Various items

(1) I am leaving this week to begin my month-long book tour, and my blogging may be light this week. I am going to try to blog as much as possible during the tour but I assume that with the extensive travel and all of the other obligations, I won't be able to blog nearly as frequently as usual. As a result, I have arranged for three superb guest bloggers to post here throughout June, as little or as much as they want: (i) veteran Guest Blogger Anonymous Liberal; (ii) Barbara O'Brien of Mahablog; and (iii) regular commenter Hume's Ghost, who also blogs at his own blog, DailyDoubt.

They are very different in their blogging style and approach to issues, but what they all have in common is that they think thoroughly about every issue before writing, and most importantly (at least to me), never spew predictable opinions reflexively or out of some partisan obligation. It's great for me, and for this blog's readers, to know that on the days I can't blog here, there will be high-quality and provocative posts.

Regarding the book, How Would a Patriot Act? debuted this weekend at #10 on the Washington Post's Washington area Best Seller list (under Paperback Nonfiction).

(2) I have a lot to say about the Supreme Court's 5-4 travesty yesterday in Garcetti v. Ceballos (.pdf), which severely limited the First Amendment protections available to public employees/whistleblowers when speaking in their "official capacity." I hope to post about this later today, but may not be able to until tomorrow. In the meantime, Marty Lederman has a typically thorough discussion of the legal issues relevant to the decision, and Jack Balkin has posted a broad analysis of its legal implications.

This is not as politically charged an issue as it might seem at first glance. This has been a messy doctrinal area in the Court's jurisprudence for some time now, and the issues the Court had to resolve don't really have a direct relationship to the whistleblower issues which have caused political controversy of late. And the ruling affects only First Amendment protections for whistleblowers, not statutory rights. Nonetheless, the instincts of the majority (Roberts, Alito, Scalia, Thomas and Kennedy) to strip whistleblowers and other public employees of constitutional protection is significant, and is an arguably ominous sign of things to come . That's particularly true when it appears that this case would have gone the other way before Alito took O'Connor's seat. I will write more on this later.

(3) Last week, the Bush administration normalized diplomatic relations with Libya -- and is soon to remove them from the list of terrorist countries for the first time since 1979 -- despite the fact that that Libya's internal repression is among the worst in the world and it is about as far away from democratizing as a country can be. All of those pro-Libya actions are direct and glaring contradictions of our supposed foreign policy principle of only supporting countries which provide democracy and freedom to their citizens (although, purely coincidentally, Libya has developed superb relations with international oil companies).

In virtually every Middle Eastern country, we seem to be acting as contrary to our ostensible ideals as possible -- including our increased support for Gen. Musharraf in Pakistan despite his increasing stranglehold on that country's democratic processes, our strengthening alliances with Egypt and Saudi Arabia, and our contempt for those governments which are democratically elected but not to our liking, including Hamas, Hugo Chavez, and even the government of Iran.

It's as though we think that Muslims -- whose improved view of the U.S. is allegedly the objective of all of our foriegn policy actions, including our occupation of Iraq -- won't notice the ever-widening gap between our pro-democracy rhetoric and our actions. Of course they notice. And now, even the administration's most vigorous neonconservative boosters are admitting, and complaining, that the administration seems to have given up on these pro-democracy goals, if they ever really had them in the first place:

But as the US struggles to assert itself on the international stage, the president’s most radical supporters now dismiss this as mere rhetoric, and traditional conservatives are questioning the wisdom of a democratisation strategy that has brought unpleasant consequences in the Middle East. . . .

“Bush killed his own doctrine,” they said, describing the final blow as the resumption of diplomatic relations with Libya. This betrayal of Libyan democracy activists, they said, came after the US watched Egypt abrogate elections, ignored the collapse of the “Cedar Revolution” in Lebanon, abandoned imprisoned Chinese dissidents and started considering a peace treaty with Stalinist North Korea.

More than anything else, our foriegn policy is just a horrendous, jumbled, incoherent mess -- actions in search of some post hoc, unifying rationale. We embrace the worst tyrants in China, Saudi Arabia, Pakistan, and Egypt; act with hostility to numerous democratically elected governments that we dislike; and then preach to the world that all of our actions, including our militarily aggressive ones, are geared toward the goal of spreading democracy and freedom around the world.

There are good, convincing, legitimate reasons why we should maintain alliances with undemocratic countries which nonetheless promote U.S. interests (including, for instance, a country's cooperation in tracking Al Qaeda activities, as Libya's intelligence service provides). Virtually every country makes its foreign policy decisions based on that self-interested calculus. But we are a country which has now loudly proclaimed that everything we do -- including invading soveriegn countries -- is justified by our need to bring democracy to the world. Once a country makes that the proclaimed centerpiece of its foriegn policy, acting in direct contradiction to it achieves nothing other than the destruction of national credibility and the failure of every claimed foreign policy objective.

Karl Zinsmeister should lose his White House job

Unsurprisingly, the national press appears to be on the verge of declaring that the fraud committed by new Bush appointee Karl Zinsmeister is really not all that serious, and, now that he has given a (plainly false) explanation for what he did, it is time to drop the whole unpleasant story and let him take his prestigious new job. Reflecting that mindset is this truly shoddy and one-sided piece of “journalism” from today's Washington Post, which presents a microcosm of so much that is defective with the national press.

To briefly re-cap what really ought to be a disqualifying event for Zinsmeister, the New York Sun broke the story this weekend that Zinsmeister was the subject of an article in the Syracuse New Times written by reporter Justin Park. The article was largely positive, but contained some politically inflammatory and risky quotes from Zinsmeister, including some comments which could actually be construed as pointed criticisms of the Commander-in-Chief. Zinsmeister wanted to publicize the article to his American Enterprise Institute readers, but obviously did not want anyone to see the quotes he had uttered.

So, rather than linking to the original article, Zinsmeister re-printed the article on his own site, but deleted or changed all of the quotes that he disliked or that were embarrassing, while misleading his readers into believing that he was printing the article as it originally appeared in the New Times. To describe Zinsmeister's conduct is to illustrate its impropriety.

Anyone who has ever been written about or quoted in a newspaper has had the experience of wishing -- for a whole slew of reasons -- that certain quotes or statements were expressed differently. But everyone knows that you can't take the article once it's published and then re-publish it by simply changing the parts you don't like. The most obvious ethical principles would prevent someone from that doing that. Really, who would do that? Making matters worse here, Zinsmeister was a Magazine Editor for the last ten years, so he obviously knows better than anyone that it's wrong to substantively change the content of someone's article in order to make it reflect better on him.

The New York Sun article over the weekend included a quote from a White House spokesperson claiming that Zinsmeister only altered the article to correct misquotations and other errors made by the reporter -- a plainly ludicrous excuse given that Zinsmeister never once claimed that the article contained any errors, but rather, sent e-mails to the reporter praising him for his professionalism and competence. That is so obviously inconsistent with believing that you were misquoted in serious and numerous ways.

What is going on is obvious. Having been caught in plainly unethical acts, Zinsmeister is incapable of simply accepting responsibility for what he did by admitting that he did it not because he was misquoted, but because the statements he made to the reporter were embarrassing to him, or did not express his ideas how he wanted them to be heard, and so he simply changed the quotes without letting anyone know that he was doing that. Instead, reflecting not just a lack of integrity but a total lack of character, Zinsmeister is now trying to defend himself by smearing the competence of the reporter, heaping all the blame on him in order to save himself.

While The New York Sun article contained some rather angry and persuasive responses from the reporter and the New Times -- which really make clear just how dishonest Zinsmeister is being by trying to blame the reporter -- the Washington Post article today inexcusably allows Zinsmeister to articulate his excuses for why he changed numerous quotes and other parts of the article that he posted free of any opposition or alternative claims. What makes the one-sidedness so indefensible is that Zinsmeister's excuse essentially entails smearing the competence and integrity of the reporter who originally wrote the article, and yet the Post article does not even bother to interview the reporter whom Zinsmeister is blaming or give his side of the story. Thus, Zinsmeister is allowed to make insultingly dishonest claims like this one free of refutation or challenge:

"Looking back, this is foolish," he said in a telephone interview Friday evening. Zinsmeister said he did it to correct the record while protecting a young journalist who had made mistakes. . . .

In other examples, he said he made changes to fix errors he believed the New Times reporter had made because of misunderstandings or truncated notes -- taken in an interview in a noisy restaurant. . . .

But Zinsmeister said he avoided asking for corrections at the time because "I think I would have gotten Justin in worse trouble if I moaned about it."

So, not only is this whole mess the fault of the sloppy, misquoting reporter, Zinsmeister actually performed a noble act. Sure, he could have complained about the misquotes or noted that he was misquoted when printing the article. But he would never want to harm the career of this "young reporter" by noting that he was misquoted (so instead, to protect his new job and his own reputation, he now impugns the reporter's basic quotation abilities in the pages of the Washington Post).

Shouldn't it obvious to the Washington Post Editor that if they are going to publish a story where a high-level Bush appointee heaps blame for his unethical conduct on a reporter, the reporter should be given the courtesy of being quoted and allowed to give his side of the story? That's especially true where, as here, the reporter vehemently denies Zinsmeister's claims and has very strong documentary evidence to support those denials, possibly including a tape recording of the interview. Did the Post even bother to contact Park to get his reaction to Zinsmeister's new attacks or to determine if a tape exists?

Worse, the article never once expresses even slight skepticism over the highly incredible excuses which Zinsmeister is peddling for why he did what he did. Readers who learned about this integrity scandal only from The Washington Post today would think that this was just a minor incident designed to correct some misquotations, and that Zinsmeister just handled the situtation "unartfully," to use Tony Snow's word of defense. Post readers would have no idea of what is really going on - that Zinsmeister is invoking plainly incredible claims to justify what he did which are denied by the reporter in question and contradicted by his own words at the time.

Nor is Zinsmeister entitled to any credit for acknowledging that the quote distortions were “wrong.” He admitted that because he had to. That conduct is intrinsically unethical and everyone knows it. And even then, the supposed acknowledgment of fault was constructed to belittle the importance of what he did. What Zinsmeister did wasn't "foolish," as he playfully put it. It was dishonest and wrong. And, where Zinsmeister has a real opportunity to choose to be truly honest about what happened -- by admitting the real reasons he did it - he instead chooses to lie about it and tries to smear the reputation of the reporter in the pages of the Washington Post.

Zinsmeister is not all that important. If he does not take this position, there will be some new AEI clone lined up ready to perform the duties. But what does matter is that the administration should finally be held to some level of integrity by the national press. Zinsmeister engaged in plainly wrongful and dishonest conduct. He only admitted it when he was caught. And now that he's caught, he is offering plainly incredible excuses at the expenses of someone else's career. How can that not disqualify him from a high-level position at the White House?

What really is going on here seems clear. Zinsmeister is one of those guys who has been around journalism and Washington forever. He is well-connected and well-liked by his good friends like Scott Johnson and Jonah Goldberg. He is one of the Beltway club. And, as a result, there is just no appetite among the national press for doing anything other than giving the most cursory and skewed attention to this story with the goal of resolving it quickly and ensuring it does not impede Zinsmeister's career. How else to explain the Post's decision to allow Zinsmeister to blithely heap all the blame on another reporter without even bothering to interview that reporter to get his side of the story?

New Bush appointee caught changing and distorting his own quotes

Several days ago, the Bush administration announced that Karl Zinsmeister, the long-time Editor of the right-wing American Enterprise magazine, would become its new Domestic Policy Advisor. The appointment was celebrated by self-proclaimed personal friends of Zinsmeister such as Scott Johnson at Powerline and Jonah Goldberg, both of whom lauded his great intellect and integrity.

But an exposè today in The New York Sun documents rather compellingly that integrity does not exactly appear to be one of Zinsmeister's strong suits. In 2004, The Syracuse New Times published a profile and interview with Zinsmeister which contained some rather controversial and provocative quotes, as well as some disrespectful and critical quotes about the Commander-in-Chief. But when Zinsmeister re-published the New Times profile on the American Enterprise website, he fundamentally changed the controversial quotations in order to make it appear that he never said them. According to the Sun:

A magazine editor named to a top White House policy post, Karl Zinsmeister, altered his own quotes and other text in a published newspaper profile of him posted on the Web site of the magazine he has edited for more than a decade, the American Enterprise.

When Zinsmeister re-published the New Times profile on his website, he did nothing to indicate that he had changed the quotes and content. To the contrary, he misled his readers into believing that he was posting the original article:

The version of the story posted by the American Enterprise runs under Mr. Park's byline and states that it was published in the Syracuse New Times.

The editor of the original article, Molly English, pointed out the obvious:

She said it was unethical for Mr. Zinsmeister to post an altered version of the story without permission. "It's reprehensible, frankly," Ms. English said. "Once this is published, it's not his property. From that point in time, he can't just pick and choose."

All of the multiple examples of changed quotations cited in the Sun article make clear that Zinsmeister knew that his quotes would be politically damaging and so he wanted to alter them in order to reflect better on him. As but one example, Zinsmeister changed what he said that was critical of President Bush to instead make it appear reverent:

Mr. Zinsmeister, who has written three books based on his reporting trips to Iraq, also removed or reworded quotes that could be viewed as critical of the Bush administration or inflammatory to some in the Middle East.

The original article quoted Mr. Zinsmeister as saying, "[Bush] said, 'I'm gonna do something for history.' To say nothing of whether it was executed well or not, but it's brave and admirable. It got depressing to have to be [in the Middle East] every couple years like cicadas."

The version posted by the American Enterprise omits the suggestion that the war was poorly run, drops the insect metaphor, and substitutes nobler language. "[Bush] said, 'I'm gonna do something for history.' It's a brave and admirable attempt to improve the world," the second version said.

As another example: "Mr. Park also quoted the magazine editor as saying, 'I can't think of one Iraqi I met that I'm confident never lied to me.' Mr. Zinsmeister's version said he passed on the comment from 'one officer who'd been in Iraq for a full year.'" So, afraid of taking responsibility for what he said about the propensity for Iraqis to lie, Zinsmeister altered the article to make it seem like he was simply repeating what someone else had told him.

Much, much worse than these alterations -- and they are bad enough -- Zinsmeister caused a White House spokesperson to simply lie about why Zinsmeister made the changes:

In response to queries from The New York Sun yesterday, the White House said all of the changes were to correct errors in the August 2004 article, which was written by Justin Park and published in a weekly newspaper, the Syracuse New Times.

"These were corrections that were made due to misattributions or misunderstandings by the reporter that were cleaned up when they were reposted," a White House spokeswoman, Jeanie Mamo, said.

The claim that Zinsmeister was simply correcting misquotes is ludicrous on its face, since he never once claimed to the reporter or editor that he was misquoted in any way, let alone repeatedly misquoted in fundamental ways. To the contrary, after the story was published, he went out of his way to lavishly praise the reporter and the newspaper for the quality of the profile:

The New Times reporter, Mr. Park, said last night that he was "fairly certain" that he taped the interview with Mr. Zinsmeister, which the journalist said took place at a noisy restaurant. Mr. Park also said he was taken aback by the White House claim of inaccuracies, since Mr. Zinsmeister sent an effusive e-mail soon after the article appeared.

"I just read your story on line, and wanted to thank you for an extremely fair and thoughtful treatment," Mr. Zinsmeister wrote in an August 18, 2004, message provided to the Sun by Mr. Park.

Mr. Zinsmeister, an avowed conservative and staunch proponent of the war in Iraq, also expressed surprise at Mr. Park's approach, since the New Times is a left-leaning publication. "I really appreciate your professionalism and kindness. You wrote it straight up, which is the best and hardest kind of journalism. Let me know when I can next help out your journalism," the editor wrote.

"I'm sure he would have said something if he felt misquoted at the time," Mr. Park said yesterday.

Is there anything less credible in the world than Zinsmeister's claim - made through the White House spokesperson - that he altered these potentially embarrassing quotes because he was repeatedly misquoted, given that he not only never claimed he was misquoted, but sent e-mails praising the outstanding journalism evinced by the story? Nobody who was misquoted in such fundamental and unfair ways would thereafter send e-mails specifically praising the "professionalism" of the reporters and lauding the "fair and thoughtful treatment" they were given, let alone call the article "the best and hardest kind of journalism." All of that is self-evident.

Zinsmeister clearly changed his own quotes because he thought they reflected poorly on him, an incredibly unethical thing to do, especially since he misled people into believing that he was quoting the article itself. Now, when caught, he refuses to take responsibility for what he did, but instead begins offering up patently false explanations for why he did it, even going so far as trying to heap the blame on the supposedly sloppy and/or unethical practices of the reporter and editor who were responsible for the story -- all in order to save himself.

This kind of reprehensible behavior would completely disqualify Zinsmeister from working with any reputable organization which cared about honesty, integrity and truthfulness. That's the good news for him; his new job is clearly not in jeopardy with the Bush administration. He's probably already in line for a promotion.

People who don't understand how America works

The United States Congress openly debated yesterday whether the federal government should begin imprisoning journalists who publish stories containing information which the Bush administration wants to conceal. At a House Intelligence Committee hearing, several Republicans expressly urged that our country start throwing reporters in jail:

The criticism focused on articles in The New York Times concerning a National Security Agency surveillance program and, to a lesser extent, on disclosures in The Washington Post about secret C.I.A. prisons overseas.

Some Republicans on the committee advocated the criminal prosecution of The Times. Their comments partly echoed and partly amplified recent statements by
Attorney General Alberto R. Gonzales that the Justice Department had the authority to prosecute reporters for publishing classified information. . . .

"I believe the attorney general and the president should use all of the power of existing law to bring criminal charges," said Representative Rick Renzi, Republican of Arizona.

Several members of the Committee pointed out that the U.S. is not a country which imprisons journalists for stories which they publish about controversial government actions:

Democratic members of the committee, while praising the role of the press in informing citizens, responded only indirectly to the comments concerning The Times. Representative Jane Harman, Democrat of California, said she was disturbed by Mr. Gonzales's statements.

"If anyone here wants to imprison journalists," Ms. Harman said, "I invite them to spend some time in China, Cuba or North Korea and see whether they feel safer."

This was the same Jane Harman who went on Meet the Press on February 12 and strongly implied that she favored prosecution of the Times for informing Americans about the warrantless eavesdropping program, leading many Bush followers to celebrate the fact that the ranking Democrat on the Committee made clear that she advocated prosecution of the Times. But perhaps between then and now, someone explained to Harman that while there are countries that imprison journalists for stories they write about the Government (Harman's examples of China, Cuba and North Korea are good ones), America isn't one of them.

National Review Contributing Editor Jonathan Adler this week wrote a very thorough article in NR explaining what ought not need explanation -- that these increasingly strident calls among "conservatives" to put journalists in jail are squarely contrary to the most fundamental American political values and traditions (emphasis in original):

Such a prosecution would be unprecedented, as the federal government has never criminally prosecuted a journalist for publishing classified information.

We do not mean to minimize the negative diplomatic fallout that Priest’s reporting [about the CIA's "black prisons"] might have caused. It is certainly possible that her stories made it more difficult for the United States to obtain the cooperation of foreign governments in the war on terror. Yet if this is the sort of injury that can trigger liability under the Espionage Act, then many reporters who have disclosed embarrassing, classified information are equally guilty. Just consider all of Bill Gertz’s stories in the Washington Times about the Clinton administration’s national-defense and diplomatic missteps. Were these stories criminal? . . . .

The Founding Fathers understood that a free and independent press is critical to self-governance and to the constitutional order they established. The Constitution states that Congress “shall make no law” abridging the freedom of the press. This mandate is clear and unmistakable. The press should be free to publish news reports without fear that Congress will criminalize those publications.

As one can say for so many core American political principles, the U.S. Government under 42 different Presidents has thrived and defended the nation for 220 years without the need to imprison journalists for the stories they publish, but the Bush administration is the first to claim that it has to dismantle these liberties because it is too weak -- and America is too weak -- to maintain national security unless we radically change the kind of country we are.

And, quite relatedly, we come to this story which claims, based exclusively on anonymous federal law enforcement sources: "Federal investigators say they have evidence that former Chicago street gang member Jose Padilla was a higher ranking member of Al Qaeda than first thought." The entire article is based on the anonymous claims of "federal authorities" -- i.e., those trying to imprison Padilla for life (and just incidentally, why would a newspaper grant anonymity to federal prosecutors to make allegations against a criminal defendant, all in order to publish a one-sided story?).

Among the crowd which has long been ready to string up U.S. citizen Jose Padilla without bothering to even charge him with a crime (literally based exclusively on the President's decree that he is A Terrorist), this story has created a lynching frenzy, somehow increasing the urgency to leave him in a black hole with no due process. Here is what Jeff Goldstein, one of the most intense enemies of American values, oozed out upon reading this story (emphasis added):

Wow. Just, like...wow . . .

Which, Christ, when I think how many earnest people, in advance of having all of the information, agitated on behalf of this guy’s “civil liberties”—civil liberties he had every intention of using to help wage war against the US (which is why we need to have a serious debate on both how it is best, legally, to handle home grown combatants, and how to use the military tribunal process)—I get that same foul taste in my mouth I used to get whenever I’d hear Wesley Clark talk about, well, everything, now that I think about it.

All the Government has to do is utter the words "Al Qaeda" and it's enough, literally, to cause some people to start swooning with glee and open-mouthed wonderment. Needless to say, multiple America-hating commenters at Jeff's blog expressed outrage that the U.S. Government finally charged Padilla with crimes after holding him for 3 1/2 years in solitary confinement based solely on the President's unreviewed accusations.

That's how this group of Bush followers thinks America is supposed to work. If you are a U.S. citizen, the President can unilaterally order you abducted and imprisoned; does not have to charge you with any crime; can block you from speaking with anyone, including a lawyer; can keep you incarcerated indefinitely (meaning forever); and can deny you the right to any judicial review of your imprisonment or any mechanism for challenging the accuracy of the accusations. And oh - while it would be nice if we could preserve all of that abstract lawyer nonsense about the right to a jury trial and all that, we're really scared that Al Qaeda is going to kill us, so we can't.

Here is what Antonin Scalia said in Hamdi v. Rumsfeld in explaining why the Constitution bars the Government from imprisoning U.S. citizens without a trial:

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. . . .

The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.

When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating “due process of law” with “due presentment or indictment, and being brought in to answer thereto by due process of the common law”). The Due Process Clause “in effect affirms the right of trial according to the process and proceedings of the common law.” Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) (“When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted” (internal quotation marks omitted)).

As Scalia makes so clear -- but shouldn't need to -- if there is any defining American principle, it is that the President can't throw U.S. citizens in jail without charges and a trial. Since the 13th Century Magna Carta, not even the British King could do that. But there are virtually no American political principles left which are not being called into question, if not overtly attacked, by Bush followers. Prohibitions on torture, the right to a jury trial, the obligation of the President to obey the law, the right of the press to publish stories without criminal prosecution -- all of the values which have distinguished this country and defined who we are as a nation for the last two centuries are all being debated and assaulted.

What do you do with people who never learned that American citizens can't be imprisoned by Executive decree and without a trial, or that American journalists aren't imprisoned for stories they write about the Government's conduct? People like this plainly do not embrace, or comprehend, even the most basic principles of what America is.

Various items

(updated below)

A few items of note:

(1) As I posted a couple of days ago, I found the Democrats' embrace of Gen. Hayden's nomination as CIA Director to be indefensible and strategically inept. The reason isn't because there was a real chance to block the nomination; the Republican majority made confirmation all but inevitable. The reason for Democrats not to support the nomination was to avoid (accurate) lead paragraphs like this one, from a Reuters article today reporting on Hayden's confirmation by the full Senate by a vote of 78-15:

The U.S. Senate on Friday confirmed Air Force Gen. Michael Hayden as CIA director in a vote that gave a broad bipartisan endorsement to the architect of President George W. Bush's domestic spying program.

To put it mildly, it is difficult to listen to Democrats express solemn "concern" over the president's lawbreaking when the majority of those in the Senate just voted to install as CIA Director the principal symbol, advocate and "architect" of the President's illegal NSA programs.

(2) A couple of weeks ago, I posted about the vicious and hateful (though entirely unsurprising) character and patriotism attacks on Jack Murtha, all because he had obviously been apprized -- and then disclosed -- that the investigation into the deaths of Iraqi civilians in Haditha concluded that they were the result of cold-blooded, wholly unjustified murder by U.S. soldiers. Today, The New York Times confirmed Murtha's statements that the investigation had reached this conclusion. I won't bother noting the apologies owed to Murtha, but it is worth examining the significance of this story.

It is certainly true, as many pro-war advocates today have noted, that incidents of this type are inevitable in every war. And it is also true that the mere existence of incidents of this sort does not prove that the war is unjustified, since even the most justified wars have included soldiers engaging in gratuitously cruel, violent and outright criminal behavior. The killings are morally reprehensible but do not constitute direct evidence as to whether the war itself was, from the beginning, a justified war. That's all true enough.

But what incidents of this type do underscore is that wars are not something that are to be routine or casual tools in foreign policy. The outright eagerness and excitement for more and more wars that we see so frequently from some circles is not only unseemly and ugly unto itself -- although it is that -- but it is also so reckless and unfathomably foolish. Every war spawns countless enemies, entails incidents which severely undermine a nation's credibility and moral standing, ensures that the ugliest and most violent actions will be undertaken in the country's name, and, even in the best of cases, wreaks unimaginable human suffering and destruction.

Certain circles in our country see war as the first and only option for dealing with every country they dislike. They have no use for diplomacy, negotiations, containment, incentives, alliances -- that's all the girlified stuff of Chamberlain-like appeasement. Any measures short of war for dealing with Iran, for instance, are pure charade, all just pit stops along the way to the Glorious War. They see war as the only thing that works, the only option worth pursuing. They want war. It excites them, makes them feel strong and purposeful, and convinces them that they are the only ones with the resolute will to defend what is Right.

But incidents like these Haditha killings illustrate the moral bankruptcy and sheer stupidity of that mindset. Rational people believe in their gut that war should only be used genuinely as an absolute "last resort." But we have a lot of people in our country, some of whom are employed in and near the Oval Office, who see it as the first and only resort. To the extent that the cold-blooded, calculated murders of innocent Iraqi civilians illustrates the reprehensible folly of that approach, all the better.

(3) The dates and events for my book tour for How Would a Patriot Act? are starting to become somewhat clearer. The June 6 event at the University of Florida which I had previously talked about is not a public event, but they are trying to arrange an event on campus earlier that day for a seminar or book reading or something along those lines. If that happens, I will post the details as soon as I know them.

The multiple San Francisco events will be June 7-10, and I will post the details for each event when everything is confirmed. I will be at YearlyKos in Las Vegas from June 10-12 (on a June 10 morning panel), and at the Take Back America conference in Washington, DC from June 12-14. I am not sure of the dates when I will be in New York, but we have confirmed a June 17 book reading at 8:00 p.m. at the West Side YMCA in New York. The other cities on the tour that are confirmed are Boston, Philadelphia and (probably) Los Angeles. Others are still possible, and much of the schedule still depends on what media appearances get confirmed and when. I will continue to post dates as I have them.

UPDATE:

(4) There are some interesting items in the roll call vote on Hayden's nomination (h/t Prof. Forland and EJ). Arlen Specter was the sole Republican voting against the nomination, signalling yet again (for whatever it's worth) that he's growing increasingly angry over the stonewalling he's encountering in his efforts to investigate the NSA eavesdropping program. Democratic Senators voting against the nomination included Clinton, Durbin and Obama. Democratic Senators voting in favor included Ried and Schumer.

Powerline: The Iran "yellow star" sham is true

(updated below)

The war-mongers who are pining for the next phase of their Glorious War of Civilizations -- regime change in Iran -- thought they hit the jackpot last week when the pro-War, Israel-centric National Post of Canada published a column by neoconservative Amir Teheri which claimed that the Iranian parliament had passed a new law mandating "separate dress codes for religious minorities, Christians, Jews and Zoroastrians, who will have to adopt distinct colour schemes to make them identifiable in public." The warmonger pundits immediately began screeching how they found definitive proof that Iran is the New Nazi Germany -- a new law requiring that Jews wear yellow identifying strips on their clothing.

But the story was a complete scam, total fiction, and everyone -- including the National Post and the pro-Israeli groups which were promoting the story --now acknowledge that the story was false. Everyone, that is, except for the fact-proof fanatics at Powerline, who continue to insist that it's true.

As CNN reports, National Post has now categorically retracted the story and admitted that it's false:

A Canadian newspaper apologized Wednesday for an article that said Iran planned to force Jews and other religious minorities to wear distinctive clothing to distinguish themselves from Muslims. . . .

But the National Post, a longtime supporter of Israel and critic of Tehran, admitted Wednesday it had not checked the piece thoroughly enough before running it.

"It is now clear the story is not true," Douglas Kelly, the National Post's editor in chief, wrote in a long editorial on Page 2. "We apologize for the mistake and for the consternation it has caused not just National Post readers, but the broader public who read the story."

This article from Jewish Week -- headlined: "Anatomy of a Hoax: False story alleging special yellow insignia for Iranian Jews spurred by Wiesenthal Center's flawed confirmation" -- details how many pro-Israeli organizations (including AIPAC and the Simon Wiesenthal Center) pushed the story as hard as possible, while some exercised more caution. But the publication of the story by National Post, combined with the mindless and reflexive support of scores of neoconservative organizations and pundits intensely yearning for removal of the anti-Israeli regime in Iran, caused the false story to explode into the public dialogue. The Jewish Week article details the predictable fallout:

The ensuing media blaze was like a match thrown onto a tinderbox, starting with the National Post page one banner, headlined: "IRAN EYES BADGES FOR JEWS?" - followed within hours by blogs, wire services, radio reports, Rush Limbaugh and outraged press statements issued by Jewish groups carrying the news to millions.

And any doubt about the circles that spat up this false story are dispelled by this paragraph in that article:

Benador Associates, the public relations agency that placed the story with The National Post, is a boutique firm specializing in promoting neoconservative figures such as Taheri, Michael Ledeen, Richard Perle, Charles Krauthammer and others who supported the Iraq war and "regime change" in Iran now.

The same people who conjured up the cakewalks, Saddam's chemical stockpiles and mushroom clouds that led us into the Iraq disaster are now trying the same fraudulent tactics to induce Americans to get rid of the regime in Iran. But as the article details, all of those groups now recognize that the story was false. Indeed, the original newspaper publishing the story has not just retracted it, but said expressly that it is false.

But just as they continue to insist that Iraq had WMDs and elaborate contacts with Al Qaeda, Powerline is not going to abandon this claim just because every fact makes indisputably clear that it is false. No - they have a war to deceive people into, and nothing will take precedence over that. In an amazing post to which both Scott "Big Trunk" Johnson and John "Rocket" Hinderaker contribute, they insist that the crux of the story is true, and they even trot out their standard line by excoriating the "MSM" for covering up the story. Scott, for instance, says:

I am struck, however, by the lack of interest in the undisputed component of the law on which Taheri focused. Taheri reported that the the (sic) Iranian Majlis had adopted legislation that prescribed the clothing to be worn by Muslims . . .

Taheri also reported that the law "envisages separate dress codes for religious minorities, Christians, Jews and Zoroastrians." It is the latter element of the law that generated the furor, but I have not seen any report taking issue with Taheri's account of the pending imposition of an Islamic dress code. If such a dress code were to become effective, religiously based noncompliance (assuming it is permitted) would identify the offenders as non-Muslims or infidels. Along with Reuters and the Daily News, the mainstream media have overlooked this apparently troubling consideration.

Displaying his only talent, Rocket then takes the deceit one dishonest step further and adds this:

As Scott notes, it is hard to see how Iran can regulate the clothing worn by Muslims without also regulating the clothing worn by non-Muslims, either explicitly or implicitly.

There simply is no law in Iran that has anything to do with mandating what non-Muslims should wear. It does not exist. And it never did. And everyone acknowledges that except for Powerline. From Jewish Week:

[Israeli expert on Iran, Meir] Javedanfar told The Jewish Week he spent "about 40 minutes" talking to sources in and outside of Iran and, more importantly, getting the text of the legislation off the Internet. His review of the extensive parliamentary debate of the bill, also available online, showed that such a proposal was not even part of the discussion.

Indeed, the law's text and parliamentary debate, available in English from the BBC Service, discloses no provision mandating that any Iranians will have to wear any kind of prescribed dress. It instead focuses on promoting "traditional clothing designs" using Iranian and Islamic patterns by Iran's domestic fashion industry and preventing "the import of clothes incompatible with cultural Islamic and national values." The law is meant to develop and protect Iran's clothing industry, Javedanfar said.

At this point, the only way to claim that Iran has passed a law regulating the clothing which non-Muslims must wear is by lying. But that's exactly what Powerline is claiming. And four months from now, and six months from now, when the debate intensifies over whether the American military should forcibly change Iran's government, Big Trunk and Rocket will be writing posts insisting that Iran has a law requiring Jews and Christians to wear identifying clothing, and they will link to the post they wrote today setting forth the "rationale" which proves that, and scores of other warmonger pundits and bloggers will link to that post when arguing, with increasing urgency, that Iran is the new Nazi Germany and that those who oppose an attack on it are a bunch of appeasers who never learned the mistake of Neville Chamberlain and who don't care if another Holocaust occurs.

Even the extremists who peddled this story now admit that it's false. Only Powerline continues to claim that it's true. Isn't that fairly definitively proof of the complete lack of credibility, integrity and honesty of TIME's Blog of the Year? There is no limit on what they are willing to fabricate in order to justify their defense of the administration and to push the country to war with Iran. But if this patently dishonest insistence on clinging to a plainly false story isn't enough to compel their removal from mainstream respectability, what would be?

UPDATE: Taylor Marsh, who has done some substantial original reporting on this story from her blog, has a detailed and very interesting post today exploring the question of who bears original and ultimate responsibility for the manufacture and distribution of this false story. Be sure to follow the links to Taylor's other posts where you can see the chronology of her impressive journalistic involvement in this story.

Specter and Feinstein propose a ban on funding for all eavesdropping outside of FISA

(updated below - and again)

A generally reasonable -- and potentially quite significant -- bill was jointly introduced last night by Senators Arlen Specter and Dianne Feinstein. The essence of the bill is to mandate that any and all eavesdropping on U.S. persons on U.S. soil fully comply with FISA (which is really another way of saying that the Bush administration is required to comply with the existing law called FISA), and it also bars the use of any federal funds for any eavesdropping programs which do not fully comply with FISA.

A detailed summary of the bill from Sen. Feinstein's office is here. These are three of the principal provisions:

• Re-state that FISA is the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil for foreign intelligence purposes;

• Prohibit the use of federal funds for any future domestic electronic surveillance that does not fully comply with the law; and

• Expressly state that there is no such thing as an “implied” repeal of FISA laws. In other words, no future bill can be interpreted as authorizing an exemption from FISA unless it expressly makes an exception.

Although there is a link to a .pdf of the actual bill on Feinstein's site, it doesn't work, so I have not yet been able to review the bill itself. But I should have a copy shortly (see UPDATE below).

The principal benefit of the bill is that it (a) eliminates the ludicrous claim that the AUMF implicitly authorized the administration to eavesdrop in violation of FISA and (b) expressly bars any future claim that Congress "implicitly" provided an exemption from FISA. The bill also liberalizes FISA's procedures to rectify the allegedly cumbersome warrant procedures -- including by expanding the warrantless window period from 72 hours to 7 days, streamlining the paperwork procedures, and easing the emergency eavesdropping requirements. These changes are designed to remove the excuses made by the administration as to why FISA is inadequate or excessively burdensome. The bill also requires that the full Senate Intelligence Committee be briefed on all eavesdropping programs.

A few observations about this bill:

(1) For better or worse, Feinstein and Specter carry significant influence with regard to these issues. Feinstein is viewed as a moderate, at least, on intelligence and defense issues, and Specter is a Republican. The fact that they have jointly sponsored a bill prohibiting eavesdropping outside of FISA and blocking the AUMF claim is going to be a serious obstacle in the effort to resolve the NSA lawbreaking scandal.

(2) The fact that Specter has now actually sponsored legislation to cut off funding for the warrantless eavesdropping program -- as he vowed a couple of weeks ago he would do -- is plainly significant.

(3) It goes without saying that the administration believes it has the right to violate this law. In terms of the president's theories of lawbreaking, this bill is no different than FISA -- given the premise that he has the power to eavesdrop on Americans however he wants, he will claim the power to break this law every bit as much as he claims he has the power to violate FISA. But if this bill were to pass, it would remove one of the two legal justifications the administration has -- namely, that the AUMF implicitly authorizes warrantless eavesdropping -- and force them to rely solely on their lawbreaking theories. It would also force them to find a way to fund any non-FISA eavesdropping activities notwithstanding a Congressional ban on such funding.

(4) The largest unresolved question is how this legislation would interact with the other proposed, still-pending FISA amendments sponsored by Sen. Specter, Sen. DeWine and others. This latest Feinstein/Specter bill merely requires that eavesdropping comply with FISA, whatever FISA might allow. It does not ban warrantless eavesdropping. Thus, if Sen. DeWine's legislation were enacted, and warrantless eavesdropping were expressly allowed by FISA, this Feinstein/Specter legislation would not actually block the warrantless eavesdropping program in any way.

It is impossible to get a real read on where Specter is at the moment with all of these issues. I don't think he knows. But this morning's Congressional Quarterly (subscription req'd) details just how far away the Congress is from agreeing to a legislative solution:

The new approach is at odds with Specter's earlier legislation that would require the administration to seek approval from the special court for the entire surveillance program, rather than case-by-case surveillance.

Specter, R-Pa., has been haggling with the other Republicans on the Judiciary Committee over changes to his earlier bill, which the committee plans to mark up Thursday.

The other Republicans, particularly Jon Kyl of Arizona, want Specter to strip out language requiring the administration to seek the FISA court's approval for the program. They also want to delete several provisions of the 1978 law, including language that mandated it to be the "exclusive means" to conduct surveillance for foreign intelligence purposes. They also want to make the deletions retroactive to when the 1978 law was enacted.

Specter has circulated several draft substitutes to his earlier bill along those lines, but it's unclear at best whether he will agree to the changes demanded by other Republicans to move his legislation out of committee.

The panel has two other NSA-related bills on its schedule. One measure (S 2455), by Mike DeWine, R-Ohio, would subject the NSA program to more congressional oversight and give the administration the option of seeking approval from the secret court for surveillance of particular targets. The other bill (S 2468), by Charles E. Schumer, D-N.Y., would allow people who believe they could be targets of NSA surveillance to go to federal court to stop it.

Meanwhile, Senate Intelligence Chairman Pat Roberts, R-Kan., is busy working on his own measure regarding the surveillance program. Roberts intends to claim his
committee's jurisdiction over any measure that Specter's committee produces. Roberts has said Majority Leader Bill Frist, R-Tenn., wants Roberts and Specter
to work out any differences over their bills themselves.

Ultimately, Specter and Feinstein agreed to this bill not knowing what the new FISA -- if there is one -- would ultimately permit. So, its real purpose seems to be to force a showdown with the administration over the president's obligations to obey the law, whatever the law might mandate. It does that by removing the administration's excuse that Congress allowed it to violate the law (with the AUMF), and by exercising the Congress' undisputed constitutional authority to cut off funding for any program that exists outside of FISA. It therefore forces the administration's hand by making it much, much more difficult for the administration to eavesdrop in violation of the law. The bill, at its core, is really an assertion of Congressional power to regulate eavesdropping on American citizens on U.S. soil, combined with a strategic effort to block the administration from ignoring the law in the future by removing most of its defenses for doing so, and by banning any funding of non-FISA eavesdropping.

To the extent that this bill brings us closer to the necessary (and, in my view, inevitable) showdown over the Bush administration's refusal to obey the law, I think it is a step -- perhaps a significant step -- in the right direction. And the bill clearly signals that we are still very far away from any sort of resolution of the NSA scandal, which, by itself, is cause for optimism. Despite the disappointing and baffling events of yesterday with regard to Gen. Hayden, I do think that the beaten down, humiliated Congress smells a little blood over at the White House, and this step, tentative and modest though it is, could signal an increased willingness on the part of the Congress finally to demand that it once again play some actual role in how our government functions.

UPDATE: Thanks to Rachel Perrone of the ACLU, who has e-mailed me a .pdf version of the actual bill. The summary on Sen. Feinstein's site is quite accurate and comprehensive, but the bill itself seems even stronger than the summary suggests. The very first provision emphasizes that FISA shall be the exclusive means for eavesdropping -- one of the provisions which Bush's most loyal Senate allies are most devoted to eliminating. It also requires fairly thorough briefing on all eavesdropping activities to the full Intelligence Committees of both the Senate and the House.

Additionally, the bill specifically contemplates a warrant procedure, i.e., that eavesdropping require the approval of the FISA court, so it would be very hard to reconcile this bill with, for instance, Sen. DeWine's bill allowing warrantless eavesdropping. This bill seems to signal that Sen. Specter is committed to prohibiting any eavesdropping without the approval of a FISA judge.

UPDATE II: Sen. Specter's statement regarding the bill is here. Characteristically, he includes a provision speculating that his own bill might be unconstitutional for daring to regulate the eavesdropping activities of the President. Sen. Specter is never going to change his behavior; it is too deeply engrained in his character. But the fact that this is a very positive development does not rely upon the strength of Sen. Specter's convictions, but upon the fact that there is serious resistance in the Congress to allowing the White House to force an easy resolution of this scandal which shields them from accountability for their past lawbreaking.

UPDATE III: An online .pdf of the Feinstein/Specter bill is here (h/t EJ).

Any differences between Democrats in 2003 and today?

(updated below)

Democrats on the Senate Intelligence Committee yesterday essentially assured that President Bush's nominee to head the CIA, Gen. Michael Hayden, would not only be confirmed by the full Senate, but confirmed overwhelmingly. That's because a majority of the Democratic Committee members (along with, needless to say, all of the Committee Republicans) voted in favor of confirming Gen. Hayden:

The Senate Intelligence Committee strongly endorsed Gen. Michael V. Hayden on Tuesday to be the next director of the Central Intelligence Agency, with all but three members, all Democrats, voting to send General Hayden's nomination to the Senate floor.

The panel's 12-to-3 vote virtually guarantees that General Hayden will win confirmation by the full Senate, which is likely to vote on his selection before the end of the week.

Four committee Democrats joined all eight Republican members in endorsing the general. Senator Pat Roberts, Republican of Kansas and the panel's chairman, called General Hayden "a proven leader and a supremely qualified intelligence professional."

The committee's vice chairman, John D. Rockefeller IV, Democrat of West Virginia, said General Hayden had shown "the necessary independence that is essential to restoring the C.I.A.'s credibility and stature."

Given the similarities, it sounds like Pat Roberts and John Rockefeller drafted their statements together, which is nice. Four Democrats -- Feinstein, Rockefeller, Levin and Mikulski -- voted for Hayden and then praised him lavishly. Three Democrats -- Feingold, Wyden and Bayh -- voted against him.

Although it's hardly surprising, this result is still rather extraordinary. Gen. Hayden ought to have been seen as the most defiant and inflammatory nominee possible for the President to have made. He was, after all, the Director of the NSA at the time it implemented its illegal warrantless eavesdropping program as well as its massive data-collection schemes, and he is a True Believer in the theories of presidential power which hold that the President has the right to violate the law. And he wasn't nominated to be the Agriculture Secretary, but the Director of the CIA -- probably the very worst position you would want someone to occupy with that history of surveillance lawbreaking and that system of beliefs regarding the rule of law.

But no matter. Thanks to the generous and always-accommodating Senate Democrats, this nomination will be trouble-free for the President. This series of events led John Cole yesterday to make this insightful observation:

While I miss not spending as much time reading blogs, writing as many posts, and commenting on other blogs, stepping back from it all has allowed for some clarity regarding the current political system. When I was immersed in blogs, I felt that the Democrats were having some success blocking the current administration, but when I look back, I was just fooled by the current game. The Hayden nomination is a perfect example.

When he was nominated, a few people had fits, a chorus of echoes emerged, and then there appeared to be a popular effort to block his nomination. And then time went by, and now it looks increasingly like he will be confirmed, as everyone has moved on to something else- “Look- a Rabbit!”- as everyone gets all worked up about the FBI raiding Rep. Jefferson’s office or whatever the issue du jour might be.

And if you look back on things, that is how it has been since the beginning of this administration- they do what they want, Democrats throw up an opposition that is of varying degrees of tepidness (did I just make that word up?), a few ‘maverick’ Republicans cross lines (briefly), and then the administration gets what they want.

Rinse and Repeat. . . . In short, while immersed in the blogosphere, you get the feeling that the political climate is changing, but if you step back and look at the big picture, it looks much more like the SSDD.

It is very hard to argue with that. There was already ample grounds for attacking the Hayden nomination when it was announced, and then, right in the middle of it, an all new, highly controversial, likely illegal NSA program was revealed for which he was responsible. But that was barely a speed bump in the harmonious, smooth sailing of his confirmation.

For all the talk of the weakened and impotent presidency and the split among Republicans, it is still virtually always the case that the President gets what he wants, and does so without much difficulty. The few times he fails to -- Harriet Miers, the Dubai Port deal, anti-torture legislation -- is because Republicans, not Democrats, take a stand against the White House.

But by and large, what happened yesterday with Gen. Hayden's nomination is exactly what would have happened in 2002 and 2003. Democrats are afraid to challenge the President due to their fear -- always due to their fear -- that they will be depicted as mean, obstructionist and weak on national security. And so, even with an unbelievably weakened President, and even with regard to the most consequential issues -- and can one doubt that installing Gen. Hayden as CIA Director is consequential? -- Democrats back away from fights, take no clear position, divide against each other, and stand up for exactly nothing.

It is quite possible that Democrats would not have been able to stop Gen. Hayden's nomination. It is true that they are still in the minority and thus are limited in what they can achieve legislatively. But that's really irrelevant. Gen. Hayden is a symbol and one of the chief instruments and advocates of the administration's lawlessness. He refused to say in his testimony even whether he would even comply with the law. Opposing his nomination is both compelled by a principled belief in the rule of law as well as justified by the important political opportunity to highlight this administration's lawbreaking. Sen. Feingold, as usual, shows how this works:

The Democrats who voted against the nomination were Russell D. Feingold of Wisconsin, Ron Wyden of Oregon and Evan Bayh of Indiana. Each cited concerns about General Hayden's role in a controversial domestic surveillance program he ran while head of the National Security Agency.

"I am not convinced that the nominee respects the rule of law and Congress's oversight responsibilities," Mr. Feingold said.

In other words, there are serious questions about whether Gen. Hayden will comply with the law and whether he believes in the rule of law, so perhaps it's not a good idea to install him as CIA Director. Is there some reason Democrats were afraid to make that clear, straightforward, critically important point?

Yet again, Senate Democrats show that they have no more concern for the rule of law and for the excesses of this administration than Senate Republicans do. Due to their really pitiful passivity, they are every bit as much to blame for the excesses and abuses of the administration as the compliant Republicans are.

I've written before that, at least to me, the principal if not exclusive benefit of the Democrats taking over one or both of the Congressional houses in November is that it will impose some checks and limitations on the behavior of the administration and, specifically, will finally result in meaningful investigations into what has happened in our country and to our government over the last five years. But I have serious doubts about whether that would really happen.

After November, 2006, the presidential elections are not far away. The same paralyzing, stagnating, fatally passive Democratic voices who always counsel against standing up to the administration aren't going anywhere. It is not hard to imagine what they will be saying:

President Bush is a lame duck who is out in 2008, and so it doesn't matter what he got away with or what he did. Conducting investigations into these intelligence and ”anti-terrorist” scandals will be depicted as obstructionist and weak on national security, and will jeopardize our chances to re-take the White House and will cost us House and Senate seats. It is best to look forward, not to the past, and not be seen as conducting vendettas against the lame duck President. What matters is taking the White House in 2008 and so there is no reason to attack the President on these matters of the past.

Is there any doubt that the likes of Senators Feinstein, Rockefeller, Levin, etc. are going to follow that thinking, as they always do? I don't see how that can be doubted. I think Congressional Democrats will be more cautious and passive, not less so, if they take over one of the Congressional houses in 2006. People who operate from a place of fear and excess caution become even more timid and fearful when they have something to lose. The Democratic Congressional Chairs are going to be desperate not to lose that newfound power, and they will be very, very vulnerable to the whiny whispers of the consultant class that they should not spend their time and energy investigating this administration or vigorously opposing them on national security matters.

John Cole is absolutely right that Democrats have managed to change virtually nothing as a result of the collapse of the Bush presidency. That's because they think the same and behave the same as they did when they were getting pushed around by Bush as a highly popular “war president.” As a result, there is no reason to believe they will be any better than they are now (and have been for the past four years) if and when they take over one or both Congressional Houses. One could make a compelling case that they will be even worse.

UPDATE: Digby elaborates on several of the issues in this post and, in doing so, says this:

Glenn thinks that here in our blogospheric bubble it appears that things are changing when they aren't. I have to disagree a bit with that. It's true that the blogospheric bubble often gives the false impression that there is more momentum on our side than there actually is. I suspect that true inside any movement or campaign where you spend most of your time with fellow travellers. But that doesn't mean things aren't changing. We are now a factor. They may hate us, fear us and dismiss us, but we're here and we aren't going anywhere. (Say it loud, I'm blog and I'm proud!)

My reference (really, John Cole's reference) to the "blogospheric bubble" was based on the fact that events seem to change more radically than they really do if one is in the blogosphere and closely following every small event. If one read only the blogosphere, one would think that the Bush presidency is devoid of any residual power, but the Democrats' unwillingness to fight against the Hayden nominee illustrates that things have changed far, far less than one might think.

But I agree entirely with Digby about the blogosphere's impact and especially its potential to develop and exert much more influence. In fact, the only reason why I believe that things can change fundamentally is because of new mechanisms like the blogosphere which enable citizens to communicate directly with one another -- and work in concert with one another -- without having to rely upon the corrupt, soul-draining media and Beltway political institutions. If meaningful change is going to occur -- and I believe it will -- it will be because Americans find ways collectively to exert sufficient pressure to demand that they change -- not because our current broken institutions, including the Democratic Party, are suddenly going to be cleansed and transformed on their own.

Book issues

(updated below)

Several items regarding How Would a Patriot Act?:

(1) I can only laugh at the petulant complaints over at National Review and elsewhere that no liberal bloggers have reviewed or discussed Ramesh Ponnuru's anti-abortion screed, Party of Death. Kevin Drum summarized quite well many of the reasons why Ponnuru's book isn't the earth-shattering literary event which National Review, Ann Coulter and Peggy Noonan have been claiming that it is. Atrios and Ezra Klein add some thoughts to Kevin's argument.

Beyond that, though, it is hardly the case that right-wing bloggers lavish attention on books which advance arguments with which they disagree. Despite the fact that my book's blogger-based ascent to the top of the Amazon Best Seller List is itself a blogosphere story -- and was prominently featured as such by The San Francisco Chronicle and Publishers Weekly, among others -- not a single conservative blogger as much as mentioned the book in passing, let alone reviewed it. My book is a blogosphere book, and has sales far in excess of Ponnuru's book almost exclusively as a result of blogger promotion and blogospheric word of mouth. But if you only read right-wing and pro-Bush blogs, you would have no idea that the book even existed, because not a single one of them has even mentioned it, let alone reviewed it.

Approximately a month ago, my publisher e-mailed several conservative bloggers asking if they would be willing to review the book on their blog or elsewhere (and obviously offered to send a review copy of the book), and not a single one was willing to do so. Byron York did write an article in National Review on the book's pre-release marketing success, but York hadn't even read the book yet (because it hadn't been released) and said nothing about its content other than to dismiss it as "an indictment of George W. Bush of the sort that has become commonplace on the Left in the last few years."

Most right-wing blogs studiously ignore what takes place outside of their self-referential circle. I read the Corner almost every day and can't recall a single liberal book that was ever mentioned there even in passing, let alone reviewed -- not Crashing the Gate, not the books by Tom Tomorrow or David Sirota, not Eric Boehlert's recently released Lapdogs. To hear them complaining that liberal blogs aren't paying sufficient attention to Ponnuru's anti-abortion book is really just bizarre.

(2) Although the book tour has not started yet (it begins June 5 at the University of Florida, followed by various San Francisco events beginning on June 6, and then Las Vegas, Washington, New York, Boston and New York again - with several changes/additions possible), I have been doing one radio interview after the next almost on a daily basis, and Working Assets has begun actively promoting the book. As a result, the book has returned to the Top 100 on Amazon, and has risen to #2 on Powell's Best Seller List. The current goal for elevating the visibility of the book is to ensure that it debuts on The New York Times' Bestseller List, something which, according to those who understand these things, seems likely (though not certain) based on the book's selling trends.

(3) Over the next couple of days, Jennifer Nix of Working Assets is going to write posts on various blogs, including this one, suggesting ways for how those who are inclined to help promote the book can do so. How much of an impact the book can have is obviously a by-product of how much attention it receives, which, in turn, is determined by how well it sells. One way to begin is for those who have read the book to leave reviews on Amazon and other online retailers. Apparently, informative reviews -- especially those written by people who seem to have actually read the book -- can play a significant role in helping to promote the book.

UPDATE: Jennifer Nix has a post up at FDL documenting how the publishing industry looks at the blogosphere (not with great fondness, unsurprisingly). One of the FDL commenters, Tony Finnerty, provided a link for a Letter to the Editor he wrote, which was published by his local Nevada newspaper, regarding the new NSA data-collection progarm, in which he mentioned How Would a Patriot Act? In general, writing Letters to the Editor and particuarly Op-Eds in local newspapers is an under-utilized method for influencing public political discussions.

Snapshots of the U.S. under the Bush administration

Several articles and events over the past couple of days provide a thorough picture of what the U.S. is becoming, and has become, under the Bush administration:

Increasingly, there is simply no role for courts to review the President's actions, nor for citizens to challenge the legality and constitutionality of those actions. A month or so ago I wrote about the administration's rapidly increasing use of the "state secrets privilege" -- once a rarely invoked weapon used by the Government to prevent litigation from exposing critical national security secrets, but now something which the Bush administration routinely exploits to prevent any legal challenge to its behavior. As lawyer Henry Lanman details in Slate today:

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

The Bush administration has now invoked this doctrine in virtually every pending legal proceeding devoted to challenging the legality of the warrantless NSA eavesdropping program - all but assuring, yet again, that no court can rule on the legality of that program. The administration also just used the same tactic to compel dismissal of a lawsuit brought by Khalid El-Masri, a German citizen who alleges -- with the support of German prosecutors -- that the U.S. Government abducted him, drugged him, flew him to multiple different torture-using countries as part of the administration's "rendition" program, only to then release him after five months when the U.S. realized it had abducted the wrong person. There is no dispute about the accuracy of El-Masri's allegations:

This year, German investigators confirmed most of Masri's allegations, which have received extensive publicity in Europe.

In December, during a joint news conference with Secretary of State Condoleezza Rice, German Chancellor Angela Merkel said Rice had admitted the mistake.

But no matter. The Bush administration believes that its actions -- like the court of the British King -- are above being scrutinized by some lowly federal court or subjected to principles of law intended only for plebeians. As courts almost always do, the Federal Judge in El-Masri's case deferred to the administration's "state secrets" claim and dismissed the lawsuit. The Bush administration used the same maneuver last year to compel "dismissal of a lawsuit by a Canadian citizen who claimed that he was taken to Syria by U.S. officials for detention and was tortured."

So the Bush administration goes around the world abducting other countries' citizens and torturing them. It then claims that the legality of its actions cannot be judged by anyone -- even American federal courts -- because American national security would be harmed if its actions were subjected to such review. Under the circumstances, it is so very difficult to understand why the rest of the world mocks, ridicules, and scoffs at the Bush administration's lectures to the world about principles of freedom and democracy, along with the administration's belief that it can even invade other countries around the world in order to impose what it understands to be "freedom and democracy."

Yesterday, President Bush gave a speech in Chicago on immigration and the "war on terror," and took questions afterwards. In response to a question about Venezuela and Bolivia (where the new leftist Government has begun nationalizing oil and gas resources, including breaking contracts with and expelling Latin American companies), the President issued this lecture to South America:

I am going to continue to remind our hemisphere that respect for property rights and human rights is essential for all countries in order for there to be prosperity and peace. I'm going to remind our allies and friends in the neighborhood that the United States of America stands for justice; that when we see poverty, we care about it and we do something about it; that we care for good -- we stand for good health care.

I'm going to remind our people that meddling in other elections is -- to achieve a short-term objective is not in the interests of the neighborhood. . . . I want to remind people that the United States stands against corruption at all levels of government, that the United States is transparent. The United States expects the same from other countries in the neighborhood, and we'll work toward them.

Thank you very much. I'm concerned -- let me just put it bluntly -- I'm concerned about the erosion of democracy in the countries you mentioned.

Who has less credibility to deliver these sermons to the world than George Bush? The stories of the U.S. abducting people, torturing them, and then blocking any judicial review of its behavior are read around the world. Photographs from Guantanamo and Abu Ghraib are ingrained in the minds of anyone around the world with a television set, as is the Bush administration's insistence that it is unbound by the Geneva Conventions and legal prohibitions on the use of torture. The threat by Alberto Gonzales over the weekend to imprison American journalists was reported prominently in international newspapers, as are stories of the U.S. Government eavesdropping on its own citizens in secret, the creation of secret Eastern European prisons, and the general lawlessness which has prevailed in this country since September 11.

In Brazil last week, an organized crime faction in São Paolo launched a wave of extremely violent, terrorist-like attacks on the city's police stations, banks, hospitals, and transportation systems, killing scores of police officers and creating havoc in that city for days. In response, the São Paolo Police engaged in what appears to be all sorts of reprisals against the gangs, including summary executions and indiscriminate killings of male youths in the gangs' principal neighborhoods.

The ensuing debate among Brazilians almost invariably emphasized the need to avoid giving into the emotional temptation to engage in extreme behavior, violate human rights, and abandon any principles of restraint in responding to the gang attacks. And, by far, the most commonly cited example of the dangers of those temptations is the manner in which the U.S. responded to the 9/11 attacks -- by torturing people, invading countries with no connection to the attacks, and generally abandoning the principles and values which had previously defined the country's sense of justice. When one wants to illustrate the hazards of abandoning all restraint in the face of an outrageous act, the U.S. is the example which now most readily springs to minds around the world.

As we lecture the world about the need for transparency and democracy, and as we continue to proclaim that our foreign policy is based principally on the objective of spreading our ideas about democracy to other countries -- even by military invasion, if necessary -- the U.S. has become a symbol of human rights abuses and anti-democratic measures around the world. We have squandered almost every molecule of moral credibility which we justifiably possessed for most of the 20th Century, particularly since World War II. In so many ways during the last five years, we have become a country which engages in those very practices which always characterized other countries, the ones we were grateful not to live in because they failed to protect the liberties and principles which defined the United States.

A detailed profile in this week's U.S. News & World Report of David Addington, Dick Cheney's top advisor who is a sightly more extreme version of John Yoo, provides the perfect snapshot which conveys why this has all happened:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington's involvement made for a formidable team. "You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power," says a former Justice Department official. "If you suggested anything less, you were considered a wimp."

The crux of the Bush administration for the last five years has basically been a competition of contrived, cheap manliness where the winner is he who can wage the most aggressive and fundamental war on American principles of government which have defined our country since its founding. Vesting increased power in the Commander-in-Chief and compiling ever-increasing powers of secrecy have been the only two principles with any recognized value. Those most steadfastly loyal to those two objectives have flourished and consolidated power. As a result, the role of the judiciary and the Congress in our system of government has never been smaller, while the power of the President has never been greater. And the greatest enemy of the administration are checks and balances of any kind -- whether from Congress, the courts or the media.

What the WSJ and Instapundit really mean by "the Angry Left"

One could spend every day highlighting the contrast between the pious moral standards preached by many Bush supporters and the lowly character smears and political filth they peddle. But sometimes their hypocrisy is so severe that it makes one's head spin, and at least I have great difficulty ignoring it even when an argument can be made that it should be ignored.

This weekend, there was much petulant hand-wringing on the Right over the terrible breaches of etiquette and civility exhibited by the New School students against the great war hero John McCain. National Review's Rich Lowry, for instance, wrote multiple posts protesting the students' behavior, and decried their conduct as "amazing" and "incredible" because McCain is a "war hero."

Lowry sermonized against the student's conduct even though, as I pointed out in a post on Saturday, Lowry said nothing about the continuous mockery by the Bush campaign of war hero John Kerry's war wounds and military service, including the waiving of purple band-aids at the Republican National Convention, nor did Lowry condemn the ongoing attacks on the patriotism and courage of war hero Jack Murtha. And Lowry specifically defended the invocation of Osama bin Laden and Saddam Hussein in commercials against wounded combat veteran Max Cleland, dismissing complaints about such attacks on Cleland's commitment to the nation's defense as mere "whining."

Lowry responded today to my post by claiming that I "kind of misse[d] the point" of his post. The "point," Lowry claimed, is that heckling someone during a speech is just "rank incivility," and should be condemned any time it's done. Rather than missing the point, that was the point I made -- that it's a completely perverse "civility" standard which holds that it's fine to attack a war hero's patriotism, impugn their allegiance to the country, question their courage, and mock their war wounds -- as Bush supporters routinely do -- but that it is somehow intolerable to heckle them while giving a political speech.

That is the same twisted form-over-substance preaching which causes mainstream journalists to overlook constant Right-wing accusations that "liberals" are subversive, mentally ill traitors who belong in prison -- nothing angry or uncivil about any of that -- but they find a vulgar word in an e-mail to be proof that the Republic is about to collapse because of the death of civility and the "Angry Left."

Pumping this theme further, The Wall St. Journal today published an Editorial helpfully explaining to Democrats that their behavior towards John McCain was going to cause them to lose more elections:

But the ugliness of the New School crowd toward Mr. McCain reveals the peculiar rage that now animates so many on the political left. Dozens of faculty and students turned their back on the Senator, others booed and heckled, and a senior invited to speak threw out her prepared remarks and mocked their invited guest as he sat nearby.

So, that's the behavioral standard that Bush followers are advocating. The greatest sin against civility is to boo someone while they give a political speech, and those who do that show that they are deranged and "angry" and are therefore acting at their own peril.

Last week, Democratic Rep. Lacy Clay of Missouri delivered the Commencement Address at the University of Missouri. Unlike McCain, who spoke in favor of the war, Clay spoke against the war. He also criticized The Commander-in-Chief. According to Gateway Pundit -- who describes the event with giddy celebration -- this is what ensued:

Representative Lacy Clay Jr. gave such a hate-filled speech last Saturday morning at the University of Missouri St. Louis campus that he had to stop three times during his talk because the boos from the crowd had drowned him out! But unlike Murtha, Lacy Clay needed security to escort him from the building after he was through with his Bush-bash!

So pro-Bush students heckled Rep. Clay's speech and were so disruptive that the Congressman actually needed security to escort him out of the building for fear that his physical safety would be endangered. Does that show that the Angry Right is deranged and is jeopardizing their chances to win elections? No, it shows the opposite. This incident also shows how deranged the Angry Left is.

According to Instapundit -- who cited the Gateway Pundit post and said that "a Hateful anti-war speech by Rep. Lacy Clay (D-MO) . . . provokes a near riot" -- this episode "[s]eems to illustrate the point made in this WSJ editorial about the Democrats' penchant for self-marginalization and self-destruction." The WSJ Editorial to which Instapundit cited condemned the heckling and booing by the New School students of McCain's speech. But to Instapundit, that same Editorial also shows that Democrats are acting stupidly and angrily when they give commencement speeches and are heckled by Republican students to the point where they need security to be escorted out.

Gateway Pundit also points out how hateful Jack Murtha is, because he, too, has been giving anti-war speeches -- including at Commencement ceremonies -- where he forces Republican students in the audience to heckle, walk out and act disruptively. How come Rich Lowry wasn't decrying the terribly uncivil conduct towards war hero Jack Murtha? At least according to Instapundit's rationale, it's because it is the anti-war speeches themselves that are hateful -- not the student's understandable reaction -- and so the speech and the speaker are to blame for provoking the disruptive behavior of those patriotic pro-war students.

So, to re-cap the rules: (1) When a pro-war politician gives a pro-war speech as part of a graduation ceremony, and students in the audience heckle and boo him, that shows how Deranged the Angry Left is -- because they heckled a pro-war speech. (2) When an anti-war politician gives an anti-war speech as part of a graduation ceremony, and students in the audience heckle, walk out and even riot, that also shows how Angry the Left is -- because they "provoked a near riot" by pro-war students.

One last point that can't go unnoticed: part of the WSJ Editorial that Instapundit quotes warns that Democrats are going to be in big trouble because they are "sneering at our war heroes." That is almost too much hypocrisy to stomach, even for Instapundit. Who has "sneered at war heroes" more viciously and continuously than Bush supporters -- from Jack Murtha to John Kerry to Max Cleland to the war critic Generals? Sneering at war heroes was one of the principal tactics of the Bush re-election campaign and has been a reliable tool to attack and smear any war hero who speaks out against this administration.

Virtually on the same day, Bush followers are arguing that the Left is deranged and angry because: (a) they boo Republican commencement speakers and because (b) they cause Republican students to boo them and riot at commencement ceremonies. When the likes of Instapundit and the Wall St. Journal Editorial Board rail against the "Angry Left," what they mean are "people who oppose the war in Iraq and criticize the Commander-in-Chief." As long as Democrats remember that that description includes the vast majority of Americans, they should have no difficulty ignoring this pious hypocrisy, which always deceitfully masquerades as an oh-so-earnest effort to help Democrats do better in the upcoming election ("if only you would be more like Joe Lieberman and stop criticizing the war and the President, you wouldn't be perceived as so angry and you'd have a much better chance to win").

Imprisoning journalists

Other than the fact that the President believes that he has the power to break the law and has been continuously exercising that power, the issue about which I've written most on this blog is the sweeping and dangerous attacks by this administration on investigative journalism. Those two issues are quite related, as the latter is intended to conceal and thus enable the former.

The administration's assault on a free and vital press took a huge leap forward this weekend, when Attorney General Alberto Gonazles announced on national television that the Bush administration has the power to imprison journalists who publish stories revealing conduct by the President which the administration wants to conceal (such as the warrantless NSA eavesdropping program, which he specifically cited). Gonazles went further and made clear that the administration is actively considering prosecution against journalists who publish such stories. The video is here.

It really is hard to imagine any measures which pose a greater and more direct danger to our freedoms than the issuance of threats like this by the administration against the press. If the President has the power to keep secret any information he wants simply by classifying it -- including information regarding illegal or otherwise improper actions he has taken -- then the President, by definition, has complete control over the flow of information which Americans receive about their Government.

An aggressive and adversarial press in our country was intended by the founders to be one of the most critical checks on abuses of presidential power, every bit as much as Congress and the courts were created as checks. Jefferson said: "If I had to choose between government without newspapers, and newspapers without government, I wouldn't hesitate to choose the latter." The only reason the Founders bothered to guarantee a free press in First Amendment is because the press was intended to serve as a check against Government power.

And the only reason, in turn, that the press is a check against the Government is because it searches for and then discloses information which the Government wants to keep secret. That is what investigative journalism, by definition, does. The Government always wants to conceal its wrongdoing from the public, and the principal safeguard in this country against that behavior is an adversarial press, which is devoted to uncovering such conduct and disclosing it to the country.

Virtually every issue of political controversy during the Bush administration has been the result of the disclosure to a journalist by a concerned Government source that the administration is engaging in illegal, improper and/or highly controversial conduct. Whatever criticisms one wants to make of the American press -- and such criticisms are numerous -- it is still the case that what we do know about this Administration's conduct is the result of the press. Literally, if George Bush had his way -- if government sources were sufficiently intimidated out of disclosing classified information and journalists were sufficiently intimidated out of writing about it -- we would not know about any of these matters:

* Abu Ghraib

* The Bybee Torture Memorandum

* The use of torture as an interrogation tool

* The illegal eavesdropping on Americans without warrants

* The creation of secret gulags in Eastern Europe

* The existence of abundant pre-war information undermining and even negating the administration's WMD claims

* Policies of rendering prisoners to the worst human rights-abusing countries

Our Government would be engaging in all of this conduct, and worse. But we would not know about any of it. We would just be going merrily along our way, completely ignorant of the fact that the Bush administration has undertaken the most unimaginably radical and disturbing conduct in the name of the United States. We would all be Hugh Hewitt and John Hinderaker -- incapable of doing anything other than obediently praising the Commander-in-Chief and reciting the view of the world which the administration wants us to have because we would not know any better.

If this world were implemented, the only information about the Government which we would have is the information which the Bush administration wants us to have -- i.e., information which reflects well on it and which enhances the Glory of the president. Any information which reflects poorly on the president or which reveals any of his controversial and improper behavior would be concealed.

The only "leaked" information which we would ever hear is information which bolsters the administration's views (such as pre-war claims by Ahmed Chalabi about the existence of Iraqi chemical weapons) or which depicts the President as Our Hero and Protector (like the time he saved the “Liberty Tower” from destruction, or the way he ordered an innovative high-tech scheme to detect unusual levels of radiation in our neighborhood mosques). But leaks which the administration doesn't want us to know because they politically harm the president would never happen because those who are privy to such information (government employees and journalists alike) would be too fearful of criminal prosecution to inform us about it.

That is what this is all about. There is not a single instance -- not one -- which reflects any harm to our national security as a result of any of these disclosures. The press goes out of its way to avoid disclosing information which could harm national security -- the Times concealed all operational details of the NSA program when it disclosed that the President was eavesdropping without warrants and the Post concealed the location of the secret gulags in Eastern Europe when reporting that they existed. These disclosures trigger public debate over highly controversial matters and, as a result, often harm the President politically. But none of them is an example of gratuitous disclosure of secret information intended to harm national security.

That is how our country has operated for at least the last century, through two world wars and scores of other military conflicts. The press reports classified information to the extent that doing so brings to the public's attention legitimate matters of political debate, and it exercises self-restraint by concealing information which could harm national security and which is unnecessary for the debate to be had. And unlike many other countries whom we have never (until now) aspired to copy, we do not threaten journalists with prison or prosecute them for publishing such stories, precisely because that conduct is a critical and necessary component of the checks and balances which preserve liberty in our country.

It ought to go without saying that the press cannot serve as a check against the Executive branch if the only information it publishes is information which the President wants it to publish. Then the press becomes Pravda, existing solely to pass along information to citizens which the Government wants it to convey. That's the world where the administration wants Americans to believe that we have to wage war against Iraq to rid it of its WMDs, and so selectively “leaks” to Judith Miller the information which bolsters that claim while concealing the information which undermines it. And the Government's claims then are printed on the front page of The New York Times under the guise of independent reporting, without any contrary information being disclosed.

When the Government can control which information is disclosed and which information is concealed, newspapers become a government propaganda venue -- an arm of the Government -- rather than any meaningful check on it. I've cited this Jefferson warning several times before, and included it in my book, because it is so prescient and so self-evidently applicable to the Bush administration:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

There simply is no American president, at least in the last century, who has waged war against a free press the way George Bush has. Not even close. Not even Richard Nixon, who hated the press with a consuming passion, tried to imprison journalists. And there is a reason why the Bush administration has as its highest priority these attacks on the press. And Jefferson told us the reason why: because the press is the "first shut up by those who fear the investigation of their actions."

Even during World War I, the Congress refused to include in the Espionage Act of 1917 a provision which Woodrow Wilson wanted to allow criminal prosecution against any journalists who -- in a time of war -- disclosed information which the President deemed to be "of such character that it is or might be useful to the enemy." (h/t Cynic Librarian). The debate regarding that amendment makes abundantly clear that it was rejected because the grave dangers from stifling an aggressive and free press -- even during war -- far outweigh the “benefits” of eliminating one of the sole checks on the Government's ability to control the flow of information.

Why were we able to defend our national security throughout the 20th Century without imprisoning journalists? Why have we suddenly reached a point where our Government is too weak to defend our country without trying to stifle a free press by threatening journalists with imprisonment? Why can't George Bush defend the country without destroying almost every traditional institution and practice in our country to which presidential administrations of both parties have, for decades if not longer, managed to adhere?

A prohibition on imprisoning journalists for fulfilling the function which the Founders intended is just another defining tradition and principle of our country which the Bush administration is attempting to dismantle. Whether they actually prosecute journalists or not, the threat to do so -- combined with the knowledge that they possess the means to investigate their telephone calls -- by itself has a highly damaging deterrent effect on vigorous investigative journalism. This administration is obsessed with eliminating the few remaining checks on their ability to operate in secret, and there is nothing which can advance that goal more than official threats of imprisonment of journalists -- which, as amazing as it is, is exactly what happened this weekend.

UPDATE: One of the most striking aspects of these escalating attacks on the press is just how silent the major media outlets are about any of this. The Attorney General threatened journalists with prison this weekend on national television. Shouldn't the Times and the Post be editorializing against those threats, at the very least? And yet, from what I've seen today, no newspaper has published an editorial response to the administration. Just silence.

Roll out the Chocolate and Marion Barry insults

There certainly does seem to be a substantial amount of interest in the blogosphere over the re-election of Ray Nagin as Mayor of New Orleans. Mayoral elections of mid-sized cities usually generate virtually no national attention. Obviously, both Nagin and New Orleans became topics of national interest as a result of Hurricane Katrina, but the anger in some circles over the decision of New Orleans residents to re-elect Nagin as their mayor seems far more intense than it ought to from a strictly rational perspective.

And it isn't just the anger over his re-election that is so notable but the way in which that anger is being expressed. Many pro-Bush bloggers who expressed anger about Nagin's re-election did so in overtly racial terms.

The most-cited post on this topic was this one by Paul "Deacon" Mirgenoff of Powerline, who, for some indiscernible reason, analogized Nagin to the multiple felon and crack addict Marion Barry, ex-Mayor of Washington, DC:

Having witnessed Marion Barry repeatedly elected mayor of Washington, D.C., I can't say I'm surprised at Nagin's success. Re-electing an unsuccessful or disgraced mayor apparently can become a source of civic pride, particularly when the racial politics are right.

Gateway Pundit has a post with the hilarious title "Chocolate City Keeps its Flavor," the very first line of which repeats the hilarity: "Ray Nagin was re-elected Mayor of Chocolate City yesterday." After assembling the list of Nagin's alleged acts of incompetence, GP finally comes out with it: "Or, maybe, it was really a simple black and white thing." He then cites to Deacon's Marion Barry analogy. Independent Conservative announces in the title of his post: "Now the Poverty Pimps Will Stop Crying About the New Orleans Election." The consensus is that the people of New Orleans are clearly just "stupid."

It is certainly true that Nagin made some race-based appeals as part of his re-election campaign, including comments like this:

"This city will be a majority African-American city. It's the way God wants it to be," Nagin said. "You can't have it no other way. It wouldn't be New Orleans."

He also called New Orleans a "chocolate city" and pledged that it "will be chocolate at the end of the day." There are certainly legitimate grounds for criticizing comments like that, and many of his allies in New Orleans, including many who are black, did exactly that. That's all fair enough.

But this spewing of racially-tinged anger over Nagin's re-election is both childish and ugly. These bloggers having their fun with "chocolate" and "flavor" jokes think they have a built-in defense for speaking that way (namely, Nagin's use of those terms), and so, like an 8-year-old who discovers some excuse for using a bad word, they just revel in it over and over. The second they think there is an opportunity to spew all sorts of racially-tinged bile, they take it. And thus, a mayoral election is spoken of in terms of "poverty pimps" and "chocolate cities" and overt claims that he was only elected because he's black.

Beyond that, the comparisons to Marion Barry are as baseless as they are telling. Barry is known for all sorts of behaviors that have long been at the crux of ugly racist stereotypes -- he's a drug addict who has been caught on camera using crack with hookers in a downtown hotel, and he then encountered all sorts of allegations of financial impropriety in connection with his political office.

None of that is true for Nagin. Nagin and Barry have nothing in common other than that they are black Mayors. It would be like comparing every white Southern Governor to Lester Maddux, or every white evangelical Christian male to Jim Bakker or every white Southern male to David Duke. It's deliberately inflammatory, and it purposely seizes what they perceive is an opportunity to traffic in racial stereotypes which they normally are too afraid to voice.

The people commenting on this municipal election have no idea why Nagin was re-elected. There are all sorts of reasons why that might have happened. Perhaps the voters thought he was not to blame for what happened with Katrina. Perhaps they thought he was heroic in how he stood up to the Federal Government and pinned the blame where it belonged. Perhaps they thought he did the best he could and was satisfied with his governance in other areas. Perhaps they had no faith in his opponent that he could do better. Those who are claiming that he was re-elected by a bunch of stupid black voters strictly on racial grounds have no idea whether that's true and they don't care either.

All they know is that they excitedly see an opportunity where they think this sort of spiteful racial commentary -- which is normally beyond the bounds of what is acceptable -- is permissible here, and they can't pass up the chance to spew playground epithets about Ray Nagin's race and about the intellectual level of the voters who re-elected him. These ugly sentiments are never far from the surface in many people and it doesn't take much for it to come spewing forth.

Various items

A few short items of note:

(1) Does President Bush support the legislation passed by the Senate on Thursday making English the "national language" of the United States?

Alberto Gonzales says "no." According to him, Bush opposes such a measure and always has:

President George W. Bush has long opposed making English the country's national language, Attorney General Alberto Gonzales said on Friday, the day after the Senate voted to do so. . . .

Gonzales did not directly address Bush's position on the controversial amendment because the Senate has not yet voted on the whole bill. But he said that Bush has in the past rejected such efforts.

"The president has never supported making English the national language," Gonzales said after meeting with state and local officials in Texas to discuss cooperation on enforcement of immigration laws.

But Press Secretary Tony Snow disagrees, insisting that Bush does support making English the national language:

WHITE HOUSE President Bush is backing the Senate's move to get immigrants to learn English.

Press Secretary Tony Snow reports the president agrees with two amendments that senators tacked onto the immigration bill yesterday. One would make English the "national" language. The other calls it a "common and unifying language." Snow says both are "consistent with" Bush's views.

(h/t Hot Air). The Bush administration can't even decide on the same day what the President's position is on an issue of great significance to his base. Immigration was supposed to be the rallying cry for re-solidifying support from Bush's base, but he has bungled the issue so badly that it has done nothing but alienate his base further. The staggering ineptitude which characterizes this administration's approach to every issue of governance used to magically disappear when it came to electioneering and political strategy, but no longer. They seem as politically hapless these days as they have been at governing.

(2) National Review Editor Rich Lowry can't believe that John McCain, whom Lowry notes is a "war hero," was treated so disrespectfully when he spoke last night at the New School in Manhattan. Lowry finds it "incredible" and "amazing" that a war heo would be subjected to heckling when giving a highly controversial speech praising a highly unpopular war.

Apparently, heckling a war hero during a speech is a despicable act. But it's perfectly OK to waive purple band-aids at decorated, wounded war veterans; and it's fine to accuse them of being soft on Osama bin Laden and Saddam Hussein even after they voted for the Iraq invasion and co-sponsored creation of the Homeland Security Department; and there is nothing wrong with going to the floor of the House and labeling a war hero a "coward" and then following it up with a year's worth of accusations that they are also a traitor. Calling into question a war hero's patriotism, their courage, the seriousness of their war wounds, and their allegiance to the United States is all perfectly fine. Just don't boo them at a speech.

Oddly, Rich Lowry's Chivalrous Code of Conduct for how a War Hero should be treated wasn't much in evidence when he penned this column back in July, 2004 -- entitled "Max Cleland, Liberal Victim -- in which Lowry snidely dismissed complaints about how Cleland was treated during his election defeat with tough-guy, suck-it-up, politics-is-tough sermons like this:

If you can't criticize the Senate votes of a senator in a Senate race, what can you criticize? . . . If John Kerry wants to surround himself with veterans like Max Cleland, fine — their country owes them a lot. But, please, stop the whining.

Today, though, Lowry is effetely lamenting the fact that McCain was booed at a highly politicized college by liberal students when McCain praised the Iraq War. John McCain is running for President, but he's a war hero, so no booing him.

(3) That Gen. Hayden shares the administration's claim of presidential lawbreaking powers has long been evident, and it is but one reason why he is such a poor choice to lead the CIA. But this exchange, highlighted by today's Editorial in the Washington Post, is independently indefensible:

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.

Last year Congress banned cruel, degrading and inhumane treatment of detainees; one of its explicit aims was to stop the CIA's use of waterboarding, which induces an excruciating sensation of drowning and is considered by most human rights organizations to constitute torture. So why couldn't Gen. Hayden say clearly that the technique is now off-limits?

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.

Gen. Hayden admits the Administration knew it was violating FISA

In his confirmation hearing yesterday, Gen. Hayden yesterday all but acknowledged that when President Bush ordered the NSA to engage in warrantless eavesdropping on Americans, the administration did not, at that time, rely upon any purported claim that Congress had authorized the President to engage in warrantless eavesdropping via its authorization to use military force against Al Qaeda. That legal theory justifying violations of FISA only came much later. The sole justification the administration had when the President ordered warrantless eavesdropping was its claim that the president has "inherent authority" to violate the law.

Thus, when President Bush ordered warrantless eavesdropping, the administration did not believe that this eavesdropping was authorized by Congress as a result of the AUMF, nor did it believe that the eavesdropping was consistent with FISA. To the contrary, it knew that the eavesdropping it had ordered was criminally prohibited by FISA, and the sole legal justification it relied upon was its belief that the President had the power to order eavesdropping in violation of that law:

At the same time, however, he acknowledged under questioning from Democrats that he did not read the Justice Department's formal opinion laying out the legal rationale for the program. He also said he did not recall any substantive discussion about the Congressional authorization in September 2001 to use all necessary force against Al Qaeda — a resolution that the White House now says helped give it legal authority for the wiretapping operation. "Our discussion anchored itself on Article II," he said.

What this "Article II" claim really amounts to, of course, is a simple claim that the President had the right to order warrantless eavesdropping on Americans even though FISA makes it a criminal offense to do so. That is because, under this "Article II" theory, not just FISA, but any law, which purports to limit what the President can do with regard to anything relating to national security is, by definition, unconstitutional, because nothing and nobody can limit what the President can do in that area, even as it applies to measures taken against U.S. citizens on U.S. soil.

The administration's Article II theory is not specific to surveillance, since nothing in Article II mentions or refers to surveillance. It is nothing more than a re-statement of the defining theory of the Yoo Memorandum -- that the President has sole responsibility for defense of the nation and therefore nothing, including the law, can interfere with anything he chooses to do. He is omnipotent in that area.

That this vision of the all-powerful Presidency is squarely at odds with virtually every founding principle of our country is something that has been discussed many times here, and is a major subject of my book. But one aspect of the administration's decision to violate FISA that has received relatively little attention is just how extraordinary is the sudden claim that FISA, after governing eavesdropping in this country for 27 years, is unconstitutional.

It's not uncommon for a law to be passed and signed into law under a cloud of questionable constitutionality. Since McCain-Feingold was enacted, for instance, scores of people have claimed that McCain-Feingold entails unconstitutional abridgements of First Amendment liberties and litigation began almost immediately after it was signed into law. Indeed, on the very day the Senate approved it, many Senators expressed their view that the law was unconstitutional. That happens commonly with laws which are believed to be unconstitutional -- substantial public debate exists among politicians, law professors, lawyers, and others regarding the law's questionable constitutionality.

But nothing like that ever happened with FISA. It was enacted in 1978 by a vote of 95-1 in the Senate. It was amended six times since then, including under the Bush presidency. President Bush asked for amendments liberalizing its provisions, and never once suggested it was unconstitutional. Four different presidential administrations prior to this one -- two Republican and two Democratic -- complied with its provisions while engaging in surveillance for foreign intelligence purposes, including during the height of our Cold War with the Soviet Union, and during all sorts of military actions, including the Persian Gulf War and military deployments in Latin America, Yugoslavia, and throughout the Middle East.

Until George Bush, no President had ever claimed that the requirements of FISA were unconstitutional. None ever claimed that their Article II powers were infringed because they had to obtain judicial warrants before eavesdropping on Americans, and none ever claimed that their ability to engage in intelligence gathering was impeded in any way by the warrant requirements of that law. There was never any debate in any prominent academic circles or among political pundits over the constitutionality of FISA. The Reagan Administration was filled with ideologues and advocates of strong executive power and yet, as it went to the FISA court every time it wanted to eavesdrop on Americans, it never once claimed that FISA was unconstitutional in any way. Nobody of any prominence did, because its constitutionality was never in doubt.

This notion that FISA is unconstitutional never emerged until the Bush administration wanted to eavesdrop on Americans with no oversight. And it was not publicly articulated until George Bush got caught violating that law and needed a defense. Criminal defendants frequently claim that the law they are accused of violating is unconstitutional. That is a common tactic among people who get caught breaking the law.

That the AUMF defense did not even exist when the President ordered warrantless eavesdropping on Americans is extremely significant because it means that the administration did not even purport to beleive that the eavesdropping they were ordering was consistent with any statute. They knew that FISA criminalized that eavesdropping, and the sole justification for engaging in it was that President Bush could order the law violated because he has that power, and FISA is invalid to the extent it regulates that power. But the circumstances under which this claim arose, by itself, demonstrate how frivolous this theory is.

FISA was passed overwhelmingly and has governed eavesdropping in our country for almost 30 years, with no suggestion that it is unconstitutional and with president after president complying with its mandates and never challenging them. That long-standing consensus does not dispositively prove that the law is constitutional, but the fact that nobody claimed that FISA was unconstitutional until it was revealed that President Bush has been violating that law, is rather compelling evidence of just how weak and pretextual that claim is.

Escalating the rhetoric

Billmon has an excellent discussion of the significance of the pending Pentagon investigation into allegations that U.S. Marines in Haditha killed innocent Iraqi citizens in cold blood. These allegations have received substantial attention due to Jack Murtha's public claim that military sources have told him that these allegations are true -- that "there was no firefight, there was no IED (improvised explosive device) that killed these innocent people. Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood."

As is the case whenever anyone discloses information which reflects poorly on the Bush administration and particularly its Iraq project, Bush followers are swarming in fury, attacking Murtha personally as a traitor and a criminal. The "California Conservative," in a post concisely entitled "John Murtha, Traitor", recommends these actions against Murtha:

Frankly, this is the actions of a traitor or a sellout. He deserves to be ridiculed, excoriated and frog-marched off Capitol Hill, then remanded to jail. No bail. Doesn’t his idiot know the type of damage this inflicts on the Marines?

Michelle Malkin accuses Murtha of "hanging the Marines." GatewayPundit laments that "it's sad that this 'war crimes conspirator' is the best the democrats have to offer on Defense... very sad." Confederate Yankees alleges that Murtha "has dishonored his seat, the military criminal justice system, the Marine Corps and the United States of America."

Let's leave aside the all-too-obvious irony that the same circles who all but scheduled the public hanging of Mary McCarthy for treason a few weeks ago -- and who, for months, have been calling for the lengthy imprisonment of New York Times reporter Jim Risen -- now find it so deeply troubling that someone would dare to opine about someone's guilt before a full-fledged trial has been conducted. That level of hypocrisy is way too commonplace among this strain of Bush supporters to merit a real discussion.

What is so notable here is the sheer personal venom directed towards Murtha and his patriotism, up to and including calls for his imprisonment. One would think that someone who honorably serves their country for 28 years as a Marine, and who has a long and trusted record of serving as one of the primary allies of the U.S. military in Congress, would be immunized from having their patriotism and honor assaulted so casually and glibly by people whose record of service (military and non-military) could not even compare to Murtha's. One can certainly criticize Murtha for reaching this conclusion or voicing it in the way he did, but to accuse him of hating the Marines, hating the United States, and then urging his imprisonment -- all done so casually and routinely, as though it's nothing more than the Hate Session for the Day -- never ceases to amaze.

I have no idea why Murtha opined on this case, although it is clear that he was relying upon at least one or more of the numerous, high-level military allies he has. It is very likely that he came forward with this information -- and that he was urged to do so by his military allies -- for exactly the reason Billmon speculates:

I don't know why Murtha went public (just as the right wingers don't know) but I can make my own guess: He did it to try to prevent Rumsfeld's toadies from classifying and then deep sixing the investigative report, as they tried to bury the Taguba report on Abu Ghraib. And if the past really is prologue, Murtha is probably speaking on behalf of some fairly senior Marine officers who either can't abide a cover up, or who want to pin the blame on the people who created this mess, and left the jarheads in Haditha to deal with it, instead of on their beloved Corps.

Ultimately, do any of these war supporters really care if these allegations are true? Weren't they just recently celebrating Shelby Steele's recommendation that we fight this war with much less precision and sensitivity to civilian deaths, and with much greater and unrestrained "ferocity"? Are they angry at Murtha for violating their oh-so-deeply held beliefs in the need for due process before publicly proclaiming someone's guilt, or are they angry at him for confirming that the U.S. engaged in conduct in Iraq which, yet again, is incalculably harmful to our image and credibility in that region, supposedly the principal purpose of our occupation?

This administration hates nothing more than people who publicize politically harmful information that they want to conceal. Those who have been most viciously attacked, and at whom the most intense calls for imprisonment have been aimed, have been those who have disclosed information that has reflected poorly on the Commander-in-Chief and his administration. That is what explains these sustained attacks on investigative journalism. Investigative journalists, by definition, reveal information which the Bush administration wants to keep secret, and they are therefore one of the prime Enemies.

When ABC News recently revealed on its blog their sources had advised the journalists that their telephone records were being monitored by the Bush administration in order to determine the identity of their sources, the reactions in the Comment section to the ABC blog were as intense as they were illustrative:

'Bout time you guys are roped in.
Posted by: Brad May 15, 2006 11:11:50 AM

Excellent the Media needs looking after, Traitors most of them.......
Posted by: ken wiley May 15, 2006 11:12:07 AM

good, you seditionist creeps deserve what you get. who knows how many serviceman have died because of your "right to know"
Posted by: jeff bynum May 15, 2006 11:12:10 AM

I hope the information they gain allows them to catch the scum that leak information, and helps them arrest the communist scum who publish it.
Posted by: Dave Mottolo May 15, 2006 11:12:28 AM

well maybe ABC news better stop leaking classified information. This only helps our enemies and right now I believe ABC news is an enemy of the US.
Posted by: scott May 15, 2006 11:13:39 AM

GOOD! I hope they find out who is reporting all of these leaks. And I hope you are tried and perhaps spend some time in jail for it.KEEP CALLING and I hope they track your every word!
Posted by: bridget May 15, 2006 11:17:21 AM

I am a journalism graduate, UNC-Chapel Hill. I am also a veteran.I hope they catch every government leaker of classified secret information and put them in prison for life. And any reporter publishing known classified secret information should be shot. It is called treason, not first amendment rights.
Posted by: Tom Camp May 15, 2006 11:26:53 AM

This type of rhetoric matters. New Bush press secretary Tony Snow told Hugh Hewitt that he reads right-wing blogs -- and specifically identified Instapundit, Michelle Malkin and Powerline. Dick Cheney spent more quality time yesterday with Rush Limbaugh. Failed political movements often turn to the most extreme elements in their base in order to prop up enthusiasm, and there are few things uglier than the extreme elements among Bush followers.

I can't think of a single prominent Democratic political figure (perhaps other than Joe Lieberman) who hasn't been routinely accused of being a traitor and at whom threats of imprisonment haven't been launched by certain Bush followers around the blogosphere. News that journalists are being investigated, and even calls for the imprisonment of journalists, are now so routine that they hardly attract notice any longer. And anyone who reveals information that reflects poorly on the administration -- including life-long military veterans and pro-military Congressmen -- is an anti-American traitor who is tantamount to a criminal.

The Bush administration and many of its followers are coming increasingly to see hostile journalists and various political opponents as traitors and criminals, and their escalating rhetoric includes what are now routine calls for the investigation and punishment of those who politically harm the administration.

President's speech mauled by his base

(updated below)

So, President Bush gave his big speech last night designed to mollify his rage-fueled base and to stem the tide of his rapidly collapsing presidency. The speech is done and the reviews are in. How did he do?

Michelle Malkin: "platitudes, non sequiturs, and recycled rhetoric I've been deconstructing the last five years."

John "The Rocket" Hinderaker: "He had his chance and he blew it . . . President Bush is being destroyed by vicious people who hate him. So far, he hasn't seemed to notice. Apparently, he doesn't think he needs any allies. He certainly didn't win any with tonight's speech . . . . President Bush doesn't have many chances left to salvage his second term. After tonight, he might not have any."

(As a bonus, definitely don't miss the unbelievably patronizing summary by The Rocket of his conversation with his "African immigrant" driver last night after the speech, in which Rocket "patiently" tried to explain the real issues to the immigrant driver, only to be "sure he'd forgotten everything I said by the time he left my driveway").

Paul "Deacon" Mirengoff: "President Bush did wimp out, and fatally so I think, on his fourth point, i.e., what to do about illegals who are already here. . . . This means that Bush's proposal taken as a whole is probably self-defeating."

Ankle Biting Pundits: "Whether he likes it or not, the president did not carve out a 'centrist' position at all. He articulated one of the two conflicting positions in this debate. And by pretending to be a 'middle grounder' I believe he cheapened his argument."

Misha at Anti-Idotarian Rottweiler: "long on blather and emotion and amazingly short on actual solutions. . . . Take your 'virtual' fence and your hi-tech vaporware coupled with your amnesty plan and shove them up your ass, Jorge."

The good news for the President is that he is prevented from ever reaching zero on the approval rating scale thanks to the existence of Hugh Hewitt, who swooned: "President Bush did exactly what he had to do tonight . . ." But after he posted that, Hewitt fundamentally reconsidered his assessment as a result of his interview with Julie Myers, the nepotism-based appointee at Bush's Homeland Security Department:

My interview with Assistant Secretary of Homeland Security Julie Myers staggered me, undoing in a handful of minutes my confidence in the president's commitment to border security first. Either the president's team had not communicated effectively with sub-cabinet appointees about the fence, or the president doesn't really believe in the fence, because Assistant Secretary Myers is clearly not a proponent of the fence.

So, by the end of the night, the President's speech even made Hugh Hewitt angry. Does the White House do anything right anymore? If this speech wasn't going to serve up some of those extremist measures necessary to satisfy Bush's rabid, voracious base, what was the point of it?

It was a mushy, uninspired speech with little that was new, so it wasn't going to win the president any converts. But for the same reason, it had the effect of exacerbating the Right's growing dissatisfaction with Bush by getting their hopes up, only to then rub their noses in the fact that the president is never going to embrace their views on immigration, which they have decided is now The Paramount Issue. What did the White House hope to gain from any of this? One thing is clear: the longer and more prominently immigration remains on the table, the better it is for Democrats.

Finally, as a follow-up to my post from yesterday, Jesse Walker at Reason offers up some interesting speculation as to why the Right, which has long agreed to ignore Bush's immigration softness, has suddenly decided, now, that this issue is of critical importance.

UPDATE: There are a few more unhappy people who have spent the last five years as enthusiastic Bush followers but who are now infuriated by the president:

Mark Levin, National Review: "I didn't spend 35 years in the conservative movement for this. . . . This is pure idiocy, and it has the potential of being far more damaging to this nation than any big-government power-grab perpetrated by any previous president and Congress."

Dave Riehl: "Unfortunately, visitors to a Bush '43' Library may have to cross the border into Mexico to take it all in. In a speech which was as much a eulogy for the so-called Reagan Revolution, as it was an unfortunate beginning to a pending political battle on immigration, President Bush all but declared himself irrelevant to the conversation. In essence, the sitting President of the United States through (sic) up his hands and declared, 'No mas.'

John Hawkins, Right Wing News: "After the speech last night, I took a look around the right side of the blogosphere to get a sense of what people thought. The reaction was probably -- oh, let's say somewhere between 75-90% negative and to be truthful, as often as not, I got the impression that the bloggers who said they liked the speech were reading out of the old "root, root, root for the home team playbook" rather than genuinely being enthused about what Bush had to say."

GOP Senators block judicial review of NSA program

A front-page article in this morning's The Hill reports that Sen. Specter has finally made enough concessions to secure the support of the more right-wing members of the Judiciary Committee for his legislation that (along with a bill from Sen. DeWine) would render legal the NSA warrantless eavesdropping program. As part of this negotiation, what were these Bush allies (Hatch, Sessions, Cornyn, Kyl) holding out for? The removal from Sen. Specter's bill of a clause that would mandate that the FISA court rule on the legality and constitutionality of the NSA program. As usual, the thing which Bush supporters fear most - and which they most desperately seek to avoid - is a judicial ruling on the legality of the administration's behavior. As The Hill reports:

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.

Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.

Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.

One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.

Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained. Thus, in the absence of the provision in Sen. Specter's bill, the administration would be able, in virtually all circumstances, to block a ruling on the legality of the NSA eavesdropping program:

[GWU Law Professor Mary] Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.

There are other ways for the legality of this program to be challenged. For instance, a criminal defendant who can prove that evidence being used by the Government against him was derived from the illegal eavesdropping program can challenge the admissibility of that evidence, which, in turn, would require a court to rule on the legality of the eavesdropping program (because if the program is illegal, no evidence derived from it is admissible). But in such a case, the administration -- as they have done so many times before -- could simply drop the case or agree not to use the evidence in question, as a way of avoiding a ruling as the legality of the NSA program. Sen. Specter's bill was the sole mechanism to ensure that a federal court would rule on the legality of the administration's eavesdropping conduct -- which is precisely why its loyal soldiers on the Judiciary Committee refused to agree to any bill that contained that provision.

It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.

Additionally, due to an independently revealing fact, we are far away from any resolution of this issue:

The agreement appears to pave the way for the committee to approve Specter’s bill and one sponsored by Sen. Mike DeWine (R-Ohio) granting the surveillance program legal authority. GOP aides say the chances of the bills’ reaching the Senate floor this year are unknown because of a crowded schedule and the dwindling number of workdays left this session. . . .

The panel had been expected to mark up Specter’s and DeWine’s bills Thursday but, instead, the committee will work on legislation on same-sex marriage. Two prominent conservative leaders, Dr. James Dobson of Focus on the Family and Tony Perkins of the Family Research Council, met Senate Majority Leader Bill Frist (R-Tenn.) and Assistant Majority Leader Mitch McConnell (R-Ky.) last week.

The delay of the markup on the NSA-related bills could imperil the compromise on the Specter and DeWine bills. The longer the agreement has to last before committee action, the more likely it is to be mulled over and picked apart, a GOP aide said.

Right now, many Bush allies in the Senate are far too busy with the critically important task of mollifying their political boss, James Dobson, by pretending to engage in another election year effort to constitutionalize the laws of marriage. As a result, they don't have time for petty matters such as legislation governing how the NSA collects foreign intelligence and spies on American citizens. As a result, even if Specter and the Bush allies on the Judiciary Committee can reach an agreement as to how to bestow the administration's illegal eavesdropping program with a shield of legality, it is far from certain that any of this will be resolved before November.

In the meantime, maybe some enterprising reporters somewhere could start asking administration officials - and their stalwart Senate allies - why it is that they are so eager to avoid a judicial ruling on the legality of this program if they are so confident that the president did nothing wrong. People who are unjustly accused of violating the law are eager to have their name cleared. Why isn't the president?

Conservatives debate Bush impeachment over immigration

A very spirited and provocative debate took place among right-wing bloggers over the past week. The question under consideration: Should George W. Bush be impeached for his failure to stop the "Mexican invasion" and protect our nation's borders?

Several prominent conservative bloggers argued vehemently in favor of Bush's impeachment. Leading the charge was LaShawn Barber, who actually drafted articles of impeachment and supported them with this argument:

I believe George Bush’s failure to enforce immigration law and stop the foreign invasion, which he has the power and authority to do, warrants impeachment. Because of Bush, illegal invaders are emboldened, demanding that which they have no legal right to obtain.

While the invasion has caused incalculable physical and economic harm to legal citizens, the president proposes to offer amnesty and allow the harm to continue. To the detriment of those he swore to protect, Bush chooses instead to protect those he has no duty to protect. His actions are in violation of the Constitution.

Misha of Anti-Idotarian Rottweiler joined Barber's call. Inspired by the Malkian outrage de jour -- "Sara Carter, a reporter with the Inland Valley Daily Bulletin, reports today that she found documentation on Mexican government websites that show higher ups in the United States Border Patrol have been tipping off the corrupt Mexican government as to the locations of the Minutemen along the border" -- he argued:

Bushito’s Border Patrol, protecting the rights of illegal border crossers in, er, Illinois?

If Bullshito knew about this, or if he doesn’t do something about it now that he does, and does it yesterday, there can only be one logical conclusion to this undermining of the sovereignty of the United States, undermining of the Constitution and providing intelligence to a foreign government:

Impeachment.

Let’s give him a day or two to explain himself and stop it, NOT a few weeks or months, and then, if he fails to do so, let the hearings begin.

Go for it, Democrats, you have my full and unreserved support.

The anger on the Right over Bush's limp and fearful approach to the immigration problem is so severe that they are even comparing President Bush to Bill Clinton and referring to the Commander-in-Chief with a highly mocking tone:

I can pretty much sum up what El Presidente is going to say in his Monday address. He’s said it all before:

I oppose amnesty, placing undocumented workers on the automatic path to citizenship.

Notice that Clintonian weasel word, “automatic.” Notice his unique definition of “amnesty.” “Undocumented workers” (or “illegal aliens” as they should properly be called) will not get “automatic” citizenship; therefore they’re not getting amnesty.

Things have become so tense over on the Right that I even learned on Michelle Malkin's blog that there is apparently a large group of people who will support George Bush no matter what, due to excess loyalty. Thus, Michelle has been railing against what she calls "blind Bush supporters."

The President's speech tonight on immigration obviously has an exclusively political purpose, intended to highlight border enforcement efforts more than he usually does in order to appease his smoldering volcanic base. Bush is desperate to at least stem the tide of defectors who have long been most loyal to him but have decided that immigration is now the most pressing issue, and that Bush is too weak and fearful to do what has to be done. But Bush is very limited in his maneuverability. He long ago sold his soul on immigration issues to the Wall St. Journal/big business desire for more-or-less open borders and cheap immigrant labor, and the symbolic measures he plans to unveil tonight don't appear to have any remote chance of satisfying the targets of his offerings.

Barber, for instance, has already rejected the speech as a woefully inadequate symbolic measure designed only to appease immigration opponents. She's having none of it:

Bush’s boy Vicente Fox, all frantic about our country’s alleged plan (and right) to guard its own borders, called Bush, who assured him the border beef up is only temporary and will not be a “militarization.” What a thoughtful man, our president.

I predict that his speechwriters will insult our intelligence and present unsustainable and bad argumentation supporting amnesty for border jumpers, including the strawman “We are a nation of immigrants!” and the claim that deporting millions of illegal criminals is impractical. He’ll toss us a half-chewed border enforcement bone to throw us off the trail.

I’m not that hungry. Are you?

It doesn't appear that Michelle Malkin is going to be calmed by this speech either. I'd say the opposite seems true -- from her post today entitled "Too Little, Too Late" (links omitted):

Here we go again.

President Bush is continuing the homeland security dog-and-pony charade in his quest to deliver a massive "guest worker" plan to the open-borders lobby. A few weeks ago, Bush's Department of Homeland Security put on a bogus performance of Get Tough Theater with a series of politically timed immigration raids...which, as I predicted, simply resulted in more catch and release of illegal aliens nationwide.

This new last-minute stunt to sprinkle National Guard troops on the border--temporarily of course, to appease Mexican President Vicente Fox--is more transparent than the Scotch tape used to hold together our dilapidated border fences. (That's only a slight exaggeration).

For all the new tough talk, these additional troops will be barred from actually doing what needs to be done: guarding the border. President Bush is already bowing and scraping to Mexico over the plan before he's even officially announced it.

Many on the Right have decided that Immigration is now the paramount issue that must be dealt with, and their differences with Bush on this issue, which they have long suppressed, are now exploding into the open, which is only exacerbating the president's severe political difficulties. Nothing in particular has happened on the immigration front, leading to the question of why has this issue taken on such critical importance now?

I think a lot of the Malkin types have become bored with the whole "War on Terror" business, which provided them good, strong emotional sustenance for the last four years. But September 11 is now almost five years away. There have been no good "battles" for a long time; we don't even pretend to capture or kill any high-ranking Al Qaeda members any more; and while invocations of "war" will always be good for some blood-rushing excitement, the whole thing seems so distant and abstract at this point. It's just not enough any more.

They're also clearly tired of slogging through the political and ethnic complexities of Iraq. That country just doesn't lend itself to any morally clear good/evil dichotomies. There are no good cartoon villains to hate. Calls for increased "ferocity," less "sensitive" approaches ("bomb some more mosques!"), and less discriminate bombings can generate some temporary enthusiasm -- as it did for a day or so with Shelby Steele's column -- but Iraq is so muddled and ambiguous, and not all that emotionally satisfying. It's pretty depressing, actually, to think about how everything they said would happen there is not happening, and trying to figure out solutions, ways out, is just not very invigorating stuff for those who thrive on Hating and Warring Against Evil.

As a result, attention gets turned to immigration -- Mexican immigration specifically. It entails the opportunity to rail against "appeasement" (of Vincente Fox); to create the anti-terrorist/pro-terrorist dichotomy on which they thrive; and to demonize a clear, foreign enemy as threatening not just our economic prosperity but also our national security (the "Mexican invaders"). And if the weakened, ready-to-be-tossed aside failure, George Bush, is one of the spineless appeasers this time, so be it.

This is a major, major political problem for the White House. The measures which Bush's base demands, the ones necessary to really satisfy them -- a huge wall and active deportation -- are far too extreme for Bush to embrace. And yet they aren't going to be satisfied without extreme measures. The media loves to talk about how Democrats are being harmed because "the Left" of the party is dragging it towards policies which are too extreme, but the reality is that dynamic is taking place within, and is threatening to drown, the Republican Party. Bush has very few supporters left. The few he has left are demanding that he adopt immigration positions which he clearly opposes and which would alienate most people in the country. And he is far too weak to satisfy them with symbolic measures.

They are actually debating his impeachment over this issue. What is a 29% President to do?

Various items

(updated below - including with a real poll, from Newsweek, on the NSA program)

A few items of note:

(1) The formal release date for How Would a Patriot Act? is this Monday, May 15. Amazon and the other online retailers should begin shipping the book to those who pre-ordered, and it should start appearing in stores this week. The promotional and marketing campaign for the book will start in earnest this week as well. The book is back in the Top 100 on Amazon and has been rising steadily on Barnes & Noble again.

Yesterday, The San Francisco Chronicle published a lengthy article on its front page which profiled the book, this blog and the rising influence of the blogosphere generally. This is obviously the perfect time for the book's release for many reasons. I genuinely believe that these issues of executive power and the administration's systematic lawbreaking and fear-mongering are ripe for real public discussion and understanding. I'm very excited about the opportunity to talk about these issues as far and wide as I possibly can.

(2) Following-up on the post from yesterday regarding that highly suspect insta-poll from The Washington Post which purported to show that most Americans favor the newly disclosed NSA program, Jane Hamsher details that much of the corruption of that poll is accounted for by the standard practices of the Post's pollster, Richard Morin, who has a history of producing skewed, pro-Republican polling data.

(3) One aspect of the new NSA story which merits significantly more attention is just how revealing and intrusive the information is which is being collected and stored. Knowing the identity of every single person whom you call and from whom you receive calls can be almost as illuminating and privacy-destroying as listening in on the calls themselves. And as Kevin Drum points out, this claim that the data provided by the phone companies does not reveal the identity of the participants on the call is simply frivolous. There are so many ways for the Government to discover the identity of the callers by knowing their telephone numbers that this defense is not even serious.

I'd be willing to bet that a very sizable portion of the American public speaks with people they don't want others knowing about. To put into the Government's hands the ability to know the identity of every person with whom we speak on the telephone is so dangerous and intrusive that it's hard to believe most Americans will glibly give up this level of privacy to the Government. We'll see.

(4) Apparently, the number 29% does wonders for enabling politicians to find some courage and resolve:

Senate Democrats intend to use next week's confirmation hearings for a new C.I.A. director to press the Bush administration on its broad surveillance programs, engaging Republicans on national security grounds that have proved politically treacherous for Democrats in the aftermath of Sept. 11.

Gen. Michael V. Hayden, nominee to head C.I.A., reacted Friday after Senator Susan Collins said microphones were "eavesdropping" on them.

Lawmakers and senior Democratic officials say they believe a combination of Democratic gains on security issues and a loss of public confidence in President Bush gives them new strength to question the National Security Agency operations that the administration says are essential to preventing another domestic terror attack.

As a result, Democrats say they will not hesitate to aggressively question Mr. Bush's choice to head the Central Intelligence Agency, Gen. Michael V. Hayden, who is the former director of the N.S.A., at a hearing set for next Thursday.

"We have to raise the issues," said Senator Harry Reid of Nevada, the Democratic leader, who met Friday with General Hayden. "The American people expect someone to do it. Certainly the administration is not doing it. We are all they've got."

Sen. Reid is typically less cautious and more combative than most of the caucus members he leads. Several months ago, I was on a conference call with him and ten or so bloggers. Reid's belief that the pro-Bush contingent in Washington is a criminal enterprise, corrupt to its core, struck me as very sincere. He also explained that he was going to have to leave the Senate some day one way or the other - because of retirement, electoral defeat, death -- and, as a result, he refused to back away from views he believed in due to some fear of losing an election. That, too, struck me as sincere.

I think that's what explains his willingness to be more combative. He isn't attached to his Senate seat, willing to do anything to cling to it, whereas most of his colleagues are. People who aren't attached to their little prizes are much more free to act on principle and conviction.

(5) When I read this article reporting on polling data that shows that Americans overwhelmingly believe that The Devil Bill Clinton did a better job than the Epic Savior Hero George Bush in every category of governance, I genuinely thought to myself that that article could really send many Bush followers into a state of serious mental depression, or worse.

It's one thing to have read almost every day that the vast majority of Americans dislike and disapprove of the Leader and that more and more Americans abandon him by the day. But to have to read that Americans overwhelmingly prefer Bill Clinton to George Bush in every area -- including foreign affairs (by an embarrassing margin of 56-32%), national security (46-42%), and on the question of "which man was more honest as president" (46-41%) -- must be truly difficult for those remaining Bush followers. And, indeed, it did lead one pro-Bush blogger, The Anchoress, to announce:

I’ve decided that if I’m going to keep blogging, I’m going to have to leave off writing or reading about politics for a little while, because it’s all making me sick. . . .

And so, for a while, I’m off the subject. We’ll talk sex, religion, baseball, opera and even - Lord help us - television. But to stay in the middle of the deleterious snakepit of politics…no…there be monsters.

I think for the summer, my little boat will sail in the other direction.

I actually think this is a serious danger for the Republicans this November. They have been so used to winning everything, being able to manipulate public opinion, using "the War" to generate support for everything they wanted. Now that none of it is working any longer, now that their standard tactics fail, their credibility is shattered, and their Grand Hero is exposed as a fraud -- as a weak, impotent, borderline-sad figure -- I think many of them will be so disillusioned and discouraged that they will simply want to tune politics out. For many people, it is simply (and understandably) depressing to have to read day after day that your views are being increasingly rejected by the country and your admired leader is disliked, distrusted and disapproved. One solution is to simply walk away from it altogether. That's what The Anchoress chose, and I think many Bush followers will choose the same.

UPDATE:

(6) Now that Americans have actually had time to hear about the newly disclosed NSA data-collecting program, a new poll from Newsweek shows that a majority is opposed:

Has the Bush administration gone too far in expanding the powers of the President to fight terrorism? Yes, say a majority of Americans, following this week’s revelation that the National Security Agency has been secretly collecting the phone records of U.S. citizens since the September 11 terrorist attacks. According to the latest NEWSWEEK poll, 53 percent of Americans think the NSA’s surveillance program “goes too far in invading people’s privacy,” while 41 percent see it as a necessary tool to combat terrorism.

Even a quarter of Republicans are against it:

According to the Newsweek poll, 73 percent of Democrats and 26 percent of Republicans think the NSA’s program is overly intrusive.

Worse for the White House -- but great for the country -- a lopsided majority think that the administration is attempting to sieze excess power:

Nonetheless, Americans think the White House has overstepped its bounds: 57 percent said that in light of the NSA data-mining news and other executive actions, the Bush-Cheney Administration has “gone too far in expanding presidential power.” That compares to 38 percent who think the Administration’s actions are appropriate.

I don't even recall seeing that question asked before, but it is very encouraging to see a majority of Americans answer this way. The country does not trust George Bush and is therefore unwilling to vest expanded power in his hands.

(7) Consistent with its desperate desire to avoid any judicial adjudication of the legality of its conduct, the Bush administration has once again invoked the "state secrets" doctrine, this time to attempt to force dismissal of the lawsuit against AT&T brought by the Electronic Frontier Foundation. That lawsuit alleges that AT&T violated various provisions in the law by collaborating with the NSA to allow the agency access to the telephone conversations and releated calling data of Americans without the warrants required by law.

As always, what the Bush administration fears most are judicial rulings as to whether its extremist policies are legal, precisely because it knows they aren't. In this case, it's the warrantless surveillance program they are attempting to shield from judicial adjudication, but they have played the same game with a whole host of other lawbreaking measures. It is precisely because they have thwarted any investigation into their conduct and any judicial review of it that it is so imperative that there be some mechanism for subjecting their behavior to meaningful scrutiny. Having Democrats obtain subpoena power in November is one to achieve that (h/t EJ in comments for both new items).

Polling hysteria and the NSA program

Somehow, The Washington Post -- on the very same day most people learned about the new NSA data-collection program -- managed to conduct a poll which purports to show that "63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism." The reaction is painfully predictable. Bush followers are celebrating with glee, as though the issue is resolved in their favor and they won, while some Democrats are quivering with caution, urging that this issue be kept at arm's length lest they take a position that isn't instantaneously and overwhelmingly popular.

I didn't even read about this story until yesterday morning and it took awhile to process the various issues and implications. I'm still doing that. I have a hard time believing that less than 24 hours after this program was first revealed by USA Today, most Americans had informed themselves about what this program is, why it is a departure from past practices, and what are its potential dangers and excesses -- let alone had an opportunity to hear from those who are opposed to the program explain why they are opposed to it.

The whole point of having political leaders and pundits is to articulate a point of view and provide support for that view in order to persuade Americans of its rightness. That process changes public opinion on every issue, all of the time, often dramatically. None of that has occurred here. Let's have a few days of debate over whether Americans actually want the Government to maintain a permanent data base of every call they make and receive -- to their girlfriends and boyfriends, their doctors and lawyers, their psychiatrists and drug counselors. And let's have a debate about whether the law prohibits this program. And then let's see where public opinion is.

When the NSA eavesdropping scandal was first disclosed, Rasmussen Reports quickly issued a blatantly flawed poll purporting to show that "Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. " The question mentioned nothing about warrants. It mentioned nothing about FISA. And it specified that the Government would be eavesdropping only on conversations "between terrorism suspects."

The only surprise with the results was that only 64% favored that. One would think that virtually everyone would favor eavesdropping on terrorism suspects. Nonetheless, since that was the first poll, it was held up by Bush followers as proof that the NSA scandal was political suicide for Democrats; the media repeated this theme; and many Democrats were scared by it.

As the debate over the NSA scandal became more informed and more Americans understood the issues at stake, virtually every poll thereafter showed that a majority or plurality of Americans oppose warrantless eavesdropping and/or believe the President broke the law, and some even show that a plurality favors the Censure Resolution. Opinions change when people stand up and explain why what the Government is doing is wrong and dangerous, and Americans respect politicians who are willing to do that even when -- especially when -- they are not guaranteed by the consulting class ahead of time that they will win.

All other issues aside, there is nothing for Bush opponents to lose here by pursuing this issue. Nobody who has abandoned George Bush is going to again become a supporter of his because he is keeping track of the telephone calls of every single American. There is no question that some of his supporters will be opposed to this and that will contribute to the shakiness of their support, but nobody is going to become a George Bush fan again because he's compiling these records.

We go through the same empty rituals and are subjected to the same worthless warnings over and over and over from the same know-nothing, pompous pundits. When the NSA scandal first broke, and Bush's popularity rating showed a slight bump upwards (well within the margin of error) in a Rasmussen poll, uber-snarky geniuses like Mickey Kaus spat out oh-so-knowing warnings like this:

Bush hits 50% on Rasmussen. ... Another spy scandal and he'll be at 60%!

I recall those days all too well. The NSA scandal was going to be Bush's political salvation. It would shift the debate back to terrorism, where they always win. Americans are too simplistic and stupid to care about the rule of law or privacy. They only want to cheer on the swaggering, sometimes-reckless Cowboy as he smashes the Bad Guys with machismo and grit.

Meanwhile, in the real world, ever since the NSA scandal was revealed, the President's approval rating has done nothing but plummet. That, of course, does not demonstrate a causal relationship, but it certainly proves that scandals of this type do not remotely help the President in any way. All of those frightened Beltway Democrats who were anonymously screeching that Russ Feingold's Censure Resolution played right into Karl Rove's omnipotent hands, that it destroyed the Grand Democratic Plan, that it would allow the President to recover by forcing the debate back onto his turf -- how wrong were they, as always? After five months of the NSA scandal and increasing debates over the administration's lawlessness, Bush's approval rating today fell to 29% -- a full 4% higher than Richard Nixon when he resigned in disgrace.

Maybe we should listen to the Mickey Kaus's and his friends at The New Republic and in the old Clinton consultant buddy clubs as they meekly urge that we not talk about these data collection programs because -- to use Kaus' very prescient words: "Another spy scandal and he'll be at 60%!"

The danger here is that Bush followers are attempting to instill as permanent conventional wisdom that the "vast majority of Americans" favor this program, something the national media stars (who love polls -- at least poll results -- because they're really easy to understand and explain) will be only too happy to pass along. This only works because Bush opponents allow it to work. They so often internalize this notion, too - "oh, boy - we better stay away from that issue. Most Americans are against us on this. They won't like it if we speak out." And then they run away from the issue, never articulate or advocate the other side, and then point to the fact that that position is a minority view as proof that they were right to run away from it.

It was just revealed yesterday that the NSA is trying to build a data base showing every single call that every single American makes or receives. It is not that hard to explain why that is so dangerous, how powers of this type have been continuously abused in our history by administration's of both parties, and why oversight is therefore critical in both preventing abuse and in ensuring that we engage in aggressive and effective anti-terrorist efforts. It's hard to fathom that Democrats are going to leap at this insta-poll and conclude that it's just too "risky" to take a stand on this issue, and just run away from it. I've seen signs that some of them intend to do just that, but I also believe that many of them view this program as simply too much -- finally over the line -- and will throw some caution to the wind and act on their passion and beliefs. One can hope.

Legal issues governing the Administration's newly disclosed surveillance program

(updated below - updated again - and again)

Orin Kerr has a post which preliminary assesses some of the legal issues involved with the domestic data gathering program, concluding (in his standard, very careful law-professor-ese) that "my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute." I think -- preliminarily -- that the statutory problems may be more severe than he seems to suggest. But I want to emphasize that some of these issues are complex and this discussion is intended to lay out what appear to be the issues involved, including the likely grounds for finding that what the administration did was illegal. But none of this is set in stone or definitive, yet.

A "pen register" device is a mechanism for collecting various data with regard to how a telephone is used -- it enables the user to obtain the numbers to which the person made calls and from which they received them, along with the duration of the call. The purpose of that device is to enable the Government to gather exactly the information which the Government gathered here from the telecommunications companies -- comprehensive records of who you called and who called you, and for how long you spoke. The NSA now has all of that information about, presumably, every American, because the telecommunication companies gave it to them.

The ability of the Government to use pen registers is governed by various liberalizing changes made to Section 402 of FISA, by Section 214 of the 2oo1 Patriot Act. There is no dispute that the Government is prohibited from using pen registers without FISA court approval -- both under the old FISA and the more liberalized FISA as amended by the Patriot Act. As Mary DeRosa, senior fellow in the Technology and Public Policy Program at the Center for Strategic and International Studies, explained as part of a 2001 debate over various provisions of the Patriot Act:

Section 214 [of the 2001 Patriot Act] makes similar changes to procedures for obtaining pen register or trap and trace orders under FISA. "Pen registers" and "trap and trace" devices record information about the recipient and source, respectively, of a communication. They do not intercept the contents of communications.

Previously, FISA section 402 required the government to certify to the FISC that there was reason to believe a line monitored by one of these devices would be used by an individual or a foreign power engaged in international terrorism or spying that violates U.S. criminal laws.

Everyone seems to agree that even with the changes effectuated to FISA by the Patriot Act, the Government is still required to obtain approval from the FISA court in order to use pen registers; the only change mades by the Patriot Act was to lower the showing the Government was required to make to the FISA court in order to obtain permission to use a pen register. This appears to be the view even of executive power fanatic, ex-prosecutor Andrew McCarthy:

Prior FISA law required government to certify that the monitored communications would likely be those either of an international terrorist or spy involved in a
violation of U.S. criminal law, or of an agent of a foreign power involved in terrorism or espionage.

Consequently, Section 214’s modification of prior law is both modest and eminently reasonable. Agents are still required to obtain a court order before installing a pen register. In addition, they are still required to make a solemn representation to the court; now, however, that is limited to certifying that the information sought would be relevant to an investigation to protect against international terrorism or clandestine intelligence activities.

It is true that, strictly speaking, at least based on what we know, the Government has not used pen registers here. They didn't need to. Instead of collecting this information telephone-by-telephone, they just skipped the whole pen register annoyance and had the telecommunications companies give them all of that information for every phone. Still, it is hard to imagine (at least for people acting in good faith) how it could be illegal for the Government to use a pen register device without a court order for a single phone (it appears clear that that is illegal), but it is perfectly legal for the Government to obtain pen register information for everyone's phone in the country without bothering to obtain a court order of any kind.

Independently, the type of information obtained here by the Government seems clearly to fall within FISA's definition of "electronic surveillance." Section 1801(f)(1) of FISA defines "electronic surveillance" to include "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States. . . " In turn, Section 1801(n) defines the term "contents" as follows:

"Contents," when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication

There is, at the very least, a strong argument to make that the type of information obtained by the administration here falls squarely within the scope of FISA and thus requires warrants before it can be obtained. This would violate FISA for the same reason the NSA warrantless eavesdropping program does -- namely, it constitutes electronic surveillance on Americans and therefore is criminal unless undertaken with judicial approval.

Finally, there are several other seemingly significant legal issues governing this program, all of which are possible grounds for concluding that the President -- yet again -- violated the law when ordering surveillance on Americans, including various provisions of FISA governing the production of business documents by these companies to the Government.

Ultimately, however, the always-overarching issue is that it doesn't really much matter how these fascinating and academic statutory debates are resolved because the administration has claimed repeatedly that it has the right to violate statutes like this if its doing so is in pursuit of the national defense. As Professor Kerr put it, with great understatement:

Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it.

The Leader ordered this collection of sweeping data on the communications activities of Americans because The Threat of Terrorism required it. Therefore, even if multiple statutes make doing that a criminal offense, The President has the power to do it anyway. That, of course, is the Administration's view of the world. And that is the epic constitutional crisis we have in our country.

Finally, I would be remiss if I failed to point out this passage written by Andrew McCarthy from the above-linked debate on The Patriot Act and FISA, something McCarthy wrote before he knew the President had ordered eavesdropping on Americans without court approval:

Why such extensive access with virtually no court supervision? Because the items at issue here are primarily activity records voluntarily left in the hands of third parties. As the Supreme Court has long held, such items simply do not involve legitimate expectations of privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979).

This renders them categorically different from the private information at issue in the context of search warrants or eavesdropping, in which the court is properly imposed as a bulwark, requiring a demonstration of cause before government may pierce established constitutional safeguards.

McCarthy wrote this before he knew that his Leader had ordered the NSA to eavesdrop on Americans without having courts "imposed as a bulwark." Before he knew the President had ordered this, McCarthy said he believed that it is necessary that the government not be permitted to eavesdrop on Americans without judicial approval because such oversight was necessary to protect "established constitutional safeguards." But once he found out that the President ordered eavesdropping without that judicial "bulwark," he changed his mind completely. What he previously said was necessary and proper -- judicial oversight for eavesdropping -- suddenly became totally superfluous and unnecessary, as he became one of the most vocal defenders of the administration's warrantless eavesdropping programs.

People who fundamentally change their views on issues this significant all in order to defend a Leader's conduct can be called many things. None of them is flattering.

UPDATE: Both Anonymous Liberal and Marty Lederman suggest that the telecommunications companies perhaps violated Section 222 of the Communications Act, which "requires telecommunications carriers to protect the confidentiality of customer proprietary information ("CPNI"), such as the telephone numbers called by customers and the length oftime of the calls. . . ." By e-mail, Georgia10 of Daily Kos argues that the companies seem clearly to have violated 18 U.S.C. section 2702, which also bans the disclosure of such information without a court order.

UPDATE II: I will be on Christopher Lydon's radio show Open Source tonight at 7:15 pm EST to discuss this newly disclosed surveillance program. Tomorrow morning, at 7:18 a.m. EST, I will be on The Bill Press Show to do the same. And tomorrow night at 6:30 p.m. EST, I will be on Sirius' The Young Turks. All three of those sites have a live audio stream.

Finally, I have a piece today on Alternet regarding the growing influence of the blogosphere, and they have included an excerpt from my book from the chapter which discusses the Bush administration's use of fear.

UPDATE III: I am happy to report that Working Assets, the telecommunications company whose publishing arm is the publisher of my book, was the only telecom company to sign onto the ACLU's lawsuit seeking an injunction against the Bush administration's warrantless eavesdropping program.

UPDATE IV: A fluid and well-informed discussion of the legal issues governing this data-collection program is provided here by Kate Martin, the Director of the Center for Strategic Studies, at the ACS Blog.

No need for Congress, no need for courts

(updated below)

I just this morning read the obviously significant USA Today article detailing the fact that the NSA is maintaining a comprehensive data base of every call made by every American – both internationally and domestically – whether they have anything to do with terrorism or not, obviously all of this without warrants or oversight of any kind. I'm not going to pretend to have all of the legal issues figured out in two hours, and so I won't yet opine as to whether there are serious grounds for arguing either that this is legal or that it’s illegal.

But there is one highly significant, and revealing, item buried in the USA Today article regarding Qwest's refusal to cooperate with the NSA’s demands (and it heroic refusal to capitulate to the NSA’s intimidation tactics and threats) that it turn over its customers' calling data:

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

This theme emerges again and again. 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 (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), 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. As Madison warned in Federalist 47:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.

The attribute which most singularly defines this administration is its insistence that our Government is based on unilateral and unreviewed Presidential Decree. The President directs the telecom companies to turn over this information and they obey. That’s how our Government works, as they see it. And if the telecom companies are concerned about their legal liability as a result of laws which strongly suggest that they are acting illegally if they comply with the President’s Decree, and thus request a judicial ruling first, that request, too, is denied. There is no need for a judicial ruling once the President speaks. What he orders is, by definition, legal, and nobody can say otherwise, including courts.

Amazingly, again and again, they don't even want their own Justice Department to know what they are doing because they are afraid that DoJ lawyers will tell them that it is against the law. They don't want to hear that it is against the law. As USA Today reported: "For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events." They know very well that their conduct might be, and in some cases that it is definitely is, illegal, but they are purposely avoiding having the DoJ be able to opine on the legality of their behavior.

That is the same inherently corrupt motive which led the NSA to refuse to give DoJ lawyers security clearance to enable the DoJ to investigate whether their lawyers acted unethically in connection with the NSA illegal eavesdropping program. As intended, that refusal caused the DoJ to shut down its investigation. As Jack Balkin notes about that cover-up, also disclosed yesterday:

Note the irony: While private phone company employees at AT&T and other corporations must have sufficient security clearances to know what is going on in the NSA program- because they are helping to run it-- the Justice Department's own ethics lawyers do not. It's a convenient way to forestall any investigation into wrongdoing.

They desperately avoid not only a ruling from a court as to whether their conduct is legal, but also opinions from their own Justice Department lawyers, likely driven by the fact that many DoJ lawyers opined that the NSA program was illegal -- something they do not want to ever hear again.

Ultimately, I think that the impact of this disclosure may be more political than legal. I think most Americans will find it simply creepy that the Administration bullied the telecom companies to provide them with data to enable it to keep track of every single call every American ever makes, no matter who they are.

But beyond that, when the NSA scandal first broke, the administration’s principal political defense was to continuously assure Americans that they were eavesdropping only on international calls, not domestic calls. Many, many Americans do not ever make any international calls, and it was an implicit way of assuring the heartland that the vast bulk of the calls they make – to their Aunt Millie, to arrange Little League practice, to cite just a few of the administration’s condescending examples – were not the type of calls being intercepted. The only ones with anything to worry about were the weird and suspect Americans who call overseas to weird and suspect countries. If you’re not calling Pakistan or Iran, the Government has no interest in what you’re doing.

That has all changed. We now learn that when Americans call their Aunt Millie, or their girlfriend, or their psychiatrist, or their drug counselor, or their priest or rabbi, or their lawyer, or anyone and everyone else, the Government is very interested. In fact, they are so interested that they make note of it and keep it forever, so that at any time, anyone in the Government can look at a record of every single person whom every single American ever called or from whom they received a call. It doesn't take a professional privacy advocate to find that creepy, invasive, dangerous and un-American.

UPDATE: Two additional points worth making: (1) One of the disturbing aspects of the NSA warrantless eavesdropping program was that it was seen by many intelligence professionals as a radical departure from the agency's tradition of not turning its spying capabilities on the American public domestically. The program disclosed yesterday decimates that tradition by many magnitudes. This is a program where the NSA is collecting data on the exclusively domestic communications of Americans, communicating with one another, on U.S. soil -- exactly what the NSA was supposed to never do.

(2) The legal and constitutional issues, especially at first glance and without doing research, reading cases, etc., are complicated and, in the first instance, difficult to assess, at least for me. That was also obviously true for Qwest's lawyers, which is why they requested a court ruling and, when the administration refused, requested an advisory opinion from DoJ.

But not everyone is burdened by these difficulties. Magically, hordes of brilliant pro-Bush legal scholars have been able to determine instantaneously -- as in, within hours of the program's disclosure -- that the program is completely legal and constitutional (just like so many of them were able confidently to opine within hours of the disclosure of the warrantless eavesdropping program that it, too, was perfectly legal and constitutional). Having said that, there are some generally pro-Bush bloggers expressing serious skepticism over the legality and/or advisability of this program.

Embrace the anger - It's not 1972 anymore

There isn't much meat left on the bone known as the Richard Cohen column from the other day, what with all the ravenous savages having feasted on it for a couple of days, including those with a particularly voracious appetite who even greedily went back for second helpings. But there is an "idea" floating around in Cohen's column that is all-too-common, including among many Democrats, and is therefore worth examining:

The anger festering on the Democratic left will be taken out on the Democratic middle. (Watch out, Hillary!) I have seen this anger before -- back in the Vietnam War era. That's when the antiwar wing of the Democratic Party helped elect Richard Nixon. In this way, they managed to prolong the very war they so hated.

The "Angry Left" cartoon has forever been a favorite tactic of those models of Civility and Rhetorical Restraint on the Right -- and as demonstrated by the head-patting praise which the "good boy" Cohen received from Bush supporters, it still is. And many Democrats have internalized it, too. Anger is a bad, bad thing and must be avoided at all costs. McGovern's 1972 defeat proves that.

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 -- like Joe Klein, or Richard Cohen, for example.

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.

Beyond those generic observations about anger, this is simply not 1972 anymore. Richard Nixon didn't win the 1972 election because Democrats were angry. He won because he was a highly popular president whose policies Americans agreed with and liked. His approval ratings hovered steadily at 60% from the time he was elected until well into the Watergate scandal. Nixon was elected because he was popular (see UPDATE below).

The contrast with our current situation could not be more stark. Bush is as unpopular now as Nixon was popular then. Not just "the Left," but a majority of Americans, is disillusioned and angry with Bush. After all -- although Beltway pundits find this notion to be oh-so-distasteful and overblown -- a majority of Americans believe that Bush "intentionally misled" the nation into invading Iraq. Don't you think they're angry about that? How many people do you know who aren't angry when they think that someone has "intentionally misled" them into anything -- let alone that a President did so in order to induce their support for a disastrous war on false pretenses?

Every time there is another story about American soldiers dying in Iraq or Iraqi Government death squads or brewing civil war, Americans are reminded that we are stuck over there with no end in sight -- and that we went there because we were told we had to for non-existent WMD's and (implicitly) because Saddam planned 9/11. And it turns out that none of that was true. Of course people are angry about that, and there is no equivalent blow to a president's credibility -- not in 1972, maybe not ever.

And every poll makes clear that Americans dislike and distrust this president and his party, and want more scrutiny of them, not less. As Democrats.com pointed out yesterday in response to the discussion here about whether Democrats should run away from their intent to investigate the administration, an overwhelming majority of Americans -- 67% -- believe that Congress has given too little scrutiny to the administration's conduct. People know that there are things that are profoundly amiss in our country, that this misconduct has been concealed, and they are obviously deeply disturbed by it. What else would explain a President's crashing to humiliating and soon-to-be-historic-levels of unpopularity -- even in a supposed "time of war"?

The right wing understands the value of political anger all too well. Their biggest stars and most influential pundits traffic in the angriest and most bitter rhetoric imaginable. We know the routine by heart now -- liberals are godless traitors and mentally ill, subversive, fascist losers who should be spoken to only with baseball bats, sedition convictions, and nooses. While the Right insists that liberals are terribly rude for not being more civil -- and also, for their own good, nurtuingly tells liberals that they should not be so angry if they want to win elections -- the Right long ago dispensed with any limitations on the ugliness and anger of the rhetoric they invoke, routinely. Anyone with any doubts about that can just click on a few of this paragraph's links, if you can stomach it.

The crux of the successful Republican political movement in the 1990s was based on few things other than anger. And it still is. The Republican Party was driven by the "angry white male" throughout that decade, who insisted that Hilary had Vince Foster murdered and the Clintons were taking over the world with UN black helicopters. The anti-Clinton movement was symbolized by that ultimate manifestation of political anger -- militias:

[Covert Action Quarterly investigation Daniel] Junus wrote that: "The militias represent misguided right-wing populism with real and imagined grievances stoked by a politics of resentment and scapegoating." Typically, members are angry men with military training who believe that their way of life is being threatened; that they have been backed against a wall.

Republicans didn't send out their whiny Richard Cohens to condemn this anger and tell everyone to just stop it. They did the opposite -- they recognized that anger drives people to political activism and to the polls, and they rode that deep-seated anger to take over the House, solidify their gains over state legislatures, and defeat Clinton's Vice President in 2000 with a Southern candidate who exploited those cultural resentments.

Karl Rove is the master of culling and using political rage. I've been reading some of the interviews from the book Patriotic Acts, by Bill Katovsky, which compiles a series of oral histories on dissent. One of the people interviewed in the book is Max Cleland, and here is what he says about why he lost his 2002 Senate race:

By 1968, Nixon had embarked on the Southern strategy: "Go after the redneck boys on race. It'll bring 'em in every time." You know, it has become more subtle over the years. Certainly, it's what Ralph Reed had used against me in my 2002 re-election campaign.

The Confederate emblem on the state flag was the incendiary bomb in Georgia politics. And it hit the third rail. Which killed us all. It gave the hatchet to the right wing. They raised the issue that Democrats were trying to take away Georgia's culture. The cultural war included the Confederate flag. That was their symbol. . . .

Karl Rove got a lot of money to come down and push nothing but voter registration and turnout for white males. That's what was coming off the charts in anger against Democrats. . . .

They buried us with their strategy. It turned out an extra 140,000 angry white males who normally don't vote. And it turned the mid-term election. Governor Roy Barnes and I lost by apporximately the same margin.

Republicans rode the anger so hard that they even ended up impeaching a President with very high approval ratings -- something which conventional wisdom (but few facts) maintain hurt the Republicans, but Cleland knows otherwise:

I voted not guilty. While Clinton lied and so forth, it certainly was not an impeachable offense. But it brought down the Democratic progress, and it activated the radical right. It gave them something to beat the Democrats over the head within the elections of 2000. Which is one reason Bush won.

Anger has been the great driving force for Republicans. It is the language they speak. And I'd go so far as to say that no political movement could really succeed without the passion of anger. People need a reason to devote their time, money and energy to a political cause. That incentive will usually come in the form of believing that there is something terribly unjust, corrupt and/or dangerous about the current political situation, and in people who are alive and impassioned, that will usually result in some anger. Those who have no passion or beliefs and are more interested in showing how rational and balanced they are will turn up their effete noses at displays of anger, but it is a potent and necessary force to enroll people in political change.

There are some basic facts which Democrats like Cohen and The New Republic mysteriously seem not to be able to ingest. Let's review a few of those. Republicans don't tell Democrats to repudiate their "angry base" because they want to help Democrats figure out how to win elections. Republicans don't actually want Democrats to figure out how to win elections.

Republicans tell Democrats to repudiate their "angry base" so that eager-to-be-liked-and-desperate-to-be-considered-reasonable Democrats like Joe Klein, Marshall Whitman, Joe Lieberman and Richard Cohen will attack other Democrats and depict them as radical, deranged freaks. Because when a bulk of Democrats are so eager to curry head-pats from the Right that they spend more time attacking the symbols of their own party than they do attacking the Right, that is a good thing for Republicans. It breeds divisiveness among Democrats, confuses their message, and destroys the symbols of their own party. "Hey, look - even Richard Cohen and Joe Klein and Joe Lieberman and The New Republic say that those Democrats are deranged and angry and radical and anti-American. And all the while, they say how George Bush and Newt Gingrich are really great guys for whom they have the highest respect."

That is why the Right encourages this idea among Democrats that anger is fatal and to be avoided - even as they perfect the art of using it themselves. They know from lots of experience that a political party that coalesces around its impassioned anger can be very successful. The sooner Democrats figure that out, the better off they will be.

UPDATE: A commenter notes that Cohen was likely talking about the 1968 election, not the 1972 election, "when the antiwar wing of the Democratic Party helped elect Richard Nixon." That's probably true. But the anti-war protestors of 1968 weren't trying to defeat Richard Nixon. They were trying to force the Government to withdraw troops from the Vietnam. And the images which I presume Cohen is invoking -- violent rallies and convention protets -- is a far, far cry from anything happening today (notwithstanding Cohen's self-indulgent and disgustingly overblown reference to "digital lynch mobs").

Were those images of street violence and unbridled rage a cause in Humphrey's defeat? Possibly, and it seems that many who lived through that time were so trauamtized by it that they vowed never to offend anyone from the other party ever again -- a vow to which they have steadfastly adhered for these almost four decades. But from that hardly follows that anger should be forever avoided as a political tool. As Republicans have demonstrated for quite some time, the party which runs away from anger is the party which stands for nothing, inspires nobody, and loses.

Still searching for excuses for Bush's lawbreaking

(updated below)

A virtual celebration is taking place among Bush-following bloggers because they think there has been a major discovery which proves once and for all that The Commander-in-Chief did nothing wrong when ordering warrantless eavesdropping on Americans even though the law makes it a criminal offense to do exactly that. They believe that magical new discovery shows that George Bush isn't the only to one to violate surveillance laws.

Franklin Roosevelt, they claim, also broke the law when ordering eavesdropping, and for some reason, they seem to think this constitutes a defense to Bush's lawbreaking. Powerline laments: "It is astounding that so little note has been taken of President Roosevelt's actions in connection with current controversies." Matthew Franck at National Review claims that "practically every constitutional argument now ginned up by the Democrats against George W. Bush’s NSA surveillance program was met and turned aside by FDR." All of this hoopla is based on a single article from that magazine so well-regarded for its scholarly articles in history and law, The American Spectator.

Despite the outburst of joyous hysteria among Bush followers -- "hey look - new discoveries show that the Leader isn't the only one to have broken the law!" -- none of this is new. Here, for instance, is an October, 2001 article from Slate's David Greenberg discussing Roosevelt's pre-war surveillance activities in the face of the wiretapping prohibitions in the Communications Act. Greenberg was reviewing the history of wiretapping abuses from the Roosevelt administration through the Nixon administration in order to provide context for the then-pending amendments which were supposed to fix the problems with FISA. For multiple, painfully obvious reasons, these claims about Roosevelt do not remotely provide a "defense" for Bush's violations of the law:

First, all other issues aside, it ought to go without saying -- but apparently it does not -- that to prove that Franklin Roosevelt engaged in wrongdoing or broke the law does not constitute a defense for George Bush's lawbreaking. It isn't news that other Presidents have broken the law. Richard Nixon broke the law, too. Proving that other presidents acted illegally doesn't exonerate George Bush from his deliberate acts of lawbreaking. That's just obvious.

Second, the ambiguities in the eavesdropping prohibitions in the Communications Act during Roosevelt's presidency were manifest. The wiretap ban was generated by concern over the Hoover-led FBI's domestic law enforcement efforts against violations of prohibition laws. As a result, the law specifically made it a crime not merely to intercept communications but to "divulge or publish" the content of those communications. Thus, it was far from clear whether the law prohibited wiretapping for foreign intelligence gathering purposes, as opposed to domestic law enforcement purposes. That was the ambiguity which Roosevelt believed justified his use of eavesdropping in order to monitor foreign espionage activities.

By contrast, FISA has no ambiguity, and not even the Bush administration claims it does. To the contrary, its title -- Foreign Intelligence Surveillance Act -- makes plain that it applies to eavesdropping devoted to the collection of foreign intelligence, and FISA expressly applies both in times of peace and in times of war. In sum, there is no question that FISA prohibits exactly the warrantless eavesdropping in which the Bush administration deliberately engaged, and Attorney General Alberto Gonzales unambiguously admitted this at his December 19, 2005 press briefing with Gen. Michael Hayden:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.

The Bush administration does not claim that there is ambiguity as to whether FISA encompasses the type of warrantless eavesdropping the President ordered. There is no ambiguity. It prohibits such eavesdropping on its face, and the administration admits this. It's true that they peddle legal theories arguing that they have the right to engage in warrantless eavesdropping notwithstanding FISA's criminal prohibitions of that eavesdropping, but they do not deny -- and they never have -- that FISA unambiguously outlaws precisely the type of eavesdropping the president ordered.

Put another way, Roosevelt understood the law to permit the eavesdropping activity he ordered. He therefore believed he wasn't breaking the law but was acting in compliance with it. By fundamental contrast, Bush understood perfectly that FISA prohibited exactly the eavesdropping he ordered -- there can be no doubt that FISA covers exactly this situation -- but he ordered the eavesdropping anyway because he believes he has the power to act even in violation of Congressional statutes. Roosevelt believed that he was complying with the law. Bush knew he wasn't but did it anyway because the theories of lawbreaking he has adopted vest in him the power to break the law. Those acts are not comparable. They are opposites.

Third, and perhaps most importantly, to point out that there have been past instances of eavesdropping abuses in this country -- as though that somehow justifies Bush's violations of FISA -- is backwards logic. As David Greenberg discusses (and as I document at length in my book), the domestic surveillance activities of World War II steadily expanded in scope and abuse -- from Truman's interception of all telegraphs transmitted in the United States to the FBI's sweeping surveillance of political figures such as Martin Luther King, Jr. under Kennedy and Johnson, and culminating with the extraordinary wiretapping abuses of the Nixon administration. Indeed, as Greenberg notes, "Roosevelt specified that his order applied to espionage by foreign agents," and the scope of that order steadily expanded under Truman, Eisenhower, and subsequent presidents, to include U.S. citizens.

All of these surveillance abuses, uncovered and documented by the 1976 report of the Church Commission, shocked and outraged the country. In the aftermath of those revelations, Americans demanded that clear-cut, definitive limits and safeguards be placed on the Government's powers to eavesdrop on American citizens.

The lack of safeguards on the eavesdropping powers exercised by Roosevelt and subsequent presidents is exactly what led the nation to enact FISA -- for the specific purposes of prohibiting those abuses by criminalizing warrantless eavesdropping and allowing eavesdropping only with judicial oversight. Americans in 1978, by consensus (the vote in the Senate approving FISA was 95-1) made it a crime to eavesdrop without warrants because they wanted to put an end to the history of abuse by past administrations, and they thus made the law crystal clear that warrantless eavesdropping would henceforth be a crime. To cite that history of abuse by past Presidents as though it somehow justifies violations of FISA is illogical and perverse beyond what can be described.

This "defense" would be like justifying violations of recently enacted anti-drunk-driving laws by pointing out that people used to drive drunk and got into accidents with great frequency, and therefore there is nothing wrong with people violating anti-drunk-driving laws now. Of course people drove drunk previously. That's precisely why the country enacted stringent laws criminalizing that activity. Going into court and defending some DUI defendant on the ground that many other people drove drunk in the past is not even a coherent argument, and yet that is what this new claim amounts to -- "past presidents illegally eavesdropped and therefore Bush is justified in violating the law that Americans thereafter enacted in order to prohibit such eavesdropping abuses."

In 1978, Americans made it a crime for their government to eavesdrop on them without judicial approval -- and they expressly applied that prohibition both to peacetime and wartime. The fact that an argument can be made that Franklin Roosevelt may have violated a much more ambiguous statute does not even remotely justify George Bush's violations of the crystal clear FISA. George Bush has no right to engage in behavior which the American people through their Congress made it a criminal offense to engage in. Period. That his followers are scraping around for arguments such as "55 years ago, Roosevelt did something similar" is a pretty good indication of how sparse are the available defenses.

UPDATE: One other point is worth making here. Whatever doubts existed as to whether national security demands entitled a President to violate the law were fully and unambiguously resolved by the U.S. Supreme Court in 1952, when it ruled in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952) that President Truman's claimed need to sieze the steel factories in order to support the nation's Korean War effort did not entitle him to act contrary to Congressional intent that he not have seizure power. As Justice Jackson put it in his Concurring Opinion:

The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law. Our Government [343 U.S. 579, 655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law.

No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Any presidential claim of lawbreaking powers was smashed by Youngstown. And let's just repeat that last excerpted line again: "men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations."

Investigations are so very rude and distasteful

(updated below)

There seems to be an emerging consensus among the coddled, effete Beltway media stars that it would be highly improper and uncouth for the Democrats -- should they take over one or both houses of Congress in November -- to launch investigations into the various, thus-far-uninvestigated lawbreaking and corruption scandals surrounding the Bush administration. Regardless of political differences -- which the Beltway media will allow -- the media stars are proclaiming that Democrats should pledge in advance not to engage in any of that nasty investigative business.

After all, subpoenas are mean-spirited, disruptive and genuinely harmful -- they are just very uncivil - and they are not what upstanding Washington needs or deserves. They bring a real ugliness and meanness to the Capital. Say what you will about the Bush administration's competence or ideological views, but we should all agree that they are good guys, well-intentioned with good hearts, and are driven by a core of good faith. They may be wrong sometimes -- sure, that's all well and good to point out -- but they are not corrupt or lawbreakers or anything like that. Only the further fringes would think something so acidic and absurd -- something so extreme. And so it's just wrong, mean and unwarranted to subject administration officials to the unpleasantness of being investigated.

Here is the bloated Guardian of Beltway Civility himself, Tim Russert, expressing his disdain this weekend for investigations and demanding that Nancy Pelosi pledge that Democrats will not puruse them too aggressively if they take over the House (h/t C&L):

MR. RUSSERT: So there would be investigations.

REP. PELOSI: Well, what I told them is we will have an investigation of energy prices. We will have an investigation. Then how that was done...

MR. RUSSERT: How about of the war?

REP. PELOSI: That would be if—I said we’d have hearings on the war. We’d have hearings on the war. But I don’t see us going to a place of an impeachment or all of that.

MR. RUSSERT: Is impeachment off the table?

REP. PELOSI: Well, you never know where the facts take you, but the—for any president. But, but that isn’t what we’re about. What we’re about is going there and, and having high ethical standards, fiscal soundness and a level of civility that brushes away all this fierce partisanship.

MR. RUSSERT: Well, should John Conyers take his Web site down, talking about impeachment?

REP. PELOSI: John Conyers does what he does on his Web site. John Conyers is an enthusiastic advocate. I am the leader. Our caucus will decide where we go. But it’s not—you don’t decide to impeach. You—the facts support something like this, and that’s not where we’re going.

MR. RUSSERT: But the impression, Congresswoman, is that the Democrats take control of Congress it’s payback. They’re going to have the subpoena power...

Whenever journalists like Russert attribute some belief to the passive voice -- the subject-less formulation of "the impression is out there that . . ." -- they are just voicing their own views, and here, Russert's views couldn't be clearer. There is no reason whatsoever to exploit control over the House to conduct investigations into various corruption and lawbreaking scandals. The only possible reason Democrats would do that is a petty, vindictive desire for -- to use Russert's word -- "payback."

It can't possibly be the case that there are real scandals and acts of wrongdoing concealed by the impenetrable wall of secrecy the administration has built and which its zombified allies in Congress and the media have protected. Clearly, the administration has done absolutely nothing which needs to be investigated. That's obvious. The only thing that could motivate anyone to want to investigate the Bush administration is a lowly and uncouth desire for vengeance.

Chris Wallace peddled the same theme last month when questioning Sen. Dick Durbin. After demanding that Durbin pledge in advance not to even entertain the idea of impeaching Bush and Durbin refused, Wallace expressed his outrage: “Are you saying Senator, that you would consider the impeachment of a Commander-in-Chief in time of war." The national media has plainly embraced the idea that Congressional investigations of The President -- based on some sort of raucous and crazed notion that he did something wrong or that he's not a real good guy -- is just out-of-bounds, something that could be designed only to feed the rabid Leftist hatemongers and/or to seek vengeance, and is clearly not something that serious, mainstream, responsible national political figures could endorse.

The ironies here -- not to mention the hypocrisies -- abound. One of the principal reasons why investigations are so desperately needed into the various lawbreaking and corruption scandals is precisely because the media, with rare exception, have profoundly failed in its central function -- to serve as an aggressive adversarial check against the Government.

For the media to take this sort of etiquette-based stance against investigations -- to actually see investigations as some sort of uncouth breach of etiquette, an upsetting disruption (exactly how they saw Stephen Colbert's criticisms of the President) -- is just staggering. The media doesn't exist to do anything other than investigate and exert skepticism over the Government's statements and actions. They barely do that anymore, which is why we know so little about what this administration has done. The media is supposed to be inherently pro-investigation. It's intended to be an investigative body, to subject government conduct to aggressive scrutiny and be devoted to the exposure of information which the Government is attempting to conceal from its citizens. To listen to these media stars effetely condemn investigations as though they're something which only hateful, rabble-rousing radicals would want to pursue tells you all you need to know about how fundamentally broken the national media is.

The reality is that people like Tim Russert and Chris Wallace are so entrenched in the national political Beltway system that it becomes the first source for how they perceive themselves. They are not journalists first. They are national Beltway stars first. As a result, they don't see high government officials as their adversaries because those high government officials are part of the same Beltway elite institutions and are their friends, partners and allies before they are anything else.

Journalists like Russert identify with the political figures they are supposed to be investigating and fighting against more than they identify with anyone else. They see them as their partners, as one of them -- all members of the same Beltway elite institution which is the source of their wealth, their fame, their prestige, their self-esteem. They derive everything that matters to them from that institution, and so that institution is the one that demands their principal allegiance and becomes the principal source of their identities. And while those who are assigned the journalist part in the Beltway Play will go through the motions of playing their roles -- pretending to question political figures aggressively, to disclose secret facts about them, etc. -- they really feel affinity and friendship and affection more than they feel anything else towards them.

That is why they find the idea of mean-spirited investigations so distasteful and wrong. It's one thing to play the role of having political disagreements with someone. Like WWF wrestling, the rules of the game are well-known to everyone and as long as everyone abides by those groundrules, it's all in good fun. They entertain the crowd with their faux conflict and nobody gets hurt. But investigations hurt people. Sometimes, people get accused of criminal behavior! They have to pay for lawyers which can be really expensive. It impacts their lives and can really harm a person's career, so it's out-of-bounds.

Accusing someone of being inept or wrong -- sure, that's all good, clean fun. But prosecutors and subpoenas and accusations of criminal wrongdoing -- that's just nasty. It disrupts the fun and it's unnecessarily mean. Besides, they personally know all the gentlemen and ladies in the Bush administration - they've met their spouses and kids, laughed together at the same jokes, helped their friends and associates get jobs. These are good people, even if they are politically wrong. They are not corrupt and they are not criminals, and it is wrong to treat them as such.

This same dynamic is what explains why Dianne Feinstein would just so suddenly and abruptly -- and pointlessly -- jump into the controversy over the President's appointment of Gen. Hayden to be CIA Director and help the President by declaring her support for Hayden. After I posted about this yesterday, I thought about what would really motivate Feinstein to do that. She's a life-long Democrat; she presumably wants Democrats to take over the Senate in November, if for no other reason than to increase her own influence; and she can't possibly want to help the President out of political difficulties, even though that is clearly the effect of her conduct. So why would she do that?

I think Feinstein gave the real reason why she did it -- she likes Gen. Hayden, and therefore wants to support him. Both of them have been around DC forever. He's a career military bureaucrat who meets all the time with Senators and she's on the Intelligence Committee and is always working on military and foreign affairs matters. To her, he isn't a pro-Cheney military ally or one of the primary culprits in the illegal eavesdropping on Americans (which she claims to find so very "troubling"). No - to Feinstein, Hayden is the nice, upstanding military officer who is part of the same Beltway elite circle as she and her husband are, and she can't fathom that there would be any good reason to do something as mean and aggressive as oppose his new promotion.

Virtually none of these people who play the roles of Democrats or Republicans, or journalists or politicians, are really any of those things. They all have far more in common with one another than they have differences.

I don't think this is unique to those circles -- when I was practicing law, I noticed that even the most passion-driven lawyers eventually come to look at adversarial lawyers and judges (whom they begin by fighting) as their real comrades and allies. They befriend them, end up in the same associations and clubs and parties, and come to view the legal profession as their real home and all those who are a part of it as their real allies.

Advocating on behalf of the client and warring against other lawyers and even the judge is the assigned role, but it's not the real passion. Many of them go through the motions and play the roles of pretending to have principal allegiance to their clients, but the reality is that the clients are viewed as outsiders, props really, and the real allegiance and affection is to the system itself, since it is that system which provides the material wealth, the security, the prestige, etc. It becomes very clubby and the desire to do anything other than be a part of and to protect it disappears for most of them over time. That is what I think happens to most of those national Beltway figures.

This country desperately needs investigations into what the Bush administration has done for the past five years. They have had a frighteningly passive media and a creepily compliant Congress, both of which have almost completely relinquished their oversight and investigative responsibilities. Those failures, combined with the fact that the administration has embraced government secrecy as one of its most passionately held "principles," means that Americans know remarkably little about what our government has done with regard to the most significant matters of the day.

Investigations into the conduct of our political leaders are not gratuitous or mean or lowly. Being informed about what our government has done -- particularly where there are clouds of suspicion and even illegality surrounding that behavior -- is of the highest importance. All investigations do is reveal the truth. Subpoenas are intended to do nothing other than compel the disclosure of information which has been concealed. Democracies need that, particularly after five long years of suffocating secrecy and a lack of any real checks on the presidency.

Democrats should not run away from their intention to investigate but should clearly and unapologetically explain to Americans why investigations and uncovering the truth are so critically important, particularly when it comes to a secrecy-obsessed administration which Americans do not trust or like, even though the Beltway media stars so plainly do.

UPDATE: Swopa at Needlenose has an interesting post, based on the last few columns of the odious Richard Cohen, that expresses a variant of the theme in this post: namely, that those who are admitted members of the "royal court" of D.C. are entitled to great deference and are to be shielded from the angry attacks of the masses -- hence, no angry e-mails to Richard Cohen, no mean jokes to or about The President, no intrusive leak investigations of Karl Rove. But anything done to those not admitted to the the Court is fair game:

If you're King Dubya, or Prince Karl, or even a hanger-on like Sir Richard, anything that discomfits you is worthy of condemnation. But if you're outside that charmed circle -- or, even worse, suffer a "ricochet" because of the actions of someone within it -- then Cohen's message is, "Suck it up, bitch, this is a tough town."Like Colbert and those nasty emailers, Plame and her husband are peasants who are expected to know their place and stay away from the mansion.

The permanent Beltway class unquestionably has come to believe that they are all part of the same elevated, elite enclave. All of their prestige, influence and esteem derive from their position in it, and they protect it, and each other, at all costs. Like all clubs, this one has its set of spoken and unspoken rules. And Membership has its privileges.

Members can take liberties with one another that non-members can never take when addressing Members -- hence the hostility towards non-Member bloggers who don't know their place when addressing Members, outsider comedians who make rude jokes to the President about off-limit topics (such as the President's sad approval ratings), and investigations designed to expose the ruling Members as deceitful and corrupt. Democratic or Republican, liberal or conservative, journaist or politician -- all of it gets subsumed by their principal allegiance to their Beltway club.

Helpful Democrats run to Bush's rescue

Numerous Republicans have strongly objected to the president's nomination of Gen. Michael Hayden to be CIA Director, so it's a good thing there are Democrats around like the always-accommodating Dianne Feinstein to help the President out:

Democratic Sen. Dianne Feinstein of California -- who sits on the Senate Intelligence Committee -- said she has no objections to Hayden's nomination. "I think the most important thing is that the individual be a competent, qualified, intelligent professional, and Mike Hayden is all of those things."

She said that while she supports a civilian leader of the CIA, "I don't know a civilian that's really as well-connected and competent in the present stage of intelligence in America, and I think that's relevant."

Republicans like Sen. Arlen Specter have said that the nomination of Hayden, who oversaw the NSA warrantless eavesdropping program, presents an excellent opportunity to finally get to the bottom of how the administration has been secretly eavesdropping on Americans:

"There is no doubt there's an enormous threat from terrorism, but the president does not have a blank check," Specter said on "Fox News Sunday." "Now, with General Hayden up for confirmation, this will give us an opportunity to try to find out."

But fortunately for the President, Democratic Rep. Jane Harman is having none of it, as the CNN reports:

Rep. Jane Harman, the ranking Democrat on the House Intelligence Committee, warned against making the wiretapping the focus of hearings.

"His confirmation should not be about whether you're for or against the NSA program," said Harman, D-California. "It should be about whether he's the best man to transform the CIA into the premier clandestine service for the 21st century.

After The New York Times disclosed the warrantless NSA program, Harman ran around for a few weeks -- or rather, was paraded around on FOX News for a few weeks -- in order to say over and over, like some hynoptic mantra, that the program was "legal and necessary." That enabled her to be the lucky beneficiary of posts like this one from Michelle Malkin disciple A.J. Strata, who said that Harman was a Democrat he could vote for becasue she "exemplifies credibility and seriousness about national security."

Yesterday, Harman helpfully warned that the mere fact that Hayden oversaw, and became one of the principal defenders of, the administration's illegal eavesdropping on American citizens is completely irrelevant to whether he should be come Director of the CIA. In fact, Harman can barely think of an issue more irrelevant to Hayden's confirmation than the illegal eavesdropping program he implemented and continues to defend.

Some Democrats have said they object to Hayden's appointment -- both on grounds that it would give excess control over intelligence to the military and because of his ties to the illegal NSA program. But Feinstein and Harman now disagree, thus ensuring that Democrats, as usual, have a muddled, conflicting message -- a speciality of both Feinstein and Harman.

So, to recap: the extremely unpopular Bush nominates as CIA Director (a) an active military general who (b) is a close ally of Dick Cheney, (c) is the person most responsible for, and associated with, the illegal NSA program, and (d) has caused a serious break between Bush and his most reliable Congressional allies. And the first instinct of Democrats like Feinstein and Harman is to prevent any Democratic message unity on this issue and to jump to the defense of the President by defending his pick and insisting that the NSA scandal not even be talked about.

The only thing Feinstein and Harman gain from this is that they get to be patted on their heads as the "reasonable, serious Democrats" for the week - complete with a nice, guaranteed FOX News appearance -- until next week, that is, when they will once again be the subversive, anti-American, liberal Friends of the Terrorists. But it's nice that they're so pleased with the President's choice. I'm sure he appreciates their support at this difficult time for him.

Various items

(updated below)

(1) The Editor-in-Chief of Publishers Weekly, Sara Nelson, has devoted her column this week to discussing the pre-release success of How Would a Patriot Act?, including the impact it could have on independent publishing:

The book, How Would a Patriot Act?, addresses what the author, Glenn Greenwald, deems to be the deceptions of the Bush administration, in a well-reasoned and lively 146 pages priced at $12. But let's not be partisan: the sudden success of Patriot spells good news for the whole publishing business, especially that of the grassroots, independent variety.

Why? Because the book became Amazon's #1 "without a single penny being spent on marketing or advertising," according to Greenwald. The book's sudden and so far enduring popularity (at press time it had dropped only to #160) is all the more intriguing when you consider that the book doesn't, technically, exist yet; its now sold-out first printing of 20,000 copies will be shipped the week of May 15. (A second printing is in the works.)

She also expressed the standard bewilderment at the emerging ability of the blogosphere to compete with, and even surpass, mainstream, conventional corporate promotional tools:

For promotion, she [Editorial Director Jennifer Nix] relied on Greenwald's popular blog and "about five or six" other bloggers to spread the word. Obviously, they managed to do so.

The Internet has been used wisely as a promotional tool before (I'm thinking of author MJ Rose, among many other early adopters) and, as many an anxious refresh-button–pushing author will tell you, a couple of good days on one Web retailer does not necessarily a bestseller make. Still, now that virtually every major retail outlet, online and off, has placed its orders, I can't help thinking we're going to be hearing and seeing more of Greenwald and his Patriot Act.

I've spoken with a lot of reporters from national media outlets over the past week regarding the success of the book. Because the book hasn't been released yet, they are more interested at the moment in talking about how the book has generated so much attention without any paid marketing or advertising than they are in talking about the substance of the book. Most of them seemed genuinely baffled that the blogosphere has the power to generate that kind of impact -- something which, for some time, has been readily apparent to those who participate in the blogosphere. As this realization spreads to those who are still largely unaware of what blogs really are, the blogosphere will be taken much more seriously and will have a much greater impact to influence the national dialogue, something which, as I have noted before, can only be a good thing.

(2) The New York Sun has a surprisingly informative and balanced article on the Bush administration's latest effort to expand its war against investigative journalism -- "with an aggressive and unusual move to force two San Francisco Chronicle reporters to identify their sources for stories about secret grand jury testimony from a federal investigation of steroid use in professional baseball."

There is a long history of striking a balance in this country between allowing investigative journalism to flourish through the use of leaks and the need to safeguard secrecy needs. As is true in so many other areas, every presidential administration since the Roosevelt administration has accepted and worked within roughly the same framework. The Bush administration is waging war against so many of these traditions, and its obsessive efforts to eliminate all anti-administration leaks, and thereby eliminate investigative journalism in this country entirely, is one of its most dangerous assaults on the operating rules to which we have collectively agreed.

The administration is an aggressive practitioner of politically self-serving leaks, and is seeking to ensure that all leaks are eliminated other than those which serve its interests and promote its version of events. Just imagine what we would not know about our government over the last five years if there had been no leaks -- warrantless eavesdropping, the use of torture and rendition, secret Eastern European gulags, Abu Ghraib, the inconvenient pre-war intelligence which was ignored. And then imagine the even more extreme measures the administration would have felt free to pursue had they known that there was no chance of leaking. That is the world they are trying to create.

(3) Following up on the discussion from the last few days over the efforts by conservatives to disassociate themselves from the failed Bush presidency, Digby has a great post detailing the by-now familiar tactic of smearing anyone with the curse-word "liberal" who is to be held out as impeding the Success of Conservatism -- whether that be military Generals, career CIA agents, or even the President himself:

As we all know, conservatism itself cannot fail. It can only be failed. And it isn't just the mediocre conservatives think tank intellectuals who believe this. Here's a
commmenter on the blog Parapundit writing about Bush and the US Military:

It would still be possible to win if Junior was willing to brutally prosecute the war, as Roosevelt or Truman would have done. It is clear now that Shrub is way too liberal for that. It is not clear if he could have gotten away with it even if he was not a modern liberal. It is not clear if US Army is capable of prosecuting a brutal war now (but Marines probably could do it), way too many officers are squishy liberals in various stages.

Today, the CIA is crawling with liberals. The military is crawling with liberals. The Bush administration itself is nothing but a bunch of liberals as must be the GOP congress since they signed off on everything Bush has proposed.

The media are, needless to say, nothing but squishy liberals. The country is going to hell in a handbasket. The president and the congress and all their policies are dramatically unpopular. This, then, is just further proof of the failure of liberalism.

The only thing that can save us is conservatism.

Bush supporters have dominated and run every center of government power for the last five years. But still, the failure of the war and of their terrorism policies generally are still all the fault of liberals.

(4) A British helicopter crashed this weekend in Basra, and the grateful, pro-coalition, soon-to-be-our-partner-for-peace Iraqis cheered the crash, attacked the helicopter, and threw stones at it. According to John Podhoertz in the Corner, the people doing this were "followers of the monster-thug Moqtada al-Sadr" -- one of the most popular Shiite political leaders in Iraq. For Podhoretz, this underscores the fact that "one of the biggest mistakes we've made" in Iraq was -- as he revealingly put it -- our "decision to let al-Sadr live."

That seems to be a nice, emerging theme among those responsible for this failed war - that the reason we haven't won in Iraq is because we haven't been violent and ferocious enough. If only we had killed more of their political and religious leaders, they would have been a lot more welcoming to us and we would have won their hearts and minds a lot more quickly. But the liberals in the military and the CIA and in the Bush administration just weren't man enough (the way John Podhoretz is) to do what had to be done, and so we lost. Or, as Digby put it: "The only thing that can save us is conservatism."

UPDATE:

(5) Virtually on cue from the script Digby provided, National Review today has posted an Editorial lamenting all of the horrible failures -- both past and current -- at the CIA, but fortunately, they know exactly what is wrong over there:

Too often the agency has performed that job miserably, the greatest example being its gargantuan miscalculations about the Soviet Union. In retrospect, this is perhaps unsurprising. The CIA has always had a leftist bent, well represented in its upper echelons even under directors of staunchly anti-Communist and pro-national-security orientation.

I don't see how this can be doubted. For an entire generation now, socialist hippies have been faced with the defining leftist career choice -- a post-modern/feminist-lit post at Berkeley, teaching nonviolent protest seminars for Greenpeace and Earth First, or becoming a covert operative for the CIA. The ranks of the CIA have long swelled with lefitsts, which is why it has been so dainty and why it has failed so miserably.

And what does an institution (like the CIA) which is filled with leftists need? National Review has the answer:

The president is has named Gen. Michael Hayden, former head of the NSA and current deputy to national intelligence director John Negroponte, as Goss’s successor. It is crucial that the administration and Hayden make clear from day one that, while Goss is gone, the CIA purge is far from over. Those who are using the agency to undermine the war effort must be rooted out, no matter who is in charge.

That's right. What the CIA needs is a hard-core Stalinist purge of all those Lefitsts who have been ruining it. Or, as Digby put it: "The only thing that can save us is conservatism."

The Bush administration is radical, but not ideological

There have been several interesting responses to the post I wrote regarding the emerging (and largely unprincipled) effort by conservatives to disassociate their political movement from the wildly unpopular George Bush by now proclaiming that Bush is not only a non-conservative, but is actually a liberal. The goal seems to be to ensure that liberalism, rather than conservatism, is to be blamed for Bush's collapsed presidency.

The branding of Bush as a "liberal" is something that appeared in this National Review article by Jonah Goldberg, and my subsequent exchange with Goldberg has spawned further posts on the subject -- including this reasonably substantive new reply from Goldberg himself, this thorough examination from Hunter at Daily Kos of how self-proclaimed "conservatives" actually govern (as opposed to how they theorize), and this not particularly coherent protest from Josh Trevino (at the new, "interestingly" named blog Swords Crossed), which almost entirely misses all of the points that have been made. I wanted to post a further reply because I think these issues are both interesting and important.

(1) My initial post on this topic argued that as a result of the irreversible collapse of Bush's popularity, conservatives have gone from criticizing specific policies of Bush's as insufficiently conservative (something which, I acknowledge, is not new), to actually insisting that he is not a conservative at all, and in Goldberg's case, that he is actually a liberal (something that is strikingly new). When Bush was popular, criticisms from conservatives were always premised on the unchallenged notion that Bush was a conservative, just not always ideologically pure. But now that he is unpopular, we hear that he is not and never was conservative at all, and might even be a liberal -- a significant, even fundamental shift.

In his latest response, Goldberg acknowledges that he "has long criticized Bush's compassionate conservatism as a form of conservatism I don't like, rather than as a form of liberalism." But Goldberg claims that this distinction is "lawyerly and more than a little intellectually dishonest" because his labeling of Bush as a "liberal" was surrounded by caveats and exceptions.

It is, to put it mildly, rather bizarre to watch people claim that there is nothing notable or new about calling George Bush a "liberal" -- caveats or not -- or that doing so is really no different than complaining that his adherence to conservative doctrine is something short of pure and absolute. Since at least the 1980s, our political dialogue recognizes two opposing, hostile camps -- conservatives and liberals. "Liberals" are the traitors, the lunatics, the ones against whom Rush Limbaugh has been viciously railing to 20 million people, 4 hours a day for the last 20 years. "Liberals," as Karl Rove told us, are anti-American and allies of The Terrorists

That's how "liberals" have long been talked about -- they're the subversives, the weak losers, the socialists, the Friends of the Terrorists, the lunatics, the anti-American bad ones. At best -- in more sane, less "unhinged" right-wing circles -- they are wildly misguided and are the political enemies of conservatism. Whichever approach one takes, it is self-evidently startling and politically significant to hear that, after all this time, George Bush -- presumably along with the entire Republican leadership in the House and Senate which passed every spending bill since 2003 -- is, to at least some extent, now one of them, an actual liberal. It is hard to understand how one can pretend that to suddenly stick the "liberal" label on Bush, even partially, is unnotable and really nothing new.

(2) Goldberg's claim that Bush can even remotely be described as a "liberal" is premised on two separate fallacies: (i) that someone who deviates from conservative doctrine or violates conservative principles of government (and therefore is not a conservative) is, by definition, a "liberal"; and, more importantly, (ii) that someone who advocates increased government power or new federal domestic programs is, by definition, a "liberal." Those two flawed premises lead Goldberg to conclude that because Bush has expanded the scope of government power and created new government programs, he is "liberal."

A liberal is not merely someone who advocates increased government spending or new government programs, but instead, is someone who does so in order to achieve specific goals and ends. For that reason, to describe a president as "liberal," it is woefully inadequate to simply demonstrate increased federal spending and increased federal power. One has to know the goals and ends of this expansion.

George Bush has drastically expanded the reach, scope and power of the federal government (something which is un-conservative, at least in theory), but that power has been applied in plainly un-liberal ways, and towards decidedly un-liberal ends. For instance, his administration has run roughshod over federalism and states' rights principles and has sought to expand the scope of the Commerce Clause in order to increase the scope of federal power at the expense of the states (clearly the opposite of the crux of small-government conservatism), but has done so in order to achieve goals which are the opposite of liberalism.

The administration has wielded inflated theories of federal power in order: (a) to interfere in a state court probate proceeding so as to dictate the outcome of an individual's end-of-life decisions; (b) to prevent states from allowing their terminally ill citizens to opt for physician-assisted suicide; (c) to override state law allowing sick people and their doctors to turn to medical marijuana; (d) to federalize laws governing marriage (traditionally the exclusive province of the states) in order to ban same-sex marriages; (e) to empower the FDA to override objective scientific inquiry with religious convictions so as to ban the use of safe and effective pharmaceutical products and nullify scientific consensus on moral grounds; (f) to spend more money and increase law enforcement powers in order to combat adult pornography and gambling; (g) to fund new federal programs to teach Americans about abstinence, promote religious-based teachings, and proselytize about other favored moral concepts; and (h) to increase the power of the Department of Education to regulate and control the nation's public schools through reliance on standardized tests.

These are all instances in which the Bush administration has expanded the reach of federal power and increased domestic federal spending -- often by intruding into areas historically reserved for the states. That conduct is the antithesis of the belief of small-government conservatives in federalism, states' rights and restrained federal power. And yet, in no sense could any of these efforts to expand federal power be described as anything resembling "liberalism." They are nothing other than efforts to increase the power and reach of government in order to coerce behavior or impose ideological constraints on liberty that virtually no contemporary liberal would endorse.

And that relatively innocuous list is entirely independent of the whole slew of highly controversial, power-seizing programs which are of, at best, dubious legality -- including eavesdropping on Americans with no warrants and no oversight, the lawless incarceration of American citizens on U.S. soil with no charges and no trial, the embrace of theories of executive power which vest lawbreaking powers in the President, the use of torture and rendition as interrogation tools, the creation of secret Eastern European prisons beyond the reach of the law, etc. Those are all instances of wildly expanded federal power which cannot be said to be conservative (as George Will, Bruce Fein, Bob Barr, and many other conservatives have eloquently argued), but they certainly could not remotely be described as liberal. Instead, they are really well outside of the spectrum of mainstream ideology, really outside of the American system of government as it has been defined since its founding.

In fairness, there are a handful of Bush programs which can reasonably be said to be more in line with traditional liberalism, the most prominent example of which is Bush's prescription drug plan, but even that can also accurately be described as being more of a windfall to the pharmaceutical and insurance industries than providing value to its alleged beneficiaries.

But regardless of whether the Medicare program approaches traditional liberalism, the vast, vast bulk of initiatives pursued by the Bush administration -- including those which have led to an increase in domestic spending -- have been devoted to a wild increase of federal power, in ways and towards goals that cannot be characterized as remotely liberal. As Hunter observed:

Fiscal and other conservatives may say that they value small government, but it is a fact of the movement that when in a position to actually implement those policies, they do not. . . .

They shuffle the tasks of government around, yes; they close so called "liberal" governmental tasks such as environmental protections and citizen welfare and safety programs, while hyper-boosting "conservative" governmental tasks such as defense spending and business-based "incentives" and other sops . . . but post-Nixon conservatives have been remarkably consistent in their actual actions: increase spending; increase deficits; increase government; increase interference in citizen lives under banners of "religion" and "morality".

This describes the Bush administration's approach quite well. Bush may not be a model of Hayekian conservative theory, but he nonetheless is quite conservative in the way in which modern conservatism manifests when in power -- namely, as a movement devoted to expanding government intrusion and federal power in order to promote its own moral and ideological ends. Many self-proclaimed conservatives have now expressly embraced this so-called "large government conservatism." Bush's governing surely has not been consistent with theoretical principles of small-government conservatism, but it is also as far from liberalism as it can get.

(3) Ultimately, the claim that Bush has liberal tendencies because he has expanded federal spending and federal power ignores the fact that there are two sizable, influential and ultimately mutually exclusive factions which claim the mantle of "conservatism." One says it wants to shrink federal power, and and one wants to increase it in order to enforce conservative ends -- moral, authoritarian and otherwise. George Will put it this way:

The conservative coalition, which is coming unglued for many reasons, will rapidly disintegrate if limited-government conservatives become convinced that social conservatives are unwilling to concentrate their character-building and soul-saving energies on the private institutions that mediate between individuals and government, and instead try to conscript government into sectarian crusades.

The NSA eavesdropping scandal -- involving, as it does, an aggressive expansion of a 1990s conservative bugaboo: federal eavesdropping on Americans -- has also exposed this split. As Jonathan Alter described:

But "Snoopgate" is already creating new fissures on the right. The NSA story is an acid test of whether one is a traditional Barry Goldwater conservative, who believes in limited government, or a modern Richard Nixon conservative, who believes in authority.

In his response on Friday, Goldberg asked: "Was Nixon a liberal, or not?" There is certainly a more reasonable basis for claiming that Nixon, as opposed to Bush, had discrete flourishes of liberalism in his domestic policies -- including the creation of the EPA, expansion of social security, massively increased spending for the Great Society welfare programs, a commitment to affirmative action plans, vastly more intrusive regulation of business, the imposition of wage and price controls, etc.

But Nixon expanded federal government power for entirely un-liberal ends as well, including creating intrusive domestic spying programs, treating dissenters as criminals and subversives, whittling away constitutional protections for criminal defendants, authorizing racially divisive electoral strategies, and embracing theories of executive power and obsessive secrecy which were the (more mild) predecessors of those adopted by the Bush administration. A strong case can be made that Nixon's approach to domestic policy was ideologically mixed.

But virtually none of that is true for George Bush. It is true that Bush is unquestionably not a small-government conservative -- not in any way -- but he is even further away, much further away, from anything resembling "liberalism." His expansions of federal power are devoted to goals which are wholly alien and repugnant to political liberalism, and many of the expanded powers are neither conservative nor liberal because they are simply contrary to the basic principles of American government and well outside of the range our most basic political values.

Ultimately, Bush's ideological purity matters little. It is conservatives whose support twice put him in office, who vigorously supported him for virtually his entire presidency, who never objected to his being described and self-labeled as "conservative," and who -- with rare exception -- repeatedly claimed him as one of their own. I understand the desire to re-cast Bush as a "liberal"; he's now akin to a live grenade frantically being tossed around because nobody wants to be stuck with him in history.

But for conservatives, this effort is futile. Bush is indelibly branded in the public mind as a conservative, largely because of the unyielding support given to him by most conservatives. For that reason, his failure will almost certainly be viewed as a failure of conservatism, despite the last-minute and rather unprincipled effort by conservatives to engage in an emergency re-labeling campaign.

UPDATE: In response to my exchange with Jonah, UNC-Chapel Hill Professor Jonathan Weiler also points out: "The idea that conservatives really wanted to restrain the power of government per se is crap. Since 1980, dominant conservatism has whole-heartedly embraced government as an instrument to advance their preferred interests." Weiler's post contains substantial documentation for the proposition -- also demonstrated by Hunter -- that self-proclaimed conservatives, when in power, have focused far more on expanding federal power (albeit with different ends) than they have on restraining or limiting government power.

What happened to the media's love of sex scandals?

(updated below - and again)

I have no idea whether Porter Goss is involved at all in the Duke Cunningham/prostitution corruption scandal, and I also have no idea whether that had anything to do with his highly unusual, unexpected and abrupt resignation. And neither does the national media know one way or the other if it does. Nonetheless, as Laura Rozen points out in an excellent post, the media (consistent with its tragically typical practice) has reported Goss' resignation primarily by mindlessly and uncritically passing on the White House's (highly suspect) version of what happened as though it is unchallengeable fact:

So, the verdict is in. According to the WP, the NYT, the LAT, Time, etc. Goss was forced out yesterday after months of tension between him and John Negroponte over the CIA's reduced turf, and that President Bush lost confidence in Goss "almost from the beginning" (WP).

As Laura points out, Goss appeared this entire time to be an administration loyalist, and there was nary a peep of complaint from administration supporters about him. Quite the contrary; especially with his aggressive obsession with weeding out whistle-blowers (as opposed to enhancing our intelligence capabilities), he was the toast of the hardest-core Bush followers. This notion that is now being peddled that he was somehow on the outs from the beginning and that his resignation was therefore just some sort of inevitable outcome of those tensions is very difficult to believe. But the White House says it is so, and so, the national media -- as usual -- recites it as fact, even though they know there are multiple other possibilities, some of which are quite tawdry and embarrassing, as to why Goss might have resigned.

I was in a bookstore this morning and sitting on top of a row of books was what appeared to be a used copy of a book entitled The Starr Report -- along with Commentary from the Staff of The Washington Post. I picked it up and opened it to a random page, and the first passage I saw was a two-paragraph, higly clinical description of how Monica Lewinksy arrived at the White House at some exact time on some date, saw President Clinton, told him that she had smoked her first cigar and gave him one as a present, and then proceeded to perform oral sex on him. But he didn't ejaculate, because, he told her, he did not know her well enough yet. She then left. That was the entire passage. I put the book down after reading that.

Things of that nature -- Henry Cisneros' mistress, Vince Foster's murder, Bill Clinton's oral sex practices -- were the crux of our "national news" for years during the Clinton administration. The national media reveled in it. They couldn't get enough of it. They were simultaneously titillated by it and excited at the opportunity to show how morally offended they were by all of it. The filthmonger Matt Drudge, along with sewer elves like George Conway, his then-girlfriend Laura Ingraham, and his current wife Kellyanne Conway -- complete with the Matt-George online AOL chats about penile spots and other pressing matters -- were the ones driving the news; they were the journalistic standard-bearers.

Mysteriously, all of that has come to a startling halt under the Bush administration. Republicans under this administration have been caught up in all sorts of scurrilous and embarrassing scandals, as Digby partially chronicles here and here. Those scandals have received little attention, and the media still treats this administration as though they are beacons of moral rectitude.

Indeed, the media thinks this administration deserves such intense respect that criticisms of the President are deemed rude and cowardly, and any stories that are too dirty and humiliating should, out of a sense of basic decorum and decency, be ignored. Then again, 9/11 changed everything, we are a Nation at War, and anything that harms the Commander-in-Chief harms the United States of America and helps Our Enemies. So the drastic changes in journalistic practices all make perfect sense.

UPDATE: This new article from CNN is a perfect example of this journalistic failure. Amazingly, the article quotes Goss himself as describing his resignation as "just one of those mysteries," but CNN then proceeds to report -- based exclusively on anonymous administration sources -- that there is nothing mysterious about the resignation at all. It is merely exactly what the White House said - a personnel change brought about by bureaucratic infighting.

Thus, we are told things like this:

Intelligence sources have told CNN that Goss' resignation on Friday was triggered by differences with National Intelligence Director John Negroponte over plans to move staff, including analysts from the CIA's counterterrorism center, to other intelligence agencies.

And this:

A senior administration official said Goss' resignation was based on a "mutual understanding" between Bush, Goss and Negroponte.

"When you ask somebody to do very difficult things during a period of transition, it often makes sense to hand off the reins to somebody else to take the agency forward," the senior administration official said.

Why is CNN allowing "senior administration officials" to pass along the official White House version of events while hiding behind a cloak of anonymity? All that does is enable the White House to use CNN as a venue to voice its propaganda while casting the appearance that it is the by-product of investigative journalism and therefore bestowed with credibility (as in: "CNN learned this from its secret leaking sources so it must be true"). The whole article does nothing but repeat White House spin as though it is established fact, relying exclusively on White House sources to do so, and never once even suggests, let alone details, that there are other possibilities to explain the resignation aside from the one the White House is giving.

By definition, that is not journalism. That is stenography. And the affinity which our national media has for the latter, and their equally intense aversion to the former, is so pervasive that it is hard to hold out hope that this will change.

UPDATE II: Some research undertaken by Kevin Drum casts further substantial doubt about the White House's explanation that Goss' resignation was due to a turf war with John Negraponte.

For those in the Comments section who misunderstood the point of this post, allow me to make it again. The point is not that we know that Goss' resignation was due to a connection to the Cunningham scandal rather than because of the turf war claimed by the White House. The point is precisely that the media does not know why Goss resigned, and therefore should not be reporting the White House's explanation as though it is clearly true, particuarly given that the media knows there are other possibilities, which they are keeping from their readers/viewers.

A new branch of the NSA Scandal - appointing Hayden as CIA Director

Reports have surfaced that the leading candidate to replace Porter Goss as CIA Director is Gen. Michael Hayden, who was the Director of the National Security Agency when that agency was ordered in October, 2001 by President Bush to begin spying on Americans without the warrants required by law. When the administration could no longer avoid answering the self-evident question as to why it was necessary to eavesdrop outside of the extremely permissive FISA framework, it was Gen. Hayden whom the administration sent out to give an explanation -- and the explanation Gen. Hayden gave was both incredible on its face and squarely contradicted by the administration's prior statements.

For that reason, Gen. Hayden's confirmation hearings would be certain to entail a (hopefully aggressive) examination as to his overseeing and defending the NSA warrantless eavesdropping program (Sen. Feingold is on the Intelligence Committee, which by itself guarantees at least some worthwhile and probing questions). As the Times put it this morning:

General Hayden, the principal deputy director of national intelligence, would also face serious questions about the controversy over the National Security Agency's domestic surveillance program, which he oversaw and has vigorously defended.

Any event which forces further public discussion, debate and examination of the administration's lawbreaking is a good thing, in my view. Many administration supporters boastfully predicted that this scandal would be all wrapped up and easily tossed aside by now, and yet the opposite is clearly happening -- with the various judicial proceedings challenging the NSA program, Sen. Specter's ongoing investigation and promised new hearings, Sen. Feingold's still pending Censure Resolution, and increased media attention being paid to these lawbreaking issues. This scandal is far, far away from being resolved, and is still quietly though inexorably growing.

Having said that, it is highly illustrative of this administration's mindset that they believe that the best candidate to direct the CIA is the individual who oversaw and vigorously defended the administration's illegal eavesdropping on American citizens. Isn't he the last person who ought to be put in that position?

Avoiding judicial review

Over at Obsidian Wings, Hilzoy reports, via Reuters:

The United States said on Friday it had flown five Chinese Muslim men who had been held at the Guantanamo Bay prison to resettle in Albania, declining to send them back to China because they might face persecution.

The State Department said Albania accepted the five ethnic Uighurs -- including two whose quest for freedom went all the way to the U.S. Supreme Court -- for resettlement as refugees.

Two of the Guantanamo detainees were determined long ago not to be enemy combatants, but the U.S. Government continued to hold them anyway, on the ground that they could not be returned to our good friend, China, because they would be tortured and killed there, but no other country would take them. As a result, the administration simply kept them in Guantanamo and fought their judicial efforts to be freed, even though they were guilty of nothing.

As pointed out by Hilzoy (who, incidentally, commented upon, and substantially improved, the manuscript to my book, and who has been following this case from the beginning):

Arguments in the Uighurs' appeal were scheduled to be heard on Monday morning. (I was going to go to DC to hear them.) I wish I could think it was just a coincidence that after over a year of searching, the administration found a country willing to take the Uighurs today. But I can't. This administration has built up quite a track record of freeing people (or, in Jose Padilla's case, bringing unrelated charges) just in time to render their appeals moot, thereby preventing the courts from finding their conduct illegal or unconstitutional.

I discussed this truly reprehensible tactic in my book at length. The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures -- from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants -- but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.

The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in 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.

And now, they have done the same thing in the case of the Uighur detainees. As Hilzoy said:

Now, right before the Uighurs' case comes before the DC Circuit Court, the government has found a way to moot this appeal as well. If the Bush administration's lawyers and policy makers had the courage of their convictions, they would not be afraid to make their case in court, on the merits.

Of all the abuses and excesses engaged in by the administration, the one that I am endlessly amazed can prompt defenses -- even from the most zomibified Bush followers -- is the administration's claim to have the power to incarcerate - indefinitely - U.S. citizens without any charges. Even the administration knows that much of their conduct is indefensible, which is why they abandon their efforts when they are forced to defend the legality of their behavior.

Time to smear the latest Bush critic

Yesterday, Ray McGovern -- an American citizen with a 27-year career as a CIA analyst behind him -- stood up at a speech given by Donald Rumsfeld and aggressively questioned Rumsfeld on various statements Rumsfeld made regarding Iraq. McGovern specifically questioned Rumsfeld about this claim made in March, 2003: "We know where [the WMD] are. They’re in the area around Tikrit and Baghdad and east, west, south and north somewhat." We all know what happens to people, including those with a long history of government service, who publicly embarrass the administration - it's time for a nice heap of character smear.

Today, Glenn "Instapundit" Reynolds praises and links to an investigation into McGovern's "background" which was undertaken by The Gateway Pundit. Reynolds asks: "Why don't the Big Media do this kind of thing?"

What is it that Gateway Pundit's investigation revealed about McGovern that prompted Reynolds' admiration, along with his lament that "Big Media" failed to issue a similar report? To begin with, in the headlines of Gateway Pundit's post, we learn right away that McGovern is a"nutjob," as in: "Nutjob Ray McGovern Heckles Rummy."

But that revelation is just the beginning. Gateway Pundit also informs us that McGovern is a "certified nutcase" who "has a trail of lunatic behavior a mile long." G.P. also uncovered evidence conclusively demonstrating that McGovern is a "moonbat." I agree with Instapundit- what right does the MSM have to keep this important information from us?

What is the evidence which supports these substantive allegations? G.P. first cites a website - something called PrisonPlanet.com - with the headline: "Government May be Manufacturing Fake Terrorism," presumably to imply that McGovern believes that Islamic terrorist attacks are perpetrated by the U.S. Government. In fact, the website merely quotes McGovern as accusing the administration and its supporters of manipulating terrorist threats in order to maximize their power and urging skepticism about government statements in the event that another terrorist attack prompts efforts to impose martial law.

McGovern has also said that the desire for control over oil and the desire by some "zionists" to benefit Israel were factors influencing the U.S. invasion of Iraq -- views which apparently makes him both crazy and anti-Semitic. Moreover, McGovern travelled to Iraq as part of what G.P. calls a "hate America freakshow" that included "pedophile" (not to mention former United States Marine officer and aide to General Norman Schwarzkopf) Scott Ritter, whose pre-war claims about Iraq (in stark contrast to Instapundit, among others) proved to be entirely true. G.P. also uncovered the highly incriminating fact that McGovern (like 60% of Americans) also opposes the war in Iraq and, as a result, has attended various anti-war events. G.P. also links to "Allahpundit" over at Hot Air, Michelle Malkin's new venture, where the same "charges" are repeated.

So that's the sum of the evidence that the career CIA analyst McGovern is a "nutjob," a "moonbat," and a "certified nutcase" with a "trail of lunatic behavior a mile long" - he opposes the war in Iraq, associates with former U.S. Marine Scott Ritter, and believes that oil and Israel were factors in why we invaded Iraq. All of that leads Instapundit to lament that "Big Media" doesn't do more of this -- namely, smear people with playground epithets and accuse them of being mentally ill if they engage in anti-war activism or if they question the President.

Neither Instapudnit, Gateway Pundit, nor Allah address the substantive point -- that Donald Rumsfeld told the country that he "knows" where WMDs are, and when confronted by McGovern with that false statement, denied that he made it. That fact is, of course, nowhere near as important as engaging in a vicious and frenzied character smear of yet another American who spent his entire career in service to his country and yet has his patriotism and mental health called into question by virtue of standing up to the administration. McGovern is in good company -- along with Richard Clarke, Paul O'Neill, Joe Wilson, Howard Dean, Al Gore, the war critic Generals, and all of the other corrupt, mentally ill and/or unpatriotic Americans whose motives and/or mental health have been similarly maligned after standing up to the administration.

That's the ugly modus operandi of so many Bush defenders. When an American stands up and aggressively criticizes the President and his policies, they immediately insist that there must be something severely wrong with their character or mental state. Ignoring the criticism itself, they try to maul the messenger. Ray McGovern should wear those smears, coming from these particular circles, as a badge of honor.

UPDATE: Needless to say, LGF has joined in the fun, informing us that McGovern is a "radical leftist, Jew hating creep." Aside from reflecting the typical rage that gets unleashed towards Bush critics, in terms of assessing the validity of McGovern's accusations against Rumsfeld, how does any of this smearing matter?

Not only is a lopsided majority of Americans (like McGovern) against the war in Iraq, they also believe (like McGovern) that the Bush administration "intentionally misled" the country into war. The fringe, radical, discredited views on the war are not those expressed by McGovern, but are those expressed by Instadpundit, LGF and company. And yet those same extremists continue to classify people who oppose the war as "radicals"and "leftists" because they apparently still believe -- even in the face of all that evidence to the contrary -- that it is their pro-war views which represent what mainstream Americans believe.

Conservatives try to distance themselves from "Bush the liberal"

(updated below)

Yesterday, I referenced an article in National Review by Jonah Goldberg in which Goldberg argued that the two most glaring examples of failed Republican presidents -- Richard Nixon and George Bush -- weren't conservatives at all, but were actually liberals. I characterized this claim as "dishonest" because, as I pointed out, virtually no conservatives were claiming that Bush was a "liberal" when his popularity ratings were in the 60s and he was perceived as some sort of heroic, beloved political figure. It is only now that his approval ratings are reaching historically low levels, and it is becoming unavoidably apparent that his presidency is dying and failed, that conservatives are seeking to claim that Bush's failure is not a failure of conservatism because -- as it turns out -- Bush was really a liberal all along. Alas, Bush's failure is simply the latest instance of the failure of liberalism.

Both Jonah as well as Jon Henke of QandO (both on his blog and in comments here yesterday) responded to my contention (Jonah doing so without even linking to my post, always a sure sign that someone is blogging with intense resentment and anger). Jonah and Jon both claim that my argument is unfair and inaccurate because Jonah -- like many other conservatives -- has long criticized President Bush specifically and "compassionate conservatism" generally. Henke, for instance, points to Goldberg's long-standing "criticism of Bush's free-spending, 'big government' brand of conservatism," while Goldberg points out that he has "criticized compassionate conservatism for at least five years and running." I don't disagree with any of that -- to the contrary, in response to Henke's comments here, I acknowledged that -- but it is entirely besides the point. And the point I was making encompasses far more than just Goldberg, who is merely illustrative of the emerging tactic by conservatives which I was condemning.

There is a vast difference -- really a fundamental difference -- between (a) expressing criticisms of the strain of conservatism espoused by the president (compassionate conservatism, big government conservatism, etc.) or objecting to isolated, discreet policies of the president as being insufficiently conservative, and (b) claiming that the president is not a conservative at all, but is actually a liberal. Many conservatives, including Goldberg, have made statements which fall squarely in category (a) throughout the president's first term, and I never said or implied otherwise.

What is new, however -- and this was the point I made yesterday quite clearly -- is that conservatives are no longer merely criticizing isolated policies of Bush's or claiming that his conservatism isn't the right type. They are now trying to repudiate him altogether, claiming that he is not and never was one of them, because Bush actually isn't a conservative at all. Actually, like Nixon, he is a liberal. As Goldberg put it rather unambiguously:

But there is one area where we can make somewhat useful comparisons between Nixon and Bush: their status as liberal Republicans.

That newfound premise enables conservatives to argue that the collapse of the Bush presidency is not a case where a conservative failed. This is a case where a President failed because he wasn't a conservative at all, but was actually a liberal. Now that Bush's presidency is rapidly becoming an irreversible failure, the effort is underway to attribute those failures to Bush's liberalism -- something we never heard when Bush was popular and his presidency thriving.

In a very prescient post, Digby, quoting a speech from Rick Perlstein, predicted back in January that exactly this would happen. In fact, Digby and Perlstein's description of what conservatives would say once Bush's presidency irrevocably collapsed was almost verbatim what Goldberg said in his article:

My point was not that Grover and company were going to leave the Republican Party, but that they were laying the groundwork for purging others from the coalition. They will not do this while Bush is in office, for obvious reasons, but they are beginning to make the case that Bush was not a "real conservative" and therefore anything he did while in office cannot be defined as "conservatism." They do this whenever a politician becomes unpopular.

I linked to Rick Perlstein's post on HuffPo from a while back in which he tells of his speech to the conservative cabal that was meeting at Princeton late last year:

This part of my talk, I imagine, is long after the point a constitutive operation of conservative intellectual work has clicked on in your minds: the part where you argue that malefactor A or B or C, or transgression X or Y or Z, is not "really" conservative. In conservative intellectual discourse there is no such thing as a bad conservative. Conservatism never fails. It is only failed.

One guy will get up, at a conference like this, and say conservatism, in its proper conception, is 33 1/3 percent this, 33 1/3 percent that, 33 1/3 percent the other thing. Another rises to declaim that the proper admixture is 50-25-25.It is, among other things, a strategy of psychological innocence. If the first guy turns out to be someone you would not care to be associated with, you have an easy, Platonic, out: with his crazy 33-33-33 formula--well, maybe he's a Republican. Or a neocon, or a paleo. He's certainly not a conservative. The structure holds whether it's William Kristol calling out Pat Buchanan, or Pat Buchanan calling out William Kristol.

Dave Neiwert described it this way: "But he is in essence disposable, an empty suit filled by the psychological needs of the movement he leads. He's sort of like a Fraternity President on steroids: Bush's presidency is all about popularity, not policy." And this is how Atrios put it: "The interesting paradox is, as I've written before, that they'll dump Bush and transfer the cult onto the next Daddy figure that comes along."

Sure, it's true -- as Goldberg and Henke point out -- that conservatives periodically criticized Bush throughout his first term for particular deviations from what they thought was pure conservative doctrine -- too much spending here, support for an unwarranted entitlement program there. But with very few exceptions (e.g., Pat Buchanan), they did not claim that Bush was not a conservative, and they certainly never claimed that he was a liberal. That is what is new -- glaringly new.

The argument which began as a claim that Bush the Conservative sometimes advocated un-conservative views has morphed into a claim that Bush is not and never was a conservative at all. That is the difference between, on the one hand, claiming that someone is an impure and imperfect ideologue, and on the other, excommunicating them entirely and claiming that they are not even part of your political movement.

I happen to agree that, in most areas of significance, Bush has never governed as a conservative -- to the extent conservatism is understood as being devoted to principles of restrained federal power rather than an eagerness for expanded authoritarian force -- and his policies rest on premises wholly antithetical to core conservative principles (the most notable exception being judicial appointments, which have been consistently geared towards appointing and elevating conservative jurists to the federal bench). I have written multiple posts here making exactly that point, and wrote an article published several weeks ago in The American Conservative (not available online) which was, in part, premised on that fact. As this week's excellent report from the Cato Institute documented, and as has been evident for a long time, this administration, in almost every area, seems driven by one overarching principle -- an endless expansion of its own power in almost every sphere.

Nonetheless, the reason it is "dishonest" for conservatives to now distance themselves from Bush -- not merely by criticizing isolated policies but by claiming he isn't a conservative at all -- is because conservatives have long and enthusiastically embraced Bush as one of their own and never called him a "liberal" until very recently. Bush won the Republican nomination in 2000 against John McCain as a result of the vigorous support of conservatives. Bush has called himself a conservative ever since he appeared on the national political scene and very few conservatives have -- until very recently -- ever objected to that label.

Conservatives have continuously claimed Bush as one of their own despite his big-government approach, which many have insisted is actually used by Bush as a tool to promote the conservative agenda. Here, for instance, is Christopher Wilcox in The New York Sun in an article effusively praising conservative Fred Barnes's reverent literary tribute to Bush's greatness:

One of Mr. Barnes's most important points is how unhappy many conservatives are with Mr. Bush's big-spending ways. This certainly has been reported elsewhere, but Mr. Barnes goes further, claiming that Mr. Bush is deliberately transforming the conservative movement from its small-government orientation to a more activist approach.

Conservative Fred Barnes recognized that Bush has aggressively expanded the reach of the federal government but wrote a whole book praising Bush as a grand success. Blogs for Bush echoed this view, praising Bush for expanding federal power in service of conservative policies. Conservatives have been forced to recognize that Bush has expanded the power of the federal government -- that fact is just unavoidably true -- but they never claimed that made him a liberal, until now.

What is going on here, quite transparently, is a rehabilitative project. Bush's presidency cannot be salvaged, but the reputation of conservatives/conservatism can be -- by separating the former from the latter. Had that separation been insisted upon when Bush's presidency looked to be an epic success, I would have had no objection to it; indeed, I would have agreed with that effort, since I have long believed that Bush's self-description as a "conservative" was a manipulative misnomer. But during Bush's high-flying years, most conservatives embraced Bush as one of their own, and even now, the dwindling band of Bush loyalists are self-described conservatives.

As a political reality, conservatives are responsible for Bush's presidency. They claimed him as one of their own and engineered both of his elections. The newfound recognition that -- hey, what do you know? -- Bush, after all, turns out to be a liberal, is prompted by the collapse of his presidency, the collective realization that he has been a grand failure, and a desire to shield conservatism from the fallout. If this labelling of Bush as a "liberal" were prompted by genuine and intellectually honest observations, then the claim from conservatives that Bush is really a liberal would have been made long before he tumbled to 32%. It wasn't, and that is what makes it so dishonest.

UPDATE: To underscore the point just a bit more, Digby wrote in November of last year:

There is no such thing as a bad conservative. "Conservative" is a magic word that applies to those who are in other conservatives' good graces. Until they aren't. At which point they are liberals. Get used to the hearing about how the Republicans failed because they weren't true conservatives. Conservatism can never fail. It can only be failed by weak-minded souls who refuse to properly follow its tenets. It's a lot like communism that way.

Reading Goldberg's article describing Bush as a "liberal," is it possible to imagine a more perfect embodiment of exactly what Digby is describing?

UPDATE II: Jonah replies to this post with a reasonable, mostly substantive response, including an explanation that he failed to link to my post due to an oversight, which I believe. I actually think these issues are both interesting and important, and so I will try to answer Jonah's post later today, though it may have to wait until tomorrow.

Various items

(updated below)

I will not have time to blog extensively until later today, so here are a few short mid-sized items for now:

(1) The publisher of How Would a Patriot Act?, Working Assets Publishing, has completed the website for the book, which features information about the book, including some recommendations, along with an excerpt from the book -- a .pdf of the full Preface (click "Preface" at the top).

The Preface was actually the most difficult part of the book for me to write, because I had to write about my own experiences rather than write about facts, analysis and arguments (which I vastly prefer to write about). I really didn't even want to write the Preface, but both the Publisher (Jennifer Nix) and the book's editor (Safir Ahmed) all but forced me to write it, insisting that it was necessary to provide some explanatory framework for how and why I was moved, seemingly out of the blue, to write this book. As was true for most of the things (though not all) that we disagreed about, they were right (which was extremely annoying). Most of the people who have read the book thus far have been very enthusiastic about the Preface.

The book tour for the book is going to be June 3-June 29, at least, and there are currently six cities confirmed - New York, Boston, Washington, San Francisco, Los Angeles and Las Vegas. There may be more added, and I will post definitive dates once everything is confirmed.

(2) The right-wing Cato Institute has published an extremely well-documented and scathing condemnation of the Bush administration's multiple abuses of power. Later today, I will post about the entire report (.pdf), which is truly excellent; the Executive Summary says this:

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power.

In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes:

* a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;

*a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

* a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and,

* a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave. President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

In every single respect, this administration has been devoted to one principle and one principle only -- an expansion of its own power. That is its driving philosophy and its ultimate goal, and it is hardly surprising that a true conservative organization like the Cato Institute ("true conservative" in the sense that they are devoted to limited federal government power, rather than the worship of authoritarian power as Bush followers are) would find this administration anathema to every important political value and principal which this country has.

Notwithstanding the fact that the Bush administration has violated every tenet of this strain of conservatism for the last five years, conservatives will not be permitted to distance themselves from this administration -- as they are transparently and pitifully trying to do now that Bush's presidency is failed and is dying a rapid death (see e.g., this characteristically dishonest attempt by Jonah Goldberg to characterize the two failed Republican Presidents - Nixon and Bush - as "liberals" in order to imply that their failure is not a failure of conservatives; funny how we never heard any of that when The Commander had approval ratings in the 60s). With rare and noble exception, conservatives did not repudiate Bush until very recently. To the contrary, they have vigorously supported and claimed him (while he was popular), and he is their creation. They are and should be stuck with him.

(3) This is one of the dumbest and yet most illustrative paragraphs I've read in awhile, courtesy of the incomparably obsolete relic, Richard Cohen, in his column in today's The Washington Post:

But in this country, anyone can insult the president of the United States. Colbert just did it, and he will not suffer any consequence at all. He knew that going in. He also knew that Bush would have to sit there and pretend to laugh at Colbert's lame and insulting jokes. Bush himself plays off his reputation as a dunce and his penchant for mangling English. Self-mockery can be funny. Mockery that is insulting is not. The sort of stuff that would get you punched in a bar can be said on a dais with impunity. This is why Colbert was more than rude. He was a bully.

I haven't had time to read other blogs today, but I am sure there is ample commentary on this. So I will make just this point: The national media of which Cohen is an integral and zombified part has spent the last five years so petrified of George Bush that they have been unwilling even to investigate, let alone criticize, the claims he and his administration have made. That is why 70% of Americans were permitted to believe -- even six months after we invaded Iraq -- that Saddam personally participated in the planning of 9/11 -- because the media cowered in the corner like meek and passive mice while the administration spewed exaggerated and false rhetoric to justify the war.

But to them, there is something terribly rude and improper about looking in the President's eye and criticizing him. That is so very disrespectful. What country does Stephen Colbert think this is? We don't criticize the President like that. And the idea that Colbert was "a bully" -- because he criticized the most powerful man on earth, who has made the need to be shielded from criticism a virtual religion -- reflects such a mind-bogglingly demented view of the world that it is difficult even to analyze.

What an odd set of values a large portion of this country has adopted. Sending one's fellow citizens to fight in a distant war is somehow the hallmark of strength and courage. But standing up a few feet away from the President of the United States, and delivering very substantive and stinging criticism while knowing that nobody in the room would support you, is an act of uncouth rudeness, even cowardice. The national media is, with few exception, beyond salvation.

UPDATE: Richard Cohen's claim -- echoed by many others -- that there was nothing courageous about Stephen Colbert's criticisms of the President should be contrasted with the still-staggering admission of Elisabeth Bumiller of The New York Times that she, along with her media colleagues, were afraid -- afraid -- to ask the President questions about the justifications for our invasion of Iraq:

I think we were very deferential because … it's live, it's very intense, it's frightening to stand up there. Think about it, you're standing up on prime-time live TV asking the president of the United States a question when the country's about to go to war. There was a very serious, somber tone that evening, and no one wanted to get into an argument with the president at this very serious time.

The "war climate" which the administration worked very hard to maintain meant that most national journalists were petrified of aggressively challenging the Commander-in-Chief during this "time of war" because of fears that they would be pelted with all sorts of accusations from the President's followers (as well as because many of them were marching in lockstep with the President's worldview). Deep down, they know they failed miserably in their journalistic function. Despite that -- really, because of that -- they hate Stephen Colbert for doing what they were supposed to do but were so blatantly unwilling and afraid to do, and so they have to smear his act of courage by tossing up their noses and characterizing it as some very offensive breach of etiquette, even depicting his criticism of the President as being cowardly.

Contrasting Colbert's criticisms voiced directly to the President, with Bumiller's fear-driven posture of being "very deferential" to the President because it's so very "frightening" to question the Leader, is there really any doubt as to which approach is more consistent with what the Founders intended when they guaranteed a free press in order to ensure an adversarial watchdog over the Government?

Specter to hold hearings on Bush's lawbreaking powers

We are treated today to a small though vivid illustration of how our democracy is supposed to work. On Sunday, The Boston Globe's Charlie Savage published a lengthy and exceedingly detailed article reporting that "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution."

Today, Republican Sen. Arlen Specter, Chair of the Senate Judiciary Committee, vowed to hold hearings on this rather startling (though not exactly new) presidential lawbreaking crisis in our country. According to Savage's article today (h/t CLG):

The chairman of the Senate Judiciary Committee, accusing the White House of ''very blatant encroachment" on congressional authority, said yesterday he will hold an oversight hearing into President Bush's assertion that he has the power to bypass more than 750 laws enacted over the past five years.

''There is some need for some oversight by Congress to assert its authority here," Arlen Specter, Republican of Pennsylvania, said in an interview. ''What's the point of having a statute if . . . the president can cherry-pick what he likes and what he doesn't like?"

Specter said he plans to hold the hearing in June. He said he intends to call administration officials to explain and defend the president's claims of authority, as well to invite constitutional scholars to testify on whether Bush has overstepped the boundaries of his power.

To recap: a Republican Senator is vowing to hold hearings because the President of the United States has embraced theories which maintain that he has the right to break the law and has, consistent with those theories, been breaking the law repeatedly and deliberately. Maybe some journalists other than Savage and The Boston Globe could tell their readers about that extremely significant fact.

In preparing his story, Savage sought, and obtained, a response from the White House to Specter's announcement, and -- as a good journalist should -- then promptly informed his readers of the false and misleading nature of the White House's claims:

Dana Perino, a White House spokeswoman, said via e-mail that if Specter calls a hearing, ''by all means we will ensure he has the information he needs." She pointed out that other presidents dating to the 19th century have ''on occasion" issued statements that raise constitutional concerns about provisions in new laws.

But while previous presidents did occasionally challenge provisions in laws while signing them, legal scholars say, the frequency and breadth of Bush's use of that power are unprecedented.

Bush is also the first president in modern history who has never vetoed a bill, an act that gives public notice that he is rejecting a law and can be overridden by Congress. Instead, Bush has used signing statements to declare that he can bypass numerous provisions in new laws.

That the President has seized the power to break the law isn't news to everyone. Senator Feingold, for instance, introduced a Resolution to censure the President precisely because he is engaging in ongoing illegal behavior. Sen. Feingold explained at the time what ought to have needed no explanation - that we simply do not have the option of allowing the President to violate the law with impunity if we want to continue to be a country that lives under the rule of law. That move provoked disapproval and even scorn from virtually all of the national press and from most members of the Senate, including those within his own party and from Sen. Specter himself.

But perhaps Specter -- who just last week threatened to cut off funding for the NSA program if the Administration continues its obstruction of Congressional investigations into that program -- has had enough. As Savage pointed out in his article last Sunday: "For the first five years of Bush's presidency, his legal claims attracted little attention in Congress or the media." Up until now, most people chose to ignore the fact that the President was acting in accordance with these radical theories of lawlessness.

But the more out in the open those theories become, the less possible it will to ignore them. It is hard to imagine even Americans who are apathetic (or, as in Specter's case, craven and meek) expressing indifference over the fact that the President has -- literally and expressly -- declared himself to be outside of, and above, the law.

Frivolous claims of secrecy

One of the principal "defenses" of the Bush administration to its illegal warrantless eavesdropping on Americans is the claim that they "repeatedly briefed" a few members of Congress about the program (as though illegal behavior somehow becomes proper as long as you share vague details about what you're doing with a handful of people while emphasizing that they will go to jail if they tell anyone, including their own advisors and staff). In order to determine the accuracy of those claims, House Minority Leader Nancy Pelosi has been attempting to find out which Congressional leaders were supposedly briefed, how many times they were briefed and when they were briefed.

After promising to answer Pelosi's inquiry, which was first posed back in December, the administration stonewalled for the next several months and simply failed to furnish this most innocuous information. Now, it has decided that it will refuse to publicize this information, suddenly - and absurdly - insisting that even this information, simply revealing which Congressional representatives received these "repeated" briefings - is highly classified and cannot be disclosed. According to a letter written yesterday by Pelosi to National Security Advisor Stephen Hadley:

On December 22, 2005, I wrote to you requesting the dates and locations of, as well as the names of members of the Senate and House of Representatives who attended briefings on the National Security Agency (NSA) surveillance program discussed by the President in his December 17, 2005 radio address. You responded on December 29 informing me that you had asked the Director of National Intelligence to provide me with the information I had requested.

The NSA Director has advised me that the information I sought has been sent to the House Intelligence Committee for secure storage because it was “classified and compartmented.” It is my understanding that the information provided is confined to a list of names of those who attended the briefings and the dates on which the briefings occurred. This is not national security information by any definition, and I therefore find the decision to classify it to be inconsistent with classification standards and completely without merit.

As Pelosi notes, the claim that the identity of those who were briefed is "classified" is particularly frivolous given that it is the administration itself who publicized the alleged existence of these briefings by continuously claiming that they provided such briefings "dozens" of times.

The administration, of course, has long been using its religious embrace of secrecy as a means of blocking any investigation into the NSA program -- refusing, for instance, to disclose to Congress even the most innocuous facts (.pdf) about the warrantless eavesdropping program, including how many Americans were subject to warrantless surveillance or which administration officials were briefed about the program and when. And now it is invoking claims of secrecy for the most patently non-classified information, such as which members of Congress received all of the briefings which they claim they gave and on what dates those briefings were given.

Over the last couple of days, The Chicago Tribune published two excellent articles on the administration's unprecedented abuses of its secrecy powers. As former Senate Intelligence Committee Chair Bob Graham said in the second article:

The theme of insularity and secrecy is pervasive . . . They are adopting a position that the American people cannot be trusted with information that is critical to their well-being.

That is the world-view of this administration in a nutshell. Americans need not know anything that their Government is doing, because their Government is Good and seeks only to protect them. And those who defend the administration's conduct believe the same - we need no oversight of the President, nor do we need to know what he is doing, because he is Good and only wants what is best for us.

That rationale works as long as most people trust the President. Now that most Americans decisively do not, the trust which justifies this wall of secrecy has vanished, and the administration's ability to conceal its conduct is diminishing as well. Although it's very late in arriving, and is clearly the by-product of the fact that the President is weak on all fronts, the media seems increasingly, and finally, willing to report on at least some of the abuses of power to which we have been subjected for the last five years.

Time to stop feeling guilty and start really bombing

(updated below)

The Wall St. Journal's Opinion Journal today published an Op-Ed by Shelby Steele that advances one of the most truly incoherent and just plain inane arguments I have read in a long time. And in response, many pro-war Bush defenders are drooling with reverence and praise, and for some reason, are viewing Steele's piece as some sort of license to unleash some of the truly ugly impulses which they usually have the decency, or at least political sense, to hide.

The crux of Steele's argument is that ever since World War II, the United States just doesn't fight wars the way we used to, and ought to. We don't use enough force because we suffer from excess restraint. And the reason we are too restrained is because we are laboring under an unwarranted sense of "white guilt," whereby we are too eager and desperate to escape from our distant racist past and prove that we aren't trying to subjugate the "brown people" anymore. As a result, when we fight wars against countries predominantly composed of other races, we are too nice and don't use enough military force, and as a result, we don't win anymore. If you think I'm unfairly summarizing Steele's argument, just marvel at these excerpts:

Certainly since Vietnam, America has increasingly practiced a policy of minimalism and restraint in war. And now this unacknowledged policy, which always makes a space for the enemy, has us in another long and rather passionless war against a weak enemy.

Why this new minimalism in war?

It began, I believe, in a late-20th-century event that transformed the world more profoundly than the collapse of communism: the world-wide collapse of white supremacy as a source of moral authority, political legitimacy and even sovereignty. . . .

The collapse of white supremacy--and the resulting white guilt--introduced a new mechanism of power into the world: stigmatization with the evil of the Western past. And this stigmatization is power because it affects the terms of legitimacy for Western nations and for their actions in the world. In Iraq, America is fighting as much for the legitimacy of its war effort as for victory in war. In fact, legitimacy may be the more important goal.

If a military victory makes us look like an imperialist nation bent on occupying and raping the resources of a poor brown nation, then victory would mean less because it would have no legitimacy. Europe would scorn. Conversely, if America suffered a military loss in Iraq but in so doing dispelled the imperialist stigma, the loss would be seen as a necessary sacrifice made to restore our nation's legitimacy. Europe's halls of internationalism would suddenly open to us.

As always, Steele is quick to remind us how very courageous he is for making such a taboo argument:

Today words like "power" and "victory" are so stigmatized with Western sin that, in many quarters, it is politically incorrect even to utter them. For the West, "might" can never be right. And victory, when won by the West against a Third World enemy, is always oppression. But, in reality, military victory is also the victory of one idea and the defeat of another. Only American victory in Iraq defeats the idea of Islamic extremism. But in today's atmosphere of Western contrition, it is impolitic to say so. . .

This is a fact that must be integrated into our public life--absorbed as new history-so that America can once again feel the moral authority to seriously tackle its most profound problems. Then, if we decide to go to war, it can be with enough ferocity to win.

In other words, the reason we failed to win in Korea, lost in Vietnam, and are bogged down in Iraq is because we are too afraid to do the right thing -- use all-out military force against our Enemies. We are too timid in our wars because we are afraid of people accusing of us of being racist, of inflaming our white guilt, of provoking criticism from Europeans. So instead, we leave the kid gloves on and don't use our full military might the way we should.

Now, from what I can tell, the only military force we are refraining from using in Iraq is full-scale carpet bombings where we eradicate a few cities, or using tactical nuclear weapons. Calls for fewer restraints on how we are fighting in Iraq would almost certainly have to include one or both of those tactics. And the war mongers among the Bush supporters, those who are prostrating themselves before the brilliance of Steele's "thesis," are calling for exactly that. The courageous warrior Jeff Goldstein knows what needs to be done -- and like Steele, he's not afraid to say it:

But compassionate conservatism, whatever you think of the concept domestically, clearly shouldn’t extend to war—and there are times when the international equivalent of Sherman’s march through the South would, in the long run, save American soldier’s lives and foreshorten the conflict.

Which is why there are times when we really should turn off the “smart” bombs and show our seriousness by putting the world on notice that, when we believe the situation calls for it, we are willing to ignore the inevitable bad press and the howls of protest from human rights groups, and exhibit a show of strength and military professionalism that is politically disinterested and tactically thorough and lethal.

Of course, no one wishes to see innocent civilians die (only the unserious make the claim that those who support what they consider to be a necessary war somehow luxuriate in collateral deaths). But at the same time, from a practical standpoint, there is nothing wrong with fighting a war as if it is a war—and sometimes the only way to disabuse the enemy of the notion that we are constrained by a moral calculus that makes little sense in urban combat situations is to refuse to show the kind of restraint they have come to anticipate and count on.

Matt Noonan of Blogs for Bush shares his beliefs with us that the White Supremacy of the 19th Century "had its good and bad points," but one thing that was lost when White Supremacy became discredited which Noonan wishes we had again is the certainty that Our Civilization is Superior. Due to the fact that we don't sufficiently recognize our superiority (due to our white guilt), we stupidly "pretend that we've something fundamental to learn from other civilizations whom we once oppressed." This myth - that we might have something to learn from other cultures -- causes us, in turn, to be too restrained when we should be engaging in some hard-core destruction of other countries.

But Noonan himself suffers from no such delusions. He knows that we are the best, and -- in one of my favorite sentences ever -- tells us that "it is this belief of (his) which sustains (him) through the difficult day to day of the War on Terrorism." Noonan is able to stand tall and resolute in his bunker even with the grave risks which confront him as he wages this war because he knows his society is superior. But there are too many of us who - in our white guilt - have forgotten this, and that is why we aren't strong enough to really get serious in this war. Also using the Steele article as some sort of protective shield, Daily Pundit similarly bemoans the "failure of will to destroy the enemy regimes that threaten us" and rails against "our delicacy in approaching Islamic fundamentalism."

Looking at the bright side of this deranged rhetoric, it is, in a sense, refreshing to see that many of these war supporters, in their great frustration, are finally relinquishing their solemn concern for the Iraqi people and the tearful inspiration caused by the Purple Fingers. Instead, they are now just calling for some good old-fashioned carpet bombings and mass killings. As Jeff tells us: "there are times when we really should turn off the “smart” bombs." After all: "no one wishes to see innocent civilians die . . . But at the same time, from a practical standpoint, there is nothing wrong with fighting a war as if it is a war."

Does it really have to be said that the reason we can't carpet bomb Iraq and "win the war" is because we are supposedly there to build Iraq, not to destroy it? Let's review a few basic, undisputed facts about our current occupation of Iraq -- undisputed because the administration itself acknowledges them. Once our original, predominant justification for our invasion disappeared -- that would be the whole bit about WMDs -- the only one we had left, the one we have since trumpeted over and over, is that we are there in order to improve that country, to enhance our reputation in the region, and to win "hearts and minds." As the President himself put it:

The terrorists know that democracy is their enemy, and they will continue fighting freedom's progress with all the hateful determination they can muster. Yet the Iraqi people are stepping forward to claim their liberty, and they will have it. When the new Iraqi government takes office next year, Iraqis will have the only constitutional democracy in the Arab world, and Americans will have a partner for peace and moderation in the Middle East.

People across the broader Middle East are drawing, and will continue to draw inspiration from Iraq's progress, and the terrorists' powerful myth is being destroyed. In a 1998 fatwa, Osama bin Laden argued that the suffering of the Iraqi people was justification for his declaration of war on America. Now bin Laden and al Qaeda are the direct cause of the Iraqi people's suffering. As more Muslims across the world see this, they're turning against the terrorists. As the hope of liberty spreads in the Middle East, the terrorists will lose their sponsors, lose their recruits, and lose the sanctuaries they need to plan new attacks.

According to the President, we're going to win because the terrorists bring suffering and destruction to Iraq and we don't. So they will like us and hate the terrorists and will soon be our "partner for peace." Advocating that we act more the way the President says Al Qaeda is acting -- by bombing more and killing more civilians -- doesn't seem all that compatible with those goals.

We are not there to conquer territory or drive the Iraqi government into forced surrender and submission. The Iraqi government isn't our enemy. Although it may be helpful to achieve one's objectives in a traditional war, large-scale destruction would achieve the very opposite effect of what we are supposedly trying to accomplish. The only choice we have is highly precise and targeted warfare against actual terrorists and insurgents. Any attacks that are more sweeping, destructive and indiscriminate will kill large numbers of innocent Iraqis -- the very people we claim we are there to help -- and will breed even more intense and widespread hatred towards the U.S. in the region, which would be the precise opposite of the goal we say we are trying to accomplish.

Escalating the use of military force in Iraq by indiscriminately killing civilians and eradicating whole cities would contradict every single statement we have made about why we are there, what we want to achieve, and what our plan is in that region. We're not refraining from those acts because of white guilt or a fear of what European diplomats will say about us. We're refraining from them because the wholesale indiscriminate slaughter of thousands or tens of thousands of innocent Iraqis -- all because we have grown impatient and annoyed with our pet little democracy-building project and just want to bomb the whole place into submission -- would be both morally reprehensible and, from the perspective of our own interests, an indescribably stupid thing to do.

To sit and listen to people who have spent the last three years piously lecturing us on the need to stand with "the Iraqi people," who justified our invasion of that country on the ground that we want to give them a better system of government because we must make Muslims like us more, now insist that what we need to do is bomb them with greater force and less precision is really rather vile -- but highly instructive. The masks are coming off. No more poetic tributes to democracy or all that sentimental whining about "hearts and minds." It's time to shed our unwarranted white guilt, really stretch our legs and let our hair down, and just keep bombing and bombing until we kill enough of them and win. Shelby Steele deserves some sort of award for triggering that refreshingly honest outburst.

UPDATE: Reporter Charlie Savage of The Boston Globe, who wrote what might be the most important article of the year thus far regarding the President's enthusiastic use of his sweeping theories of lawbreaking, is going to be on Air America's Majority Report tonight at 8:34 p.m. EST. You can check your local station or listen to the live feed here.

Facts that reflect poorly on the President are false by definition

(updated below)

If you're one of the few loyal Bush defenders who are still around, and a fact is revealed which casts a very negative light on the administration, what do you do? Easy - shut your eyes really tightly, put your fingers in your ears, and just petulantly insist, based on nothing other than faith and desire, that it's not really true. Attack the motives and character of those involved. Threaten those responsible for disclosure of this damaging information with imprisonment. And then insist some more that it just can't be true.

MSNBC reporter David Schuster reported yesterday that at the time the Bush administration disclosed her employment with the CIA, Valerie Plame was working on a project "tracking the proliferation of nuclear weapons material into Iran." Schuster also reported that intelligence sources of his claimed that her disclosure forced her to cease this work and that it disrupted and harmed the efforts of the United States to obtain intelligence relating to Iran's weapons activities.

For obvious reasons, these facts, if true, reflect very poorly on the administration, particularly given its current claims that Iran is the new Nazi Germany, that it is the world's greatest threat to all that is Good, and that stopping Iran from obtaining nuclear weapons is the overarching national security priority. Outing a CIA agent working on precisely that problem, all in order to discredit a political critic, is extremely embarrassing, to put it mildly.

So, if you are a person who defends the administration no matter what, what is there to say about this? You begin by insisting that it's just not true -- it can't be -- and mix in those denials with some nice, distracting character smears. Jeff Goldstein, for instance, says that this MSNBC report is almost surely not true because, among other reasons, the Leader and his aides would never do something to harm the interests of the United States over something as insignificant as Joe Wilson:

Or, put another way, we’re being asked to believe unnamed sources when they tell us that the Bushies sabotaged their own stewardship over Iranian nuclear intelligence gathering initiatives because they feared impotent former diplomat Joe Wilson—who was eventually quite thoroughly discredited by the Senate Intelligence Committee Report and by his own tangle of public lies and half truths.

Which, I suppose that’s possible. But color me skeptical (emphasis in original).

Goldstein provides a whole host of reasons why it is just absurd to think that outing a CIA agent working on Iran's nuclear program could possibly have any negative impact on our intelligence capabilities. I mean, it's just one CIA agent - what's the big deal? Thus, to think that outing Plame impeded our efforts is to believe that "Valerie Plame, who was working as an analyst from a desk in Langley, had exclusive insights into Iran’s nuclear weapons program and is in fact some sort of irreplaceable James Bond-type super spy."

So, to recap: The President -- being The President -- would never do anything to harm the country's intelligence efforts, particularly over something like this, so this just can't be true. And even if it is true, it's only one little CIA agent they outed, so how bad could that be? And oh, Joe Wilson is a liar, so that should be considered, too.

Taking a different approach, Bush defender AJ Strata is angry that Americans even learned about this information:

You would think the CIA insiders would know better than to leak more national security information to the media.

Maybe those responsible for informing Americans about this treachery by the Government can share a cell with the reporters who informed Americans about the Government's illegal eavesdropping program. Like Goldstein, Strata can't believe that everyone would make such a fuss over one single little CIA agent:

What a joke! Valerie was the only analyst who cold track Iran’s ambitions? This is the reason I think this was a canary trap. Only a reporter would be so naive and gullible at the same time! Or are the VIPerS this dumb? Someone tell me this is just a joke and these people are not this stupid.

And with his characteristically substantive commentary, Tom Maguire insists that the whole thing just can't be true -- it just can't be -- because the reporter, Shuster, is a "lying weasel" and "an ignorant clown." And besides, those Guardians of the Truth, Andrea Mitchell and Bob Woodward, previously decreed that there was no national security harm as a result of the Plame leak, so this whole thing is already settled.

All of this reality-denying rationale was spat out literally within hours of the disclosure that Plame was working on Iran's nuclear program when she was outed by the administration. It is a frenzied effort to defend the administration that is composed every standard weapon in the Bush apologist arsenal -- attacks on the motives of those who disclose the information, threats of criminal prosecution against those responsible, an insistence that the Leader's Goodness precludes the truth of the accusations, and when all else fails, a simple fact-free refusal to believe that it's true. There's not yet any coordination or coherence to it because it's driven by emotional instinct - the instinct to simply deny any fact that undermines the pro-Bush world-view. It's just an undifferentiated outburst of denial and attack, all fueled by the overarching desire to defend the President.

I recently documented how this self-justifying, fantasyland mindset is constant and applicable to every issue. Insurgency in Iraq? Can't be; it just doesn't exist. Reports of civil war? Not true - the media is just biased and dishonest. Poll after poll showing the President is reaching historic levels of unpopularity? The polls are just biased and corrupt because the President is really beloved. Secret torture gulags in Eastern Europe? They don't exist either - that was all just a masterful set-up to find the CIA leakers (a fantasy in which Strata indulges for the Plame disclosure, too: "I think this was a canary trap"). The CIA agent outed by the administration was working on Iran's nuclear program? False - the reporter is an idiot, her husband is a liar, it's just one CIA agent, and the President is too good and smart to do that, no matter what facts emerge.

The denial is so steadfast, immediate and shrill because the notion that perhaps it's true never occurs to them. They begin with the premise that any fact that reflects poorly on the Leader is false, and then set out in search for rationale to prove that. When the NSA scandal first emerged, scores of Bush defenders became instantaneous, overnight experts on FISA, and, within hours, wrote post after post insisting that the President's NSA program didn't violate the law, FISA doesn't cover this type of eavesdropping, the law doesn't really require warrants, that it doesn't apply to terrorism, FISA has nothing to do with the NSA program -- all rank nonsense which even the administration refused to get anywhere near, and even eventually repudiated. But Bush defenders then were in the same frenzied mode. A fact had emerged that reflected poorly on the President -- that the President had ordered eavesdropping in violation of the law -- and denial of that fact was the only option. The mission, therefore, was to find the rationale would best support that denial.

I honestly don't know how much impact the disclosure of Plame's CIA employment had on our intelligence efforts, if any. And neither do Bush defenders. But they don't care if it did or didn't. They only care about defending the President no matter the seriousness of his wrongdoing or the obviousness of his errors, and if the only way to do that is to simply refuse to believe facts that contradict that goal, then so be it. The most glaring and destructive by-product of that reality-denying syndrome is the disaster in Iraq, but it is by no means the only one. It repeats itself over and over in almost every issue of controversy.

UPDATE: Raw Story, who (as unmentioned by MSNBC) was the first to report the Plame-Iran connection back in February, has posted an update regarding some additional information reported by Shuster, including a claim that Cheney was aware at the time of the Plame disclosure that she was working on sensitive intelligence matters.

Various items

I will (hopefully) have time to post more extensively later today, but until then, here a few short items worthy of note - I will likely add to this post periodically as the day progresses:

(1) David Olson of Speakeasy Productions has produced a provocative and well-crafted video regarding the President's excesses and abuses of power. Among many other things, the video includes a brief excerpt of an interview I did with him. I don't necessarily endorse all of the ideas in the video or agree with all of the individuals featured in it, but it is definitely an innovative presentation and, in my view, well worth watching. You can see it here.

(2) For those of you who indicated that you will not buy books from Amazon, How Would a Patriot Act? is now available from Barnes & Noble as well as Powell's. There are some exciting press and other media commitments regarding the book which are being arranged, and I will post about them as soon as they are confirmed.

Additionally, the book website from the publisher, Working Assets, will be ready a little bit later today, and will include (I believe today) the first published excerpt from the book. I will post that link when it is available.

(3) Many regular participants here -- including those whose contributions I value most -- have complained recently about what they believe is a degeneration of the quality of the discussions in the Comments section. Many have said that, as a result of this erosion of quality, they are considering no longer participating, and some have even said they no longer do.

One of the most valuable resources for me in maintaining this blog is the substance of the discussion in the Comments section. I'd consider it a real loss if there were an exodus of high-quality commenters who were replaced by hordes of anonymous insult-wielders spewing talking point cliches and cheap insults at one another.

When I began this blog, I believed very strongly in a laissez faire policy for comments, and for many reasons, I still do. Nonetheless, preserving the quality of the Comments section here is a higher priority for me than some abstract allegiance to that idea. I thus encourage anyone who feels strongly about this to leave suggestions in comments, or by e-mail to me, as to how the quality of the Comments section can be preserved.

I am likely going to enable the function (as soon as I can find it) that prohibits anonymous comments, which means that only those commenters with registered Blogspot accounts (which are free and very easy to obtain) will be able to comment. That will prevent anonymous comments and eliminate those drive-by anonymous attacks that have no value. I am open to other suggestions, including ones that require some mild amount of moderation, which I really, really don't want to do. But if the alternative is having the Comments section here transformed into some sort of childish, substance-free trash zone which I avoid at all costs, I am willing to expend some time and energy to preserve the quality, if that's possible.

UPDATE: To be clear, when I refer to people who drag down the quality of the discussion, I am not referring to people who come here and defend the Bush administration or who express other viewpoints that are the minority here. There are pro-Bush commenters here who contribute value and substance and anti-Bush commenters who contribute nothing but worthless invective. I affirmatively want the Comments section to be composed of all viewpoints. My concern is about quality, not ideological difference.

(4) Yet another poll, this one from CNN, shows Bush's approval ratings having plummeted to the humiliating 32% level -- just 7 points above the approval rating Richard Nixon had when he was forced to resign from office. A belief that the invasion of Iraq was the right thing to do is now officially a fringe position held only by pro-Bush radicals, "with 55 percent telling pollsters in the same survey that they believed the United States made a mistake by invading Iraq."

(5) In a story that must have killed Washingtonpost.com Editor Jim Brady to have to read -- along with the reams of other individuals eager to discredit the blogosphere because of the competitive threats they perceive it poses -- The Washington Post reported today on facts concerning the identity of blog readers which will come as no surprise to those familiar with the blogosphere:

Think the people who while away their hours reading and commenting on political blogs are slovenly twenty-somethings with nothing better to do?

Think again, said a survey last week by Blogads, a company that many leading political blogs have used for ad placements.

In an unscientific Web survey of 36,000 people, Blogads reported that political blog readers tend to be age 41 to 50, male (72 percent), and earn $60,000 to $90,000 per year. Two in five have college degrees, while just a tad less have graduate degrees. . . .

Blogads President Henry Copeland said the findings represent "the choir" of political blog readers, the most interested and most engaged, "the political geeks who are arguing over the nuances at a press conference or the latest Hillary Clinton pronounciations."

I am not one of those who believe that the blogosphere can or should replace the national media. Organizational strength and vast resources are always going to be necessary in order to provide a true adversarial and investigative check on the government. But when I want to find high-level and highly informed analysis of political issues and news events, I almost always turn to the blogosphere and almost never to the national media outlets.