Cultured

By Barbara O'Brien

It's the end of June, so I hope to wind up this month as a guest blogger at Unclaimed Territory -- thank you, Glenn, for the opportunity -- with a big-picture hypothesis of Why We're Screwed.

For a moment step back from political issues and parties, including our much-beloved debate on whether Democrats are salvagable or hopeless, and consider the political culture of the United States. By "political culture" I mean citizens' shared cultural values and beliefs about the role of government and how political processes -- such as election campaigns or how we discuss political issues -- are supposed to be conducted. Political culture also helps us reach consensus about, for example, the legitimacy of political institutions and appropriate distribution and use of power.

Political culture differs from political ideology in that people within a political culture can disagree about what they think government should do, and why it should do it, yet agree on the basics of how government should function and how the political life of the nation should be carried out. I found diverse definitons of political culture on the web, including "the attitudinal and behavioural matrix within which the political system is located." That works for me.

Certain conditions of political culture are essential to support democratic government. As explained nicely in this Wikipedia article (emphasis added):

For countries without a strong tradition of democratic majority rule, the introduction of free elections alone has rarely been sufficient to achieve a transition from dictatorship to democracy; a wider shift in the political culture and gradual formation of the institutions of democratic government are needed. There are various examples, like in Latin America, of countries that were able to sustain democracy only temporarily or in limited form until wider cultural changes occurred to allow true majority rule.

One of the key aspects of democratic culture is the concept of a “loyal opposition”. This is an especially difficult cultural shift to achieve in nations where transitions of power have historically taken place through violence. The term means, in essence, that all sides in a democracy share a common commitment to its basic values. Political competitors may disagree, but they must tolerate one another and acknowledge the legitimate and important roles that each play. The ground rules of the society must encourage tolerance and civility in public debate. In such a society, the losers accept the judgment of the voters when the election is over, and allow for the peaceful transfer of power. The losers are safe in the knowledge that they will neither lose their lives nor their liberty, and will continue to participate in public life. They are loyal not to the specific policies of the government, but to the fundamental legitimacy of the state and to the democratic process itself.

Here's the big-picture hypothesis: American political culture is so sick and contaminated that it no longer supports the processes of democratic politics and government.

This is not to say these democracy in America has already failed. Sheer inertia has kept the rituals of democracy and the processes of government lumbering along. It takes either a long time or a lot of force to stop a really big mass that’s been in motion for a while.

But a political culture utterly inhospitable to rational political discussion, as ours has become, cannot support democratic decision making. And a political culture in which large factions of people do not agree on matters of political legitimacy or appropriate distribution and use of power is cruisin' for a bruisin'.

How America's political culture became contaminated is too big a topic to explain fully in a blog post. But very basically, I blame two factors that have been interacting for the past fifty years or so. One is the rise and dominance of mass media. The other is a radical right-wing political coalition that has used mass media and other institutions to dominate the nation's political discourse and, eventually, take control of two out of three branches of our federal government. And they're working hard to take over the third.

Although it’s never been perfect, once upon a time American political culture supported democratic processes. But now many of our civic institutions are controlled by right-wing extremists who do not respect our traditional political culture or the values of democracy. Although they pay lip service to the ideals of democracy, what drives them is the acquisition of power and the implementation of their extremist agenda by any means necessary. If rules must be broken and democratic processes subverted to achieve their goals — so be it.

And, increasingly, political legitimacy is whatever the Right decides is legitimate. The Right does not recognize opposing points of view as, say honest disagreements about policy. The Right considers opposition to its point of view to be illegitimate and even treasonous. The current outcry from the Right about yesterday's Hamdan decision provides a perfect example of this.

Paul Krugman recognized what was happening and wrote about it in the introduction to his book The Great Unraveling. He explained that, throughout history, reasonable people accustomed to political and social stability have failed to recognize the danger of emerging radical movements — until the stability is lost. Ironically, Krugman says he came to understand this from reading Henry Kissinger’s Ph.D. thesis. As Krugman explained in a Buzzflash interview,

… reasonable people can’t bring themselves to see that they’re actually facing a threat from a radical movement. Kissinger talked about the time of the French Revolution, and pretty obviously he also was thinking about the 1930s. He argued that, when you have a revolutionary power, somebody who really wants to tear apart the system — doesn’t believe in any of the rules — reasonable people who’ve been accustomed to stability just say, “Oh, you know, they may say that, but they don’t really mean it.” And, “This is just tactical, and let’s not get too excited.” Anyone who claims that these guys really are as radical as their own statements suggest is, you know, “shrill.” Kissinger suggests they’d be considered alarmists. And those who say, “Don’t worry. It’s not a big deal,”are considered sane and reasonable.

Well, that’s exactly what’s been happening. For four years now, some of us have been saying, whether or not you think they’re bad guys, they’re certainly radical. They don’t play by the rules. You can’t take anything that you’ve regarded as normal from previous U.S. political experience as applying to Bush and the people around him. They will say things and do things that would not previously have made any sense — you know, would have been previously considered out of bounds. And for all of that period, the critics have been told: “Oh, you know, you’re overreacting, and there’s something wrong with you.”

The ascension of the radical Right occurred over many years, and their takeover of government — a slow-motion coup d’état — happened gradually enough that most of us didn’t comprehend what was happening. America has been challenged by radicalism before, and always it has come back to the center soon enough. (And by “center” I mean the real center, where liberalism and conservatism balance, not the false “center” of today that would have been considered extreme conservatism in saner times.) I do not believe the coup is a fait accompli; the Right is not yet so secure it its power that it has dropped all pretense of honoring democratic political process. They’re still going through the motions, in other words. But this time I do not believe America will come back to the center unless a whole lot of us grab hold and pull at it. Hard.

How do we do that? First, we have to get our bearings and remember what “normal” is, which is going to be hard for the young folks whose memories don’t back back further than the Reagan Administration. Just take it from an old lady — what we got now ain’t normal.

Second, I argue that media reform is essential to all other necessary political reform. Until people outside the radical Right and the elite media-political establishment are able to take part in the nation's political discourse, not much can be accomplished.

For example, many progressives have concluded it is pointless to support Democrats, because as soon as a Democrat gets inside the Beltway his spinal column is ripped right out of him. Time and time again, we’ve seen Democratic politicians make grand speeches to their liberal constituents, but once we get them elected they do little more than offer ineffectual objections to the ruling right-wing power juggernaut. At best. At worst, they vote with the Right out of some screwy notions about political expediency. And we’re all sick of this.

But I say that progressivism’s salvation will not come from any political leader or party, Democrat or otherwise. Progressivism will only be saved when we can effect change in our political culture so that progressive ideas can get a fair public hearing. And this brings us to the necessity of media reform.

No matter what progressive legislators might want to accomplish, they are helpless to do much until progessive policies have solid popular support. You build popular support for policies by talking about them to the American people. And for the past fifty years or so, that means being able to make your case in mass media, particularly television.

Now, tell me — when was the last time you watched a substantive, factual, civil discussion of progressive ideas on national television?

Take health care, for example. For years, we progressives have wanted some kind of national health care system, maybe single payer, maybe a combination of public and private systems, but something that would scuttle the bloated, failing mess we’ve got now. Many polls indicate that a majority of Americans are deeply concerned about health care in this country. Yet it is next to impossible to present progressive ideas about health care reform to the American public through mass media. Even on those programs allegedly dedicated to political discussion, as soon as a progressive gets the phrase “health care” out of his mouth, a chorus of rightie goons will commence shrieking about socialized medicine! And then the allotted ten minutes for the health care segment is up; go to commercial.

And that’s assuming a real progressive is invited on the program at all.

So even though a majority of the American people sense that something is wrong with our health care system, and think something needs to change, they never hear what the options are through mass media. Probably a large portion of American voters don’t realize that the U.S. is the only industrialized democratic nation with no national health care program. They never hear that, on a purely cost-benefit basis, we have about the worst health care system among nations affluent enough so that most citizens own a microwave. All Americans ever hear is that Canada has national health care and that Canadians have to put their names on waiting lists to get services, and ain’t that awful? OK, but what about the thirty-something other nations with national health care systems that don’t have waiting lists?

Bottom line: The Right figured out how to use mass media to make its point-of-view dominant and shut out the Left. Thus, radical right-wing views are presented as “conservative” and even “centrist,” even though a whopping majority of the American public doesn’t agree with those views. Through media, the radical Right is able to deflect attention away from itself and persuade just enough voters that Democrats are loony and dangerous. And maybe even treasonous.

And if just enough voters aren’t persuaded — well, there are ways to deal with that, too. But media consumers aren’t hearing much about that, either.

Because media is the dominant political force of our time, media reform is an essential part of the cure. It’s not the only part — reform is required along many fronts — but without media reform, we’re bleeped. But please note that by "media reform" I don't mean just making current media structures nicer. I think we've got to break up the dominance of the current mass media establishment, and blogs and new technologies will be part of the solution.

Mass media has contributed to the erosion of democracy in other ways. The cost of mass media election campaigns has created a self-corrupting system. Even the most idealistic politician must go begging to special interest groups to raise the money necessary to win elections. This has given us representatives who are more responsive to campaign donors than to constituents. Breaking up the two-party system is not going to solve this problem, because third-party candidates would get caught in the same trap.

If we’re going to restore the United States to functionality as a democratic republic, our primary goal is to heal the national political culture. Otherwise, it won’t matter which party we support or how many elections we win, because the patient — democracy in America — will still be dying. But if we can heal the culture, the job of reforming other political institutions — like the Democratic and Republican parties, if you like — will be easier. In the next few days I plan to post on The Mahablog in more detail about what we can do to heal America's political culture, and you are welcome to drop by. Suggestions are welcome.

On the other hand, this doesn't mean we can ignore elections until we fix culture. In the short term, anything we can do to take power away from the Right will help make other reform more possible. That's why, I think, supporting Democratic candidates in the November elections is an essential tactical step, even though by itself Democratic majorities in Congress won't fix our political problems.

All human institutions are imperfect, and institutions that survive through many generations, like the United States government, will go through cycles of corruption and reform. Often idealistic people will point to the corruptions and the many ways our nation has fallen short of its ideals and argue that the patient isn’t worth saving. I, however, take the Buddhist view that all compounded things are imperfect, but that’s how life is, and it’s our duty — to ourselves, our ancestors, and our descendants — to make the best of it. Not making the best of it is not, in my view, a desirable alternative.

Various matters

(1) The Nation has published an interesting article by Jennifer Nix regarding how books can be used to force ideas and arguments into our national political dialogue, and it uses How Would a Patriot Act? as its model. Jennifer notes that the book succeeded even though it "has received very little mainstream coverage" [despite remaining on the New York Times' Best Seller list for 4 weeks (and counting), not a single newspaper or magazine has reviewed it] and, more surprisingly, it "has not received help from the big membership groups." Despite being the only book focused on the Bush administration's abuses of executive power, MoveOn, for instance, has explicitly refused -- in response to numerous requests -- even to mention the book to its readership or promote it in any way.

Many on the Left seem to have some sort of instinctive aversion to promoting products which are for sale or ventures which generate profit, as though such activities are impure or even wrong. The Right long ago realized that the economic success of its political products translates into all sorts of critical benefits -- from creating the perception that its ideas are popular and credible to ensuring its advocates widespread media access. That's why they expend so much effort to ensure the success of their books -- even going so far as to have organizations purchase them in large bulk and then sell them at a huge loss -- and it's also why it is so important to them to disparage the economic viability of liberal media projects. For better or worse, the impact which a political product can have is a function of its economic viability.

In addition to my book, there have been several books that have enjoyed surprising commercial success -- including David Sirota's Hostile Takeover and Eric Boehlert's Lapdogs -- which critics of the administration ought to be excited to promote and push into the mainstream media. The more the ideas and arguments advanced by those books are heard, the better. Books develop ideas and have the power to persuade and shape political debates in a way few other things can. And yet organizations and even magazines which ought to be devoted to the promotion of those ideas have all but ignored them and -- with rare exception (cited in Jennifer's article) -- refused to pay any attention to them. The books have succeeded despite what appears to be an odd resistance by the very media outlets and organizations which one would think would naturally support them.

(2) Dick Morris, who embraces every tenet of the neoconservative agenda, unsurprisingly heaped praise on Joe Lieberman and urged his re-election, and in the process, said this (h/t Mark Coffey -- a pro-Bush conservative who is a self-proclaimed "huge fan" of Lieberman's):

As surely as an American soldier on patrol in Iraq, his [Lieberman's] very presence in the Democratic primary provides a tempting target for those who want to vent their frustration at American foreign policy.

So, those who oppose Lieberman's pro-war stance are just like the Iraqi insurgents who attack and kill American soldiers. Are there any neo-conservatives left anywhere who are capable of engaging in a single political discussion without insinuating that those who disagree with them are either terrorists or terrorist allies? If so, I don't ever hear or read them.

(3) Speaking of whimsical accusations of being pro-terrorist, it's a given, of course, that the 5 Justices who ruled against The Commander-in-Chief in his Glorious War are liberal America-haters who are on the side of terrorists. In an article linked to (but not, of course, approved of) by Instapundit, former Boston University Law School Dean Ronald Cass mindlessly trots out every empty cliche to tell us that the administration's efforts to fight terrorists are "opposed by The New York Times, the left side of the Democratic Party, and most of France" -- an Axis of Treason now joined by the 5 members of the Supreme Court who had the audacity to commit the ultimate sin: they "second-guessed the President"! Moronically, Cass laments that the decision "gave hope to One-World-ers by leaning on international common law to interpret U.S. federal law" -- arguing that it was improper for the Court to examine the requirements of the Geneva Conventions even though federal law requires that military commissions adhere to the Geneva Conventions.

The Hamdan majority is composed of some rather unlikely traitors. One of the Justice is a devout Roman Catholic appointed by Ronald Reagan. Another is a Justice appointed by George Bush 41. And the author of the Court's opinion is a Bronze Star winner from the combat action he saw in World War II. Isn't it amazing how many American combat veterans and war heroes become pro-terrorist traitors and enemies of the United States in their next job? And it's equally amazing how so many one-time conservatives turn into socialist allies of America's enemies. It reminds one of those lovely days of the Schiavo controversy when life-long conservative Southern Baptist State Court Judge George Greer overnight became the symbol of secular-liberal-Godhating-judicial-activism because self-proclaimed "conservatives" did not like the results of his rulings.

For all their talk of judicial activism, Bush followers reveal themselves as the ultimate judicial activists whenever they discuss judicial decisions. The crux of the decision yesterday turned on relatively obscure and legalistic questions involving the legal effects of Congressional enactment of the UCMJ, rules of statutory construction as applied to Common Article 3, and the retroactivity of jurisdiction-stripping statutes. Among most Bush followers purporting to condemn this decision as an act of judicial tyranny, you won't find any discussion of those legal issues, because they know nothing about them and don't care about them.

All they know is that the Court reached a result they don't like, and worse, it is a result that contradicted the President's will, so it is, by definition, the by-product of pro-terrorist judicial activism. Within hours -- and certainly without even having the time to read the opinions -- Bush followers who never thought about the UCMJ or statutory construction issues concerning Article 3 were able instantaneously to condemn this decision as the by-product of judicial overreach. As always, "judicial activism" has no meaning other than "the reaching of a result by a court which those who wield the term dislike."

(4) USA Today followed up today on its initial reports about the massive data base of domestic calls which the Administration is compiling (with no oversight or legislative authority, naturally), and in doing so, reported this:

In the weeks since the database was revealed, congressional and intelligence sources have offered other new details about its scope and effectiveness.

"It was not cross-city calls. It was not mom-and-pop calls," said Sen. Ted Stevens, R-Alaska, who receives briefings as chairman of the Senate Appropriations Defense subcommittee. "It was long-distance. It was targeted on (geographic) areas of interest, places to which calls were believed to have come from al-Qaeda affiliates and from which calls were made to al-Qaeda affiliates. . . ."

Other lawmakers who were briefed about the program expressed concerns that gaps in the database could undercut its usefulness in identifying terrorist cells.

"It's difficult to say you're covering all terrorist activity in the United States if you don't have all the (phone) numbers," Chambliss said. "It probably would be better to have records of every telephone company."

So, according to Sen. Stevens, there is no reason to worry because they're only collecting this data with regard to long-distance domestic calls to "geographic places of interest," not on "mom-and-pop calls," whatever any of that might mean. But Sen. Chambliss admits that the real goal is to compile telephone records "of every telephone company" -- meaning that the Government would have a permanent, complete record of every single domestic and international call made and received by every single American. But don't worry -- the Bush Administration is good and there is no reason to worry about how they will use this.

The American way is to place blind faith in our political officials and let them operate in complete secrecy, especially when it comes to spying on American citizens on U.S. soil. Anyone who disagrees must want to help Al Qaeda commit terrorist acts against Americans. What other reason would anyone object?

Will Hamdan have any effect on the Bush Presidency?

The real significance of yesterday's Supreme Court ruling in Hamdan is that the Court categorically rejected, and even attacked, the Bush administration's radical theories of unlimited executive power. While it's obviously the case that the decision is far from a silver bullet solution to this administration's abuses of power -- those abuses can be genuinely ended only through political victory, not litigation -- only those attached to the joys of cynicism and defeatism can deny the importance of the Hamdan ruling as a step towards restoring the rule of law in this country.

After all, the Court yesterday did exactly what critics of the administration have long been urging someone -- anyone -- to do: they imposed meaningful checks and limits on the President's powers, and they resoundingly rejected the plainly un-democratic claim that invocations of "national security" vest unchecked power in the President. At least as a legal matter (though admittedly not as a political one), this decision -- for reasons I explained yesterday and A.L. elaborated on this morning -- is a stake in the heart of the authoritarian theories of executive power under which our government has functioned since September 11. Peter Baker and Michael Abramowitz explain why in their superb analysis in The Washington Post:

For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terrorism suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorism suspects, the high court ruled that even a wartime commander in chief must govern within constitutional confines significantly tighter than this president has believed appropriate. . . . .

Even the administration's supporters recognize the significance of this decision in legally slaying the monarchical views of this administration:

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey O. Graham (R-S.C.), who has resisted the administration's philosophy, said in an interview. "It's sincere, it's heartfelt, but after today, it's wrong."

As Bruce Fein put it: "This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke."

Despite this undeniable defeat of the Bush administration's claims to unlimited power, there is much cynicism regarding the significance of the decision, typically based on the premise that this administration is so lawless and acts with such disregard for limitations on its power that no Supreme Court decision is going to make any difference. That view was expressed yesterday by, among others, Digby, who labelled my praise of yesterday's decision "optimistic" and "pretty"and said:

But from a political standpoint, I'm with Atrios about the practical effect of this ruling:

My quick take is that it's certainly an important symbolic victory, but this administration's contempt for the law, the constitution, and the balance/separation of powers that our system rests on isn't going to be very affected by what 5 people in black robes say. . . .

This decision will ultimately feed into conservative boogeyman number 438: judicial activism. Look for Justice Sunday IV: Vengeance is Mine Sayeth Delay. And expect many more calls to spike John Paul Stevens' pudding with arsenic. This is the beauty of the conservo-machine. When your primary political tools are both intimidation and victimization, you can spin anything to your advantage.

I understand the sentiment and agree with the factual premises. Yesterday's decision is but a step towards re-affirming the core principles of our constitutional system and is by no means an ultimate victory in any sense. George Bush is still the President. Congress is still controlled entirely by his corrupt political loyalists. Democrats are likely to be as meek and muddled as they have been, particularly on national security issues (the probability that they will oppose Congressional authorization of military tribunals is roughly zero). The media will still be lazy and maddeningly deferential to the administration, thereby enabling the administration's followers to get away with all sorts of distortions and smears, etc. etc. etc. All of that is true enough.

And even beyond that, I think there is a very real question as to whether the Bush administration even considers itself bound by Supreme Court decisions which it perceives to encroach on the constitutional powers of the President. This is an unpleasant question which hasn't been examined, but it may need to be now. After all, the administration's theory is that the Constitution vests unlimited power in the President to make decisions to defend the country, and nobody -- neither Congress nor the courts -- has any power to interfere with those decisions. Those decisions are, as the Yoo Memorandum put it, "for the President alone to make."

Indeed, in several of the President's signing statements, the administration seems to have pointedly emphasized the limitations on the Court's power to interfere with the President's decision-making when it comes to defending the nation. Here, for instance, is what the President said in his signing statement regarding the McCain anti-torture amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Thus, if the President decrees that compliance with a Supreme Court ruling would impair his ability to defend the nation, is it certain -- or even likely -- that the administration would comply with the ruling? It seems far more likely that the administration would simply assert that the Court has no authority to interfere with the President's constitutional obligation to defend the country, and that any ruling which does that lacks validity and therefore can be ignored. When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:

At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.

Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?

Although the administration and Senate Republicans paid lip service yesterday to their intended compliance with the Court's ruling, they did so by making clear that they were willing to comply because doing so was easy and would not interfere in any way with the military commissions they want to conduct. In other words, their willingness to comply with the Court's order is contingent on the Order's not really interfering with what they want to do. On balance, it seems far more likely than not that if the Court's ruling genuinely impairs or limits what the President wants to do in the national security area, he will assert the power to ignore the Court's rulings (just as he has asserted the power to ignore the laws enacted by Congress) because -- as the Yoo Memorandum asserts -- such decisions "are for the President alone to make." And his supporters in Congress and elsewhere would unquestionably cheer on such defiance.

Nonetheless, the Supreme Court yesterday did everything it could possibly do and everything one hoped it would do. One of our three branches of Government stood up -- finally -- to the Bush administration's claims of unchecked power and ruled that its conduct was illegal. Astonishingly, it even arguably laid the foundation for finding that the President has engaged in war crimes by systematically violating the mandates of the Geneva Conventions. And it resoundingly rejected as the unconstitutional atrocities that they are the President's theories of executive power.

Additionally, court opinions historically have a political impact as well as legal effects. Despite the concerted, destructive attacks on the credibility of the Supreme Court by the likes of Mark Levin and Rush Limbaugh, who hate and wage war on any institution (such as the media) which dares to challenge the Powers of the President, Americans still retain a respect for the Supreme Court as an important and credible institution. The Court's proclamation that the President has been acting beyond his legal and constitutional authority strengthens that argument as a political matter.

It is also likely to further galvanize those in Congress and the media who have been gradually taking a stand against the Administration. A Supreme Court ruling that is this decisive, on an issue this significant, is virtually never confined to the legal realm, but almost always has impact, often profound impact, in the political realm as well.

An immediate and complete solution to the problem of Bush lawlessness does not exist, at least in any realistic sense. Restoring our country's constitutional framework is going to be a slow, difficult, and incremental process. Victories have been rare and hard to come by, but yesterday's decision is unquestionably a victory -- and it is a significant (albeit partial) victory. The fact that it doesn't achieve every goal or solve every political problem is no reason to disparage its significance. Doing so breeds a destructive cynicism that, in turn, breeds resignation and defeatism. In that regard, the excessively cynical claim that "nothing matters because they will just do what they want and ignore every law" -- a claim I hear every day here -- is not much different than the claim that "none of this matters because they control voting machines and will always win."

At least for one day, yesterday, our system of government worked the way it is supposed to work. Our core principles of government, which have been under relentless assault for several years, were re-affirmed by the nation's highest court. The President suffered a clear and resounding defeat in the exercise of his national security powers. And one of the three branches of government demanded that its constitutional role be recognized and respected and rebuked the President for failing to do so.

The impact of all of that is not merely, as Digby put it, that "some of the legal questions about presidential wartime powers seem to have been answered." Far beyond that, the Bush administration's excesses of power were dragged into the open, declared illegal, and were powerfully condemned by the highest court in our country. If one doesn't celebrate yesterday's victory, it is difficult to imagine what would be considered a success.

Look Out, David Addington's Head Just Exploded

By Anonymous Liberal

As I read through the opinion in Hamdan v. Rumsfeld today, I couldn't help but picture David Addington sitting in his office, steam pouring out of his ears as he scanned through Justice Stevens' 73 page opus, looking for some evidence that his theories of executive power were taken seriously by the Court. I can only imagine his reaction when he got to page 29 and realized that the Court had dismissed his entire theory in a single, one sentence-long footnote:

Whether or not the President has independent
power, absent congressional authorization, to
convene military commissions, he may not
disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his
powers.

But if Addington was vexed by the majority opinion, he probably had an aneurysm when he got to Justice Kennedy's concurring opinion, which seems to have been directed specifically at the David Addingtons and John Yoos of the world. Kennedy wrote:

Military Commission Order No. 1 . . . exceeds limits
that certain statutes, duly-enacted by Congress
have placed on the President's authority to convene
military courts. This is not a case, then, where the
Executive can assert some unilateral authority to
fill a void left by congressional inaction. It is a case
where Congress, in the proper exercise of its
powers as an independent branch of government,
and as part of a long tradition of legislative
involvement in matters of military justice, has
considered the subject of military tribunals and set
limits on the President's authority. Where a statute
provides conditions for the exercise of
governmental power, its requirements are the
result of a deliberative and reflective process
engaging both of the political branches. Respect for
laws derived from the customary operation of the
Executive and Legislative Branches gives some
assurance of stability in time of crisis. The
Constitution is best preserved by reliance on
standards tested over time and insulated from
the pressures of the moment.

If that wasn't enough to make Addington's head explode, the next paragraph probably did the trick. There, Kennedy discussed "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms." Kennedy noted, in closing, that "as presently structured, Hamdan's military commission exceeds the bounds Congress had placed on the President's authority."

The Hamdan decision represents, in my opinion, a fatal blow to the Addington/Yoo theory of executive power. For the last four years, the Bush administration has been advancing the theory, both publicly and in its internal legal memoranda, that, as Commander in Chief, the president has the sole discretion to make all decisions regarding war-related issues, even when a duly enacted statute purports to limit his authority. This legal theory serves as the basis for not only the system of military tribunals at Guantanamo, but also the NSA program and the interrogation methods endorsed by the administration.

But if a statute can place valid and enforceable limits on the president's power to try foreign enemy combatants captured on foreign soil, then can there really be any doubt that a statute can place similar limits on the president's power to conduct surveillance of U.S. citizens within the United States? Of course not.

And the Hamdan opinion completely eviscerates the administration's only other argument in defense of the NSA surveillance program, i.e., that the Authorization for Use of Military Force (AUMF) somehow authorized the circumvention of FISA. The Court notes that "there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in . . . the UCMJ." All you have to do is substitute "FISA" for "UCMJ" and you know exactly what the Court would say about that argument.

In other words, if there was ever any reasonable doubt as to whether the NSA program is illegal, the Hamdan opinion dispels it. The same is true with respect to the administration's use of "enhanced interrogation techniques."

But is the opinion likely to stand? What if Bush is able to replace Justice Stevens with another conservative appointee? That's a difficult question, but having read through the dissenting opinions in Hamdan, my prediction is that the core holding of this case is not likely to be overturned, even by a more conservative Court. The reason I say that is because, while Scalia and Alito were critical of the majority's decision, neither questioned the basic Youngstown framework. Alito agreed that that UCMJ controlled, but disagreed with the majority's interpretation of it. Scalia dissented primarily on the grounds that the Detainee Treatment Act stripped the Court of jurisdiction to hear the case. Only Thomas raised the issue of the president's inherent authority (in a footnote), and he merely noted that it was unnecessary to address that question.

In other words, I doubt that anyone on the Court, except perhaps Thomas, has any real qualms with the basic Youngstown framework. And for that reason, I find it hard to believe that any future Court would bother to disturb the core holding of Hamdan.

That said, I think Congressional action is now likely on a number of fronts. I fully expect that Congress will pass some sort of legislation authorizing the use of military tribunals in the near future. After that, there will probably be a move to pass some sort of law authorizing the NSA surveillance program. What this ruling does is significantly strengthen Congress' hand when it comes to negotiating with the White House. What remains to be seen is whether the Republicans who have expressed concern about these issues in the past (Specter, Graham, Hagel, McCain) use some of their newly-found leverage to ensure that these new laws contain meaningful protections and oversight mechanisms. I'm not holding my breath.

Regardless of what happens, though, today was a very good day for the rule of law and for our system of checks and balances. Today, the Supreme Court stepped in and did something Congress has so far being unable or unwilling to do: reassert the rightful role of the legislative branch in our constitutional system of government.

BONUS COVERAGE:
On a final, tangential note, you may remember that back in March, I wrote a post describing an amicus brief submitted to the Supreme Court by Senators Kyl and Graham in connection with the Hamdan case. Their brief argued that the Detainee Treatment Act stripped the Court of jurisdiction to hear Hamdan's case. As evidence, the brief cited a lengthy colloquy from the congressional record between Senators Kyl, Graham, and others discussing how the Act stripped the Court of jurisdiction over pending cases. The brief implied that this colloquy took place live on the Senate floor prior to passage of the Act. But, as others pointed out at the time, the colloquy was fictitious; it was inserted into the record after the bill passed.

Well, this fact didn't go unnoticed by the Court. In footnote 10 of the majority opinion, the Court notes:

While statements attributed to the final bill's two
other sponsors, Senators Graham and Kyl, arguably
contradict Senator Levin's contention that the final
version of the Act preserved jurisdiction over
pending habeas cases . . . those statements appear
to have been inserted into the Congressional record
after the Senate debate. . . . All statements made
during the debate itself support Senator Levin's
understanding.

Considering that all three of the dissenting Justices agreed with the Kyl/Graham interpretation of the DTA, this is not an insignificant fact. Had the Court not been told (by attorneys for Hamdan) that the floor debate was fake, the Justices in the majority would have had a more difficult time justifying their interpretation of the DTA.

Were Senators Graham and Kyl trying to pull one over on the Court? I don't know, but it sure looks like it. I think they have some explaining to do.

The significance of Hamdan v. Rumsfeld

(updated below)

The Supreme Court today, by a 5-3 decision (.pdf) in Hamdan v. Rumsfeld, held that the Bush administration's military commissions at Guantanamo (a) exceed the president's legal authorization given by Congress and (b) violate the law of war, including Common Article 3 of the Geneva Conventions which, the Court held, applies to all detainees in any armed conflict, including Al Qaeda members.

This is a complicated decision involving complex and sometimes arcane legal issues, and is rendered somewhat more complicated by the fact that Justice Kennedy joined in most but not all of the majority's decision [the Court's opinion was authored by Stevens and joined by Souter, Ginsburg, Breyer and (with some exceptions) Kennedy; in dissent was Scalia, Thomas and Alito. Roberts ruled in favor of the administration in the appellate court (right before he was nominated to the Supreme Court) and therefore did not participate in the ruling]. But the most significant parts of the decision were joined by five justices, rendering it binding. This is a very significant legal defeat, in several ways, for the administration. Following are preliminary observations about this decision:

(1) The Supreme Court held [Sec. VI(D)(ii) of the court's opinion] that Common Article 3 of the Geneva Conventions applies to all detainees captured in military conflicts, including Al Qaeda members or other "enemy combatants," and not merely (as the Administration asserted) to soldiers who fight for established countries which are signatories to the Conventions.

Article 3 requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," and the Court ruled [Sec. VI(D)(iii)] that the military commissions established at Guantanamo violate that requirement because they are not regularly constituted tribunals but instead are specially constituted courts in the absence of any emergency. Thus, under the Geneva Conventions, any and all detainees captured in armed conflict can be tried only by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

(2) The Court did not rule on whether it could, in the absence of Congressional mandates, compel the administration to abide by the Geneva Conventions. The Court did not need to rule on this question, because it found [Sec. IV] that the administration was required by Congress -- as part of the Uniform Code of Military Justice ("UCMJ") -- to comply with the rules of law when creating and implementing military commissions. Thus, the Court enforced the Congressional statutory requirement that the administration comply with the rules of law with regard to all military commissions, and rejected any claims by the administration to possess authority to override or act in violation of that statute.

(3) The Court dealt several substantial blows to the administration's theories of executive power beyond the military commission context. And, at the very least, the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA. Specifically, the Court:

(a) rejected the administration's argument [Sec. IV] that Congress, when it enacted the 2001 Authorization to Use Military Force in Afghanistan and against Al Qaeda ("AUMF"), implicitly authorized military commissions in violation of the UCMJ. In other words, the Supreme Court held that because the AUMF was silent on the question as to whether the Administration was exempt from the pre-existing requirements of the UCMJ, there was no basis for concluding that the AUMF was intended to implicitly amend the UCMJ (by no longer requiring military commissions to comply with the law of war), since the AUMF was silent on that question.

This is a clearly fatal blow to one of the two primary arguments invoked by the administration to justify its violations of FISA. The administration has argued that this same AUMF "implicitly" authorized it to eavesdrop in violation of the mandates of FISA, even though the AUMF said absolutely nothing about FISA or eavesdropping. If -- as the Supreme Court today held -- the AUMF cannot be construed to have provided implicit authorization for the administration to create military commissions in violation of the UCMJ, then it is necessarily the case that it cannot be read to have provided implicit authorization for the administration to eavesdrop in violation of FISA.

(b) More broadly, the Supreme Court repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters. Indeed, in his concurring opinion, Justice Kennedy expressly applied the mandates of Justice Jackson's framework in Youngstown (the Steel Seizure case) on the ground that this was a case where the adminstration's conduct (in creating military commissions) conflicted with Congressional statute (which requires such commissions to comply with the law of war).

Applying Youngstown, Kennedy concluded that the President's powers in such a case are at their "lowest ebb" and must give way to Congressional law. In other words, Kennedy expressly found (and the Court itself implicitly held) that even with regard to matters as central to national security as the detention and trial of Al Qaeda members, the President does not have the power to ignore or violate Congressional law. While one could argue that Congress' authority in this case is greater than it would be in the eavesdropping context (because Article I expressly vests Congress with the power to "make Rules for the Government and Regulation of the land and naval Forces"), the Supreme Court has rather loudly signaled its unwillingness to defer to the Executive in all matters regarding terrorism and national security and/or to accept the claim that Congress has no role to play in limiting and regulating the President's conduct.

(4) This decision illustrates just how critical is the current composition of the Supreme Court. The decision was really 5-4 (because Roberts already ruled in favor of the administration in the lower court). The Justice who wrote the majority opinion, John Paul Stevens, is 86 years old, and as Justice Blackmun once famously warned, he "cannot remain on this Court forever." If the Bush administration is permitted to replace Stevens with yet another worshipper of executive power, the next challenge to the Bush administration's theories of unchecked power could very easily result, by a 5-4 vote, in the opposite outcome.

(5) Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants. It could amend the UCMJ to allow military commissions with the rules established by the President. It has already stripped the Court of jurisdiction to hear future habeas corpus challenges by Guantanamo detainees, and could act to further strip the Court of jurisdiction in these areas. We will undoubtedly hear calls by Pat Roberts, John Cornyn, Jeff Sessions, Tom Coburn (and perhaps Joe Lieberman?) et al. for legislation which would accomplish exactly that.

Nonetheless, opponents of monarchical power should celebrate this decision. It has been some time since real limits were placed on the Bush administration in the area of national security. The rejection of the President's claims to unlimited authority with regard to how Al Qaeda prisoners are treated is extraordinary and encouraging by any measure. The decision is an important step towards re-establishing the principle that there are three co-equal branches of government and that the threat of terrorism does not justify radical departures from the principles of government on which our country was founded.

UPDATE: A few additional points worth noting or emphasizing:

(6) Strictly speaking, the Supreme Court did not enforce the mandates of the Geneva Conventions against the administration, nor did it hold that the administration is required in the absence of Congressional mandate to comply with the Conventions. To the contrary, the Court here was enforcing Congress's "express condition," when authorizing the President as part of the UCMJ to create military commissions, "that the President and those under his command comply with the law of war." The Court was enforcing the statutory requirement against the administration that it comply with the law of war with regard to military commissions, not the Conventions themselves.

For that reason, I think Marty Lederman's claim that "the decision basically resolves the debate about interrogation techniques" might be overstated -- both because (a) one could argue that the Court's decision turns on enforcement of the UCMJ's military-commission-specific requirements, and not the provisions of Article 3 generally; and (b) there is a much stronger argument to make in the interrogation area that Congress implicitly amended the Convention's requirements regarding torture (by enacting the much narrower McCain legislation governing interrogation techniques) than there is in the area of military commissions (where Congress has enacted no specific, subsequent legislation to replace the UCMJ's provisions regarding military tribunals).

Presumably, then, Congress could amend the UCMJ to exempt military commissions from the law of war (either generally or as it pertains to Al Qaeda members), casting into serious doubt the ongoing validity of the Court's ruling as it pertain to these commissions. Or, Congress could simply abrogate the Geneva Conventions altogether, which would certainly free the administration from those requirements. I would speculate that the Republican-controlled Congress could, without a great deal of difficulty, enact legislation exempting Al Qaeda members from the Article 3 protections.

Having said that, I agree with Marty that the real significance of this decision is not its effects on military commissions themselves, but the broad legal principles the decision affirms. Specifically:

(7) The more I read and think about this opinion, the greater a death blow I think it deals -- at least on the legal front -- to the administration's Yoo theory of unlimited executive power. Not only Justice Kennedy in his concurrence, but also the Court's opinion itself, cited Justice Jackson's 3-prong Youngstown test to re-affirm the proposition that the President's constitutional powers must give way to duly enacted Congressional laws.

More importantly,the Opinion repeatedly places great emphasis on what it calls "the powers granted jointly to the President and Congress in time of war" (See, for instance, Op. at p. 27; emphasis added in all citations). And in a direct repudiation of the administration's claim that Congress is without power to limit or regulate the war powers granted by the Constitution to the President, the Court explained (Op. at p. 29, fn. 23):

"Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).

Whether intended or not, that paragraph, by itself, dispenses with the central misconception -- the myth -- most frequently relied upon by Bush followers in defending the administration's violations of FISA. Specifically, they assert that cases which, pre-FISA, held that the President has inherent authority to eavesdrop mean that Congress cannot regulate that power.

But as the Court today explained -- and as Youngstown held 50 years ago -- even with regard to inherent powers he possesses, the President "may not disregard limitations that Congress . . . in proper exercise of its own war powers" imposes. That principle is based upon "the powers granted jointly to the President and Congress in time of war." Thus, even if the President possesses the power "absent congressional authorization" to, for instance, eavesdrop (or torture people), "he may not disregard limitations that Congress" imposes on such powers.

To appreciate what a severe blow this opinion struck to the broad outlines of the Bush administration's theory of executive power, compare the Court's holding that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers" -- powers which include its own "war powers" -- with the authoritarian claim of unlimited power asserted in the infamous Yoo memorandum:

Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

More than anything else, the Court's opinion today is the opposite of -- a clear rejection of -- the crux of the Yoo Memorandum. The Court held that Congress most certainly does have a role to play in the exercise of war powers, and that such decisions are most certainly not "for the President alone to make."

Similarly, in his short one-page opinion -- signed by Justice Kennedy (as well as Ginsberg and Souter) -- Justice Breyer explained that absent emergency, the Constitution requires that the President comply with Congressional law even in areas which lay at the heart of national security:

Congress has denied the President the legislative authority to create military commissions of the kind at issue here. . . . Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

The (fatal) applicability of that paragraph to the administration's general theory of executive power is manifest. Just as Congress denied the President authority to create military commissions which violate the law of war, so, too, has Congress denied the President the authority to eavesdrop on Americans without warrants (and to torture detainees, etc.), and -- just as is the case with military commissions -- there is simply no legal justification for the President to ignore those laws.

Media, others finally recognizing the President's seizure of law-breaking powers

There is no question that the President's radical theories of law-breaking and executive power are now, finally, being unambiguously discussed and even debated by the Congress and the national media (beyond The Boston Globe's Charlie Savage). Due in large part to the Judiciary Committee hearings held by Sen. Arlen Specter regarding the President's practice of issuing "signing statements" proclaiming his right to break various laws, the type of discussion which we ought to have had long ago -- about whether we want to change the type of government we have in order to vest unlimited executive power in President Bush (and then subsequent presidents) -- is finally starting to emerge. Even conventional wisdom-spouting Jeff Greenfield on CNN reported:

The "Boston Globe" counts more than 750 instances where the president has reserved the right to ignore any statute that conflicts with his interpretation of the Constitution. Critics, including the libertarian Cato Institute, accused the president of a, quote, "push for power unchecked by either the courts or Congress."

This is not an issue Democrats should fear. Quite the contrary, as polls show an increasing dislike and distrust of one-party Republican rule. Americans generally believe in balanced and restrained power and dislike unchecked rulers and extremism. If this administration believes in anything, it is unchecked power and extremism, and virtually every major issue of controversy -- from the administration's systematic, unprecedented attacks on a free press to its claimed right to violate the law -- illustrates the excesses and dangers which inevitably arise when one political faction can exercise power without meaningful restraints.

The Bush administration and its Congressional allies have clearly fallen victim to the hubris that comes from operating without limits, and Americans know this and are clearly disturbed by it. They want limits on one-party rule, and a Democratic takeover of one or both houses of Congress is, Democrats can and should argue, the only way to restore checks and balances to our government. The Supreme Court's decision today in Hamdan v. Rumsfeld -- which held that (a) courts retain the right to rule on the legality of military tribunals at Guantanamo; (b) the President exceeded his authority in the creation of those tribunals; and (c) the rules of the tribunals violate both military justice law and the Geneva Convention -- should serve to further highlight how extremist and lawless this administration has become (more on this very significant decision later, once I have had a chance to read it).

With the media slowly awakening to these issues, some Senators seem to recognize just how profound a threat this administration has become. Here is Sen. Patrick Leahy at the Judiciary Committee hearing, stating the case as clearly as it should be:

"We are at a pivotal moment in our Nation's history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. . . .

"[T]ime and again, this President has stood before the American people, signed laws enacted by their representatives in Congress, while all along crossing his fingers behind his back."

Former Reagan Justice Department official and life-long conservative Bruce Fein said this:

"Presidential signing statements are extra-constitutional and riddled with mischief. . . I would further recommend that Congress enact a statute seeking to confer Article III standing on the House and Senate collectively to sue the President over signing statements that nullify their handiwork, at least in circumstances where there is no other plausible plaintiff who would enjoy standing. . . . . If all other avenues have proved unavailing, Congress should contemplate impeachment. . . . "

And as Savage reports, there is now widespread discussion that Congress could sue the President over the signing statements, seeking a judicial declaration that the President does not have the right under our system of government to break the law. Unlike at other hearings, the low-level Bush lawyer sent to defend the "signing statements" received little support from the Senators on the Judicary Committee: "Throughout the hearing, Boardman received little friendly questioning from the dais beyond that of Senator John Cornyn, Republican of Texas . . ."

Senate Democrats recognized the significance of the hearings -- which forced a much more widespread public discussion of these issues than we have previously had, by far, and which even forced the White House to try to defend the President's practice of declaring his power to break the law:

The Democrats repeatedly praised Specter, as a Republican, for holding the hearing. The ranking Democrat, Senator Patrick Leahy of Vermont, said that the administration and its defenders were showing "utter contempt" for the concerns of Congress about Bush's expansive theory about his own constitutional powers.

Despite the uneven attendance, the hearing served to focus greater attention on the administration's legal claims. At the White House, Press Secretary Tony Snow denied that Bush was using signing statements as backdoor way to "win" on issues after failing to persuade Congress to write legislation to his liking.

Snow also insisted that the president was merely fixing "relatively minor" constitutional flaws that Congress had "unwittingly" included in bills during the lawmaking process.

As I have said countless times, the more open and public discussion of these issues, the better. Americans know instinctively that we do not have a system of Government where the President can sign a Congressionally enacted law and then claim the right-- and exercise the right -- to break the law. The President's assertion of these powers reflects an arrogance of power and a pretense to monarchical entitlements which Americans simply dislike.

Having said that, it is the case, I believe, that there is an undue emphasis on the significance of signing statements. By themselves, signing statements have no legal or constitutional significance. The issuance of signing statements changes nothing. They do not create presidential powers nor do they confer rights of any kind. They are really nothing more than declarations of presidential belief, documents which state how the President understands a particular law.

In that regard, I believe these signing statements actually perform a critically important service. They bring out into the open the theories of monarchical power which this administration has adopted. By expressly stating in the signing statements that he has the right to violate these law, the President is explicitly acknowledging that he has seized these powers. The signing statement itself is not the instrument by which he has seized those powers, but is merely a reflection -- an overt acknowledgment -- of the fact that the President has, in fact, seized those powers. It is the powers themselves, and not the statements in which they are asserted, that are so significant.

But there is no doubt that public debate over the President's extremist theories is, finally, intensifying, and that is a development that should be celebrated by anyone who believes that we ought to adhere to our constitutional traditions. The President has been able to claim unlimited powers only because most Americans have been unaware that he has done so. Defending these theories out in the open is not something this administration wants to do -- why would it? -- and now that the press is beginning to understand what is truly at stake, the opportunity exists to force them to do so.

Applying the "One Percent Doctrine" in a Vacuum

By Anonymous Liberal

The title of Ron Suskind's much-publicized new book "The One Percent Doctrine" refers to a doctrine reportedly adopted by Dick Cheney following the 9/11 attacks. According to Suskind, Cheney was adamant that if there is even a one percent chance of a high-impact threat materializing, "we have to treat it as a certainty in terms of our response."

In and of itself, there's nothing particularly crazy about such a doctrine. Rationale actors are supposed to base their response to potential threats on an assessment of two factors: the gravity of the threat and the likelihood of it occurring. If the threat is sufficiently grave (say, a nuclear bomb detonating in a U.S. city), it makes sense to take that threat very seriously, even if there is only a 1% chance of it occurring.

The reviews of Suskind's book (I confess I have not yet read the book itself) focus on how Cheney's doctrine "effectively sideline[d] the traditional policymaking process of analysis and debate, making suspicion, not evidence, the new threshold for action."

This may well be true, and it may go a long way toward explaining how we came to be bogged down in a protracted conflict in a country that had nothing to do with the events of 9/11.

But it seems to me that the primary problem is not so much the doctrine itself, but the fact that it has been applied in an entirely arbitrary and haphazard way.

According to Suskind, Cheney's epiphany came after a briefing in which he was told that two Pakistani nuclear scientists had met with Osama Bin Laden. Cheney is then reported to have said: "If there's a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response."

But do the Bush administration's policies really reflect that sort of response? It's been over four years since Cheney made this remark, and in that time, the Bush administration has done almost nothing to increase security at the most likely point of entry for a nuclear device or other WMD, our ports. The percentage of shipping containers that are inspected is still very small. And even less has been done to protect potential domestic targets, like chemical and nuclear plants. Could it be that the "one percent doctrine" gives way when it comes to safety measures that are unpopular with the business lobby?

The "one percent doctrine" was most clearly on display in our decision to pre-emptively invade Iraq, a country that we knew did not have nuclear weapons or any significant ties to Osama bin Laden. We chose to invade the country, at least in part, because of the small chance that Saddam might one day transfer a weapon of mass destruction (particularly a nuclear bomb) to a terrorist organization like al-Qaeda.

Three years later, bin Laden is still at large, we're still tied up in Iraq, and two other potential nuclear powers are emerging (North Korea and Iran).

The problem is, at the risk of stating the obvious, that it is impossible to treat all low-probability threats as if they are certain to occur. Resources are limited and threats must be prioritized. Taking steps to address one potential threat will necessarily affect the calculus with respect to others. By treating the 1% percent chance (if it was even that high) that Saddam Hussein would develop nuclear weapons and deliver them to al-Qaeda as if it were 100% certain to occur, we increased the odds with respect to other, equally troubling threat scenarios.

Our invasion and occupation of Iraq has stoked anti-American sentiment worldwide, has created a training ground for terrorists, has bogged down our military in a costly and increasingly intractable armed conflict, has severely undermined our national credibility, and has foreclosed any good options for dealing with other emerging threats (see North Korea, Iran). So while the odds of Saddam ever providing a bomb to al-Qaeda have now dropped to zero, the odds regarding other threat scenarios have undoubtedly gone up, in some cases dramatically.

In other words, you can't do threat assessment in a vacuum. When you focus myopically on one particular threat, the "one percent doctrine" is a recipe for reckless, consequences-be-damned foreign policy. And I think that's exactly what we've seen over the last four years.

The extent of this myopia is even more apparent when you expand the discussion to include non-terrorism related threats. To take an obvious example, for decades experts warned that a strong hurricane would breach the levies surrounding New Orleans, causing wide-spread damage and loss of life. That this would eventually happen was a virtual certainty (certainly far greater than 1%). And yet when it did happen, the Bush Administration was utterly unprepared to deal with it.

And where did the "one percent doctrine" go when it comes to the threat posed by global warming? With respect to that threat--like the threat to New Orleans--the Bush administration seems to have long ago adopted the "ninety-nine percent doctrine", i.e., if a threat has a 99% chance of materializing, we must base our policy around the assumption that it will NOT occur.

As I said, I haven't yet read Suskind's book, and he may well make some or all of these points in it. But it seems to me that the primary problem with the Bush administration is not that it overreacts to low-probability threats, but that it single-mindedly focuses on one particular threat scenario to the exclusion of all others.

The most fact-free accusation yet - the "treason" of the New York Times

An important article today in The Boston Globe reports a self-evidently dispositive fact in the controversy over the "treasonous" disclosure by The New York Times and other newspapers of the Bush administration's financial surveillance program -- namely, that none of those articles disclosed any meaningful operational information that was not already in the public domain:

But a search of public records -- government documents posted on the Internet, congressional testimony, guidelines for bank examiners, and even an executive order President Bush signed in September 2001 -- describe how US authorities have openly sought new tools to track terrorist financing since 2001. That includes getting access to information about terrorist-linked wire transfers and other transactions, including those that travel through SWIFT.

"There have been public references to SWIFT before," said Roger Cressey, a senior White House counterterrorism official until 2003. "The White House is overreaching when they say [The New York Times committed] a crime against the war on terror. It has been in the public domain before."

Indeed, a report that [former State Department official Victor] Comras co-authored in 2002 for the UN Security Council specifically mentioned SWIFT as a source of financial information that the United States had tapped into.

The report by Comras referenced here is the same one cited in my post yesterday to demonstrate that it was already public knowledge that the U.S. has access to and actively monitors financial transactions effectuated through SWIFT. In the Globe article, even Bush's own former high-level terrorism official makes clear that nothing in the Times report disclosed any significant operational information not previously in the public domain. And the Globe article identifies multiple other instances in which similar information was publicly disclosed by the Bush administration itself as a means of boasting about its anti-terrorism record.

I watched probably six or seven news programs since Friday which discussed the traitorus acts committed by the Times, all of which were chock full of shrill accusations that the Times had committed "treason" and deserved criminal prosecution, if not worse ("treason" is, of course, a capital crime, the punishment for which -- as is ingrained in everyone's brain -- is execution, not imprisonment). And yet, I never once heard any of the esteemed journalists or pundits mention any of these facts. While I had known (and previously posted) that President Bush had repeatedly disclosed details about our counter-terrorism efforts in order to win re-election (including our efforts to monitor terrrorists' banking transactions), it was not until I began reading about the issue in the blogosphere yesterday did I learn that it has long been public knowledge that we monitor international banking transactions through SWIFT, among other banking systems.

For anyone who is accusing the Times of "treason," or claiming that they harmed national security, what is the answer to this question:

What, specifically, would a terrorist have been willing to do on June 22 [the day before the banking story was published] that he would not do on June 23 as a result of the Times' article?

The same question has been repeatedly asked, but never answered, with regard to the "treasonous" Times disclosure of the warrantless eavesdropping program:

What, specifically, would a terrorist have been willing to do on December 15 [the day before the NSA story was published] that he would not do on December 16 as a result of the Times article?

Prior to the "treasonous" Times articles, The Terrorists already knew that we were eavesdropping on their international calls and monitoring their banking transactions -- because that information was previously, and repeatedly, put into the public domain, often by the Bush administration and President Bush himself. What the Times revealed is the lack of oversight and checks on these intelligence-gathering activities, not the existence of the activities themselves, which were already well known.

That is why not a single person who ever sermonizes righteously about the traitors at the Times can ever identify what ought to be the first fact that is identified when accusing someone of harming national security -- namely, the disclosure of facts which (a) would enable the terrorists to avoid surveillance detection and (b) was not previously known. Those facts simply do not exist, which is why nobody ever identifies them.

One of the programs to which I subjected myself over the weekend was Chris Wallace's show on Fox. The little panel he assembled talked about the treason of the Times for five minutes or so. Brit Hume snarled angrily the entire time as he ranted about the arrogant and treasonous impulses of the New York Times. Bill Kristol repeatedly advocated criminal prosecution against the Times for helping the terrorists to win The War against us. Mara Liasson spat out meaningless neutralties designed, as always, to show how reasonable she is. And Juan Williams, the only one on the panel to "defend" the Times, did so by stupidly claiming that disclosure of the program was actually a good thing because now The Terrorists know that we are watching the SWIFT program and they can't use it anymore. What a coup for us!

Anyone watching this Fox show (or reading virtually any article on this topic) would simply assume that the Times disclosed super-duper top secret information about how we monitor banking transactions which was not previously known to The Terrorists, and would further assume that the Times article provided a never-before-disclosed blueprint for The Terrorists to evade detection.

And it wasn't just on Fox. Every show I watched on which the question of the Times' treason was playfully bandied about all tacitly assumed that the Times disclosed helpful information to The Terrorists, and the only question was whether they should be hanged, imprisoned, or merely despised by all Decent People for having done so. (Surprisingly, even Kevin Drum operates from the same false assumption that the Times disclosed the never-before-known fact that we monitor SWIFT transactions and makes the same argument as Williams made -- that the Times helpfully took away SWIFT as a financial instrument for terrorists). Except just as was true with the Times "disclosure" of the "Terrorist Surveillance Program," the core factual assumption is plainly false. There was not a single non-public fact disclosed by the Times that would enable The Terrorists to avoid surveillance detection, and nobody ever bothers to identify any such fact when engaging in these wild accusatory rituals.

Yet again, The Boston Globe demonstrates what real journalism is supposed to do -- subject claims by the Government and its loyalists (in this case, claims that the Times disclosed information that will help the terrorists commit terrorist attacks) to skeptical scrutiny, and then report facts which have been concealed that undermine the Government's claim. That's the definition of the core journalistic purpose.

This is not a complicated matter. Nobody who is making these accusations can identify a single specific act that Terrorists would have engaged in before that they will now avoid. That, by itself, does not merely undermine, but destroys, the claim that the Times harmed national security. Any "journalist" who allows those accusations to be made without pointing out that fact are, to put it mildly, acting quite irresponsibly.

The "October Surprise" Revisited

By Anonymous Liberal

Five days before the 2004 presidential election, Osama bin Laden released a video to Al Jazeera; it was his first on camera appearance in nearly three years. It was obvious at the time who benefited politically from this "October surprise." The tape helped George W. Bush and hurt his challenger, John Kerry. Given the timing and subject matter of the tape, it was clear that Bin Laden was attempting to influence the U.S. election, and, almost surely, knew that the tape would benefit President Bush.

One of the (so far) overlooked revelations in Ron Suskind's new book, The One Percent Doctrine, is the fact that the CIA reached this same conclusion about the bin Laden tape almost immediately. Here's a passage from Sidney Blumenthal's review of Suskind's book:

On Oct. 29, 2004, Osama bin Laden released his
"October surprise," an 18-minute tape attacking
Bush. The CIA analyzed the tape and concluded
that "bin Laden's message was clearly designed
to assist the President's reelection." That day,
at a meeting at the CIA, acting director John
McLaughlin remarked, "Bin Laden certainly did
a nice favor today for the president." [Jami]
Miscik [deputy director of the CIA's Directorate
of Intelligence] presented analysis that bin
Laden felt challenged by the rise of the thuggish
Zarqawi, who called himself commander of
al-Qaida in Iraq, and that bin Laden was
refocusing attention through his tape on his
cosmic and continuing one-on-one battle with
Bush. "Certainly," she said, "he would want Bush
to keep doing what he's doing for a few more
years."

Of course the fact that the Bush administration itself had concluded that the purpose of the tape was to tilt the election in favor of the President did not stop the Bush/Cheney campaign from sending its surrogates out to make the exact opposite claim, and right on the eve of the election:

Here's Bill Kristol:

But the fact remains that Osama bin Laden is not
neutral in our election. He is trying to intimidate
Americans into voting against George W. Bush.
I don't believe the American people are going to
honor his wishes.

And here's Rudy Giuliani on Meet the Press, making no sense at all:

Well, the fact is, and if you want to be clear about
the rest of the statement, bin Laden--he certainly
didn't say he was in favor of John Kerry and I'm
sure he's not but he certainly wants George
Bush out of the White House. . . .

I have no idea what his position is on John Kerry.
He didn't say it, and I would imagine, you know, he
has no interest in who wins. I do think he has
an interest in who loses, and that's one of the
reasons he put in all those criticisms of President
Bush.

Sean Hannity:

Why would Osama bin Laden, who's been quiet for
so long, come out and virtually try and influence
the election today in favor of John Kerry by
attacking the president the way he did? Let's be
analytical here. Why would he do that if he didn't
think Bush was a stronger leader? . . .

Clearly, he wants George Bush to lose, and the
question is why?

Peggy Noonan:

This guy is half finished, and the reason is George
Bush. Do you think he wants George Bush to
have a nice day on Tuesday? I don't think so.

David Brooks:

I think people will say look, here's this guy. He
wants to take down Bush. He wants to change
American policy.

And finally, Rush Limbaugh:

If this -- if John Kerry wins this race and they got
the bin Laden tape out there, do you realize what
the conclusion will be by militant Islamists? That
they did it -- they had the ability to affect the
election of this country without firing a shot like
they had to do in Spain.

Well, irony of ironies, al-Qaeda's real goal was apparently to get Bush re-elected, and it succeeded. All "without firing a shot." I wonder if the President ever sent Bin Laden a thank-you note.

The Bush lynch mob against the nation's free press

(updated below)

Any doubts about whether the Bush administration intends to imprison unfriendly journalists (defined as "journalists who fail to obey the Bush administration's orders about what to publish") were completely dispelled this weekend. As I have noted many times before, one of the most significant dangers our country faces is the all-out war now being waged on our nation's media -- and thereby on the First Amendment's guarantee of a free press -- by the Bush administration and its supporters, who are furious that the media continues to expose controversial government policies and thereby subject them to democratic debate. After the unlimited outpouring of venomous attacks on the Times this weekend, I believe these attacks on our free press have become the country's most pressing political issue.

Documenting the violent rhetoric and truly extremist calls for imprisonment against the Times is unnecessary for anyone paying even minimal attention the last few days. On every cable news show, pundits and even journalists talked openly about whether the editors and reporters of the Times were traitors deserving criminal punishment. The Weekly Standard, always a bellwether of Bush administration thinking, is now actively crusading for criminal prosecution against the Times. And dark insinuations that the Times ought to be physically attacked are no longer the exclusive province of best-selling right-wing author Ann Coulter, but -- as Hume's Ghost recently documented -- are now commonly expressed sentiments among all sorts of "mainstream" Bush supporters. Bush supporters are now engaged in all-out, unlimited warfare against journalists who are hostile to the administration and who fail to adhere to the orders of the Commander-in-Chief about what to print.

The clear rationale underlying the arguments of Bush supporters needs to be highlighted. They believe that the Bush administration ought to be allowed to act in complete secrecy, with no oversight of any kind. George Bush is Good and the administration wants nothing other than to stop The Terrorists from killing us. There is no need for oversight over what they are doing because we can trust our political officials to do good on their own. We don't need any courts or any Congress or any media serving as a "watchdog" over the Bush administration. There is no reason to distrust what they do. We should -- and must -- let them act in total secrecy for our own good, for our protection. And anyone who prevents them from acting in total secrecy is not merely an enemy of the Bush administration, but of the United States, i.e., is a traitor.

A book could and ought to be written about the corrupt reasoning and truly unparalleled dangers characterizing this anti-media lynch mob. But for now, following are what I believe are the most noteworthy points:

(1) There is not a single sentence in the Times banking report that could even arguably "help the terrorists."

George Bush and his allies in the right-wing media (such as at National Review) have been running around for the last several years boasting about the administration's programs for tracking terrorists and innovating our surveillance methods. In doing so, they have repeatedly -- and in detail -- told the public, and therefore The Terrorists, all sorts of details about the counter-terrorism programs we have implemented, including -- from the President's mouth himself -- programs we have for monitoring international banking transactions.

Here is President Bush, campaigning for re-election in Hershey, Pennsylvania on April 19, 2004, boasting about our vigilant efforts to monitor the terrorists' banking transactions:

Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America.

And as former State Department official Victor Comraes detailed (and documented) on the Counterterrorism blog, it has long been pubic knowledge that the U.S. Government specifically monitors terrorists' banking transactions through SWIFT:

Yesterday’s New York Times Story on US monitoring of SWIFT (Society for Worldwide Interbank Financial Telecommunication) transactions certainly hit the street with a splash. It awoke the general public to the practice. In that sense, it was truly new news.

But reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002. The UN Al Qaeda and Taliban Monitoring Group , on which I served as the terrorism financing expert, learned of the practice during the course of our monitoring inquiries.

The information was incorporated in our report to the UN Security Council in December 2002. That report is still available on the UN Website. Paragraph 31 of the report states:

"The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries."

Suggestions that SWIFT and other similar transactions should be monitored by investigative agencies dealing with terrorism, money laundering and other criminal activity have been out there for some time. An MIT paper discussed the pros and cons of such practices back in 1995. Canada’s Financial Intelligence Unit, FINTRAC,, for one, has acknowledged receiving information on Canadian origin SWIFT transactions since 2002. Of course, this info is provided by the banks themselves.

Claims that The New York Times (and other newspapers which published stories about this program) disclosed information about banking surveillance which could help terrorists are factually false. Nobody can identify a single sentence in any of these stories which disclosed meaningful information that terrorists would not have previously known or which they could use to evade detection. To the extent that it is (ludicrously) asserted that the more they are reminded of such surveillance, the more they will remember it, nobody has spoken more openly and publicly about the Government's anti-terrorism surveillance programs than a campaigning George Bush.

In this regard, the bloodthirsty calls for Bill Keller and other editors and reporters to rot in a federal penitentiary are simply outside the scope of rational thought. Similar calls have issued in response to the Times' oh-so-shocking disclosure that the U.S. Government eavesdrops on the telephone calls of terrorists, even though the President himself ran around for several years boasting about -- and detailing -- our efforts to eavesdrop on the international telephone calls of terrorists. Here is George Bush, on June 9, 2005, in Columbus, Ohio, disclosing to the terrorists that they can no longer change cell phones as a means to evade our surveillance:

One tool that has been especially important to law enforcement is called a roving wiretap. Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals.

Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses.

We've endured six months now of increasingly shrill and vicious assaults on the nation's media, whereby any journalist who publishes information which George Bush wants to conceal is branded a traitor and a criminal deserving of imprisonment, if not worse. And all of it is based upon a plainly false factual premise -- that these stories are disclosing information which can help the terrorists evade surveillance because they are disclosing critical operational details of our surveillance programs. Which information specifically has been disclosed that: (a) was not previously disclosed and (b) can help terrorists evade detection? There is none.

Thus, all anyone has to do to realize the sheer falsity of those claims is to compare the "treasonous" articles in question to prior public statements and documents from the Bush administration. Terrorists already knew that we were attempting to eavesdrop on their telephone calls because the Bush administration repeatedly talked about our surveillance programs. And, for the same reason, terrorists already knew that we were monitoring banking transactions -- including specifically those effectuated through SWIFT. And yet we are subjected to an increasingly frenzied lynch mob insisting that reporters have committed treason without their ever really being challenged by the media itself over these factually false claims.

None of this has to do with anger over "helping the terrorists." The articles in question so plainly do nothing of the sort. The anger that is unleashed by the media doing its job is the by-product of a belief that the Bush administration should be able to act in complete secrecy, with no checks or oversight of any kind. And it is equally grounded in the twisted view that American interests are synonymous with the political interests of the Bush administration, such that harming the latter is, by definition, to harm the former. In this view -- which has predominated over the last five years -- to oppose the Bush administration's "national security" policies is, by definition, to act against the United States and aid and abet The Terrorists.

The media is guilty of publishing stories which might harm the political interests of the President, not which could harm the national security of the United States. But Bush supporters recognize no such distinction. Harming the "Commander-in-Chief in a time of war" is, to them, synonymous with treason. Hence, we have calls for the imprisonment of our national media for reporting stories which tell terrorists nothing of significance which they did not already know, but which instead, merely provoke long-overdue democratic debates about whether we want to be a country in which we place blind trust in the administration to act in total secrecy.

(2) The reason there is "no evidence of abuse" is precisely because the administration exercises these powers in total secrecy.

One of the most favorably cited articles over the last few days by Bush supporters urging the imprisonment of journalists was this angry screed from Michael Barone, entitled "The New York Times at war with America." The heart of the argument is this claim:

Why do they hate us? Why does the Times print stories that put America more at risk of attack? They say that these surveillance programs are subject to abuse, but give no reason to believe that this concern is anything but theoretical.

If it were the case that the Bush administration were abusing its surveillance and intelligence-gathering powers -- by, for instance, spying on innocent Americans or gathering data on the private lives of its political opponents -- how would we possibly know? How would it ever become something other than a "theoretical" concern? It couldn't be.

The whole point -- the one which The New York Times is attempting finally to examine -- is that we have previously decided as a nation that we want our Government to engage in aggressive intelligence-gathering activities against our enemies, but we trust the Government to do so only with active and vigilant oversight from other branches to ensure that there is no abuse, and do not trust these powers to be exercised in secret. That was the whole point, for instance, of FISA -- passed 95-1 by the Senate 28 years ago. We want the Government to engage in aggressive eavesdropping, but only trust it to do so with judicial oversight, precisely because allowing the Government to do so in secret means that we will never discover abuse of those powers.

To assert that we need not worry about anything because there is "no evidence of abuse" -- that we should keep our heads down and go about our business -- is plainly, even painfully, illogical. The reason we don't want the Government to be able to act without oversight is precisely because they can then abuse its powers without being detected, i.e., without there being any "evidence of abuse." If the Bush administration exercises these powers with no governmental oversight -- as it does -- how does Michael Barone think there would be any evidence of abuse if, in fact, the administration was abusing its power?

Administrations of both parties systematically abused its eavesdropping powers for 40 years without detection precisely because it operated in secrecy. The reason why it is dangerous to allow the Government to act in secrecy -- to troll at will through our financial transactions and listen in on our telephone conversations -- is precisely because there is no way to learn of abuses. To assert, as Barone has, that abuse is "only theoretical" is to illustrate why oversight is needed, not to demonstrate that it is unnecessary.

The defining ethos of our country is a distrust of government power -- or at least it always used to be. The entirety of the Constitution is devoted to imposing safeguards against government abuses because our country was founded upon the principle that we do not place blind faith in political officials to act properly. But the argument being peddled now is that we can place blind trust in the Bush administration and we need not worry ourselves about anything. At the very least, such a dramatic reversal of how we think about our government ought to be the subject of debate. That is the "public interest" to which Bill Keller is referring when explaining why the Times ran this story. And that is precisely what the media is supposed to do.

(3) The Founders unequivocally opted for excess disclosures by the media over excess government secrecy and restraints on the press.

These debates over the media are not new. A free press, publishing government secrets, has been the enemy of governments wherever a free press existed. It is supposed to be that way. The reason the Founders guaranteed a free press is to ensure that there would be an adversary of the Government, an entity which uncovers and discloses government conduct which political leaders want to conceal. As a result, it was hardly unforeseen by the Founders that the Government would be hostile and resentful of the press. Hostility and adversarial struggles were supposed to be an intrinsic attribute of the government-press relationship.

And the Founders equally recognized that, as a result of this inherent conflict, the Government would attempt to do exactly what the Bush administration and its supporters are now actively pursuing -- that is, using governmental power (such as the power of anti-press legislation, prosecution and/or imprisonment) to forcibly limit what the media can report and/or to intimidate them from reporting facts which the Government wanted to conceal. The Constitution resolves that conflict in favor of the press in the First Amendment to the Constitution by making the prohibition on anti-press government restraints absolute and unambiguous.

Bush supporters want nothing less than to re-visit the Founders' resolution and reverse it. They want to replace the wisdom of Thomas Jefferson and Benjamin Franklin with regard to press freedoms with the superior judgment of Dick Cheney, Congressman Peter King and Michelle Malkin, who want to imprison reporters for what they publish. They simply don't believe in the same principles that the Founders embraced and enshrined for our country. These observations from Jefferson simply leave no doubt about that:

Jefferson warned:

"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."

And in the debate over whether to favor excessive disclosure or excessive government secrecy, Jefferson left little doubt as to how that conflict was resolved by the Founders: in choosing "government without newspapers or newspapers without government, I should not hesitate for a moment to prefer the latter."

Bush supporters plainly disagree with both assessments. They believe in government power that cannot be checked by the press, at least under this administration. The government can act in total secrecy, and journalists ought to be imprisoned if they disclose information which the President decrees should be kept secret. They believe that the Bush administration should be able to dictate what the media reports (as Michael Barone revealingly complained: "Once again, Bush administration officials asked the Times not to publish the story. Once again, the Times went ahead anyway"). That is a theory of government which has been advocated by other countries. But it has never previously taken hold in the United States. It is now close to doing exactly that.

(4) How can any rational person believe that the reporters and editors of The New York Times want to help terrorists attack the U.S.?

After the 9/11 attacks, it became a common topic of discussion among residents of New York City as to which sites were the most likely targets for future terrorist attacks -- bridges, subways, tourist attractions, centers of commerce, etc.? Virtually everyone recognized that one of the most obvious targets for terrorists is Times Square, which has everything a terrorist could want -- symbolic value, great economic impact, a locale in the heart of America's most important city, and a permanently congested square always packed full with residents, workers, and tourists.

The reason the intersection of 42nd Street and Broadway has the name "Times Square" is because it is the home of The New York Times. There are few people more at risk in the event of a future terrorist attack then the reporters and editors of The Times, who work (and often live) in the middle of Manhattan, at the epicenter of one of the most obvious terrorist targets in the country. Nobody would be less likely to want to aid terrorists in committing a terrorist attack than the reporters and editors of The New York Times. That's just obvious. And yet all sorts of people who live and work in distant places that are far less likely to ever be the target of a terrorist attack so whimsically and stupidly accuse the journalists at the Times of wanting to help terrorists stage attacks against America.

That is the level of discourse and reasoning flooding the airwaves and public debates. Accordingly, the reporters of the Times are not publishing these stories because they believe that Americans ought to know about and debate the Bush administration's secret, oversight-less intelligence-gathering programs. No -- it's because they are enemies of the United States, they hate Americans, and they want to help The Terrorists stage attacks on this country (of which they are the most likely targets). To see the face of genuinely demented Orwellian hate rituals, behold these posters published by Michelle Malkin launching accusations against and urging attacks on The New York Times. All of this is truly the stuff of hysterical, deranged, hateful lynch mobs -- not of rational discussions -- and yet it is driving radical changes in how our country functions.

UPDATE: It really seems as though there is some sort of unannounced competition among Bush supporters to out-do one another in making increasingly rabid, extremist, and truly deranged claims. Powerline's Scott Johnson, for instance, says that waging war on The New York Times has now become a critical "front" in the War on Terror. Seriously:

If America is going to wage a war against terrorism, it must indeed act on all fronts. In 2006, it needs to act on the home front and direct its attention to those whose war on the administration is unconstrained by the espionage laws of the United States.

We can't just confine our war-making to the terrorists and their friends overseas, but must also wage war here at home against the terrorists on our own soil, such as The New York Times. Johnson is arguing that what the administration has been doing "to the terrorists" in Iraq, Afghanistan, Guantanamo Bay and Eastern European gulags -- the other "fronts" in the War on Terror -- it must now begin doing to the terrorists and their allies within our own borders, such as American newspaper editors and reporters.

And National Review's editors yesterday urged that for the Times and "other publications which act irresponsibly . . . their press credentials should be withdrawn." Presumably, the only reporters who should be allowed onto government property would be Byron York, Sean Hannity and Jeff Gannon. Already, Dick Cheney confines his "interviews" to obsequious Administration worshippers such as Brit Hume, Rush Limbaugh and Laura Ingraham. We are in a (undeclared, permanent, endless) War, and unfriendly journalism is simply not a luxury we can afford.

Gassing Our Own People

By Barbara O'Brien

I hope you won’t mind my going back in time a bit, but lots of threads to the past are converging these days. Recently this post on my blog generated some comments about support given to Saddam Hussein in the 1980s by St. Ronald of Blessed Memory, even as Saddam was going through his “gassing the Kurds” phase. I was reminded of this episode again today. Murray Waas posted a lovely bit of writing at Huffington Post in which he explains why he dedicated himself to exposing the Reagan-Bush I support for Saddam Hussein. He also speaks to why he is dedicating himself to exposing the lies and manipulations that got us into Iraq. Be sure to read it; it’s very moving.

Back to the gassing of the Kurds, which I'll tie into current events below: You’ll remember that in the weeks before the Iraq invasion, a hoard of operatives infested talk radio and cable news, babbling about how Saddam “gassed his own people,” meaning the Kurds, which was why we had to invade Iraq right now. A month before the invasion I wrote this piece for Democratic Underground about why the “gassing his own people” talking point fell way short of a casus belli. And in that I linked to this 1993 Los Angeles Times article by Douglas Frantz and Murray Waas about how Bush I secretly continued to build Iraq’s war machine after the gassing of the Kurds. Just nine months before Saddam Hussein invaded Kuwait, President Bush I approved $1 billion in aid to Iraq. The Bush I Administration also provided Iraq with access to sophisticated “dual use” (military and civilian) technology, “despite emerging evidence that they were working on nuclear arms and other weapons of mass destruction.” Frantz and Waas uncovered ...

…a long-secret pattern of personal efforts by Bush — both as President and as vice president — to support and placate the Iraqi dictator. Repeatedly, when serious objections to helping Hussein arose within the government, Bush and aides following his directives intervened to suppress the resistance.

The reason for this, ostensibly, was that while Saddam Hussein might have been an odious little toad, he was an enemy of Iran, which after the fall of the Soviet Union had moved into the #1 spot on the Real Bad Places list. [Update: The Soviet Union didn't fall until 1991; I had my chronology confused. But you know that Iran had been high on the Real Bad Places list since the Carter-era hostage crisis.]

But classified records show that Bush’s efforts on Hussein’s behalf continued well beyond the end of the Iran-Iraq War and persisted in the face of increasingly widespread warnings from inside the American government that the overall policy had become misdirected.

Moreover, it appears that instead of merely keeping Hussein afloat as a counterweight to Iran, the U.S. aid program helped him become a dangerous military power in his own right, able to threaten the very U.S. interests that the program originally was designed to protect.

Clearly, U.S. aid did not lead Hussein to become a force for peace in the volatile region. In the spring of 1990, as senior Administration officials worked to give him more financial aid, the Iraqi leader bragged that Iraq possessed chemical weapons and threatened to “burn half of Israel.” Nor did he change his savagely repressive methods. In the summer of 1988, for example, he shocked the world by killing several thousand Kurds with poison gas.

Even today, the Iraqi nuclear and chemical weapons programs carried forward with the help of sophisticated American technology continue to haunt U.S. and United Nations officials as they struggle to root out elements of those programs that have survived the allied victory in the Persian Gulf War.

I remember when Halabja was gassed, killing 5,000 Kurds, in March 1988. I remember especially the photographs of dead mothers, their arms wrapped protectively around their dead babies. I also remember some movement in the Senate toward doing something about it. Senators Claiborne Pell, Al Gore, and Jesse Helms introduced legislation to impose sanctions on Iraq, and the Senate passed a Prevention of Genocide Act, unanimously, just one day after it was introduced.

But President Reagan vetoed the Act [Update: I am advised that Reagan didn't veto the Act formally but was behind getting it killed in Congress.], and the White House squelched any reprisals or sanctions against Saddam, and continued to shovel truckloads of money and technology to Baghdad. The Reagan administration's fine-tuned objection to the massacre at Halabja was that Saddam Hussein had used gas to kill his own citizens, not that he had killed them. Some State Department officials suggested that Iran, not Iraq, had gassed Halabja. And after 1988 President Bush I continued Reagan’s policies.

This part of the Franz-Waas article caught my attention:

What drove Bush to champion the Iraqi cause so ardently and so long is not clear. But some evidence suggests that it may have been a case of single-minded pursuit of a policy after its original purpose had been overtaken by events — and a failure to understand the true nature of Hussein himself.

Maybe Junior isn’t as different from Poppy as we had thought. Anyway, however menacing Saddam became, Bush I continued to treat him as if he were America’s Best Bud. I dimly remember hearing that when Saddam invaded Kuwait, he sincerely believed George Bush I wouldn’t mind.

And some of you will remember the glorious episode that occurred after the Persian Gulf War, in which President Bush I encouraged the Kurds to rebel against Saddam Hussein and then stood by while Saddam crushed the rebellion, ruthlessly. I believe some of the mass graves found in Iraq after the 2003 invasion — the ones that didn’t date to the Iran-Iraq War or the Persian Gulf War — held the bodies of Kurdish rebels.

In 2003, before the invasion, I remembered Halabja, and I remembered the crushed Kurdish rebellion. The righties who were fired up to to go war had never heard of these things before; some seemed to think the Kurds were still being gassed, and we had to invade quickly to rescue them. And after the invasion, whenever troops found a mass grave of Kurdish rebels, the righties would dance about and yell See? We told you Saddam was evil. But the mass graves were no surprise. The righties were always oblivious to the rest of the story, and wouldn’t listen, and wouldn’t believe us if they did listen.

But it strikes me now that all of the trouble surrounding Iraq going back 20 years resulted from Republican presidents being soft with a ruthless dictator. Appeasing, even. It’s a damn shame the Dems didn’t push that point through the Noise Machine years ago, because not doing so allowed the next generation of soft little Republican fatasses to portray themselves as hardened he-men warriors, even as they call Democrats “weak” and swift-boat any real warriors who dare oppose them.

All along, the Iraq War was more valuable to the Bush Regime as a club with which to bash Democrats than as a strategy for whatever it was the invasion was supposed to accomplish. Indeed, in 2002 I sincerely believed the saber-rattling was only about the 2002 midterms -- I mean, actually invading Iraq made no bleeping sense -- and assumed the Bushies would settle down as soon as the votes were counted. Back then I still thought there must be some kind of logic behind Bush policies other than the Glorification of Dear Leader and the Expansion of His Power. Boy, was I naive.

Today Democrats are angry because, after days listening to their Iraq withdrawal proposal derided as "cut and run," they learn that the White House has a similar proposal under consideration. The plot of this movie is too familiar; somehow, enabled by media, Republicans will spin the Republican cut and run propsal as principled and the Democrats' as cowardly, even though you might have trouble working dental floss between the two.

But they get away with it because the GOP has invested years in telling the story of the noble Republicans who stand strong against our enemies while the cowardly Democrats snivel in the corner and badmouth the troops. And I'm sure you've heard the part about how Democrats are appeasers because they don't realize evil people can't be trusted. But Republicans, the story goes, understand that evil people are evil and won't let them get away with squat.

Just like Ronald Reagan, who was strong, and who squared his shoulders and sat tall in the saddle, even as he looked the other way when Saddam Hussein gassed the Kurds.

And no matter how big a mess the Republicans make of national security, at least some voters will still vote Republican because they believe the story, even though its a fairy tale.

Democrats are brilliant at thinking up policies, complete with earnest executive summaries and lots of bulleted lists. But they don't know how to tell stories, which is why they're a minority party now. And it's a shame, because the Dems wouldn't have had to rely on fantasy; there are plenty of facts that can be dredged out of the memory hole that would make wonderful stories.

With not much else to run on, Republicans will spin their national security tale any way they can from now until the November elections. Let's hope cognitive dissonance can only stretch so far.

Lessons drawn from the Zengerle/TNR debacle

(updated below)

On Friday, I wrote a post stating -- based on abundant evidence I had compiled that was indisputable and conclusive to all but the most fact-free eyes -- that an e-mail published by Jason Zengerle on the website of The New Republic was fraudulent. The e-mail was one purportedly written to the Townhouse list by Steve Gilliard, and it was clear that Zengerle's claim was false because no such e-mail was ever sent. Zengerle's silence over the weekend led a variety of right-wing bloggers and their commenters to spend the last two days calling me a liar, mocking my claims, giddily exchanging juvenile jokes with one another over my paranoia, and generally insisting that my accusation was false and baseless.

Jason Zengerle finally responded last night and, in doing so, confirmed that every single thing I said was, in fact, true:

Steve Gilliard claims that he did not write the email I attributed to him in this post. After doing some further investigating, I'm afraid to say that he is correct. He did not write that email. I apologize to Gilliard for not checking with him before publishing my post, and I regret the error.

I am going to do my best to avoid flamboyant displays of celebratory vindication and instead focus on what I think are the substantive issues illustrated by this episode. But having spent the weekend being called a "liar" by several of the most integrity-free bloggers on the planet, that is going to be a difficult challenge, and you should consider this a warning in advance that I will likely be imperfect in fulfilling that aspiration (what I do promise is that this will be my last post on this issue, and I will post later today on the truly big story of the weekend -- the vicious, all-out, and truly unAmerican calls for the criminal prosecution of (if not physical attacks on) our nation's most influential newspaper). These are the issues I think are worth noting from the Zengerle episode:

(1) Numerous bloggers -- who had no evidence of any kind and did not need any -- spent the weekend writing and/or approvingly linking to posts which stated or strongly implied that I was lying when claiming that the Gilliard e-mail was fake and/or that I had no basis for the accusation. The honor roll includes:

Tom Maguire - in a post entitled "Glenn Greenwald's career in comedy," he wrote:

Somehow that seems to change the balance of probabilities a bit, especially since the "fake" email makes the same point as the two authentic ones - why, one might wonder, would Mr. Zengerle bother to gild the lily with a fake email supporting two real ones? And does it seem "highly unlikely (to put it mildly)" that Zengerle would have three sources confirming two genuine and one fake email? . . .

What a tangled web we weave.

Maguire's characteristically glib, evasive and substance-free attack on my integrity then, as intended, led some of his commenters to say -- without contradiction -- things such as this:

I guess Geenwald is taking the TruthOut approach. That my story and I am sticking to it.

and this:

So Gilliard has just subtly admitted he has allowed fellow traveler, I mean Townhouser to make a total fool of himself?

Could it get any funnier? I wonder if Gilliard will get in more trouble for embarrassing Glenn or betraying the trust of the cult, I mean Townhouse?>

Jeff Goldstein - here ("Is Glenn Greenwald having a bad day or what?" and linking to The Commissar's claim (below) that I was lying) and here (claiming that I was "coaxed" by Kos into doing the "potentially libelous work" against Zengerle)

Various commenters of Goldstein's, such as Kent, then said things like this:

Given the well-documented history of duplicity on the part of Greenwald: #4—”4. The e-mail was indeed sent to the Townhouse e-mail list, and both Greenwald and Gilliard are lying.“—would be the simplest, and (therefore) most likely explanation.

Instapundit -- here (approvingly linking to the Maguire post and excitedly calling it "Comedy Gold!").

The Commissar - here ("I’d say that Greenwald’s much-vaunted credibility has just taken a hit") and here ("I am done and disgusted, Glenn. Your misrepresentations here are positively Rovian").

And there are plenty of others who, needless to say, followed along, applying a whole range of derogatory attributes to my credibility and judgment this weekend for having pointed out that the Gilliard e-mail is fake and, beyond that, that TNR's journalistic behavior in printing it was questionable at best. And then there were countless other individuals who came here to comment on the original post I wrote who accused me of lying, having lost all integrity, etc. etc. (see, for instance, here ("To be honest, you're looking pretty pathetic and desperate, and odds are you'll be burned big time on this")).

All weekend, people who had no evidence or proof whatsoever that the Gilliard e-mail was authentic were insisting -- in the face of waves of evidence to the contrary -- that the e-mail was authentic and that I was a liar, a moron, a hysteric, etc. Their desire for the e-mail to be authentic, and for me to be wrong, swamped any assessment of the evidence. They swarmed together to make assertions which were plainly false and for which they had no proof, and then used their groupthink to confirm the rightness of their claims (they wallowed in an orgy of incestuous links to one another, all of which were evidence-free and reasoning-free -- not to mention wrong -- as though the endless references to one another constituted "evidence" which justified their accusations).

That is significant because a willingness to ignore waves of evidence and assert plainly false facts that they want to believe are true is -- as I have argued many times before -- the predominant mental attribute that has governed our country over the last five years. It is that corrupt dynamic that explains how things are going really well in Iraq; how Saddam really did have WMDs when we invaded; how the chaos and anarchy in Iraq is the fault (and invention) of the news media; how Saddam personally participated in the 9/11 attacks; how terrorists did not know before the New York Times story in December, 2005 that we were trying to eavesdrop on their telephone calls; how terrorists did not know before this weekend that we were trying to monitor their bank transactions; how Bush is really popular and most of the country agrees with him and that data to the contrary is due to flawed and biased polls, etc. A desire for a fact to be true is sufficient to embrace it as true, even with no evidence that it is, and even in the face of abundant evidence that it is false.

Personally, if I told my readers that another blogger was lying or was drowning in paranoia when making certain claims, only for those claims to turn out to have been true all along, I'd be quite eager to retract my accusations and apologize for them as clearly and prominently as I could. I can't think of anything that would be a more immediate priority than that. But it goes without saying that different bloggers have different ethical standards which guide them, and in the case of some of the above-named bloggers, some are entirely unburdened by such standards at all.

Of all of these brave accusers, only the Commissar came close to an undiluted retraction of his false accusations ("the facts have borne out Greenwald’s contention. I stand corrected. He is no liar"). Maguire pathetically continues to insist that I really was wrong, and Maguire right, and that Zengerle's confession that the Gilliard e-mail was fake somehow does not really support my claim. Instapundit simply inserted an "Update" to his original post composed of the link to Zengerle's post along with a recommendation to read Maguire's continued insistence that I was wrong, and he then separately quoted Zengerle's retraction, but himself said nothing in the way of a retraction. And Goldstein is just deafeningly silent. Put another way, most of the false accusers are true to mendacious form.

As I said all weekend once these accusations against me were launched -- accusations I truly did not expect in light of how obvious and clear it was from the beginning, based on the evidence, that the Gilliard e-mail was a fake -- all I could do was wait until Zengerle confessed that the e-mail was fake, and we would then see the level of integrity and reliability of the accusers. That's what we are now seeing.

(2) Numerous commenters here demanded that I address the "substance" of Zengerle's claim that "liberal bloggers" are taking orders from Markos Moulitsas with regard to what they write. I have not addressed that accusation precisely because there is no "substance" to it, and there still is none. It is idiotic fantasy, based on nothing, and does not deserve a response. Although in my original post I did say that, for those who need a response, I found the responses by Ezra Klein and Max Sawicky more than persuasive.

I am not interested in trying to persuade anyone that I have not altered my opinion, expressed a political opinion which I do not hold, refrained from expressing an opinion which I wanted to express -- all because Markos directed or requested that I do so. Anyone who believes that is willing to believe accusations based on nothing, and is thus, by definition, someone who is not amenable to rational persuasion. The accusation is as baseless as it is offensive, and one is no more obligated to respond to such evidence-free accusations than if someone came and said: "hey, I heard you were a child molester - what do you have to say in response?" Revealingly, in his confession post, Zengerle -- in order to obscure his own journalistic failings -- repeats this accusation against me despite lacking any evidence to support the attack ("the seeming acquiescence of so many of these liberal bloggers (including Greenwald) to Moulitsas's demands").

Having said that, I'll make anyone a deal -- if anyone can present a shred of evidence, just an iota of proof, that I have ever altered a single opinion, expressed an opinion I do not hold, or refrained from expressing an opinion that I wanted to express, due to an order, directive or request from Markos, I will be happy to respond to these accusations. Until such time, they are not worth responding to, because they amount to nothing other than evidence-free fantasy. Neither Markos nor Jerome have any real leverage over any blogger that I know of -- and certainly have none over me -- and the notion that they control or dictate what is written here, or that I would change what I think in order to accommodate their desires, is nothing more than a desperate attempt to smear people's motives and attack their integrity with no evidence of any kind (see this weekend's shenanigans for an illustration of how that works). It is too transparent and frivolous to merit a real response.

(3) As for Jason Zengerle's confession, it is impossible to understand how he can continue to protect the identity of his "source" which he now admits: (a) furnished him false information; (b) purported to quote from an e-mail which does not exist and never did; and (c) refuses to respond to his inquiries or explain himself in any way. That "source" clearly fed Zengerle false information with the intent that he would print it, and Zengerle -- in an act which even he admits was journalistic sloppiness -- then printed it. What possible excuse is there to continue to protect the identity of a "source" who almost certainly deliberately fed him false information?

As for the persuasiveness of Zengerle's excuses for printing a false e-mail, I adopt in full this well-reasoned post from Lindsay Beyerstein, which makes clear that Zengerle and The New Republic still have questions to answer, to say the least.

UPDATE: Steve Gilliard -- who went out his way over the weekend to be extremely fair to Zengerle (more so, I believed, than was warranted) -- now lambasts the inadequacy of Zengerle's confession and TNR's ongoing refusal to do what they should in response to this "error":

I don't think Zengerle has handled this well, and this grudging article tries to minimize the gross error he has committed.

I don't think this is a minor error, nor does Frank Foer. Zengerle attributed to me words I have no record writing and is still protecting a source who sent him an e-mail which cannot be verified. He admits that he doesn't have have the headers to the e-mails he was sent from the list and then gracelessly raises the same issues for which he has relied upon on at leastone unverifivable e-mail for. . . .

Glenn Greenwald isn't the only one demanding that you reveal your source for my e-mail. . . . And I'm sorry, I don't think this is minor or a disraction. I find it unseemly to attempt to defend yourself after commiting a major breach of journalistic ethics by repeating the unproven charges which landed us here in the first place.

This stoppped being about Kos the minute TNR published an e-mail which they cannot confirm coming to me.Then it became about their ethics and practices.

I agree entirely with all of that.

* * * * * * * *

I will be on the Alan Colmes Show tonight at 11:06 p.m. EST to discuss How Would a Patriot Act? Conservative Mark Coffey, who is a Bush supporter, wrote an impressively fair and thoughtful review of the book here.

Determined to be wrong

By Hume's Ghost

Today's Washington Post has an article about ex-CIA officer Tyler Drumheller's claims that his warnings that Iraq intelligence used to justify the invasion of Iraq was flawed were ignored. The story begins

In late January 2003, as Secretary of State Colin Powell prepared to argue the Bush administration's case against Iraq at the United Nations, veteran CIA officer Tyler Drumheller sat down with a classified draft of Powell's speech to look for errors. He found a whopper: a claim about mobile biological labs built by Iraq for germ warfare.

Drumheller instantly recognized the source, an Iraqi defector suspected of being mentally unstable and a liar. The CIA officer took his pen, he recounted in an interview, and crossed out the whole paragraph.

A few days later, the lines were back in the speech. Powell stood before the U.N. Security Council on Feb. 5 and said: "We have first-hand descriptions of biological weapons factories on wheels and on rails."

And the rest of the piece goes on to explain the problems that Drumheller had with the intelligence and his inability to make any impact on the use of these claims. It ends by noting that seven months after Colin Powell's U.N. speech, for which Powell had been told by CIA Director George Tenet that the mobile labs claims were solidly backed, Tenet called Powell to let him know that the intelligence used to make the claims was not credible.

This seems to be a recurring theme for this administration. It just doesn't seem to hear objections until it's too late. It has an uncanny ability to not hear information that discredits its beliefs. The intelligence used to back the mobile biological labs claims came from Curveball, an Iraqi informant housed in Germany, with German intelligence acting as a middle man for the United States. There were widespread doubts about Curveball's credibility, and he has been discredited as a fabricator, but again, the administration conveniently managed to not find out about that until after the invasion had occurred.

On May 29, 2003, President Bush declared that US and Kurdish forces had discovered the mobile biological labs. For the next year and a half, administration officials continued to cite the discovery of these labs as proof of Saddam's WMDs and justification for the invasion. But, alas, in September 2004, the Iraq Survey Group investigated and concluded that labs were used to generate hydrogen to be used in weather balloons.

Yet, on May 27, 2003, two days before President Bush's announcement, a team of technical experts which had been sent by the Pentagon to investigate the labs after two military teams of weapons experts identified the labs as mobile weapons units (based off of the descriptions of Curveball), had issued a report which concluded unequivocally that the labs could not be used to produce biological weapons. The team made this conclusion within four hours of investigating.

When the team came back to the US, they were asked to revise their (correct) conclusion to "soften" it to allow for the possibility that the trailers could be used for producing biological weapons. The team refused and stood by their conclusion, at which point the report was classified and shelved. Amazingly, once again the administration managed not to hear information that conflicted with claims it used to justify the invasion of Iraq.

This is but one example. Take the time to look through the intelligence claims used to justify the war and what emerges is a systematic intent to not consider information that might say something the administration did not want to hear.

But this is part of an even larger pattern of not being able to confront reality which conflicts with its political ideology. This is why it might be the most anti-scientific administration is US history, since science is the best method that humanity has to investigate and determine objective truth. But wishful thinking does not change inconvenient truths, and eventually reality must be confronted. A point summed poignantly in this eSkeptic from Oct. 10, 2004

The troubles in Iraq are not so much proof of the failure of the neocon vision for democratizing the Middle East, as they are a reminder of the disastrous consequences of removing empiricism from deliberation. All the problems that have popped up in Iraq were predicted long ago—from troop strength to the resilience of the insurgents—and available to anyone who cared to look. The administration not only chose to look away but actively swept them under the rug. When CIA war games were discovered to be training personnel to deal with the eventuality of civil disorder after the fall of Baghdad, The Atlantic Monthly reported the Pentagon forbad representatives from the Defense Department from participating because “detailed thought about the postwar situation meant facing costs and potential problems.” Our refusal to face reality hasn’t been giving democracy much of a chance.

“Being steadfast in defense of carefully considered convictions is a virtue,” George Will wrote recently. “Being blankly incapable of distinguishing cherished hopes from disappointing facts, or of reassessing comforting doctrines in face of contrary evidence, is a crippling political vice.” Bush has finally met his match. The Universe is the one foe more steadfast than he is. It cannot be bullied or intimidated. The laws of physics know no compromise. This is a game of chicken Bush will lose. If he doesn’t take his foot off the accelerator, then the only question is: how will we recover from the crash?

Does The New Republic have a new Stephen Glass in Jason Zengerle?

(updated below - updated again - updated again)

Over the last few days, Jason Zengerle of The New Republic has been engaged in a bizarre crusade to depict "liberal bloggers" as a bunch of mindless, obedient zombies who take orders about what to write from Markos Moulitsas, all in order to ensure that they can continue to enjoy the great financial wealth lavished upon them by virtue of their participation in the "Advertise Liberally" network, which Markos founded but does not operate. To prove this "point," Zengerle published what he purported to be various e-mails regarding recent accusations against Jerome Armstrong, which Zengerle claimed were sent to the "Townhouse" Google group -- comprised of 300 or so journalists, political operatives, bloggers, advocacy organizations, and others designed to facilitate communication between these usually isolated groups. To the extent the "substance" of Zengerle's accusations are worth responding to, Ezra Klein and Max Sawicky (among many) have done so quite thoroughly, respectively here and here.

But in spinning his laughable conspiracy, Zengerle published -- based on what Zengerle said was "three sources" -- what appears to be a completely fabricated e-mail, which Zengerle falsely claimed was sent to the "Townhouse" list by blogger Steve Gilliard. Yesterday, Zengerle wrote:

At the risk of engendering more charges that I'm violating the off-the-record nature of "Townhouse" (which, by the way, I'm not, since I am not a member of "Townhouse" and therefore am not bound by any off-the-record agreements, in the same way that any reporter who's leaked "confidential" documents is not bound to protect their confidentiality), let me reprint some of the e-mails that were going to the "Townhouse" list, according to three sources, before Kos sent out the e-mail I quoted in my original post on this topic. . . .

Also on the same day [June 18], the blogger Steve Gilliard wrote to the "Townhouse" list:

I dont see how this can be ignored. We should all write in defense of this once we know the facts. Jerome?

That e-mail is completely fictitious. Gilliard never sent any such thing to the Townhouse list, nor did anyone else do so. Nor, according to Gilliard, did he ever write any such e-mail at all, to Townhouse or anyone else. Zengerle caused The New Republic to print a completely fabricated e-mail and then falsely attribute it as one Gilliard sent to the Townhouse list. How and why did that happen?

What makes this all the more disturbing is Zengerle's claim that he was "re-print[ing] some of the e-mails that were going to the 'Townhouse' list, according to three sources . . . " It is difficult to see how Zengerle's claim about his sources could be true, to put it generously. It is highly unlikely (to put it mildly) that three different sources would send Zengerle the same fabricated e-mail and falsely tell him that it was sent by Gilliard to the Townhouse list. And it is equally unlikely that three different sources would confirm that Gilliard sent an e-mail that he, in fact, simply never sent.

Zengerle owes his readers and The New Republic an explanation, and soon. Did Zengerle really have three sources for these e-mails (as he claimed), or did he simply receive things from an anonymous source and then blindly rely on the veracity of what he was sent, only to claim that it was from "three sources" in order (a la Jason Leopold) to enhance the credibility of his claims? Or, a la Stephen Glass, did Zengerle simply fabricate e-mails in order to bolster his "story"?

It is one thing for a journalist to make a mistake; like everyone, they all do that at some point. But to expressly lie about your sources in order to make your assertions seem more substantial is as serious a journalistic breach as can be committed. Is this what Zengerle did?

In the wake of Yearly Kos, the profile of both Markos Moulitsas specifically and the "liberal blogosphere" generally has been raised significantly. Whereas old, obsolete opinion-makers like The New Republic, Joe Klein and David Broder first attempted to ignore the blogosphere, and then belittle it, they are now forced to accept that its influence and credibility are growing and are rendering them obsolete and irrelevant. And, unsurprisingly, they are quite unhappy about it, feel threatened by it, and are searching for ways to attack back.

That's all fair enough, and to be expected. If one believes (as I do) that the influence of the blogosphere is growing and that it is supplanting the stagnant, soul-less pundits of the mainstream media, it is only natural that those pundits who are being swept away will feel hostility and resentment. It used to be that writing for The New Republic brought prestige and influence. Now, thanks in large part to the growth of the vibrant and novel voices in the blogosphere, writing for The New Republic is a ticket to irrelevance, if not widespread mockery. As a result, people like Zengerle -- who believe that, as "journalists," they are superior to the unwashed blogging masses -- resent the blogosphere and want to do what they can to destroy its credibility. None of that is surprising or all that notable.

But in this case, did Zengerle's pretentious and obviously intense resentment of bloggers -- which I wrote about long ago -- lead him to make false claims about his sources? We know that Zengerle purported to print an e-mail from Gilliard to the Townhouse list which is a fake. The question now, for Zengerle, is why he did that. There were widespread calls for Jason Leopold to disclose his sources once his "sources" led him to print false claims that Karl Rove has been indicted. Shouldn't that same standard be applied to Zengerle?

UPDATE: To clarify the basis for my statement that the e-mail quoted by Zengerle was not one that was sent to the Townhouse list: When I read Zengerle's post (for the first time today), I recognized the other two e-mails to the Townhouse list which were quoted in Zengerle's post (one from Mike Stark and one from me), but did not remember -- at all -- the one attributed to Gilliard. Since I participated in that discussion, I was quite attentive to it, and would have remembered that Gilliard e-mail if it had been sent.

I then checked my in-box (which retains all e-mail received) and there was no such e-mail from Gilliard (I would have received it if, as Zengerle claimed, Gilliard sent it to the Townhouse list). I then sent e-mails asking whether anyone else had received such an e-mail, and multiple individuals (who are on the Townhouse list) confirmed that they also never received any such e-mail. Gilliard then confirmed by e-mail that he did not send such an e-mail.

It is beyond dispute that -- contrary to Zengerle's allegedly three-sourced assertion -- no such e-mail was written by Gilliard to the Townhouse list. It is a fake. The question, then, is whether Zengerle was telling the truth about the "three sources" who supposedly provided Zengerle with this fake e-mail.

UPDATE II: There are several recurring questions/objections/comments in the Comment section in response to this post, which I reply to here.

UPDATE III: Well after I posted this, Steve Gilliard wrote a post about this topic in which he said this:

Only problem: I have no record of sending such an e-mail to the Townhouse list, Kos, Armstrong, who did not participate in any of the discussions, or anyone else. I didn't send any e-mail with that phrase at all.

That is about as definitive as it gets. Gilliard has no e-mail at all -- to Townhouse or anyone else -- with the phrases quoted by Zengarle, which is exactly what I said he said in this post. Nonetheless, in an excess of caution, Gilliard goes on to say this:

To be fair, I told Glenn I disagreed with the characterization of it being false, because I may have express (sic) some kind of sentiment close to that.

Steve told me he disagreed with my characterization that the e-mail was "false" in an e-mail long after this post was posted, which is fair enough, but I disagree with Steve's view. If -- as Gilliard says -- he never sent an e-mail as quoted by Zengarle, then the e-mail printed by Zengarle is a fake, regardless if Gilliard expressed similar sentiments elsewhere (and he has no record of doing so). Gilliard can say that he is unwilling based on these facts to accuse Zengarle of printing a fake e-mail, but I am not so unwilling, because everyone acknowledges -- and it is beyond dispute -- that Gilliard sent no such e-mail to Townhouse , which is what Zengarle claimed. Moreover, Gilliard himself says he did a comprehensive search of his e-mails and found no such e-mail to anyone.

Nonetheless, certain bloggers are intent on distorting the meaning of Gilliard's post to depict it as somehow being in conflict with what I wrote. It is nothing of the sort. Gilliard confirms the two facts I stated in this post: thbat (1) he never sent any e-mail quoted by Zengarle to the Townhouse list, and (2) he searched his e-mail and has no record of sending such an e-mail to anyone. That is precisely what I said.

And, e-mails sent to me by Gilliard prior to my posting this post (which Gilliard discussed and characterized in his post and I therefore feel comfortable re-prtinting) confirm that Gilliard's e-mails to me prior to this post confirm everything I wrote. Following are (relevant excerpts of) three separate e-mails sent to me by Gilliard prior to my posting this, all sent on Friday:

___________
EMAIL # 1:

I can't find any such words for June 18 either.

I sent three e-mails to townhouse on that day and NONE of them have those words. At least, he's innacurate about his sourcing.

____________

E-MAIL # 2:

I just checked my name and Jerome Armstrong with gmail searchand I said nothing
about him on the 18th at ALL. So where do we go from here?

____________

EMAIL # 3:

I can't find anything for that on the 18th or 19th at all. I do not find any e-mail using that phrase referring to Jerome Armstrong in June 2006, until this e-mail [the one I wrote in which I re-printed Zengarle's post].

________

Gilliard's e-mails were as clear as they could be. He stated definitively that he never sent any such email to Townhouse (a fact which is proven independent of Gilliard by the fact that no such e-mail was ever received by the Townhouse list), and he stated further that he did a search of all of his e-mail for June, 2006 and there was no such e-mail to anyone.

Let me be as clear as I can be. I re-iterate my statement that the e-mail printed by Zengerle is fake. Scores of individuals on the Townhouse list have confirmed that Gilliard never sent any such e-mail to Townhouse, and Gilliard has said the same thing. He also says he has no record of sending such an e-mail to anyone. Contrary to the claim of Zengarle or his "three sources," it was never sent by Gilliard to the Townhouse list. Thus, what Zengarle reported -- allegedly based on three sources -- is indisptuably false.

The e-mail was simply fabricated by either Zengarle or his sources. Zengarle can esaily prove that the e-mail is authentic. So far, he has been silent. He will either produce the authentic e-mail or retract what he wrote and explain why he printed a fake e-mail. There's no need to keep speculating. We ought to have the answer from Zengarle soon enough. I hope it will be sooner rather than later.

UPDATE IV: In light of the difficulty (most of it intentional) which some are having in understanding the relevance and implications of Zengarle's publishing a fake e-mail, I highly recommend this post from Lindsay Beyerstein, who spells it all out as clearly as can be.

And, as I have said multiple times, all of this speculation is really unnecessary, since Jason Zengarle will (presumably) soon respond to these accusations and let us all know whether the e-mail is fake or not. I not only look very forward to that moment, but also to what I'm certain will be the candid and straightfoward acknowledgments of error by those bloggers and commenters who spent the day giddily claiming that the e-mail was authentic and/or that no basis existed for the claim that it was false. In case it slips their minds, I'll be sure to remind them.

Friday afternoon reading

By Hume's Ghost

I haven't had time to write today, so maybe I can substitute some recommended reading. I recycled this from my blog since I think many of the readers here will appreciate the subject matter.

One of the most under appreciated influences on the Founding Fathers is Cato's Letters, a series of 144 essays on liberty written by the English Whigs John Trenchard and Thomas Gordon under the pen name "Cato" (which they chose because of Cato the Younger's defense of republican values against Julius Ceasar) between 1720 and 1723. One reading the letters for the first time will find that the Founders seemed to have borrowed directly from the pages of Cato.

The letters are a reminder of what the press could be, and what the power of the press is and should be. Not only did Trenchard and Gordon help disseminate the political philosophy of John Locke, helping to lay the philosophical foundations for our democratic freedoms, but they also helped play an important role in the history of winning the freedom of the press. Kovatch and Rosenthal write, in The Elements of Journalism, that they:

introduced the idea that truth should be a defense against libel. At the time, English common law had ruled the reverse: not only that any criticism of government was a crime, but that "the greater the truth, the greater the libel," since truth did more harm.

The authors go on to note that in 1735, when colonist John Zengler was put on trial for printing criticism of the royal governor of New York, his lawyer defended him citing Cato's reasoning (see #32, "Reflections on Libelling"). He was subsequently aquitted by a jury. Also interesting to note, Zengler's attorney was paid in part by Benjamin Franklin, who had himself previously published Cato's letters.

If we seek to educate Americans on their democratic traditions so that they will be more likely to guard jealously against encroachments of power, then I can think of no better place to start than with Cato's Letter #33, "Cautions against the Natural Encroachment of Power" which could well serve as an op-ed today as it did when it was written in 1721. I quote from the conclusion.

Power, without control, appertains to God alone; and no man ought to be trusted with what no man is equal to. In truth there are so many passions, and inconsistencies, and so much selfishness, belonging to human nature, that we can scarce be too much upon our guard against each other. The only security which we can have that men will be honest, is to make it their interest to be honest; and the best defence which we can have against their being knaves, is to make it terrible to them to be knaves. As there are many men wicked in some stations, who would be innocent in others; the best way is to make wickedness unsafe in any station.

Bringing Jose Padilla to "justice"

By Hume's Ghost

Jose Padilla, the American citizen who was held without charges for three and a half years after being designated an enemy combatant by President Bush "two days before District Court Judge Michael Mukasey was to issue a ruling on the validity of continuing to hold Padilla under the material witness warrant," whom was transferred into civilian custody on indictments other than the "dirty bomb" claims the administrations had made to justify his loss of his rights as a citizen in a transparent ploy to avoid Supreme Court review of the administration's actions, is now being charged with conspiracy to "kill, injure or kidnap people overseas as part of a global Islamic terrorist network."

But even now the administration is still failing to make a case against Padilla. The AP reports that

A federal judge ordered prosecutors to turn over more evidence to back up allegations that Jose Padilla and two co-defendants conspired to kill, injure or kidnap people overseas as part of a global Islamic terrorist network.

U.S. District Judge Marcia Cooke said Tuesday she agreed with claims made by defense attorneys that the indictment against Padilla and the others is "very light on facts" that would link the defendants to specific acts of terrorism or victims.

Jose Padilla spent 3.5 years of his life in jail, for charges that the administration is not willing to test in a court of law. Yet it is now bringing a case against Padilla that is "light on facts." This administration was willing to void Padilla's rights and lock him away indefinitely on the President's say-so, and it is bringing forth a case that is "light on facts."

This is not justice. It is injustice.

But for a President that may have been willing to torture a mentally challenged man for political reasons, asking George Tenet, "you're not going to let me lose face on this, are you," I suppose it's par for the course.

Recall that in Keith Olberman's report "The Nexus of Terror and Politics" (see here for the video, here for the transcript) he noted that the announcement of Padilla's detention happily came at a time that the administration was being criticized for failing to act on pre-9/11 opportunities to break up the hijackers' plot.

June 6th, 2002. Colleen Rowley, the FBI agent who tried to alert her superiors to the specialized flight training taken by Zacarias Moussaoui, whose information suggests the government missed a chance to break up the 9/11 plot, testifies before Congress. Senate Intelligence Committee Chair Graham says Rowley’s testimony has inspired similar pre-9/11 whistle-blowers.

June 10th, 2002. Four days later, speaking from Russia, Attorney General John Ashcroft reveals that an American named Jose Padilla is under arrest, accused of plotting a radiation bomb attack in this country. Padilla had, by this time, already been detained for more than a month.

Draw your own conclusions.

As an aside, the Washington Post's review of Ron Suskind's new book, The One Percent Doctrine, (linked above) reinforces the idea that the administration is operating under the assumption that "all is possible." This point is made by Cheney himself, who expressed the logic as such: "If there's a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response."

Santorum's "Discovery"

By Anonymous Liberal

(updated below - by Glenn)

By Anonymous Liberal - On Wednesday afternoon, Pennsylvania Senator Rick Santorum--along with Michigan Congressman Peter Hoekstra--held a press conference where they breathlessly announced that WMD had in fact been found in Iraq. Santorum's office billed this as a "major announcement." The press release quotes Santorum as saying: "This is critically important information that the world community needs to know." At the press conference, Santorum said:

This is an incredibly -- in my mind -- significant
finding. The idea that, as my colleagues have
repeatedly said in this debate on the other side of
the aisle, that there are no weapons of mass
destruction, is in fact false.

We have found over 500 weapons of mass
destruction. And in fact have found that there are
additional weapons of mass -- chemical weapons,
still in the country, that need to be recovered.

So what exactly was found? According to the document Santorum cites:

Since 2003 Coalition forces have recovered
approximately 500 weapons munitions which
contain degraded mustard or sarin nerve agent.

Since 2003? Degraded? These hardly seem like the long lost, mythical WMD. And if they are, why have several independent commissions and the White House itself subsequently acknowledged that there were no WMD?

If you're guessing that the answer to this riddle is that Santorum is a clown, you're right. According to Dafna Linzer of the Washington Post (page A10):

The lawmakers [Santorum and Hoekstra] pointed
to an unclassified summary from a report by the
National Ground Intelligence Center regarding
500 chemical munitions shells that had been
buried near the Iranian border, and then long
forgotten, by Iraqi troops during their eight-year
war with Iran, which ended in 1988.

The U.S. military announced in 2004 in Iraq that
several crates of the old shells had been uncovered
and that they contained a blister agent that was no
longer active. Neither the military nor the White
House nor the CIA considered the shells to be
evidence of what was alleged by the Bush
administration to be a current Iraqi program to
make chemical, biological and nuclear weapons.

Last night, intelligence officials reaffirmed that the
shells were old and were not the suspected
weapons of mass destruction sought in Iraq after
the 2003 invasion.

Of course, that didn't stop Santorum and Hoekstra from pretending like this was earth-shattering news and thereby intentionally misinforming a lot of people. Santorum went on Hannity & Colmes last night to hype the story. Various right wing pundits and blogs quickly picked up the story and ran with it (though, to be fair, some of the more intelligent ones saw right through the stunt). Sadly, even my local news picked up on the story, reporting in somewhat confused fashion that weapons of mass destruction had at long last been discovered in Iraq. Sigh.

This is how GOP political propaganda works. You hype a completely trivial fact in an entirely misleading way in order to make a point that is the opposite of the truth. The claim is then repeated by the unscrupulous and the confused, and a significant percentage of the public ends up hearing it. The next day the claim is debunked in a story on page A10 of the paper, but by then the damage has already been done. Wash, rinse, repeat.

UPDATE (by Glenn): Even the Defense Department is so embarrassed by Santorum's claims that they have repudiated them, and the DoD isn't exactly known for excessive caution when it comes to making claims designed to bolster the administration's pro-war case. But A.L. is absolutely right that despite the self-evident absurdity of Santorum's claims, the Powerlines and Instapundits of the world will spend the next six months insisting that we really, really did find WMDs in Iraq. They've already begun, although even Powerline acknowledges:

. . . . but what they're talking about is old munitions left over from, presumably, before the first Gulf War. This doesn't appear to constitute evidence that Saddam's regime had continued to manufacture chemical weapons in more recent years.

And one last point: It seems that Santorum and Hoekstra took it upon themselves to disclose this information because the administration kept it classified and did not want it disclosed. Santorum revealed that other parts of the memo, which are classified, references other chemical munitions. Shouldn't a Justice Department investigation be opened immediately to determine whether Santorum should be criminally prosecuted for violations of the Espionage Act? Maybe he can share a cell with Jim Risen and Dana Priest.

UPDATE II (by Glenn): Fox News has a screaming headline which still reads: "Report: Hundreds of WMDs Found in Iraq," even though the article itself, buried deep down, contains these paragraphs:

Offering the official administration response to FOX News, a senior Defense Department official pointed out that the chemical weapons were not in useable conditions.

"This does not reflect a capacity that was built up after 1991," the official said, adding the munitions "are not the WMDs this country and the rest of the world believed Iraq had, and not the WMDs for which this country went to war."

Pete Hoekstra, who breathlessly touted this "discovery," was asked why he thought the administration hadn't talked about these developments and this is what he said:

Asked why the Bush administration, if it had known about the information since April or earlier, didn't advertise it, Hoekstra conjectured that the president has been forward-looking and concentrating on the development of a secure government in Iraq.

So, according to Congressman Hoekstra, the administration found compelling evidence that shows that Iraq had WMDs after all and that everything the administration said was true. But the President didn't have time to talk about it, because he's focused on the future and not the past, and is too busy trying to stabilize the Iraqi Government. That is really what he said.

That is the funniest thing I've read since . . . yesterday, when I learned from The Weekly Standard that the reason George Bush did not attack Zarqawi in 2002 when he knew his location is because he was concerned about what The New York Times Editorial Board, international law professors, and Jacques Chirac would think. Each time you think you've scraped the bottom of the integrity and truth barrel, you wake up another day and find that there is still more space in which we can all descend.

Serious rumblings and awakenings in Congress

by Glenn Greenwald

(updated below)

There were two very significant -- and encouraging -- Congressional developments in the last twenty-four hours relating to the NSA scandal:

First, as reported first this morning by Raw Story, the House Judiciary Committee today approved by voice vote a resolution "requesting" that the Justice Department and the President "turn over all requests made by the National Security Agency and other federal agencies to telephone service providers to obtain information without a warrant." The adoption of this resolution was completely unexpected, and received the support of Republican Committee Chair James Sensenbrenner, who had previously excoriated the Administration for "stonewalling" Congressional investigations into their surveillance activities on Americans.

The request is aimed at the data-collection program revealed last month by USA Today. As Raw Story reported, Rep. John Conyers praised the resolution as follows: "I am pleased that the House Judiciary Committee is exercising its oversight authority and demanding real answers of the Administration." The ACLU similarly praised the House Committee demand as an unexpected though significant step by the Congress to assert meaningful oversight on the administration's lawless surveillance programs aimed at Americans.

Secondly, and I think even more significantly, the House last night overwhelmingly passed (by a vote of 407-19) the Defense Appropriations Act for 2007 (H.R. 5631), which "falls $4 billion below the president's overall funding request for the Pentagon in the upcoming fiscal year." The Administration has threatened to veto (.pdf) the legislation if it "significantly underfunds the Department of Defense to shift funds to non-security spending" and/or because the White House claims that multiple provisions -- needless to say -- "interfere with the President's constitutional authority as Commander in Chief."

But far more significantly than the House's adoption of this legislation was the introduction last night of an amendment by four co-sponsors -- two Republicans and two Democrats (Flake, Inglis, Schiff and Van Hollen) -- "that would cut off funding for illegal wiretapping conducted by the National Security Agency." The amendment specifically provided "that none of the funds appropriated in the bill can be used to conduct electronic surveillance in the United States except pursuant to the criminal wiretapping statutes and the Foreign Intelligence Surveillance Act (FISA)."

Amazingly, the amendment came very close to passing, as the ACLU reports:

The Judiciary Committee’s move comes on the heels of a 207 - 219 vote in the full House of Representatives last night narrowly rejecting an amendment that would have removed all funding for a related program in which thousands of Americans in the U.S. are eavesdropped upon by the NSA acting without a warrant. Twenty-three Republicans broke with the administration to back the amendment.

The roll call vote on the amendment is here. Only 15 Democrats voted "no." Unsurprisingly, Jane Harman was one of the few who voted "no" (as was Jack Murtha -- underscoring, yet again, the sheer idiocy of claims by Bush apologists that he is some sort of leftist fringe pacifist dove). But by and large, the Democratic caucas held together on this rather extraoardinary amendment, and substantial numbers of Republicans supported it as well.

It has been more than six months since The New York Times revealed that President Bush ordered eavesdropping on American citizens in violation of the criminal law. Virtually all national politicians and media figures, not to mention scores of pro-Bush bloggers, boastfully predicted that the entire matter would be swept away and easily resolved long before now. But it hasn't been and isn't close to being resolved, and there are slow, steady rumblings that more and more members of Congress are becoming less willing, not more, to allow the President to seize all governmental power.

These developments happen slowly and incrementally, and it therefore seems as though nothing is happening. But scandals of this type take time and significant effort to unfold. An amendment to cut off all funding for the warrantless eavesdropping program -- something unmentionable a few months ago -- almost passed the House last night, and had more than a handful of Republicans supporting it. And the Republican-led House Judiciary Committee spontaneously directed the Justice Department and the President to turn over all documents relating to efforts to "induce" telephone companies to provide calling data on Americans.

Even the most impatient and cynical among us must acknowledge that those are surprisingly encouraging developments. One of the oddest aspects of the President's lawlessness has been the degree to which members of Congress have been willing to endure such severe institutional humiliations by essentially being written out of our Government -- the opposite of what the Founders assumed would occur simply by virtue of basic human nature and dignity, which they believed would inevitably engender fights against efforts to render any one particular branch irrelevant. Perhaps Congress is slowly beginning to regain some dignity and purpose and insist upon imposing some limits on the President's monarchical powers.

UPDATE: The judiciary is also showing some incipient signs that it exists. In the litigation brought against AT&T in a San Francisco federal court challenging the legality of AT&T's cooperation with the Bush administration's warrantless eavesdropping program, the administration -- as always -- demanded that the court dismiss the entire litigation, and refuse to adjudicate any of the issues, on the ground that adjudication will risk the disclosure of critical "state secrets." Yesterday, the district court judge presiding over the case, Vaughn R. Walker, issued an Order (.pdf) requiring the parties to answer eleven questions about this claim, which: (a) illustrate the frivolous nature of the Bush administration's argument (see e.g., numbers 6 and 7) and (b) strongly suggest that the court is very reluctant to dismiss the lawsuit (h/t to the always resourceful EJ).

For exactly that reason, and because the district court judge in the Michigan case brought by the ACLU has also been insufficiently obedient to the administration, the administration yesterday requested that all cases relating to the legality of the NSA warrantless eavesdropping program be transferred to, and consolidated, in one single court, with one single judge, in Washington, DC, so that all of these issues can be decided at once (and so that they can be removed from these two irreverent judges). The administration is obviously scared that these judges are exercising some independent thought and asserting the right to actually adjudicate accusations that the President has violated the law. As I have always believed, the more branches of this scandal, taking root in more places, the better.

Letting Zarqawi go -- a pathological refusal to accept responsibility

by Glenn Greenwald

(updated below -- updated again with response from one of the Weekly Standard authors)

The most significant political success of the Bush administration over the last several months was the killing of Abu Musab al-Zarqawi, which triggered a two-week deja vu tidal wave (and counting) of media adoration for the brave, heroic warrior-president hunting down the terrorists and (said with chest-puffing self-satisfaction) "bringing them to justice." As the dramatic media narrative goes, through the resolute perseverence of our Commander-in-Chief, we finally "got" the evil one. And it will not only single-handedly turn the war around, but is also going to save the Bush presidency as well.

The only problem with this moving storyline was that Zarqawi was able to spend the last three years terrorizing, exploding and beheading people only because the Bush administration indefensibly decided, back in 2002, that it would refrain from "bringing him to justice" when it indisputably had the chance to do so. It has been reported that the motive for the administration's decision to allow Zarqawi to remain free was that his presence in Iraq bolstered their pre-war claim of an Iraq-terrorist connection.

This rather grim and unflattering picture of the administration's conduct in letting Zarqawi remain free -- one which obviously ought to undercut, if not destroy, the recycled heroic Bush mythology -- has prompted Daveed Gartenstein-Ross & Adam Whitehas, in yesterday's online Weekly Standard, to write this amazingly blame-shifting justification for the administration's refusal to get Zarqawi three years ago when they could have.

According to Gartenstein-Ross and Whitehas, the administration's timidity is all the fault of Senate Democrats, France and The New York Times, among others. It seems the administration knew that they would be criticized by this all-powerful confederation if they acted against Zarqawi, and therefore decided to accommodate the viewpoints of these political opponents rather than kill Zarqawi. The Weekly Standard assigns blame for the Commander-in-Chief's decision to let Zarqawi remain free as follows (the Truly Guilty Parties are highlighted, by me, in bold):

BUT TO SUGGEST that it was a no-brainer for the U.S. to attack northern Iraq in 2002 ignores a couple of key considerations. If the administration had struck Zarqawi then, it would have met a torrent of criticism for allegedly violating international law--criticism that could have interfered with its diplomatic efforts preceding the 2003 invasion. . . .

The lack of specific authorization for a NFZ [no-fly zone in Northern Iraq, where Zarqawi was located] resulted in critics on both the left (such as the New York Times editorial page) and the right (such as conservative national security law scholar Scott Silliman). . . . Thus, in 2002, as the Bush administration was attempting to amass support in Congress and the U.N. Security Council for an invasion of Iraq, broader rules of engagement in the NFZ would have undermined diplomatic efforts. Secretary General Kofi Annan made clear that America's claim to authority for the NFZs was not a popular position. . .

At a joint press Rumsfeld-Myers press conference in September 2002, reporters peppered the Secretary of Defense and the Chairman of the Joint Chiefs of Staff with
challenges to the decision to enforce the NFZs so fiercely amidst the diplomatic process. To begin bombing installations that were not associated with Saddam's force projection in the region would have made the coalition's unpopular program even more problematic.

Previous expansions of the NFZ program had been met with fierce criticism. In 1996, when President Clinton expanded the southern NFZ, international allies (such as France) refused to cooperate with the new bombing operations. And that expansion targeted the machinery of the Hussein government; further expansion targeting Iraqi inhabitants whose connection to the government was a subject of dispute would have been more difficult to justify.

The summer before the Iraq invasion was one replete with Democrats calling for a slow debate of the Iraq issue. Rapid escalation of military operations under new rules of engagement would not have pleased those calling for restraint, including Senators Feinstein and Leahy, who introduced a resolution "expressing the sense of Congress that the United States should not use force against Iraq, outside of the existing Rules of Engagement, without specific statutory authorization or a declaration of war."

This reads like a fear-crazed 10-year-old child who got caught doing something very wrong and then desperately and frantically tries to blame someone else -- anyone else -- in order to avoid having to accept blame himself. To excuse the President's failures, they even cite criticisms made by international "legal scholars" in a 2002 Boston Globe Op-Ed claiming that the administration violated international law -- allegations that the Bush administration always took so very seriously. In one short article, The Weekly Standard literally blames everyone they can find -- Democrats, the U.N., France, The New York Times, everyone -- for the Bush administration's decision to purposely let Zarqawi live and continue to engage in terrorism. As always, with everything this administration does, it's everyone's fault other than the President who ordered it.

These excuses are so self-evidently frivolous that they are literally laughable. Of course, everyone knows that the Bush administration -- especially in 2002 with presidential approval ratings at 65% or more -- never did anything that Senate Democrats might not like. And nothing impeded the administration in doing what it wanted to do more than a critical editorial in The New York Times. And nothing upset them more than when "reporters peppered" Don Rumsfeld with questions about their actions.

And few things were more horrifying to the administration than "criticism for allegedly violating international law." And France's view of U.S. military action received the greatest weight. And in the lead-up to the invasion of Iraq, nothing was more important to the administration -- nothing -- than diplomatic efforts at resolving the problem, and they would not have done anything, including "bringing to justice" an international terrorist, if it meant that it might rub other countries the wrong way. As a result, as much as The President so desperately wanted to, these critical pro-terrorist voices simply prevented The President from getting Zarqawi.

What is going on here is as transparent as it is important. There is no political faction which played a greater role in leading this country to invade Iraq than the neoconservatives at The Weekly Standard and its 9/11-exploiting allies and affiliates, exemplified by the Gerard Group, of which Gartenstein-Ross is a "senior consultant." Along with the ideologues in the administration, these are the individuals responsible for leading the U.S. to invade Iraq. The failures and disasters it has spawned are their doing. And when all is said and done, it will be time to assign guilt and blame to those responsible, and The Weekly Standard and their neoconservative allies and supporters are petrified -- rightfully so -- that responsibility for this war will be pinned to their foreheads forever.

As I have documented before, these most vocal war supporters are pursuing the only course of option open to them (other than accepting responsibility for their grave errors and deceits, which is far too honorable and forthright to make it a real option for them). They are desperately searching around for others to blame. It is the media's fault. It is Democrats' fault. Or it's all the fault of France, Kofi Annan, international law scholars, and all of those other uber-powerful forces who undermined the United States and prevented our glorious war plans from succeeding. It's often even the fault of the timid and cowardly Generals who run our military. Even when our Commander-in-Chief expressly decided not to take action against Zarqawi when he could have, it's still everyone's fault except for his.

As I wrote back in February when the President's followers rolled out their campaign in earnest to blame the media and "liberals" for the failure of their war fantasies:

Virtually every prediction the President and his followers made about this war has proven to be false, while virtually every prediction made by war opponents has proven to be true. The President and his followers controlled every part of this war with an iron fist, ignoring anything which their political opponents said and insisting on the right to exert full-scale, undiluted control over it. And now it has failed. And it’s everyone’s fault except theirs.

The Weekly Standard obviously recognizes that the real story in the Zarqawi killing is not that the Bush administration heroically killed him in 2006 but that it could have, but chose not to, eliminate him in 2002. And it made that decision for the basest and most corrupt of reasons. It was hell-bent on invading Iraq no matter the circumstances, and it needed Zarqawi's presence in Iraq to help "prove" the extremely precarious if not non-existent connection between Iraq and international terrorism.

The Bush veneration in the media over the Zarqawi killing is akin to revering a prison warden who purposely allows a violent prisoner to escape (in order to, say, bring more public attention to the violence of prisoners), thereby enabling the prisoner to go on a three-year killing binge, and then finally re-captures him and puts him back in prison. One could plausibly argue that the killings are as much the fault of the warden for deliberately allowing the prisoner to escape as it is the prisoner himself. In all events, praising the warden for re-capturing the prisoner whom he purposely allowed to escape would be perverse, to put it mildly. And yet that is exactly what our media, led by war proponents, have been doing over the past two celebratory weeks.

As a result of all of this, we are again subjected to the war proponents' favorite tactic of blaming everyone else -- especially those who opposed the war from the beginning -- for the war's profound failures and the administration's corruption and unfathomable lack of judgment. The Left and France and the U.N. are powerless and weak and irrelevant -- except when things go wrong with the Administration's war and its decisions, and then it is all their doing. Regardless of what else is true, the failures of this war are never, ever the fault of those who planned the war, advocated it, executed it and managed it.

UPDATE: The pure falsity of the Weekly Standard's excuses is further illustrated by the fact that the U.S. repeatedly bombed targets inside Iraq throughout 2002 and 2003 prior to the invasion (h/t Andy):

THE American general who commanded allied air forces during the Iraq war appears to have admitted in a briefing to American and British officers that coalition aircraft waged a secret air war against Iraq from the middle of 2002, nine months before the invasion began.

Addressing a briefing on lessons learnt from the Iraq war Lieutenant-General Michael Moseley said that in 2002 and early 2003 allied aircraft flew 21,736 sorties, dropping more than 600 bombs on 391 “carefully selected targets” before the war officially started.

We were undertaking an intense air campaign inside Iraq for almost a full year prior to the invasion. What possible excuse is there for not having one of those bombs land on Zarqawi?

UPDATE II: One of the two co-authors of the Weekly Standard article, Adam White, courteously e-mailed me to let me know that he had posted a response to this post on his personal blog (see UPDATE II). In his response, White argues:

Attorney Glenn Greenwald also seems to miss the point of our article. (He doesn't miss an opportunity to call us "pathological," though.) He seems to think we're "blaming" people for the decision not to attack Zarqawi. Quite obviously that's not the case -- our point is that the Bush Administration's decision was justified. We'd never suggest that anyone be "blamed" for a justifiable decision.

Really, that response makes the Weekly Standard argument more, not less, indefensible. After all, we just spent the last two weeks being subjected to all sorts of melodramatic speeches about how the death of Zarqawi was a momentous blow for civilized humanity because is one of the most psychopathic, evil, murderous terrorists on the planet.

But courtesy of George Bush's decision, Zarqawi was able to spend the last three years alive and well, terrorizing the Iraqi population, murdering our troops, and uploading beheading videos onto the Internet. We could have put a stop to it but didn't, and White thinks that was the right decision all because France and Gail Collins would have objected had we killed Zarqawi? It was better to allow Zarqawi to engage in widespread terrorism than provoke some international objections? Is that really supposed to be a serious argument? Aside from being incredible on its face (who would possibly believe that the Bush administration thinks that way?), to defend the decision to allow Zarqawi to engage in terorrism against Americans and other innocent people all in order to avoid some criticism actually sounds morally monstrous.

And what makes this "let-Zarqawi-live" defense even more confounding is that it comes from the same people who insisted that we invade Iraq despite almost universal world anger over that invasion. So apparently, we should refrain from killing a homicidal, evil terrorist if other countries might object. But it's perfectly fine to start a war and invade another country, international opinion be damned. Does White really defend that as being a rational view, let alone a persuasive one?

Why respond to Malkin?

By Hume's Ghost

I ended my previous post on Michelle Malkin's "salute" to "Coultermania" with a promise to explain why such things merit a response, which is what I intend to do here. The topic is one I find difficult to narrow down (and compose a decent entry on in a day), so I might ramble a bit. Please bear with me.

As Glenn noted yesterday, the primary reason to respond to Malkin, Coulter, Hannity, et all is that they are influential. Let me try and put a personal face on that reason.

Not too long ago a friend of mine told me she was trying to become more politically informed. To do so, she continued, she had begun reading Ann Coulter's How to Talk to a Liberal (If You Must). Think about that for a moment. This was an individual who did not know much about politics, was a non-ideological independent and the first person she could think of to learn more about politics from was a hate-mongering hack. This should have never happened, because Coulter should have been exposed for the vile, bigoted, intellectually bankrupt propagandist that she is by journalists a long time ago. In this regard, my friend was failed by a mainstream media which is more interested in using Coulter as a figure to drive up ratings than they are in doing their jobs of promoting a responsible national discourse.

This is why I respond to Coulter and her apologists like Malkin, because I don't want their hate corrupting people like my friend. In the comments of Glenn's post, I linked to this entry I had previously written about why eliminationist rhetoric is not a joke as an explanation of why I write about extremists. You'll notice that it contains a link to a post that Alonzo Fyfe wrote after his wife was sent an e-mail from a co-worker which fantasized about the deaths of liberals. The co-worker thought it "too good not to pass along."

We must answer Coulter and her ilk, because unanswered their hateful rhetoric creeps into society, meant to divide us from our friends, family, and fellow Americans. The reason these pundits are incapable of disagreeing with someone without first labeling an opponent as liberal, Democrat, socialist, far left, moonbat, communist etc. (and the same can go for those who do the reverse) is because their tribal binary logic requires them to identify an outgroup, a "them" to be excluded, or worse, eliminated. This is why Glenn discovered that he was a "leftist" and/or a "liberal" for his opposition to the Bush administration. Sarcastically explaining this tactic, Glenn wrote

[T]hey label the argument and the person making it "leftist" and "liberal" and - presto! - no more need to address the arguments or consider its substance because it’s all been shooed away with one fell swoop of name-calling cliches.

In a post commenting on this I noted that the name-calling tactic is actually a common propaganda technique. The Propaganda Critic website describes name-calling thusly:

The name-calling technique links a person, or idea, to a negative symbol. The propagandist who uses this technique hopes that the audience will reject the person or the idea on the basis of the negative symbol, instead of looking at the available evidence.

To which I added that this tactic is facilitated by the line of books demonizing "liberals" and it is often coupled with eliminationism, because "the more the symbol, with all its negative associations comes to represent the group, the less that the group is perceived as human, the easier it is to rationalize injustice committed towards the group." The rhetoric of these media transmitters, both by repackaging extremist views for mainstream consumption and by engaging in the ritual defamation of those with whom they disagree, serve to shift mainstream political discourse towards the extreme. I'm passing over this subject briefly but will direct your attention to Dave Neiwert's seminal essay Rush, Newspeak, and Fascism: An exegesis (from which the transmitters link is taken) which exhaustively explains why and how American values are being transformed and corrupted by the right-wing extremism that the likes of Coulter and Malkin help to diffuse into every day discussion.

As a quick example of the process of transmission, let's look at Malkin for a case in point. Michelle claims that conservatives "zealously police their own ranks" to guard against extremism. I already wrote a post about her apologetics for Coulter's extremism, but what about Malkin herself? Does she transmit extremist views? Yes, she does. As Alex Koppelman has noted, Malkin keeps in her blogroll VDare.com, an organization that has been identified by the Southern Poverty Law Center as a hate group with ties to white supremacism and which runs Malkin's syndicated columns.* The interesting thing about Koppelman's link is that he frames his post with a rant from Bill O'Reilly about how "far left" extremists are allowed on television to push their views but right-wing extremists like the KKK aren't, followed by O'Reilly bringing on Michelle Malkin who gives extremist views a soft face for palatable mainstream consumption . This is a microcosm of the way in which our media legitimizes right-wing extremism. Which brings me back to Coulter.

The fact that Coulter is on tv in the first place means that something is seriously wrong with our society. Peter Daou, who called Coulter's appearance on the Tonight Show "a dangerous inflection point in American politics," recognizes the absurdity of having a hate-mongering bigot like Coulter on, but he shied away from making the "obvious comparisons." The obvious comparisons need to be made. So here it is: Coulter talks about "liberals" the way racists talk about blacks, the way the Nazis talked about Jews. Her "jokes" are predicated on the notion that the elimination of a set of humans are funny, her "jokes" are funny the way anti-Semitic "jokes" like this were funny, which is to say, they are not not funny. They are disgusting and deadly serious.

In the clip of her appearance on the Tonight Show, Coulter mentioned that she let her "smartest liberal friend" whom she told would be "smarter than any liberal I'm going to be on tv with" read her book. Could her bigotry be any plainer? Substitute in any other group that's been hated against in history and see how that sentence sounds.

Yet, Coulter, a hypocrite who has written a book called Slander (denouncing "liberals" as liars) and who now unequivocally states that Bill Clinton being a rapist is a "universally accepted fact" can get a whitewash piece in Time magazine, one of the largest American news publications. Why is this woman on television and syndicated across the nation? Strip away her petty insults and what is left? What does she contribute to the national dialogue other than hate? Are we to believe Godless is an answer to A Theory of Justice by John Rawls?

This woman who has the nerve to assert that God endorses her politics alone has apparently never read Exodus 20:16: "Thou shalt not bear false witness against thy neighbor." She asserts that "liberals" are "godless". Apparently, Jimmy Carter, possibly the most devout President in US history, didn't get the memo. She asserts that evolution is a "liberal" religion which has no evidence supporting it. Scientists beg to differ.

So what does it say about us as a culture that Ann Coulter can occupy the national stage? The Green Knight, a liberal Christian blogger, answers

Only a society that has ceased to value that reasonable context of discussion (in other words, only a society that no longer really cares about itself) could enthusiastically make significant room for someone like Coulter, who rakes in profits by making up lies and "entertaining" people by demanding the deaths of those she hates. And American society today makes room not only for her, but also for an entire right-wing movement for which eliminationist rhetoric has become the norm. This is a society that no longer trusts itself, that is incapable of seeing its citizens as citizens and therefore as worthy of respect.

So it behooves us to answer and expose Coulter's puerile drivel so long as our national media continues to legitimize her and her compatriots.This isn't a partisan issue, it's a human decency issue, as principled conservatives recognize. If we want to stop the rot of our democratic institutions, then we must counter the putrid rhetoric of Coulter, Malkin, and company which acts as corrosive acid dissolving the bonds of our democratic society, dividing the country into "Us" versus "Them".

*Correction - I had previously said Malkin wrote for VDare. That's not the case, they run her syndicated column.

UPDATE: To further highlight the necessity of responding to Coulter and co., take a close look at the Spinsanity article I provided above (the hate-mongering hack link). It was written in 2001, and begins by lamenting:

The last few years have witnessed the emergence of a new class of pundits. Many, regrettably, are prodigies in the aggressive political jargon that pervades our political discourse.

It then goes on to expose, step-by-step, the formulaic "rhetorical manipulation" that Coulter uses in her work. You can see in that article that they had already addressed what would comprise the next five years of Coulter's writings. But look at the closing paragraph (bold emphasis mine)

Why is Coulter so important? Even though most people haven't heard of her, she and other relatively young jargon-slingers like David Limbaugh and Michelle Malkin are gaining stature. As a result, the rise of aggressive political jargon is likely to continue, with predictable and pernicious consequences for American political discourse.

That was in 2001. Plenty of people have heard of Coulter and the "relatively young jargon-slingers" now. Ignoring them does not work.

Gatecrashing

By Barbara O'Brien

By Barbara O'Brien -- This Thursday night Markos Moulitsas (along with Wynton Marsalis and Anna Burger) is being honored with a Justice Award from the Drum Major Institute for Public Policy in New York City. Read more from Jane Hamsher, here.

I realize there’s some ambivalence about Kos among leftie bloggers and blog readers. See, for example, Nick Bourbaki’s posts at Wampum, here and here. And there was snarking at Kos recently in a comment thread here at Unclaimed Territory, in a post discussing Ned Lamont’s challenge of Joe Lieberman’s Senate seat. Several commenters complained that Kos is more interested in electing Democrats than electing the best progressive candidates, who might be from a third party.

But consider: We are up against a big, well-funded, and well-organized extremist right-wing faction that has taken over the White House and Congress and is well on the way toward taking over the judiciary. This faction spouts rhetoric about “freedom” and “democracy” but in fact supports radical theories about the Constitution that have put this nation on the road to totalitarianism. The regime in power has gotten us into one pointless and ruinous war and appears to be preparing to get us into another one. They are threatening the health of the planet by ignoring global warming, and the point at which it will be too late to act is fast approaching. They have strengthened their grip on power by corrupting elections and appropriating news media so that citizens can’t learn the truth. They are strangling our economy with profligate spending combined with irresponsible tax cuts, and every second that passes we are deeper and deeper in debt to other nations, like China.

The house is on fire, in other words. Some of us think our first priority is to put the fire out any way we can. We can argue about what wallpaper pattern would look best in the master bedroom some other time.

If the Democrats can win back a majority in the House this November — or, even better, the entire Congress — the Dems will have some power with which to fight the Right. That doesn’t mean they will, of course; I expect we will need to apply pressure on a future Dem majority to be sure they use their subpoena power (which they don’t have as a minority) and conduct meaningful investigations to expose the Bushies and the extremist Right for the danger to America that they are. But a Democratic majority in even one house will curtail some of the Bush regime’s ability to steamroll over American rights and values any time it pleases.

I can't speak for Kos, but I support Democratic candidates in the November elections (most of ‘em, anyway) not because I believe they are always right or because I think a Democratic majority in the House will fix all our political problems. I admit that many Dems running for election in November are less progressive than I wish they were. I've complained about Dem spinelessness and Dem appeasement of the Bush White House as much as anyone. Even if we succeed in taking at least part of Congress away from the Republicans there will still be a long, hard fight ahead to restore America to anything approximating political health.

But a Dem majority would give us a better position from which to fight and a lot more ammunition to fight with. If we don’t take back part of Congress in November, it means two more years of having no power in Washington at all.

The Bushies can do a lot of damage in two years, folks.

Before and after the midterms, netroots activists should push hard to increase our influence among the Dems. We must deliver the message to the Democratic Party establishment that it’s time to stop dancing the Clinton triangulation two-step. If we can topple Joe Lieberman, the most egregious of the DINO Bush bootlickers, this would send a clear signal to the Dems that they must reckon with us, and that they can’t take our loyalty for granted. This is essentially the argument made by Kos and Jerome Armstrong in Crashing the Gate.

There’s a lot more to be done to make America safe for progressivism again, such as reform media so that our messages reach the public without being twisted by the rightie noise machine. Election reform, real campaign reform — all vital goals, and none will be easy to achieve.

But if the Dems don’t succeed in the 2006 midterms, prepare to kiss it all off. That’s reality. And another reality is that until we change the way we conduct elections — allow instant runoff elections, for example — progressive third party candidates will not only lose all but local elections, they will split the progressive vote and hand elections to Republicans. This has been happening in America since the first political parties emerged, which was while the ink was still drying on the Constitution. I do believe a pattern has been established; it's sheer foolishness to pretend otherwise.

Where does Kos fit into this? IMO Kos is more of an organizer than a blogger, but that’s OK. The netroots are a cornucopia of great bloggers, but great organizers are harder to come by. I don’t always agree with Kos, but I admire his ability to get in the faces of politicians and media and demand attention. The YearlyKos convention — which was fabulous, IMO, and if they have another one next year I’m already there — was a major step toward giving netroots progressivism real power in the flesh. I couldn’t have done it. I suspect most of us couldn’t have done it. But Kos did it, and he deserves the credit. So, I congratulate Kos for being honored by the Drum Major Institute. I wish him continued success, and I hope more bloggers step out from behind their monitors and follow his lead.

And if we keep fighting, the day will come when progressive goals will be achievable. Goals like providing health care for all Americans and a genuine commitment to reducing global warming will no longer be kept dangling out of our reach by the power of the Right. And I hope someday to have the luxury of choosing the best progressive candidate regardless of party. But that day is yet to come.

Last January I caught some flames with this post, in which I said that too much of the Left was “stuck in a 1970s time warp of identity politics and street theater projects and handing out fliers for the next cause du jour rally.” But for at least forty years — since I was old enough to pay attention to politics — I’ve watched earnest and dedicated liberals stand outside the gates of power and hand out essentially the same fliers for the same causes, year after year, decade after decade. And in most cases we’re no closer to achieving real change than we were forty years ago.

So I say that if in-fighting over ideological purity is getting in the way of having the power to enact progressive policies, then the hell with ideological purity. Speaking truth to power is grand, but let’s not forget the ultimate goal is to be power. Until we have power, all our ideas, and our idealism, are just dreams.

I believe one of the reasons we have been rendered into a minority is that too many lefties act and think like a minority; we’re perpetually out of power because that’s how we envision ourselves. So even though a large majority of the American public now agrees with us on Iraq, for example, somehow we’re the extremists, and the hawks — who dominate government and media — paint themselves as mainstream. Righties, on the other hand, maintain total faith that the majority of Americans are with them, even if poll after poll says otherwise. And that faith, however delusional, has empowered them.

We are the mainstream. We are the majority. But to take our rightful place in American politics and government we must start thinking like a majority and acting like a majority. It’s way past time to stop standing outside the gates of power handing out fliers. Kos is right -- it’s time to crash the gate.

The Dumbest Law Ever

By Anonymous Liberal

(updated below - by Glenn)

According to the USA Today, the Senate is currently only one vote shy of the 67 votes needed to pass the "Flag Desecration Amendment." If so, I'm convinced the amendment will go down in history as the dumbest law ever written.

As an initial matter, it's hard to think of anything more un-American than banning a purely symbolic act. It would be the first time we've ever amended our Constitution to curtail the Bill of Rights. We would be carving out a bizarre exception to our most celebrated right, the right to freedom of speech. The new rule would be, in essence, you can say anything you want (but you can't say that).

But let's put aside the fact that we would be trading in an eloquent statement of principle for something that sounds like a Meatloaf song. Let's put aside the fact that we would be joining the ranks of such illustrious regimes as Nazi Germany, Cuba, China, Iran, and Iraq (during the Saddam era). Let's forget all that and assume, for the sake of argument, that there is no more heinous transgression than the desecration of an American flag and that we must do whatever it takes to--God willing--stop this horrible crime for taking place. Assuming all that, is the Flag Desecration Amendment good policy?

The answer to that is--of course--a resounding "no." I, for one, have never felt any real desire or inclination to burn an American flag (or any other flag for that matter). Apparently most Americans are in the same boat because, according to one study, there were only 45 reported flag burning incidents in the first 200 years of the republic (h/t Think Progress). That means there are probably more historical incidents of witch-burning than flag-burning. Maybe we should start debating the Witch Protection Amendment.

But I digress. Back to flag-burning. Despite my natural disinclination (apathy?) toward burning flags, if the Flag Desecration Amendment passes, I'm going to be awfully tempted to burn one for the first time, if for no other reason than to protest the passage of such a mind-bogglingly stupid amendment. And I have a feeling I won't be alone. It seems likely, therefore, that the primary consequence of this amendment will be to dramatically increase the level of flag burning in this country.

If you doubt this is true, just ask Professor Robert Goldstein, who's an expert on the subject. This Senate Report quotes Goldstein as saying: "We've had more than twice as many flag burnings since this became a front page issue in 1989 than in the entire history of the American republic." The report continues:

Professor Goldstein has established that the number of incidents peaked during the period after the 1989 Flag Protection Act was in effect, and that the rate of incidents has more than tripled since the current effort to amend the Constitution was initiated. Even with the increase brought on by the agitation for bans on flag burning, the actual number of incidents remains exceedingly low. These facts are undisputed.

So there you have it, folks. Not only is banning flag-burning thoroughly un-American, but it's an extraordinarily counterproductive policy. It turns a non-problem into an exponentially more prevalent non-problem. And that's why I can say, with confidence, that the Flag Desecration Amendment is the single dumbest law ever.


UPDATE (by Glenn): The USA Today editorialized quite strongly today against the Flag Desecration Amendment, and then provided space for an editorial in favor of the Amendment. Who wrote the editorial favoring this Amendment? The increasingly odious Sen. Dianne Feinstein, who insults everyone's intelligence with this inane "reasoning":

Some opponents of the Flag Protection Amendment argue that we must choose between trampling on the flag and trampling on the First Amendment. I strongly disagree.

There is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment would leave both the flag and free speech safe.

Obviously, the burning of the American flag does convey a message in a unique way or else there wouldn't be an effort to amend the Constitution in order ban it. We have spent the last 218 years with the Constitution prohibiting all attempts by Congress to restrict free speech, but Feinstein thinks we should change that so that we become a country in which people like Dianne Feinstein can dictate to us what is and is not an appropriate form of political expression. She thinks she should be able to criminalize certain types of political expression and then tell us not to worry because the views can "be expressed equally well in another manner."

Dianne Feinstein is on both the Senate Judiciary Committee and the Senate Intelligence Committee and sleepwalks as the Bush administration wages war on the constitutional principles which define this country. And yet this is the issue which has moved her to write an editorial in a national newspaper.

Why right-wing extremists merit attention

Last Wednesday, Instapundit wrote a fact-free post claiming that the Virginia Senate primary results, in which Jim Webb defeated Harris Miller, constituted yet another defeat for the "Howard Dean-Kos fringe." In response, I wrote a post documenting how factually false Instapundit's claim was (since Markos himself, along with "fringe" national politicians such as John Kerry, expressly supported Webb's candidacy). As I made clear in the post, it was not Instapundit's false statement per se that was significant. Instead, it is the continued smearing of perfectly mainstream Democrats (such as Howard Dean, or Kos) as being "fringe" radicals -- and interpreting all political events through that distortive lens -- that is so dishonest, a smear that is repeated endlessly by the national media. In an "Update" to his post, Instapundit was forced to retract his completely baseless claims about the primary results.

Yesterday (five days later), Instapundit responded to my post with all sorts of inaccurate claims and false accusations, and I posted my reply to it as an Update (Update V) to my original post. This morning, Markos also replied to Instapundit's response to me. As demonstrated by Markos' post (entitled "Instapundit is a Liar"), Instapundit's response is filled with demonstrably false assertions and strawmen (which forced Instapundit this morning to retract his statements yet again, apologize for them, and excuse himself by claiming that his misleading post in response to me was just "badly written"). Markos' post and my reply to Instapundit is comprehensive, so I won't rehash here all of the ways in which Instapundit engaged in his standard dishonest tactics when replying.

Suffice to say, Instapundit was forced to retract his original post on Wednesday only because my post highlighting his falsehoods received substantial attention (from Atrios and Markos, among others), and he was forced to retract still more false statements from his post yesterday for the same reason. But on an almost daily basis, literally, Instapundit engages in these same deceitful tactics. They are his staple. And they usually sit uncorrected.

Other than the fact that he was forced to retract these statements due to the substantial attention they received, there was nothing at all unusual about the dishonesty exposed in Instapundit's last two posts on this topic. Demonizing mainstream Democrats as "fringe" (even though it is his pro-war views which have been repudiated by most Americans), and linking to and promoting extremist viewpoints while keeping a safe enough distance to deny that he is doing so, is Instapundit's bread and butter. And those tactics are equally common among all sorts of right-wing media and even the national media itself.

But almost every time that I write about Instapundit, Michelle Malkin, Ann Coulter or others like them, I receive e-mail telling me that I should just ignore them, that they are too petty to bother with. I see from the comment sections of other bloggers who write about these extremists the same criticism -- that it is a mistake to "give attention" to these people because they are irrelevant and should just be ignored.

For multiple reasons, I could not disagree more with that view. People like Instapundit and Michelle Malkin have a daily readership which exceeds that of most American daily newspapers. Millions of people buy and read Ann Coulter's books and the national media repeatedly give her a platform. They represent the views of millions of Bush followers. To believe that they will just quietly fade away if they are ignored is pure wishful thinking, dangerous fantasy. The same thing was said two decades ago about Rush Limbaugh and, all that time, he has been pumping his hate-mongering into the heads of 20 million listeners on a daily basis.

Ignoring extremists is the worst possible thing one could do, and it is the biggest favor that could be done for them. The dishonest claims and manipulative tactics in which the likes of Instapundit and Michelle Malkin traffic are heard by enormous numbers of individuals and all sorts of influential people. To ignore them and to fail to respond to what they say -- to fail to expose their dishonesty and radicalism -- is to allow them to speak without challenge. The only result that will produce is to enhance their credibility and allow them to conceal their deceit. What possible rationale exists for that course of action?

More importantly, it is incomparably beneficial to expose the extremist, dishonest underbelly of the pro-Bush movement. They have made great political strides by focusing as much as possible on easily disliked political figures on the Left who are susceptible to being depicted (rightly or wrongly) as extremists (Ward Churchill, Harry Belafonte, Michael Moore, etc.) and then turning them into illustrative symbols of Democrats generally.

But while they do this, they also form highly beneficial alliances with the most extreme and radical elements in the political spectrum. Ann Coulter attends their most important political events and urges the murder of Supreme Court Justices and uses hateful epithets, prompting standing ovations. Dick Cheney's favorite place to express his political ideas is the radio shows of right-wing radio talk show hosts who spew eliminationist and extremists rhetoric on a daily basis. They are represented in the blogosphere by individuals who favor the war internment of Japanese-Americans, routinely call mainstream Democrats traitors, and issue threatening proclamations against the media for causing us to lose the war in Iraq. And they don't take any significant domestic policy steps without first clearing what they want to do with the likes of Jim Dobson and, before that, Pat Robertson.

But because many people believe that individuals such as Malkin, Coulter, Reynolds, and Limbaugh are so vile that they ought to be "ignored," Bush followers never have to pay a price for these alliances. They are allowed to milk the benefits of their confederations with extremists while deceitfully presenting a moderate, mainstream face to the country. They should not be allowed to get away with that. The more these extremists are focused on, the more attention they receive, the better it is. It is a good thing for Americans to know that the real face of Bush followers is Michelle Malkin, John Hinderaker, Ann Coulter and Jim Dobson, and to see clearly what that face really looks like.

Moreover, the blogosphere provides a unique opportunity to expose the true deceit and the real impulses which underlie most Bush followers' allegiance to that movement. Because people like Instapundit and Malkin post every day, and those posts remain there forever for anyone to read, a record is compiled of what they think and how they "reason." When the dishonesty of Instapundit's tactics is exposed, it matters not because it matters whether Instapundit himself is dishonest, but because the dishonest tactics he employs are employed widely and then become echoed by the national media. The benefits of exposing that dishonesty ought to be self-evident. When Instapundit is exposed for his deceitful use of the "fringe" smear, it weakens the credibility of that smear generally. That is why it is worth doing.

It would be nice and all if we had a political culture where extremists and those who traffic in character smears in lieu of substantive political arguments could simply be ignored, so that they would disappear. But the reality is the opposite. Our political dialogue, especially over the last five years, has been shaped primarily by those who specialize in demonizing political opponents as fringe lunatics, depicting disagreement as treason, and deliberately papering over complexities in order to spew misleading political slogans designed to propagandize rather than persuade. The lesson of the Swift Boat debacle, more than anything else, was that to ignore those individuals and those tactics is the best thing one can do . . . for them. It is surprising how many people seem not to have learned that lesson.

To all political reporters: Please go read Federalist 69

The Boston Globe's Charlie Savage continues to exemplify how journalists are supposed to investigate and cover stories. Savage is one of the very few journalists who understands and covers one of the most extraordinary political events in our country's history -- the explicit seizure of lawbreaking powers by the President. Savage's latest article documents how contrary Bush's presidential power theories are to the core founding principles of our government as set forth in the Federalist Papers:

SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war. . . .

Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.

Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration's legal theory is "just wrong" and called its failure to acknowledge the paper "scandalous."

"How can you not talk about Federalist 69?" he said. "All you have to do is go on Google and put in `Federalist Papers' and `commander in chief' and it pops up."

The most astonishing aspect of these lawbreaking scandals is how straightforward and easily resolved they are. The administration deliberately invokes all sorts of obfuscating legalisms to cloud the issues, but few things are clearer than the fact that Bush's claim to possess unchecked and unlimited power in the area of national security and terrorism -- a view grounded in the Yoo theory -- is not just a deviation from, but is the very antithesis of, the principal goal of the Constitution's framers: namely, to ensure that there is no such thing as unchecked power in our system of Government, but only power that is constantly restrained and balanced by the other two branches.

Beyond those conceptual issues, Justice Antonin Scalia -- as I discuss at length in my book -- conclusively demonstrated in his opinion in Hamdi v. Rumsfeld, that Federalist 69 by itself precludes Bush's claim that Article II bestows to him unlimited powers to act with regard to all matters concerning national security (including measures taken against U.S. citizens on U.S. soil):

Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:

“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.”

Those who claim that Article II somehow vests unrestrained power in the President to act with regard to all national security matters do not ever address this question, because they cannot: how do the powers which they seek to vest in George W. Bush differ from those possessed by the British King? They do not. The whole point of Fedearlist 69 -- and one of the principal points of the Federalist Papers generally -- is to assure worried Americans that the creation of the office of the President would not result in a new King in the area of national security. As Savage reports:

Alexander Hamilton, wrote Federalist 69 in 1788, as the nation was debating whether to ratify the Constitution. At the time, many Americans feared that the proposed Constitution might concentrate too much power in the president. Having just fought a war to rid themselves of the British king, they did not want to end up with a home-grown dictator.

The Constitution called for the American president, like the British king, to oversee the nation's military. But in Federalist 69, Hamilton explained that the American commander in chief's powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as "nothing more" than the "first general" in the military hierarchy. The commander in chief's powers are "much inferior" to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.

A President who can exercise power with which neither Congress nor the courts can "interfere," and who can exercise those powers even in violation of laws duly enacted by the American people through their Congress, is a President who, by definition, has the powers of a monarch -- the very situation which, as Scalia explains, is what the Founders sought, first and foremost, to avoid. The "idea" that the very Founders who waged war to escape the rule of a King would create a Constitution which creates a new monarch is too frivolous to merit real debate. And Federalist 69, by itself, makes that clear. If any reporters other than Savage have read Federalist 69, there would be more stories informing Americans of how clear that is.

The most tragically hilarious part of Savage's article is the reaction of John Yoo to the claim that he has fundamentally distorted the plain meaning of the Federalist Papers when constructing his President-as-King theories:

Citing similar passages in other Federalist Papers, John Yoo, a former official in the Bush Justice Department, added that Federalist 69 is just one among many records of the founders' thinking, some of which are contradictory or misleading. In his recent book, ``The Powers of War and Peace" (Chicago), Yoo dismissed Federalist 69 as ``rhetorical excess" that exaggerated the difference between a king and a president.

"Fed 69 should not be read for more than what it is worth," Yoo, who is now a Berkeley law professor, wrote in an e-mail.

So the chief architect of this administration's theories of presidential power thinks that Federalist 69 -- one of the principal documents from the Founders regarding the scope and limits of presidential power -- is mere "rhetorical excess" which ought to be ignored, or at least it ought not "be read for more than it is worth." I supposed Yoo's authoritarian fantasies of the all-powerful One Man Ruler ought to be given more weight than the promises and commitments made by the Founders in order to persuade their fellow citizens to ratify the Constitution.

It should not come as a surprise that the Bush administration's theories of presidential power -- which are guiding how our country is governed and which have spawned abusive scandal after scandal -- relies upon the view that the views of the founders ought to be ignored. Federalist 69 is not all that long. All reporters could read it quickly and understand it easily. Like Savage did, they ought to. Perhaps then they could realize -- and then inform the country -- that the powers claimed by Commander-in-Chief George W. Bush are the very opposite of the core, defining principles of our country.

* * * *

I will be on the Al Franken Show from 1:30-2:00 p.m. EST to discuss How Would a Patriot Act? Tonight, I will be in Philadelphia for a book event, sponsored by Drinking Liberally, beginning at 6:00 p.m., at Higher Grounds Cafe -- 631 North 3rd St., Philadelphia, PA 19123. Tomorrow (Tuesday), I will be in Boston for another Drinking Liberally book event, beginning at 6:00 p.m., at the Middlesex Lounge -- 315 Massachusetts Ave, Cambridge, MA.

Lieberman, neoconservatism and Iran -- the need for more, not less, democratic debate

by Glenn Greenwald

On Friday, the Senate rejected a bill proposed by Rick Santorum to take a harder line against Iran by, among other things, funding Iranian groups devoted to regime change, significantly increasing punishments for companies which do business in Iran, and requiring the President to determine if such companies should be banned altogether from U.S. markets. The Bush administration opposed this legislation (likely because it committed the sin of Congressional "interference" in presidential foreign policy decision-making). And all but four Democrats voted against the hard-line Santorum bill. Joe Lieberman was one of the four Democrats to vote in favor of it.

This effort by Santorum (and Lieberman) to push the administration into a more aggressive posture against Iran preceded by one day this story in The Washington Post, which revealed that in 2003, Iran attempted to engage the U.S. in comprehensive negotiations to resolve all significant disputes between the two countries, including Iran's nuclear activities and its position on Israel. The Bush administration flatly refused the offer to negotiate, and even attacked Switzerland for agreeing to pass along the Iranian offer and vouch for its authenticity.

Just as was true with Iraq, most hard-line Iran war agitators are completely uninterested in inducing Iran to disarm. What they really crave is a change of government as soon as possible, something which is attainable most effectively by war. They don't want to pursue diplomatic measures that could result in a cessation of Iran's nuclear activities because a non-nuclear Iran with no regime change does not even remotely satisfy their goals. Anything less than forcible regime change will be perceived by them as dangerous "appeasement." Exactly as they viewed the first Gulf War, achieving concrete goals while failing to use our military to get rid of governments we dislike is weak and misguided. Government-changing war is the only solution that works.

Does anyone doubt on which side of this Iran debate Joe Lieberman will fall? He did not become one of the most vigorous supporters of the Iraq war because he has unique views about Iraq. He supported that war -- and still does -- because he subscribes almost completely to the neoconservative world-view that the Middle East must be re-made and re-created in our image, using as much military force as necessary, in order to rid that region of anti-Israeli and/or anti-U.S. governments and replaced with more compliant ones. Here is what Lieberman told then FOX News analyst Tony Snow back in 2003:

SNOW: Do you believe Iran is ripe for a regime change?

LIEBERMAN: Well, yes. I mean, I think it would be in the interest of the world, and most particularly of the Iranian people, to have a regime change in Iran.

I'm not suggesting military action by us, but Tom Friedman of The New York Times, I believe, said recently -- or a while ago that there's no nation in the world where the government is more anti- American and the people are more pro-American than Iran, and that's the equation we have to flip.

Lieberman's foreign policy views compel support for war in Iran every bit as much as they compelled support for the Iraq invasion. That's because, as much as any other national politician in either party, Lieberman embraces neoconservatism at its core, and is one of the leading advocates of its principles.

One of the most absurd arguments currently being circulated is that there is something misguided or even unethical about supporting a primary challenge to Lieberman. These complaints often include the supremely ironic accusation there is even something anti-democratic about the primary challenge, because it somehow signifies that diversity of opinion is prohibited and dissent punished. But as Roger Ailes points out: "Seems to me that having a pro-war candidate and an anti-war candidate running against each other within a party is about accepting diversity of opinion."

Iran has been lurking on the political agenda for some time and -- in a sure sign of things to come -- there have been outbursts of frenzied media coverage in short segments here and there. It is hard to imagine that Iran won't play a very significant, if not dominant, role in the lead-up to the 2006 elections. The warrior/appeaser dichotomy has worked wonders for Karl Rove in two straight national elections and it seems clear that he intends to prominently feature it again. Whether we should militarily attack Iran is a debate that, one way or the other, this country is going to have.

Joe Lieberman is a neoconservative whose foreign policy philosophy is inevitably going to lead him to support whatever hard-line policies against Iran which this administration wants, including a military attack. To the extent Lieberman is willing to deviate at all from the administration's Iran policy, he will likely be more hard-line than they are, just as was the case with the Santorum legislation.

It would be incredibly irresponsible for the Democrats not to have an all-out debate about whether they want to be represented in the Senate by someone whose foreign policy views are more or less identical to the most militaristic ideologues in the administration. Contrary to the conventional wisdom that the primary challenge against Lieberman is motivated almost exclusively by his support for the Iraq war (an obviously false claim given that numerous Democrats who supported the war are still supported by most Democrats), Lieberman's neoconservative world-view is squarely at odds with the views of most Democrats (and most Americans), and that, among other things, is what is at issue in his primary challenge.

It is highly revealing that those who view the Connecticut primary challenge as being some sort of anti-democratic affront -- such as those geniuses at The New Republic for whom the only more important goal than Middle Eastern wars is Lieberman's re-election -- do not attack the specific views of Ned Lamont, but instead attack the existence of the democratic contest itself. As was true with their advocacy of the invasion of Iraq, neoconservatives don't want to win a debate over whether further war-mongering, this time in Iran, makes sense. They once again want to squelch meaningful debate entirely, even if it means advancing that blatantly inane claim that a primary challenge to a highly controversial Senator with extremist foreign policy views is inappropriate and even anti-democratic.

The one lesson which I believe Americans (if not the national media) have learned from the Iraq debacle is that we cannot engage in a military action again of that significance without having a real debate and without engaging in intense skepticism over claims made by the government. Joe Lieberman is clearly going to advocate the hardest line possible against Iran. Few things are more constructive than a democratic election where that view gets openly debated and then resolved by voters. That is how our country is supposed to work.

The Bizarro World logic of Michelle Malkin

By Hume's Ghost

"[T]he truth is that it's conservatives themselves who blow the whistle on their bad boys and go after the real extremism on their side of the aisle." - Michelle Malkin, Unhinged: Exposing Liberals Gone Wild (2005)

"When contemplating college liberals, you really regret once again that John Walker is not getting the death penalty. We need to execute people like John Walker in order to physically intimidate liberals, by making them realize that they can be killed, too. Otherwise, they will turn out to be outright traitors." - Ann Coulter in an address to the Conservative Political Action Conferance , Feb. 2, 2002

"I have a lot of respect for Ann Coulter" - Michelle Malkin, Nov. 28, 2004

"There are better ways to lay into liberals." - Michelle Malkin, linking to Ann Coulter's website, June 25, 2004

In the Superman comic books, there's a character known as Bizarro, an imperfect duplicate of Superman, who is not really evil, but ends up playing a villian because his perceptions of what are right and wrong are the opposite of what they should be. He comes from the Bizarro World, "a planet where alarm clocks dictate when to go to sleep, ugliness is beautiful," and everything is basically an imperfect, backwards skewed version of Earth.

While calling someone's logic "Bizarro" may be considered pejorative (and in this instance I am indeed using it as such), it may also be descriptive. And after watching this Hot Air video which Mrs. Malkin calls a "salute" to "Coultermania" I could not think of a more apt term to describe the up-is-down logic that animates Michelle's thinking.

Welcome to the Bizarro World of Michelle Malkin, where people who respond with indignation to hate-mongering are the "unhinged" ones. Where people who get upset over receiving the verbal equivalent of a punch in the face are the bullies, and the person doing the provactive punching is the victim.

Michelle begins the video by congratulating Coulter for her new book, Godless: The Church of Liberalism, debuting at #1 on the New York Times best seller list. The book, Malkin says, should be called "priceless" because it "provoked" examples of "left-wing" "unhingedness, indignance, and hilarity." In the normal world, people who respond to petty insults, demagogery, hate, and idiocy with indignance are the hinged ones, but not in Bizarro World.

In Bizarro World, a book which asserts that anyone who does not share Ann Coulter's political beliefs are treasonous atheist communist liars whom can most effectively be communicated to with "a baseball bat" is sane, the detractors are "unhinged." A book that cites as authorities on science the leaders of a stealth creationism political movement pushing pseudoscience while asserting that one of the most robust, well-supported and firmly established theories and facts of science is "liberal mythology" is reasonable, the critics are the fools. Also by implication, anyone who believes that evolution is valid science is also all of the above, which means that Pope John Paul II was a liberal atheist communist, too, since he had described evolution as the "truth." This is the Bizarro World Michelle lives in.

Malkin calls the reaction that Coulter's work engenders her "invaluable" trademark. See, in Bizarro World, people who find statments like these upsetting are the extremists. In Bizarro World this isn't extremism

I think the government should be spying on all Arabs, engaging in torture as a televised spectator sport, dropping daisy cutters wantonly throughout the Middle East and sending liberals to Guantanamo.

The first example in the video of "unhingedness" is reaction to the portion of Godless which describes the "Jersey Girls" so:

These self-obsessed women seem genuinely unaware that 9/11 was an attack on our nation and acted as if the terrorist attack only happened to them. They believe the entire country was required to marinate in their exquisite personal agony. Apparently, denouncing Bush was part of the closure process. These broads are millionaires, lionized on TV and in articles about them, reveling in their status as celebrities and stalked by griefparrazies. I have never seen people enjoying their husband's death so much.

In Bizarro World, telling widowed women they "enjoy" using their personal tragedy to make political statements is a valid point. But, as Dave Neiwert points out (and I swear his use of "bizarro" to describe Coulter's logic is coincidental, although the usage obviously correlates from the recognition of the inverted thinking of both Malkin and Coulter), that's not what the real problem Coulter has with the widows.

Actually, what galls Coulter about people like the 9/11 widows is that her standard response to Matt Lauer and Bill Clinton or anyone else who might possess the audacity to question in any fashion the Bush administration or conservatives generally is to accuse them of "treason" or, at worst, of "having forgotten what happened on 9/11." And that response, of course, doesn't work so well when you're talking about families of the victims.

So going through the quotations that are given as examples of the "left-wing" response, we first are shown a call for book sellers in New Jersey to voluntarily not carry Ann's book because she should not profit from her hate-mongering. What is unhinged about this? While I disagree with asking booksellers not to carry the book (whoever made that statement should have left it at calling for the people of New Jersey not to purchase the book), one can hardly object to the idea that hate-mongering should not be profitable. Unless that is, one is from Bizarro World.

Secondly, what is left-wing about the statement? Malkin believes that the ACLU is "left-wing," but were anyone to make an effort to ban Coulter's book the ACLU would very likely be one of the first organizations to step up in defense of Coulter's free speech rights. In Bizarro World, such contradictions do not lead to cognitive dissonance.

The next example of "unhinged" reaction is a quote suggesting what Mr. Neiwert argues above, which Malkin apparently believes can be dismissed prima facie as absurd. Then on to a quote from Hillary Clinton, which is first prefaced with an unflattering picture of Clinton (obviously, the comment to follow must be unhinged, just look at the picture.) Clinton's quote expresses disbelief that someone could launch a "vicious, mean spirited attack" against people she believes to be deeply concerned with their country. In Bizarro World, being opposed to vicious, mean spirited attacks is unhinged.

Then the video shifts into Coulter's response to Clinton, an incoherent red herring allegation about Bill Clinton being a rapist. In Bizarro World, illogic is logic.

The video next cuts to Coulter's appearance on the Tonight Show with Jay Leno where she tellingly reveals her skewed Bizarro World perceptions, explaining, "from my perspective I'm Dorothy ... and I've just dropped my house on the mainstream media." In Bizarro World, a mainstream media that has driven her book to #1, which gives her a pulpit to promote her hate-mongering in multiple venues with frequent appearances, for which there is no left-wing or liberal equivalent to Ann Coulter, is "liberally" biased. In Bizarro World, eliminationist rhetoric is "conservatives being able to talk back," and anyone who finds it objectionable is the "unhinged" left.

The same mainstream media is shown in the next segment of the video having a vapid discussion about whether or not the panelists find her attractive. This is thrown into the video why? Is it unhinged leftwing behavior? If it's not unhinged or left-wing, that leaves indignant and hilarity. There's no indignance in the video, so I guess that makes it hilarity. Seems to me like trite and superficial media "analysis" which fails to give the audience any relevant information about her book or the context of the controversy surrounding her recent comments, which if anything amounts to meaningless noise that does nothing other than to promote Coulter, but what do I know, I'm not from Bizarro World.

Then we get to the one example in the entire video of someone responding to Coulter in a fashion that can appropriately be considered an attack, Keith Olberman tossing out several insults about Coulter being shameless, soulless, and worse than insane. In Bizarro World, granting Coulter impunity for her attacks and insults while complaining about the lack of civility from "the left" the moment someone responds in kind is not hypocritical.

Malkin closes by
1) Distorting what Chris Mathews said about Ann Coulter. He did not "criticize her looks." He asked panelists if they thought she was attractive, and he answered the question that he himself did not find her attractive, but he offered no criticism of the way she looked.
2) Implying that Keith Olberman is insane, a point Malkin seems to feel needs no defense or explication.

She again calls this priceless. What is so priceless about having the national discourse dragged into the gutter? Malkin provides as examples of the "unhinged" nature of "liberals" people responding to Coulter's demonization of those with whom she disagrees, while Malkin is herself oblivious to the extremist nature of Coulter's remarks. Here's the basic pattern, distilled to its essence:

Coulter to "liberal": You should be killed, traitor.
"Liberal": F_ck you.
Malkin: See? The luny left moonbats are unhinged.

In the Bizarro World, hate-mongering is "invaluable" for the "priceless" opportunity it provides Michelle to contribute to the "liberal"-hate market.

That's the short take on Malkin's approach. For a more in-depth analysis, see Dave Neiwert's 6 part series on Unhinged, and later today or tomorrow I'll do a follow up explaining the larger significance of the video and why this issue needs to be addressed.

Decompressed

By Barbara O'Brien

[Update: I have to agree with what Robert Perry writes at Consortium News.]

I’ve had a few hours to recover from the back-to-back conferences, YearlyKos in Las Vegas and Take Back America in Washington DC, and I’m trying to sort out What It All Means.

I left Las Vegas feeling revved, empowered even, but left Washington somewhat deflated. To be fair, I experienced TBA through a growing fog of fatigue. I also felt a tad demoted in Washington. For better or worse, I have a rep among other bloggers. Much of the Washington crowd still doesn’t “get” blogging, however, never mind recognize individual bloggers.

For example, at TBA I encountered one woman who was clearly confused by distinctions between blogging and commenting, solo blogs and group blogs, and wanted to know where she could “find” blogs. (Note that this woman was younger than I am. Although most people are these days.) I gave her my URL and suggested she just visit and read and click blogroll links to see for herself what blogs are. But this didn’t satisfy her; she wanted a detailed explanation of the blog-reading experience. I got the impression she wanted assurance that reading blogs would be worth her precious time. I finally walked away; lady, it is what it is. And I ain’t your monkey.

The TBA conference organizers recognized bloggers by giving some of us press credentials, free access to conference events (although they changed their minds about letting us into the Gala Awards Dinner) and space in the Exhibit Hall in which to blog. There was also a good panel discussion on blogging chaired by Glenn Greenwald. However, most of the Democratic Party operatives and progressive activists in attendance at TBA showed little interest in us. By now bloggers and Democrats should be having substantive discussions about what we can do for each other. By now the Democrats should know who some of us are, beside Kos. Although our reach as individual bloggers is limited, I think the blogosphere as a whole is making an impact. And we have the potential of making a bigger impact in the future. We’re a multifaceted resource and talent pool growing right under the Dems’ noses, yet they don’t seem to see us.

I was particularly discouraged by the progressive media workshop/panel on Wednesday. There was acknowledgment that a progressive media infrastructure to rival the right-wing noise machine is sorely needed. Yet the chief presenter seemed unable to think beyond tip-toeing through the minefield of conservative media infrastructure to, maybe, deliver the Democratic Party sales pitch to enough of the public to make a difference in the November midterm elections. The YearlyKos convention was all about Vision and Big Pictures. Throughout the TBA conference, however, I heard copious chirping about talking points and framing but little about effecting real change in America’s political culture to make it more habitable for progressivism. The “pros” seem resigned to life within the toxic political culture grown by the Right.

Frogs being slowly boiled to death, indeed. Of course, I realize that spending three days with random Democrats inside the Washington Hilton doesn’t provide a view of the whole landscape. Nor do I see precisely how the Dems and the blogs ought to be interfacing. I don’t want the leftie blogosphere to become an auxiliary of the Democratic Party. This is for the party’s good as much as ours. Although I ’spect most of the Washington Dems would disagree, I say they need our honest criticism and feedback as much as they need our links to donation pages.

I took one useful thing away from the progressive media workshop, and that was a copy of the July 2006 issue of In These Times magazine. An article titled “Welcome to the Media Revolution” by Jessica Clark and Tracy Van Slyke compared right-wing and progressive media:

Reinventing progressive media is an uphill battle. Progressives are competing against a ruthless right-wing media machine and a dominant commercial media sector that has honed audience-distraction tactics.

Many new progressive media projects have arisen in direct response to the dominance of the right’s media apparatus. As Rob Stein, David Brock and Eric Alterman, among others, have documented, right-wing funders and ideologues have over the past three decades created their own successful cadre of media and messaging organizations, from think tanks to magazines to radio and television outlets. They have infiltrated the mainstream media, rallying conservatives across the country.

“What conservatives thus enjoy,” writes Paul Waldman in Being Right is Not Enough: What Progressives Must Learn from Conservative Success, “is a wide-ranging, multimedia apparatus that when tapped will vibrate like a gigantic tuning fork.”

Progressive media organizations, on the other hand, operate independently of each other. Thus, progressive media have not developed a “unified progressive narrative.” Progressives and Democrats must stop focusing on the usual scattershot policy proposals and work together to develop that narrative and bring it to public attention, say Clark and Van Slyke. Until the Big Guns in the Dem Party and progressive think tanks get involved and form real partnerships with progressive media and the leftie blogosphere, however, I am, um, skeptical we’re going to see real change anytime soon.

And there’s no time to lose. Peter Daou writes that we’ve reached a “watershed moment” in American media.

Anybody who watched Ann Coulter’s June 14th appearance on the Tonight Show had to realize that it was a watershed moment in the war between the establishment media and the progressive netroots, a community fresh off the successful YearlyKos convention. It was also a signal to Democrats that liberal ideology can be denigrated with impunity. Had the words “Jew” or “Christian” or “Conservative” been substituted for “Liberal” we’d be waking up to a national scandal….

… Careful not to violate Godwin’s Law, I’ll refrain from the obvious comparisons, but what we’re dealing with here is a dangerous inflection point in American politics. When this kind of opprobrium is peddled by major media outlets, it’s high time that the Democratic establishment and the larger progressive community understand that this is a make-or-break showdown with the media.

As Peter says, bloggers have been alone on the front lines of this fight for some time. Indeed, it was our frustration with media as well as with politics that got many of us into blogging. (My original inspiration for starting my own blog was the late, great Media Whores Online.) But we’re way outnumbered. We need the Democratic establishment and the larger progressive community to join us in this fight. As Jamison Foser writes, the media shape the way Americans understand issues and politics. An “MSM” that respects Ann Coulter’s twisted ravings as serious political discussion is not capable of fostering serious political discussion. The media establishment puts liberals at an extreme disadvantage, and it’s going to take a lot more than framing and talking points to overcome that disadvantage.

Just one example of How Weird Things Are — in today’s Washington Post, David Ignatius writes that there may be new “gravity” in the political center; “For a change,” he writes, “the extreme wings of the two parties aren’t calling the shots.” Hello? Which “extreme wing” of any left-wing party has been calling any shots? Show me the raving Marxists or anarchists whose voices are heard in mass media, who have won elected office, or who have any bleeping power at all in Washington or anywhere else in America?

I don't mean to endorse or denigrate raving Marxism and anarchism; I’m just saying that we liberals and most Democrats are “extreme” only in contrast to the extremism of the Right. Genuine left-wing extremism is marginalized even by most of the American Left. In truth, that part of the Left that has any political influence in America are moderates with feet firmly planted in historically mainstream political traditions. Ignatius sees a conflict between opposing political extremes. But the reality is that an aggressive right-wing extremism has appropriated media to slander, discredit and eliminate the moderate liberalism that used to be the center in saner times.

Like I said, it’s going to take a lot more than framing and talking points to win this fight. Peter Daou continues,

This latest Coulter incident should be a wake-up call to the larger progressive community and to the Democratic leadership. Parading Coulter on national television is a statement from the establishment media that we don’t matter, that our ‘pressure’ is meaningless, that our voices are worthless.

What’s the proper course of action in response to this challenge? For the netroots, it’s to keep growing and organizing, to hammer away at those in the media who enable the sliming of 9/11 widows, to respond to such media transgressions with ferocity of wit and will, and to badger elected Democrats and progressive leaders about the media problem.

I say we bloggers have the ferocity, wit, and will; what we need is amplification.

More U.S. generals "surrender" - Specter's schizophrenia - book tour update

(1) Ever since Americans turned against the war in Iraq, proponents of the invasion have been desperate to find others on whom they could heap blame. Increasingly, they have been attacking American military leaders (i.e., those who actually have waged the war, rather than cheered it on from afar) as being insufficiently brave and resolute. Today, one of those fearless warriors, National Review's Michael Ledeen, shares with us a letter he wrote to General Michael Hagee, the Commandant of Marine Corps, in which Ledeen excoriates Gen. Hagee for taking action against the Marines responsible for the Haidatha massacre and for condemning the murder-celebrating Marine music video:

I'm dismayed by your recent behavior. . . .

It seems to me an outrage for you to brief the likes of Congressman Murtha before the investigation was complete, and even then you should have told him to wait, to let justice take its course.

It seems to me an outrage for you to reinforce the utterly false notion that your Marines are out of control by zooming off to Iraq to deliver sermons on proper ethics. . . .

This sort of preemptive surrender inevitably has a bad effect on the morale of the Corps, and does nothing to deter future political attacks. You have gained nothing except the contempt of the Corps' enemies, who know that if they can destroy the unique image of U.S. Marines, they will have taken a giant step toward defeating us in the current war.

So, Michael Ledeen, sitting in his office, accuses Gen. Hagee of "surrender" and helping "the Corps' enemies," whose goal is to "defeat us in the current war." And he thinks it's particularly outrageous that Gen. Hagee would consult with "the likes of John Murtha," a coward and traitor if ever there was one. If Hagee wants to talk about Marine discipline issues, he should do it with military heroes like Charles Krauthammer, Victor Davis Hanson and Ledeen, not "with the likes of" anti-military freaks like Murtha, who knows nothing about the Marines.

Ledeen obviously believes that Gen. Hagee needs an infusion of courage and a lecture on military values from the real warriors like Ledeen -- quite redolent of the time recently when Glenn Reynolds told us how no unique bravery is required to fight in combat; the true heroes are those who (like Reynolds, and Ledeen) exhibit "political courage."

It really is striking how so many war advocates insist that all sorts of military Generals and combat veterans are weak, spineless, and cowardly, and whose lack of fortitude aids our enemies. All of that is in contrast, of course, to the bravery and towering resolve of the war advocates, who alone are strong and brave enough to stand tall against our enemies, both foreign and domestic. Nobody has waged as vicious and limitless attacks on the character, integrity and bravery of American veterans and soldiers as the war proponents looking for people to blame for their own shortcomings and failures.

(2) Arlen Specter's schizophrenic relationship with the administration -- one minute he threatens them, the next he offers them full immunity for prior criminal behavior, and then threatens them again -- continues today:

Senate Judiciary Committee Chairman Arlen Specter cranked up his dispute with the Bush administration over executive power on Thursday, threatening to subpoena documents on the White House's warrantless surveillance program.

Specter said he had not received a response to his request that Attorney General appear before the panel this month to answer questions about the surveillance program and other touchy subjects — such as the FBI raid on a lawmaker's office last month. "I will ask for authorization for a subpoena if we do not get an adequate response," Specter told the committee. . . .

The Pennsylvania Republican, who won the administration's goodwill by ushering two of its nominees onto the Supreme Court in the last year, has engaged in an increasingly tense standoff with the White House over matters he believes could amount to abuses of executive power.

We're all aware of Sen. Specter's shortcomings, lack of resolve, character flaws, inevitable inability to follow through on his rhetoric, etc. But as I have pointed out before, I would really like to know which Senator other than Feingold has done more to cause these issues to be kept in the spotlight and prevented these scandals from being quickly swept under the rug. As horrendous as I find Specter's behavior, it's difficult -- and, I think, inaccurate -- to depict him as the root of the problem unless one is able to point to other Senators who are doing what you think Specter should be doing. Other than Feingold, I don't know of any. While Specter does nothing more than make noise about the administration's abuses of presidential power, at least he does that. That stands in sharp, and I believe rather favorable, contrast to most other Senators, in both parties.

(3) The book events I have been attending for this entire book tour have been uniformly superb - well-attended and filled with people who are genuinely interested in the issues discussed on this blog and in my book, and highly knowledgeable about them. That makes for truly enlightening discussions about the administration's unique abuses of power and the ways in which Americans can invent ways to check those abuses, particularly in light of the profound dysfunction and failures of our institutions which are supposed to be doing that -- our Congress, courts and national media.

The next event, which I anticipate will be excellent, is this Saturday night in Manhattan, beginning at 8:00 p.m., at the Upper West Side YMCA (The George Washington Lounge -- 5 W. 63rd St. (between CPW & Broadway)). I am speaking as part of the Writer's Speakers Series, and a substantial part of the event will be the question-and-answer/discussion session after I speak. I hope as many blog readers who live in or near NYC can attend.

On Monday (June 19), I will be on the Al Franken Show at 1:30 p.m., and then in Philadelphia that night for a Drinking Liberally event (whose events for the book have been uniformly superb). It's from 6:00-8:00 p.m, at Higher Grounds Cafe -- 631 North 3rd St.Philadelphia, PA 19123.

(4) Peter Daou reports that Karl Rove hilariously complained about the "hate and anger" which liberal bloggers are devoted to spreading, and analyzes those attacks in the context of the media's truly reverent treatment of Ann Coulter, that grand literary genius and political analyst. As always, Peter's media analysis is astute and unique.

Secrecy and security

By Hume's Ghost

"A ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens ... Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence. " - Judge Richard Cardamone, explaining his decision to uphold the unconstitutionality of the Patriot Act's National Security letters provision

"The government doesn't lightly relinquish the spoils of power seized under the pretexts of apocalypse. What the government grasps, the government seeks to keep and hold, and too many of its reformulated purposes fit too neatly with the Bush administration's wish to set itself above the law. Often when watching the offical spokespeople address a television audience, I'm reminded of corporate lawyers talking to a crowd of recently bankrupted shareholders, and usually I'm left with the impression that they would like to put the entire country behind a one-way mirror that allows the government to see the people but prevents the people from seeing it." - Lewis Lapham, Gag Rule: On the Suppression of Dissent and the Stifling of Democracy

Describing James Madison's belief that an absolutely essential condition for the American republic be that "no man is allowed to be a judge in his own cause," Gary Wills writes, in Explaining America,

No king, no legislature, no body at all should be put in a situation where interest has no overseer. The virtuous man will not want to be put in that situation. He welcomes the scrutiny of fair men. His virtue is not private, but public; on display, and asking to be tested.

Officials "derive their just powers from the consent of the governed," but the governed can not give that consent properly unless they are able to know what their governors are doing. In essence, the public is to be the ultimate judge of what actions are in the public interest, and to do this, they must know what those actions are. Our system of representational democracy is predicated on the notion that the public has knowledge of what it's government is doing so that it might make informed decisions at the polls.

Could the presidency of the Bush administration possibly be further removed from that ideal? Having its "virtue" displayed in public, to be judged by "the scrutiny of fair men" is the last thing that the administration wants. Indeed, since the President took office, it has been a matter of policy that this administration ask to be put in a situation where it would be a judge in its own cause, while also asking us to trust that it is privately virtuous.

There are so many examples of the Bush administration seeking to hide its actions behind a veil of secrecy (like former Attorney General John Ashcroft ordering federal agencies to refuse Freedom of Information Act requests as a matter of policy) that I find myself struggling to focus this post, so I will direct the readers attention to John Dean's Worse than Watergate, a polemic which does for the administration's secrecy what's Glenn's book does for the administration's lawbreaking, and will attempt to narrow that focus to a few examples here in order to make my point.

George Bush's first act upon hearing that he had been elected president of the United States was to order that his gubernatorial papers be sent to his father's presidential library. Texas law mandated that the state Library and Archives Comission be consulted, but GW Bush unilaterally decided that the role of the office of Peggy Rudd, the director and librarian of Texas's Library and Archives Commision, was to record his decision and live with it, despite Texas law mandating that the governor's papers be indexed and then made public, with requests for documents being answered within ten days of the request. His father's library was under the direction of the U.S. National Archives and Records which claimed that the papers were federalized so that Texas law no longer applied. A year later, Rudd won a legal victory and had the papers returned to Texas, but Governor Perry, Bush's handpicked succesor, and a new attorney general (also a Bush supporter) received the President's records for (slow) processing and claimed new exemptions under the law in order to withhold them from the public. One of the things that had been revealed in the window of time before the new governor blocked access to the papers was that Governor Bush and Alberto Gonzales had run a rapid rubber stamp program while reviewing death penalty cases. Obviously, knowing this is a dangerous threat to national security. This was a sign of things to come.

President Bush soon continued the trend

On March 23, 2001, Mr. Gonzales, the White House counsel, ordered the National Archives not to release to the public 68,000 pages of records from Ronald Reagan's presidency that scholars had requested and archivists had determined posed no threat to national security or personal privacy. Under the Presidential Records Act of 1978, the documents were to become available after Jan. 20, 2001, twelve years after Mr. Reagan left office. Mr. Reagan's administration was the first covered by the 1978 law.

...

On Nov. 1, 2001, President Bush issued an even more sweeping order under which former presidents and vice presidents like his father, or representatives designated by them or by their surviving families, could bar release of documents by claiming one of a variety of privileges: "military, diplomatic, or national security secrets, presidential communications, legal advice, legal work or the deliberative processes of the president and the president's advisers," according to the order.

President Bush intends to do whatever possible to hide his actions from scrutiny. At every turn, at every step, the administration seeks to act in secrecy, to prevent the public from being able to hold the administration accountable for its actions. Al Qaeda's attack merely provided the administration with the pretext to push for levels of secrecy that it had desired from the start.

As of March 2005, the rate of classification of information had increased 75% since President Bush took office, and as Steven Aftergood demonstrated, this is part of a larger pattern whereby the public is restricted access to information regardless of whether or not it is classified. As he puts it:

Information is the oxygen of democracy. Day by day, the Bush administration is cutting off the supply.

The administration has even gone so far as to attempt to reclassify information already in the public domain (a process started at the end of the Clinton administration)

The restoration of classified status to more than 55,000 previously declassified pages began in 1999, when the Central Intelligence Agency and five other agencies objected to what they saw as a hasty release of sensitive information after a 1995 declassification order signed by President Bill Clinton. It accelerated after the Bush administration took office and especially after the 2001 terrorist attacks, according to archives records.

But because thereclassification program is itself shrouded in secrecy — governed by a still-classified memorandum that prohibits the National Archives even from saying which agencies are involved — it continued virtually without outside notice until December. That was when an intelligence historian, Matthew M. Aid, noticed that dozens of documents he had copied years ago had been withdrawn from the archives' open shelves.

Looking into examples of the Bush administration's secrecy, one point keeps recurring again and agan, which is best expressed by John Dean: "their secrecy is extreme - not only unjustified and excessive but obsessive."

As an example of this obsessive secrecy, consider that after 9/11, when finally a congressional inquiry had begun into the government's failure to prevent hijackers with boxcutters from stealing planes and flying them into the World Trace Center and the Pentagon despite the Bush administration opposing the inquiry at every step, it was declassified that in July of 2001 intelligence warned that Bin Laden was determined to strike the United States. But at the same time, George Tenet ordered the congressional inquiry to not disclose whether or not the President had been made aware of this information - it was said to be a matter of national security.

This is transparent. What other possible reason could there be to keep secret this information other than the desire to hide the fact that the President had been alerted to the potential danger of an al Qaeda attack in the United States?

You see this pattern repeat itself over and over again. We invade Iraq and the claims made for the invasion were sytematically wrong, the administration opposes an inquiry. New Orleans is wiped off the map and an inquiry is opposed. What other reason could there be for this secrecy other than to block the administration from accountability for its actions?

We were told no surveillance would take place without a warrant. Congress was told that the administration had all the tools it needed to protect the nation. Secretly the administration had decided otherwise, had decided to use tools that it was not given legally, had decided that laws no longer applied to the President. How can such a private decision be a matter of national security? Is not the President obligated to at least ask the public and the rest of its government if he is to be king? At least Napoleon went through the pretense of allowing the public to vote him First Consul of France.

This is not a complicated matter, the administration claims the right to break any law, as it has demonstrated 750 times, so any discussion about amending laws and such is pointless. That's what so frustrating about Glenn's post yesterday - what point does it matter what Arlen Specter or anyone in Congress says about the law? The President has declared he will not be bound by laws. Here is the issue: the administration claims the power to act unilaterally (without bounds) in the name of national defense; that is either acceptable or it is not. The rule of law either applies or it does not. Either we are a democracy or we are not. As a New York Times editorial put it yesterday

Mr. Specter's lawyers have arguments for many of these criticisms, and say the bill is being improved. But the main problem with the bill, like most of the others, is that it exists at all. This is not a time to offer the administration a chance to steamroll Congress into endorsing its decision to ignore the 1978 intelligence act and shred constitutional principles on warrants and on the separation of powers. This is a time for Congress to finally hold Mr. Bush accountable for his extralegal behavior and stop it.

The administration has claimed that neither Congress nor the Courts can review its actions. Congress doesn't seem to mind very much, and the administration avoids the courts whenever it appears that it might be challenged. It claims "state secrets" would prevent a court from judging its actions. But this administration has lost the right to the benefit of the doubt. The right to keep secret the President deciding that laws no longer apply to him, that he can be a judge in his own cause, can not be a matter of national security. As Thomas Paine put it (quote borrowed from How Would a Patriot Act?):

in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king.

It has become apparent that "national security" is used by the administration as a synonym for its own private political interests, private political interests that would make George W. Bush king ... Madison's nightmare.

It is not transparency and openness that threatens our security, but obsessive and excessive secrecy. Removal of oversight of the government is a threat to our security. When our government operates in the shadows we have no idea whether or not what they are doing is in our interest. The sad, likely truth is that the events of September eleventh, 2001 could have been prevented if better analysis of the existing intelligence had taken place - intelligence that was gathered without the Patriot Act, without the NSA being authorized to spy on Americans without a warrant, without secret CIA prisons, without "enhanced interrogation tactics", without President Bush asserting the right to unilaterally decide when the Constitution is applicable. This administraton full of ideologues, immune from consideration of reality, deliberating in secret, hiding their motives from us, is what threatens us. Look at their track record. They were warned that their abandonment of the Geneva Conventions would invite abuse, they did it anyway. They were warned invading Iraq would require more troops, they claimed otherwise and fired the general who told them that. They were warned the invasion would cost over two hundred billion dollars, they claimed otherwise and fired the person that told them that. They were warned that there was no evidence linking Iraq to WMD's or al Qaeda, they claimed it anyway. They were advised to plan for a post invasion occupation, they decided not to for ideological reasons. They were warned that an insurgency would soon grow out of control in the newly occupied Iraq, they removed the CIA agent responsible for the report. Et cetera.

Reality does not affect their beliefs. They plan to shape reality with their beliefs.

So maybe it's fitting that yesterday the Senate Judiciary Committee approved an amendment to prohibit flag burning. If we're going to be a police state, we may as well start acting like it. Afterall, as Ed Brayton notes

One of the very first things that Hitler did upon seizing power in Germany was ban the burning of the German flag; the punishment was imprisonment. In China, where we all watched the student protestors at Tianenman Square burn the Chinese flag, their actions result in a minimum of 3 years in prison. The other two nations that punish those who burn their flag at the moment: Cuba and Iran.

Nevermind Bob Kerrey's silly belief that "real patriotism cannot be coerced." This is a brave new world, after all. The first amendment is a liability that we can no longer afford. Otherwise, George W. Bush might not be able to save us.

Specter falsely denied proposing amnesty for the Administration's illegal eavesdropping

Last Friday, Walter Pincus of the Washington Post reported that Sen. Arlen Specter had proposed legislation which included blanket amnesty for anyone who has violated FISA, i.e., a "provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law."

That same day, the ACLU issued a Press Release objecting that Specter was trying "to win administration support by . . . creat[ing] a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s direction under a claim of inherent authority." These reports created a limited but intense backlash -- there was abundant fury in the blogosphere over the notion that Congressional Republicans would attempt to shield the president and his aides from criminal liability arising out of their illegal eavesdropping conduct, and CNN's Jack Cafferty said that Specter "has turned out to be yet another gutless Republican worm cowering in the face of pressure from the administration and fellow Republicans. "

But almost immediately, that controversy became extremely confused and muddled because Specter went on CNN on Sunday and categorically and unambiguously denied the truth of these reports. When asked directly by Wolf Blitzer if he had proposed "blanket amnesty to anyone who authorized these wiretaps," Specter said:

Absolutely not. That was an erroneous report. If anybody has violated the law, they'll be held accountable, both as to criminal conduct and as to civil conduct. And in no way did I promise amnesty or immunity or letting anybody off the hook.

As I wrote on that day, the absoluteness of Specter's denial made it seem likely that the Post had simply erred in its reporting. Although both the Post and the ACLU reported that his legislation contained such a provision, Specter so categorically denied on national television that he had done any such thing, something he seemed unlikely to do if his proposed legislation really did contain such amnesty. This conflict could not be resolved over the weekend -- or until today -- because Specter's marked-up legislation referenced by the Post was not publicly available and, therefore, could not be reviewed to determine whether Specter was telling the truth.

I have now obtained (with the help of the ACLU) a copy of Specter's marked-up proposed legislation (.pdf), which makes quite clear that Specter simply was not telling the truth when he denied proposing amnesty to the administration. The bill in question was one which Specter substituted last week in the Judiciary Committee for the prior legislation he proposed back in March (the reason the new version was not available online was because -- according to the ACLU -- he introduced it only in the Committee, but not yet on the Senate floor).

In sum, Specter's legislation amends the provision of FISA which provides for criminal penalties, and then, astonishingly, makes those revisions retroactive all the way back to 1978 (when FISA was enacted). The effect and almost certainly the intent of those revisions is to immunize the President and anyone acting under his authority from criminal liability for violating FISA -- just as the Post and the ACLU correctly reported, and just as Specter falsely denied.

Section 801 of Specter's legislation is entitled "Executive Authority," and it specifically amends the criminal punishment provision of FISA (which is Section 109(a), (50 U.S.C. 1809(a)), as follows:

(1) General . . .

(B) FISA. -- Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended --

(i) in paragraph (1), by inserting "or under the constitutional authority of the executive" after "authorized by statute"; and

(ii) in paragraph (2), by inserting "or executed under the constitutional authority of the executive" after "authorized by statute."

(2) Retroactive effect -- The amendments made by paragraph (1) shall be construed to have the same effective date as the Foreign Intelligence Surveillance Act of 1978.

Currently, Section 109(a) of FISA provides that "A person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute . . . ." That means that anyone who eavesdropping on Americans without complying with the warrant requirements of the statute (FISA) is committing a felony. To amend this provision to include the phrase "or under the constitutional authority of the executive" after "authorized by statute," makes it legal to eavesdrop not only in compliance with FISA (i.e., by obtaining a warrant), but also under the "constitutional authority" of the President to engage in warrantless eavesdropping even if that warrantless eavesdropping is prohibited by FISA (which it is).

Put another way, since 1978 in this country, there has been only one way to legally eavesdrop on Americans -- by complying with FISA. This amendment adds a second way to legally eavesdrop on Americans -- without warrants, under the President's direction. And astonishingly, the amendments are made retroactive all the way back to 1978, which means that the President's illegal behavior during the last four years in ordering eavesdropping without complying with FISA's requirements will be cleansed of their criminal nature and made legal, as a result of this newly created "second way" of legally eavesdropping on Americans.

To make matters even clearer, Section 801 of Specter's proposed bill specifically provides that "Nothing in this Act shall be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities or communications of any person reasonably believed to be associated with a foreign enemy of the United States." That language tracks precisely the language used to define the parameters of the warrantless eavesdropping program, and it makes crystal clear that its intent is to declare legal the NSA program. And that provision is one of the provisions that has retroactive application back to 1978, which means the Specter bill goes back in time -- 28 years -- and transforms FISA from a statute which has always regulated the president's eavesdropping power into one which places no limits on that eavesdropping power of any kind.

I have already written about why retroactive amnesty is so pernicious and is a true sign of lawlessness. And I've also set forth the reasons why it is constitutionally dubious, at best, for Congress to attempt to retroactively legalize plainly criminal conduct on the part of our highest government officials by simply retroactively changing the criminal law to comport with their behavior. There is no point in repeating those arguments here, which really ought to provoke all sorts of outrage.

But what is extremely noteworthy -- and worth emphasizing -- is that Arlen Specter amended his legislation to include the most extremist provision imaginable (retroactive amnesty for criminal behavior), all in order to please the President's allies on the Judiciary Committee (led by Sen. Kyl) -- who, as always, are marching to the dictates of the White House, which obviously is willing to accept new FISA legislation only if it provides them with immunity from criminal prosecution for their lawbreaking.

But even more notable still is the fact that after engaging in this behavior, Specter went on national television and dishonestly denied that he was doing that. I suppose it's theoretically possible (although highly unlikely, to put it mildly) that Specter, a lawyer and former prosecutor, does not realize that his legislation contains an amnesty provision. Or perhaps he thinks there is some strained semantic justification for distinguishing this provision from what he means by "amnesty" (I could devise a couple of arguments to support such a distinction, but none which are anything other than patently frivolous -- see, for instance, here and here). But what seems far more likely -- really the only reasonable scenario -- is that Specter was so embarrassed by his amnesty provision once the Post revealed it that he simply denied that his legislation contained it even though it so plainly does.

Specter's dishonesty aside, these shenanigans reveal what the White House is really after. Their Senatorial minions are going to support NSA legislation only if it contains full amnesty for the lawbreakers in the administration. The White House will then "reluctantly" agree to a newly revised FISA, and will have full immunity from criminal prosecution. Specter will be the primary sponsor of this, and the media will drool over his "maverick" status and suggest that it's unreasonable to argue that Specter is acting as the obedient White House shill that he always, in the end, becomes. If even the independent, rule-of-law-loving Specter advocates amensty, then doesn't that show that it's reasonable?

The White House insists that it has clear legal authority for warrantless eavesdropping, so why are retroactive amendments to FISA's criminal provisions necessary at all? And if we stand by and allow the Republicans in Congress to legislatively exonerate the President and his aides from breaking the law, it is hard to imagine what we won't stand by and tolerate. If the President can break the law and then use his party's control over the Congress to grant him legislative immunity from the consequences of his criminal behavior, no hyperbole is required to say that the rule of law exists only as an illusion.

Fact-free Instapundit inflicts more false conventional wisdom on his readers

by Glenn Greenwald

(updated below -- including a reply to Instapundit's response (See Update V))

One of the most destructive attributes in our political dialogue is the mindless embrace of notions of conventional wisdom, which just get repeated over and over by those who are too lazy to think critically about anything. And there are few places where conventional talking points thrive with as much vibrancy as they do on Instapundit's blog. Here is what Instapundit had to say about last night's Democratic Senate primary results in Virginia, where Jim Webb defeated Harris Miller for the right to challenge Republican Sen. George Allen:

A reader emails: "Don't you think it's also bad news for the left fringe of the Democrat party? I think it shows that voters will not support the Howard Dean-Kos-fringe and it makes for interesting times as Democrats try to find a presidental (sic) candidate for 2008." Yes, when Democrats move to the center, it's bad news for both Republicans and the Democratic far-left.

This is so blatantly wrong on so many levels, but Instapundit can't interpret political events without reliance on this childish framework, so he uses it because he has no other option. The choice between Harris Miller and Jim Webb was not a choice between some far left candidate versus a moderate or conservative candidate. To the contrary, Miller is a corporate lawyer and telecommunications lobbyist who was recruited to run, and actively supported by, former Virginia Governor Mark Warner, a moderate to conservative candidate (see Update below). On almost every issue, Miller positioned himself as a moderate. As The Washington Post put it when endorsing him: "there is no doubting the thought he has devoted to his positions, which are on the moderate end of the Democratic Party's spectrum."

Worse still for Instapundit's "point," Webb -- the former Secretary of Navy in the Reagan Administration and life-long Republican -- was supported, not opposed, by what Instapundit stupidly refers to as the "the Howard Dean-Kos-fringe." John Kerry supported and actively campaigned for Webb, and Kos himself endorsed Webb, not Miller, and said this:

Tomorrow's big contest is Virginia, were VA netroots favorite (and my own) Jim Webb takes on former corporate lobbyist Harris Miller. It's one of those campaigns were both the local netroots and establishment agree on the better candidate -- like the folks over at Raising Kane who love the hard-charging fighting Dem, as well as establishment Democrats like Chuck Schumer and John Kerry.

The leftist ideologue socialist fanatic fringe lunatic Kos also made this point before the primary:

There are lots of ex-Republican Democrats out there. I'm one of them. Jim Webb is another. And over time, we'll get more. And there's no stronger messenger for that cause than Jim Webb himself. . . . I'll be blunt. If Harris Miller wins, there probably won't be much of a Senate race in Virginia in November.

So the truth is, as is so often the case, the precise opposite of Instapundit's statements. Kos himself supported the winning candidate. So did the "leftist fringe" national political figures like John Kerry. And Webb's defeated opponent, far from being some sort of Hero of the Left, was a run-of-the-mill corporate lobbyist who positioned himself as a moderate to conservative on almost every issue. And yet those unfortunate souls who trust Instapundit's "analysis" and believe what he says are walking around today laboring under the standard fantasy that Webb's victory was a repudiation of the "the Howard Dean-Kos-fringe" even though that "fringe" supported Webb.

This is just one more misleading Instapundit post about a relatively obscure primary race, so why does this matter? Because this same fiction is repeated over and over in all corners and, despite its glaring falsity, has the status of conventional wisdom among the national media. Anti-Bush bloggers are leftist ideologues. Their goal is to force the Democratic Party to adopt ideologically leftist positions and therefore will ensure its defeat. Mainstream political figures like Howard Dean and John Kerry -- whose views on most issues are supported by the majority of Americans -- are fringe, extremist leftists whom the anti-Bush bloggers love because of their leftist extremism. And all of them are radioactive losers whose influence and even mere existence are fatal to Democrats.

This is the same intellectual sloth and dishonesty which enables the Instapundit's of the world, to this day, to continue to depict Howard Dean as being some sort of leftist extremist when Dean is one of the least ideological political figures on the national scene and, to the extent he can be ideologically characterized at all, is to the right of most national Democrats on most issues and has been for his entire career. What specific views does Dean hold, or Kos for that matter, which can be characterized by any honest person as "extremist"? While this conventional wisdom is spewed, that question is never answered. But Republicans have pounded that smear drum for so long, and the media has passively ingested and then disseminated it so thoroughly, that the Instapundit's of the world have had that "point" engrained in their head and can never do anything but repeat it endlessly despite its complete separation from what is real.

All week, as the television pundits were forced by the success of YearlyKos to talk about a blogosphere that they plainly don't understand and would vastly prefer to ignore, one was subjected to this fiction over and over. Bloggers are pushing Democrats to the fringe "Left" -- inhabited by socialist revolutionaries like Howard Dean and Al Gore -- and their growing influence therefore poses a serious problem for Democrats, who have to move away from those sorts of extremist freaks if they have any chance whatsoever of finally ending their streak of being rejected by normal Americans.

It's not a surprise that Instapundit reflexively recites this trite world view, although it matters because he has a readership larger than most American daily newspapers. I wonder whether Instapundit (pundit@instapundit.com) will retract his false claim that the Virginia result represents a repudiation of the "the Howard Dean-Kos-fringe" given that this "fringe" supported the winning candidate. And I wonder further what has to happen for people like Instapundit and his intellectual twins in the national media to cease referring to individuals with plainly mainstream positions as constituting some sort of extremist fringe.

UPDATE: James Norton has published a superb op-ed in the Christian Science Monitor detailing the views of the Founding Fathers with regard to the treatment of war prisoners -- views which are, unsurprisingly, squarely at odds with the views of the current administration.

UPDATE II: As a reminder: I will be in DC tonight beginning at 6:30 p.m,, speaking about the book at an event sponsored by Drinking Liberally, at Mark & Orlando’s (2nd Floor Bar -- 2020 P Street NW). The details are here.

Tomorrow night (Thursday), I will be in New York for a book party at Rudy’s Bar & Grill -- 627 Ninth Ave. (between 44th and 45th Streets). It begins at 6:00 p.m. Several excellent bloggers based in New York have told me they intend to come, and it should be a worthwhile event. And on Saturday (June 17) at 8:00 p.m., I am speaking at the Writer’s Voice Series, at the West Side YMCA, The George Washington Lounge, located at 5 W. 63rd St. (between CPW & Bway).

UPDATE III: Libertarian Ronald Bailey of Reason, who has not voted for a single Democrat since 1972, explains today why he voted for Jim Webb and intends to support Democrats this year (h/t Hypatia). As I explained in this post some time ago, I think Democrats can count on support from people who aren't typically inclined to vote for Democrats but who view gridlock and balance as vastly preferable to the corruption and ineptitude generated by one-party Republican rule. Democrats ought to actively court people like this by emphasizing the virtues of partisan balance.

UPDATE IV: Apparently, Warner only supported Miller up until the point when Webb announced he would enter the race. Once that happened, Warner declared neutrality and participated in a fundraiser for Webb (having previously done so for Miller).

UPDATE V: Reynolds' reply to this post is about as coherent and honest as the original Reynolds post which prompted this. Contrary to his self-serving characterization, I didn't criticize him because he innocently "missed the fact that the Kos crowd had backed James Webb." The point is that he interpreted the results as a repudiation of the "the Howard Dean-Kos-fringe" without having any basis whatsoever for making that claim, because that cheap, trite "fringe" name-calling -- which is designed to demonize mainstream Democrats -- is the only framework people like Reynolds have for understanding political events.

Reynolds then misleads his readers into thinking that I posted this criticism of him only after he updated his post ("I updated it when Markos and others emailed me, but that didn't stop Glenn Greenwald from putting up a post savaging me for the error . . . "). In fact, I posted this well before he updated his post, an update of which I was unaware until much later due to the fact that I'm travelling on my book tour, don't regularly read Instapundit, and he provided no link to my post when updating his. It's highly likely that Markos was able to e-mail Instapundit to correct him only as a result of seeing my post (which Markos then linked to) or hearing from my readers.

In any event, the link to the Reynolds post in my post here takes the reader directly to the "updated" material, such that anyone clicking on it would see it. And the "update" never addresses the central point -- how Reynolds could expressly attribute these Virginia results to a rejection of the Kos-Dean "fringe" when there was never any even theoretical basis for telling his readers such a thing. He simply invented it out of whole cloth to fit in with his stunted understanding of political events. Nor does he address why he smears Howard Dean and Kos as being part of a "fringe" even though virtually every political view they have is well within the political mainstream.

In his reply, Reynolds also indulges in what has become the depressingly common and usually dishonest tactic of whining that he is being abused by "illiterate" e-mailers. He complains that he has been subject to a "steady trickle of mostly illiterate emails from Greenwald readers" (emphasis added). Given that my posts are typically lengthy and well-documented discussions of matters such as executive power theories and constitutional principles, I highly doubt that I can count many illiterate people among my readership. Such individuals would seem far more inclined to be attracted to bloggers whose "content" consists of a carousel of the same one-word, empty cliches spat out over and over ("Indeed. Interesting. Heh."). Other bloggers who have been the target of criticism of mine in the past -- including Jonah Goldberg and Joe Mancow -- have been honest enough to admit that the e-mails they received from my readers were both civil and substantive.

Finally, Reynolds claims that I "ha[ve] a thing about [him]." In response to this post, I received an e-mail from a prominent blogger bringing to my attention some amazingly hostile exchanges he had with Reynolds from a couple of years ago, and in response, I e-mailed back and wrote this:

I actually appreciate people like Michelle Malkin and John Hinderaker for at least having the courage of their convictions. They don't hide what they are.

But Reynolds' need to parade around as the moderate, reasonable libertarian - always promoting and applauding the grossest extremism while staying safe enough distance away from it to give plausible deniability - is inherently deceitful to its core.

Whether that qualifies as having "a thing" for Reynolds is really just semantics, but I will confess to finding the common tactics Reynolds uses -- for instance, labelling his political opponents part of the "fringe" even though it is Reynolds' pro-war views which are rejected by majorities of Americans, or linking to and promoting repugnant arguments only to then claim that he "only" linked to it when he is called to account -- to be the opposite of argumentative integrity and honesty.

Democratic totalitarianism

By Hume's Ghost

"... there is now a widespread tendency to argue that one can only defend democracy by totalitarian methods ... These people don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you. Make a habit of imprisoning Fascists without trial, and perhaps the process won’t stop at Fascists." - George Orwell, The Freedom of the Press

The strength and importance of How Would A Patriot Act? as a polemic is that it lays out a clear and easy to follow case that the Bush administration, acting on radical legal theory developed by John Yoo, has claimed for itself unlimited executive power to prosecute an indefinite "war on terror." Glenn develops this central premise by going through various administration scandals - the use of torture, imprisonment of US citizens without due process, NSA domestic surveillance in violation of the law, etc - and relating how they follow logically from John Yoo's belief that nothing, not Congress, nor the Courts, can limit the president's power to act in the name of national security.

Yet, despite this being, frankly, clear as day, there are still many who just don't see a problem with it. These are the people who believe in democracy in principle, but in practice, not so much. They are able to rationalize the administration's totalitarian methods of prosecuting the "war on terror" for two reasons: 1) they lack sympathy for anyone designated a terrorist target and 2) they fail to see the use of totalitarian tactics as a threat to themselves, they see it as a kind of benign, virtuous act necessary to defend democracy.

There are no doubt other factors, but I believe these two can for a large part account for why so many people seem so ambivalent about the use of totalitarian methods. They view complaints of violated civil liberties as hysterics, as worries of "phantom liberties" being lost because they don't perceive having lost any liberty themself. They are incredulous that the Bush administration could abuse such methods, the "noble motives" defense one might call this, and as an example of this defense I refer you to this entry where I respond to David Limbaugh's call for honest debate about the NSA surveillance program. Notice that by "honest debate" Limbaugh meant dismissing criticism of the program a priori on the grounds that the President couldn't possibly have any unpatriotic motives in authorizing the NSA surveillance.

This is something that has appeared obvious to me, but I find myself lacking the words to articulate a better response than the Orwell quote above. Which is why I would like to direct your attention to an article in the current issue of Free Inquiry entitled "Bush's Totalitarian Logic" in which the author, Lissa Skitolsky, has hit this proverbial nail on the head. She begins

There has been much outrcy from both the Left and the Right over the use of totalitarian tactics to fight the way against terror. However, these charges often sound hysterical and superficial; after all, we do not live under constant threat of imprisonment or death.

Skitolsky then makes the point that comparing specific measures taken after 9/11 to totalitarianism is the wrong comparison, one should be comparing the logic that justifies such actions to see the true similarities between these acts and totalitarianism.

The underlying logic of the Bush administration, says Skitolsky, is that "we must respond to threats before they emerge and so attain greater control over our security in an uncertain world." She borrows from Hannah Arendt to identifiy this as the idea that "all is possible." The description of this logic will sound immediately familiar

A government that operates accourding to the view that "all is possible" does not distinguish between an idea of what is or what may occur and the reality of what is ocurring, and so the validity of an idea is not tested by empirical evidence that could serve to verify or refute the idea in question. Rather, as Arendt explains, such a view embraces a flawed logic whereby an idea is proven true by the events that occur as a result of acting on that idea.

As I said, this is familiar. Recall reporter Ron Suskind's account of a conversation with a senior Bush advisor

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

Skitolsky writes that we see this logic at play in the invasion of Iraq, where the idea of Iraq as the central front in fighting terrorism was "proved" by the invasion itself. This logic is immune from criticism or rational consideration. Reality is what the state's actions define it to be.

[E]very new "fact" - whether the establishment of secret prisons or the endless violence and senseless deaths in Iraq - only serves to provide evidence for the validity of our policies and actions. If we are not attacked, then our policies are "proved" to be working and if we are attacked, then our policies are "proved" to be necessary.

The use of signing statements to usurp the legislative branch's power, Skitolsky says, "indicates that the word of the president now determines the meaning of and binding force of the law." This is a particularly devastating critique considering that earlier in the passage she had noted that a fundamental feature of the Nazi regime was that the word of the Fuhrer was law.

The next point is one that has been discussed here at length, and which has been fully exploited by people like Senator Pat "you don't have civil liberties if you're dead" Roberts.

That our national "security" is always invoked as the ultimate justification for every extra-legal measure only obscures the fact that we are, in fact, much less secure than before the war in Iraq and the pasasage of the PATRIOT Act. That so many Americans affirm the right of the president to suspend civil liberties for the sake of this much needed and elusive "security" only confirms that our values have changed; no longer willing to die for the sake of our democratic ideals, we are now willing to indefinitely suspend those ideals in order to avoid an unexpected death."

Speaking about the warrantless NSA surveillance program Skitolsky explains how Vice President Cheney's contention that the program helps "prevent possible terrorist attacks" is circular totalitarian logic that justifies the program on the grounds that it might prevent a possible attack. She also notes that "in a world where 'all is possible,' facts take a backseat to possibilities, and, since every citizen is a possible terrorist, then every citizen is a possible threat and so also a possible detainee."

The possibility than any citizen might be a terrorist provides the rationale for making every citizen the target of surveillance. And since the world is full of possible, if not actual, threats, preemptive war threatens to turn into perpetual war, perpetually justifying the police state powers claimed by the administration.

The article is worth reading if you can get your hands on a copy.

The whole world changed in two weeks

(updated below)

George Bush paid a surprise visit this morning to Iraq and, according to the immediately solidified media consensus, this is but the latest step in the heroic political comeback of George W. Bush, and yet another sign that things are "turning around" in the war. It is always so striking how heavily this administration relies upon political theater, and how eagerly and giddily the national media consumes it. In just the first few minutes of coverage, scores of reporters pranced across the television set struggling to contain their excited admiration for the President's audacious survey of his conquered land.

No matter how many times one flips through news channels this morning, one hears the same thing. The new Iraqi government has been formed. We killed Zarqawi. Bush has a "new team" in place. Karl Rove has been "cleared" in the Plame matter. Polls after Zarqawi's death show an "uptick" in support for the war. And now the President plans a secret mission to visit Iraq in order to meet with the new Prime Minister. Happy days are here again.

The media is desperate to find "big stories" every day. As a result, events which are so plainly inconsequential from a perspective which spans more than the last ten minutes of world events -- such as Bush's stunt this morning in secretly materializing in Baghdad -- are endlessly seized upon as evidence of some grand world change. The president's approval rating has been humiliating low and collapsing for almost a full year now, but one new poll shows a two-point increase to still-embarrassing levels of unpopularity, and -- presto! -- the President is recovering and is becoming popular again. Every event is reported and analyzed based exclusively on what has happened in the last five seconds, with the events of the prior week, or month, or year, all but ignored.

Our occupation of Iraq is three years old. As of two weeks ago, the long-standing consensus outside of the ever-dwindling circle of True Believers is that the Iraq invasion was a failure -- a mistake -- and the best we could hope for was to figure out a way to extricate ourselves from that country without triggering even worse disasters. For months and months, polls have showed that solid majorities of Americans believe the war was a mistake. That consensus didn't arise as a result of a single event, or a report of a car bomb, or because one bad thing happened. It was because the war itself has been failing fundamentally. Nothing that we wanted to accomplish was actually being accomplished. Everything we said before the war about why we needed to wage it turned out to be false and has been discredited. Far from winning "hearts and minds" in the Muslim world, few things have harmed how we are perceived in that part of the world (supposedly the current aim of our war effort) more than our occupation has.

These are fundamental, deeply entrenched problems with our war effort. But to the media, a photo op here, a cosmetic personnel change there, and the death of a single terrorist -- and all of those problems magically vanish. In two short weeks filled with melodramatic, exaggerated media events, both the Iraq war and the president's deep political problems have fundamentally improved. Big news! The President has turned all of this around. He is now bold and successful again. And his oh-so-brave flight to Iraq symbolizes how strong and successful he is. How long before we hear from Brit Hume or Candy Crowley about some apocryphal anecdote about the covert Air Force One flight or the folksy but audacious comment made by the Commander-in-Chief when he came up with this idea and insisted that he go despite the urgent pleas from his aides that it wasn't safe enough?

The realities are ignored in favor of the breathless media events. The fact that Iraq is such a dangerous and anarchic place -- a full three years after our invasion -- that the President still can't visit except by unannounced theater demonstrates how disastrous the situation is there, not how successful our occupation is. And the fact that a single poll shows the President's pitiful approval ratings increasing by 2% in the wake of non-stop media adoration over the Zarqawi killing hardly shows some political reawakening, particularly since several other polls show the Zarqawi killing having no effect whatsoever on the president's shattered approval ratings.

Iraqi death squads? Iranian control of internal Iraqi affairs? Abu Ghraib and Haidatha and the invasion itself causing Middle Eastern Muslims to think even worse of the U.S.? The destruction of U.S. credibility? All of that was interesting for awhile, but now, none of it matters, because the President staged one of those exciting movie events again, Karl Rove isn't going to prison, and the USA Today poll shows a two-point increase in the President's approval rating after he bagged a bad guy. We are seeing a new and emboldened president and a new and successful war. The pictures have been so dramatic and this is all so very, very exciting indeed.


UPDATE: According to the Times, nobody in the Iraqi government, including the Prime Minister, was trusted with the information that Bush was coming. They were not even told until after he arrived. He's going to stay a whole "five hours" in the country, and is confining himself to the heavily fortified Green Zone. These plans don't exactly suggest that the administration believes that Iraq is secure, to put it mildly.


UPDATE II: Jon Henke at QandO says that I'm "missing the secondary importance of these events. Not that Bush is somehow brave or popular for visiting Iraq — that is quite irrelevant — but that these things are happening because there are important political accomodations—progress—being made in Iraq." His point that war opponents may be too slow to recognize improvements in Iraq (just as war supporters refused to recognize the succession of failures) is fair enough, but I hardly see how the formation of a new government, by itself, constitutes progress of any kind, let alone meaningful progress in the context of the deep and fundamental problems in that country.

Iraq had a government prior to this one which was subservient to the Iranians and practiced death squad tactics with an enthusiasm which rivaled Saddam's regime. The creation of a new government is not progress until one knows how it will govern, the actions it will undertake, the alliances it forms, etc. Put another way, until we are closer to achieving our claimed goals -- (a) a democratic Iraq that is our ally and (b) an improvement in how Middle East Muslims perceive us -- it is baseless to talk as though we are making "progress." The mere formation of a new government does not, in and of itself, bring us closer to those goals.

(Speaking of QandO, there is a provocative guest post by Mona, who posts in Comments here under "Hypatia," concerning how the Schiavo matter was the first of many events to expose the fundamental incompatibility between Republicans and principled libertarians. It is a post which I highly recommend. It has led to all sorts of conflicts and reactions -- a reflection, I believe, of the real (under-exploited) vulnerability Republicans have as a result of being taken over by the most un-libertarian wing on the political spectrum).

Orwellian Doublespeak

By Anonymous Liberal

That's the phrase the executive director of the ACLU, Anthony Romero, used to describe the arguments put forth by the Bush administration today in a hearing before a federal judge in a case challenging the legality of the NSA's warrantless surveillance program. It's hard to think of a more apt description.

The administration's lawyers told the judge that "the evidence we need to demonstrate to you that [the NSA program] is lawful cannot be disclosed without that process itself causing grave harm to United States national security." Therefore, they contended, the case must be dismissed.

Alternatively, the government argued that the case should be dismissed because the plaintiffs have failed to establish that they personally were spied upon under the program (and therefore lack legal standing to sue). The administration claimed its hands were tied in this regard as well: "The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is. Indicating that someone is not subject to surveillance is itself revealing."

Got that? A suit alleging that the Bush administration is engaged in ongoing, widespread violations of our criminal laws must be dismissed because the alleged wrongdoer, the Bush administration, asserts that any adjudication of the issue would be counterproductive. In other words, under the administration's legal theory, the administration gets to determine unilaterally which of its actions will be subject to judicial review.

And while it assures us that the program is perfectly legal, the administration claims it cannot even divulge whether the named plaintiffs (Christopher Hitchens, Larry Diamond, etc.) were spied upon without harming national security. As Jack Balkin put it:

If the issue were not so grave, the government's
arguments would simply be farcical. If the federal
judiciary accepts the government's argument to
dismiss the case without requiring the government
to make somewhat finer grained distinctions about
what it can and cannot disclose, it might as well
close up shop. . . .

Letting the government march into court and shut
down inquiries into its possibly illegal actions on its
mere say-so creates the worst of bad incentives.
If the government can do so in this case, it can and
will do the same thing whenever the legality of its
actions is challenged in the future, and then we will
be well down the road to the destruction of our
constitutional system of checks and balances.
What is at stake in this case is the principle that the
Executive, like all other government servants, is
subject to the rule of law.

This is all unquestionably true, particularly with respect to a case such as this one, where all the legally relevant facts are already in the public domain. There are undoubtedly many details about the program that have not yet been reported, but the administration's claim that these details are somehow crucial to the adjudication of the legality of the program is entirely disingenuous.

The President and the Attorney General have publicly admitted that the NSA program involves exactly the sort of warrantless surveillance which FISA forbids. This is not in dispute. They claim, however, that the president has the inherent authority under article II and the statutory authority under the AUMF to disregard FISA's prohibitions. Those are purely legal arguments, the resolution of which in no way depends on the as-of-yet undisclosed details of the program.

So even if we take the administration's word that disclosure of these remaining details would be harmful to national security, it's hard to see how that matters. The government should not be allowed to invoke the "state secrets" doctrine to dispose of a case that can be litigated without reference to those "state secrets."

The position taken by the administration in this case is, quite simply, antithetical to the rule of law. The administration is not only claiming the power to disregard duly enacted laws, but to permanently exempt such decisions from judicial scrutiny. If it is successful in this endeavor, the damage to our system of government will be extensive and long-lasting.

Publishing secrets

By Hume's Ghost

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." - James Madison

In an editorial for the Washington Post yesterday, associate editor Robert Kaiser wrote what is so far one of the best and most important explanations for the publication of classified material to date in a major American newspaper. I'll here highlight a few points.

Kaiser begins by listing stories that have been revealed that the White House intended to keep secret.

Thanks to resourceful reporters, we have learned a great deal about the war that the administration apparently never intended to reveal: that the CIA never could assure the White House that Saddam Hussein's Iraq actually had weapons of mass destruction; that U.S. forces egregiously abused prisoners at Abu Ghraib; that the United States had a policy of rendering terrorism suspects to countries such as Egypt and Jordan where torture is commonplace; that the United States established secret prisons in Eastern Europe for terrorism suspects; that the National Security Agency was eavesdropping without warrants on the phone calls of countless Americans, as well as keeping track of whom Americans called from home and work.

All of these stories have something in common: they all reflect negatively on the administration. Which leads Kaiser to his next point, that "secrecy and security are not the same," where he cites the Nixon administration's attempt to stop the publication of the Pentagon Papers as a matter of national security.*

The Nixon administration was in power, and it went to court to block publication on grounds that revealing this history would endanger the nation. A court in New York enjoined the two papers from publishing the information for several days.

But the Supreme Court decided, 6 to 3, that the government had failed to make a case that overrode the constitutional bias in favor of publication. The man who argued the case was Solicitor General Erwin N. Griswold. Eighteen years later, Griswold wrote a confession for the op-ed page of this newspaper: "I have never seen any trace of a threat to the national security from the publication [of the Papers]. Indeed, I have never seen it even suggested that there was such an actual threat."

Next, Kaiser explains the careful steps that are taken to assure that a story about classified information will not hurt national security, noting that the Post's reporters consult with the government before publishing classified information, often agreeing to protect secrets that are said to be a matter of national security. He explains that there is a common sense difference between the "gratuitous revelation of secrets" and publishing information that raises important issues for American voters.

The bottom line, though, is that the public must know what it's leaders are doing to be able to hold them accountable for their actions, and that:

no single authority should be able to decide what information should reach the public. Some readers ask us why the president's decisions on how best to protect the nation shouldn't govern us, and specifically our choices of what to publish. The answer is that in the American system of checks and balances, the president cannot be allowed to decide what the voters need to know to hold him accountable. A king may have such power, but the elected executive of a republic cannot, or we will have no more republic.

Kaiser next mentions Attorney General Alberto Gonzales's statement that the administration is considering prosecuting journalists for violations of espionage laws, which he recognizes as an act of intimidation. I digress here for a moment to quote from National Review Online contributing editor Jonathan Adler (cowritten with Michael Berry), whom I believe has addressed this issue as well as anyone else, and, indeed, perhaps better than anyone else, since Adler argues from the perspective that even if you support the President's actions, such an intimidation of the press will set a precedent that would allow future presidents to hide actions that you do not approve of.

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.

Publishing classified information is not the same thing as stealing state secrets or spying for the enemy. There is a distinction between clamping down on government employees who leak sensitive national security information and targeting the reporters who publish those leaks. It is one thing to question the wisdom or propriety of publishing sensitive national-security information, or to allege media bias. But it is quite another to call for the criminal prosecution of journalists for reporting on matters of public concern, even when those matters implicate national security. Not every embarrassing or unfortunate disclosure is a criminal act.

Returning to Kaiser, he closes with a poignant point from Justice Hugo Black's Pentagon Papers opinion

"The government's power to censor the press was abolished [by the First Amendment] so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people."

In related news, Nat Hentoff, who is probably more aware of the threat that the Bush administration poses to civic liberty than any other journalist, writes in his latest Liberty Beat column about the "states secrets" privilege, the "Bush administration's favorite means of staying in the shadows of the parallel legal system it keeps on inventing."

If it were not for reporting like that of the Washington Post (and of reporters like Charlie Savage) we would not even know about this parallel legal system in the first place. But does not the American public have a right to know if its government has decided to choose for itself a different sytem of government that the one chosen by the people, the one enshrined in the Constitution?

*The reporter Daniel Ellsberg, the man who broke leaked the Pentagon Papers story to the NYTs has written an article for the LA Times today explaining why he published leaked them. (h/t Paul Rosenberg, for pointing out my error).

Judiciary reminds Bush administration that it exists

by Glenn Greenwald

This morning, a federal judge in Michigan is hearing a potentially significant Oral Argument on the legality and constitutionality of the administration's warrantless eavesdropping program. The lawsuit was brought by the ACLU on behalf of Arab-Americans in the Detroit area and others who claim that the mere existence of the program violates their free speech and privacy rights by making them reluctant to speak freely, due to fear of having their private conversations illegally intercepted by the Bush administration. The hearing this morning is to argue the plaintiffs' motion for an order compelling the administration to immediately cease its warrantless eavesdropping.

The lawsuit cannot maintain a direct attack on the legality of warrantless eavesdropping because it is very difficult to find a plaintiff who has "standing" to challenge the program, because nobody knows who has been the target of the eavesdropping and, therefore, no individual can prove that they were injured by the program. The theory of the lawsuit -- that its mere existence deters citizens from freely exercising their free speech rights -- is a mildly creative tactic for overcoming this legal hurdle. The lawsuit is an attempt to enable the federal judiciary to adjudicate the legality of the NSA program even in the absence of a plaintiff who was demonstrably subject to warrantless eavesdropping.

Although I am not, for a variety of reason, particularly optimistic about the likelihood that this suit will yield meaningful results, there are two significant developments to note. The first is that the District Court Judge presiding over the suit agreed to hear the ACLU's motion on the substance of the claim even though the Bush administration -- as it always does in these cases -- frivolously invoked the "state secrets" doctrine in demanding that the lawsuit be dismissed. Typically, once the Government invokes that doctrine, everything else is put on hold and, almost always, the court then dismisses the lawsuit, on the ground that the Executive branch knows better than the judiciary what will jeopardize state secrets.

Here, though, the Judge ruled that she would first hear the plaintiffs' Motion to enjoin the warrantless eavesdropping program (which was filed before the administration's Motion to Dismiss based on the "state secrets" doctrine), and only then hear the administration's motion to dismiss. Thus, for the first time ever, a federal court this morning is entertaining substantive arguments as to the legality of warrantless eavesdropping.

It is possible that the court's decision to hear this motion was a purely procedural ruling -- i.e., that because the plaintiffs' motion was filed first (before the administration's motion to dismiss), it ought to be heard first. But it seems far more likely that there is a substantive aspect to the court's refusal to simply freeze everything and listen to nothing other than the "state secrets" claim. Even once the court ruled that it would hear the plaintiffs' motion first, the administration continued to argue vigorously that the court is required to hear its "state secrets" motion first:

Justice Department lawyers filed a new motion June 2 asking the judge to clarify her order and to once again consider their arguments on standing and "state secrets" before considering any other issue. Taylor is expected to respond at today's hearing.

If the plaintiffs overcome the government's argument, it will be highly unusual. Justice Department attorneys almost always prevail when they invoke the "state secrets" privilege, even when judges acknowledge a plaintiff raises serious issues.

The judge's refusal to adhere to that request seems to signal that the judge does not view the mere recitation of the words "state secrets" as a signal that her power to rule has been magically stripped away without any analysis as to the validity of that claim. It may be a small rumbling indicating that the judiciary -- like a handful of members of Congress -- are beginning to find the courage to assert their institutional role in our government.

Here, the very invocation of the "state secrets" doctrine by the administration is simply ludicrous. The President already acknowledged the existence and substance of the program, and the lawsuit's theory is that this knowledge, by itself, chills plaintiffs' free speech and privacy rights. No further disclosures are needed to adjudicate the legality of the government's conduct. But no matter. Judges almost always defer to the "state secrets" claim. But perhaps some courts will start to recognize that the doctrine here -- like so much else in our political life - is being radically exploited by an administration which virtually never cares about national security but acts to protect only its political interests:

The privilege has been used most often by officials in the executive branch of government, said William G. Weaver, an attorney and a political science professor at the University of Texas, El Paso, who has co-written a scholarly article on the subject."It is the most powerful privilege available to the president," Weaver said. "If it is properly invoked, it wins every single time."

Before the Sept. 11 attacks, Weaver said, government lawyers generally used the privilege at the instigation of mid-level officials who did not want a program's operational details revealed.

In recent years, though, it has become "a top-down enterprise," he said. "The privilege has been transformed into a political device to protect the president from embarrassment."

To the extent that this lawsuit chips away even minimally at the prior invulnerability of this manipulative tactic, it will have contributed substantial value.

The second notable aspect of this development is the mere existence of the argument itself. The principal focus of the NSA scandal has been on political and Congressional developments -- the machinations in the Senate, the prospect for investigations and new legislative cover-ups, etc. But when we have a president who is systematically and deliberately breaking the law, the judiciary has a substantial role to play in checking that illegal behavior.

Although the judiciary has been at least as deferential over the last five years as the meek and compliant Congress has been, judicial challenges to the administration's lawlessness provide, at least in theory, a separate mechanism for holding the administration accountable for its lawbreaking. The fact that the administration is forced to defend the legality of its behavior in a federal court this morning is a helpful and necessary reminder that we are supposed to have other branches of government imposing checks and limitations on the lawlessness of the president.

UPDATE: The dates and events for my book tour are now posted on the Working Assets site, which updates the schedule regularly as more events are confirmed. I'm currently in Washington and will be at a book signing tomorrow, from 10:45-11:00 a.m., at the Washington Hilton Hotel, followed by a panel discussion of the blogosphere from 11:00 a.m.-12:15 p.m. as part of the Take Back America Conference.

After DC, I will be in New York and will post the events then. Just a couple of notes: (1) This Saturday, June 17, at 8:00 p.m., I am doing a book talk/book reading at the Upper West Side YMCA (5 W. 63rd Street) as part of the Writer's Voice Series. That should be a great event, and I hope readers of this blog in NYC will attend; (2) I will be on the Al Franken Show on Monday, June 19, from 1:30-2:00 p.m.

Combatting Media Narratives

By Anonymous Liberal

In her Sunday column--entitled "Al Gore's Convenient Fiction"--Debra Saunders dredges up a highly personal and completely baseless story meant to impugn Al Gore's integrity. Saunders writes:

Just 10 years ago, Gore told the Democratic
National Convention that after his sister Nancy's
needless death in 1984 from lung cancer, he
committed himself "heart and soul into the cause
of protecting our children from the dangers of
smoking." In his new film, Gore again dredges up his
sister's death and how it led his once tobacco-
growing family to turn away from tobacco.

After the DNC speech, reporters with memories
intervened. America learned that contrary to his
rhetoric, in 1988 Gore campaigned as a tobacco
farmer who told his brethren that "all of my life," I
hoed it, chopped it, shredded it, "put it in the barn
and stripped it and sold it." The year his sister died,
Gore helped the industry by fighting efforts to put
the words "death" and "addiction" on cigarette-
warning labels.

Saunders then explains:

Let me be clear: The problem with Gore is not that
he is a hypocrite. The problem with Gore is that
he has no idea he is not Lancelot. He has this scary
ability to block out any facts that make him less
than a perfect, selfless eco-hero, and in his need to
present himself as the world's savior, he'll say
anything -- no matter how hysterical.

But there's a problem with Saunders' story. It completely misrepresents what Gore said in his 1996 speech. Saunders writes "Gore told the Democratic National Convention that after his sister Nancy's needless death in 1984 from lung cancer, he committed himself 'heart and soul into the cause of protecting our children from the dangers of smoking.'" This sentence is clearly intended to convey to the reader that Gore claimed to have made this commitment the moment his sister died.

But here's what Gore actually said in his speech, after describing the ordeal his sister went through:

Tomorrow morning another 13-year-old girl will
start smoking. I love her, too. Three thousand
young people in America will start smoking
tomorrow. One thousand of them will die a death
not unlike my sister's, and that is why, until I
draw my last breath, I will pour my heart and soul
into the cause of protecting our children from the
dangers of smoking.

Notice that Gore clearly made this pledge to the audience, that night, in the future tense. He was not claiming to have made such a pledge the moment his sister died, as Saunders' column falsely implies. She took the quote from his speech entirely out of context.

In fact, Gore acknowledged candidly at the time that it took quite a while for the meaning of his sister's death to sink in. A New York Times article published the day after his convention speech noted:

Mr. Gore said today that he ''felt a numbness'' after
his sister's death that made it hard to translate her
illness into personal and policy decisions. ''It takes
time to fully absorb the most important lessons in
life,'' he told reporters at a luncheon today.

And while the article discussed Gore's slow evolution on tobacco issues during his political career, it also noted, contra-Saunders, that "[a]fter his sister died, Mr. Gore became an ardent Congressional proponent for cigarette warning labels"*(see postscript). So Saunder's smear is completely baseless. Gore never claimed to have had an epiphany at his sister's deathbed. He candidly admitted that his thinking evolved over time as the meaning of her death became clearer to him.

Saunders' column is merely the latest in a long line of manufactured stories intended to portray Al Gore as dishonest or prone to exaggeration. However, the fact that these stories are made up has not stopped them from gaining currency. Most Americans would be quite surprised to learn, for example, that Al Gore never actually claimed to have "invented the internet."

Often these stories are the handiwork of partisans like Saunders and are carelessly repeated by the mainstream media, eventually becoming the accepted truth. But, as Bob Somerby of the Daily Howler has exhaustively chronicled, many of the stories about Gore were not invented by partisan apparatchiks, but instead by mainstream media scribes and, occasionally, self-proclaimed "liberal" columnists and pundits.

What happens, as near as I can tell, is that through some combination of intentional partisan framing by political operatives and the press corps' pre-existing feelings toward a candidate, a narrative is born. In the case of Gore, particularly in the 1999-2000 timeframe, these two forces combined to form a sort of perfect storm. The press never really liked Gore, and his political opponents were determined to portray him as dishonest and inauthentic. As a result, the narrative of Gore as serial exaggerator emerged. Any inaccurate statement he ever made, no matter how innocent or trivial, was trotted out as evidence of Gore's pathological need to inflate his own importance. When someone offered forth a new example that fit this narrative, it was uncritically accepted as true and repeated endlessly, even if Gore had never in fact made the statement in question.

And this phenomenon sometimes works against Republicans too. Remember Dan Quayle? Though I'm sure Quayle is no genius, he is certainly not the dunce that he was mercilessly portrayed as in the media. But that was the prevailing media narrative, so any story, no matter how trivial, was trotted out as evidence of Quayle's utter stupidity. Though many of the most embarrassing stories and quotes turned out to be inaccurate, as with Gore, no one ever bothered to report it. The damage was done, the conventional wisdom had congealed.

Once the media has settled on a narrative, it is very hard to change it. Al Gore's recent re-emergence into the national spotlight has resulted in some uncharacteristically favorable press coverage. But Gore's conservative detractors, like Saunders and the National Review's Jonah Goldberg are trying very hard to reassert the old Gore narratives. And mainstream journalists (and even liberal commentators like Frank Rich) have demonstrated recently that the old Gore narratives still shape their views of the man.

But I'm cautiously optimistic that this phenomenon can be more effectively combatted and contained in the future. The reason for my optimism is the emergence of the blogosphere as a factor in American politics. In the past, the proliferation of false anecdotes and stories was enormously aided by the fact that, more often than not, no one was making any attempt to correct the record, at least until it was too late. But the emergence of the internet and bloggers allows, at least potentially, for real-time fact-checking of media accounts. These days, when someone makes up a story or misrepresents what a candidate said, there is a far greater chance that someone will discover the misrepresentation and write about it. If the misrepresentation is sufficiently egregious, it can trigger, relatively quickly, a chorus of blog posts exposing it and a barrage of angry emails to the media outlet responsible for airing it. Even when this doesn't result in a retraction, it often highlights for others in the media the dubious nature of the story and provides some incentive not to repeat it (if for no other reason than to avoid being deluged with angry emails). In this way, many false stories can be nipped in the bud, before they ever have the chance to solidify into conventional wisdom.

In a long and comprehensive examination of this very subject over at Media Matters, Jamison Foser made the following important observation:

No matter who emerges as a progressive leader, or
a high-profile Democrat, they're in for the same
flood of conservative misinformation in the media.
Too many people chalk up outrageous media
treatment of, say, Al Gore or John Kerry to the
men's own flaws, pretending that if they were better
candidates, they'd have gotten better press
coverage. That's naive. The Democratic Party could
nominate Superman to be their next presidential
candidate, and two things would happen:
conservatives would smear him, and the media
would join in.

That's undoubtedly true, and it's something that anyone interested in the success of future candidates must internalize. There are no perfect candidates and most of the ones the Democrats have put forth in the past, though not without their flaws, were not inherently inferior to their Republican rivals. It's unfortunate that the fate of important policies often depends on the perceived personal attributes of the candidates who champion them, but that's the reality of the world we live in, particularly when it comes to presidential campaigns.

But in the age of internet, we are not entirely powerless as the 'forces that be' construct their narratives about our next generation of candidates and leaders. We have the power, through vigilance, to ensure that the media's depiction of candidates tracks closer to the actual facts than it has in the past. It's important, as we get closer to 2008, that bloggers pay close attention to emerging anecdotes and stories about the presidential contenders and fact-check them thoroughly. False stories and quotes must be confronted at an early stage, before they have been repeated enough times to gain the aura of truth.

*Postscript: In her column, Saunders writes: "The year his sister died, Gore helped the industry by fighting efforts to put the words 'death' and 'addiction' on cigarette-warning labels." This is misleading on a number of levels. First, the legislative wrangling Saunders is referring to took place in early 1984, as evidenced by this June 1984 National Journal article describing it. Gore's sister died in mid-July 1984. So the events Saunders is pointing to as evidence of Gore's hypocrisy took place BEFORE his sister died. Second, and more importantly, Gore was in no way acting as a shill for the tobacco industry. At the time, the industry was pushing hard against the proposed warning label legislation and might well have succeeded had Gore not stepped in and used his clout among tobacco-state politicians to broker the compromise that eventually allowed the legislation to pass. If anyone's interested in a balanced, contemporaneous account of Gore's actions, I suggest reading the 1984 National Journal article cited above, which includes a brief profile of then-Congressman Al Gore and his views regarding the tobacco industry.

CLARIFICATION: Above I wrote: "This sentence is clearly intended to convey to the reader that Gore claimed to have made this commitment the moment his sister died." In fact, the sentence itself only suggests that Gore claimed to have made this commitment at some time in the past; it does not necessarily imply that he made it at the time of his sister's death. This, of course, doesn't make her sentence any less false, but I believe in being precise. My point remains the same. She misrepresented a future pledge as a claim of past commitment.

Morever, while the sentence itself does not necessarily imply that Gore's alleged commitment coincided with his sister's death, the overall context of the piece certainly does. Otherwise, Saunders argument would make no sense. The events she points to as evidence of Gore's dishonestly did not happen in or around 1996, but much earlier (some even before his sister's death). If she was not suggesting that Gore claimed to have made this commitment prior to those events, then her argument completely fails. Long story short, she manipulated a quote and distorted the timeline and nature of Gore's conduct in an effort to paint him as dishonest and phony.

The completely unreliable Washington Post

by Glenn Greenwald

(updated below)

On Friday, I wrote a post, which ended up being very widey cited in the blogosphere, regarding proposed legislation introduced by Arlen Specter the prior day intended to resolve the NSA scandal. My post was based upon this article by Walter Pincus in the Washington Post, which claimed that "part of the Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law."

Before I wrote the post, I searched for the actual text of Specter's bill in order to read it myself, but could not find it (Specter's website is one of the worst sites for any Senator, as it is usually a month or more behind). As a result, my post -- as I noted in a Comment -- was based upon the Post's reporting about Specter's bill, rather than my own reading of it.

As it now appears, the Post article was simply wrong in what it reported. On CNN this morning, Specter vehemently denied that his bill contained an amnesty provision:

BLITZER: Are you, as the Washington Post reported, ready to give what they call blanket amnesty to anyone who authorized these wiretaps?

SPECTER: Absolutely not. That was an erroneous report. If anybody has violated the law, they'll be held accountable, both as to criminal conduct and as to civil conduct. And in no way did I promise amnesty or immunity or letting anybody off the hook.

I have now had a chance to review the actual text of Specter's bill and cannot find any basis for the Post's claim that it contains an amensty provision for past violations of the law. It was actually provided by someone in Comments on the day I wrote that post, in response to my request for someone to provide a link if they find the bill itself. Because I was travelling, I only had the chance to read it now, and there is simply nothing in it which supports the Post's report (see Update below).

Before I wrote the post on Friday, I was very reluctant to post anything about Specter's bill in reliance on the report of the Washington Post. That's because the Post previously published a front-page article about another FISA-related bill, this one proposed by Sen. Michael DeWine, which was completely inaccurate about what the bill actually provided -- not with regard to minor details of the bill, but with regard to its fundamental provisions.

This is what happened. On March 17, the Post published a front-page article by Charles Babington regarding the proposed legislation introduced by DeWine (co-sponsored by Sens. Snowe, Hagel, and Graham), which was offered by those Senators as the "compromise" solution when the Republicans on the Senate Intelligence Committee refused to hold hearings to investigate the NSA warrantless eavesdropping program. The Post article falsely depicted this GOP bill as vesting oversight power in the Congress to stop warrantless eavesdropping, even though the bill provided nothing of the kind.

Specifically, the Post article claimed -- erroneously -- that the bill would allow the Administration to engage in warrantless eavesdropping only if a newly formed Senate Intelligence Subcommittee approves of the program's renewal every 45 days. In fact, the legislation provided nothing of the sort. It gave no power whatsoever to any Senate Committee to approve or disapprove of warrantless eavesdropping. Contrary to the Post's front-page claim, that legislation would have vested no power whatsoever in the Congress (or the courts) to stop the warrantless eavesdropping. It merely required that the administration "brief" the Subcommittee, but the Subcommittee (along with everyone else) would be completely powerless under that bill to stop the administration from engaging in warrantless eavesdropping.

On that day, I first read the Post article about this proposed legislation, but then found the legislation itself and read it. It was very clear that the Post was simply wrong in what it told its readers on its front page about this significant legislation -- wrong about the legislation's fundamentals.

After I read the Post article and the bill itself, I wrote a post analyzing the newly proposed legislation and, in the post, detailed that the Post's front-page article about this bill was indisputably wrong. I then wrote e-mails to the reporter who wrote the article (Charles Babbington), as well as to Dan Eggen, a Post reporter with whom I had some communications on the NSA scandal (and who wrote a lengthy article in the Post based upon reporting done on this blog). I believe I also sent the e-mail to a couple of Post editors. In the e-mail, I explained the fundamental error in the Post article and documented the error by quoting from the legislation. I told them I thought they ought to issue a correction because their readers would be entirely misinformed about what that legislation really does.

They all ignored my e-mails. To this day, the Post article about that legislation (which is still pending) remains uncorrected, and completely wrong. Readers of the Post would believe, to this day, that the Republican "compromise" legislation offered to end the NSA scandal is much more reasonable than it really is, because they would think it vests power in the Congress to put a stop to warrantless eavesdropping every 45 days when, in the fact, the bill does nothing of the sort.

The fact that the Post reporter who wrote that inaccurate article did nothing to change it led me to conclude that the Post -- or at least the editors and reporters I e-mailed -- care little about the accuracy of its reports on this topic. What else could one conclude? That was why I was genuinely reluctant to post about the Specter bill on Friday based only on the Post article, because I recalled quite vividly how unreliable that March article was. But the Pincus article on Friday was so unequivocal and definitive in its claim that the Specter bill included an amnesty provision that I decided that one could reasonably rely upon it. Obviously, I was wrong about that.

The irony here is that numerous journalists at the Post, along with scores of their national journalist colleagues, love to depict the blogosphere as being the venue for "fact-free," unreliable claims -- in implicit contrast to their inherently superior reporting integrity. But no respected bloggers who I read regularly would simply ignore e-mails documenting that something they wrote was factually inaccurate in a fundamental way, the way the Post did with the Babington article and, at least thus far, the way they have with Pincus' article.

As soon as I realized this morning that my post on Friday was based upon the apparently false premise that Specter's bill contained an amnesty provision, I was mortified and furious that I posted something so inaccurate based upon the Post article. My immediate priority became looking into that error, figuring out what happened, and then posting about it in order to correct the inaccuracy. I would never leave a post uncorrected that I knew was likely inaccurate. And I think that is more or less standard for most well-regarded bloggers and for bloggers generally. Unlike the Washington Post and other mainstream media outlets, bloggers are going to be read only if they establish and maintain their credibility, and that means being responsive to -- rather than pompously ignoring -- evidence that what you have said is wrong.

At least with regard to FISA and NSA matters, I would never rely again exclusively on a Washington Post article. They are not just wrong in what they write (which can happen to anyone), but apparently unconcerned about their errors. Reading proposed legislation is not that hard. One should be able to expect basic accuracy in what the reporters write. At least with regard to these issues, that is plainly not the case for the Washington Post. To compensate for these failures, maybe they can publish some more articles solemnly lamenting the fact that some bloggers curse with such upsetting vulgarity when posting or sending e-mails, which shows -- obviously -- that only mainstream journalists are reliable enough to be worth listening to.

UPDATE: In Comments, Jao says that the draft legislation which is linked to in this post is likely not the current version, and that the current mark-up in Committee (which he says the Post article is describing) is not online and therefore cannot be reviewed. I seriously doubt that Specter would so vehemently deny having included an amensty provision in his bill if he, in fact, did. Anyone can look at the document and see if it contains such a provision. And as Jao points out, the Post article does not quote from the "proposed legislation" when claiming that it provides amnesty, but instead relies upon fragments and paraphrases. This matter is easily resolvable, but I find the Post's claim, in light of Specter's clear denial, highly suspect.

UPDATE II: As Obijuan points out in Comments, I was mistaken about the Post's refusal to correct the March 17 article by Babington. Appended to the very top of that article is now a correction which, more or less, acknowledges that the original article "imprecisely" described the provisions of the bill. The correction is hardly straightforward or undiluted, but it is there. I'm not sure when it was posted or why I missed it, but I did, so I retract the part of my post today criticizing the Post for refusing to correct that March 17 article.