Unclaimed Territory - by Glenn Greenwald


I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, August 31, 2006

The President has "made his choice" -- more wars

Even though it's almost four years old now, this speech from President Bush, delivered in Cincinnati in October, 2002, is still staggering to read.

It's where President Bush told the country that Iraq "possesses and produces chemical and biological weapons"; that it "is seeking nuclear weapons"; that "the Iraqi dictator must not be permitted to threaten America and the world with horrible poisons and diseases and gases and atomic weapons"; that "we know Saddam Hussein has dangerous weapons today"; that "Iraq has trained al Qaeda members in bomb-making and poisons and deadly gases"; that "Saddam Hussein is harboring terrorists and the instruments of terror, the instruments of mass death and destruction"; that "despite his public promises, Saddam Hussein had ordered his nuclear program to continue"; that Iraq "could have a nuclear weapon in less than a year"; and that "we cannot wait for the final proof -- the smoking gun -- that could come in the form of a mushroom cloud."

There is much, much more like that just in that one speech (such as his solemn warning to Iraqi generals to ignore Saddam's orders to unleash their biological weapons on American troops lest they be treated as "war criminals"). The week following that speech, the Congress overwhelmingly passed the Authorization to Use Military Force in Iraq, and the invasion of Iraq became a fait accompli.

In the Cincinnati speech, the President -- in addition to compiling all of that "evidence" against Iraq -- also sought to assure Americans that the rationale for invading Iraq would not compel a series of wars thereafter, because the threat posed by Saddam Hussein was unique in its severity, unlike any other threat anywhere in the world:

First, some ask why Iraq is different from other countries or regimes that also have terrible weapons. While there are many dangers in the world, the threat from Iraq stands alone -- because it gathers the most serious dangers of our age in one place. Iraq's weapons of mass destruction are controlled by a murderous tyrant who has already used chemical weapons to kill thousands of people. This same tyrant has tried to dominate the Middle East, has invaded and brutally occupied a small neighbor, has struck other nations without warning, and holds an unrelenting hostility toward the United States.

By its past and present actions, by its technological capabilities, by the merciless nature of its regime, Iraq is unique. As a former chief weapons inspector of the U.N. has said, "The fundamental problem with Iraq remains the nature of the regime, itself. Saddam Hussein is a homicidal dictator who is addicted to weapons of mass destruction."

The President's speech today makes clear, of course, that there is nothing at all unique about Iraq, that there is instead a whole host of other countries against which he intends to wage war based on exactly the same "unique" reasoning he used to drag the country into war in Iraq:

The enemies of liberty come from different parts of the world, and they take inspiration from different sources. Some are radicalized followers of the Sunni tradition, who swear allegiance to terrorist organizations like al Qaeda. Others are radicalized followers of the Shia tradition, who join groups like Hezbollah and take guidance from state sponsors like Syria and Iran. . . .

So Iran (and Syria) are "state sponsors" of terrorists, terrorists which are tantamount to (even teamed up with) Al Qaeda. What do we do with such states? That's easy:

if you harbor terrorists, you are just as guilty as the terrorists; you're an enemy of the United States, and you will be held to account.

We hold them "to account" (the President's second most favorite phrase after "bring them to justice"). And then there is this:

This summer's crisis in Lebanon has made it clearer than ever that the world now faces a grave threat from the radical regime in Iran. . . . The Iranian regime denies basic human rights to millions of its people. And the Iranian regime is pursuing nuclear weapons in open defiance of its international obligations.

We know the death and suffering that Iran's sponsorship of terrorists has brought, and we can imagine how much worse it would be if Iran were allowed to acquire nuclear weapons. Many nations are working together to solve this problem. The United Nations passed a resolution demanding that Iran suspend its nuclear enrichment activities. Today is the deadline for Iran's leaders to reply to the reasonable proposal the international community has made. If Iran's leaders accept this offer and abandon their nuclear weapons ambitions, they can set their country on a better course. Yet, so far, the Iranian regime has responded with further defiance and delay. It is time for Iran to make a choice. We've made our choice: We will continue to work closely with our allies to find a diplomatic solution -- but there must be consequences for Iran's defiance, and we must not allow Iran to develop a nuclear weapon.

The similarities between what the President said about Iraq in the months before our invasion and what he is saying about Iran now are too glaring to miss. They seem to be intentionally repeating most of their rhetoric, almost verbatim, complete with the same incoherence (if Iran is such a crazed, Nazi-like regime, how can we ever trust that they have given up nuclear weapons development? And even if they do that, they still "sponsor terrorists," and thus must be "held to account" under the "Bush doctrine"). Don't all of those premises make regime change via war not an option, but an inevitability?

All of that means one of two things (or some combination of both): (1) the President has decided already that we are going to wage some sort of military attack on Iran and is saying the same things as he said once he decided to wage war on Iraq while pretending to have not yet decided pending "diplomatic efforts"; and/or (2) the White House is trying to have its top officials, including the President, sound like Michael Ledeen because that's necessary to (a) motivate its crazed warmonger base itching for more wars and/or (b) enable Karl Rove to create the warrior/appeaser dichotomy that has worked so well electorally for Rove for two straight elections (and for Republicans for 35 years).

Personally, I think (without knowing) that the President really is committed to military action against Iran, because it's just too central to his self-perceived persona to make war threats like this without following through. But regardless of whether war is inevitable or it's just politically-motivated chest-beating, Democrats have no choice but to engage this debate. The President has the ability to set the agenda and they are obviously going to spend the next two months inflaming these warmonger fires (while hyping every terrorist threat with Malkian-like hysteria) so that the discussion is on this ground and no other.

Democrats ought to be happy about this and should engage this debate eagerly and aggressively. That does not mean defensively trying to assure everyone that they care about terrorism, too, and petulantly insisting that they really are patriots also (which is what we've heard so far in response to this escalated rhetoric). It means jumping on this debate in as straightforward and unambiguous a manner as possible -- offensively.

The President is saying the same things about Iran and Syria as he said when he induced the country to follow him into the disastrous war in Iraq. When he did so regarding Iraq, he said Iraq was a "unique" threat in order to assure Americans that there would not be a series of similar wars. But a series of more wars exactly like Iraq -- but more difficult, more dangerous, more draining -- is exactly what the President is now making clear he intends to bring to this country. It is reckless, destructive war mongering that is going to drag the country into more inflammable, interminable conflicts, and drain America even further of its resources, weaken it immeasurably, and make us more vulnerable on every level.

Do Americans really want to start more wars in the short-term future against more countries -- in Iran, Syria and beyond -- all while we stay, as the President vowed we would, stuck in Iraq until at least the end of his presidency? Why would Democrats possibly fear that debate? The administration sounds like a bunch of madmen who are literally impervious to reality -- like hubristic leaders who learned nothing from Iraq -- and Democrats ought to be using the President's words (and those of Cheney's and Rumsfeld's) to point that out over and over. They don't need to worry; it isn't the hippy-netroots that oppose the war in Iraq and still more wars. It's the vast bulk of the country.

If Americans are vigorously opposed to the war in Iraq, as they are, does anything think they want to replicate that disaster in more Middle Eastern countries? The White House's only chance to salvage this election is to have it center around war debates, but that presents a big problem for them -- the only war they have is politically unusable because it's so unpopular, so they have to create new ones in order to obscure the old one. That new-war strategy is a highly risky one to try to impose on a very war-weary country. They can get away with that only if Democrats let them, which wil happen if Democrats are tepid and uncertain and defensive about whether they want the menu of new wars the President is threatening.

The Chamberlain/appeasement cliche

Newt Gingrich spoke at a fundraiser for a GOP Congressional candidate yesterday and made explicit one of the core issues that the 2006 election will resolve:

To deal with the threat [of "nuclear bombs destroying U.S. cities"], he said, "we want to replace the North Korean regime. We want to replace the Iranian regime and the Syrian regime. We would like to replace them without using military force if we can."

When Gingrich says "we would like to replace them without using military force if we can," he means, of course, that he wants military force used (i.e. new wars waged) on those countries. It is almost certainly the case that military force is the only way to accomplish regime change in those three countries. That means that, in addition to staying in Iraq indefinitely, we will have three new Iraqs -- including in two countries with far greater military force than Iraq could have dreamed of having (one of which has nuclear capabilities).

It is hard to overstate how extremist is the warmongering agenda of those who exert the most influence among Bush supporters. Isn't that what Democrats should be asking Americans most clearly and aggressively - do you really want to stay in Iraq indefinitely, and on top of that, have whole new wars with Iran and Syria, perhaps with North Korea? That is what Newt Gingrich says he wants, and he is hardly alone.

The President's supporters try to decorate their thirst for war by depicting it as some sort of compelled Churchillian defense in the face of unprecedented evil, but it is really nothing more noble than reckless warmongering of the most dangerous kind. Although Donald Rumsfeld's invocation of the "Neville Chamberlain appeasement" insult is being treated as some sort of serious historical argument, it is, in fact, the most tired, overused and manipulative cliche used for decades by the most extreme warmongers in Washington to attack those who seek alternatives to war.

In fact, though Ronald Reagan has been canonized as the Great Churchillan Warrior, back then he was accused of being the new 1938 Neville Chamberlain because he chose to negotiate with the Soviets and sign treaties as an alternative to war. Conservative Caucus Chair Howard Phillips, for instance, "scorned President Reagan as 'a useful idiot for Kremlin propaganda,'" and published ads which, according to a January 20, 1988 UPI article (via LEXIS):

likens Reagan's signing of the INF Treaty to British Prime Minister Neville Chamberlain's signing of an accord with Nazi Germany's Adolf Hitler in 1938. The ad, with the headline, ''Appeasement Is As Unwise In 1988 As In 1938,'' shows pictures of Chamberlain, Hitler, Reagan and Gorbachev overhung by an umbrella. Chamberlain carried an umbrella and it became a World War II symbol for appeasement.

According to the January 19, 1988 St. Louis Post-Dispatch (via LEXIS), when Pat Robertson was campaigning for President in Missouri in 1988, he "suggested that President Ronald Reagan could be compared to Neville Chamberlain . . . by agreeing to a medium-range nuclear arms agreement with Soviet leader Mikhail S. Gorbachev." The Orange Country Register editorialized in September, 1988 that "Ronald Reagan has become the Neville Chamberlain of the 1980s. The apparent peace of 1988 may be followed by the new wars of 1989 or 1990." And even the very same Newt Gingrich, in 1985, denounced President Reagan's rapprochement with Gorbachev as potentially "the most dangerous summit for the West since Adolf Hitler met with Chamberlain in 1938 at Munich."

Rumsfeld himself has been tossing around the Chamberlain insult in order to promote his pro-war views for almost 30 years. The Associated Press reported on November 26, 1979 on efforts to oppose ratification of the SALT treaty: "'Our nation's situation is more dangerous today than it has been any time since Neville Chamberlain left Munich, setting the stage for World War II,' Rumsfeld said at a news conference."

Screaming "appeasement" and endlessly comparing political opponents to Neville Chamberlian is not a serious, thoughtful argument, nor is it the basis for any sort of foreign policy. At best, it is an empty, cheap platitude so overused by those seeking war as to be impoverished of meaning. More often than not, though, it is worse than that; it is the disguised battlecry of those who want war for its own sake, and who want therefore to depict the attempt to resolve problems without more and more new wars as being irresponsible and weak.

This same mindset -- even, in some cases, the very same individuals -- now launching the "Chamberlain/appeasement" insult even viewed Ronald Reagan that way because he negotiated and signed treaties with the Soviets and tried to find ways to avoid constant wars. The Cold War didn't end with wars on the Soviets but with engagement of them and treaties with them, signed by the Neville Chamberlain of the 1980s, Ronald Reagan. Those who considered Reagan a Chamberlain appeaser back then were radicals and extremists (and were viewed as such). They still are extremists, but they also happen to be the ones guiding the dominant political party in our country and they don't just want to prolong the war in Iraq but want several new wars (at least). That ought to be the principal issue in this election.

Wednesday, August 30, 2006

Bill Frist complains that "spotlight" is on Iraq

Senate Majority Leader Bill Frist sat for an interview with bloggers Captain Ed and Powerline's John Hinderaker and Scott Johnson. Sen. Frist gave many notable answers, but the most notable, by far, was his complaint that Democrats are putting the "spotlight" on the war in Iraq (bracket in original):

JH: My impression is that the Democrats are doing anything rather than take a position on Iran. They’re lying in the weeds, hoping that things go badly.

BF: I think what they’re doing – it’s such a political problem – is that they’re taking the spotlight and doing whatever they can to focus that spotlight on Iraq, and trying to separate Iraq from the larger challenges that we have with the rise of the fundamentalist extremists, and that will be it. When they take that spotlight and put it on Iraq, it takes it off of Iran, Hamas, and Hezbollah, plus other areas where terrorism [exists].

We have 140,000 troops in a country on the verge of all-out sectarian war, a country which happens to sit in the middle of the most strategically important and inflammable region on the planet. That's the result of a war in which we've lost 2,600 American lives, have had tens of thousands more wounded, killed tens of thousands of Iraqis, and spent hundreds of billions of dollars.

But Bill Frist is angry because Democrats are trying to put the "spotlight" on that war -- and that, as he says, is "such a political problem." It's been obvious for some time that Bush supporters are trying to ignore the disaster they created in Iraq, to just pretend it doesn't exist (and, just by the way, "violence across Iraq has spiked in recent days, with more than 200 people killed since Sunday in clashes, bombings or shootings"). They want to move on to new, more exciting, more politically exploitable issues -- like the U.K. terror plot or the new wars in Lebanon and Iran. But to hear it so explicitly -- to hear Frist petulantly complain about the "spotlight" being put on Iraq -- is pretty staggering.

Bill Frist was present just a little over two months ago at the 2006 President's Dinner when the Commander-in-Chief reminded us (as he and political allies have done many, many times before) that "Iraq is the central front on the war on terror." In fact, Frist himself told us just last year that "America’s security depends upon" what happens in Iraq and that "freedom for Iraq is essential for freedom at home." Where else should the spotlight be besides on the "central front on the war on terror?" Why would Bill Frist complain about the spotlight being there?

But if Frist wants less spotlight on Iraq, on what issues would he like to shine the spotlight? He tells Captain Ed and the Powerline guys:

What I will do when we come back, I will use two arms, I will spend a lot of time talking about security issues and other issues, one of which will be the Hamdan decision, which raises questions about the military tribunals and these illegal combatants, and we’ll resolve that. We’ll have an opportunity for debate.

The other arm will be in all likelihood a discussion of terrorist surveillance and what tools the government should have and legislatively put that on the table. Arlen Specter has an approach that I haven’t seen the final draft of which works with the administration more closely. We’ll use those two arms, those two platforms to address the sorts of issues on war and terrorism, regarding giving the enemy the playbook and threatening the security of the American people.

So Frist plans to have Congress' time between now and the election not spent on the dreary, unimportant nonsense of Iraq. No, Frist is part of the serious party that takes national security very seriously and understands the serious, grave war of civilizations America faces. So he intends to spend his time on what really matters -- convincing Americans that Democrats want to "giv[e] the enemy the playbook" (i.e., object that the President has been illegally eavesdropping on Americans without warrants instead of with warrants) and are therefore "threatening the security of the American people" (i.e., insisting that the President comply with the law).

And Frist says also says he will focus "debate" over the Hamdan decision, which means he intends to focus much time on the important matter of telling Americans that Democrats favor giving rights to terrorists (i.e., complying with what we call the "Gevena Conventions," violations of which are felonies under federal law). That's what Frist will have the Senate work on during this critical time.

Insisting that we pay less attention to the war in Iraq in order to engage in transparently manipulative political sideshows for domestic political gain is what those who are serious about The War on Terror do. Just ask the media pundits; they'll tell you. Only unserious people would want a "spotlight" to be on the actual war that we are fighting.

James Taranto's tough-guy mockery of Max Cleland is depressingly revealing

Max Cleland is voluntarily seeking treatment for post-traumatic stress disorder related to his combat experience in Vietnam. Cleland cited as symptoms that he is "depressed, has developed a sense of hyper-vigilance about his security and has difficulty sleeping."

Cleland, who has become one of many war veterans who are critical of the Iraq war, says that he has been "engrossed" by the war but that the endless violence there has likely contributed to his mental stress by bringing back his own traumatizing combat memories from Vietnam:

"I realize my symptoms are avoidance, not wanting to connect with anything dealing with the (Iraq) war, tremendous sadness over the casualties that are taken, a real identification with that. ... I've tried to disconnect and disassociate from the media. I don't watch it as much. I'm not engrossed in it like I was," Cleland said in an interview with WSB-TV in Atlanta.

Tough guy warrior James Taranto mocks and exploits Cleland's condition in a way that he thinks is really cute and clever. In a post titled "Ignorance on Parade," Taranto says (emphasis added):

How credible is Cleland as "a vocal critic of the Iraq war" when by his own admission his approach to it is "avoidance, not wanting to connect with anything dealing with" it, and trying "to disconnect and disassociate" from sources of information about it?

Taranto's attempt to demean Cleland's credibility as a war opponent relies upon a complete distortion of the facts. Contrary to Taranto's insinuation, Cleland hasn't been avoiding news in Iraq. To the contrary, he's been (to use Cleland's word) "engrossed" by it -- as anyone who follows the news knows -- and only now feels himself, after 3 1/2 years of this war, wanting to avoid the grim news from Iraq because it's understandably causing him to re-live his own experiences in Vietnam. To try to distort that to mean that Cleland is unaware of what is going on in Iraq, and therefore isn't a credible war critic, is dishonest to the core.

But distorting Cleland's comments is the least of Taranto's sins here. There are a lot of people who have actually fought in wars for whom the brutality and slaughter in wars are real. Even for wars that are justifiable, a sane and mentally healthy person would feel substantial emotional distress as a result of the mass slaughter of innocent lives and mammoth destruction which a war entails. The ones who are mentally unhealthy are the ones who, never having been in or even near a war, indulge the vapid luxury of blithely ignoring the human costs of wars because they never pay -- or see or smell or hear -- any of those costs.

To chest-beating warriors like Taranto who so endlessly impress themselves by cheering on wars from afar, the slaughter and brutality of wars is purely abstract -- akin to losing (or gaining) points in a video game that they play while slumped safely on their couch or in front of their computer. Only weak, whiny, spineless, freakish losers like Cleland suffer effete emotional disturbances as a result of the endless bloodbath in Iraq. It's the tough and resolute guys like James Taranto who can call for more and more killing and bombing and invasions and slaughter while sleeping perfectly well at night.

Taranto thinks that it is a sign of his mental health and tough resolve that he can read every day about the death and destruction from the war he advocates without batting an eye, even urging more and more of it without any of the teary-eyed trauma that plagues weirdos like Cleland. Conversely, he thinks that Cleland's inability to be endlessly subjected to the slaughter from this war without being emotionally impaired is a sign of mental illness, something that disqualifies him from being a "credible war critic." But on both counts, the opposite is true. Cleland reacts the way he does to the war precisely because he knows and faces the reality of it, while it is Taranto who disassociates himself from the war and its effects so that he can easily cheer it on and crave more of it -- a self-indulgent luxury in which he, unlike Cleland, can wallow because he has never been near a war.

Wars are very easy -- way too easy -- to advocate when you can disassociate yourself from its effects. Doing so is not a sign of bravery or mental health. Quite the contrary, it is mentally imbalanced, arguably sociopathic, to view wars as some abstract game and to call for more and more of them while being wholly impervious to the tragic destruction they impose on countless human beings. Wars are sometimes necessary and justifiable, but they are always horrendous and tragic, and it is a truly disturbing syndrome that so many people can advocate them so blithely and even happily because they are able to remain immune from the consequences.

For people like Cleland who have actually fought in wars, it is quite common to have the type of reactions Cleland has:

Cleland is receiving treatment at Walter Reed Medical Center in Washington, Duga said. He said Cleland acknowledged his condition to encourage other veterans to seek help if they feel sick.

The Department of Veterans Affairs' inspector general reported last year that the number of post-traumatic stress disorder cases has increased dramatically in recent years, from 120,265 in 1999 to 215,871 in 2004.

Cleland lost three limbs in military service on behalf of the United States, and now he speaks publicly about his mental struggles with war in order to make it easier for other veterans who could benefit from treatment to seek that treatment. But to Taranto, it's Cleland whose views on war we should ignore because after being "engrossed" by the war for three years, he has finally become so emotionally affected by the endless killings that he finds it difficult to read about it every day.

But Taranto has no such difficulties. He can read about war and slaughter and bombings and never get enough. He has no emotional difficulties thinking about all of that. Therefore, it is Taranto who has credibility on war matters, not Cleland.

Our country has, of course, been guided for the last five years by the pseudo-tough-guys like James Taranto while ignoring (except to mock) the Max Clelands. That's how Jack Murtha is a coward, Wesley Clark is an appeaser, Max Cleland is a weakling -- while George Bush, Dick Cheney, Bill Kristol and the Jonah Goldberg/Rich Lowry gang at National Review's Corner are the crusading warriors who are the only ones with enough fortitude, spine and foreign policy seriousness to lead America in its epic war challenges. Max Cleland is emotionally disturbed by war - what an emotionally disturbed loser he is. Who would ever listen to what he has to say?

Tuesday, August 29, 2006

"Conservatives" cheer on Judge Posner's highly un-conservative defense of federal police powers

Court of Appeals Judge Richard Posner has become one of the leading advocates of drastically expanded federal police powers as a response to the terrorist threat. He advocates the creation of a domestic spy agency (an internal CIA/KGB/Stassi-type agency to monitor domestic activities); expanding the group of citizens subjected to warrantless eavesdropping to include even include "[i]nnocent people, such as unwitting neighbors of terrorists"; allowing warrantless eavesdropping even if it violates the law; and stripping federal courts of their ability to enforce legal limits on the President's national security powers.

Posner was interviewed yesterday by Glenn Reynolds and Reynolds' wife, Helen, concerning the topics covered in Posner's new book, Not a Suicide Pact: The Constitution in a Time of National Emergency. The podcast interview is here. The two Reynolds -- credit where it's due -- actually do a decent job of asking Posner the right questions, which allow Posner to expound what are his truly radical theories of constitutional interpretation. What is amazing is that self-proclaimed "conservatives" are celebrating Posners' views even though those views are exactly those which conservatives have always claimed to be against.

Posner's core argument is that the threat of terrorism is so "very great" and "very novel" -- "sui generis" -- that the Constitution must be intepreted differently than it ever was before in order to deal with the threat (there is no transcript available -- all quotes are from my listening to the podcast). Posner repeatedly claims in the interview that "the Constitution is flexible" and he even says that it is a "loose garment, not shrink wrap." Thus, we "have to interpret the Constitution in a way to enable us to cope with unanticipated dangers."

Posner's relentless characterization of the Constitution as this amorphous, evolving document which must be shaped and molded by political events led Reynolds to ask the right if not obvious question -- isn't Posner advocating the very theory of a "living, breathing Constitution" which conservatives have long claimed to despise, even consider tyrannical?

Posner paused and stuttered quite a bit after being asked that question, and then admitted, quite astonishingly, that he "hadn't thought about that" painfully obvious point before. But he then told Reynolds that he's "right" about the fact that he, Posner, has an elastic view of the Constitution -- that it is a "flexible" document. Posner then justified that view by essentially denegrating the Constitution as obsolete and useless in light of this grave new threat. The Constitution is nothing but "an 18th Century document," Posner complained, and "the notion that [the Founders] had the answers to 20th Cenutry problems . . . is, I think, wrong and dangerous."

Posner may or may not be right about the claim that terrorism requires changes to the system of constitutional protections guaranteed to Americans by that document. But he is self-evidently and dangerously wrong to suggest that we can just get rid of constitutional structures by whimsically interpreting them away at will as obsolete in light of new political developments. The Founders obviously recognized that subsequent events or re-assessments may require changes to the Constitution -- and they therefore provided within the document several procedures for amending it. If Posner is right that the U.S. Constitution should be radically changed because of some Islamic extremists, then those changes can be effectuated only through the amendment process, not by judges deciding on their own that the terrorism threat necessitates an abridgement of liberties.

Posner is expressly advocating that the Constitution be changed without complying with any of those procedures -- simply by having judges "interpret" the Constitution differently in light of their view of political events and the terrorist threat. George Bush advanced the same view of the living, breathing Constitution (albeit in a much more muddled way) when he criticized Judge Taylor's ruling by claiming that supporters of her decision "do not understand the nature of the world in which we live" -- as though Constitutional protections guaranteed to American citizens by the Bill of Rights are not to be discerned from that document, but instead, by one's abstract understanding "of the world in which we live."

In one sense, this is nothing new. In order to defend the Bush administration's lawlessness, self-proclaimed conservatives have been advocating legal theories which are the very antithesis of the strict constructionism and originalism they claim to espouse. They insist, for instance, that the President has the power to engage in warrantless eavesdropping on Americans under Article II, even though Article II mentions not a word about surveillance or eavesdropping (such powers instead presumably "emanate" from the "penumbra" of the Executive's generalized Commander-in-Chief powers). Similarly, they contend that the 2001 AUMF "implicitly" repealed eavesdropping limitations imposed by FISA even though that statute also failed to say a word about eavesdropping, surveillance or FISA.

But Posner is nothing if not candid, and so he much more explicitly argues that the Constitution should be a clay-like instrument that can be shaped and changed by judges based on the whimsical political events of the day. Posner is a consistent theorist -- he requires a thorough intellectual justification for his conclusions -- and he knows that the Constitution as it has been understood and interpreted simply bars the extremist policies he wants, such as prolonged periods of lawless detention of U.S. citizens and his the massively expanded warrantless domestic surveillance which he advocates.

So Posner does what he is intellectually forced to do -- he argues that all of those Constitutional limitations can simply be done away with, banished with a magic wand, due to the terrorist threat, and he claims that this would happen if only judges had a better understanding (like he does) of just how grave this threat is. But arguing that the Constitution should be understood differently in light of contemporary political developments supposedly "unanticipated" by the Founders is precisely the legal theory which conservatives claim to despise.

Yet they nonetheless cheer on Posner, because Posner is advocating drastically expanded domestic police powers, and that -- rather than any limitations on judicial power or abstract theories of judicial restraint -- is what the new "conservatives" want most. And as their otherwise inexplicable support for Posner demonstrates, they don't really care how that's accomplished.

Various items

(1) I was very glad to see this Kos diary about the two banished Americans doing so well. For some reason, it takes a few moments to really digest the true significance of this story (at least it did for me), but when you realize that these two American citizens have, in essence, been banished from the Kingdom without any charges or process of any kind, it's hard to overstate what a travesty it is. This is a story that deserves much more attention. (See UPDATE below).

(2) The Editors points to a study from a Middle East think tank which reaches an obvious though still amazing conclusion -- namely, that U.S. foreign policy "has bolstered Iran’s power and influence in the Middle East, especially over its neighbour and former enemy Iraq." In virtually every respect -- but particularly with regard to the replacement of Iran's dreaded enemy, Saddam Hussein, with loyal Shiite allies -- Iran has been the primary beneficiary of most of our work in the Middle East.

Iraq is a war that is saddled with more incoherent premises than can be counted. Yet the most baffling part of it has to be that the more we succeed in stabilizing the new government and empowering majority rule, the more we hand over to our arch Iranian enemy (the New Hitlers) control over large parts of that strategically vital country. Thus, the principal result in exchange for all the lives lost and hundreds of billions of dollars squandered is to ensure that Iraq will be ruled by those most opposed to U.S. interests. Spencer Ackerman makes this same point in response to William Stuntz's Weekly Standard cover story, in which Stuntz absurdly argues that we have to stay in Iraq in order to prevent Moktada al-Sadr from gaining power:

But Sadr is right now among the most powerful figures in the Iraqi government, and is even more powerful in the streets. His Sadrist movement controls the largest parliamentary bloc in Iraq--meaning that it's not a prospective U.S. withdrawal that's empowering Sadr, but the very Iraqi political process for which we have sacrificed 2,628-and-counting brave Americans, and for which Stuntz wants us to sacrifice more.

As The Editors notes, the claim that the Iranians are some sort of wild-eyed lunatics who operate outside of the rational realm seems less and less credible by the minute. They have built up a web of impressive alliances around the world, positioned themselves as the clear regional power, have stood quietly by while their arch enemy (us) rids the region for them of the two regimes outside of Israel which they hated most (in Iraq and Afghanistan), and have exploited U.S. hostility towards their country for great domestic political gain.

And as the third charter member of Bush's "Axis of Evil," they have looked at the respectful treatment given to the one Axis member which has nuclear weapons (North Korea) and contrasted it with the rather disrespectful treatment given to the one who did not (Iraq), and have drawn the only rational lesson there is from that discrepancy. Iran may be many things, but irrational doesn't appear to be one of them.

(3) From Republican shill Michael Barone today, claiming that there has been a polling boost for Republicans over the last two weeks (emphasis added):

There seems to have been a change in the political winds. They've been blowing pretty strongly against George W. Bush and the Republicans this spring and early this summer. Now, their velocity looks to be tapering off or perhaps shifting direction.

When asked what would affect the future, the British Prime Minister Harold Macmillan famously said: "Events, dear boy. Events." The event this month that I think has done most to shape opinion was the arrest in London on Aug. 9 of 23 Muslims suspected of plotting to blow up American airliners over the Atlantic.

Barone calls it a "GOP terror bump." From today's lengthy New York Times article providing new details about the U.K. plot:

But at the same time, five senior British officials said, the suspects were not prepared to strike immediately. Instead, the reactions of Britain and the United States in the wake of the arrests of 21 people on Aug. 10 were driven less by information about a specific, imminent attack than fear that other, unknown terrorists might strike. . . .

In fact, two and a half weeks since the inquiry became public, British investigators have still not determined whether there was a target date for the attacks or how many planes were to be involved. They say the estimate of 10 planes was speculative and exaggerated.

In his first public statement after the arrests, Peter Clarke, chief of counterterrorism for the Metropolitan Police, acknowledged that the police were still investigating the basics: “the number, destination and timing of the flights that might be attacked”. . .

While officials and experts familiar with the case say the investigation points to a serious and determined group of plotters, they add that questions about the immediacy and difficulty of the suspected bombing plot cast doubt on the accuracy of some of the public statements made at the time.

“In retrospect,’’ said Michael A. Sheehan, the former deputy commissioner of counterterrorism in the New York Police Department, “there may have been too much hyperventilating going on.”

Barone's claims of some grand Republican polling resurgence are driven by as much "hyperventilating" as was commentary on this plot. But clearly, Republicans believe that their only chance for avoiding electoral disaster in two months is to have terrorism fears jacked up as high as possible.

(4) Speaking of jacking up terrorism fears, I will be on the Alan Colmes Show tonight at 11:06 p.m EST to debate Fox News regular guest and former Bush 41 DoD Deputy Undersecretary Jed Babbin. The debate will concern Judge Taylor's NSA decision. Station listings and live audio feed are here.

UPDATE: The New York Times has an article this morning on the banishment of the two American citizens. The article doesn't contain very many facts which weren't already reported by the Chronicle, but it does report that the Bush administration has not merely put them on the "no-fly" list -- as several Kos commenters were strangely arguing in order to mitigate the importance of this story -- but instead has "prevented" them "from returning home" and that the FBI's "conditions had to be met before the authorities would consider letting them back into the United States."

Monday, August 28, 2006

Everything is always good for the Republicans

One of the important points you learn from listening to political pundits is that every event and every controversy is always good for the Republicans. No matter what the controversy is -- even if it arises from the President's getting caught breaking the law -- the more it's talked about, the more political benefits will accrue to the Republicans, because most Americans are on their side. Here is what Mort Kondracke and Fred Barnes said this weekend on "Beltway Boys," during the segment they playfully call "the Buzz" -- where they share with us the insightful Washington political whispers to which they are privy (from LEXIS):

KONDRACKE: Here's "The Buzz," Fred: the NSA spying issue's going to be back before Congress when they get back in - in September. And Arlen Specter in the Senate Judiciary Committee had made a deal with the White House, that - that the issue will be put before the FISA court for adjudication.

The Democrats who say that they want terrorists bugged are nonetheless saying that - but - that Specter gave away too much, and it's going to delay the whole
thing, and that's going to play into the hands of the Republicans in November.

BARNES: Yes. I'm not surprised at Democrats.

Even a scandal that arose because the President has been illegally spying on Americans -- and even legislation designed to eliminate all limits on the President's ability to eavesdrop on their conversations -- is going to be a great boon politically for Republicans. It will "play into the[ir] hands."

This has been going on for months and months. The New York Times first revealed the President's NSA lawbreaking on December 16 -- more than nine months ago -- and, almost from the first minute, we have been told endlessly that the NSA scandal would be a great boon to the President. And yet all that has happened since Decmeber is that the President's approval ratings have collapsed and virtually every poll shows Republicans in deep trouble politically.

When the NSA scandal first broke, Bush's approval ratings were in the high 40s. One poll, from Rasmussen, showed a slight bump upwards (well within the margin of error) after the NYT disclosed the NSA story, which caused political geniuses like Mickey Kaus to issue oh-so-knowing warnings like this:

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

Mickey is so smart and funny and politically savvy all at the same time!

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

The White House did everything possible to convince journalists that they welcomed the NSA scandal because it would be so politically beneficial for them. John Dickerson at Slate wrote: "But Bush and his aides are eager to talk about the National Security Agency's activities because they think the issue benefits them politically." Bush's Counselor, Dan Bartlett, boasted: "We're very comfortable discussing the issue for as long as they want." And, naturally, mindless pundits began echoing this claim, as when Eleanor Clift warned that Democrats were helping George Bush by opposing his illegal eavesdropping and that Americans see efforts to condemn the President as "political extremism":

Republicans finally had something to celebrate this week when Democratic Sen. Russ Feingold called for censuring George W. Bush. Democrats must have a death wish. Just when the momentum was going against the president, Feingold pops up to toss the GOP a life raft.

But none of that happened. It was all false, cliched fiction masquerading as oh-so-sophisticated political wisdom. The NSA scandal has remained prominently in the news for 9 straight months. We have had the New York Times story, the Senate Judiciary Committee hearings with Alberto Gonazles, the controversy over the failure of the Senate Intelligence Committee to investigate, the Feingold Censure Resolution, the USA Today story about domestic data-collection, the Specter bill, and now a federal court ruling that the President has broken the law and violated the Constitution by eavesdropping without warrants. Editorialists write more about eavesdropping issues, reporters finally understand their implications, and if anything, it is more of a scandal now than ever.

And yet the President continues to be a deeply unpopular President. Republicans trail Democrats in every poll. There is no public sentiment supporting the President's right to break the law and eavesdrop without warrants, and there never was any such sentiment. To the contrary, polls repeatedly showed that, at worst, the public was divided on this question, and most polls showed Americans were opposed to warrantless eavesdropping.

Yet for months we have been hearing -- and we still hear -- that the NSA scandal is going to be a great big political boon to the President and his party, that Democrats have to be afraid of this issue, that they better back down or else they will drive support to Republicans by looking weak on terror, etc. etc.

There is this bizarre syndrome where Republicans claim that every event is good for them, pundits echo that, and Democrats internalize it to the point of being paralyzed with fear. If there is no terrorist attack, that helps Republicans because it shows Bush is protecting us. If there is a terrorist attack, that helps Republicans because it makes Americans focus on terrorism again. If Osama bin Laden is silent, that helps Republicans because it shows he has to hide. If he releases a video tape, that helps Republicans because it puts the focus back on terrorism. Bush supporters and pundits, in unison, will insist that virtually every issue is a win-win politically for the Republicans, even as Republicans suffer political collapse.

Typically, Beltway Democratic consultants who are part of this same self-referential, sickly circle ingest this "wisdom" as well, and begin counseling Democratic politicians to avoid taking a stand on any of these issues because it will all be a great big win for the Republicans if they do. Anyone can see how disastrous for Democrats has been that fear-driven reliance on these always-wrong pundits and this Republican bravado. The question is whether Democrats are ready to finally shed their fear of confronting the President.

When Congress returns in September, the first test of whether they still fall victim to the "Republicans always win" psychological tactic will be whether they are willing to allow the White House to use Arlen Specter to remove all limits on the President's power to eavesdrop and legalize what has been clearly illegal conduct. One thing ought to be clear, the sage advice of the "Beltway Boys" notwithstanding -- Americans are not going to flock to the President they have abandoned because he wants the power to break the law and eavesdrop on them in secret. So there is no reason to fear opposing the President on that issue, or any other.

Journalists as legitimate war targets

Condemnation was virtually universal for the Gaza kidnappings of Fox News reporter Steve Centanni and photographer Olaf Wiig, both of whom were released unharmed yesterday. Michelle Malkin spent the week digging around for absurdly obscure figures ("Former Snohomish County, Wash., Democrat party official Mike Whitney") who she claimed were justifying the Fox kidnappings, and then -- using the tactics that made Ward Churchill and Deb Frisch household names -- wildly inflated their importance before labelling them "scum of the week."

Tactics aside, Malkin's core point was fair enough. Justifying the targeting of Fox News journalists in a war zone, on the ground that they are so biased in favor of the Bush administration that they are basically propaganda agents, is outrageous. It is in everyone's interests to ensure that journalists of all stripes are free to operate in war zones and report on what is happening without fear of being targeted, and there is no legitimate moral basis for celebrating attacks on them. For that reason, anyone publicly justifying the Fox kidnappings would be viciously stigmatized and probably permanently shunned.

But here is what John Hinderaker said last night in response to the report that the Israeli Air Force had fired a missile (they claim accidentally) at an armored vehicle in Lebanon (marked "PRESS") which was carrying journalists working for Reuters -- long the second-most hated news agency, after Al-Jazeera, for Bush lovers:

Given Reuters's coverage of the conflict in Lebanon, it would perhaps be understandable if the Israelis started firing on Reuters vehicles.

So, those who defend or justify the kidnapping of Fox journalists are "scum" who are to be shunned and despised. Those who defend and justify the shooting at, and seriously injuring of, Reuters journalists are what? The next guest on Howard Kurtz's CNN show.

All of this was preceded by the still unresolved, never-quite-investigated-or-denied report that President Bush had proposed to Tony Blair that the Al Jazeera headquarters in Qatar be bombed (the British government actually threatened newspapers with criminal prosecution to prevent dissemination of that report). The report that Bush wanted to bomb the Al-Jazeera headquarters had, in turn, "fuelled concerns that an [April, 2003] attack on the broadcaster's Baghdad offices during the war on Iraq was deliberate." On the same day that the Al-Jazeera office was bombed, two foreign journalists (one from Reuters) were killed when a U.S. tank in Baghdad shelled the Palestine Hotel, where many foreign journalists were staying.

The April, 2003 Baghdad air raid on the Al-Jazeera Baghdad office destroyed that office and resulted in the death of cameraman Tarek Ayoub. At the time, this is what media star Charles Johnson said about the fatal bombing of the Al-Jazeera office:

Was Al Jazeera deliberately targeted? Of course, their answer is “yes.” But remember that before the start of this war, the Pentagon issued a clear, unequivocal warning to journalists that their safety could not be guaranteed if they chose to remain in Baghdad. Al Jazeera not only chose to stay, they have been broadcasting a steady stream of Iraqi propaganda, anti-Americanism, and death pr0n (sic), including that hideous video of American POWs. Pardon me if I don’t weep over this attack.

So they stayed in a war zone despite knowing that it was dangerous and then broadcast biased stories. Therefore, the death of one of their journalists is nothing to "weep over." That same reasoning could be applied -- and sometimes is -- to justify attacks on any journalists in a war zone.

This post provides an excellent summary and time line of the unusually frequent confrontations between the U.S. military and Al-Jazeera, along with multiple comments from high-level U.S. officials suggesting that Al-Jazeera might be a legitimate war target. As the Guardian article (linked above) reminds us: "In 2001 the station's Kabul office was hit by two 'smart' bombs in an attack that almost wrecked the nearby BBC bureau."

All of this illustrates what very well might be the greatest and most tragic harm of the last five years -- namely, the way in which this administration's conduct and that of its most rabid supporters has drastically altered and demeaned the American national character. Like every other country on the planet, the U.S. has been imperfect, but celebrating attacks on unfriendly journalists were previously the province of uncivilized Gaza thugs and Al Qaeda psychopaths. The U.S. had credibility around the world to protest such behavior. No longer.

In light of all of these prior incidents and the deranged views of prominent administration supporters (it is "understandable if the Israelis started firing on Reuters vehicles"), what authority and credibility does the U.S. now have to protest incidents like the Gaza kidnappings? Previously, the U.S. had that authority because we largely refrained from tactics of that sort. But in the name of getting tough, getting our hands dirty, taking off the kid gloves, freeing ourselves from effete restraints -- and all of the other pseudo-tough-guy cliches tragically implemented as policy by weak and hollow neoconservatives -- we no longer refrain from those practices and, in many instances, have been using them enthusiastically and aggressively.

Moral issues to the side, one reason (among many) why it is so destructive to have become a nation which uses torture, applies "coercive interrogation techniques," abducts people in order to render them to human rights abusing countries, and justifies the targeting of war journalists is because we lose our authority to condemn those practices when used by others -- including when they are used against Americans, soldiers and civilians alike. Becoming a nation of John Hinderakers and Charles Johnsons -- those who are apologists for, even outright advocates of, "tactics" such as the deliberate targeting of journalists based on the content of their reporting -- has fundamentally changed the American national character in ways that are as dangerous and counter-productive as they are morally bankrupt.

Sunday, August 27, 2006

Still more unchecked powers for the Bush administration

This article from the San Francisco Chronicle details the truly amazing story of two U.S. citizens -- a 45-year old resident of the San Francisco area and his 18-year old son -- who, after travelling to Pakistan, have been barred by the Bush administration from re-entering the country. They have not been charged with any crime, and no court has ordered or even authorized this denial of entry. The administration is just unilaterally prohibiting these two Americans from re-entering their country.

A relative of the two men (the older man's nephew) was convicted in April by a California federal jury on charges of supporting terrorism as a result of his attending a Pakistani training camp (and just incidentally, the conviction was obtained under some controversial circumstances). And the Federal Government is now demanding that his two relatives submit to FBI interrogation in Pakistan as a condition for being allowed to return home to the U.S.

According to the article, the two Americans have already submitted to an FBI interview, but one of them -- the American-born 18-year-old -- "had run afoul of the FBI when he declined to be interviewed again without a lawyer and refused to take a lie-detector test. " For those actions -- i.e., invoking his constitutional rights to counsel and against self-incrimination -- he is being refused entry back into his country. And the Bush administration is now conditioning his re-entry on his relinquishing the most basic constitutional protections guaranteed to him by the Bill of Rights.

Since neither of the two Americans are citizens of any other country, they are in a bizarre legal limbo where the only country they have the right to enter, the U.S., is refusing to allow them to return home. The Chronicle article quotes Michael Barr, director of the aviation safety and security program at USC, as follows: "You become what is called a stateless person, and that would be very unprecedented."

Anyone for whom there is reason to believe that they are working with terrorist groups ought to be aggressively investigated by the Government. If there is sufficient evidence to believe that they have some affiliation with terrorist groups, they ought to be arrested and charged with crimes. All of that goes without saying.

But what possible authority exists for the Bush administration -- unilaterally, with no judicial authorization, and no charges being brought -- to bar U.S. citizens from entering their own country? And what kind of American would favor vesting in the Federal Government the power to start prohibiting other American citizens from entering the U.S. even though they have been charged with no crime and no court has authorized their exclusion?

Over the past five years, this administration and its supporters have advocated empowering the Government to detain U.S. citizens indefinitely in military prisons without a trial, eavesdrop on their telephone conversations without any warrants, track and chronicle all of their telephone calls, and now bar their entry into the U.S. -- all without any criminal charges being filed and without any opportunity to contest the accusations, all of which are formed in secret.

[And on a related note, Digby insightfully examines the disturbing arrest (disturbing, that is, for those who believe in the First Amendment) of New York resident Javed Iqbal for re-broadcasting a television channel owned by Hezbollah -- something the Bush administration intends to equate with "providing material support for terrorism." (Unrelatedly, that incident is an excellent illustration of the intolerable dangers of European/Canadian "hate speech" laws which vest in the government the power to ban certain ideas as too dangerous or wrong; anyone who believes in those laws has no ground to complain about Iqbal's arrest by the Bush administration)].

What powers do Bush supporters think the Federal Government should not have against U.S. citizens, if any? To judge by this Editorial from National Review -- which tells us that we are "in the early stages of a long war"; advocates lengthy periods of "preventive detention" of U.S. citizens without any charges being brought; and rails against what it calls "hypothetical privacy violations" (such as the Government listening in on your calls without any warrants) -- the answer is "none."

But there's no need to worry. The Bush administration only intends to use these extraordinary, unchecked powers for your own good -- to protect you. That's why all of this yammering about the need for oversight or checks is just shrill paranoia. Placing blind trust and faith in the Goodness of our leaders to exercise powers against us in secret and with no oversight is the bedrock principle on which this country was founded. Only someone who hates this country could be against all of that.

Friday, August 25, 2006

So wrong that it re-defines "wrongness"

(updated below)

Mark Steyn is a hero to neoconservatives. They consider him a true foreign policy genius and run around drooling with praise, like John Hinderaker in the presence of George W. Bush, every time he releases a new column about the Epic Global War of Civilizations We Must Wage. Yesterday, Steyn's status was cemented as he had the privilege of sitting in Rush Limbaugh's Chair as guest host, something which was celebrated across the Bush-loving world.

While looking for something else, I came across this column written by Steyn on May 4, 2003, in which he laughs about the fact that the U.S. won the war in Iraq so quickly and easily and mocks those who were concerned that it would be a difficult challenge. The column was entitled "The war? That was all over two weeks ago," and here is part of what it said, conveying the prevailing "wisdom" among Bush supporters at the time. Just savor every paragraph of intense, complete wrongness:

This war is over. The only question now is whether a new provisional government is installed before the BBC and The New York Times have finished running their exhaustive series on What Went Wrong with the Pentagon's Failed War Plan. . .

On the other hand, everything that has taken place is strictly local, freelance, improvised. Many commanders have done nothing: they're the ones I wrote about, the ones so paralysed by the silence from HQ that they're not even capable of showing the initiative to surrender; they're just waiting for the orders that never come.

Others have figured the jig's up, discarded their uniforms and returned to their families. Some guys have gone loco, piling into pick-ups and driving themselves into the path of the infidels' tanks. A relatively small number have gone in for guerrilla tactics in the southern cities. . . .

It takes two to quagmire. In Vietnam, America had an enemy that enjoyed significant popular support and effective supply lines. Neither is true in Iraq. Isolated atrocities will continue to happen in the days ahead, as dwindling numbers of the more depraved Ba'athists confront the totality of their irrelevance. But these are the death throes: the regime was decapitated two weeks ago, and what we've witnessed is the last random thrashing of the snake's body.

By the time you read this, Tariq Aziz and the last five Ba'athists in Baghdad may be holed up in Fisk's Ba'athroom, and he'll be hailing the genius of their plan to lure the Americans to their doom by leaving his loo rolls on the stairwell for the Marines to slip on.

But, for everyone other than media naysayers, it's the Anglo-Aussie-American side who are the geniuses. Rumsfeld's view that one shouldn't do it with once-a-decade force, but with a lighter, faster touch has been vindicated, with interesting implications for other members of the axis of evil and its reserve league.

By the time you read this column, Steyn says, only "the last five Ba'athists in Baghdad" will be left. Rumsfeld proved to be a genius because we won so quickly and easily with a small force. There was little resistance because the Iraqis were so scared that they all ran home, too afraid even to surrender. There are a handful of insurgents engaging in guerilla tactics, but the number is so small that -- even as of May, 2003 (more than three years ago) -- they were already in their "death throes." The only thing I have seen that competes with this Steyn column for its mix of pure wrongness and gloating self-celebration over being so wrong is this humiliating April, 2003 screed from Glenn Reynolds.

Despite all of that, Steyn is the person whom Bush followers think is a visionary and prophet whom we should also listen to now with regard to what we should do about Iran and the broader Middle East. Allegiance to the Cause of Good is paramount, and there is thus no price paid by True Believers for fundamental error, grave misjudgment, or just outright deceit. Steyn -- and the long list of Bush loving comrades who mouthed these same pieties -- was painfully, disastrously wrong about the most profound political and military question of our generation. He ought to be too ashamed to continue pontificating and too shunned to be able to do so -- at the very least without his admitting error, recanting and apologizing.

But the opposite is true. The same people who were wrong about everything -- literally -- and who viciously mocked those who were right, now want to use the same mindset and assumptions to guide us into our next war. That really is what Democrats ought to be asking the country this year -- whether they want those who promised quick victory in Iraq, and who proclaimed that we had quick victory, to be able to lead us into more wars of the same kind.

Charles Krauthammer today came out and explicitly said that it is necessary for us to confront Iran militarily, i.e., start a new war against Iran. Democrats should make this election about this question because it is, in large part, what the election is about -- whether the country wants the same people who dragged us into Iraq to do the same in Iran, Syria and beyond.

UPDATE: I was reminded in comments that I previously quoted from that truly unbelievable April, 2003 post by Glenn Reynolds, and when I did, Reynolds replied: "actually I think it holds up pretty well." (And I now see that, in response to this post, Reynolds today added an update to his April, 2003 post saying it's "deluded" to think that the April, 2003 post of his proves that he was wrong; he also links to his March, 2006 reply where he said that his April, 2003 gloating about the war's great success "holds up pretty well").

Just go read what Reynolds wrote in that April, 2003 post (first pointed out by Tom Tomorrow) and then contemplate the level of irrationality and reality-denial necessary to defend those statements as accurate, to claim they "hold up pretty well." Many Iraq war advocates were honest enough to admit that they were wrong, that Iraq was and is falling apart, but the most dishonest of them -- the Steyns, Krauthammers and Reynolds -- prefer to embrace transparent falsehoods than change their thinking about anything or admit that they were wrong about anything. Preventing individuals of this type from leading this country into more disasters is genuinely urgent.

Who decides what the U.S. will do about Iraq and Iran?

A somewhat overlooked part of President Bush's Press Conference this week was his comments strongly suggesting that he believes only he -- and not the Congress -- has the power to decide when the war in Iraq ends, as well as whether we will begin a new war with Iran. All of the debates we are having about what to do about Iran and Iraq are meaningless if the President believes (as he seems to) that all power to decide these matters rests with him.

As Atrios noted the other day, the administration's intentions regarding a war with Iran are unclear. The most likely reason that it's unclear is because the administration is still undecided about whether to start that war, most likely because the more extremist warmongers in the administration have yet to convince those who need to be convinced of the war's necessity (at least its pre-November necessity). No reasonable person can doubt that political considerations will play a significant role in all of this. Will forcing a mere debate over military action against Iran be enough for Karl Rove to create the warrior-appeaser dichotomy which is all he knows, or will more be required, i.e., an all-out military conflict in order to generate war-based support for the President and his party?

But whatever the administration's plans are, there is, as I have written about before, a very real question as to whether the administration believes it can attack Iran on its own, i.e., without the approval of the American people through the Congress. The theories of executive power embraced by the administration leave little doubt that they believe, at least in theory, that decisions about whether to go to war against Iran, or to end the war in Iraq, are for the President alone to make, and that Congressional authorization is unecessary to attack Iran, and for the same reason, Congress cannot end the war in Iraq.

When speaking about Iraq at his Press Conference this week, the President seemed to make rather clear that he believes Congress has no role to play in decisions concerning when wars begin and end:

And any sign that says we're going to leave before the job is done simply emboldens terrorists and creates a certain amount of doubt for people so they won't take the risk necessary to help a civil society evolve in the country.

This is a campaign -- I'm sure they're watching the campaign carefully. There are a lot of good, decent people saying, get out now; vote for me, I will do everything I can to, I guess, cut off money is what they'll try to do to get our troops out. It's a big mistake. It would be wrong, in my judgment, for us to leave before the mission is complete in Iraq.

That is very deliberate wording; he went out of his way to point out that the only thing Congress could do to "try" to compel a withdrawal of troops is to cut off funding. The President clearly has been involved in discussions where it was told to him that he does not need Congressional authorization to fight wars and that Congress cannot force him to end a war by voting, for instance, to revoke the 2002 Authorization to Use Military Force in Iraq. Clearly, the President believes he can stay in Iraq even if such authorization is revoked.

That the President believes Congress is powerless with regard to war matters seems independently clear from the President's emphatic declaration that "We're not leaving, so long as I'm the President." Senators have introduced and debated legislation to compel troop withdrawals from Iraq, but the President quite clearly believes that such debates are meaningless because only he -- not the American people's representatives -- decides if and when troops are to be withdrawn from Iraq.

The significance of these views for the Iran situation is obvious. It seems quite clear that the President believes he has the power to begin a war with Iran without Congressional approval, or even in the face of Congressional opposition to such a war. That view is plainly contrary to core principles of our system of government. In Federalist 69, Hamilton sought to assuage fears that creating a President would lead to monarchical rule, and to do so, he contrasted the "inferior" powers of the President with those of the British King, particularly in the area of war-making (last emphasis added):

The most material points of difference are these: -- First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.

Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. 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.

How much clearer could that be? The President does not have the power to simply deploy armies at will. He merely commands armies which Congress deploys into battle. Congress decides when and if wars will be fought; the President merely decides as the "first General" how they will be fought. As John Jay explained in Federalist 4, requiring that the American people approve of wars (through their Congress) is essential for avoiding unnecessary wars, because Presidents will start wars that are unnecessary i.e., for their own benefit, if they can do so without the authorization of Congress:

It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.

That is why it was critical to the Founders that wars not be waged unless those wars have the support of the people through the Congress. The Founders recognized the danger of vesting power to start wars with the President -- a power which President Bush clearly believes he has. As Jay made clear, allowing Presidents the power to decide when wars begin and end would ensure that America wages wars in order to aggrandize the personal interests of the President rather than to serve the national interest.

It's nice that so many people seem interested in debating whether military confrontation with Iran is prudent and/or whether we should withdraw from Iraq, but there is a real question as to whether the President thinks the outcome of those debates matters. Indeed, he has made clear that he believes only he can decide when wars begin and end. Finding out from the administration whether they believe they can wage war on Iran without Congressional approval, and/or whether Congress has the power to compel the end of the war in Iraq, is something that probably ought to be a high priority for our nation's journalists. The American people should know whether the President believes they have any role in deciding matters of war and peace.

Thursday, August 24, 2006

Those opposed to nuclear annihilation are appeasers and guilty of "handwringing"

I read numerous pro-Bush blogs on a daily basis, including many war mongerers who routinely imply that we ought to be eradicating large numbers of Middle Eastern civilians as the solution to all of our woes, so it takes a lot in the extremism department to really surprise me. But this column from Walter Williams -- highly recommended today by National Review's Mark Levin -- did so with plenty of room to spare.

Williams points out that we could easily "annihilate" Iran or Syria with nuclear weapons launched from submarines. He then claims that the Great Generation of World War II would have done so already, but laments the tragic fact that we are deterred from doing this by what he calls the "handwringing about the innocent lives lost, so-called collateral damage" (all emphasis mine):

Does the United States have the power to eliminate terrorists and the states that support them? In terms of capacity, as opposed to will, the answer is a clear yes.

Think about it. Currently, the U.S. has an arsenal of 18 Ohio class submarines. Just one submarine is loaded with 24 Trident nuclear missiles. Each Trident missile has eight nuclear warheads capable of being independently targeted. That means the U.S. alone has the capacity to wipe out Iran, Syria or any other state that supports terrorist groups or engages in terrorism -- without risking the life of a single soldier.

Terrorist supporters know we have this capacity, but because of worldwide public opinion, which often appears to be on their side, coupled with our weak will, we'll never use it.

Today's Americans are vastly different from those of my generation who fought the life-and-death struggle of World War II. Any attempt to annihilate our Middle East enemies would create all sorts of handwringing about the innocent lives lost, so-called collateral damage.

Such an argument would have fallen on deaf ears during World War II when we firebombed cities in Germany and Japan. The loss of lives through saturation bombing far exceeded those lost through the dropping of atomic bombs on Hiroshima and Nagasaki.

Like all lovers of the Western way of life, Williams blames the free press for these threats to our freedoms: "Our adversaries in the Middle East have advantages that the axis powers didn't have -- the Western press and public opinion." After spilling his nuclear annihilation fantasies out in the open, Williams pays lip service to the idea that we should at least think a little bit before eradicating entire countries -- "I'm not suggesting that we rush to use our nuclear capacity to crush states that support terrorism" -- but there is little doubt about what he is advocating.

Many Bush supporters routinely play this game of leapfrog where they inch closer and closer to being explicit (rather than coy) about what they really want -- the use of unrestrained force, meaning nuclear force, in Iran, Syria, against Hezbollah and even in Iraq. Williams advances that ball rather substantially. He goes so far as to mock as "handwringing" concerns over the (hundreds of millions or so) innocent lives that would be eradicated if we dropped nuclear weapons and eliminated whole countries. Those who think we ought not to vaporize Syria and Iran off the face of the earth are, to Williams, weak, appeasing losers who can't stop their annoying "handwringing" over all this "innocent life" garbage. What is there to say about that? It would be funny if it weren't quite so sick. Maybe it's time to hear some more life-affirming sermons from Ramesh Ponnuru about how amoral Democrats are the Party of Death.

It is tempting to dismiss insanity like that spewing forth from Williams because, well, because it's so insane, patently so. Some ideas are so self-evidently outrageous that even analyzing them rationally is impossible. If there is any such "idea" which clearly qualifies, it would be using nuclear weapons to offensively eradicate a country which has not attacked us. Even suggesting that is monstrous and dangerous (isn't that supposedly what makes the Iranian president so evil, so Hitlerian -- that he openly speaks of eradicating Israel from the map?).

And yet Walter Williams and Mark Levin are perfectly mainstream figures, as are Shelby Steele, John Podhoretz and scores of others who -- with varying degrees of candor -- have insinuated their support for similar bloodthirsty proposals. All this complaining about how we are losing in Iraq, being humiliated by Iran and Syria, getting pushed around by Hezbollah, all because we are too restrained in our use of military force has been edging closer and closer to collective calls for all-out destruction of our enemies.

It's plainly time to add pre-emptive nuclear annihilation of entire countries to the list of policies (along with the use of torture as an interrogation tool, rendition, laweless detention of U.S. citizens, and presidential law-breaking) which are so self-evidently contrary to the defining values of our country that they used to be taboo even to advocate, but are now commonly accepted policies among many mainstream pundits, including those who most ardently support the current president.

More support for John Dean's thesis found in John Hinderaker's "big brother"

(1) When President Bush becomes emotional -- as he clearly was at his Press Conference this week when speaking about Iraq -- he sometimes veers off-script and, in the process, ends up acknowledging facts which the administration generally prefers to obscure. At the Press Conference, the President unambiguously admitted during one of his intense, rambling defenses of the Iraq invasion that (a) Saddam had no WMDs at the time we invaded and (b) those non-existent WMDs were "the main reason we went into Iraq."

As Terry Welch astutely documents, the acknowledgment that WMDs is the "main reason" for the invasion contradicts the claims of his most ardent loyalists to justify the war. Additionally, contrast Bush's straightforward admission ("we thought he had weapons of mass destruction. It turns out he didn't . . .") with the claim made by John Hinderaker as recently as a couple weeks ago ("about the fact that Iraq possessed WMDs, there is no doubt"). Hinderaker was defending those who told a recent Harris Poll that they still believe Iraq had WMDs at the time we invaded. To defend the President's adventure in Iraq, his most loyal supporters insist upon fictions (that WMDs were not the main reason for invading, that Iraq had WMDs) which even the President, at long last, is unwilling to maintain any longer.

(2) This week, Hinderaker was part of a small gathering that toured the Oval Office and heard the President speak. Afterwards, he authored one of the most painfully obsequious posts ever, which is saying a lot, given that Hinderaker is the Bush follower who previously said: "It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can't get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another . . ."

His most recent paean to George Bush was appropriately titled "Hail to the Chief," and Hinderaker said that being able to hear President Bush Speak was "an absolutely riveting experience"; that "it may have been the best I've ever seen any politician"; that "up close, [Bush] is a great communicator, in a way that, in my opinion, Ronald Reagan was not"; and that it was "the most inspiring forty minutes I've experienced in politics." He also shared that he is "worried about how President Bush can withstand the Washington snake pit" whose attacks "dwarf[] in both volume and injustice the abuse directed against any prior President."

Most notably by far, Hinderaker also said, with no irony at all, that Bush's "persona is very much that of the big brother." I have never agreed more with any statement. That is exactly the persona which has been created for George Bush, and the fact that it is -- to use Hinderaker's own unbelievably revealing description -- a "big brother" which Hinderaker and so many of his like-minded Bush followers want, need and crave really does explain virtually everything one needs to know about the so-called new "conservatism."

George Bush is the "big brother" which John Hinderaker wants and needs, and for that, he really loves the President. That might be unpleasant to think about, even creepy and rather disturbing, but that dynamic is indispensable in understanding the mindset fueling so much of the Bush movement.

(3) At the risk of beating a dead horse, there is one other point worth making about the Ann Althouse Op-Ed. In the very first sentence, Althouse criticized Judge Taylor for "referring to [Earl Warren] as 'Justice Warren,' not 'Chief Justice Warren,' as if she wanted to spotlight her carelessness." The day before, Althouse created an entire post on her blog with the exclusive purpose of making this same "point" ("How can you forget to call him Chief Justice?").

But Madison Guy points to another Op-Ed written by Althouse in the NYT back in 2005, the purpose of which was to defend the Sam Alito nomination. To do so, Althouse said this: "Yet while Justice Burger remained conservative, Justice Blackmun went on to write the opinion legalizing abortion in Roe v. Wade and, eventually, to vote consistently with the liberal justices." As Madison Guy notes: "that would be Chief Justice Warren Burger, right?"

(4) The Daily Mail has a brief profile (and picture) of the two men whom hysterical passengers on a British jet last week demanded be removed because they looked Arab, were speaking a language that sounded like Arabic and were wearing leather jackets. They are both 22 years old and students at Manchester Umist, and one of them said: "'We might be Asian, but we're two ordinary lads who wanted a bit of fun,' Mr Ashraf told the Daily Mirror. 'Just because we're Muslim does not mean we are suicide bombers.'" Someone needs to explain to them that a refusal to equate young Muslim males with suicide bombers is the type of political correctness which endangers us all.

Underscoring how misguided that approach is, the Daily Mail also coincidentally has a profile of would-be shoe bomber Richard Reid, which reminds us that Reid "is the son of a white mother and Jamaican father, both non-Muslims who split up when he was two." With the Arab-obsessed security systems urged by Bush followers, Reid and Muslim extremists like him would be able to use their non-Arab faces and Anglo names to sail right through security. But airport security has little to do with the crazed demands for Arab-based profiling at airports.

(5) Yesterday, Glenn Reynolds promoted this "report" from Gateway Pundit which Reynolds describes as taking "a look at the security situation in Iraq." That "report" purports to show -- as always -- that things are improving dramatically and violence is decreasing in Iraq, and that there is "a very different picture of Iraq" than the one painted by the NYT last week (the Post painted an ever grimmer picture).

Gateway Pundit also claims that "the BBC is even reporting the joint operation to improve security in Baghdad is bringing results," except the BBC reports no such thing. It reports only that Bush officials along with their Iraqi government comrades claim that Baghdad is getting safer, not that it actually is. But Bush followers, of course, don't recognize any distinction between claims by the government and reality, which is a significant factor in explaining why things are the way they are in Iraq.

It is just astonishing that Reynolds, even now, continues to promote the claim that things are going well in Iraq, that the security situation is improving (he's been claiming that for three straight years), that the country is becoming more peaceful and stable, etc. etc. Literally only the most blindly loyal reality-deniers are willing to do that. For those interested, this blog astutely chronicles the vapid manipulation and deceit that lies at the heart of Reynolds' political advocacy on a daily basis.

(6) Hinderaker's unnatural reverence for George W. Bush, as well as Reynolds' ongoing insistence that things are great in Baghdad, is the perfect segue for the reminder that on this Sunday, at 5:00 p.m. EST, I will be hosting the FDL Book Club discussion of John Dean's Conservatives Without Conscience, which examines the authoritarian attributes of the Bush movement. Dean will participate in Part II of the discussion, to take place the following Sunday (September 3) at the same time.

Wednesday, August 23, 2006

Ann Althouse - NYT legal expert on a case she knows nothing about

(updated below)

This Op-Ed in today's New York Times by Ann Althouse purports to criticize Judge Taylor's ruling in the NSA case on the ground that Taylor "didn’t bother to come up with the verbiage that normally cushions us" from suspicions that a court is motivated by the result, not the law, and because what Althouse calls "immensely difficult matters" surrounding Bush's violations of FISA were "disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality."

The fact that something is "immensely difficult" for Ann Althouse to figure out does not mean that it is, in fact, "immensely difficult." Most actual legal experts, across the ideological spectrum, have found nothing challenging -- let alone "immensely difficult" -- about concluding that the President of the United States does not have the power to break the law by engaging in the very conduct which the law criminalizes.

Althouse thinks that the President's claim that neither courts nor Congress can interfere in his conduct with regard to national security "is a serious argument, and judges need to take it seriously," but she never says why that argument is "serious" or what the court failed to consider in rejecting the administration's theories of presidential omnipotence. Althouse apparently thinks that repeating the words "serious" and "difficult" enough times will bestow on her little platitudes the scholarly weight which her analysis so plainly, so embarrassingly lacks.

Ironically, although Althouse devotes the bulk of her Op-Ed to criticizing Judge Taylor for failing to consider important arguments, or failing to consider them "seriously" enough, it is Althouse's Op-Ed that is completely bereft of reasoning. It's basically one long list of political cliches and banal ad hominems more suitable to a Rush Limbaugh opening monologue than some "serious" legal analysis of a judicial opinion. Althouse -- who yesterday revealingly accused Judge Taylor of being "barely literate" and said Taylor's decision "nauseated" her -- wastes the Op-Ed space of the NYT to mock Taylor for referring to Earl Warren as "Justice Warren," rather than "Chief Justice Warren"; predictably accuses Taylor of being an "activist" judge; and meaninglessly claims that Taylor failed to "suppress [her] personal and political willfulness." None of this is accompanied by any substantive rationale; it's just one trite, empty, pro-Bush bumper sticker judge insult after the next.

That Althouse's "critique" of Judge Taylor's opinion is so free of substance is not merely ironic but also entirely unsurprising. As I documented yesterday (based on Althouse's forced admissions), she actually had no idea what even happened in this case until Monday night. The Bush Department of Justice made the decision not to address the merits and substance of the ACLU's constitutional claims despite being ordered to do so by the court -- twice. Althouse has spent the last week attacking the court for its failure to address arguments that the DoJ never raised -- and now makes the same inane, patently misinformed criticisms of Taylor in The New York Times.

But it is nothing short of humiliating that Althouse had no idea that any of that happened in this case. She hasn't followed this case at all. She has no idea what took place. Just as is the case for her good friend and colleague, Orin Kerr, whom she cites for support in her Op-Ed, Althouse is criticizing Judge Taylor for an "incomplete" opinion because Althouse is entirely ignorant of the fact that the DoJ chose not to advance any substantive arguments on the merits of these claims. She quotes Kerr to accuse Taylor of issuing an "incomplete" opinion, but Kerr -- like Althouse -- simply did not know that the DoJ made no substantive arguments that went to the merits of this lawsuit (a failure which arose from the fact that the DoJ, reflecting the Bush administration's belief that it is above judicial review, argued only that the court had no right to decide these issues).

Although these critical events in this lawsuit were all public and reported by major newspapers, Althouse learned of them for the first time -- as she reluctantly admitted -- by reading the Comment section at Volokh on Monday, after which she had to correct a completely false factual claim she made about the case. Her ignorance about these matters was not concerning some obscure legalisitc point. Rather, she was just blissfully and inexcusably unaware of the most important fact necessary for understanding Judge Taylor's decision -- that the DoJ failed to raise any of the issues which she and her good friend, Professor Kerr, find so "immensely difficult."

Georgetown Law Professor Marty Lederman -- who took the time to read the DoJ's Brief (.pdf) -- explained that the DoJ "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter." Therefore, criticizing Judge Taylor for failing to address those "immensely difficult" arguments which were never raised in this case reveals a complete misunderstanding of this lawsuit and the legal principles governing Judge Taylor's decision.

Althouse did not follow this case and had no idea what happened in it. She formed her views about the court's ruling and then proceeded to express them loudly and publicly without bothering to do the smallest amount of work which would be necessary for forming a responsible opinion -- including even reviewing what the DoJ argued here or finding out what happened previously in this case (she even aggressively criticized the court's opinion while admitting that she only had time to "skim it"). Even after that, it is clear that she just read the opinion and then spat up some trite political slogans attacking the court, exhibiting precisely the intellectual sloth and undisciplined approach of which she thinks she is qualified to accuse Judge Taylor.

But this gaping lack of relevant knowledge did not stop Althouse from writing an Op-Ed, nor stop The New York Times from publishing it, in which she pretended to be some sort of legal expert on the issues decided by Judge Taylor. The fact that someone can be paraded around as an expert on a lawsuit about which they know next to nothing is as good of an explanation as any for the sorry, distortive state of our political discourse.

UPDATE: The inanities in Althouse's Op-Ed are far too numerous for there to be any hope of capturing even the majority of them in a single post, but this comment points to one too extreme to be overlooked. Althouse's accusation of "judicial activism" here is particularly incoherent given that Judge Taylor was upholding and enforcing a law (called FISA) that was overwhelmingly enacted by the American people through their Congress. Enforcing a democratically enacted law -- as Judge Taylor did -- is the opposite of what "judicial activism" describes (i.e., where a judge ignores the "will of the people" by undemocratically striking down laws they enact).

UPDATE II: As Scott Lemieux notes in a comment: "what's even funnier about her newly minted interest in formalistic reasoning and 'judicial activism' is that she wrote an article defending that epitome of formalism and judicial restraint Bush v. Gore." Armando previously dissected Althouse's defense of Bush v. Gore, as part of which she said the decision "works best as a rich and revealing case study of the human mind in action." Someone who (a) criticizes a judicial ruling while knowing virtually nothing about the case and (b) defends Bush v. Gore is probably the very last person who ought to be sermonizing about the need for serious, scholarly, judicially restrained reasoning.

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