Archives for: Politics 2006

Missing the Point

Yesterday Rich Lowry at NRO put together a fairly good summary of the ill-informed conventional wisdom that’s taking root about the elections (and this also goes to show that I can agree with a conservative columnist). I’d say the only thing Lowry missed was the conclusion by the punditry that the voters were calling for bipartisanship and no “slash and burn” politics from the Democrats (in particular, I recall Brian Williams on NBC saying this over and over again on election night). The only problem with that assertion is there’s nothing in the exit polls to support it. Instead, the polls show intense frustration with how the Republicans have managed their one-party rule of Washington for the past several years. So much so that, for example, Lincoln Chafee (the moderate Republican Senator from Rhode Island) went down to defeat despite going into the election with a 63% approval rating. Asserting that this somehow translates into a public outcry for bipartisanship is simply a non-sequitur. That is, the public may or may not crave bipartisanship, but its not something you can divine from the exit polls, because they were not asked that question.

This sort of thing isn’t new. The conventional wisdom from the 2004 election was even more wrong. Virtually all the maninstream media pundits then – and still to this day – labeled it the “values” election. You have to go to The Economist – a British news magazine – to learn that interpretation of the exit polls was simply wrong. “Values” actually mattered less in 2004 than in previous elections:

Moreover, that 22% share [of the 2004 electorate that cited moral issues as their top voting concern] is much lower than it was in the two previous presidential elections, in 2000 and 1996. Then, 35% and 40%, respectively, put moral or ethical issues top, and a further 14% and 9% put abortion first, an option that was not given in 2004. Thus, in those two elections, about half the electorate said they voted on moral matters; this time, only a fifth did.

If anything, the thing that sets apart 2004 is the public’s concern about terrorism, which didn’t show up in the polls prior to 9/11 (I haven’t checked, but I’d be surprised if terrorism was even listed as a choice in the polls before 9/11). Since the exit polls only allow voters to name one top issue, the lower percentage of those citing moral issues in 2004 can be attributed to the rise of terrorism as a concern. But since “values” still beat out terrorism and the economy by a few percentage points, the pundits decided that “values” was the new big issue, even though it mattered far less overall than it had in the two prior Presidential election years.

The Myth of the Six Year Itch

The “six year itch” is the commonly held belief that the President’s party always loses big in the sixth year of a Presidency, and in midterm elections in general. This was repeated endlessly on TV on election night by Republicans and reporters alike. This supposed axiom of US politics considers the results of midterm elections as some sort of celestial event, fixed in the stars, somehow unrelated to the record of the incumbent party. Many have tried to minimize the significance of Tuesday’s Democratic victories by arguing that the number of seats they gained is below the historical average for 6th year elections (see, for example Charles Krauthammer’s latest column).

Looking at the numbers since WWII, two things are apparent. One is that the supposed “six year itch” has not applied to the most recent pair of two term Presidents prior to Bush: the Republicans lost only a handful of seats in ’86 under Reagan, and the Democrats gained seats in ’98 under Clinton. The other is that gains and losses in the House for the President’s party in midterm elections appear more related to Presidential popularity than anything else. In cases where Presidents had popularity ratings in the 60% range, the losses were minor, or they even experienced gains. It’s when you see Presidential popularity in the 40% range that significant losses occur for his party in the House. Eisenhower is one exception – in 1958 the Republicans lost big because of a deep recession and foreign policy concerns (mainly the Soviet launch of Sputnik and civil war in Cuba). Eisenhower, with his iconic status from WWII, maintained his personal popularity despite these concerns, but his party did not. Ford is another exception, but the ’74 election was in the wake of Watergate and Nixon’s resignation, which is clearly an unusual situation.

Looking at recent history, the generalization you can make about midterm elections is that the results for the President’s party are usually associated with the popularity of the President. Major sixth year losses are not a foregone conclusion governed by some divine rule of politics beyond mortal control. With the exceptionally low approval ratings of Bush and the Republican-led Congress going into the election, their subsequent losses are a clear rebuke of Bush and Republican policies.

If anything, the election results understate the public mood: with the aid of sophisticated computer modeling and marketing data, and unprecedented redistricting between census reports, the Republican House had the most gerrymandered districts since the passage of the Voting Rights Act in 1965 (the Act outlawed purely racially based gerrymandering, but not partisan gerrymandering). Gerrymandering serves as a bulwark against shifts in public sentiment, so it was actually remarkable to see as much House turnover as we did on Tuesday.

Bush to Americans: How could you vote for all those Defeatocrats from Taxachusetts?

In the wake of the elections, I can’t resist writing about politics again. Bush on the Republicans’ losses in the midterm election:

“I thought when it was all said and done, the American people would understand the importance of taxes and the importance of security,” the president said. “But the people have spoken, and now it’s time for us to move on.”

When Bush goes off script like this, he has a habit of revealing a lot more about his own state of mind than he realizes. I’m not sure what’s the more astounding aspect of this statement. It seems to indicate that he actually believes his own cartoonish rhetoric about the Democrats, and it shows a real contempt for the American people. The obvious implication is that the Republicans would have fared better in the elections if only the American people were smart enough to agree with his Wise and Correct understanding of the issues.

More Marc Lynch

These three paragraphs by Lynch perfectly sum up exactly what’s been wrong with the Bush administration’s approach to the War on Terror, and leaves you to contemplate just how dire the consequences will be:

I’ve written at length about how al-Qaeda has developed what I call a "constructivist strategy" – working primarily at the level of ideas, identity and public discourse. Osama bin Laden’s April speech could not have been more clear about al-Qaeda’s goal of promoting a "clash of civilizations" as the defining frame governing world politics. In what Gramsci might have called a war of position, al-Qaeda seeks to define the "common sense" of Arab and Muslim politics. Its metrics for success from this perspective are less the number of dead Westerners than the number of Muslims who have increased their identification with Islam or have accepted key elements of the al-Qaeda political narrative. Key elements such as: the idea of equating Israel and America as partners in the Zionist-Crusader Alliance against Islam; the idea that the West does not value Muslim lives; the idea that the West will never allow Islamist parties to win democratic elections; the idea that Islam and the West are locked in an eternal struggle which can only be decided by power rather than by dialogue or diplomacy, and that peaceful co-existence is impossible. I’d reckon that such ideas look a lot more common-sensical today than they did a month ago across the Arab and Muslim worlds…

While Bernard Haykal (whose work I respect) may be right that al-Qaeda fears Hezbollah’s competition, I wouldn’t take this too far: in this wider constructivist war of position, the Lebanon war has been a godsend for al-Qaeda (as they might phrase it). The Lebanon crisis could never be contained – even if the war does not physically spread to Iran or Syria, the images of the war have already done their work throughout the Arab and Islamic world. Just as Iraq served al-Qaeda’s strategy by supplying an endless stream of images of "heroic mujahideen" fighting against "brutal Americans" – and became less useful as images of dead Iraqi civilians began to complicate the picture – the Lebanon war offers an
unending supply of images and actions which powerfully support al-Qaeda’s narrative and world-view… without the complications posed by Zarqawi’s controversial anti-Shia strategy in Iraq. (In that regard, al-Qaeda’s open support for Hezbollah might even help to heal that Sunni-Shia breach which Zarqawi worked so hard to open against bin Laden and Zawahiri’s advice).

For Israel this may be a matter of defending itself against a threat on its northern border, but the United States should be able to see things in a wider global framework. I seem to recall something about a war on terror? And a war of ideas? The Bush administration and supporters of Israel’s war against Lebanon have been arguing that it is part of the war on terror. (Zawahiri, in his tape, agreed… for different reasons.) But I think this gets things directly and dangerously backward, and – like Iraq – demonstrates the bankruptcy of the hawkish approach to the war on terror. Winning the war on terror means discrediting al-Qaeda’s ideas and building a global norm against terror (the use of violence against civilians for political ends). It requires constructing a positive narrative – of shared interests and support for reform – which can compete with al-Qaeda’s narrative. The unilateral use of force, particularly when it resonates so intensely with the narrative frame you are trying to discredit, simply doesn’t help in this real war of ideas. The war on terror is a strong reason that the United States should have acted to
contain the crisis rather than giving Israel a free hand, not a reason for it to support the war’s continuation.

Thoughts on Hezbollah and the US Role in Lebanon

Cross-posted to TPMCafe

I don’t have a deep enough knowledge of Hezbollah or Lebanon to feel comfortable holding forth in a substantial way on the current conflict. But I do know enough to spot ill-informed commentary when I see it, and there’s an awful lot of it out there right now. It comes from people who should know better, like our President, who was caught on an open mike saying to Blair last week “See, the irony is what they really need to do is to get Syria to get Hezbollah to stop doing this s***.” And Tom Friedman, who is billed as an expert on the Middle East, had a different but equally simplistic formulation, telling Tim Russert a few nights ago that Hezbollah was a “wholly owned subsidiary of Iran.”

Chas Freeman, former US Ambassador to Saudi Arabia and former Asst. Secretary of Defense for International Security Affairs, has provided the most concise and, I believe, accurate analysis of Hezbollah’s relationship with Syria and Iran. Understanding this relationship correctly is critical, as there is likely to be no workable solution to the current crisis if the US proceeds with faulty assumptions. His statement was published at The Washington Note:

The assumption in Israel and here is that Iran and Syria put Hezbollah up to its provocative gesture of solidarity with the beleaguered Palestians in Gaza. The assumption in the Arab world is that the U.S. put Israel up to what it is doing in Gaza and Lebanon. Both assertions remain politically convenient assertions that are almost certainly wrong. There is no evidence for either.

The relationship between Hezbollah, Syria, and Iran is analogous to that between Israel and the United States. Syria is the quartermaster and Iran the external financier and munitions supplier to Hezbollah; we play all three roles in support of Israel.

There is no reason to believe that Hezbollah, which is an authentic expression of Lebanese Sh’ia nationalism birthed by the Israeli occupation of south Lebanon in 1982, is any less unilateralist or prone to consult its patrons before it does things it sees as in its interest than Israel, which is an authentic expression of Jewish nationalism birthed by European racism, is in relation to us.

Remember the assertions that Vietnamese expansionism was controlled and directed by the Chinese? similar stuff. Chinese backing for the Viet Minh and the Hanoi regime did not equate to Chinese control or direction of North Vietnam, its armed forces, or its agents in South Vietnam, Laos, and Cambodia. Consider the 1979 Sino-Vietnamese war.

The irony now is that the most likely candidate to back Hezbollah in the long term is no longer Iran but the Arab Shiite tyranny of the majority we have installed in Baghdad. But that will not mean that the successors of Nouri Al-Maliki control Sheikh Nasrullah. Sometimes clients direct the policies of their patrons, not the other way around. This is a point exemplified by the dynamic of Israeli-American relations but far from unique to them.

To gain an understanding of the Arab world’s perspective on the current conflict, I recommend Prof. Marc Lynch’s blog, Abu Aardvark. He has frequent posts summarizing what he sees on the Arab TV networks, which – as you might expect – have a very different perspective than US news shows. Be warned that he sometimes includes screenshots of bombing victims, which are apparently shown frequently on Arab newshows (on the one hand, you could call it anti-Israeli propaganda, but on the other hand, our news coverage of the conflict is almost completely sanitized, which can have its own misleading affects – even Condi Rice was unaware of the extent of the destruction in Lebanon until she saw it herself, as evidenced by her expressed amazement). To be clear, I’m recommending this for his coverage of the Arab perspective, not as a source for comprehensive coverage.

Prof. Lynch also provides his own commentary, and I find myself in agreement with much of it, particularly his thoughts on the US role:

I don’t know anyone who will be surprised that the Rome conference failed – it seems to have been designed to fail, to give the US the chance to appear to be “doing something” while giving Israel the time it wants to continue its offensive. But this policy is so transparent, such an obvious stalling mechanism, that it is probably making things even worse for the United States and for Israel: when you are faking it, you’re supposed to at least try to maintain the pretence so that others can at least pretend to believe you. The call for an immediate ceasefire has become more or less universal now, other than from the United States and Israel: even the pro-American Arab states like Saudi Arabia, Egypt and Jordan, which initially blamed Hezbollah for the crisis, are now loudly demanding an immediate ceasefire.

America is totally alone on this. And more than most Americans might realize, America is being blamed for Israel’s actions. The shift in Arab public discourse over the last week has been palpable. For the first few days, the split between the Saudi media and the “al-Jazeera public” which I wrote about at the time. Then for a few days, horror at the humanitarian situation, fury with the Arab states for their impotence, speculation about the endgame, and full-throated condemnation of Israeli aggression. But for the last few days, the main trend has been unmistakable: an increasing focus on the United States as the villain of the piece. (That the Israeli bombing of Beirut stopped just long enough for Condoleeza Rice’s photo op certainly didn’t help.)…

Perhaps this negative focus on America was inevitable, given Iraq and the war on terror and al-Jazeera?

No. This wan’t inevitable. Real American leadership, such as quickly restraining the Israeli offensive and taking the lead in ceasefire negotiations, could have created a Suez moment and dramatically increased American influence and prestige (especially if the Saudis had delivered Iran in a ceasefire agreement, as I’ve heard that Saudi officials believed that they could). But by disappearing for the first days of the war and then resurfacing only to provide a megaphone for Israeli arguments and to prevent international efforts at achieving a ceasefire, the Bush administration put America at the center of the storm of blame. I think that the Lebanon war will go down in history as one of the greatest missed opportunities in recent American diplomatic history – not because we failed to go after Iran, or whatever the bobbleheads are ranting about these days, but because we failed to rise to the occasion and exercise real global leadership in the national interest.

If you’re not sure about the “Suez moment” reference, he’s talking about the US intervention in the Suez crisis of 1956. Britain, France, and Israel attacked Egypt after Nasser nationalized the Suez Canal Company. President Eisenhower forced a cease fire. To compel the British to back down, he actually threatened to sell off US reserves of the British pound, which would have caused the British currency to collapse. If Bush were in Eisenhower’s place, can you imagine him taking a stand against Israel, Britain, and corporate interests, all at the same time?

Karen Hughes AWOL?

Cross-posted to TPMCafe

Last year Karen Hughes assumed the office of Under Secretary of State for Public Diplomacy and Public Affairs. At the time of her appointment, the Christian Science Monitor said, “Karen Hughes would have some advantages her predecessors lacked. As one of Bush’s closest advisers, even after returning to Texas in 2002, she can pick up the phone and get him engaged. In addition, public diplomacy – communicating what the administration calls ‘American policies and values’ – is a top concern.” With the current conflict in Lebanon inflaming passions across the Middle East, one would think that she would be incredibly busy right now. But after doing a thorough Google News search, I found little sign of her, or of any US public diplomacy in the Arab world.

According to Professor Marc Lynch, who regularly monitors Al Jazeera and other Arab news networks, there has been only one appearance by a person from the State Dept on an Arab news show since Israel began air strikes on Lebanon. But that was over a week ago:

Unfortunately, I haven’t seen much follow-up on the one State Department guest I saw on an al-Jazeera program a few days ago… the Bush administration seems largely absent from the al-Jazeera universe, by its choice, much as it seems largely absent from the events themselves. …I’m pretty sure that al-Jazeera asked for an American to come and discuss Rice’s remarks, and didn’t get one. Whether Karen Hughes can’t figure out the urgency of getting someone on this kind of program – arguing about American policy in front of far and away the largest possible Arab audience – or just doesn’t have the clout to persuade anyone to do it, she should probably just quit on Monday…. this sort of thing defines “failure”.

Why does this matter?

I’ve always been an advocate of public diplomacy, but let’s be real: no public diplomacy in the world could overcome the fiasco which is America’s policy. But even now I think that an actual attempt to explain America’s position to the Arab media might have both made some slight difference in shaping Arab arguments and given American officials a stronger sense of how their rhetoric was playing in the Arab world. That feedback might have helped Rice avoid her steady string of disasters in the region, including her expressed surprise at the extent of destruction in Beirut and her spectacularly ill-considered formulation of the violence giving birth to a new Middle East (no single American remark thus far has earned more enraged scorn). But the Bush administration has completely punted on public diplomacy, demonstrating absolute contempt for Arab attitudes – it didn’t even send officials on to relatively friendly environments like al-Arabiya – and now it’s far too late. “Winning Arab and Muslim hearts and minds” has gone on the trash heap alongside “American promotion of Arab democracy” for the foreseeable future. If the Bush administration has any alternative grand strategy in mind, it’s carefully concealing its hand.

In a brief article in U.S. News and World Report last month, it was reported that Hughes “has won points for crafting a Rapid Response Unit, designed to help U.S. officials abroad respond to the day’s news… But critics say the effort is typical of Hughes’s quick-hit, political campaignlike approach to what is a years-long ideological struggle.” As Dr. Lynch said, no amount of public diplomacy could overcome the reality of US (in)actions in the current crisis. But it is nonetheless remarkable that there no evident plan from Hughes – not even a “quick-hit” one – to even try to put a good face on it for the many millions in the Arab Middle East TV audience.

Buy Property on High Ground

UPDATE: the Editor of Technology Review posted a comment (apparently they’re watching their incoming links), saying that there was enough demand for the “scary chart” that they’ve now posted it to their site as a PDF (it’s much nicer than my scan).


Technology Review's “Scary Chart” depicting the effects of greenhouse gases on climate over the past 400,000 yearsTechnology Review’s “Scary Chart” depicting the effects of greenhouse gases on climate over the past 400,000 years
Technology Review's “Scary Chart” depicting the effects of greenhouse gases on climate over the past 400,000 years
 

Technology Review’s latest issue contains an excellent set of articles on global warming. Unfortunately, the online version is lacking “the scariest graph in climate science, a 420,000-year record of carbon dioxide and temperature, inferred from a 3.6-kilometer ice core recovered at Russia’s Vostok station in Antarctica.” I’ve taken the liberty of scanning it and posting it here (click it for a larger view, and then click the link to view it Picasa, which has a zoom tool). It’s the clearest illustration I’ve ever seen of the relationship between atmospheric CO2 levels, temperature, and sea level. While the article says that “atmospheric concentrations of carbon dioxide have increased 32 percent since 1850,” you don’t get a gut-level feel for what that means until you see the CO2 level going way off the top of the chart at the end of the graph. Here’s the key portion of the inset text that accompanies the graph:

…Geological records show that in the past 400,000 years, atmospheric concentrations of carbon dioxide, average Earth temperature, and sea levels have risen and fallen roughly in tandem, in 100,000-year cycles paced by slight oscillations in Earth’s orbit. These oscillations affect the distribution of sunlight, hardly affecting the total amount reaching Earth; yet, scientists believe, this has been enough to set in motion chains of events that raise and lower temperatures, launch and end ice ages, and trigger vast changes in sea level.

What’s coming next? Carbon dioxide — the number one greenhouse gas — has much more power to affect Earth’s temperature than the orbital changes do. And in just the past 150 years, humankind has boosted carbon dioxide concentrations by 32 percent. NASA planetary scientist Jim Hansen says that if we continue to increase greenhouse-gas emissions, temperatures will rise between 2 and 3 ºC this century, making Earth as warm as it was three million years ago, when seas were between 15 and 35 meters higher than they are today….

The article that goes with the graph – The Messenger – is also highly worth reading. It covers the career of leading climatologist Jim Hansen, and among other things, describes the censorship of his work by the Bush Administration:

According to NASA memorandums provided by Hansen, senior political appointees at NASA headquarters in Washington quickly called career public-affairs officers at the agency and directed them to give headquarters advance notice of Hansen’s speaking schedule, his “data releases,” and his attendance at scientific meetings. The career officers also understood from the phone calls that the posting of all content on the GISS website, including scientific data sets, would now require headquarters approval; that no NASA employees or contractors could grant media interviews without approval; and that public-affairs officers had the right to stand in for scientists in all interviews. Hansen emphasizes that the political appointees made sure to leave no paper trail…He says he’s been muzzled before — during the Reagan and first Bush administrations — but that in more than three decades as a government employee, he has seen nothing to equal the recent clampdown.

What makes Hansen’s work compelling is that he uses multiple sources to check the accuracy of his models. You’ll need to read the article for a detailed explanation, but the bottom line is this:

Global-warming deniers like to complain that scientists base their predictions on faulty computer models. But Hansen’s calculations show that we don’t need a computer to know how temperature will respond to a given change in the greenhouse — or a change in dustiness, or forest cover, or the amount of ice on the Arctic Ocean. Solid geological field data give us everything we need — and provide a check for computer models. And lend credibility to Hansen’s predictions.

Letter to the CS Monitor on Presidential Power

I just submitted the following letter to the CS Monitor, in regard to their article Debate on Hill Over Power of the President. It’s the first time I’ve ever written a letter to the editor – I’ll let you know if they print it. The Cooper paper I mention is here [PDF].

Your June 28 article, “Debate on Hill Over Power of the President,” overlooks two vital concerns in this debate. One is that President Bush’s use of signing statements exceeds those of previous Presidents not only in number, but also in scope. In the September 2005 issue of Presidential Studies Quarterly, scholar Phillip Cooper described in detail Bush’s “audacious claims to constitutional authority” in his use of signing statements. Bush has used signing statements to treat a number of mandatory legislative provisions as merely “advisory,” to recast areas of foreign affairs where Presidents previously shared power with Congress into areas of exclusive Presidential authority, to grant himself a de facto line-item veto, to reprogram Congressional appropriations for his own purposes, to assert such tight control over information as to render Congressional oversight meaningless in many areas, and to assert several other claims to power. No previous President has made such wide-ranging claims of Presidential authority, by use of signing statements or any other means.

The other vital concern is understanding the larger context of this debate. President Bush has made broad claims to Presidential power beyond the use of signing statements. For example, via executive order he has suspended habeas corpus for those he suspects of connection to terrorism. Habeas corpus has been suspended only once before in our history, by President Lincoln in the Civil War. While Lincoln sought and obtained retroactive authorization from Congress, Bush has not acknowledged any Congressional authority in this area. In regard to the warrantless wiretapping program, what has not been widely noted is its connection to the Patriot Act. President Bush asked Congress to loosen some of the FISA rules, and was granted these requests in the Patriot Act. He publicly thanked Congress, and then secretly directed the NSA to disregard those very same laws.

What is urgently needed in this country, and is so far lacking, is a broad, informed, and vigorous public debate on just how much power we are willing to invest in the Presidency, given the terrorist threat, and how to guard against abuses of that power. President Bush’s aggressive stance on executive authority will not go away with his administration. Once power is acquired, it is rarely relinquished – future Presidents will build on the precedents he is establishing. As such, this is hardly an arcane debate – it goes to the very principals of government on which this country was founded.

A Concise Analysis of Bush’s Iraq Policy

Occasionally someone will plainly elucidate, in the space of relatively few words, what others have a hard time saying clearly. Today that person is Josh Marshall:

…For the United States, the situation in Iraq is close to unprecedented in the last century in terms of the duration of time an American president has left a war policy on autopilot while more and more evidence comes in that it’s simply not working. Even in Vietnam, for all the mistakes the US made there, Richard Nixon kept escalating the conflict. There’s at least some strategic movement on the policy brain scan. I’m not saying that’s preferable. And I don’t want to get into an argument about bombing Cambodia. But it is at least different from letting a flawed policy grind through money and men for three years because you don’t have the moral courage to rethink it or adjust course. It’s denial elevated to the level of high principle.

Remember what the president said: getting out of Iraq is something that’s going to be up to the next president. He or she can get started in 2009.

Winning in November, Defending the Constitution – A Debate

Cross-posted to TPMCafe

My post Winning in November, Defending the Constitution generated a lot of comments…about the events of 9/11. Buried in those off-topic comments was a very good debate between myself and Gettysburg on the validity of my post’s core assertion: that Bush is acting outside the law and has overstepped the Constitutional bounds of the Presidency. What follows is an edited version of that debate. I have made some organizational adjustments, but I have not added any new material. The primary purpose of the edits is simply to keep this post from being overly long (please see the original discussion thread if you want to see the debate in its entirety). Gettysburg has given me permission to quote him in this post. I’d also like to sincerely thank him for taking the time to thoughtfully debate me. Having a variety of viewpoints here at TPMCafe is one of the main things that makes the Discussion Tables worthwhile. I hope this post generates further input from other readers as well.

Discussions of complex issues can become a bit of a mess, so I’ve reorganized the comments into general topics. I’ve put Gettysburg comments in italics, and mine are in plain text.

You’ve got your sources, and I’ve got mine

I’m sorry but your entire post is little other than sensationalism. If you HONESTLY believe the Bush administration has steered our nation away from Democracy toward a dictatorship, then perhaps you should consider taking a vacation and getting away for a while. Believe it or not there has been no trampling of the Constitution. Have laws been broken and lies promulgated? Sure, but not any more than any other administration….

In the practical space of a blog post, I could devote only so much space to documenting the flaws in the arguments the executive branch has used to justify its belief that it is above the law. To compensate for that, I included links to other resources on the web where you could get that information.

So let me suggest this: I’ll take a vacation as you recommend, and you do some homework. Here are your assignments:

Yale Law Professor Jack Balkin has a concise but thorough overview of why the executive branch’s theory of its own power is unprecedented and quite dangerous: Reductio Ad Dictatorem

Columbia Law Professor Michael Dorf explains why the “inherent powers” argument recited almost daily by Bush supporters holds no water: What are the “Inherent” Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights

This letter [PDF] from 14 law professors and former high-ranking federal officials to the Congress provides a highly detailed discussion of why Gonzales’ justifications for the Presidents actions have no merit.

…I would not suppose that the arguments of either of these scholars could or even should be dismissed due to their political affiliation. I am merely pointing out that there are several conservative commentators of equal reputation who argue that the Bush administration is inherently justified in pursuing its vigorous national security platform. Charles Krauthammer, for example, has repeatedly backed the administration on a number of platforms including immigration and national security. You can read for yourself here. Also, the likes of Fred Barnes and William Kristol are enormously influential on Capitol Hill, the White House, as well as other GOP circles.

In Krauthammer’s “Impeachment Nonsense” piece, he cites two sources to support his position: Orin Kerr and John Schmidt. His quote from Kerr consists of only two words – I would advise you to be awfully wary of pundits who parse words so narrowly like this. If you read Kerr’s full analysis at the Volokh Conspiracy, he concludes that A. it’s an open question whether the NSA warrantless wiretapping program violates the 4th amendment (I think he’s correct on that one – 4th amendment precedents do not point to a clear conclusion), B. he doesn’t see a valid exception for Bush to get around the FISA statutes, C. he doesn’t think the AUMF extends to cover the NSA program, and D. he says he can’t find any caselaw to support the President’s Article II argument. It’s hardly a ringing endorsement of the President’s position. In regard to Schmidt, Media Matters has a very thorough analyses of the inaccuracies of his statements on this matter. In general, as I’ve studied this, I’ve been finding cohesive and well supported arguments among those who say the President’s actions have been unconstitutional, and I see a lot of partial quotations and misconstruing of Constitutional history on the other. If you can point me to a more substantive source than Krauthammer, I’d be happy to read it.

It may also interest you to know that there are die-hard Republicans who doubt the legitimacy of Bush’s actions. See Republican Speaks Up, Leading Others to Challenge Wiretaps and fierce anti-Clintonite Bob Barr’s comments at the Conservative Political Action Conference.

Separation of Powers and the limits of Presidential power

…Should we be surprised that a president has attempted to rule based on ‘inherent authority?’ It would seem as if any ruler would naturally try to preserve as many rights as is humanly possible.

It sounds like you need to read the Dorf piece more carefully. Bush is not attempting to rule based on “inherent authority.” He (or more precisely, the Justice Dept) has created a new and radical theory of Constitutional interpretation that recasts traditional understandings of “inherent authority” into claims of “exclusive authority.” This is not preserving rights, this is claiming entirely new rights. There are lots of ways to dig into this, but let’s go with a simple, straightforward example that Dorf mentions:

…The Constitution expressly grants to Congress the power to “make Rules concerning Captures on Land and Water.” A statute prohibiting torture and other forms of cruel, inhuman or degrading treatment of captives falls squarely within this language. The President’s claim [in his signing statement for the McCain anti-torture legislation] to be able to override it as Commander in Chief thus directly contradicts the express and unequivocal terms of the Constitution.

Bush and his Justice Dept believe the Presidency is vested with unlimited authority in the area of national security – authority that cannot be challenged or reviewed by the other branches of government (this theory was first put forth in 2001 by John Yoo – see here). When you take this theory and hold it up against the text of the Constitution, as in Dorf’s example, the absurdity – and the dangerousness – of this theory become plain.

So it seems as if Congress, who has the authority to check these violations on the part of the president, should be the body in question. In short, you blame Bush when you should probably be blaming Congress for not implementing their Constitutional authority to check the powers of the executive. The Supreme Court, for that matter, should also come into the picture.

You are absolutely correct about Congress abdicating its oversight responsibility. Also, as I argued in my post, the Democrats should be ashamed of themselves for ignoring this issue. The role of the Supreme Court is a bit different. It can’t do anything without having a case brought before it, and the Bush administration has worked hard to make sure that doesn’t happen, as it did in the Padilla case.

From my standpoint, if the oldest child in a family steals extra cookies out of the cookie jar because he/she is the only child tall enough to reach it, it is up to the parents to ensure that it does not happen again. When the parents fail to punish or otherwise rectify the wrong, the child can hardly be called into question unless on a purely moral basis. And we all know how far moral arguments get these days.

Bush is not a child, he is an adult who has sworn an oath to defend the Constitution. It is my belief that the unprecedented and extreme theories of Presidential power he has both adopted and acted upon are deliberate moves that constitute violations of that oath. The fact that Congress isn’t doing its job does not absolve him of his responsibility to respect the role of the President as outlined in the Constitution. In the rare cases when previous Presidents overstepped their bounds – such as when Lincoln suspended habeas corpus and Truman attempted to seize the steel mills – both ultimately acknowledged their overreaching and submitted to Congressional and judicial authority. In contrast, Bush has taken every opportunity to evade judicial review and ignore Congressional authority.

I’m not implying that I believe Bush has NOT attempted to skirt certain portions of the Constitution. I believe he has utilized loopholes in that document as well as the FISA measures. …if Bush indeed has trampled the Constitution, he has done so to make the country more secure.

There are two serious problems with this argument. One is that you, me, and every other US citizen has to simply trust and hope that your assertion is true. By deliberately evading judicial review of his actions (such as in the Padilla case) and violating duly enacted Congressional laws such as FISA, we are left to merely hope that Bush is being honest and fair in his actions. Our system of checks and balances was designed to ensure that we, as citizens, would never have to be in this position – in my opinion, that system has now broken down. The second problem with your argument flows from the first: the Bush administration’s public record of decision making, from Iraq to Katrina, does not demonstrate particularly high levels of competence. Why should we assume the actions the Bush administration takes in secret are executed with any greater competence than its public actions? Furthermore, in regard to FISA, Bush has dealt with the Congress (and therefore the public) dishonestly. In the Patriot Act, Bush asked for a number of changes to FISA and other laws to allow the executive branch freer reign in the War on Terror. Congress gladly enacted these changes, and the Bush administration heaped praise on Congress for doing so. Then, in secret, they went ahead and broke the new laws anyway (remember, the warrantless wiretapping became public only because of a leak). With this kind of track record, why should I blindly assume that Bush is competently using his secret powers to keep the country safe, and why should I blindly assume he is not abusing that power?

As we’ve discussed before, it is the responsibility of Congress to check any unlawful action by the Executive Branch. Since nothing has been done by that body I see no reason to assume that the actions by the president have not been legal.

If I were to break the law and get caught, but I had enough pull in the political system to walk away from it, that doesn’t change the fact that I broke the law. This is essentially what my post was about: we need to get new people in Congress who will stand up and defend the prerogatives of the legislative branch.

…I believe Bush probably has taken liberties with the law, but has not done so with negligence. I feel the arguments being made against him are mostly moral in nature and will survive only as long as his presidency. I’m not convinced that these issues will persist into the next administration.

I think you couldn’t be more wrong here. Prior to the mid-20th century, power had ebbed and flowed between the Congress and the President. But starting with World War II, power has increasingly flowed to the President (with a fairly brief pause after Watergate). I don’t see any reason to assume that this trend of power flowing to the President will not continue. If Bush’s actions are allowed to stand, the next President will almost certainly do the same things, or even try to push the envelope further. If Hilary Clinton is elected in 2008, I’ll be awfully curious to chat with you again then and see if you still have the same complacent attitude towards unchecked Presidential power.

The NSA warrantless wiretapping program

…the domestic surveillance program is limited to storing certain information in databases which can then only be accessed with probable cause. In effect, the program DOES NOT allow for the conversations of Americans to be recorded or even listened to. Rather, if probable cause against an individual is acquired, THEN actual surveillance may take place; but not before.

This is a very misleading statement, as you’ve left out two key points, and you’ve made one factual error: A. decisions about who to wiretap are made solely within the executive branch – there is no judge making a probable cause determination (hence the moniker “warrantless wiretapping”), B. the NSA is not asking a judge for permission when it wants to access any of its own data from this program, and C. General Hayden said the NSA is applying its own standard of “reasonable basis to believe” when deciding whom to wiretap, which is a lower standard than probable cause – see here. I can’t imagine a setup that would be more prone to abuse.

Suspension of habeas corpus

[In a response to another commenter] Those being held without due process are not Americans and are war criminals.

Aside from the logical fallacy of your claim (how can you conclude someone is a war criminal without some form of due process to determine if they committed war crimes?), it may interest you to know that the Bush administration – solely on the President’s authority – locked up two US citizens without charge for several years, without access to lawyers, and with long stretches in solitary confinement. See here. The Padilla case is particularly disturbing since he was a US citizen, apprehended on US soil.

The suspension of Habeas Corpus is far from being unprecedented. I’m sure none of us here have all of the details surrounding the Padilla case. It’s easy to sit by our computers and say, “Bush didn’t honor their rights!” But the possibility certainly exists that such action was warranted.

If, by “far from being unprecedented,” you mean that it’s happened only once before in our entire history, then you’re correct. It was President Lincoln during the Civil War: “He did so in response to riots, local militia actions and the threat that the Southern slave state of Maryland would secede from the Union leaving the nation’s capital, Washington, D.C., in the south. He was also motivated by requests by generals to set up military courts to rein in “Copperheads” or Peace Democrats, and those in the Union who supported the Confederate cause.” The difference between Lincoln and Bush is this: “However, he also wrote to Congress soon afterward asking them to retroactively pass a law authorizing his actions, explicitly recognizing that only they could do so.” Bush has recognized no such Congressional authority.

You are correct that we don’t know all the details surrounding the Padilla case. Neither do any judges or anyone outside the executive branch. But the proof is in the pudding: faced with a pending Supreme Court hearing, which would have given the Bush administration the opportunity to demonstrate why such extreme actions against a US citizen were necessary, they abruptly moved him from military to civilian custody, thus obviating Padilla’s case. I think you can only conclude from this that they knew their evidence about how dangerous he supposedly was simply wouldn’t stand up to outside scrutiny. Glenn Greenwald sums up the situation well:

…the cases of Yaser Hamdi and Jose Padilla — two American citizens whom the administration abducted (in Padilla’s case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming — based solely on George Bush’s secret decree — that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.

But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush’s decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla’s case, the administration — one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla’s 3 1/2 year lawless incarceration — suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla’s claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.

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