Archives for: May, 2006

Memorial Day Observations

Before it gets too far from Memorial Day, I wanted to tell you about Alberto J. Mora, the recently retired general counsel of the Navy. He was profiled in the New Yorker magazine back in February. It’s a very detailed and fairly shocking article describing the long and lonely battle he fought to stop th Bush administration’s policies on torture and cruelty. The article is shocking because it quite plainly reveals that these policies were conceived at the highest levels of government, and are hardly just the actions of the few, low-ranking “bad apples” who’ve been convicted of detainee abuse at Abu Ghraib (as we’ve been told by the mainstream press). The article chronicles his many attempts to turn these polices around, but he was defeated at almost every turn. Here’s one aspect of the story:

…One document, which is marked “secret” but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects.

The memo… reveals that Mora’s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.

…Mora’s memo, however, shows that almost from the start of the Administration’s war on terror the White House, the Justice Department, and the Department of Defense, intent upon having greater flexibility, charted a legally questionable course despite sustained objections from some of its own lawyers.

Mora had some victories. “America has a lot to thank him for,” Brant, the former head of the N.C.I.S., told me. But those achievements were largely undermined by a small group of lawyers closely aligned with Vice-President Cheney. In the end, Mora was unable to overcome formidable resistance from several of the most powerful figures in the government.

On Saturday, excerpts from a recent speech by Mora were published in the Washington Post:

It is astonishing to me, still, that I should be here today addressing the issue of American cruelty — or that anyone would ever have to. Our forefathers, who permanently defined our civic values, drafted our Constitution inspired by the belief that law could not create but only recognize certain inalienable rights granted by God — to every person, not just citizens, and not just here but everywhere. Those rights form a shield that protects core human dignity. Because this is so, the Eighth Amendment prohibits cruel punishment. The constitutional jurisprudence of the Fifth and Fourteenth Amendments outlaws cruel treatment that shocks the conscience. The Geneva Conventions forbid the application of cruel, inhuman and degrading treatment to all captives, as do all of the major human rights treaties adopted and ratified by our country during the last century.

Despite this, there was abuse. Not all were mistreated, but some were. For those mistreated, history will ultimately judge what the precise quantum of abuse inflicted was — whether it was torture or some lesser cruelty — and whether it resulted from official commission or omission, or occurred despite every reasonable effort to prevent the abuse. Whatever the ultimate historical judgment, it is established fact that documents justifying and authorizing the abusive treatment of detainees during interrogation were approved and distributed. These authorizations rested on three beliefs: that no law prohibited the application of cruelty; that no law should be adopted that would do so; and that our government could choose to apply the cruelty — or not — as a matter of policy depending on the dictates of perceived military necessity.

The fact that we adopted this policy demonstrates that this war has tested more than our nation’s ability to defend itself. It has tested our response to our fears and the measure of our courage. It has tested our commitment to our most fundamental values and our constitutional principles.

On the same day I read that, it was quite disorienting to juxtapose it with the commencement speech Bush gave at the US Military Academy:

“By the actions he took, the institutions he built, the alliances he forged and the doctrines he set down, President Truman laid the foundations for America’s victory in the cold war,” Mr. Bush told the class of 2006.

Mr. Bush has compared the struggle against communism to the current war against Islamic radicalism in previous speeches, but his address on Saturday was his most developed on the theme. He left it unsaid that Truman was deeply unpopular at the end of his two terms in office and that it took a generation to appreciate his achievements.

“Like the cold war, we are fighting the followers of a murderous ideology that despises freedom, questions all dissent, has territorial ambitions and pursues totalitarian aims,” Mr. Bush said. He added that “like Americans in Truman’s day, we are laying the foundations for victory.”

Truman's famous sign: The Buck Stops Here
Truman's famous sign: The Buck Stops Here
 

It’s understandable that, with his tattered popularity and his foreign policy in shambles, Bush would seek refuge in the legacy of Truman. But there is a very simple reason (among many others) that history will not judge the Bush Presidency in the same light as Truman’s. Truman was famous for the sign on his desk that read “the buck stops here.” It’s quite evident in the Bush administration that the buck stops nowhere. From the intelligence foul-ups on WMD to Abu Ghraib, and so many other bad decisions that it’s hard to keep track of them all, no one in authority has been held responsible for anything. A true leader stands up and takes the heat, yet Bush has been unable to even think of a single significant mistake he’s made as President. (Note that if you carefully read his response to the question the other day asking about any mistakes he thinks he made in Iraq – which was generally reported as an admission of fault – he doesn’t actually acknowledge doing anything wrong. He expressed concern that some of his comments may have been “misinterpreted,” and he says those involved with Abu Ghraib were brought to justice. Given that only the lowest-ranking soldiers have been held accountable, this doesn’t exactly meet the threshold of taking responsibility, let alone acknowledge that his decision to open the door to cruel treatment of prisoners might have had something to do with cruel treatment of prisoners.)

Give Me Liberty or Give Me…Oh, Uh, Nevermind…

Yale Constitutional Law Professor Jack Balkin has an excellent post on what he calls the National Survellience State. I highly recommend reading the whole thing, but here are some of the key points:

The National Surveillance State poses two distinct dangers. The first is that the executive’s power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things…

…As the laws of war encroach on the criminal law, and the needs of national security encroach on domestic criminal law enforcement, the government will be increasingly tempted to take the path of least resistance– and least accountability– and choose to treat individuals within the United States as subject to intelligence, interdiction, incarceration, interrogation, and punishment under the aegis of national security rather than criminal procedure.

The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States…[An] example is the increasing use of preventive detention, indefinite detention of material witnesses, administrative warrants and National Security Letters. These strategies modify the previous understandings of the criminal justice system and allow the executive to detain and engage in surveillance without the usual civil liberties limitations, checks, and oversight.

…As William Arkin wrote recently in his Washington Post column, “tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile.” That is to say, if the information gleaned from the government’s national security wing is transferred over to its law enforcement wing (and shared with state and local law enforcement authorities) criminal law enforcement will be transformed into increasing surveillance of ordinary Americans to prevent not only the most serious threats to national security, but also everyday crimes, including even misdemeanors and administrative infractions.

…That is why the debate over the NSA program is so incredibly important. We need to have a national debate on how we will implement a system of information gathering and processing that is quickly becoming the norm and not the exception. If we do not have this debate, the system will be implemented so as to displace the civil liberties and rights of citizenship we hold dear.

A common response to those who raise these kinds of concerns is that we just can’t afford these civil liberties anymore in the post 9/11 world. Matt Yglesias perfectly sums up what’s so misguided about that attitude:

“I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties,” Senator Pat Roberts (R-Kansas) remarked at yesterday’s Hayden confirmation hearings, “but you have no civil liberties if you are dead.” This comes via Dave Weigel and nicely encapsulates at least three different pieces of horribly misguided rightwingery.

First off is the sheer cowardice of it. Sure, liberal democracy is nice, but not if someone might get hurt. One might think that strong supporters of civil liberties would be willing to countenance the idea that it might be worth bearing some level of risk in order to preserve them.

Second is just this dogmatic post-9/11 insistence on acting as if human history began suddenly in 1997 or something. The United States was able to face down such threats as the Soviet Union and Nazi Germany without indefinite detentions, widespread use of torture as an interrogative technique, or all-pervasive surveillance. But a smallish group of terrorists who can’t even surface publicly abroad for fear they’ll be swiftly killed by the mightiest military on earth? Time to break out the document shredder and do away with that pesky constitution.

Last, there’s the unargued assumption that civil rights and the rule of law are some kind of near-intolerable impediment to national security. But if you look around the world over the past hundred years or so, I think you’ll see that the record of democracy is pretty strong. You don’t see authoritarian regimes using their superior ability to operate in secret and conduct surveillance to run roughshod over more fastidious countries. You see liberalism prospering — both in the sense that the core liberal countries have grown richer-and-richer and in the sense that liberal democracy has consistently spread out from its original homeland since people like it better. You see governments that can operate in total secrecy falling prey to crippling corruption. You see powers of surveillance used not to defend countries from external threats, but to defend rulers from domestic political opponents.

The U.S.S.R., after all, lost the Cold War, not because we beat them in a race to the bottom to improve national security by gutting the principles of our system, but because the principles underlying our system were actually better than the alternative. If you don’t have some faith the American way of life is capable of coping with actual challenges, then what’s the point in defending it?

The one question Matt doesn’t address is how to face 21st century national security threats and still maintain civil liberties. That is, without widespread surveillance and data mining, how do you catch terrorists, who use our civil liberties to hide themselves and their plans? There are bleeding-edge ideas like my own proposal a while back for what I called open-source counter-terrorism. But there are also more conventional approaches, like the one that started under the Clinton administration but was scrapped by Bush:

The National Security Agency developed a pilot program in the late 1990s [called ThinThread] that would have enabled it to gather and analyze huge amounts of communications data without running afoul of privacy laws. But after the Sept. 11 attacks, it shelved the project – not because it failed to work but because of bureaucratic infighting and a sudden White House expansion of the agency’s surveillance powers, according to several intelligence officials…

In what intelligence experts describe as rigorous testing of ThinThread in 1998, the project succeeded at each task with high marks. For example, its ability to sort through huge amounts of data to find threat-related communications far surpassed the existing system, sources said. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy.

But the NSA, then headed by Air Force Gen. Michael V. Hayden, rejected both of those tools, as well as the feature that monitored potential abuse of the records. Only the data analysis facet of the program survived and became the basis for the warrantless surveillance program.

The decision, which one official attributed to “turf protection and empire building,” has undermined the agency’s ability to zero in on potential threats, sources say. In the aftermath of revelations about the agency’s wide gathering of U.S. phone records, they add, ThinThread could have provided a simple solution to privacy concerns.

It’s perfectly possible to develop hi-tech systems that provide security just as well as, if not better than, what we currently have under the Bush administration, and not sacrifice the Bill of Rights in the process. The notion that we must choose between liberty and security is a false argument, used primarily as a fear-mongering tactic to further expand Presidential authority. It’s also perfectly possible to protect such surveillance systems from abuse, but that would require at least one of the following: a law abiding President, a vigilant Congress, and/or a press with the motivation and skill to explain the issues coherently. Unfortunately, we don’t have any of those three things right now.

What Part of “Satire” Don’t You Understand?

This has to be seen to be believed. On Comedy Central’s Colbert Report a while back, Stephen Colbert interviewed the creator of the upcoming film “The Big Buy: Tom DeLay’s Stolen Congress,” Robert Greenwald. Apparently when Colbert asked him questions like “who hates America more, you or Michael Moore?,” Tom DeLay’s supporters didn’t realize that Colbert’s shtick is that he’s pretending to be like Bill O’Reilly, and the whole thing is satire. And since they didn’t realize it was satire, they put a clip of the interview on Tom DeLay’s legal defense fund raising web site. Think Progress has the story.

It could be my analysis is wrong though. Maybe the folks running DeLay’s site do know it’s satire, and maybe they’re just betting that most Tom DeLay’s supporters don’t watch Comedy Central, and don’t know humor when they see it, so they won’t realize it’s satire.

Bye, Bye Bridge

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14 years after it was closed, the old Jamestown Bridge in my home state of Rhode Island has been destroyed – it’s center span was exploded last month, and the rest of it was blown up late last week. From when I was a child to when it was closed during my last year of college, driving across this bridge often gave me butterflies in my stomach. It was very narrow, leaving no margin for error when dealing with cars passing you in the other lane. And if a car broke down and blocked a lane, it would take hours to disentangle the traffic. But the worst part was the center span – as you drove across it, there was no concrete under you – only see-through metal grates that would clang noisily as they shifted under the weight of your car.

Newport is on an island (Aquidneck), and the Newport Bridge connects it to Jamestown, which is also on an island (Conanicut). The Jamestown bridge is what got you to the mainland from there. In the sunset photo above, taken before the blast, the old bridge is on the left, and the new bridge is on the right.

I don’t know the details, but apparently it took this long to get rid of the old bridge because of various financial constraints and environmental concerns. Back in 1997, the Rhode Island DOT shopped around Hollywood for a movie studio to blow it up it for them, but there were no takers (I think they were inspired by the exploding bridge in the movie True Lies).

More photos, as well as video clips of the demolition, are in a “Digital Extra” section at the Providence Journal site – you’ll need to register to see it though (I copied the photos above from there). One of their articles on the demolition made me laugh with this statement: “For all who came, the demolition was a spectacle not to be missed, a chance to say goodbye to a piece of Rhode Island history that carried terror-filled memories and yet somehow managed to endear itself with its striking profile.” I’m hoping that last statement is tongue-in-check – by “striking profile” I assume they mean, “too ugly to be forgotten” (the dim, warm glow of the setting sun in the photo above is masking a number of sins).

Break the Law, Get Promoted

In an editorial on Saturday, the Washington Post had this to say:

AT THE SENATE intelligence committee hearing Thursday on Gen. Michael V. Hayden’s nomination to head the CIA, Sen. Dianne Feinstein (D-Calif.) asked the nominee a simple question: Is “waterboarding” an acceptable interrogation technique? Gen. Hayden responded: “Let me defer that to closed session, and I would be happy to discuss it in some detail.” That was the wrong answer. The right one would have been simple: No.

Today, 12 of the 15 members of the Intelligence Committee voted to confirm Hayden (including Feinstein), and there is no doubt the full Senate also will back him. What is the significance of Hayden’s exchange with Feinstein, and the committee’s vote to confirm him? First, let’s look at the definition of waterboarding:

Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt…

“The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” said John Sifton of Human Rights Watch.

…Many feel that a confession obtained this way is an unreliable tool. Two experienced officers have told ABC that there is little to be gained by these techniques that could not be more effectively gained by a methodical, careful, psychologically based interrogation. According to a classified report prepared by the CIA Inspector General John Helgerwon and issued in 2004, the techniques “appeared to constitute cruel, and degrading treatment under the (Geneva) convention,” the New York Times reported on Nov. 9, 2005.

It is “bad interrogation. I mean you can get anyone to confess to anything if the torture’s bad enough,” said former CIA officer Bob Baer.

Last Fall, the Senate overwhelmingly approved the McCain “anti-torture” amendment to the Defense bill (despite intense efforts by Dick Cheney to gut it), and at the signing ceremony, President Bush said that this would “make it clear to the world that this government does not torture and that we adhere to the international convention of torture.”

But then a few things happened: Bush issued a “signing statement” asserting the right to break the new law anyway, the Justice Department invented its own extraordinarily narrow definition of torture, and the administration moved aggressively to block any attempts at judicial review. Putting these three things together made the new law meaningless:

Mr. Bush issued a presidential 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.” The language refers to the assertion by the president’s lawyers that his powers allow him, in wartime, to ignore statutes passed by Congress. The White House has intimated that it has similar authority in justifying Mr. Bush’s authorization of surveillance of Americans without court approval, in violation of another law. The signing statement also advanced the administration’s view that the McCain amendment does not provide for any court review of a prisoner’s claim of cruel treatment, and that all appeals by foreign prisoners before the courts should be dismissed.

Even before the statement was issued, administration lawyers had taken the position that the McCain amendment would not necessarily end the use of waterboarding. “Cruel, inhuman or degrading treatment” has been defined by the Senate as any act that would violate the Fifth, Eighth or 14th amendments of the Constitution. Yet according to the reasoning of the Justice Department, simulated drowning and other techniques falling just short of torture would still be permitted under this standard “in certain circumstances.” This extreme view has never been tested in court, sanctioned by Congress or even fully exposed to public view. Mr. Bush hopes to keep it that way. That’s why his administration has moved so aggressively to prevent prisoners’ cases from reaching federal courts and refused to release secret legal memos requested by Congress.

Glenn Greenwald sums up the importance of Senator Feinstein’s question:

The American people, through their Congress, decided overwhelmingly when the McCain anti-torture amendment was enacted into law that we do not want to be a country which uses interrogation techniques such as waterboarding. In light of the president’s signing statement reserving the right to violate that law, followed up by anonymous administration officials expressly claiming the president’s power to do so, whether the administration intends to obey this law is a pressing issue, and there is no excuse for Hayden’s refusing to answer that question publicly.

The question amounts to nothing more than an inquiry as to whether Hayden intends to obey the law as CIA Director. Although the Bush administration’s claimed right to break the law amazingly compels that such a question has to be asked, there is nothing secret about it. Americans have the right to know if the nominated CIA Director intends to follow the law.

It continues to amaze me that the Democrats, for the most part, are too timid to take on Bush for breaking the law, and to take on his radical, unprecedented notions of Presidential power. By letting these things stand, they not only look like a weak opposition party, they are also quietly surrendering Congress’ oversight authority. A vote to confirm General Hayden (who oversaw the warrantless wiretapping program) is a vote to support Presidential lawlessness, and it’s a vote for waterboarding, and a likely litany of other “just short of torture” techniques.

I’ll leave you with the words of retired sergeant major Eric Haney, a founding member of the Army’s elite counter-terrorist unit, Delta Force:

Q: What do you make of the torture debate? Cheney …

A: (Interrupting) That’s Cheney’s pursuit. The only reason anyone tortures is because they like to do it. It’s about vengeance, it’s about revenge, or it’s about cover-up. You don’t gain intelligence that way. Everyone in the world knows that. It’s worse than small-minded, and look what it does.

I’ve argued this on Bill O’Reilly and other Fox News shows. I ask, who would you want to pay to be a torturer? Do you want someone that the American public pays to torture? He’s an employee of yours. It’s worse than ridiculous. It’s criminal; it’s utterly criminal. This administration has been masters of diverting attention away from real issues and debating the silly. Debating what constitutes torture: Mistreatment of helpless people in your power is torture, period. And (I’m saying this as) a man who has been involved in the most pointed of our activities. I know it, and all of my mates know it. You don’t do it. It’s an act of cowardice. I hear apologists for torture say, “Well, they do it to us.” Which is a ludicrous argument. … The Saddam Husseins of the world are not our teachers. Christ almighty, we wrote a Constitution saying what’s legal and what we believed in. Now we’re going to throw it away.

Q: As someone who repeatedly put your life on the line, did some of the most hair-raising things to protect your country, and to see your country behave this way, that must be …

A: It’s pretty galling. But ultimately I believe in the good and the decency of the American people, and they’re starting to see what’s happening and the lies that have been told. We’re seeing this current house of cards start to flutter away. The American people come around. They always do.

Breathing in Fumes

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These have all the markings of Saturday Night Live parody commercials, but they’re real: the Competitive Enterprise Institute yesterday starting running a couple TV ads that aren’t just attempts to dispute the reality of global warming, they are pro-emissions (the message boils down to: carbon dioxide is essential to life + burning fossil fuelss releases carbon dioxide = emissions are good). Check out the one called “Energy,” at their website. I was surprised to see them use the image of a little girl blowing on a dandelion – it made me think of the little girl plucking a daisy in the famous ad Johnson ran against Goldwater (the one that ends with a nuclear explosion).

The timing of the release of these ads has to do with Al Gore’s new movie that comes out next week, An Inconvenient Truth. By the way, if you haven’t seen the clip of Gore on Saturday Night Live last week, check it out – who knew the man could be funny?

It’s probably not necessary for me to get into the mind-boggling, up-is-downism dishonesty of the CEI ads, but just in case:

…CO2 has been in the atmosphere since life on earth began, and in the right amounts CO2 is important for making the earth hospitable for continued life. But when too much CO2 is put into the atmosphere, its becomes harmful. We have long recognized this fact for other pollutants. For example, phosphorus is a valuable fertilizer, but in excess, it can kill lakes and streams by clogging them with a blanket of algae.

In the case of CO2, fossil fuels have stored carbon for hundreds of millions of years. Over the last 150 years, by burning fossil fuels, humans have released that carbon into the atmosphere in a geologic instant of time. We now are burning billions of tons of fossil fuels every year. This has caused CO2 to build up in the atmosphere much as an excessively rich diet causes life-threatening deposits to build up in human arteries. Scientists agree that if today’s fossil-fuel burning trend continues we will build up concentrations of CO2 in the atmosphere at ever-increasing rates. This build-up of CO2 threatens our health and environment, just as excessive cholesterol threatens our bodies. Scientists expect accelerating global warming to trigger severe droughts, floods and storms; destroy coral reefs and habitats; and increase the incidence of certain diseases.

And to see the broader context from which ads like these spring, check out Chris Mooney’s The Republican War on Science.

Darth Kai

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We had some friends over a few weeks ago for brunch on a sunny Saturday (the first time we’ve entertained since fixing up the house – another milestone!). Breakfast food – pancakes, fruit, etc – is even easier to prepare than the usual BBQ foods, and it’s a guaranteed hit with the kids. Kai decided to dress up as Darth Vader for the occasion. By the afternoon, the temperature was in the 70s, but Kai refused to remove the winter boots and ski gloves that were integral to his outfit (although he did concede to removing the gloves temporarily so he could eat his pancakes). A friend of mine brought his 6 year old, whom Kai had never met before. The other boy also brought his light saber. I wasn’t there when when first saw each other, but I’m told the first thing Kai said was “my light saber is red!” and other boy said “mine’s blue!” and then they immediately began an epic light saber duel.

Grammar note: I’ve never known for sure when to use “whom” in a sentence, so I decided to finally look it up. Through the wonders of Google, I came across this handy rule of thumb: “…simply substitute the personal pronoun ‘he/him’ or ‘she/her’ for ‘who/whom.’ If he or she would be the correct form, the proper choice is ‘who.’ If ‘him’ or ‘her’ would be correct, use ‘whom.’ …Even when the word order must be altered slightly, you can use the technique…” So in the sentence above, I’d say “Kai had never met him before,” so “whom” is the right choice.

I hope I don’t have to figure out this kind of stuff with Japanese…

Winning in November, Defending the Constitution

Cross-posted to TPMCafe

The Congressional elections this fall may be a turning point in our democracy. The Republican-controlled House and Senate have done nothing to restrain, and have even abetted, the President’s lawless behavior in the War on Terror. There’s no reason to believe they will do anything differently after the elections if they win. If Bush is allowed to consolidate the gains of his recent power grabs, the nature of our government may permanently change into something more akin to a dictatorship than a nation of laws (once leaders acquire unchecked power, they are rarely motivated to give it back).

In the wake of the Abramoff corruption scandals, the Katrina debacle, Bush’s unpopularity, the incompetent execution of the Iraq war, and a variety of other issues, the Democrats seem well positioned for the upcoming elections. But through a combination of their own timidity, and the apocalyptic campaign tactics we can expect from the Republicans, my feeling is that they will find a way to lose. As many others have said, the key to a Democratic victory is to shed this timidity, but very few offer specific ideas on exactly what Democrats should do in a campaign environment that is likely to consist of scorched earth tactics from the Republicans. I’ll offer an idea here, but before I get to it, it’s important to first lay out what’s at stake, what many prominent Democrats are doing wrong, and what to expect when the campaign season peaks.

What’s at stake is the very principals of our Constitutional government. Glenn Greenwald summarizes the situation well:

…We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet, as I detailed here, each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court…, it does everything possible to avoid that adjudication.

This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders.

With only a handful of exceptions, members of Congress have done nothing to uphold their oath to protect and defend the Constitution from Bush’s lawless behavior. As law professor Jonathan Turley observed on Countdown the other night:

The real check and balance for this kind of thing rests with Congress, and Congress has done nothing. Do you realize that Congress has not even held a substantive investigation of the NSA operation? An operation that most of us believe was criminal – that the federal law defines quite clearly as a federal crime. Now instead of investigating that, the Congress actually gave the President a standing ovation during the State of the Union speech when he promised to continue to violate that law. He said he would continue this program, and the people who were responsible for passing the law he was violating gave him a standing ovation. It was the most bizarre thing I’ve seen in my life.

It’s one thing for members of the President’s party to behave this way. But it has been mind-boggling to read about prominent Democrats literally running away when confronted with this issue. They do this because the Republicans, as well as their own political advisors, have convinced them that national security is such a strong issue for Bush that the best thing they can do when confronted with his lawless behavior is to simply remain silent. Here’s what you can expect in General Hayden’s confirmation hearings for the CIA directorship:

Hayden’s confirmation hearings will provide a platform for renewed discussion of the [NSA's warrantless] surveillance program, a battle the White House would welcome, since battling terrorism is one of the president’s strongest areas in a landscape of issues that largely works against him. Most Democrats understand this, and will lie low, at least for now, analysts say.

“The White House would love the Democrats to take the bait on wiretaps; that would make their day,” says Marshall Wittmann, a senior fellow at the Democratic Leadership Council. “I think the Democrats are conscious of this, and a few will make the argument, but it’s not going to be overwhelming.”

Stop to think about that for a minute. The President has repeatedly violated a number of criminal laws, and – by way of a radical, unprecedented re-interpretation of the Constitution – has claimed it is his right to do so. In response, most Senate Democrats are going to let it slide – and therefore render meaningless much of the Senate’s lawmaking and oversight responsibilities – because they don’t think it’s politically convenient to confront the President on this issue.

That is not the path to electoral success – it is the path to political oblivion. Josh Marshall made an observation about the Bush-Kerry match-up that I think applies here as well:

If you think back to the Swift Boat debacle of 2004, the surface issue was John Kerry’s honesty and bravery as a sailor in Vietnam. Far more powerful, however, was the meta-message: George Bush slaps John Kerry around and Kerry either can’t or won’t hit back. For voters concerned with security and the toughness of their leaders, that’s a devastating message — and one that has little or nothing to do with the truth of the surface charges… At the time I called it the “Republicans’ bitch-slap theory of electoral politics.”

In this case, the meta-message is similar: Bush is a powerful leader doing what it takes to fight terrorism, and he’s not going to let those who whine about legalities get in the way of his mission. Democrats meekly choose to neither confront him, nor even articulate an alternative approach that might not involve shredding the Constitution, because Bush is such a strong and commanding leader.

Most of the Senate Democrats are acting this way because they are trying to apply what political scientist Ruy Teixeira calls “the politics of inoculation,” which may have worked in the Clinton era, but will fail now:

…the politics of inoculation elevates issues like national security to the top of the progressive agenda but then offers solutions that make progressives indistinguishable from the other side. Thus, the strategic recommendations coming out of this camp end up reinforcing our core vulnerability as a party and movement with no known identity, conviction, or vision.

Many activists in the Democratic Party are now working on what Teixeira’s calls “the politics of definition” – that is, a way to make it clear to voters what the party’s principals and goals are. I’d like to suggest that part of this definition be defending the Constitution.

After I saw Glenn Greenwald debate Robert Turner (a proponent of the radical theory that the President has unchecked power in the realm of national security) on C-SPAN, something that stuck with me was a comment a caller to the show made. Turner, in an attempt to puff up his gravitas, said that he had written a 1,000 page dissertation to prove his argument. The caller responded with something along the lines of, I don’t care if you wrote a 10,000 page dissertation – you’re wrong. A wonderful aspect of our Constitution is that it’s short and written in relatively plain language, so you don’t have to be a lawyer to understand the basic principals of government that it lays down. So the caller was not a know-nothing: Americans, through our grade school education in civics, have a gut level understanding of the principals of our democracy. Our nation was founded on the promise of those principals, and we cherish them. And there’s nothing wrong with feeling angry when you see those principals violated. As Greenwald argues:

The “Angry Left” cartoon has forever been a favorite tactic of those models of Civility and Rhetorical Restraint on the Right …And many Democrats have internalized it, too. Anger is a bad, bad thing and must be avoided at all costs…

This argument is false — dangerously so — for so many reasons. Most successful political movements need passion. Anger, when constructively directed, is a potent and inspiring passion. It is noble to be angry about dangerous situations and corrupt leaders, and there are few passions which can compete with anger for inspiring oneself and others to meaningful action.

Conversely, those who are entirely devoid of anger are often lifeless, limp, uninspiring figures who seem to be drained of soul and purpose. An anger-less political movement is embodied by a plodding, bespecled, muttering Jay Rockefeller. Or John Kerry’s non-response to the Swift Boat attacks. Or the Democrats’ often ponderous, half-hearted, overly-rational mutterings on all too many issues or in response to all too many corruption and lawbreaking scandals. Or craven, eager-to-please “liberals” who are more interested in convincing Fox News and other Bush followers how balanced and reasonable they are than they are than in fighting for any actual political ideals…

Democrats need to get away — as far away and as quickly as possible — from that bland, mushy, sonorous, overly calculating and painfully restrained, passion-free dead zone. And in that regard, a much bigger problem for Democrats has been a lack of anger — and most other human passions — not an excess of it.

The Democrats cannot expect to win in November by simply hoping that the Republicans are weighed down by all their recent debacles. The Republicans will go on the attack like never before, and from what I can see right now, the Democrats are not ready for the assault. Howard Fineman:

This fall’s election season is going to make the past three look like episodes of “Barney.”

…The way I read the recent moves of Karl Rove & Co., they are preparing to wage war the only way open to them: not by touting George Bush, Lord knows, but by waging a national campaign to paint a nightmarish picture of what a Democratic Congress would look like, and to portray that possibility, in turn, as prelude to the even more nightmarish scenario: the return of a Democrat (Hillary) to the White House.

Rather than defend Bush, Rove will seek to rally the Republicans’ conservative grass roots by painting Democrats as the party of tax increases, gay marriage, secularism and military weakness. That’s where the national message money is going to be spent.

…the White House will try to survive by driving down the ratings of the other side. Right now, an impressive 55 percent of voters say they have a favorable view of the Democrats, one of the party’s best ratings in years. But the favorables of leading national Democrats are weak: 34 percent for Sen. Hillary Rodham Clinton; 26 percent for Sen. John Kerry; 28 percent for former vice president Al Gore. The bottom line: as long as the Democrats remain a generic, faceless alternative, they win; Rove’s aim is to paint his version of their portrait.

The Republicans are very good at playing offense, and the Democrats need to learn to do the same. But we don’t need to stoop to dishonest claims, as a very real and potentially very powerful issue is the fate of our Constitutional government. This is an issue that could resonate in a very compelling and personal way with voters, if only Democrats can find the courage to call the Republicans out on it. Since the Republicans in Congress have done nothing about Bush aggressively violating the laws passed by those very same Republicans, they have quite glaringly failed to uphold their sworn oath to defend the Constitution.

Can you imagine the effectiveness of this issue if the Democratic candidates got behind it, and they all hammered Republican incumbents with the question: once Bush’s lawbreaking came to light, and his administration proudly proclaimed the unprecedented, radical, dictatorial notion that it’s ok for the President to violate Federal criminal laws, why did you disregard your oath to defend the Constitution?

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Too Cute For Words

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Eidan mastered clapping a few days ago, and nothing inspires him to clap more than Kai acting like a goofball. The hand-twisting motion he’s doing at the start of the video is something he learned from Maria’s mother, who’s been staying with us the past couple of weeks. It goes with a Japanese nursery rhyme.

Drug Legalization in Mexico – Not!

On the news channels last week, there was hysteria about Mexico “decriminalizing” the possession of small quantities of drugs. The talking heads expressed their worry about how this would increase the flow of illegal narcotics into the US, and how it would start a new flow of “drug tourism” from the US to Mexico. There’s only one problem with this narrative – it’s wildly inaccurate. Professor Mark Kleiman from UCLA (who researches drug abuse and crime control policy) explained in his blog that he pointed this out in a radio interview, but was studiously ignored:

Under current Mexican law:

1. Only the Federal Judicial Police (the “Federales”) can make drug arrests. (This is intended as an anti-corruption measure.)

2. Possession of a small quantity for personal use carries no criminal penalty; instead, the defendant is required to undergo drug treatment. But “small quantity for personal use” isn’t defined in law. Instead it determined on a case-by-case basis in court. As a result, some corrupt police and judges take bribes from dealers to classify the drugs the dealers were caught with as “personal use” amounts.

Under the new law:

1. All police will have the power to make drug arrests.

2. For each drug, a “personal use” quantity will be defined in law; any amount below that is automatically decriminalized, while any amount above that is defined as a dealer quantity.

If that’s the case, the new law is effectively tighter than the old one. In particular, turning all the local cops in Mexico loose on drug users ought to be expected to greatly increase the number of arrests, although most of those additional arrests won’t lead to jail time. But then, most current arrests of people who possess small amounts probably don’t lead to jail time.

In a second preparatory call with a different producer, and then on the air this morning, I tried to explain all of that. The host seemed to understand. But then — this was the Pynchonesque moment — the conversation went right on about whether “Mexico’s decriminalization” was a good idea or not, regardless of the fact that the new law doesn’t actually seem to decriminalize anything that used to be subject to criminal punishment, but does seem to increase a drug user’s risk of arrest by multiplying the number of police officers with the power to arrest him. We were there to talk about decriminalization, by God, and if decriminalization wasn’t actually happening that was an interesting sidelight on the story but mustn’t be allowed to interfere with the narrative, either for those who wanted to view with alarm or those who wanted to point with pride.

The very next day he was interviewed by an NBC reporter, with a similar outcome:

So I made on camera pretty much the same points I’d made on the radio…The reporter seemed very reluctant to believe any of this…When the reporter failed to call back as promised to let me know when the story would run, I guessed that my viewpoint hadn’t made it into the segment. I was right. The story as it aired… was about as inflammatory as imaginable. The anchor introduced it as an account of “the outrage in this country over a decision by Mexico to make possession of some illegal drugs legal.” The correspondent, Peter Alexander, after a reference to “dangerous narcotics” and the usual grim war-on-drugs footage, reported that “in effect, the law would approve the use, in small amounts, of a dizzying array of illegal drugs.” The law, he said, was “among the most permissive in the world.”

Drug czar John Walters was shown saying that “if we are talking about legalizing drugs, that’s bad for everybody.” (That suggests Walters had doubts that the new law was legalization, but if so he wasn’t shown expressing them.) His predecessor Barry McCaffrey skipped the “if,” and opined lugubriously about the risk of “cross-border drug tourism out of the United States, to include college students.” A drug counselor from San Diego talked of the risk that San Diegans could “go across the border and buy heroin out in the open.” (How people were going to openly buy a drug it would remain a serious crime to sell wasn’t made clear.) Alexander talked of counsellors’ fears of being “swamped by a new audience of addicts.”

…[I] continue to be dismayed by the utter unseriousness with which our politicians and journalists treat my pet issue.

I’ve learned over the years that if there’s a news story I’m interested in, I have to read at least a few different articles from different sources, and find commentary from a couple different experts. That’s the only way I can feel confident that I’m not reading a bunch of nonsense. News these days – particularly television news – is about profits (a long time ago, news shows were expected to lose money, since they were a public service – that perspective died out decades ago). That means it’s about producing shows as quickly as possible (to win the news cycle), as cheaply as possible (to maximize the profit margin – so we get shouting-talking heads and soundbites instead of thoughtful investigation), and as scary or tawdry as possible (to drive up ratings). Accuracy is, at best, a secondary concern.

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