukasey appears to be a good deal abler when it comes to cloaking lawlessness in a veneer of legal uncertainty.
As Brad Friedman writes, Cardin “would be well advised to re-review the text transcript very carefully.” Both Mukasey’s testimony and his written answers reveal a willingness to dilute and subvert the Civil Rights Division’s true intent — enabling minorities to vote — with a fraudulent wild goose chase after vote fraud. As Senator Kennedy points out in his questions, that’s potentially unconstitutional and unlawful behavior by the Civil Rights Division itself. And as Kennedy’s subsequent questions indicate, that in turn is the basis of the “AttorneyGate” scandal that led to Mukasey’s nomination in the first place.
In his answers to Senators questions, Mukasey goes on to assert he agrees that the Civil Rights Division’s priorities must “reflect the most prevalent and significant voting problems.” But his oral testimony and his written testimony indicate Mukasey has a precarious, if not to say suspect, grasp of which voting problems are significant, and which are not. In a way, this is similar to Mukasey’s flights into high theory and casuistry about waterboarding. Things are sometimes as simple, as wrong, and as illegal as they look — and that’s something Mukasey seems loath to admit.
Were Senator Cardin to sound the alarm on voting rights law enforcement, and justify his “no” vote on this basis, Mukasey’s still-wobbly prospects still might get the coup de grace they deserve. For one, the claims by Schumer and others that “torture alone” is driving the debate would be (again) rebutted; for another, the legacy of the civil rights movement is (still) one of the most widely cherished ones in American life. While the Judiciary Committee vote seems a foregone conclusion now, the Senate vote need not be.
Senator Cardin has a huge opportunity both to make his mark in the Senate, and to serve his country. I hope he takes it.
===== * The excerpted questions by Senator Kennedy are on page 39 and 40 of his 64 page section (48 and 49 of the overall 172 page .PDF document). NOTES: “struck it down,” “vetted and approved,” “just had to laugh at” lead to posts on this blog about those events, with links to regular news media articles.
I strongly second this conclusion by Scott Horton (Harper’s Magazine):
If the Bush Administration wants to turn torture into a litmus test, so must Congress. The question therefore ultimately becomes one of principle and not personality. The Judiciary Committee should not accept any nominee who fails to provide meaningful assurance on this issue. And, though it saddens me to say this, Michael Mukasey has not.
(Emphasis added. Via Marty Lederman at Balkinization.) My own Senator on the Judiciary Committee, Ben Cardin, has not yet said how he’ll vote on the Mukasey nomination; maybe he’s waiting to see what Senator Leahy says this afternoon. At any rate, I’m calling him to urge him to vote “no” — as I did on Tuesday at Heather Mizeur’s fundraiser, where I learned he’d already seen the New York Times op-ed by Yale Law School’s Jed Rubenfeld, which closed:
2. As Attorney General, will you order the Justice Department to prosecute of [sic] individuals who have participated in conspiracy to commit torture?
Mukasey’s answer was typical of his other answers: superficially comforting, but actually just promising more of the same, shall we say, tortured parsing that has nearly derailed his nomination:
ANSWER: As I noted, the Department of Justice has an obligation to enforce all valid criminal statutes, and the conspiracy to commit torture would certainly be a crime under federal law. With respect to particular prosecutions, I would consider them on a case-by-case basis and examine the facts and applicable law in each situation.
More on this particular issue another time. Mukasey is probably a decent guy, but he has not been able or willing to distance himself from this administration, adopting their situational ethics view of torture to study issues that require no further study. The Senate Judiciary Committee has the opportunity to repudiate this administration’s repugnant policies and its unconstitutional view of its powers. The committee should do its duty and take that opportunity by refusing to confirm Mukasey for Attorney General.
=====
UPDATE, 11/2: Possibly on the heels of Senator Leahy’s “no” announcement, I just got an e-mail from MoveOn asking me to contact Senator Cardin and tell him to vote “no” on Mukasey. It’s possibly a nationwide campaign, or at least to states with Senators on the Judiciary Committee, but there’s no web page to go by (yet?), other than a form to record your call. Please do so; I’m big enough to share the credit with MoveOn. Via the e-mail, Alliance for Justice (AfJ) has released a concise critique of Mukasey’s answers to Senators’ written questions.
UPDATE 2, 11/2: Mentioned in the AfJ piece, but not commented on per se, was this:“[A]s a general matter, different legal standards would apply to protect American soldiers than would be available to members of al Qaeda.” The question had to do with the Army Field Manual’s reciprocity rule of thumb test — if al Qaeda did such things to American soldiers, would it be considered abuse? Mukasey’s written answer notwithstanding, as a matter decided by the Supreme Court, “enemy combatants” — including suspected al Qaeda members — are entitled to Geneva Conventions protections. To be fair, this is a point Mukasey makes himself in other written answers — which still invites concern about why he would raise the “different legal standards” idea at all.
…Even if we can’t maintain the surge, we’re making progress, so we should stay.– This is an example of what, on Obsidian Wings, I called “benefit analysis”: noting that an option provides some benefit and concluding that we should adopt it. (Relatedly, “cost analysis” involves noting that an option involves some cost and concluding that we should not adopt it.)
By leaving Iraq, America will induce the Iraqi people, regional powers, and the entire international community to find the political solution that will end the sectarian violence and create a stable Iraq. We must show the Iraqis that we are serious about leaving by actually starting to leave, with an immediate withdrawal of 40,000-50,000 troops.
But that’s not all; as Nell Lancaster notes in a post also worth reading, Edwards also believes the U.S. should “completely withdraw all combat troops in Iraq within about a year and prohibit permanent U.S. military bases in Iraq.”* (All emphases added.) Nell:
Primary campaigns are truly pointless, massive wastes of money and effort if there’s no significant difference among major candidates. This is a healthy step forward.
The annus horribilis of 2007 has turned out to be a year of triumph for the Bush Faction — the hit men who delivered the coup de grâce to the long-moribund Republic. Bush was written off as a lame duck after the Democrat’s November 2006 election “triumph” (in fact, the narrowest of victories eked out despite an orgy of cheating and fixing by the losers), and the subsequent salvo of Establishment consensus from the Iraq Study Group, advocating a de-escalation of the war in Iraq. Then came a series of scandals, investigations, high-profile resignations, even the criminal conviction of a top White House official. But despite all this — and abysmal poll ratings as well — over the past eight months Bush and his coupsters have seen every single element of their violent tyranny confirmed, countenanced and extended.
Thanks, Nancy!
The (Josh) Marshall Plan, David Glenn, Columbia Journalism Review — A well written description and analysis of the Talking Points Memo media empire and its founder, Josh Marshall. Here’s a key observation, I think:
When asked whether he would rather have more staff resources devoted to original reporting, [Marshall] says, “I think we’ve got our percentages down pretty well. I think it’s key to our model that we don’t draw a clear distinction” between original reporting and aggregation. Marshall favors such a mix because he wants his reporters to serve as the “narrators” of complex, slowly unfolding stories. “Sometimes that will mean walking our readers through what’s being published elsewhere,” he says. New articles in mainstream dailies often contain facts whose full implications aren’t explored, Marshall says, “either because of space or editorial constraints or because the reporters themselves don’t know the story well enough. They’re often parachuted in to work on these topics for just a few weeks.”
Conscience of a Conservative, Jeffrey Rosen, New York Times Magazine — Rosen profiles Jack Goldsmith: conservative, head of the Bush administration’s Office of Legal Counsel in 2003 and 2004 … and eventual dissident from the worst of what Bush, Cheney and Addington were up to. The profile and Goldsmith’s book will go down in history for this quote:
But Goldsmith deplored the way the White House tried to fix the problem, which was highly contemptuous of Congress and the courts. “We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004.**
(Emphasis added.) In the event, of course, Addington was wrong — they were zero bombs, three years and six months away. This quote is also worth hanging on to, for its succinct summary of the Bush/Cheney/Addington m.o.:
In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes.
Impeach them all.
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* See also a video of recent comments by Edwards in Iowa (via lambert at “Corrente”) on Guantanamo, warrantless surveillance, U.S. secret prisons, and torture; Edwards says he’ll end all of it. While Edwards doesn’t favor impeachment for many of the usual bad reasons (essentially, Congress has better things to do), his election on a platform like this would be the next best thing.
** The quote begins with “In addition, he shared the White House’s concern that the Foreign Intelligence Surveillance Act might prevent wiretaps on international calls involving terrorists.” This is either false or reflects Goldsmith’s own willingness to play a little fast and loose with the facts. When factually warranted, the FISA court would certify that such a wiretap was legally warranted — and could do so after the fact.
Like a lizard shedding its tail to get out of trouble, the Bush administration has shed an expendable appendage to change the news cycle and get away with business as usual. The Gonzales resignation strikes me as part of a quite successful pattern of strategic retreats and counterattacks by the Bush administration, all designed to protect its impeachable and often flatly criminal core.
The FISA revision a couple of weeks ago remains Exhibit A in this respect. Bush’s lawlessness in pursuing warrantless electronic surveillance was one of the clearest statutory-level “smoking gun” grounds for impeachment — but the egregiously misnamed “Protect America Act” seemed to make legal precisely the actions even administration officials like James Comey objected to. Likewise, regarding torture, elements of the Military Commissions Act (MCA) may have had the purpose of insulating administration officials from legal, constitutional, and international law claims by retroactively applying its provisions to acts after September 11.*
These two bills represented Congressional collapses — in the former case, inexcusably presided over by an “opposition” party allegedly representing me — that arguably weakened the political case for impeachment on either of these grounds. This was because they enabled a cheap political retort along the lines of “you want to impeach them for stuff you just legalized?” — whether or not that’s true for every single act of warrantless surveillance, or cruel, degrading, or flatly torturous conduct carried out at Bush and Cheney’s direction or with their blessing.
Turning to Gonzales, Robert Kuttner recently supported impeaching Gonzales as a kind of “baby step” towards prying loose more data about AttorneyGate and possibly proceeding with Bush and Cheney’s impeachment at a later date. And Representative Jay Inslee (D-WA-1) is sponsoring a Gonzales impeachment resolution which Nancy Pelosi famously sighed and delicately rubbed her temples about a month ago. But in the face of continued Bush administration stonewalling of the Senate and House Judiciary Committee Attorneygate investigations — i.e., investigations of impeachable voter suppression tactics and the partisan abuse of law enforcement — maybe even Pelosi and Reid were becoming willing to move. Now, however, Gonzales’ resignation may have blocked the “Gonzales impeachment” avenue towards Bush and Cheney’s impeachment.**
Of course, what will come next instead is a struggle about Gonzales’ successor, whether that successor is apparent frontrunner Michael Chertoff, current Solicitor General Paul Clement as “acting Attorney General,” or perhaps even a recess appointment. What can we count on in that respect?
A couple of things, I think. First, Democrats will claim the Attorney General’s resignation is an important victory to their credit — never mind that too many of them voted to confirm his nomination in the first place, never mind that Josh Marshall and “Talking Points Memo” did more to bring down Gonzales (and Abramoff, and DeLay) than they or their pals in the mainstream media ever managed.
Second, as commenter DAS argues in a Matthew Yglesias item about Gonzales, the new shape of debate will be “the Dems already drove poor AG AG out — isn’t that enough? now that the few bad apples are out, isn’t the problem over?” In that respect, whatever replacement mechanism happens, deep thinkers like Joe Lieberman have already explicitly argued that Bush’s cabinet level appointments — Alberto Gonzales, in fact — always deserve presumptive approval, presumably barring an axe murder or an illegal nanny in their background.
Thus, hearings about any eventual nominee (if there are any) will presume (1) he or she isn’t worse than Gonzales, and (2) the President’s institutional “right” to get whomever he wants.
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NOTES: “FISA revision,” “may have had the purpose,” “presumptive approval,” “forward leaning yes man” — discussions at this blog; “half truth” etc. — Senator Charles Schumer, reported by CNN, 7/27/07; “sighed” etc. — Ari Berman, The Nation, 7/31/07 (”Why Pelosi Opposes Impeachment”); “recess appointment” — Josh Marshall, “Talking Points Memo,” 08/27/07; Other links may be supplied later.
* Marty Lederman (”Balkinization”) disagrees that the MCA law also served this purpose, though his point may have been more about lower level military or intelligence officials violating Common Article 3 of the Geneva Conventions under administration detainee and interrogation policy than about protecting policymakers like Yoo, Rumsfeld, Addington, Haynes — or Gonzales — from charges like those prosecuted in the Nuremberg “Justice Trial“.
** However, as Avedon Carol and John Conyers have pointed out, you don’t have to actually be in office to be impeached — after all, one of the consequences of conviction is that you can’t hold federal office again. Considering that Gonzales has been on short lists for a Supreme Court nomination before, that would be no small thing.
The Bush Administration handpicked know-nothing Party apparatchiks to fill every possible political appointment they could find, and turned them loose on the executive branch with ‘guidance’ from Karl Rove. I expect that guidance generally took the form of “expressions of concern” regarding certain “districts” or “issues”. Policy and personnel decisions were made in the fuzzy apparatchik cloud and then the shaft bolt lashed out of the cloud and struck someone in the civil service. No chain of command, no accountability, no procedure. Everyone just sort of knew what had to be done — they were all picked because they knew in advance what “had to be done” to serve the Party.
Marc Lynch, interviewed by Ken Silverstein of Harper’s Magazine –
At the same time, neither Al Qaeda as an organization nor bin Laden as an individual is commanding a great deal of respect or support. When you get these attacks in Algeria and Morocco, it repels people rather than attracting them. But the paradox is that even as Al Qaeda repels people with its actions, its core ideas are becoming more widely accepted, and that’s really troubling, and a real indictment of American public diplomacy. That’s also why the situation in Iraq is so devastating at the wider regional and global level. Killing people in Morocco and Algeria triggers a negative reaction, but fighting Americans in Iraq resonates with a much wider part of the Arab population.
What, then, would a serious congressional strategy to block a war with Iran look like? Constitutional scholars and congressional staff agree there’s no one magic answer. The alarming truth is that 220 years after the adoption of the Constitution, there are few settled answers about what legal powers the executive branch possesses to start a war. But there are several steps Congress could take to make a war with Iran politically very difficult for the White House.
Even a prisoner in a small cell can stand and walk a little, can breathe on his own, has the capacity to tend to his own bodily functions, and to think or pray. Torture is designed to rob him of all these last shreds of liberty. It takes control of his body and soul and by the use of physical or psychological coercion, rids him of any real freedom at all. It puts him into the abyss of tyranny on a personal scale. And any man or woman who is given the license to torture and any man or woman who grants the right to torture is definitionally a tyrant over another person. There is no state more abject than the man broken on the waterboarding rack, or frozen to near death, or forced to stand for days on end, or hooded and strapped to shackles in a ceiling, or having his legs pulpified by repeated beating, or forced to eat pork and drink alcohol against religious strictures. Everything I have just described has been done by US forces under the command and direction of George W. Bush. They are all acts of absolute tyanny, conducted by people who at that moment are absolute tyrants.
Via the e-mail, Alliance for Justice (AfJ) has released a