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.

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?

"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."

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.

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.

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.

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.

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.

Bush supporters develop sudden interest, expertise in judicial ethical rules

Bush supporters have suddenly developed -- literally overnight -- a profound and noble interest in the judicial ethical rules governing conflicts of interest. They're all experts on these rules now and most (though not all) have shockingly decided that Judge Anna Diggs Taylor acted improperly by ruling on the NSA case even though she is a Trustee of an organization that donated money to the ACLU (which means she is a corrupt person, which means that her ruling was wrong, which shows that the Commander-in-Chief did nothing wrong). Experts in judicial ethics are making clear that this was hardly an arrangement requiring recusal, but at worst, should have been disclosed.

To illuminate what is really going on here, let us note the fact that the same crowd attacking Taylor now was quite dismissive over a far more serious and corrupt "conflict of interest" -- the fact that Supreme Court Justice Antonin Scalia went on an intimate little hunting trip with Vice President Dick Cheney just weeks after the U.S. Supreme Court decided to accept an appeal in the lawsuit in which Vice President Cheney had been sued for his failure to reveal facts surrounding the Energy Task Force. Cheney never disclosed his hunting excursion, nor did Scalia. Instead, the parties discovered this only when The Los Angeles Times learned of it and then reported it.

As the Washington Post reported at the time, "some legal ethicists and dozens of newspaper editorials have called on Scalia to stay out of the case." But Cheney's good friend and hunting buddy refused to recuse himself, and he then proceeded to vote in favor of his good friend in that case by joining an aggressively pro-Cheney dissent written by Clarence Thomas and joined by nobody else (not even then-Chief Justice William Rehnquist).

To defend Scalia's decision to rule on his friend's case, Matthew Frank wrote in National Review that a judge should be recused only when there is a conflict of interest -- meaning an actual personal interest in the outcome of the case:

The crucial concept animating most of its examples involving relationships with litigants is interest — as in conflict of.

It cannot reasonably be contended that Scalia has an interest in the outcome of Cheney's case. What does it matter to him whether the vice president is required to disclose the inner workings of the energy task force? To borrow a Jeffersonian expression, it neither picks his pocket nor breaks his leg if Cheney loses — or wins.

Frank also argued:

The judicial code says that "a judge should not allow family, social, or other relationships to influence judicial conduct or judgment." Note that this language does not forbid a judge to have a social relationship with a litigant, nor require him to recuse himself if he does have one — only to prevent such a relationship from influencing his judgment.

The argument that Taylor should have disclosed this arrangement is plausible (though the argument that she should have recused herself is not). It is always best for judges to err on the side of excess disclosure, and I can't say that I would be indifferent to the relationship if I were a litigant in a case before her against the ACLU. But judges have professional relationships of all sorts with litigants and lawyers before them, and it goes without saying that Taylor had far less of an "interest" in the outcome of this case than Scalia had in the outcome of the lawsuit against his friend. Yet many of those who will now pretend to be so-very-concerned over the important rules of judicial ethics vigorously defended Scalia back then, needless to say.

Paul at Powerline claimed that those calling for Scalia's recusal were "unable to find legal or historical precedent to support its position." National Review also published an article by Richard Rotunda defending Scalia, which argued that "Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips, and live a life." A Wall St. Journal Editorial angrily defended Scalia, denounced the calls for recusal as an "attempt at intimidating the Supreme Court," and warned "the Supreme Court is already enough of a political flashpoint without drawing it into the partisan ethics wars."

Ever since she ruled that the Commander-in-Chief acted illegally, Judge Taylor has been the target of all sorts of vicious and stupid personal attacks intended to discredit the ruling. The ink on the decision was barely dry when she was already widely demonized as a stupid old black woman appointed by Jimmy Carter. How revolting that someone like that can make decisions about such towering national security matters.

Did you know that her first husband committed crimes after they were divorced (a fact I learned on the day of the ruling from one of Instapundit's favorite "news" sources)? And I learned yesterday from that towering intellect, Ann Althouse, that Judge Taylor is "barely literate."

That's all this little outburst is, of course -- the latest prong in the effort to throw as much personal bile as possible at Judge Taylor in order to undermine her ruling and to distract attention from the fact that we have a President who has seized the power to break the law. Look at any individual over the last five years who has prominently and aggressively criticized the Leader, and see if you can find one who has not been the target of vicious, personal assaults designed to destroy their reputation and credibility.

Grading the law professors; apologies due Judge Taylor

(updated below)

At the rate things are going, Judge Anna Diggs Taylor is going to be due a serious apology some time soon, if she isn't due one already. It turns out many of the "experts" who were widely cited to support the attacks on Judge Taylor's opinion were actually themselves quite misinformed about the basic matters governing her rulings.

Here, for instance, is a post from Orin Kerr which reflects a deep misunderstanding of the issues which Judge Taylor ruled on. I'm not trying to single him out. To the contrary, he's been commendably candid about his lack of expertise in (I would even say knowledge of) how civil litigation works (a modesty and candor which many lack). Yet despite his self-professed unfamiliarity with civil litigation, he was one of the most widely-quoted law professors by those wanting to disparage the quality of Judge Taylor's opinion, and the result of his lack of relevant knowledge (about both civil litigation rules generally and the events in this case) were some plainly misguided attacks.

In his post, Kerr responds to a point I (and others) have made -- that a principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a "state secret," the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack "standing"), that it basically chose not to address the merits of the plaintiffs' case at all.

Indeed, as I wrote about here at the time it happened, the DoJ twice tried to convince Judge Taylor not to rule on the substance of the ACLU's claim, but instead to rule first on the DoJ's "state secrets" argument. Twice, the court refused this request, ordering the DoJ to address the merits of the case (this Comment to Kerr's post, documents the case's procedural history). But the DoJ essentially refused to do so, and devoted almost all of its brief (.pdf) to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As Marty Lederman put it once he read the DoJ's Brief: it "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter."

As this excellent Comment to Kerr's post reflects, the Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

But plainly, Kerr -- when issuing his widely cited condemnations of the court's ruling -- had no idea (a) that any of this (meaning the case's procedural history) had happened and (b) that on a Motion for Summary Judgment (which is what the ACLU filed and the court decided), the most basic rule is that any fact that one party fails to dispute (with evidence) shall be deemed "undisputed." Thus, in response to the Comment documenting the procedural history, Kerr wrote: "Thanks a TON for the background of the case; this is very helpful, and I hope to have an update or new post up soon about it." And in response to my pointing out the other day that the DoJ's failure to dispute any of these factual assertions compelled the court to treat them as undisputed, Kerr wrote:

Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.

But far from being "bizarre," this proposition -- that facts which a party fails (for whatever reasons) to dispute on Summary Judgment are deemed "undisputed" by the court -- is one of the most basic principles of civil litigation in the federal courts, as any federal court litigator would know. Someone (such as Kerr) who is unaware of those rules might find it "bizarre" that the court repeatedly labelled as "undisputed" facts and propositions which Kerr himself might want to dispute, but given the DoJ's failure to dispute these propositions, the court was required to treat them as such. How can someone who is (a) unfamiliar with the case itself and (b) unfamiliar with the rules governing the key issues before the court be cited as the preeminent expert to opine that the court's opinion is so flawed?

Then we have University of Wisconsin School of Law Professor Ann Althouse, who wrote a post last night citing to Kerr's post and declaring that he "seems to be getting at what happened" in this case. She then points to what she calls "the weird repetition of the strange word 'undisputedly' throughout the opinion" and -- in bolded letters -- she criticizes the court for not even mentioning the DoJ's motion for a "stay" (i.e. its request that the court not rule on the substance of the claims until it decides the DoJ's motion to dismiss on the "state secrets" ground).

But then, in an "Update," Althouse has to correct herself because, apparently, she read the Comment section to Kerr's post and realized that she was just wrong about what happened -- specifically, that the court did previously deny the DoJ's request and ordered the DoJ to address the substance of the plaintiffs' claims. Learning about the procedural history of this case caused Althouse to write:

Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.

In other words, Kerr's critique (which Althouse endorsed) of the court's opinion is just wrong -- factually wrong. The court directed the DoJ to address the substance of the claims and the DoJ simply failed and/or refused to do so -- facts which neither Kerr nor Althouse even knew when attacking the court's opinion. And there is nothing "arguable" about it -- if one party moves for Summary Judgment and presents competent evidence supporting its factual claims (as the ACLU indisputably did here), and the other party fails to dispute those facts with competent evidence (as the DoJ indisputably did here), then those facts are "undisputed," by definition.

I seriously doubt based on their commentary that Kerr or Althouse (and most, though not all, of the other law professor critics) have been following this case at all. They don't seem to be aware of some rather critical events which are indispensable in understanding what the court did here -- or, at least, they weren't aware of those events at the time they were attacking Judge Taylor's opinion. What appears to have happened is that they read the opinion on the day it was issued and evaluated it without regard to (or knowledge of) the procedural history of the case, the rules of civil litigation, and the arguments advanced by the DoJ-- i.e., they evaluated it the way a law professor would grade an exam or comment on a law review article, not the way a judicial opinion of this type must be understood (which was part of what Professor Tribe was pointing out the other day).

It is true that there are parts of Judge Taylor's opinion which are surprisingly conclusory, but that does not necessarily make it flawed. It is amazing to watch virtually everyone who is trying to attack her opinion do so by making arguments which the DoJ never made in the case before her. A basic familiarity with this case and with the rules of civil procedure -- both of which many of her critics clearly lacked -- would reveal that Judge Taylor's opinion was infinitely more sound than the conventional wisdom (thanks to many of these law professors) now holds that it was.

Finally, for two critical, under-appreciated points concerning Judge Taylor's decisions, see here.

UPDATE: Add Law Professor Geoffrey Stone, former Dean of the University of Chicago Law School and current constitutional law expert, to the list of admirers of Judge Taylor's opinion. Professor Stone says that he is "confident Judge Taylor reached the right result as a matter of law" (emphasis added; h/t Mona), and that it took "a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security."

It certainly did -- far more courage than almost anyone else has shown (in the Congress, the courts or the media) in the face of the administration's endless exploitation of terrorism to claim virutally unlimited power. It looks as though the little conventional wisdom claim that "All of the High Scholarly Distinguished Priests of Legal Wisdom Agree that this Decision is Undignified and Distasteful" is going to have to be re-written. Some public recanting is in order.

Two critical, under-recognized points about Judge Taylor's ruling

Following up on the post above responding to Orin Kerr, Ann Althouse and similar law professor critics of Judge Taylor's opinion, I want to underscore two other crucial points:

(1) The vast bulk of the criticism of the court's opinion has focused on her finding that warrantless eavesdropping violates the Fourth and First Amendments. But whether warrantless eavesdropping violates the Fourth Amendment (let alone the First Amendment) has always been a secondary issue (an important issue, to be sure, but not the issue which gave rise to the NSA scandal).

The predominant issue has been, and still is, not that the President's warrantless eavesdropping program is unconstitutional, but that it is illegal, because it is a felony under FISA to eavesdrop on Americans without warrants. I have not seen very much criticism at all of the court's analysis of that issue, where she quite correctly applies the Supreme Court's Yongstown ruling and rejects the administration's only two defenses to that law-breaking (i.e., that Article II powers cannot be restricted and that the AUMF implicitly authorizes violations of FISA). The court's ruling on those two issues is perfectly competent and clear. That finding, by itself and irrespective of the Fourth Amendment issue, is sufficient to demonstrate that the President's NSA program is illegal.

(2) For all the attacks on the quality of Judge Taylor's opinion and her status as a Carter-appointed judge, virtually the entirety of her ruling is amply supported across the ideological spectrum.

Most legal commentators (including Professor Kerr) have agreed that the NSA program has serious legal vulnerabilities, at least. Indeed, Kerr himself previously predicted that the administration would lose on its Article II justification for violationg FISA by an 8-1 vote in the U.S. Supreme Court and said that he "do[esn't] see the Article II claim as a close one based on existing law" (a position which is now strongly bolstered by the Supreme Court's ruling in Hamdam). Meanwhile, most experts agree -- including those few who were previously sympathetic -- that Hamdam also forecloses the administration's only other legal defense to its FISA violations (AUMF). As for Judge Taylor's rejection of the administration's "state secrets" argument, she adopted the reasoning of Judge Vaughn Walker -- a Bush 41 appointee -- who rejected this argument on the same ground in the ATT/EFF case only a month ago.

And even with regard to the Fourth Amendment claim, it is worth reminding ourselves that in 2002, the Bush Justice Department refused to support the lowering of the eavesdropping standard in FISA from "probable cause" to "reasonable suspicion" (as Sen. DeWine proposed) due in part to concerns that such eavesdropping would violate the Fourth Amendment. The eavesdropping in question there has far greater constitutional footing than the eavesdropping declared unconstitutional by Judge Taylor, since (a) it was to apply only to non-citizens (the Bush NSA program applies to U.S. citizens) and (b) it would still be subject to judicial review under the "reasonable suspicion" standard (the Bush NSA eavesdropping has no judicial review). If the Bush administration itself was concerned that DeWine's proposed eavesdropping would violate the Fourth Amendment, it goes without saying that there is a very substantial ground for concluding, as Judge Taylor did, that the far broader Bush NSA program does as well.

The attack on Judge Taylor's opinion was swift and aggressive -- but quite misguided in many instances, and just factually wrong in others. Her core rulings, particularly her conclusion that the Bush administration is violating the law without excuse, have strong support among the bulk of legal authorities (including "expert" commentators), and while it is certainly possible that there will be some ultimate reversal on a procedural issue (most likely the "standing" problem), it has become quite clear that with regard to the substantive issues, it is not Judge Taylor, but her critics, who have lacked "scholarly depth" in their analysis.

Rules of polite Washington discourse

Jonathan Turley (who, for those with the new law professor fetish, is one at George Washington University) puts his finger on why there is so much desire to focus on the "quality" of Judge Taylor's written opinion while all but ignoring the fact that a federal court just declared that the President of the United States has been repeatedly violating federal criminal laws, and still is:

The far more difficult question is the implication of Taylor's ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid.

Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

For people working in government, this opinion may lead to some collar tugging. If Taylor's decision is upheld or other courts reject the program, will the president promise to pardon those he ordered to carry out unlawful surveillance? The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge.

Legal battles which involve the government typically are waged over abstract questions as to whether a particular government action (a new law or a President's order) is invalid as being unconstitutional. While such battles can generate substantial emotion, they do not typically implicate government officials personally.

But the FISA ruling from Judge Taylor is of a much different nature. The question being decided by NSA cases is, effectively, whether George Bush and his top officials, along with those at the NSA following his orders by eavesdropping without judicial approval, are guilty of felonies. As Professor Turley notes, very few people actually believe the answer to that question is difficult to discern:

While Atty. Gen. Alberto Gonzales insists that the legal authority for the program is clear and filed a notice of appeal with the 6th U.S. Circuit Court of Appeals, few experts outside of the Bush administration support the program. To the contrary, federal law seems perfectly clear in prohibiting warrantless surveillance.

This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law -- he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine -- and yet official Washington (the political and pundit classes) simply decided to pretend that wasn't the case.

They agreed to acquiesce to the administration's fiction that there are some sort of complex and difficult legal questions with which one must grapple, and that only shrill partisans say that the President is violating the criminal law. And thus, a Washington ruling class which reveled in subpoenas and criminal investigations over such towering matters as Whitewater, Vince Foster and Monica Lewkinsky has collectively decided that talk of criminality on the part of the President for how he is spying on Americans is imprudent and unserious.

The Justice Department lawyers who approved this illegal program, the political officials who ordered it, and the journalists who defended it (and have enabled this presidency) are all part of the same circle, and the very suggestion that any of this is actually criminal -- even though it is all being done in violation of the crystal clear criminal law -- is just too unpleasant, too unruly, too disruptive to admit. As Turley puts it: "The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge."

But Judge Taylor's ruling -- with its very un-Beltway irreverence towards the President, and free of the fear of describing the President's lawbreaking as what it is -- is forcing that question out into the open, which is what explains so much of the hostility towards Judge Taylor. This judge, unknown to the Important People in academia and the political power centers, sitting in her little Detroit courtroom, has broken the rules. She used language which is uncouth (she pointed out the obvious -- that this President has pretenses to being a King) and refused to pay homage to the false orthodoxy that there are really difficult questions triggered by the President's refusal to abide by the criminal law. How irresponsible, unscholarly and unserious she is.

This is the same mindset that has placed off limits any real accounting for the abject disaster that our country has been lead into in Iraq. Official Washington won't accept any emphatic declarations of guilt over what happened because virtually the entire Washington establishment endorsed the invasion of Iraq, continued to defend the occupation, and is thus responsible for it. Thus, it's acceptable to offer polite and muted criticisms of those responsible, but they are not to be castigated or stigmatized in any way for their horrendous misjudgments and ongoing deceit.

Those who advocated the invasion of Iraq and made one false statement after the next about this war over several years are still respected wise experts whose wisdom still should be listened to, despite their little mistake which is perfectly understandable and not, in any way, a sign of any real flaws in character, intellect, integrity or judgment. That is what responsible, serious people have decided, and only shrill partisan hysterics speak in more direct or accusatory tones about what happened in Iraq. Demanding accountability for those responsible for it, or believing that those who most aggressively advocated this war ought at least to suffer a loss of credibility and status, is the just partisan, angry bile that is really unwarranted and unhelpful.

That is exactly what is driving the reaction to this court ruling as well. Notwithstanding all of the professorial angst-ridden deliberations, the NSA scandal is and always has been extremely simple. Congress, by an overwhelming bipartisan majority, passed a law 30 years ago making it a felony to eavesdrop on Americans without warrants and George Bush got caught violating that law -- a law nobody ever suggested was invalid until he got caught violating it. People who violate criminal laws are criminals, even if -- at least in the United States -- they hold high government positions. In decisive and unapologetic tones, Judge Taylor ruled -- consistent with the consensus of most legal experts -- that the President has been continuously breaking the law without any excuse, and that is something which our pundit and political classes simply want to ignore.

UPDATE: In rather stark terms, Jim Henley reacts to the calm, casual acknowledgment this weekend by leading Iraq war advocate Ken Pollack that Iraq is consumed by a civil war, a recognition Pollack is able to make on the Op-Ed page of the Washington Post, because he is still deemed an Important Foreign Policy Expert:

Ken baby, it’s your civil war as much as anyone’s. Pollack did more than anyone to encourage the famous “liberal hawks” to provide the bipartisan patina so useful in getting the Iraq invasion started. In the Army, someone would have long since left him alone in the study with a pistol and the discreet interval required to make the only appropriate gesture of regret, genuine atonement being impossible under the circumstances. In Japan he’d be a picture of the different ways light reflects off entrails and cutlery. In Washington, he gets to write new articles, as if he were an epidemiologist and not Typhoid Mary.

Bill Kristol, Charles Krauthammer, Newt Gingrich, Dick Cheney and on and on -- all of them treated by the national media as Important, Wise, Serious foreign policy figures despite their being fundamentally and recklessly wrong about virtually everything with regard to our Iraq disaster. The one thing which the permanent Washington class does not want is accountability -- not for tragic errors, not for lawbreaking -- because being held accountable is the one real threat to their fiefdoms.

UPDATE II: Via Atrios, Tom Tomorrow has a cartoon which illustrates this sad dynamic perfectly.

Various items

(1) Harvard Law Professor and constitutional law expert Laurence Tribe has written an e-mail to New York Times reporter Adam Liptak, in which Tribe points out just how petty and misguided is the obsession with attacking the "quality" of Judge Taylor's written opinion while all but ignoring the infinitely more important issues of systematic presidential law-breaking -- a point which, as readers here know, I have been arguing for three straight days now. I have a post up at C&L today about the Tribe e-mail.

I can't recall the last time I found something so sublimely written and argued. The entire Tribe letter is highly worth reading, but if I were forced to choose my favorite paragraph, I would probably have to pick this one:

My point isn’t that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But it’s those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one’s own professional credentials and one’s cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.

That is exactly right on every level, and I hope that those in the media who think that the importance of judicial opinions is determined by taking a poll of law professors (including some who have little or no experience with actual civil litigation) will speak with Professor Tribe before writing another article about this ruling.

(2) The transcript to the interview I did on Friday morning on Democracy Now, with Amy Goodman and Juan Gonzalez, is here. The interview can also be watched or listened to on the same page. It focuses on the NSA ruling as well as the implications of the Justice Department's criminal prosecution of the former AIPAC employees.

(3) Mona at Inactivist notes that even some of the President's hardest-core supporters are now acknowledging that the Iraq project is a failure, including one who wrote: "many other conservatives supported this president and this war, and it has degenerated into exactly the kind of mess that many, many voices (some of whom I respect, some of whom I still don’t — as if that mattered) warned about from the get-go. I’m sick about it."

Sometimes, reality becomes too undeniable even for those most willing to deny it. As Mona notes, there are still the Hugh Hewitts and Glenn Reynolds of the world who will cling to their fantasies and self-serving deceits until the bitter end (they are what Don Rumsfeld, in another context, refers to as "dead-enders"), but there is a clear tipping point that has been reached with Iraq, where even the most ardent war advocates are (for whatever it's worth) admitting error. Joe Gandelman at The Moderate Voice documents the same trend.

(4) Guest posting on Andrew Sullivan's blog, Michael Totten writes from Tel Aviv:

The mood here in Tel Aviv is pretty grim, too. The Olmert government looks like it could collapse under pressure at any time. Hardly anyone in this country seems to think the air war over Lebanon was a good idea anymore. Hassan Nasrallah’s claim of “victory” sounds almost plausible after a month of hard fighting failed to produce many of the tangible promised results. . . .

Israelis are far quicker to criticize their government during and immediately after a war than Americans are. . . . An even starker contrast is noticeable between Israel-supporters in Israel and Israel-supporters in America. Israel’s partisans in the U.S. often talk as though Israel rarely makes any mistakes, that because Israel is a democracy with a right to defend itself it can do no or little wrong. Israelis themselves rarely do this.

I've contrasted several times the Isrealis' willingness to acknowledge so openly and quickly that their war in Lebanon was going so poorly with the absurd insistence by Bush supporters in the U.S., sustained over several years, that the disaster in Iraq was going well. As Totten notes, these supporters apply their same absolutist, reality-denying mindset to Israel as they apply to the conduct of George Bush and the U.S. occupation of Iraq. Those who are Good can do no wrong, and leaders during a time of war are above reproach. As the Israelis recognize (and Iraq conclusively demonstrates), such blind loyalty to a country's leaders -- maintained even in the face of undeniable facts to the contrary -- does nothing but breed disaster.

Fear-mongering leads to anti-Arab hysteria on airplanes

(updated below)

All of the fear-mongering and political exploitation of terrorism from the Bush administration and its loyal supporters (including the British Prime Minister) is starting to produce predictable results. Passengers are becoming unwilling to fly on planes with Arab males. Yesterday, British passengers on a Monarch Airways flight to Manchester "mutinied" because there were two Arab men on the plane:

British holidaymakers staged an unprecedented mutiny - refusing to allow their flight to take off until two men they feared were terrorists were forcibly removed.

The extraordinary scenes happened after some of the 150 passengers on a Malaga-Manchester flight overheard two men of Asian appearance apparently talking Arabic.

Passengers told cabin crew they feared for their safety and demanded police action. Some stormed off the Monarch Airlines Airbus A320 minutes before it was due to leave the Costa del Sol at 3am. Others waiting for Flight ZB 613 in the departure lounge refused to board it.

By "Asian," the article almost certainly means Pakistani or an Arab country in the Middle East. One can scour the article in vain for any sign beyond their physical appearance to suggest these men were terrorists. The only thing which approaches "evidence" is this:

The trouble in Malaga flared last Wednesday as two British citizens in their 20s waited in the departure lounge to board the pre-dawn flight and were heard talking what passengers took to be Arabic. Worries spread after a female passenger said she had heard something that alarmed her.

Passengers noticed that, despite the heat, the pair were wearing leather jackets and thick jumpers and were regularly checking their watches.

They wore leather jackets and looked "regularly" at their watches (something only terrorists do when travelling). And they were Arab and speaking a language which the "passengers took be Arabic." And one passenger claimed to hear "something that alarmed her" -- though the article does not say what that was (and presumably, had it been something genuinely alarming, rather than the by-product of deranged Malkian paranoia, security would have been notified immediately). But the behavioral aspects seem to be after-the-fact rationalizations, as the article reports:

A spokesman for the Civil Guard in Malaga said: "These men had aroused suspicion because of their appearance and the fact that they were speaking in a foreign language thought to be an Arabic language, and the pilot was refusing to take off until they were escorted off the plane."

One passenger, Jo Schofield, said they "looked really suspicious with their heavy clothing, scruffy, rough, appearance and long hair." And in a scene right out of some Orwellian sci-fi cliche, or the LGF Comment section (same thing), the article reported: "Some of the older children, who had seen the terror alert on television, were starting to mutter things like, 'Those two look like they're bombers.'"

As passengers refused to fly, police arrived and "escorted the two Asian passengers off the jet." The plane was searched, nothing was found, and it took off three hours later -- "without the two men on board." For the crime of looking like Arabs and speaking Arabic, these two travellers, completely innocent, were banned from flying on the plane and were forced to stay overnight in Malaga and fly the next day.

The British government conservative opposition party spokesman has described this incident exactly as what it is:

Patrick Mercer, the Tory Homeland Security spokesman, said last night: "This is a victory for terrorists. These people on the flight have been terrorised into behaving irrationally."

For those unfortunate two men to be victimised because of the colour of their skin is just nonsense."

Is it "nonsense"? Not according to the right-wing blogs which have commented on this story -- they are applauding the passengers' refusal to fly with Arab males. The new media darling, Charles Johnson, says that "one view" is that "the passengers were behaving irrationally," but then goes on to hail this vile incident as "evidence that people are beginning to distrust their governments’ ability to protect them, because of the politically correct touchy-feely multiculturalism they can see all around." Daily Pundit's Bill Quick proudly acknowledges that he does the same thing as these passengers did: "Profile? I sure do. While the flight is waiting and boarding, I'm seeing if there's anyone the rest of us might have to fight and where they're sitting."

Even the typically restrained Captain Ed says that "common sense dictates that people will act in their perceived self-interest in any case, and that means people will remain highly suspicious of Arabic men traveling together -- and more so when they act strangely" (emphasis added). While he pays lip service to the acknowledgment that this is "hardly" fair, he blames the passengers' behavior on the fact that Western governments "insist on playing political correctness games instead of focusing on real threats as the Israelis have done for decades."

It would be really great -- so, so comforting -- if terrorists could be identified by looking at their faces. But as is true with the use of torture as an interrogation tool, one can leave aside the moral questions if one insists because singling out Arab-looking males is a stupid, ineffective and totally irrational method for finding terrorists. Islamic extremists come in all shapes, sizes, colors, ages, nationalities, and genders. If the category of suspects is narrowed to Arab-looking males, fewer things will help terrorists more since they will simply use terrorists whose physical appearance and demographic characteristics place them outside of the targeted class.

But it is the irrational fear here that is so striking, and really quite pitiful. They have whipped people into a state of such intense paranoia that they quiver at the sight of two Arab males on their plane. There is roughly one billion Muslims in the world, including some countries which have more than 100 million. The U.S. alone has 10 million. Enormous numbers of Muslims are not Arab and do not reside in Arab countries. There are 320 million people living in Arab states, and it should go without saying that only a tiny handful of them are "terrorists" (and that many terrorists reside elsewhere). To start refusing to fly or take buses or trains or be in the same room with the males in that population -- which is clearly the path we are on -- is just stupid, hysterical, and counter-productive from every perspective.

It can never be pointed out enough that the leading right-wing blogger is a proponent to this day of the interment of all Japanese-Americans during World War II. And the leading right-wing commentators traffic on a daily basis in anti-Arab and anti-Muslim hysteria, depicting the world as consisting of little else other than the threats to our safety and our families posed by the dark, always-lurking enemies.

Beating that drum every day, like everything else, will have consequences. The behavior of the passengers on this flight -- applauded by the obvious suspects -- is just the tip of that fear-mongering iceberg. Indeed, the Daily Mail reports already that this is hardly an isolated incident:

Websites used by pilots and cabin crew were yesterday reporting further incidents. In one, two British women with young children on another flight from Spain complained about flying with a bearded Muslim even though he had been security-checked twice before boarding.

What is certain is that as government officials like Tony Blair and those in the Bush administration come to rely more and more on fear-mongering, there is a lot more incidents like this in our future, and many of them will be worse.

UPDATE: I want to clarify one point. Personally, I don't blame anyone for having irrational thoughts and fears prior to flying. Our brains generate irrational fears in all sorts of different situations, and particularly with the fear-mongering and relentless media hyping of every rumored terrorist threat, it is hardly surprising that people will have these thoughts.

But the point here is best illustrated by analogy. "Courage" is not the absence of fear, but is instead the taking of action notwithstanding that fear. Identically, "rationality" is not the absence of irrational fears or thoughts, but is instead the choice not to allow those fears and thoughts to dictate behavior. The blame lies not with those who entertain such fear, but with those who allow it to govern their conduct, and more so, those who purposely stoke and exaggerate those fears due either to their own fears and/or because doing so is to their advantage.

UPDATE II: Barbara O'Brien has an excellent analysis of this event, and compares it to the shooting by the London Police of Brazilian Jean Charles de Menezes, who also committed the crime of looking Arabic and wearing a "suspicious" jacket.

Ongoing misconceptions about Judge Taylor's opinion

(updated below)

There are still some substantial misconceptions -- and some just outright factual inaccuracies -- regarding Judge Taylor's opinion in the NSA case as well as arguments I and others have made as to why criticisms of her opinion are overblown and ultimately inconsequential. Orin Kerr responded to the post I wrote yesterday about the condescending and misinformed Post editorial criticisms of Judge Taylor. The exchange I had with Kerr in the Comments section to that post (along with other comments there, as well as plenty of posts from overnight pro-Bush legal experts in the blogosphere) highlighted some of the more important and pervasive misconceptions:

(1) There is a fundamental difference between (a) a judicial ruling which reaches the correct legal conclusions but explains and/or analyzes the issues poorly, and (b) a judicial decision which reaches the wrong legal conclusions by using poor legal reasoning, but nonetheless produces desirable political or practical results. The decision from Judge Taylor is in category (a), not category (b), and nobody (at least that I have heard) is arguing that the decision should be celebrated despite its having reached the wrong legal conclusions.

(2) Nobody is arguing that it is "irrelevant" whether a court does a good job analyzing the issues before it or in explaining its decision. It is always preferable for a judge to do a good job in that regard, and a better opinion with regard to several issues would have been preferable here. The point is that, in the scheme of things, the quality of the judge's opinion is entirely inconsequential both in terms of the ultimate outcome of this case (which will be decided by a higher court) and in terms of the systematic law-breaking powers this administration has seized.

(3) What I argued yesterday -- that the correctness of the court's legal conclusions matters much more than the quality of the opinion -- is not some exotic theory I invented in order to criticize the Post editorial or defend Judge Taylor's opinion. To the contrary, that is the core principle on which appellate review in our country is premised.

Appellate courts cannot and do not reverse judicial decisions because the opinion was written poorly or because the reasoning was unconvincing. If the Sixth Circuit ends up thinking that this was the worst and most erroneous written opinion ever, but nonetheless agrees with the conclusions the Judge reached but for completely different reasons (on standing, the Fourth Amendment, FISA, etc.), the District Court's decision will be affirmed, not reversed. A bad or poorly reasoned opinion is not grounds for reversal. Only a wrong conclusion constitutes such a ground.

The issue on this appeal -- on every appeal -- is: "Are the court's conclusions correct?," not "do we agree with what the judge said and did in reaching that conclusion?" In a garden-variety lawsuit, a District Court opinion might have a significant impact on persuading appellate judges, but with issues of this magnitude, the appellate court will review the issues from scratch, no matter the quality of the lower court opinion. And if the Sixth Circuit concludes that the NSA program is unconstitutional and in violation of FISA, Judge Taylor's decision will be affirmed regardless of how pretty or complete its analysis is.

(4) The army of legal "scholars" who have spent the last couple of days patronizingly dismissing the Judge's decision have pretty substantial argumentative holes and misunderstandings of their own. Particularly with regard to some of the law professors (and definitely the editorialists and pundits), I question their familiarity with how civil litigation actually works and is supposed to work (as opposed to how the profound, high-minded constitutional debates play out in academia and Congressional hearings).

Unlike a law professor who searches out "the literature" in order to find every argument on an issue about which they opine, courts -- especially District Court Judges -- decide issues on the facts and arguments before them, i.e., those that are raised by the parties. If a party does not raise a certain legal defense, then the judge is under no obligation to address it (and it is arguably improper if she does). If a party fails to dispute a particular fact, then it is improper for the court to do anything other than treat the fact as undisputed.

Although a judge might go searching for legal arguments to consider if, for instance, there is a pro se litigant as part of the case, where, as here, the DoJ is before the court arguing in favor of presidential powers, the District Court has every right to assume that the issues raised by the DoJ are the ones that need to be addressed, and no others.

The DoJ's Brief was filed under seal and was not even publicly available. But by all appearances, it seems that the DoJ made the choice to not take very seriously the substance of the constitutional and legal challenges to the NSA program in this case, because it basically took the position that the court had no right even to rule on those issues (because of the "state secrets" doctrine and because of standing issues, to which the DoJ devoted the bulk of its efforts -- i.e., basically telling the court it had no power to decide these constitutional and other legal issues). [See UPDATE below for confirmation of this point].

Thus, the Plaintiffs' Reply Brief (.pdf) noted that Defendants "have failed to offer any formal defense to their violation of the law." The DoJ's principal arguments in defense of its lawbreaking appear to be focused on claims that (a) the AUMF authorized the FISA violations and (b) the President's Article II powers cannot be restricted by Congress. See pp. 11-12. But the parts of the court's opinion rejecting both of those arguments are solid (if not stellar) and, in any event, the Supreme Court itself in Hamdan almost certainly precluded argument (a) and dealt a severe if not fatal blow to (b).

But those who have been attacking the court for failing to consider certain arguments actually have no idea whether the Justice Department made those arguments in a thorough way or whether they even raised the arguments at all. I have seen, for instance, oh-so-knowing expressions of shock that the court did not consider the so-called "border inspection exception" to the Fourth Amendment when ruling that the NSA program is unconstitutional. But those who are criticizing the court for failing to address that argument have no idea if the DoJ even raised it, thus revealing the very analytical incoherence of which they accuse Judge Taylor.

If, as appears to be the case, the DoJ chose not to dispute certain factual claims (such as the claim that the president's eavesdropping falls within the mandates of FISA), then the court was absolutely correct to treat that as an undisputed fact. And if the DoJ failed to raise certain legal issues thoroughly or even at all, then the fault lies with the DoJ, not the court, for the fact that those issues played no role in the ruling.

Anyone who is (a) attacking Judge Taylor for not considering particular arguments even though (b) they have no idea if the DoJ raised those arguments, is in no position to criticize anyone for poor legal reasoning.

(5) As a very general proposition (with lots of exceptions), opinions from District Court Judges are typically less thorough and comprehensive than decisions from appellate courts and certainly from the Supreme Court. In fact, District Court Judges often issue rulings orally, or in one-paragraph declarations that are completely conclusory and devoid of any reasoning.

This is due to many institutional factors. Unlike multiple-judge appellate panels that (a) have a relatively light work load that is attended to without much urgency and (b) have the benefit of large staffs composed of the best law clerks in the country, District Court Judges have overstuffed dockets filled with time-urgent criminal cases and typically two law clerks to help research and write their opinions, for which the Judge has sole responsibility.

Some District Judges who are nonetheless very smart simply do not write good judicial opinions. Some who are dumb or intellectually dishonest write beautiful written opinions that are just wrong. The quality of judicial opinions varies wildly in every court. The venerated Supreme Court has produced some transparently dishonest junk panned by the vast bulk of commentators, including a decision which arguably decided the 2000 presidential election.

The expectation that Judge Taylor was going to unveil some comprehensive new legal picture of these issues -- the type of legal document which, for instance, 14 different top-level law professors and government lawyers had to band together to produce without having to also manage a huge caseload -- is quite unrealistic. And, as noted, much of it may very well be the fault of the poor advocacy of the DoJ, not that anyone attacking Judge Taylor bothered to find that out first.

(6) While it is hard to dispute criticisms of Judge Taylor's opinion on the First and Fourth amendment issues, the opinion is perfectly competent, at times eloquent, on the state secrets issue, the standing issue, and most importantly, the Youngstown FISA violations. It is the state secrets and Youngstown/FISA issues which lay at the heart of the overarching political and legal disputes composing the NSA scandal, and on those issues, the court's decisions were not only correct, but solidly reasoned as well.

(7) Finally, if Judge Taylor had written the perfect legal opinion -- if she simply copied the words passed down from whoever is reputed to be the High Constitutional Scholar to whom we look for elevated legal reasoning -- what would that have actually changed as a practical matter? Nothing. Those who think the President has the right to violate FISA would still have attacked the decision as the mischief of out-of-control, terrorist-friendly, U.S.-hating liberal subversive judges (see, for instance, their attacks on Justices Stevens and Kennedy in the wake of Hamdan, or any other ruling the political results of which dislike), while those who believe the opposite would have hailed the decision.

Everyone has been debating these legal issues for the last 8 months. Everyone knows what the issues are, what the arguments are, what the relevant cases are, etc. Judge Taylor was not going to convince anyone of anything new even if she unleashed some sterling legal opinion. And no matter what she said, the Sixth Circuit -- and probably the Supreme Court after that -- is going to look at all of these issues anew, from scratch, without regard to what the District Court said about these matters.

Look at any judicial ruling of any significance -- Youngstown, Brown, Hamdan, Miranda, whatever one's favorite case is. Nobody knows, remembers, or cares what the District Court even ruled in those cases, let alone the quality of the reasoning, because it does not matter.

The significance of Judge Taylor's ruling lies in the act itself -- the re-affirmation of the principle that the President's conduct is subject to judicial review and is subordinate to the laws enacted by the American people through their Congress. This administration, while claiming it has substantial legal authority for its radical executive power theories, has desperately tried to avoid judicial review of the President's conduct at every turn --- with the abuse of the "state secrets" doctrine, the Specter bill, the denial of judicial review to detainees, the refusal to ask the FISA court for a ruling on the legality of its program.

The significance of Judge Taylor's ruling lay not in the quality of her judicial opinion (which everyone gets to feel really smart by demeaning), but instead it is the resounding rejection of the extremist and dangerous theory that the President, because of the "war" we are fighting, has the right to operate without constraints of any kind, including those imposed by the Constitution and Congressional statutes. On that key issue, the court's analysis was correct and even powerful. But by all means, let's get on with some more fun, self-glorifying attacks on the lack of scholarly depth of this single opinion from Judge Taylor. That is really the issue on which the fate of Republic depends.

UPDATE: The Government's Brief in support of its Motion to Dismiss or alternatively for Summary Judgment is available on the ACLU site, here. Marty Lederman has read it (unlike, it appears, those oh-so-thorough, smart and serious scholars criticizing Judge Taylor's decision), and Lederman confirms what I argued above. He writes (emphasis in original):

What's interesting is that although DOJ alluded to the Article II argument, it did not quite advance or support in any detail that argument -- or any other merits argument, for that matter -- because the theme of its brief was that the state secrets privilege makes it impossible to adjudicate such arguments in court.

The DoJ practically avoided making arguments on the merits of the constitutional and even statutory claims, opting instead to invoke secrecy doctrines (and standing objections) in lieu of advancing arguments that went to the merits of the claims in any meaningful way. It is hardly surprising -- and nobody has any ground to complain -- that the court did not address non-existent arguments or arguments which were made in only the most cursory manner. For that reason, "poor legal reasoning" and lack of scholarly thoroughness is evident at least as much in many of the criticisms of Judge Taylor as it is in the opinion she produced.

The Post Editorial Board tell us how serious, high-minded people should talk about Presidential law-breaking

For the last four years, the Bush administration has deliberately violated multiple laws because it has adopted radical theories which vest law-breaking powers in the President. It also happens to be well on its way to obtaining the power to criminally prosecute journalists for articles they publish about the administration's conduct. And while all of that has been happening, the Washington Post Editorial Board has said virtually nothing about any of it, sitting idly by while the President vests himself with what George Will calls "monarchical" powers that (at least) rival terrorism as a threat to our country, and while Attorney General Alberto Gonzales casually speculates about putting Jim Risen and New York Times editors (and perhaps even the Post's own Dana Priest) into a federal prison, just as his most prominent supporters have been urging.

But at long last, the Post Editorial Board has finally found something to be outraged about -- the fact that the judicial opinion issued by Judge Anna Diggs Taylor yesterday isn't scholarly and "complex" enough for the intellectual tastes of Fred Hiatt. What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.

To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected.

Complaints of that nature are the province of the lowly, emotional masses -- those whom Jonathan Chait the other day snidely labelled "partisan hysterics" (meaning those who found it objectionable that his magazine defended the vile authoritarian Ann Coulter), in contrast to the open-minded intellectual giants like Chait who so enjoy the high-minded sport of debating all views for fun, including the "clever, interesting, very well-executed" defense of an extremist hate-monger with a following that numbers in the millions. As Chait put it, only "partisan hysterics" care more about "the destination [e.g., stopping presidential lawlessness or condemning hateful extremists] than the journey [meaning the fascinating, self-important process of trying to construct intellectually impressive ways to defend the indefensible]."

Using terms like "law-breaking" and "criminal" and "authoritarian" and "lawlessness" -- why, that is such strident, angry language that is really not necessary. It merely clouds things and prevents high-minded discourse. The fact that a federal court finally made clear what has been evident in plain day for some time -- that the Bush administration is breaking the law in numerous ways because it believes it has the right to do so -- is unimportant to the Post. Thus, when the court ruled (contrary to the Bush administration's clear belief and actions) that we do not live under the rule of a King, the Post says the judge is merely providing lowly "throat-clearing sound bites" that may feed the wild masses but will starve the serious intellect of those who realize what grave and complex matters these are.

Only "partisan hysterics" say that the President broke the law. Serious people -- who appreciate the weighty issues of terrorism which confront the President -- politely say that the program "is at least in considerable tension with federal law" and that it rests on "ever-more uncertain legal ground." What matters is not ensuring that there are consequences for the President's deliberate law-breaking when spying on Americans without judicial approval, but instead, that we "provide firmer legal footing for such surveillance." Thus, a federal court finds that the President has been deliberately breaking the law, violating the Constitutional rights of American citizens, and using radical theories of presidential power which are the opposite of our constitutional framework, and the only thing the Post feels strongly about is that the opinion which explains those findings is neither "careful nor scholarly."

One of the many ironies here is that while the Post editors parade their hunger for a complex, scholarly discussion, they actually have no idea what they are talking about with regard to several of the most critical issues before the court. The Post tells us, for instance, that the administration (oh-so-surprisingly) does not agree with the court's conclusions, "nor is its dispute frivolous," and to prove that, points to "a broad congressional authorization to use force against al-Qaeda" which "the administration argues permits the wiretapping notwithstanding existing federal surveillance." But particularly in the aftermath of Hamdan -- which decisively rejected the administration's view of the AUMF -- the AUMF claim is not even a serious argument. The fact that the Post thinks it is (along with the fact that the Post never even once mentions Hamdan) demonstrates that they are hardly in a position to decree which judicial opinions are "neither careful nor scholarly."

This Editorial, with all of its condescension and self-important open-mindedness to administration law-breaking, illustrates a common character flaw among our political and journalistic elites. In their world, the way you should how show smart and thoughtful and serious you are is to see two or more sides to everything, to treat every argument (especially from the Government) seriously and respectfully and be open to it because your great intellect and non-partisan fair-mindedness allows you to avoid the shrill, definitive conclusions in which the emotional and partisan masses traffic.

This borderline religious belief in the need to be open to every claim is enhanced -- severely -- when it comes to claims made by the Bush administration that are justified with the use of the word "terrorism." Particularly with regard to such matters, we are subjected to an endless parade of self-consciously "serious" journalists, law professors and editorialists who mistake indecision and an inability to take a definitive stand on anything -- along with acquiescence to morally and intellectually corrupt behavior as long as it masquerades under a veneer of high-minded grappling with terrorism compelxities -- as a sign of moral and intellectual superiority.

But not everything has two or more sides. Some issues are complicated, but some are not. And some dangers are profound and grave enough that putting a stop to them is infinitely more important than engaging in fun, intellectual games designed to show how serious and studious and intellectually dexterous one is. Sometimes, the "destination" matters more than the soul-searching, intellectually impressive "journey." Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out. But that does not undermine in any way the fact that this President has been systematically breaking the law for no reason other than he thinks that he can, and that judge's rejection of that belief is quite eloquent and powerful. Most importantly of all, it is indisputably correct.

In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims -- particularly on matters of war and peace or threats to constitutional liberties.

There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence -- hospitality to extremist ideas and systematic government law-breaking -- is actually irresponsible, reckless, and morally and intellectually bankrupt.

UPDATE: Thank you to Jon Henke for leaving this comment, which I know will be the reaction of those who fail to see the point (how can you complain that "the Washington Post insist(s) on a substantive and comprehensive legal analysis and conclusion about this vitally important legal issue"?). This was my reply:

It's an issue of priorities, Jon. If you sit on the street corner and watch 3 criminals assault a pedestrian with a gun, and the pedestrian begins screaming in a really shrill and unpleasant voice, and all you do is complain that the victim's voice is unpleasant, you will be engaged in behavior worthy of condemnation, even though what you are saying might actually be true.

Some of the issues before the court are debatable (standing and the First Amendment claims, and some would say the Fourth Amendment claim), but some issues are not debatable (the administration's violation of the law with no excuse). Some parts of the Judge's opinion are poorly reasoned even when her conclusion is right. But between Anna Diggs Taylor's opinion-writing abilities and the fact that we have a President who is systematically violating the law becuase he thinks he can, it is not a difficult challenge to see which is the most important problem. The Post Editorial Board and others appear incapable of making those distinctions.

Breaking the law has consequences

My overall analysis of today's extraordinary federal court decision on the NSA warrantless eavesdropping program is in the post below, here. I also have an article up at Salon summarizing the importance of this ruling, here. But I wanted to emphasize in a separate post what I think is one of the most important consequences of today's events.

In Hamdan v. Rumsfeld (.pdf), the Supreme Court -- as Marty Lederman was the first to note -- rejected the Bush administration's principal defense for its violations of the Geneva Conventions not only with regard to military commissions, but generally. By holding that Common Article 3 of the Conventions applies to all detainees, and a failure to treat detainees in compliance with Common Article 3 constitutes "war crimes," the Supreme Court effectively found that Bush officials have authorized and engaged in felony violations of the War Crimes Act (18 U.S.C. sec. 2241), which makes it a federal crime to violate war treaties such as the Geneva Conventions. That is why the administration is busy at work trying to change that law so as to retroactively legalize their conduct -- because the Supreme Court all but branded them war criminals, and the consequences of that can be severe.

And now, a federal court in Michigan -- the first to rule on the legality of the President's NSA program -- just rejected all of the administration's defenses for eavesdropping in violation of FISA, effectively finding that the administration has been engaged in deliberate criminal acts by eavesdropping without judicial approval. And as I documented previously, Hamdan itself independently compels rejection of the administration's only defenses to its violations of FISA. Eavesdropping in violation of FISA is a federal crime, punishable by up to 5 years in prison and a $10,000 fine (50 U.S.C. 1809).

Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be -- and are required to be -- held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law -- criminal laws -- in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.

* * * * *
I will be on Democracy Now, with Amy Goodman, tomorrow morning at 8:10 a.m. EST to discuss this ruling. Local television and radio listings for this program are here.

Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

(updated multiple times)

I do not yet know anything more than what is in this AP article, but if it is accurate, it is extraordinary news -- extraordinarily good news -- on every level. I will update this post continuously as I get more information, particularly once I get the opinion:

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

This is the case brought by the ACLU against the Bush administration directly. Some background on the case is here, where I previously noted that it seemed the judge was, at the very least, intent on scrutinizing, rather than blindly accepting, the Bush administration's claims. This also means, presumably, that this is now the second consecutive federal court to reject the Bush administration's invocation of the "state secrets" doctrine as a means of avoiding judicial review.

This is huge news, obviously. More to follow.

* * *
I went to the CNN website to see if they had anything on this decision, and saw a bright red box at the top with urgent "BREAKING NEWS" language in it, so I naturally assumed they were reporting it. Then I read this inside the flamboyant box:

BREAKING NEWS - Boulder DA: Ramsey murder suspect John Karr started working as second grade teacher in Thailand Tuesday. Watch live on CNN Pipeline now.

I have no doubt that infinitely more coverage will be devoted to that issue on every news program today than on the fact that a federal court just ruled that the President's warrantless eavesdropping program is unconstitutional and, perhaps, illegal.

* * * *

The opinion is here (.pdf); the injunction order is here (.pdf). I will have analysis on this shortly.

* * * *

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

First, the court rejected the administration's assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiffs' claims -- namely, that the administration is eavesdropping without warrants -- are already publicly known. The court adopted the reasoning of Judge Walker who, as noted above, rejected the administration's invocation of this doctrine on the same ground.

(The court here did, however, grant the administration's motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.

Third, the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) -- which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups -- the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

Fourth, the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

* * * *

I've heard reports that the reliably vile Rush Limbaugh is already attacking the judge personally -- she's a Carter appointee, etc. First, the judge who rejected the Bush administration's attempt to have the California/AT&T litigation dismissed (Judge Vaughn Walker) -- on whose reasoning Judge Diggs Taylor relied -- is a Bush 41 appointee. Secondly, the Judge's background is extremely impressive, making it quite hard, even for the likes of Rush Limbaugh, to demonize her or demean her abilities:

In 1979, Anna Diggs Taylor became the first black woman judge to be appointed to the United States District Court for the Eastern District of Michigan. Nineteen years later, she became the first black woman Chief Judge for that circuit as well.

Taylor had great difficulty obtaining her first job as an attorney for the Office of Solicitor for the U.S. Department of Labor, despite graduating form the prestigious Yale Law School in 1957. Very few opportunities existed for a black woman in law at this time. In 1961, Taylor relocated from the Washington D.C. area to Detroit, Michigan. Here she was involved in both public and private practice until her appointment to the U.S. District Court for the Eastern District of Michigan, on which she continues to serve. Taylor’s position has enabled her to open doors for other women and minorities to pursue and achieve their dreams. She strives for gender and racial equality in the law and currently serves on the Joint Steering Committee of the Gender and Racial Ethnic Fairness Task Forces for the Sixth Circuit.

One can only fathom the personal attacks that will be spewing forth against her.

* * * *

According to the ACLU, the Justice Department has notified them that they intend to ask the District Court Judge to stay her decision pending appeal to the Sixth Circuit (meaning the injunction would not apply immediately, but would only be activated if the decision were affirmed on appeal). Typically, with a decision of this magnitude -- particularly one that changes, rather than preserves the status quo -- a court would stay the decision. I was surprised that she did not stay it on her own (perhaps the Government did not ask).

Ordinarily, I would be inclined to think that it was almost automatic that the decision would be stayed, but given how dismissive she was of the administration's arguments -- and how unequivocal were her conclusions that this program violates the constitutional rights of Americans -- I wouldn't be all that shocked if she refused to (the administration could still then ask the Sixth Circuit Court of Appeals to stay the Order).

* * * * *

Let's see what our friends in the Bush follower crowd are saying. Legal scholar Jeff Goldstein immediately puts the spotlight on the Judge personally, and highlights "that she was married to Michigan Democratic Representative (1955-1980) Charles C Diggs, Jr. (divorced 1971) and S Martin Taylor (active in both the Coleman Young and Jimmy Carter campaigns)" and that "was the first African-American woman appointed to a federal judgeship in Michigan . . . . Taylor has used her positions to advance civil rights throughout the United States." He then announces that he "think(s) this ruling will be overturned on appeal." And, needless to say, included in the first 10 comments is a plea that the President defy the order, along with a call for the judge to be drowned.

Ace of Spades is so beside himself that he seems sadly deflated; he merely dutifully launches the two standard Bush smears at the Judge, but without much feeling -- he doubts she "takes terrorism seriously" and he "question(s) her sanity." Writing on Michelle Malkin's blog, Mary Katherine Ham also focuses on the Judge's background, quoting a Detroit Free Press profile which describes her as "a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s." The article (and Ham) point out, however, that "people who know her say she will follow the law -- not her politics -- in deciding the case... " And this is what National Review Corner readers learned about this decision: It's a "Terrorist-Friendly ruling" from a "Carter appointee."

So, so far we have - (1) the Judge was appointed by Jimmy Carter; (2) the Judge is African-American and works on "civil rights" matters; (3) she is insane; (4) she does not take terrorism seriously; (5) this is a victory for the terrorists; (6) President Bush should defy the Order. That's a predictable enough beginning, but the smear machine is going to have to work a little harder, because that is not all that impressive of an attack so far. I recommend the Free Press profile -- read that and decide if her abilities and fairness can be legitimately demonized.

* * * *

More pro-Bush reaction is compiled here, including this from Jawa Report ("lets hope the first bomb that comes here is dropped on this judges head") and this from Debbie Schussel ("She seems to hate America and fairness almost as much as the Plaintiffs do"). And some nice race-based smearing can be found by Gateway Pundit here (her husband was a Congressman whose "district included downtown Detroit and some of the city's poorest neighborhoods. He was the first chairman of the Congressional black Caucus"). That's really relevant.

* * * *

Let's resoundingly clear up two widely disseminated misconceptions, the first of which is being quite deliberately tossed around:

(1) Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot.

(2) The court's ruling that warrantless eavesdropping violates the Fourth and First Amendments clearly means (although the decision is far from a model of clarity) that Congress cannot authorize warrantless eavesdropping with legislation, which would preclude enforcement of the Specter bill.

This is clearest when the court rejects the administration's argument that the AUMF implicitly authorized violations of FISA. The court ruled that: (a) the AUMF cannot be read to amend FISA, but that (b) even if it could be so read, it would not matter, because Congress cannot authorize an unconstitutional program:

The AUMF Resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the constitutional rights of their citizens.

Op. at 39 (emphasis added). If Congress is not empowered to authorize this program through the AUMF (because the program is unconstitutional), then there is no good argument as to why the Specter bill can.

Meanwhile, Iraq unravels even faster

Now that "our war" in Lebanon has come to an end, and there is no "shiny new terrorist plot to play with" (as one blogger put it by e-mail), the national media is starting to remember that we already have an ongoing war in a country called Iraq, and what is happening there is beyond tragic. Developments in Iraq could hardly be worse, as two extraordinarily grim articles this morning -- one from The New York Times and one from The Washington Post -- amply demonstrate.

The Times documents that, by almost every measure, violence in Iraq is increasing. Despite the media and Bush celebrations over the dramatized Bad Guy Killing last month, "the anti-American insurgency has continued to strengthen despite the killing of the terrorist leader Abu Musab al-Zarqawi." Thus:

“The insurgency has gotten worse by almost all measures, with insurgent attacks at historically high levels,” said a senior Defense Department official who agreed to discuss the issue only on condition of anonymity because he was not authorized to speak for attribution. “The insurgency has more public support and is demonstrably more capable in numbers of people active and in its ability to direct violence than at any point in time.”

Put simply: "the new assessments by the military and the intelligence community provide evidence that violence in Iraq is at its highest level yet."

Beyond the still strengthening anti-U.S. insurgency, both Shiite-Sunni sectarian battles and, now, "clashes between rival Shiite Muslim militias" are growing increasingly common, reminding us, says the Post, of "how precariously the country teeters on the edge of civil war." Cities that were relatively free of violence, such as Basra and Karbala, are now plagued by it, and cities which have long been war zones, such as Baghdad and Mosul, are growing more anarchic and violent, as Sunni and Shiite sects fight not only with one other but also with themselves (and in some places with Kurds).

Making matters worse still, the power of lawless militias is rapidly increasing, and are directly controlled by high Shiite government officials and/or by what the Post calls "radicalized clerics." Put another way, for the billions of dollars and thousands of lives we have squandered (figures which increase every day), we have transformed Iraq into the ideal playground for both Iran and Al Qaeda-type groups to assert control, and we clearly have no way to reverse any of that, because the longer we stay, the worse it all gets.

With facts like these assembled, even the administration's staunchest supporters (at least those outside of the right-wing blogosphere, National Review and The Weekly Standard) are now -- at long last -- too ashamed to argue that all of this is the invention of an anti-U.S. media or that the bad news is exaggerated and is offset by unreported stories of painted schoolhouses and Marines handing out candy to children. Thus, admissions of failure are starting to emerge even from the administration's most loyal allies:

After General Abizaid’s testimony, the chairman of the Armed Services Committee, Senator John W. Warner of Virginia, said that if Iraq fell into civil war, the committee might need to examine whether the authorization provided by Congress for the use of American force in Iraq would still be valid. The comments by Senator Warner, a senior Republican who is a staunch supporter of the president, have reverberated loudly across Congress.

The administration continues publicly to paint happy faces on its Iraq project -- there is, after all, an election just three months away -- but they know their public statements about the war are false. From the Times article:

Yet some outside experts who have recently visited the White House said Bush administration officials were beginning to plan for the possibility that Iraq’s democratically elected government might not survive.

“Senior administration officials have acknowledged to me that they are considering alternatives other than democracy,” said one military affairs expert who received an Iraq briefing at the White House last month and agreed to speak only on condition of anonymity.

“Everybody in the administration is being quite circumspect,” the expert said, “but you can sense their own concern that this is drifting away from democracy.”

Once the U.S. finally extricates itself from the Iraqi disaster, a comprehensive public accounting is critical. While much attention has been paid to the pre-war misinformation disseminated by the government and the media, the post-invasion deceit has been worse -- much worse. There was, at least, a reasonable question about whether Saddam had WMDs. Nobody knew the answer to that question for certain one way or the other prior to the war. But it has long been apparent that conditions in Iraq were deteriorating, that our occupation was achieving nothing constructive, that violence was spiraling out of control, and that our invasion had achieved the opposite of the goals we proclaimed to be pursuing.

But the political establishment -- the Bush administration, its followers, and our "serious" pundits alike -- were all so invested, so personally invested, in the invasion which they advocated and caused that they just all agreed to pretend that it was not happening. Pointing out the magnitude of the disaster we caused -- both to Iraq and, at least equally, to the U.S. -- was deemed inappropriate, distasteful, hyperbolic, and even subversive. As a result, and in stark contrast to the quick and open Israeli recognition that their war was going poorly, we continued to pursue a clearly misguided and destructive path because our political leaders and their media enablers were too weak and self-interested -- and, in many cases, still are -- to acknowledge reality.

The parties responsible for this ongoing deceit about the state of affairs in Iraq are too numerous to list. It obviously begins with the White House and their Congressional loyalists, but there are plenty of illustrative examples outside of those circles as well:

*Ralph Peters, in a March, 2006 New York Post column entitled "Dude, Where's my Civil War" that was cited and hailed by Bush supporters everywhere, wrote:

I'M trying. I've been trying all week. The other day, I drove another 30 miles or so on the streets and alleys of Baghdad. I'm looking for the civil war that The New York Times declared.

And I just can't find it.

Maybe actually being on the ground in Iraq prevents me from seeing it. Perhaps the view's clearer from Manhattan. . . .

All day - and it was a long day - we drove through Shia and Sunni neighborhoods. Everywhere, the reception was warm. No violence. None.

And no hostility toward our troops. Iraqis went out of their way to tell us we were welcome.

Instead of a civil war, something very different happened because of the bombing of the Golden Mosque in Samarra. The fanatic attempt to stir up Sunni-vs.-Shia strife, and the subsequent spate of violent attacks, caused popular support for the U.S. presence to spike upward.

The rest of the column blames the media for exaggerated reports of violence in Iraq. As John Hinderaker put it: "One thing that distinguishes Peters from most reporters who comment on Iraq is that Peters actually knows what he's talking about."

* Glenn Reynolds pronounced as recently as April of this year "that the problem is political, not military, and that the biggest political problem is corruption" (emphasis added), and combined that claim with statements like this: "Turning Iraq into a dependable ally against Iran has always been part of the strategy, I think. I hope it works, and sooner rather than later."

* Joe Lieberman's December, 2005 Wall St. Journal Op-Ed:

I have just returned from my fourth trip to Iraq in the last 17 months and can report real progress there. More work needs to be done, of course, but the Iraqi people are in reach of a watershed transformation from the primitive, killing tyranny of Saddam to modern, self-governing, self-securing nationhood unless the great American military that has given them and us this unexpected opportunity is prematurely withdrawn. . . .

The leaders of America’s military and diplomatic forces in Iraq, Gen. George Casey and Ambassador Zal Khalilzad, have a clear vision of our mission there. It is to create the environment in which Iraqi democracy, security, and prosperity can take hold and the Iraqis themselves can defend their political progress against those ten
thousand terrorists who would take it from them.

Does America have a good plan for doing this, a strategy for victory in Iraq? Yes we do.

There are no good options for Iraq. Simply withdrawing in the face of the horrendous mess we made is both reckless and dangerous, but staying is achieving nothing good. But the first and most important step is to recognize who it is who led us into this disaster and, through deceit and desperate irrationality, kept us there due to a refusal to acknowledge reality. And then we should stop listening to them immediately and completely.

Rep. Kline avoids being sued in the Murtha/Haditha lawsuit by apologizing

In order to avoid being named as a co-defendant in the defamation lawsuit brought by a Haditha Marine against Jack Murtha, Republican Congressman John Kline issued an apology for statements he made accusing the Marines of murder and of lying about their actions. The Minneapolis Star-Tribune has a reasonably accurate discussion of how all of that came about, including the role played by this blog in causing Kline to be "dragged in" to the controversy.

Kline's apology (the full text of which is here) is rather equivocal regarding his own culpability and he seeks to blame others for his actions. He mostly insists, of course, that his statements were taken out of context: "Some news outlets have promoted incomplete statements attributed to me that gave the false impression that I have concluded those involved committed unlawful acts." And according to the Star-Tribune article, with regard to the quotes of his which I posted here, Kline "said all of the quotes attributed to him were accurate but, in some cases, out of context."

This was one of Kline's statements, as reported by The Los Angeles Times on May 27 (not available online; quote confirmed by Nexis): "'There is no question that the Marines involved, those doing the shooting, they were busy in lying about it and covering it up — there is no question about it,' Kline said." I'd love to know if that is one of the statements which Kline claims was taken "out of context."

From the plaintiff's strictly legal perspective, Kline's apology is understandably satisfactory, since it contains statements such as: "I want to express my sincere apology to the Marines of the 1st Squad. . . and especially SSgt Frank D. Wuterich" and "the involved Marines deserve to be considered absolutely innocent until proven guilty." According to the Marine's lawyer, Mark Zaid, Kline's apology (the wording of which was, presumably, negotiated with Zaid) is satisfactory and means that Kline has avoided being added as a defendant. The Star-Tribune quotes Zaid as follows: "We're absolutely satisfied that his statement [of apology] reflects the Marine officer we thought he was."

This incident is illustrative of the intense frustration that comes from being subjected to the sloth and patent inaccuracy of so much of the media coverage of political controversies. One listens to and reads endless attacks on Jack Murtha's character and motives for the statements he made about Haditha, and while the media disseminates these attacks, they never once mention that pro-war Republican Congressman Kline -- also a former Marine -- made similar, and in some cases more emphatically accusatory, statements about Haditha.

Journalists who write about the Haditha killings and specifically about the controversy surrounding Murtha's comments ought to have known that. Kline's statements were everywhere, and it requires only the smallest amount of reasoning and scrutiny to see that the Republican attacks on Murtha for these statements made no sense and were profoundly dishonest given that Kline said virtually the same thing, a fact which was never noted. But journalists routinely echo attacks of the type launched against Murtha without scrutinizing them. As much as anything else, it is this failure on the part of the national media -- to do more than merely recite what government officials and political operatives say -- that accounts for the rising influence of blogs in analyzing political events.

Michelle Malkin's site exposes secret virus attack by Iran

(updated below - updated again)

Fox News contributor Michelle Malkin recently created a new website called "Hot Air," which basically exists to warn Americans on a daily basis, in the most urgent and scary tones, that there is a new Muslim plot unfolding on every street corner in America. While Michelle appears in videos on the site, she assigned the task of documenting and commenting on the Muslim menace to an anonymous blogger who respectfully and appropriately calls himself "AllahPundit," and often just "Allah."

Today on Malkin's news site, "Allah" reported that Iranian President Mahmoud Ahmadinejad is waging vicious jihad against the West through the unleashing of secret viruses embedded in Ahmadinejad's new blog. In a post entitled "Iran spreading viruses through Ahmadinejad’s blog?," "Allah" sounded the alarm based on this:

That’s the word on the street, according to an e-mail Bryan just forwarded me. I’ve been over there a bunch of times, though, and haven’t noticed any problems with my computer.

A short time later, a commenter explained that the great Persian virus threat that "Allah" was warning about was nothing but a fantasy in his head:

There’s no virus on that site. The false alarm stems from the fact that most elements on that site are dynamically loaded via JavaScript, and that method could be exploited by malicious code that is injected there, e.g. by comment writers.

Also today on Malkin's site, "Allah" screeched that an international flight from London to DC was diverted perhaps because, "Allah" speculated, of a "Note referencing Al Qaeda?" This cautious alarm was shortly thereafter followed by excited "confirmation" -- the jackpot: "All right, this gets the red font: Fox just said the woman had a note referencing Al Qaeda, along with “vaseline,” matches, and a screwdriver" (emphasis added).

In fact, the plane was diverted because "an apparently claustrophobic passenger" engaged in bellicose behavior, and "federal security official for Logan said there was no indication of terrorism and denied reports that the woman had a screw driver, matches and a note referring to al-Qaeda."

Potential terrorist threats are obviously newsworthy, and national media outlets frequently (and often recklessly) engage in speculative reporting, particularly when it comes to exciting news events, in order to manufacture news interest. "Allah" was not the only one in hysterics over this diverted flight today (though the Iranian blog attack seemed to be his scoop). But numerous pro-Bush blogs such as Malkin's go far beyond mere irresponsible hyping of news stories. They have as their principal goal scouring the Internet in order to find whispers and rumors about scary Muslims and then endlessly harp on them. The most baseless innuendo will be "reported" and the barest rumors of a new Islamic terrorist plot get particularly hysterical and frenzied attention.

So today, readers of Malkin's Hot Air learned that Iran is attacking the world by spreading a deadly computer virus through its leader's new blog ("Bryan" said so in an e-mail), and an airplane had to be diverted because a woman with dangerous weapons and an Al Qaeda note caused a “security emergency.” None of that was true, but no matter. When Malkin and company tomorrow ominously report that some Middle Eastern men bought disposable cell phones at a Wal-Mart, all will be forgotten and forgiven and the fear and aggression levels will remain sufficiently high.

Fox News has been running segments repeatedly warning, literally, that August 22 may be -- to use its own words -- "The End of the World Thanks to Iran," because that date is a special Islamic day of violence when Iranian mullahs have decided to obliterate the West once and for all. They parade on "experts" and other guests to seriously examine the magnitude of the August 22 Persian threat.

For people whose principal source of news and analysis are venues devoted to the daily demonization of Muslims -- one hysterical, scary story after the next from the likes of "Allah" -- what would one expect their views to be on whether endless wars are necessary and constant abridgments of liberties justifiable? Fear-mongering generates aggression against the perceived, exploited threat. That is its purpose.

UPDATE: One point that bears emphasizing is that objections to these fear-mongering tactics do not arise out of a dispute over how seriously to take the threat of terrorism. To the contrary, nobody does more to trivialize the terrorism threat than the hysterics and fear-mongerers who play petty games with it and who seek to squeeze every drop of political advantage out of it on a daily basis. People begin to tune out and cease to take the threat seriously precisely when discussions of terrorism consist of vapid, deceitful obsessions with secret Iranian blog viruses, magic Muslim violence dates, and lurking Islamic terrorists on every neighborhood corner, and when minor risks are exaggerated with transparently political motives.

* * * * *
I will be on Air America's Majority Report tonight at 8:30 p.m. EST. Local listings are here; live audio feed is here.

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UPDATE II: Andrew Sullivan persuasively suggests that many of the more strident claims made this past week about the U.K. terror plot -- including its imminence and even its plausibility -- may have been unwarranted, even untrue.

Dick Morris revealingly predicted that revelation of this plot would give the President a 10-point bounce in the polls, yet he received almost no boost at all. In addition to causing people to take the terrorism threat less seriously, playing political games with these threats also causes people to be far more skeptical of their government's statements regarding terrorism. It's the classic Boy Who Cried Wolf syndrome, and in the terrorism context, that can be a very dangerous problem.

Michael Gerson and the Bush administration's "noble story"

The most under-appreciated influence on the Bush presidency is almost certainly Michael Gerson, the evangelical Christian who served as Bush's chief speechwriter from the beginning of Bush's presidency until recently, when he resigned. Gerson is a superb speechwriter -- measured by the ability to construct a persuasive and sometimes inspiring case for any given policy, regardless of the policy's merits -- and he is a close confidant of the President.

He has a new essay in Newsweek purporting to describe how the 9/11 attacks "changed George W. Bush." Most of it is nothing more than the now-cliched neoconservative claptrap about how the lesson the President drew from 9/11 is that "as long as the Middle East remains a bitter and backward mess, America will not be secure," and that consequently, the President is driven by "a vision: a reformed Middle East that joins the world instead of resenting and assaulting it." Gerson also tries to rejuvenate some of his old 9/11 rhetorical glory by lengthily describing his personal recollections of that day to justify the President's actions -- because, of course, only Bush supporters, not Bush critics, were moved by those events.

Initially, just as an aside, it is somewhat baffling that those who seek to defend the President do so by claiming that battling terrorism is dependent upon reducing the level of chaos and hatred in the Middle East -- even though the region has more chaos, violence, and anti-American resentment than at any time in recent history. To justify these disasters, Gerson elaborates on the administration's condescending and even creepy maternity metaphor: "Condoleezza Rice calls this the 'birth pangs' of a new Middle East, and it is a complicated birth." We achieve Middle East peace with war, stability with chaos, pro-American alliances with elections of intensely anti-U.S. regimes. And, like God himself did, we re-make their world in our own Good image -- through air attacks, proxy wars, and ground invasions. But all of that is just standard neoconservative incoherence that has been noted many times before.

What is most notable about Gerson's essay is that it certainly seems as though he believes a military confrontation with Iran is both necessary and imminent, and devotes the bulk of his essay to making the case:

First, the nation may be tired, but history doesn't care. It is not fair that the challenge of Iran is rising with Iraq, bloody and unresolved. But, as President Kennedy used to say, "Life is not fair."

Behind all the chaos and death in Lebanon and northern Israel, Iran is the main cause of worry in the West Wing—the crisis with the highest stakes. Its government shows every sign of grand regional ambitions, pulling together an anti-American alliance composed of Syria, terrorist groups like Hizbullah and Hamas, and proxies in Iraq and Afghanistan. And despite other disagreements, all the factions in Iran—conservative, ultraconservative and "let's usher in the apocalypse" fanatics—seem united in a nuclear nationalism.

Some commentators say that America is too exhausted to confront this threat. But presidential decisions on national security are not primarily made by the divination of public sentiments; they are made by the determination of national interests. And the low blood-sugar level of pundits counts not at all. Here the choice is not easy, but it is simple: can America (and other nations) accept a nuclear Iran? . . . .

There are still many steps of diplomacy, engagement and sanctions between today and a decision about military conflict with Iran—and there may yet be a peaceful solution. But in this diplomatic dance, America should not mirror the infinite patience of Europe. There must be someone in the world capable of drawing a line—someone who says, "This much and no further." At some point, those who decide on aggression must pay a price, or aggression will be universal. If American "cowboy diplomacy" did not exist, it would be necessary to invent it.

Several points to note about these striking passages:

(1) It has been obvious for some time that the President's most bloodthirsty supporters are pushing for war with Iran, and the disappointment and humiliation they feel in the face of a collapsing Iraq and a failed Lebanon invasion has intensified that need -- hence, all the talk about how "Iran won" the war in Lebanon. But Gerson isn't just some radio talk show host or National Review Corner warrior. He is one of the President's most trusted advisors, and the fact that he is openly and aggressively making the case for military confrontation against Iran is much more meaningful than some Mark Steyn rant or Rush Limbaugh monologue.

(2) The unbridled disdain for the democratic process is palpable in Gerson's sermon. Sure, he notes contemptuously, the public does not want more war. They are tired and angry about the disastrous one we are still fighting in Iraq. But nothing matters less than "public sentiments." No war president worth his salt can be deterred by something as meek and irrelevant as the "low blood-sugar level" of anti-war losers. The President has a mission, a "vision" to fulfill, and he must be driven by what he knows is Good and Right -- not by what Americans think and want, not by what "experts" believe, not by evidence showing that his course produces failures.

The 9/11 attacks justify all of this because it made the President something more than a President; it made him a Great Cause. As Gerson puts it, after recounting his most melodramatic 9/11 memories: "Starting in those days, I felt not merely part of an administration, but part of a story; a noble story." Nothing as lowly or ephemeral as public opinion is going to impede this "noble story," driven by this great man with his mission of overarching moral imperatives. In many ways, that is the Bush presidency in a nutshell.

Gerson's claim that "presidential decisions on national security are not primarily made by the divination of public sentiments" would come as a great surprise to the Founders, who expressly required a Declaration of War from Congress precisely because they believed the nation should fight wars only if the American people decide to take that risk. To be so disdainful about the role of American public opinion with regard to decisions of war and peace reflects nothing less than a contempt for the defining values of our country, something that is hardly surprising coming from one of the most significant advisors to the President.

(3) I have written before that the administration's theory of executive power almost certainly means that they believe they have the right to initiate a war on Iran even without any declaration of war or any other form of Congressional approval. Indeed, they would be empowered to do so even in the face of Congressional opposition. Groups such as the Heritage Foundation have made clear that in the wake of 9/11, there can be no limits on the President's decision-making powers with regard to the use of military force.

Although I cannot find the link right now (I will add it if someone posts it in Comments), Secretary Rice was asked at a Congressional hearing in 2005 whether the administration believed it needed Congressional authorization to attack Iran, and she was, as I recall, quite evasive in her answer (see UPDATE below). What is the administration's view as to whether it can initiate an offensive strike against Iran without a democratic debate followed by a declaration of war or authorization from Congress to use military force?

This administration would have a very hard time convincing a majority of Americans -- and a majority of a war-weary and frightened Congress -- to explicitly authorize military force against Iran. That is what makes these questions so pressing. The administration agreed to let Congress vote on the military actions in Afghanistan and Iraq only because they were guaranteed in advance that Congress would give them all the authority they wanted. But they won't have it nearly so easy this time with Iran. Would that be an impediment to finding a way to provoke a military confrontation? Gerson's essay strongly suggests that the last thing that would impede the administration's warmongering is public opinion.

UPDATE: Here is the Rice quote (h/t IngSoc):

Last October, Secretary of State Condoleezza Rice was asked by members of the Senate Foreign Relations Committee whether the president would circumvent congressional authorization if the White House chose military action against Iran or Syria. She answered, "I will not say anything that constrains his authority as commander-in-chief."

When pressed by Senator Paul Sarbanes about whether the administration can exercise a military option without an authorization from Congress, Rice replied, "The president never takes any option off the table, and he shouldn't."

Is there any real doubt about whether the Bush administration would let something as petty as Americans' opposition to a new war (expressed through their Congress) stand in the way of the next chapter of their grand "noble story," set in Tehran?

Bombing away terrorism

During the 2004 campaign, Democrats argued that the key to preventing terrorism lay not in invading and occupying countries which have not attacked us, but instead, in improving our intelligence-gathering capabilities, strengthening law enforcement cooperation with other countries, increasing counter-terrorism resources, and solidifying border security -- ideas which were, first, wildly distorted, then caricatured, and then scornfully laughed away by the Bush campaign and the tough-guy media pundits: "Oh, how funny - weak little John Kerry wants to treat terrorism like a law enforcement problem! He wants to serve subpoenas on Osama bin Laden! He wants to protect against Al Qaeda attacks with police methods! He wants to surrender to the terrorists and give them therapy! That is so so funny."

In his new column today, George Will makes a critical (if not obvious) point about all of that: namely, despite the fact that Bush followers spent the week crowing about the U.K. terror plot as though it validates their views of the world, it actually does the opposite. We can't rid the world of Islamic extremism (a belief system) or terrorism by bombing it away. Will thus points out that the way in which the plot was thwarted demonstrates the foolishness of warmongering as a solution to terrorism, and the correctness of the anti-terrorist approach advocated by Democrats:

The London plot against civil aviation confirmed a theme of an illuminating new book, Lawrence Wright's "The Looming Tower: Al-Qaeda and the Road to 9/11." The theme is that better law enforcement, which probably could have prevented Sept. 11, is central to combating terrorism. F-16s are not useful tools against terrorism that issues from places such as Hamburg (where Mohamed Atta lived before dying in the North Tower of the World Trade Center) and High Wycombe, England.

Cooperation between Pakistani and British law enforcement (the British draw upon useful experience combating IRA terrorism) has validated John Kerry's belief (as paraphrased by the New York Times Magazine of Oct. 10, 2004) that "many of the interdiction tactics that cripple drug lords, including governments working jointly to share intelligence, patrol borders and force banks to identify suspicious customers, can also be some of the most useful tools in the war on terror." In a candidates' debate in South Carolina (Jan. 29, 2004), Kerry said that although the war on terror will be "occasionally military," it is "primarily an intelligence and law enforcement operation that requires cooperation around the world."

Immediately after the London plot was disrupted, a "senior administration official," insisting on anonymity for his or her splenetic words, denied the obvious, that Kerry had a point.

Obviously, if a country is engaged in direct hostilities against the U.S. or allowing itself to be used to stage such attacks (as Afghanistan was), then military action is a legitimate and necessary option. Very few people dispute that principle. But not only the break-up of the U.K. terror plot, but also the American failure in Iraq and the Israeli failure in Lebanon, demonstrate that massive military force cannot eradicate, or even alleviate (in fact, it likely worsens) the problem of Islamic extremism. Will now seems to recognize that point, too:

Five weeks have passed since the kidnapping of two Israeli soldiers provoked Israel to launch its most unsatisfactory military operation in 58 years. What problem has been solved, or even ameliorated? . . .

Immediately after the London plot was disrupted, a "senior administration official," insisting on anonymity for his or her splenetic words, denied the obvious, that Kerry had a point. The official told The Weekly Standard:

"The idea that the jihadists would all be peaceful, warm, lovable, God-fearing people if it weren't for U.S. policies strikes me as not a valid idea. [Democrats] do not have the understanding or the commitment to take on these forces. It's like John Kerry. The law enforcement approach doesn't work."

This farrago of caricature and non sequitur makes the administration seem eager to repel all but the delusional. But perhaps such rhetoric reflects the intellectual contortions required to sustain the illusion that the war in Iraq is central to the war on terrorism, and that the war, unlike "the law enforcement approach," does "work."

One should be careful about blithe comparisons between the war America is waging on Iraq and the one Israel waged on Lebanon. Israel waged war against a group which can attack it and has repeatedly done so, while the U.S. invaded a country that posed no threat to it at all. And while the Bush administration for several years insisted in the face of all contrary evidence that things were going just great in Iraq (and that anyone pointing out the obvious -- that things were going poorly -- was an anti-American subversive), the Israelis quickly and openly acknowledged the disaster that had been created by their poor prosecution of that war and brought it to a halt after 30 days (as opposed to three years and counting for Iraq).

But the valid comparisons between Iraq and Lebanon are numerous and obvious. A vastly superior invading military force failed to defeat a local insurgency driven by religious conviction and/or a defense of their country against invasion. The more military force that was used, the worse the problems became. The belief that attacks on militants would turn the population against those militants and in favor of the invading force turned out to be completely false. Indeed, the opposite was true: the invasion and military attacks did more to enhance the prestige and popularity of the extremist group than anything the group itself could have done. It resulted in vastly increased radicalism and resentment. And the invasion weakened the invading country on every level -- militarily, diplomatically, economically, and perhaps most importantly, by virtue of the vastly diminished perception of its invincibility.

There is, at long last, a growing recognition that waging more wars does not make us stronger or more secure. It does exactly the opposite. Those who want to pursue our failed policy in Iraq indefinitely or who want to attack more countries -- in the process alienating the whole world even more and exacerbating the Islamic radicalism which even the President says is what causes terrorism -- are not people who are "strong on security." They are gradually, though inexorably, destroying our security through a mindless militarism which becomes more reckless and crazed the more it fails. And this bloodthirsty militarism becomes more desperate as the sense of weakness and humiliation felt by its proponents -- including those in the White House -- intensifies.

If George Will can come out and say that John Kerry was right about how best to approach terrorism and the Bush approach does nothing but increases it, then perhaps we can soon reach the point where national journalists will understand that there is nothing "strong" about wanting more and more wars, and nothing "weak" about opposing warmongering and advocating more substantive, rational and responsible methods for combating terrorism.

Anyone rational can see that our invasion of Iraq did not make us "safer." Nor will attacking Syria and/or Iran or fueling more proxy wars in the Middle East make us any "safer." Quite plainly, those measures have had, and will continue to have, the opposite effect. And all the while, we neglect the genuinely effective methods for protecting against terrorism because those methods are boring and unappealing and unexciting to the increasingly crazed warriors looking for militaristic glory and slaughter for its own sake. Untold benefits will accrue if journalists can finally understand that whatever adjectives accurately describe such individuals -- especially those in the Bush administration and their Congressional loyalists -- "strong" is not one of them.

Defeatism and attacks on the Commander-in-Chief during a time of war

We have a rule in our country that "attacking the Commander-in-Chief during a time of war" helps The Terrorists and emboldens our enemies. Joe Lieberman put it this way: "in matters of war, we undermine presidential credibility at our nation's peril."

President Bush said during the campaign that John Kerry's criticisms of Iraq "can embolden an enemy." And this year he warned us: "In a time of war, we have a responsibility to show that whatever our political differences at home, our nation is united and determined to prevail." And last week, Ken Mehlman gave a speech in Cleveland and attacked what he said is a growing "defeatism," and then oh-so-cleverly remarked: "Today's Democrat Party has become the Defeat-ocrat Party."

In the wake of the Bush administration's engineering of the Israel-Lebanon U.N. resolution, it looks like the Commander-in-Chief has a lot of new enemies and the The Terrorists have a lot of new allies:

National Review Editors

In addition to winning in Lebanon, Iran has the upper hand both in Iraq and in the contest over whether it will be allowed to acquire nuclear weapons. If current trends continue, the Bush administration’s project in the Middle East will require the same sort of expedient we have just seen in the Israel–Lebanon conflict: a papering over of what is essentially a failure.

Dan Riehl

So, it turns out the lofty anti-terrorism rhetoric of Bush was little more than what some speech writer wrote to be read from a screen. . . . The man has looked over his head for much of his second term. Now, it's becoming more clear just how far. This will embolden the opposition in Iraq and could lead ultimately to the destruction of Israel.

Our war President has turned out to be a disgrace. At this point in world history, the Islamofascists look like they deserve to win. In fact, they might.

Paul Mirgenoff, Powerline Blog

Over at NRO's corner, John Podhoretz contends that this would mean the end of the Olmert government. I'm tempted to suggest that our government, having seemingly lost its will to oppose (or even to let others oppose) our deadliest enemies, deserves the same fate.

Michelle Malkin

Israel and the West surrender to Hizballah.

Terrorists and the U.N. win.

Peter Brookes, Senior Fellow, Heritage Foundation, NRO Symposium

If there is a clear winner in this war, it’s Iran.

Soshana Bryen, NRO Symposium

Thus far, the U.S. and Israel lose; Iran wins.

Anne Bayefsky, NRO Symposium

Kofi Annan’s wide grin, as he stood side-by-side with Secretary Rice on Friday, said it all. He won. But America and freedom’s cause lost.

Jeff Goldstein

Israel and the US have been defeated. Hizballah will grow emboldened. As will Iran.

Pamela "Atlas" Oshry, interviewer to John Bolton

Bush Administration Betrays Israel and America

Daily Pundit - in a post recommended by Instapundit: "Read the whole thing, especially if you work in the White House."

Bush's proud words of five years ago stand revealed as hollow and meaningless. What happened?

What happened was one of the biggest failures of leadership in Presidential history. Bush supporters will claim that Bush was done in by a liberal media and the ferocious hatred of liberals and leftwingers, but that is one of the things true leadership is all about: Managing and overcoming opposition in order to achieve the necessary goals - in this case, the destruction of world Islamist terrorism and the regimes that support it.

Bush turned out to be singularly ill-equipped for this task, both by skill and by temperament. His public relations management was curiously hesitant and badly timed, and, of course, his inabilty to speak effectively in public was a gigantic handicap. His temperament, it eventually became clear, was hesitant, overly calculating, timid, and "compassionate."

Compassion has its place, but not in warfighting. The Bush we know would not have pulled the trigger on Hiroshima and Nagasaki. He abdicated the hard decisions in favor of political maneuvering and meaningless gestures.

As for me? I've moved on. The first administration of the first century of the American Third Millennium will, in my estimation, be remembered as one of the biggest failures of that century. Bush's great failure was, not invading Iraq, but not weathering the adversity that followed through acts of real leadership, and then pressing on with the necessary military destruction of the other regimes he, himself, named as most dangerous five years ago.

I'm hoping we can get through the next two years without any major disasters, and then I'm looking to elect a real war leader to the White House - somebody with a warrior's temperament and a leader's skills. George Bush has neither. He is a dangerous failure, and America will be well rid of him.

Bill Kristol and Charles Krauthammer both said this weekend on Fox that Hezbollah won and Iran has been strengthened. Attacks on the Commander-in-Chief and proclamations of American defeat are ubiquitous - among the same group that insisted for the last five years that such attacks are dangerous and wrong and that talk of American defeat helps the terrorists.

Aren't terrorists going to be so happy to see that Americans are divided in this way? Doesn't it make us less safe for all of these people to be branding the U.S. as weak losers and to be glorifying the strength and power of our enemies? Don't these people realize that we're in a war and that weakening the Commander-in-Chief with such criticisms and declaring American defeat endangers all of us?

The Bush administration's chosen journalists -- Sean Hannity and Pam "Atlas"

The Bush administration has adopted an array of tactics to control the news, from threatening journalists with criminal prosecution to paying pundits and manufacturing and distributing propaganda videos disguised as taped news segments. One such tactic, used with increasing frequency and obviousness, is that when Bush officials need to do an interview in order to address some brewing crisis, they will sit with only the most sycophantic and Bush-loving "journalists" who will shower them with praise and adoration in lieu of scrutiny and real questions.

When Dick Cheney needed to do an interview over the hunting scandal, he ran to sit with Bush lover Brit Hume, who, throughout the "interview," sounded like a loving, supportive son as he comforted his kind-hearted dad during a troubled time. Hume had previously conducted one-on-one worship sessions in the White House with the President which would have made Kim Jong Il's press aides envious. Cheney's favorite venue for defending the government's policies is Rush Limbaugh's show. And on Friday, when the Israel-Lebanon U.N. Resolution was announced, Condoleezza Rice chose to discuss it with geopolitical analyst and widely respected, hard-hitting journalist Sean Hannity, who asked her "questions" like this . . .

HANNITY: Our war, the president said yesterday, is with Islamic fascists. Some people took issue with the use of that word today, but that's really what it is, isn't it? Isn't it? Is that the right terminology?

and like this . . .

HANNITY: A lot of people have been using the analogy of the rise of Nazism, and the world fell asleep. There were a few people that tried to wake the world up, Winston Churchill the obvious example.

RICE: Yes.

HANNITY: There were other people that thought that they could negotiate with Hitler their time and have peace in their time. Do you see that analogy? Is that applicable in this particular case?

and . . .

HANNITY: If we assume that Ahmadinejad and his incendiary rhetoric continues, if his pursuit of nuclear weapons continues, must America and the world consider military force to stop him and stop Iran from becoming a nuclear power? I mean, assuming that somebody who says they want to wipe Israel off the map is not somebody you can negotiate with or that wants to go along with the world community, at some point a military option has got to be considered, no?

But all of that pales in comparison to the fact that U.N. Ambassador John Bolton, on Saturday, in the middle of the most pressing crisis the U.N. has faced since he was appointed to that position, decided to sit for an hour-long, one-on-one "interview" and chose as his journalistic interrogator . . . LGF commenter Pamela "Atlas" Oshry of the blog AtlasShrugs, whose views are so far outside of what is mainstream, in equal parts inane and despicable, that it would be impossible to describe fully. I could never do the interview justice -- you really must listen to it to believe it -- but these were some of the "questions" that the U.S. Ambassador to the U.N. answered on Saturday:

* I mean if the Israeli, if the IDF, which is, although when I was in Israel, I gotta tell you, a bunch of baby-faced kids. I know they're always portrayed in the media with Darth Vader helmets and the Israeli war machine. I'm telling you, the cutest kids ever.

* Such stock we're putting in the Lebanese government, who is totally kowtowing to Hezbollah. You put every remark by the crying Siniora, I mean, another Godfather moment. You remember Godfather, Frank Sinatra, it was supposed to be Frank Sinatra, he's crying, you're godfather. Same thing happens, somebody slap him. So how could you have so much faith in the Lebanon government? I mean, I want to believe, John. I believe in you. I want to believe.

* So I think one of the things that we're looking at, and many others, is not just assistance for the reconstruction for the infrastructure of Lebanon, as Secretary Rice said, $50 million dollars is our first pledge --

Pamela: Yeah, where's Israel's reparations?

* I was trying to understand how they became part of the government, Hezbollah, and she was saying that, you know, listen, Osama bin Laden was one of, I don't know, 53 children, 83, I'm not sure, give or take, and he had 53 or 23, whatever. She said this is what they do. Hezbollah, 25 years ago, they have four wives, they all have children, they literally gave birth to their voting bloc.

* It's not the only terrible situation in the world, but it's unconscionable to me that this man [Kofi Annan], with, in my opinion, I know you probably don't share it, absolutely no morality, absolutely no spine, is a tool, I think he's a jihadi tool. Yes I do, to make a statement like that, and not to be called out on it, John.

It goes on and on like that. Interviews with Bush officials -- especially the intimate one-on-one sit downs -- have become contests in who can lavish them with the most praise and reverence, who can ask the most glorifying leading questions. The only "challenges" they hear are questions about why they are not pursuing their brilliant policies faster and more aggressively.

Pamela has written one love letter after the next to John Bolton over the past several months. To say that she is not a serious or even stable person is a gross understatement. To describe her accurately would require an endless list of unpleasant ad hominems. The views she expresses on her blog on a daily basis are nothing short of grotesque -- often laughably so. And yet she is the person with whom our U.N. Ambassador chose to sit for an "interview" in order to explain U.S. government policy on the crises in the Middle East.

For several days after Jane Hamsher used a blackface photograph, virtually every news organization covered that incident extensively, with all sorts of demands that the Lamont campaign repudiate her. Bolton and Oshry ended their love fest talking about the work Oshry is doing to support Bolton's confirmation:

Pamela: I know you don't say that. Speaking of political predictions, your confirmation. Where are we now with your confirmation, John?

Bolton: Well, I had my confirmation hearing in July, and...

Pamela: Oh, it provided the most wonderful fodder for the YouTube, and the rest of the...

Bolton: But the Senate foreign relations committee will vote on it, or at least is scheduled to vote on it on September the 7th, and Senator Frist, the majority leader, has expressed interest in moving rapidly. We'll have to see.

Pamela: We have that petition up. Everybody's signing that petition. We're behind you.

Bolton: I really do appreciate all this support. It's just amazing.

Pamela: It's amazing that it's even happening, I have to tell you. It's shameful that it's happening.

Bolton: Keep your fingers crossed.

Does John Bolton support the sentiments which spew forth every day from his supporter, journalist Pamela Oshry? Bush officials have long gotten away with kowtowing to the most virulent extremists who compose the base of their support. Now they are using those same extremists as pretend journalists who "interview" them. Maybe some of the intrepid journalists who wrote all about the fascinating Ned Lamont blackface scandal can take a look at some of the statements made by John Bolton's favorite supporter and see if there might be a story there about the sentiments which are routinely spewed from that crowd. Is this a person to whom top Bush officials should be giving "interviews" and soliciting their support?

Legal surveillance, not illegal eavesdropping, stopped the U.K. terrorist attacks

(updated below)

As I noted on Thursday, Bush supporters have been attempting to exploit the U.K. terrorist plot to bolster support for an array of extremist and lawless Bush policies -- from warrantless eavesdropping to torture -- even though there is not a shred of evidence that any of those policies played any role whatsoever, either in the U.S. or England, in impeding this plot.

Within hours of disclosure of the plot, Cliff May was over in National Review crowing that this plot demonstrated the need for warrantless eavesdropping and indefinite detentions, and yesterday, the Wall St. Journal published an editorial strongly insinuating -- with no reasoning (and no facts) whatsoever -- that Bush's most controversial policies were necessary to stop the attacks from proceeding:

Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs . . . .

Surveillance? Hmmm. Democrats and their media allies screamed bloody murder last year when it was leaked that the government was monitoring some communications outside the context of a law known as the Foreign Intelligence Surveillance Act. FISA wasn't designed for, nor does it forbid, the timely exploitation of what are often anonymous phone numbers, and the calls monitored had at least one overseas connection. But Mr. Reid labeled such surveillance "illegal" and an
"NSA domestic spying program." Other Democrats are still saying they will censure, or even impeach, Mr. Bush over the FISA program if they win control of Congress

It is hard to know where to begin in demonstrating the sheer falsity of these arguments. First, most of the surveillance of the terrorist plotters was conducted by British law enforcement. British law requires the issuance of warrants before telephone conversations can be intercepted, and every warrant must "name or describe either one person as the Interception Subject, or a single set of premises where the interception is to take place." Being able to eavesdrop only with warrants did not prevent British law enforcement from stopping these terrorist attacks. It is baffling, to put it mildly, why defenders of Bush's illegal eavesdropping would think that any of this bolsters their defense that warrantless eavesdropping is necessary.

Even more significantly, to the extent that U.S. law enforcement agents attempted to assist in the pre-arrest surveillance of these terrorists, they were able to eavesdrop on the conversations of scores of individuals inside the U.S. by obtaining the approval of the FISA court, just as the law requires:

In the days before the alleged airliner bombing plot was exposed, more than 200 FBI agents followed up leads inside the United States looking for potential connections to British and Pakistani suspects. The investigation was so large, officials said, that it brought a significant surge in warrants for searches and surveillance from the Foreign Intelligence Surveillance Court, the secret panel that oversees most clandestine surveillance.

One official estimated that scores of secret U.S. warrants were dedicated solely to the London plot. The government usually averages a few dozen a week for all counterintelligence investigations, according to federal statistics.

The purpose of the recent warrants included monitoring telephone calls that some of the London suspects made to the United States, two sources said.

From the very beginning of the NSA scandal, this has been the point -- the principal, overarching, never-answered point. There is no reason for the Bush administration to eavesdrop in secret, with no judicial oversight, and in violation of the law precisely because the legal framework that has been in place for the last 28 years empowers the government to eavesdrop aggressively on all of the terrorists they want, with ease.

This fact, yet again, demonstrates the sheer dishonesty motivating those right-wing pundits claiming that "Democrats" oppose the type of eavesdropping used to stop this plot. Legal eavesdropping, within the FISA framework, is exactly the eavesdropping which Bush critics advocate, and it was precisely that legal eavesdropping which was used to engage in surveillance of suspected terrorists here.

Additionally, The Wall St. Journal is simply incoherent when it says that "Other Democrats are still saying they will censure, or even impeach, Mr. Bush over the FISA program if they win control of Congress." This claim just makes no sense. Nobody opposes "the FISA program." Bush critics want aggressive eavesdropping within the "FISA program." The censure of the President has been proposed because of the President's eavesdropping outside of the FISA program -- i.e., outside of the law. Does The Wall St. Journal Editorial Board really not understand that most basic point? Why are they falsely telling their readers that Democrats oppose "the FISA program" -- as though Democrats oppose eavesdropping itself?

Let us emphasize one last point. In their zeal to imprison Jim Risen and the New York Times editors responsible for disclosure of the NSA warrantless eavesdropping program, Bush followers continuously claimed that this disclosure somehow alerted terrorists to the fact that we were eavesdropping on their conversations (as though they were not aware of that before) and that, as a result, we have now lost the ability to monitor their conversations. Now that they know we are eavesdropping, so this "reasoning" goes, they will not use telephones to talk to each other any more.

And yet, here was a major plot foiled because the terrorist plotters were using telephones to communicate about their plans -- and using banking systems to wire money -- all of which law enforcement could track within the law. This whole episode potently illustrates just how inane are the claims that the Times' NSA story (and its SWIFT disclosures) would endanger national security. Terrorists already knew full well that we monitor their telephone conversations and banking transactions, and they knew that before the New York Times "told" them so. But in order to plan terrorist attacks, terrorists must communicate with one another and send money to each other. Somehow, the Times' story did not prevent us from eavesdropping on all of these conversations. That's because the Times stories -- as has been evident from the beginning -- told terrorists nothing which they could use to avoid detection.

Only Bush followers could point to a successful law enforcement operation which, by all appearances, complied with the law, and try to use it to argue how necessary it is that the law be broken. That is the central myth at the heart of the Bush desire for increased authoritarian measures -- that there is a forced choice between protection from terrorist threats and the rule of law.

That is a false choice. We can be a country which lives under the rule of law and which effectively battles terrorism -- just as we were a country which lived under the rule of law (including FISA) as we battled communism and a whole array of other external threats. Despite the bizarre effort by Bush followers to use this U.K. plot to argue for the need for the President to break the law, it actually demonstrates precisely the opposite.

UPDATE: Atrios links to this post by Scott Lemieux that responds to the WSJ editorial, and Scott, in turn, links to (and quotes from) this post by Spencer Ackerman at TNR's Plank, in which Ackerman asserts -- with no citation or link -- that "British investigators, in all cases, have to obtain and comply with court-issued warrants for any surveillance" (emphasis added).

My understanding (and I could be wrong) is that this is inaccurate. British investigators are required to obtain warrants, but not ones issued by a court. Instead, eavesdropping is authorized through a process within the British Home Secretary -- the rough British equivalent of the U.S. Justice Department.

The important point is that the British were able to stop this plot while complying with the law and obtaining warrants -- and, more importantly, American investigators were able to eavesdrop on suspected terrorists, including those communicating with U.S. persons, within the FISA framework. But I believe (again, without being certain) that it's inaccurate to say that British law requires court-issued warrants for eavesdropping.

UPDATE II: As John Amato noted on Thursday, even Bill O'Reilly acknowledged that "warrants were obtained for this by the FISA court" for the U.S. part of the surveillance (but then nonetheless still tried to prod Michael Chertoff into saying that this was a "big win politically for you guys" on the NSA issue). But readers of the Wall St. Journal, or National Review, and Powerline have all been misled into believing that the President's warrantless surveillance program was used to thwart this plot.

A bizarre end to a bizarre war in Lebanon

(updated below)

The unfolding events in the Middle East seem rather odd. Current reports suggest that the U.S. and France have agreed to a U.N. Resolution -- which Israeli Prime Minister Ehud Olmert has accepted -- and it will be imminently adopted (tonight) by the Security Council, probably unanimously.

The Resolution calls for an immediate "cessation of hostilities." Hezbollah would be required to withdraw from Southern Lebanon and an expanded U.N force (led by French soldiers) would be deployed along with Lebanese soldiers to ensure that Hezbollah does not operate there. But that force would not have the U.N. charter authority the Israelis wanted -- which provide for rules of engagement where that U.N. force would actually militarily engage Hezbollah if it operated in the forbidden region (though it would be a "robust" force, say the Resolution's advocates).

Hezbollah would not be disbanded nor disarmed, and its re-supply route from Syria would neither be destroyed nor impeded. Given the grand pronouncements with which this war began -- that Hezbollah would be destroyed, that it was the start of the epic war of civilizations -- any honest person (and even many who are not honest) would acknowledge that this is a defeat for Israel and for neoconservative dreams of a wider war. As a result, many in Israel are predicting, and vigorously calling for, the resignation of Israel's Prime Minister.

The disappointment and anger of neoconservatives over this ignominious end must be severe, and it is almost certain to be a source of very intense conflict between them and the Bush administration. Already, Paul at Powerline -- one of the most loyal Bush supporters on the planet -- said:

The JPost says there's a good chance that the wobbly Olmert government will accept this resolution. Over at NRO's corner, John Podhoretz contends that this would mean the end of the Olmert government. I'm tempted to suggest that our government, having seemingly lost its will to oppose (or even to let others oppose) our deadliest enemies, deserves the same fate. But let's wait until the facts are in.

Once he read the resolution, Paul said that "there is no excuse for bringing this matter to an end until the IDF has made much more progress than it has to date" and that the U.N. force would be a "joke." Rich Lowry (who, whatever else one might want to say about him, has excellent sources in the Bush administration and the Israeli government) quotes an Israeli source as saying that this is the "worst defeat for Israel since 1948," and adds:

when it comes to U.N. resolutions in the Middle East is that they either simply reflect the facts on the ground, or make the victor give away a little bit of his victory; they never let someone pull victory out of a hat from defeat. So Israel will utlimately (sic) get from this resoltuon (sic)what they won on the ground, which is to say not much.

In another post, Lowry passes on the Bush administration's best propaganda as to why this is a good Resolution for Israel and the U.S., but I think Powerline Paul's reaction will be quite typical - neoconservatives are not going to be remotely convinced.

In fact, John Podhoertz is flopping around over in the Corner in a way that reflects the distress and trauma neoconservatives will suffer from this result. Podhoretz first declared that the U.N. Resolution will mean that "Israel and the United States will be handing Hezbollah a victory. And Israel will have lost a war for the first time. And probably not the last." He then tried to keep his chin up and rationalized that "it's not a disaster," but then immediately thereafter posted again to say:

Olmert is still toast. My nephew, who is a veteran of the Israeli army but has not been called up because he's here in the States for a few months, writes:

"I can't believe he's doing this. I cannot believe we are once again running from Lebanon with our tails between our legs. Olmert's picture will now appear in the dictionary next to the word 'coward.'"

This will be a very common opinion across the political spectrum.

When this all started, neoconservatives were in full bloodthirsty glory, salivating over the complete obliteration of Hezbollah and much of Southern Lebanon, as the start of the "great opportunity" -- "our war" -- in which we would do the same to Syria and Iran. Instead, they got a joint U.S.-French U.N. resolution engineering a cease-fire dependent upon French troops protecting Israel from the Hezbollah militia, and even Israeli hawks lamenting the humiliation suffered at the hands of Hezbollah (assuming Hezbollah, which clearly has the strongest hand here, agrees to all of this).

Watching Fox News right now discussing this is like being at a wake. Paul at Powerline is calling for the downfall of the Bush administration. The neoconservative dream for broader war, at least for the moment, has collapsed on its shattered foundations. Nobody should consider a Hezbollah victory to be anything remotely a cause for celebration; that should go without saying. But the plan the neoconservatives harbor - and thought they were finally able to execute - is as dangerous a threat as anything else in the world, and anything which puts a stop to it, and which drives a wedge between them and their enablers in the Bush administration, is something which, independent of all else, is a constructive development.

UPDATE: An e-mail correspondent, well-versed in Middle East affairs, suggests that an Israeli defeat does not necessarily mean a win for Hezbollah -- that is, while Israel plainly won nothing if the war ends pursuant to this resolution, Hezbollah was hardly in a good position itself, and needed an end just as badly as Israel did. His reasoning:

But I think the impression that things have gone badly for Israel is based on the Israeli perspective, which is saturated with the daily death tolls and unfulfilled (unrealistic) expectations. But from the Lebanese perspective, this has been nothing short of a catastrophe. And that can't be good for Hezbollah. So, my point is that notwithstanding Nasrallah's rantings, he may very well want this to be over because it's been a nightmare and the continuation of this war is a losing proposition for him.

I view this war and the end of it as "bizarre" because the war's ambitions were so grand and sweeping from the start-- the amount of brutality and slaughter required to accomplish them were far in excess of what could be tolerated -- that it was almost designed to fail from the start. One could say exactly that of the general neoconservative view on all matters (Iraq, transforming the Middle East, regime change in Iran, etc.)

Strange Burden Shifting

By Anonymous Liberal -- On Thursday, Andrew Sullivan wrote the following:

But, for all Cheney's and Rumsfeld's flaws, they are
at least proposing something serious, however
ineptly carried out. I have yet to hear anti-war
voices on the left propose a positive strategy for
defeating Islamist terror at its roots, or call for
democratization of the Arab Muslim world. Indeed, I
heard little but scorn or silence when Bush announced
this vision in London. Do the Democrats stand for
democracy in Iraq? Or in Iran? Do they favor
Beinart-style containment of Islamism? Nuclear
deterrence against Tehran? Certainly, the Kossites
seem utterly uninterested in any of these subjects.
That's their prerogative; and it's equally my
prerogative not to take them seriously until they do.

The same goes for the Dems as a whole. Until the
opposition party presents a progressive, democratic
agenda to reform the Middle East - as Blair has done
in Britain, for example - there's no reason to take
them seriously on national security. Maybe their
presidential candidate will articulate such a vision.
So far, however: so not so much.

I've heard this same general sentiment expressed by a lot of people, and I've gotta say, it makes absolutely no sense to me. As near as I can understand it, Sullivan is admitting that the policies the Bush administration has been following have been ill-advised and incompetently executed, but it's the opponents of these policies he is not yet willing to take seriously, apparently because they have not yet unveiled a grand master plan for ridding the world of Islamic terror.

Though Rumsfeld and Cheney have been wrong about everything, according to Sullivan, they are "at least proposing something serious." Really? What exactly is it that they're proposing? I've been following the news pretty closely, and I haven't heard them offer any proposals of any sort for some time now. Their plan, as near as I can tell, is to cross their fingers and hope that Iraq somehow gets better.

Perhaps Sullivan is refering to the original "plan" of reshaping the Middle East by force, one country at a time, of establishing Iraq as a "beachhead for democracy" in the region. Well, I think the last three years have demonstrated how profoundly unserious that plan was. The neocon plan was certainly far-reaching and ambitious. I'll give it that. But it was never very well thought out. It was, from a logistical standpoint, totally unrealistic, and it was built upon a number of very dubious assumptions about the "root causes" of Islamic terrorism, most notably that lack of democracy is the primary problem.

But this premise just doesn't hold up. As the recent elections in Palestine and Lebanon illustrate, terrorist groups are more than capable of winning democratic elections. But, more importantly, the British experience has made it crystal clear that Islamic fundamentalism is not a problem confined to third world autocracies. Encouraging the spread of democracy is certainly a worthy goal, but there's no reason to think doing so will solve (or even diminish) our terrorist problem, especially when our preferred method of democracy-spreading is unprovoked war.

Sullivan seems to acknowledge that the neocon plan is not working and may even be counterproductive, but he is unwilling to take the "anti-war" crowd seriously until they offer forth some alternative grand sweeping strategy for fighting terrorism.

But what if there isn't one? The neocon plan of reshaping the entire Middle East by force was always a pipedream. It vastly underestimated the difficulty of such an enterprise, and even worse, it fundamentally misconceived the problem. Most grand sweeping strategies tend to do that. Let's face it, the Muslim world is vast. There are millions upon millions of Muslims outside of the Middle East, in Asia, Europe, and here in North America. And recent experience has demonstrated that the sort of radicalization that leads to terrorism can happen anywhere.

Conservative pundits and politicians have long berated anyone with the temerity to suggest that terrorism is not a problem best handled militarily. But it is manifestly obvious that fighting terrorism effectively involves mostly non-military measures. Just look at the foiled "liquid-bomb" terror plot. These bombers were set to fly out of the UK. They may have had connections to Pakistan. We're clearly not going to militarily engage either of those countries, for obvious reasons. So how can such a problem be dealt with militarily?

The blunt instrument of military force is particularly ill-suited to fighting a worldwide terrorism network, particularly one that spawns unaffiliated copycats. Nor is military force an effective way of attacking the "root causes" of terrorism, as the war in Iraq tragically illustrates. As a general matter, invading and occupying countries is a recipe for more terrorism, not less.

People like Sullivan seem to believe that because Islamic terrorism is such a serious threat, only a bold, audacious, totally unorthodox strategy is sufficient to deal with it. I very much question that assumption. There are no quick fixes when you are fighting an ideology. Like communism before it, I suspect Islamic fundamentalism will only be defeated through a slow war of attrition. Ideologies must die out, they cannot be killed.

Fighting terrorism effectively will involve working closely with other countries, even the ones we don't particularly like, to identify and cripple terrorist networks. Occasionally there will be ways to effectively use military force, like in Afghanistan, but these will be the exception not the rule. The most effective way to address the root causes of terrorism is to pursue policies that will hasten the spread of modernity, not just democracy, throughout the Middle East. When people have jobs and lives and hope, the ideology of jihadism will be far less appealing. But this process will take a long time, and we can't make it happen by brute force. We must be vigilant and patient. Very patient. The Cold War wasn't won overnight. But there were many points along the way where reckless ill-considered action could have been disastrous.

Over the last four years, our leaders have engaged in a counterproductive strategy, and they show no signs of understanding that. Under those circumstances, the burden isn't on the administration's critics to present some grand alternative strategy. The only "unserious" option at the moment is allowing these clowns to continue making a mess of things.

-posted by A.L.

Eavesdropping deceit from Bush supporters -- Democratic unity over Lamont, Iraq

I virtually never use the words "liar" or "lying" in political discussions because those words are so overused and inflammatory -- and have become such cheap and banal insults by those with nothing substantive to say-- that they have virtually lost all meaning. If someone is really lying, it is, in my view, far more effective to simply demonstrate that and let others draw the conclusion, rather than just toss the accusation around.

But adhering to that rule is exceptionally difficult when I read posts like this one from John Hinderaker. The "argument" he advances in the last two paragraphs in order to politically exploit the U.K. terrorist plot is, for reasons I explain here at Salon, nothing other than deliberately deceitful. And it is an "argument" often repeated by numerous right-wing commentators, just not usually in as nakedly deceitful fashion as Hinderaker put it today.

Also at Salon, I have a post examining a new Zogby poll revealing that Democrats are remarkably, perhaps unprecedentedly, united regarding: (a) the defeat of Joe Lieberman, (b) their opposition to the Iraq war and (c) their optimism over their prospects this November. Now matter how much bluster and bravado emanates from the White House, the thing that they fear most is a united and impassioned Democratic Party motivated, at least in part, by opposition to a deeply unpopular, failed war.

Exploiting terrorist threats for political gain

(updated below - major court victory for Bush administration against press freedoms)

Only 12 hours or so have elapsed since disclosure of the U.K. airplane terrorist plot, and already the Bush administration and its supporters are, quite characteristically, rushing to exploit it for political gain, as I detail in this post over at Salon.

I also have a post-mortem there of the Lieberman defeat, including an analysis of the severe problems Lieberman will face if he proceeds with his independent run, along with the way in which some national journalists are, as always, mindlessly reciting White House propaganda about this race as though it is fact.

Finally, I learned of the U.K. terrorist plot when I was in the middle of writing a post regarding the simplistic and frivolous comparisons of the trans-partisan, anti-war sentiment sweeping the country today and the anti-war movement in 1972. As a result, I haven't finished that post yet, but Anonymous Liberal has now written a superb post here making many of the arguments I had intended to make. I will add a few thoughts later today as to the invalidity of this comparison.

UPDATE: I have written previously about the Bush administration's extraordinary criminal prosecution against two former AIPAC employees under the Espionage Act of 1917, and the ways in which that prosecution can lay the groundwork for prosecuting investigative journalists. The district court in that case today refused to dismiss the charges, holding that the Espionage Act empowers the government to prosecute private individuals for disseminating classified information, and that national security concerns outweigh the citizens' First Amendment interests in speaking about the conduct of their government. This is a huge win for the administraiton's efforts to put jouranlists in prison for the stories they publish.

The court's opinion is here (.pdf). I now have a post up at Salon about this decision.

It's not 1972

By Anonymous Liberal -- The entirely predictable conventional wisdom that seems to be emerging from Joe Lieberman's stunning primary defeat on Tuesday is that the Democratic party is on the verge of repeating the mistake it made in 1972, when anti-war candidate George McGovern lost 49 states to Richard Nixon. This talking point is being repeated not only by right-wing commentators, but mainstream journalists and left-leaning pundits as well. For instance, Jacob Weisberg of Slate had this to say:

This is a signal event that will have a huge and
lasting negative impact on the Democratic Party.
The result suggests that instead of capitalizing on
the massive failures of the Bush administration,
Democrats are poised to re-enact a version of the
Vietnam-era drama that helped them lose five out
six presidential elections between 1968 and the
end of the Cold War.

To drive this point home, Weisberg's column is accompanied by a cartoon image of a donkey in hippie garb holding a flower and making a peace sign. Weisberg reminds us that:

The party's Vietnam-era drift away from issues of
security and defense--and its association with a
radical left hostile to the military and neutral in the
fight between liberalism and communism--helped
push a lot of Americans who didn't much like the
Vietnam War into the arms of Richard
Nixon.

I don't really dispute Weisberg's description of what happened back in 1968 and 1972, nor am I willing to entirely rule out the possibility that the same thing could happen again. But I do think there are some important differences between 2006 and 1972, differences that Weisberg and others making this argument seem intent on ignoring.

1) Voters in 1972 did not have any historical context for understanding what was happening in Vietnam. America had not previously been involved in such a debacle; we had never lost a war. As a result, though much of America was upset about the war, many had not yet resigned themselves to the fact that the war was unwinnable. They were not yet willing to walk away, to accept failure. But had voters known when they were casting their ballots in 1972 that we would eventually do exactly what McGovern was calling for (but only after many more needless deaths), I suspect McGovern would have done a lot better.

And therein lies an important difference between now and then. Now people have a very relevant historical analogy to draw upon. People still vividly remember Vietnam and cannot help but draw parallels between the two conflicts (as all the comparisons to 1972 illustrate). But it's silly to pretend that we're all going through this for the first time again. Weisberg's analysis assumes that nobody learned anything in the interim, that our experience in Vietnam hasn't in any way affected how the public views these issues. It has.

2) There is nothing at the moment even remotely comparable to the anti-war movement of the 60s and 70s. There are no sit-ins, no demonstrations, no unrest, and no "dirty hippies" to frighten the masses. In short, there is nothing about the current "anti-war movement" that seems likely to create a cultural backlash or alienate otherwise like-minded voters.

3) As Mark Schmitt pointed out a few days ago, the party dynamics are very different in the present conflict. The Vietnam War was started and prosecuted initially by Democrats. This allowed Nixon and the GOP to deflect much of the political blame for the war. They could plausibly claim that they were just trying to salvage the situation, to win a conflict that others had begun. This dynamic also led, understandably, to greater internecine squabbling within the Democratic party.

But the Republican party owns the war in Iraq. Yes, many Democrats voted in favor of the Iraq resolution, but it was not their idea. And more importantly, they've not controlled any branch of government at any point during the conflict and have not had any say whatsoever in how the war has been prosecuted. That makes it much harder for the GOP to deflect the blame for this debacle. It rests squarely on their shoulders.

4) The Democrats have a very different message this time around. Weisberg points out that in the 60s and 70s, criticism of the Vietnam War led many on the left to downplay the genuine threats that existed in the world. But the primary argument offered by Democrats critical of the Iraq War is that it has made us less safe, that by invading a country that had nothing to do with 9/11 or al Qaeda, we diverted our attention from the real enemy and actually exacerbated the terrorist threat. That's a fundamentally hawkish critique. Indeed, the primary advocates of this view--people like Al Gore, Howard Dean, and Wesley Clark--all have indisputably hawkish records on foreign policy. And yet they are the darlings of the netroots and the "anti-war movement." Which leads me to the final difference.

5) Democratic politicians and their supporters are all keenly aware of what happened in 1972. They don't need Jacob Weisberg to remind them. If anything, they have over-internalized this lesson. Democratic war critics are always very careful to frame their message in terms that make it clear that they take the terrorism threat seriously and that they fully support our troops. Here's Wesley Clark speaking yesterday:

You see, despite what Joe Lieberman believes,
invading Iraq and diverting our attention away
from Al Qaeda and Osama bin Laden is not being
strong on national security. Blind allegiance to
George W. Bush and his failed "stay the course"
strategy is not being strong on national security.
And no, Senator Lieberman, no matter how you
demonize your opponents, there is no
"antisecurity wing" of the Democratic Party.

Put simply, there is virtually no chance that Democratic politicians will start using pacifist rhetoric or downplaying the threat of terrorism. They know that doing so would be political suicide, particularly if there were to be another terrorist attack. Moreover, the netroots and Democratic activists don't want pacifist Democrats. They just want Democrats who are right about this war. That's why they love Gore and Dean and Clark.

And even if all of these obvious differences didn't exist, what does Weisberg expect the Democratic party to do? Say nothing as the situation continues to deteriorate? As Digby put it today:

When your country is engaged in dangerous wars
based on lies and obscure reasoning, it is immoral
to say nothing simply because you are afraid it
will make you look bad.

The voters deserve the opportunity to express their dissatisfaction with the Iraq War, and it's clear that the Republican party is not going to give it to them; the GOP just has too much political capital invested in this war. That leaves the task of grappling seriously with the strategic errors of the last four years to the Democrats. With 60% of the country opposed to this war, I really don't think the Democratic party will be punished for voting one of the war's chief supporters out of office.

-posted by A.L.

UPDATE: Barbara O'Brien takes issue with Weisberg's description of what happened in 1972.

The Lieberman defeat -- Media coverage of LGF

(updated below)

(1) I will have several posts, at least, over at Salon today on the extraodrinary defeat of Joe Lieberman, beginning:

- here, with a discussion of the craven behavior of Joe Lieberman and what an illustrative symbol he has become of the insular, arrogant, and fundamentally corrupt Washington establishment; and,

- here, by highlighting the message which the Lieberman defeat sends to national Democrats concerning their conduct between now and November.

(2) As readers of this blog know, I have been writing extensively about the glaring failure of national journalists to examine and report on the hate-mongering and extremism which fuels so much of the pro-Bush right-wing blogosphere (even as these same journalists spill endless oceans of ink on even the pettiest and most inconsequential gossip concerning the "liberal blogosphere").

The hysterically overblown Reuters "scandal" from this weekend has led many journalists (who are now the most frequent and hated targets of the Right's most deranged rhetoric) to shower the right wing blogosphere with praise over the last several days. Two articles this morning -- this one from the Christian Science Monitor (also published by USA Today) and this one from the Washington Post -- focus on Little Green Footballs, one of the most widely-read and radical of the right-wing blogs.

The CSM article is a virtual love letter to LGF's Charles Johnson, with one paragraph after the next like this:

How did this 50-something computer programmer and Web designer turn into an Internet celebrity, sought out by CNN and regularly roasted by liberal critics? The answer lies in expertise, diligence, and imagination.

Buried in the middle of the article is this:

Johnson's detractors keep up a steady stream of dissent; some even devote entire websites to dissecting his blog's faults.

"The readers on that blog are treated to stories selected by [Johnson] that are designed to depict Muslims as extremist or violent, and the comments that flow from that are the ones that you would expect," complains blogger Glenn Greenwald, who accuses Johnson of stifling opposing points of view and jumping to conclusions.

I spent a good amount of time with the CSM reporter who worked on this story documenting the extremism and violence-glorification that is the staple of LGF, and provided voluminous material documenting all of it. To put it mildly, the criticisms of LGF which I voiced go far beyond Johnson's "stifling opposing points of view" or his penchant for "jumping to conclusions," complaints which -- in the scheme of what LGF is and what it does -- are so minor and petty that they really do not accurately reflect anything I said. But the reporter was intent on praising and glorifying LGF, not exposing the vile, dangerous sentiments which it exists to stoke and inflame. As a result, the information I provided was just cursorily included solely to give the illusion of some sort of even-handedness.

The Post article, though, is more substantive and meaningful. I will likely write more about this later at Salon, but for now, Greg Sargent has an analysis of the more important parts of the Post story and Johnson's response to it.

The Reuters sideshow these past few days has led journalists -- who are demonized and attacked by these right-wing blogs on an almost daily basis -- to fall all over themselves praising these bloggers as guardians of truth and accuracy. But the real core and function of these blogs is too glaring, ugly and extreme to ignore forever. The media coverage will come, and I think its impact will be significant. The right-wing blogs provide a vehicle to vent and inflame -- and therefore a window to examine -- the real impulses and desires that fuel much of the Bush movement.

UPDATE:

(3) The first exit poll from last night is available, which I discuss here.

More Poison Pills in the Specter Bill?

By Anonymous Liberal -- I don't have time today to write much of anything substantive, but I wanted to highlight an important bit of legal analysis that hasn't yet garnered the attention it deserves. Both Glenn and I have described in some detail why Arlen Specter's "compromise" surveillance bill is a truly awful and pernicious piece of legislation. But it may be even worse than we realized (if that's possible).

Last week, Professor Orin Kerr provided some much needed analysis of the definitional changes contained in the Specter bill. He pointed out that Specter's bill would change FISA's definitions of "electronic surveillance," "contents," and "agent of a foreign power." He concluded that "the Specter bill would make some pretty significant changes to some of the basic principles of FISA." His entire analysis is worth reading for anyone interested in this issue. The part that really caught my eye, though, was this:

The changes to the definition of "electronic
surveillance" are even more important. Part of the
changes are presumably needed to authorize the
NSA program; much of the program would seem to
be excluded from the definition of "electronic
surveillance." But more broadly, note that under
the new definition, monitoring does not constitute
electronic surveillance if a) the person monitored
has no Fourth Amendment "reasonable expectation
of privacy" or b) no warrant would be required to
conduct that monitoring in the criminal context.

This explicit incorporation of Fourth Amendment
law as the sole test of the statute is troubling, I think,
because the Fourth Amendment standards for
electronic surveillance are tremendously murky right
now. For example, courts have held that you don't
have a reasonable expectation of privacy in calls to or
from cordless phones, and they have used reasoning
that would also appear to apply as well to cell phone
calls. (You have statutory privacy protection, which
is much stronger than constitutional protection, but
not constitutional protections.) If you don't have a
reasonable expectation of privacy in your cell phone
calls, which those cases suggest is the case, Specter's
bill would mean that the NSA can tap every
cell phone in the country of every US citizen,
for entirely domestic calls, all without a
warrant. This monitoring wouldn't be "electronic
surveillance" because (based on the cordless phone
cases) the Fourth Amendment doesn't apply.

Similarly, right now it's really uncertain whether
one can have a reasonable expectation of privacy in
your e-mail, and if so, when such protection exists.
(Again, there is statutory protection, but
constitutional protection is really uncertain.) Some
scholars suggest that there is such protection, others
suggest there isn't; as a matter of doctrine, the
answer is essentially unknown. But if the statutory
standard hinges on constitutional protection, and it
may be that there isn't any constitutional protection
at all, then it may be that there is no statutory
protection either. And since the government's
applications are secret, we wouldn't know it.

My sense is that whoever drafted the Specter bill--probably David Addington--intentionally packed it full of poison pills. The bill seems to legalize warrantless surveillance in many different ways, some of them obvious, some more subtle. This built-in redundancy is likely a way of insuring that even if the bill gets amended on its way through Congress, it will still contain some statutory hook on which the administration can hang the legality of its surveillance practices. The administration may have suspected that the bill's most brazen provisions, such as the one doing away with FISA's exclusivity clause, would encounter Congressional resistance and ultimately be left out of the final bill.

In other words, there seem to be a number of fallback provisions built in to the bill. If it is passed in its present form, these provisions are largely superfluous and unnecessary; FISA, by its own terms, would no longer be the exclusive means through which surveillance could be conducted. But the administration may have anticipated resistance and planned accordingly. They may be counting on the bill's opponents focusing their fire on the more provocative provisions of the bill while ignoring the subtler changes, such as the ones Orin Kerr highlights in his post. This is all the more reason for opponents of bill to focus on killing it altogether.

-posted by A.L.

Various matters

(updated below)

(1) My posts today at Salon:

(a) an analysis of the new Washington Post-ABC News poll, which contains some very bad news for Republicans and even worse news for neoconservatives;

(b) an examination of the increasingly common, and increasingly aggressive, exploitation of anti-semitism accusations as a partisan weapon, most visible in the Lieberman-Lamont race but clearly part of the nationwide right-wing political strategy; and

(c) a post concerning Joe Lieberman's history of mimicking the Bush administration's rhetorical tactic of equating war criticism with anti-Americanism, behavior which I believe accounts, more than anything else, for many Democrats' intense hostility towards Lieberman.

(2) Feel free to use the comment section here to discuss the results of the primary tonight (or, as always, for whatever else you want to discuss).

(3) Justin Rood at TPM Muckraker has an article updating the Mark Zaid-John Murtha-John Kline Haditha lawsuit. I had some concerns about what I perceived to be some not-completely-accurate statements in the original version of Justin's story, but he was very responsive, cooperative and accommodating in correcting them, which I appreciate.

UPDATE:

(4) For whatever it's worth, Jane Hamsher, in Connecticut, has some preliminary post-poll-closing reports. These sites appear to offer in-time returns -- here, here (h/t Echidne) and here.

Obligatory Lamont/Lieberman Post

(updated below re: Comment section)

By Anonymous Liberal -- As voters in Connecticut go to the polls, discussion of the Lamont/Lieberman race is dominating the blogosphere. Rather than fight against the current, I thought I'd finally weigh in on the issue, for what it's worth.

The now painfully annoying conventional wisdom among Beltway insiders (Republican and Democrat) is that Lieberman's opponents, especially those within the so-called "netroots", are trying to drag the entire Democratic party leftward, that Lamont's campaign represents an attempted ideological purge. This simplistic analysis strikes me as utterly inane. Last week, Mark Schmitt observed, correctly I believe, that "Lamont supporters actually aren’t ideologues. They aren’t looking for the party to be more liberal on traditional dimensions. They’re looking for it to be more of a party."

The problem with Lieberman--at least in my opinion--is that he doesn't seem to understand the significance of the fact that his party is entirely out of power. Ironically, this point was perhaps best explained by Peter Beinart in the latest issue of the New Republic in a column intended as a defense of Lieberman. Beinart writes:

Listen to Joe Lieberman's liberal critics and you
hear the same lines again and again. He has
"betrayed his party" and practiced "turncoat
politics." He has "defined his image by distancing
himself from other Democrats." He's not a "team
player." Funny, that's just what originally drew
me to the guy.

Beinart then goes on to describe a number of examples of Lieberman's "apostacy" that arguably made the Democratic party stronger. He observes:

To be sure, Lieberman's record in the '90s was not
flawless. . . . But, on balance, his Clinton-era heresies
--many of which became the heresies of Clintonism
itself--left liberalism in a far stronger position at the
end of Clinton's presidency than it had been at the
beginning.

After laying out this defense of Lieberman, however, Beinart is reluctantly forced to acknowledge a key difference between the 1990s and the present:

For Lieberman's activist opponents, his failure to
challenge Republicans aggressively--especially on
Iraq and torture--is all that matters. The idea that
he might deserve reelection because in the past he
usefully challenged Democrats seems downright
perverse at a time when Democrats have no power.
The best argument against Lieberman is that, by
acting the same way in the radically conservative
Bush era as he did in the moderately liberal Clinton
one, his liberal iconoclasm has morphed from a
strength into a weakness.

But Beinart doesn't seem to buy it:

The best argument for him is that, with Bush's power
on the wane, and Democrats resurgent, that
iconoclasm may soon become necessary again--to
keep liberals from learning so much from Iraq that
they forget Bosnia and from becoming so defined by
their opposition to Bush's politics that they forget
Clinton's.

If that's the "best argument" for Lieberman, then he very much deserves to lose. The distinction Beinart highlights--between being in power and out of power--is no trivial detail. When a party controls one or more branches of government, it is in a position to make policy decisions that actually matter. The other side cannot do anything without its help; bipartisan deal-making is necessary. But when the other party controls every branch of government, a different sort of stance has to be adopted.

This is what Lieberman either doesn't get or willfully ignores. As a result, he has allowed himself again and again over the last six years to become a useful cudgel for a Republican party intent on ramming through its agenda (and which is utterly uninterested in bipartisan compromise). And worse yet, Lieberman has seemed to enjoy this role immensely.

This is what infuriates Democratic activists, and rightfully so. They realize that priority one is always to stop the bleeding. Until the Democrats regain control of at least one branch of government, the interests Lieberman claims to stand for will continue to suffer. But regaining power requires a greater degree of party unity than was necessary when the Democrats had a seat at the table. Individual members of Congress have to consider more carefully how their actions and words will affect the electoral prospects of their party as a whole.

This is something that nearly all Republican politicians internalized during their years in the legislative wilderness. It's a matter of simple logic.

Lieberman is, of course, free to do and say whatever he pleases, even when it gratuitously harms the electoral prospects of his own party. But it's silly for him to then turn around and claim that he is the victim of some ideological purge. There are a great many people in this country, including myself, who are nothing short of alarmed by what President Bush and the Republican Congress have managed to do to this country over the last six years. These people want someone in Congress who will do whatever is in his power to stop the damage and right the ship. Joe Lieberman has demonstrated time and again that he is not that person. I'm not a Connecticut voter, but if I were, I'd vote for Ned Lamont.

-posted by A.L.


UPDATE (by Glenn): Due to some glitch (or, perhaps, some mistake I made with the new Haloscan program), it appears that many people who were trying to comment today were receiving a message indicating that they have been banned. You haven't been (unless you are one of four or five people who has been deliberately disruptive, and you would know if you were one of them). It should be fixed now. If it isn't, please email me.

Various matters

Several people reported some difficulties participating in the Comment section over at Salon, so feel free to use the comment thread here to talk about whatever you want to talk about, including the posts I wrote today at Salon:

(1) A post regarding the hysterical attempt by right-wing pundits and bloggers to exploit the altered Reuters photographs far beyond their real significance;

(2) An analysis of the fundamental, and distastrous, contradiction at the heart of neoconservatism;

(3) A post concerning the anti-establishment aspect of the potential defeat of Joe Lieberman; and,

(4) A response to the truly horrific Op-Ed in the Wall St. Journal by New Republic Editor Marty Peretz on the Lieberman-Lamont race.

Also, for anyone in Denver, I will be on the Jay Marvin Show tomorrow morning [760 AM (KKZN)] at 7:05 am MST (9:05 am EST) to discuss the Lamont-Lieberman race. Anyone can listen to the live audio feed here.

Informational Anarchy

By Anonymous Liberal -- Real democracy can only exist if a nation's citizenry remains reasonably well-informed about the major issues of the day. That is why, historically, censorship and control of the media have been the favorite tools of those intent on subverting democratic processes for their own purposes. Under this 'old model', power was maintained by limiting the exposure of the citizenry to important information. For this reason, defenders of democracy are always on the lookout for evidence of censorship and always wary of any governmental efforts to harass or intimidate the press.

This phenomenon was on display just recently when a number of prominent conservative commentators (and even a few GOP politicians) openly called for the criminal prosecution of reporters and editors at the New York Times. These outlandish statements were predictably condemned by other commentators and politicians--from across the political spectrum--as being wholly un-American and antithetical to the very concept of democratic government.

This response is entirely accurate, of course, but I fear that it reflects a failure to appreciate the real nature of the threat. There is no doubt that censorship and similar tools have been used effectively in the past to undermine democratic processes. But every major development in mass communication (from the printing press to television to the internet) has made this sort of top-down model less workable. In today's world of global telecommunications and the worldwide web, it is virtually impossible to embargo information. There are just too many sources of information at the public's disposal. Censorship is most effective when people don't know it is occurring. Otherwise it tends to backfire. But in the information age, the sort of monopolistic control of information necessary to utilize censorship effectively is just too difficult to achieve, particularly in a country like the United States.

But the proliferation of information sources has created another threat, one that is far more problematic than censorship, at least at this point in our history. I'll call that threat, for lack of a better term, "informational anarchy."

Until relatively recently, most Americans received their news from a handful of sources, primarily the major newspapers and television networks. This arrangement was far from ideal for a number of reasons, most notably because it put an awful lot of power in the hands of a select few. But it did have one important benefit: the major news outlets controlled enough of the information flow that everyone in America was more or less exposed to the same basic facts. In this way, whether they intended to or not, the news outlets served as the unofficial referees of our political discourse. They set the groundrules, called the fouls, and forced the political parties to engage each other on the same basic informational playing field.

But this is no longer the case. The advent of talk radio, cable tv, and the internet--coupled with the relentless GOP attack on the media's credibility and supposed biases--has greatly limited the capacity and willingness of the major news outlets to perform any sort of meaningful refereeing of political debate in this country. The result is informational anarchy, political white noise.

There are two ways of keeping the truth from people. You can either withhold it from them (the old model) or you can hide it in plain sight by burying it in a sea of disinformation. This latter strategy has become the new paradigm. Whereas the autocrats of past eras would try to keep the public in the dark by limiting the flow of information, their modern counterparts operate by overloading the public with conflicting information. Damaging facts are countered by flooding the airwaves with contrary assertions and, at the same time, actively working to discredit, vilify, or co-opt any institution that might possibly be viewed as a neutral arbiter of truth (the media, academia, the judiciary, etc.). Whereas the old model sought to control what information people were exposed to, the new model seeks to render people unable to identify the truth, even when it is right in front of their faces.

A good example of how this new model works was the recent breathless announcement by Sen. Rick Santorum and Rep. Pete Hoekstra that Saddam's elusive WMD stash had at long last been discovered in Iraq. This claim was, of course, complete rubbish. The degraded munitions at issue were actually leftovers from the Iran-Iraq war that were long ago buried in the desert and forgotten. The Bush administration itself immediately batted down the story, stating definitively that these were not the WMD discussed in the leadup to the invasion. David Kay, the man who scoured Iraq for WMD after the invasion, observed that most Americans had chemicals under their kitchen sinks that were more toxic than these degraded relics.

But none of that mattered. Santorum and Hoekstra's claim was repeated by enough sources (generally partisan outlets like Fox News, talk radio, and right wing blogs) that it seems to have had a significant effect on public opinion. A recent poll found that 50% of Americans still believe that Iraq possessed WMD (up from 36% last year). That's a rather stunning statistic. It indicates that we are no longer operating under a system where people's political opinions are based on the same facts. The facts themselves are now politicized. Moreover, as this episode illustrates, the major news outlets no longer have the power to definitively debunk even the most ludicrous of claims, at least with respect to a sizable percentage of the population.

When Republicans attack the New York Times, this is their goal. They don't really expect that their criticism will result in censorship or the prosecution of journalists, but by repeatedly attacking the paper as liberally-biased and even treasonous, they hope to discredit it and thereby diminish its ability to persuade people. Bertrand Russell once said:

If a man is offered a fact which goes against
his instincts, he will scrutinize it closely, and
unless the evidence is overwhelming, he will
refuse to believe it. If, on the other hand, he
is offered something which affords a reason for
acting in accordance to his instincts, he will
accept it even on the slightest evidence.

This observation is especially true in the area of politics, and it illustrates well the nature of threat posed by informational anarchy. What the Karl Roves of the world long ago realized is that with the proliferation of information sources, especially reliably partisan ones, it is almost impossible to get everyone on the same page. So long as a determined few insist that there really were WMD, those people who are instinctively inclined to believe such a claim will never be disabused of that belief.

Of course this strategy will never succeed in convincing the entire public that black is white and up is down, but it doesn't have to. The goal is to convince the party's political base and to sufficiently cloud the issue for enough of the rest of the country that shrewd political operatives can capitalize on the confusion. It's a recipe for winning bare majorities, not landslide victories.

And therein lies the key to fighting such a strategy. While the number of voters that get all of their information from partisan sources is increasing, it is by no means a majority. Fighting the spread of informational anarchy requires aggressive fact-checking and rapid response to bogus claims. This can help prevent disinformation from gaining currency in the mainstream media, and it is a task that blogs are well-suited for.

But ultimately, it is still the major media outlets who are in the best position to bring some order to the chaos. They can do so by being more assertive, by stepping in and calling at least the most obvious fouls. When truthful claims are presented alongside false ones in the interests of "balance," it is the public that loses. This sort of neutrality is easily manipulated by shrewd and unscrupulous partisans. Though the influence and reach of the major news outlets is nowhere near what it once was, it is still significant. But the relentless attacks on the media by the GOP over the last two decades have taken their toll. The press corps is now a feeble and emasculated version of its former self, and most journalists seem content to stand on the sidelines doing the play-by-play rather than engage in the thankless task of refereeing the game. But the bottomline is that there aren't any other institutions capable of doing the job. We need to encourage the press to take a more active role in guiding Americans through the sea of disinformation (and misinformation) they are bombarded with everyday. Only an assertive and energized press corps can counter the effects of informational anarchy.

Various items

(1) Beginning tomorrow morning, I will be blogging throughout the week at Salon's War Room for a vacationing Tim Grieve. If you don't have a Salon Premium Membership, you can obtain a free day pass each day by clicking through the ad. They have an active comment section, so feel free to move our comment discussion over there. The War Room format is somewhat different than my normal blogging style, since the posts tend to be shorter and more numerous, but the basic approach will be the same.

The always excellent Anonymous Liberal will be guest-blogging here throughout the week. There may be a few other guest posts as well.

(2) QandO's Jon Henke, among others, has started a new group blog, Inactivist, composed of various types of libertarians. Henke, a frequent critic (and occasional defender) of my posts, is an independent and thoughtful political commentator who is almost always worth reading. Another blogger there is the always provocative Mona (a/k/a Hypatia), a regular commenter here, who has a post up now taking certain libertarians to task for their support of decisively un-libertarian Bush policies, including the ongoing occupation of Iraq. There are very few blogs which are both analytically independent and original, and Inactivist looks like it will offer very worthwhile contributions.

(3) At least from what I can see, all those who viciously attacked John Murtha when the Haditha staff sergeant sued him on Wednesday for defamation have said nothing about the fact that the sergeant now also apparently believes that GOP Rep. John Kline defamed him, and therefore will add him to the lawsuit if no apology and retraction from Kline are forthcoming. Jesus' General tries to induce some responses.

(4) I'm going to write more about this tomorrow, but it is simply amazing how so much of our national pundit class is hopelessly drowning in worthless conventional wisdom, only able to spit out the shallowest and most banal observations which are just self-evidently, indisputably wrong.

Here is the dreadful Cokie Roberts today reciting the Beltway "wisdom" that a Lamont win would be "a disaster for the Democratic Party" because it would be "pushing the party to the left"-- even though a solid majority of the country is emphatically against the Iraq war and Joe Lieberman's views on foreign policy issues are anything but popular. Why is that fact so difficult for so many people like Roberts to digest? At least Sam Donaldson pointed that fact out, which is the only thing that makes watching the segment at all bearable.

(5) Billmon -- who, in my view, has been the single most astute commentator whom I've read on the Israel-Lebanon war (even when one disagrees with him) -- has today posted a typically thorough and insightful analysis of the U.N. Resolution jointly proposed by the U.S. and France, along with some predictions as to the likely response from Hezbollah.

Why do neoconservative extremists love Joe Lieberman?

(updated below - updated again)

When it comes to the most significant political issues our country faces, there are few ideologues more extreme than Bill Kristol. Kristol is the personification of neoconservatism, having done more to agitate for an American invasion of Iraq, and for increased American involvement in wider Middle Eastern wars, than virtually anyone else. His Rupert Murdoch-funded Weekly Standard has become the warmongers' bible, as it routinely defends everything from a monarchical presidency (literally) to endless war.

Here is what Kristol says about Joe Lieberman in his new column, disgustingly entitled "Anti-war, Anti-Israel, Anti-Joe":

So even with a centrist Israeli government that is responding to a direct attack and not defending settlements in the territories, Democrats have adopted a "European" attitude toward Israel. And toward the United States. That is the meaning of Connecticut Democrats' likely repudiation of Joe Lieberman. What drives so many Democrats crazy about Lieberman is not simply his support for the Iraq war. It's that he's unashamedly pro-American.

That's almost too incoherent, too rhetorically desperate, even to object to -- Kristol actually devotes his whole column prior to that paragraph to the claim that Democrats have insufficient allegiance not to America, but to another country: Israel. Only after depicting Democrats as anti-Israel does he lurch abruptly and with no explanation into the absurd and tiresome smear that opposition to Lieberman is actually driven by opposition to Lieberman's being too "pro-American," whatever that might mean.

But the most noteworthy aspect of Kristol's column is what comes next, when Kristol plans Lieberman's post-Senate career:

There is a political opportunity for the Bush administration if the Democrats reject Lieberman. If he's then unable to win as an independent in November, he would make a fine secretary of defense for the remainder of the Bush years. . . . Is it too fanciful to speculate about a 2008 GOP ticket of McCain-Lieberman, or Giuliani Lieberman, or Romney-Lieberman, or Allen-Lieberman, or Gingrich-Lieberman? Perhaps. But a reinvigorated governing and war-fighting Republican party is surely an achievable goal. And a necessary one.

So, one of the most extreme neoconservative ideologues in the country not only supports Lieberman's candidacy, but appears to have Lieberman as his first choice for Defense Secretary -- the holy grail for war-loving neoconservatives -- and even for Vice President (alongside the likes of Newt Gingrich, George Allen or Mitt Romney).

The most bizarre and frustrating aspect of listening to discussions by the national media of the Lieberman race is the expression of surprise and anger over the fact that Democrats would want to eject Lieberman from the Senate. Imagine if there were a prominent Republican Senator in a primary fight and Michael Moore, or Al Franken, or Molly Ivins, or whoever was the most hated liberal of the moment made it one of their priorities to work for that GOP Senator's re-election, and even touted that Senator for Defense Secretary in a Democratic administration or as a vice-presidential nominee alongside Russ Feingold or Hillary Clinton.

Such a thought is just unimaginable. Republicans would never have anyone, certainly not in any position of prominence, who attracted the admiration and enthusiastic support of ideologues on the left. And yet here is Kristol desperately defending Lieberman by unleashing vicious smears on his opponents -- they're anti-Israel and anti-American -- and openly hoping that Lieberman becomes Defense Secretary or Vice President in a Republican administration. If Bill Kristol sees Lieberman as a leading light of the neoconservative wing of the Republican Party, why would anyone think it's at all surprising that Democrats would see him as something anathema to their party?

And it isn't just Kristol. The most enthusiastic supporters of Lieberman are not "moderate" Democrats, but are instead the most extreme Bush "conservatives." It is the Sean Hannitys and Michelle Malkins and Rush Limbaughs and Ann Coulters and Fred Barnes who consider Lieberman their ideological soulmate and who are most supportive of his candidacy. Why is that? Isn't the obvious answer because the issues that are most important to the country are (a) the endless, limitless "Global War of Civilizations" and (b) the radically enhanced police powers which that "War" justifies at home? In those areas, Joe Lieberman is as pure and reliable ally as it gets for the most extreme elements on the neoconservative Right.

The idea that Lieberman is some sort of "centrist Democrat" and that the effort to defeat him is driven by radical leftists who hate bipartisanship is nothing short of inane. Why would Sean Hannity and Bill Kristol be so eager to keep a "centrist Democrat" in the Senate? Lincoln Chafee is a "centrist Republican." Are there any Democrats or liberals who care if Lincoln Chafee wins his primary? Do leftist ideologues run around praising and defending and working for the re-election of Olympia Snowe or Chris Shays or other Republican "centrists"? Do Bill O'Reilly and Sean Hannity love other Democratic "centrists," such as, say, Mary Landrieu or Joe Biden? The answer to all of those questions is plainly "no".

The love which right-wing extremists have for Joe Lieberman isn't based on the fact that he's a "centrist." If Lieberman were a "centrist," extremists would not care about him. They would not be vigorously urging his re-election, or praising his potential appointment as Bush Defense Secretary, or touting him as a Vice-Presidential running mate for George Allen. They do that because he is one of them -- a neoconservative extremist who is with them on virtually every major issue of the day.

As I've written about before, neoconservatism -- primarily issues of militarism in Middle East and ever expanding government police power domestically -- has caused a political realignment that is fundamentally re-shaping the ideological spectrum:

Throughout the 1990s, one's political orientation was determined by a finite set of primarily domestic issues -- social spending, affirmative action, government regulation, gun control, welfare reform, abortion, gay rights. One's position on those issues determined whether one was conservative, liberal, moderate, etc. But those issues have become entirely secondary, at most, in our political debates. They are barely discussed any longer.

Instead, what has dominated our political conflicts over the last five years are terrorism-related issues -- Iraq, U.S. treatment of detainees, domestic surveillance, attacks on press freedoms, executive power abuses, Iran, the equating of dissent with treason. It is one's positions on those issues -- and, more specifically, whether one agrees with the neoconservative approach which has dominated the Bush administration's approach to those issues -- which now determines one's political orientation.

Alan Dershowitz recently wrote an Op-Ed -- appropriately enough in The Washington Times -- urging the confirmation of John Bolton as UN Ambassador. To give credibility to his argument, Dershowitz began the column this way: "As a liberal Democrat . . . " Does anyone believe that the advocate of "torture warrants" and counting innocent Arabs as half-civilians or quarter-civilians or not counting them at all -- and the new enthusiastic defender of John Bolton -- is even remotely close to being a "liberal Democrat" these days?

Dershowitz may have been a "liberal Democrat" in 1993, but in 2006, Dershowitz -- like Lieberman -- is pure neoconservative. It's the same reason that John Podhoretz's favorite new blogger is "centrist Democrat" Marty Peretz. And 1993 conservatives like Pat Buchanan, George Will and William Buckely are becoming increasingly alienated by the authoritarian neoconservatism of today precisely because it is a departure from the traditional conservatism to which they subscribe.

The United States is on the brink of extreme disaster in the Middle East, both in Iraq (where we have no viable exit strategy despite the rapid collapse of that country) and elsewhere (where we are poised to repeat the same mistakes on a much greater scale). And all of that has been used to justify unprecedented abridgments of basic liberties at home. The policies which brought us to this point were championed -- and still are championed -- by the Joe Liebermans and Bill Kristols and their neoconservative comrades. Where one stands on those issues is, far and away, the most important determinant of one's political character, and any residual doubts about where Lieberman fits on the political spectrum are fully resolved by reading Bill Kristol's full-scale defense and embrace of his candidacy.

UPDATE: I neglected to mention the unusually high (for Kristol) campaign contribution made by Kristol to Lieberman's campaign, the only contribution over $200 made by Kristol since 1998, and the only one made to a Democrat. Kristol -- along with many others -- obviously sees Lieberman as an important instrument in the advancement of neoconservatism. Why shouldn't opponents of neoconservatism see it the same way?

UPDATE II: Here is Newt Gingrich explaining this morning why he believes a Lieberman victory is so crucial to America's future.

UPDATE III: Based on the discussion in comments, and even Gingrich's comments, there is another notable aspect to this race which is accounting for so much of the intensity on both sides -- the complete failure to demonize Ned Lamont as some sort of radical, subversive, Vietnam-era pacifist.

Lamont is as much of a "regular guy" as it gets -- the nuclear family, his suburban dad awkwardness, the self-made business success, the complete lack of anything "radical" in his background. Having him be the face of the "anti-war" movement -- which is really the anti-neoconservatism movement -- demonstrates just how misleading it is to depict that movement as some fringe leftist radicalism. As I argued in this post on C&L last weekend, the so-called "anti-war" position has clearly become the solidly mainstream position, and it is neoconservative warmongering that is the fringe and radical position.

A Lamont victory -- indeed, Lamont himself -- provides a very visceral illustration of just how mainstream anti-war (and anti-neoconservative) sentiments are, which is a significant factor as to why a Lieberman victory has become so important for neoconservatives.

GOP Rep. John Kline to be added to Murtha lawsuit unless he apologizes to Marine

Impressively following up on the commitment he made on Wednesday, Mark Zaid, the lawyer who filed the lawsuit this week against Jack Murtha on behalf of the Marine staff sergeant in Haditha, has now written a letter to Rep. John Kline (R-MN) advising Kline that he will be added as a defendant to the lawsuit along with Murtha unless he apologizes for statements he made about Haditha and expresses regret for "publicly prejudging" the guilt of the Marines. As Reuters reports:

A U.S. Marine suspected in the killing of 24 civilians in Haditha, Iraq, threatened to sue a second congressman on Friday for comments the Republican made about the case, according to a letter obtained by Reuters.

A lawyer for Staff Sgt. Frank Wuterich, who filed suit against a prominent Democratic lawmaker and war critic, Rep. John Murtha of Pennsylvania, told Republican Rep. John Kline of Minnesota he too would be sued for libel if he did not apologize.

Attorney Mark Zaid said Kline's office had agreed to enter confidential settlement negotiations after receiving the letter. Kline's spokesman could not be reached for comment.

Zaid sent a similar letter to Murtha, offering to drop the lawsuit against him if he issues a similar apology and retraction.

Kline is a former Marine and is one of the most loyal Bush supporters in Congress. He is currently facing a tough re-election campaign against FBI whistle blower Colleen Rowley. And, as an added bonus, Kline is also the much-revered Congressman of John Hinderaker, who never once mentioned that his own Republican Congressman made such statements about Haditha even as he repeatedly smeared the character of Rep. Murtha with comments such as this one:

Mad Jack [Murtha] is the most notorious example of a public figure who has convicted the Marines accused of wrongdoing in Haditha before any evidence has been offered, but he is hardly the only one: the drive-by media have gleefully joined in.

And this: "One of the most disgusting aspects of the story so far is the behavior of ex-Marine Jack Murtha, who has been making the talk show rounds trumpeting claims of atrocity." And, in discussing Haditha, this: "Jack Murtha is a disgrace." All of those attacks were launched against Murtha by Hinderaker (and so many others) based on his statements about Haditha, while they concealed that another former Marine, Bush supporter Kline, made similar and even more accusatory statements after being briefed on the Haditha investigation.

Fox News trumpeted the Murtha lawsuit on numerous programs all day on Thursday (Congressman Murtha accused of smearing the Marines!). One wonders (rhetorically) whether they will report on this new development -- that a pro-war, pro-Bush Congressman who is also a former Marine is accused of the same thing. One additionally wonders whether the right-wing pundits who viciously attacked Murtha over the lawsuit will do the same to Kline. One wonders, too, if Hinderaker will mention the threatened lawsuit (you can ask him here). They can read the accusatory statements made by Kline here.

As for Zaid, I have exchanged several e-mails with him over the past couple of days in which he objected to my characterizations of the lawsuit as being politically motivated. As I advised him, that claim was well-supported by the baffling fact that it was only Murtha who was named as a defendant in the lawsuit notwithstanding the fact that numerous others, including Kline, made statements that were similar and often even more accusatory than those made by Murtha.

Nonetheless, I also told Zaid that if the lawsuit were expanded to include Bush supporters or war supporters, that would certainly make me re-consider my belief about the motives behind the lawsuit and that I would be happy to say so. I'm happy to say that it now appears that Zaid brought the lawsuit not in order to attack Murtha for political reasons, but out of a fair-minded and noble (albeit misguided) desire to vindicate what he believes to be the unfair treatment his client has received. I still believe that the lawsuit is legally groundless for multiple reasons, but at least Zaid's motives appear to be apolitical and objective.

We will see whether the army of warmongering commentators who used the lawsuit to attack -- yet again -- the character and integrity of Congressman Murtha will be anywhere near as fair-minded by reporting that one of their comrades, Congressman Kline, engaged in exactly the same conduct, at least according to the Haditha Marine whom they glorified on Thursday. Or maybe it will start to occur to some of these computer-based military heroes that the reason that former Marines like Murtha and Kline are making the statements they are making about Haditha is because they are actually concerned about the devastating impact which this war is having on the American military institutions to which they devoted so much of their adult lives.

More lessons from the Padilla case

U.S. citizen Jose Padilla was kept by the Bush administration in solitary confinement in a Naval prison for 3 1/2 years without being changed with any crime and without even having access to a lawyer. He was finally charged with crimes only because the administration wanted to avoid a ruling from the Supreme Court on whether it is constitutional for the U.S. government to arrest U.S. citizens on American soil and then keep them indefinitely locked away without charges of any kind -- a power which not even the British King possessed, at least not since the Magna Carta.

When the Bush administration finally indicted Padilla, they did so with extremely vague allegations that had nothing to do with the original public accusations that Padilla was a diabolical "Dirty Bomber" trying to detonate a radiological bomb in an American city. And now that the Bush administration is being forced to actually prove its accusations against Padilla in a court of law -- the way the Founders required -- they are having great difficulty doing so:

With much fanfare, the U.S. government charged Jose Padilla last fall in a South Florida terror-conspiracy indictment. He was brought to Miami in January under heavy guard, shackled hand and foot, helicopters flying overhead. But now a federal judge says the case against him appears "very light on facts."

In the last week, U.S. District Judge Marcia Cooke ordered prosecutors -- for the second time -- to provide more details to make their case against Padilla and codefendants Adham Amin Hassoun and Kifah Wael Jayyousi, accused of being part of a North American terrorist cell that supported Islamic jihad abroad.

Cooke said the Miami federal prosecutors' initial response was "insufficient."

The article details numerous infirmities and inconsistencies in the Government's case against Padilla.

I have no idea whether Jose Padilla worked with terrorist groups or is guilty of crimes, but the point has always been that, as a U.S. citizen, it is a grave assault on the most basic constitutional guarantees to incarcerate him without charging him with a crime and then securing a conviction in a criminal trial by a jury of his peers -- just the way the Constitution quite unambiguously mandates.

But what is clear is that the accusations against Padilla have been suspect from the very beginning, not least because the "evidence" supporting the accusations seems to have been procured via torture. And the obvious difficulties which the administration is encountering in proving his guilt demonstrates the reason we don't allow the government to imprison U.S. citizens based solely on the say-so of the President.

All of this powerfully underscores the most glaring deceit in the arguments made by Bush followers with regard to virtually everything concerning terrorism. The fact that the Bush administration suspects someone of being a "terrorist" or accuses them of being one doesn't mean that they actually are guilty. Thus, opposition to the use of torture is not about "treatment given to terrorists," and advocating due process for detainees before they are killed is not about "giving rights to terrorists," and opposition to warrantless eavesdropping is not about "blocking surveillance of terrorists," and demanding that U.S. citizens not be imprisoned without due process is not about "fighting terrorism with litigation." People are not "terrorists" and cannot be treated as such -- particularly not U.S. citizens -- just because the Bush administration thinks they might be or claims that they are.

Under our system of government, the President doesn't have the power to unilaterally declare people guilty and then treat them as criminals. That is the very power which the Founders sought to prohibit and, as always, the most astonishing and revealing fact is that these principles are even in dispute. The Padilla case, as has been true from the beginning, is one of the most powerful illustrations of the very real dangers -- not abstract dangers, but very real ones -- posed by this administration's claims to unlimited executive power.

Are Democrats taking a stand on the Specter bill?

There is, in my view, no more important domestic political goal than blocking enactment of the Specter/FISA bill, for reasons I explained here and here. Although there are some signs of potentially serious opposition to the bill among key House Republicans, the White House will likely be able to navigate past those, leaving a Democrat-led Senate fillibuster the only realistic option for stopping this bill.

Relying on Democratic resolve to impede the White House's agenda has been a sure way to subject oneself to great frustration and disappointment, and that is particularly true when it comes to policies which the administration justifies on anti-terrorism grounds. But yesterday there were some very encouraging signs that Democrats might be serious about blocking this bill:

A White House-endorsed plan to formally legalize the National Security Agency's warrantless surveillance program ran into more political problems yesterday in the Senate, as Democrats successfully maneuvered to block a committee vote on the proposal. . . .

The developments spell further difficulties for Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), whose surveillance proposal has earned the endorsement of Bush and Vice President Cheney but has run into fierce opposition from Senate Democrats and a competing proposal from House Republicans.

Best of all, this was apparently accomplished with some tenacious and resolute maneuvers to block the vote from proceeding:

Specter was successful in getting his proposed language adopted as a bill by voice vote during a committee meeting yesterday, but Democrats thwarted his desire for a full vote by making speeches until there was no longer a quorum, officials said. Specter was also rebuffed in his attempt to reconvene the meeting in another room, officials said.

Specter has made passage of this bill the top priority of his Judiciary Committee, and he was rather dismissive about the ability of Democrats to stop him, all but challenging them to filibuster:

Specter said in an interview late yesterday that, while he will continue to seek compromise with critics, he is confident the bill will proceed with or without Democratic support.

"As chairman I can set the agenda, and it's going to be on the top of the agenda," Specter said. "I would be sorry to see a party-line vote on it, but that's where it's headed . . . We have enough votes to get it out of committee . . . and we might have enough votes to get it passed."

Specter boasts that he is confident of getting this bill passed, but he certainly doesn't sound confident ("we might have enough votes to get it passed"). And despite the scores of constitutional law experts, editorial boards and commentators across the political spectrum who have warned of the grave dangers posed by this bill, Specter claims that opposition to his bill is due not to its complete capitulation to the Bush theory of a monarchical presidency, but instead that "the Democratic opposition to his proposal stems not in part from Bush's faltering popularity":

"There's a real opposition to the president today which you see everywhere, and it manifests itself here. . . . There's an attitude that if the president's in favor of it, there must be something wrong with it."

There is no doubt that the collapse of the Bush presidency is what is enabling Democrats to feel sufficiently comfortable to block this legislation. But that political factor should not be confused with the extremely serious dangers posed by this legislation -- dangers which Sen. Diane Feinstein at least claims to recognize:

Sen. Diane Feinstein (D-Calif.) called the proposal "worse than no bill at all," arguing that it would weaken current surveillance law and would "allow the president to exercise unchecked authority."

Equally encouraging, Judiciary Committee Democrats vowed "to block the confirmation of Steven G. Bradbury, who serves as the acting head of the Justice Department's office of legal counsel," until the President issues the security clearances necessary to enable the Justice Department to investigate its lawyers' role in authorizing the NSA warrantless eavesdropping program. To hear Democrats demanding a real investigation into the NSA program is a surprising but welcome development.

Christy at FDL previously posted the telephone numbers of Judiciary Committee members, to enable protests to be lodged against the Specter bill. It would, I think, be both constructive and appropriate to now contact Democrats on the Committee in order to commend them for their efforts yesterday and to urge more of the same, up to and including a filibuster if necessary. There is a large and growing group of Americans who are highly alarmed by executive power abuses -- abuses which would be uniquely strengthened by enactment of the Specter bill -- and Senate Democrats ought to know that taking a stand against it, a real stand, will be vigorously supported.

Enforcing the commitment of the anti-Murtha lawyers

(updated below)

The first rule of our political process is that anyone who prominently criticizes and opposes the Bush administration will be subject to vicious personal attacks, and the supplemental rule is that the more effective one's opposition is, the more hateful and personal the attacks will be. For that reason, Rep. Jack Murtha has been Public Enemy #1 among Bush followers ever since he spoke out against the war.

The lawsuit filed yesterday against Murtha based on his comments about the shootings of 24 civilians at Haditha is frivolous for multiple reasons. But worse than its legal inanities is the fact that its goal is so clearly to punish Murtha not for any supposed defamation, but because he is a prominent and effective political critic of the administration and of the war. He must therefore be smeared and punished, and that is clearly what this lawsuit is intended to accomplish.

The most damning fact about the motives behind lawsuit is that it is Rep. Murtha -- and only Rep. Murtha -- who is being sued for the alleged defamation, despite the fact that countless other public figures, including a sitting Republican Congressman, Bush loyalist Rep. John Kline, voiced similar and even more extreme accusations about the Marines in Haditha. And yet none of them has been named in this lawsuit. That's because, plainly, this lawsuit is about punishing Murtha for his political views and attempting to deter anyone from publicly criticizing the war and the Bush administration.

I was on the Alan Colmes Show last night to debate Mark Zaid, the lawyer who filed the lawsuit on behalf of the Haditha staff sergeant against Murtha, and I made this point repeatedly, as did Colmes. In response, this is the commitment Zaid made:

I'll tell you what. I'm not aware of those other comments. If you e-mail them to me, I will be so happy to add those other Congressmen to the lawsuit as defendants, as I have the right to do. I will be more than happy. . .

The audio for the Colmes debate is here. The discussion leading to the above quote begins at 3:50.

In anticipation that Mr. Zaid will adhere to the commitment he made, I have sent him this morning the following e-mail:

________________________________

Via e-mail

Mark S. Zaid, Esq.

Dear Mr. Zaid:

I write to follow-up on the commitment you made last night on the Alan Colmes Show (I am simultaneously posting a copy of this letter on my blog). In response to your being repeatedly told that numerous other individuals made statements about the Haditha marines similar to those on which your lawsuit against Rep. Murtha is based, you vowed to "add those other Congressmen to the lawsuit as defendants" if those comments were e-mailed to you. Below are excerpts and citations for such statements not only for Rep. John Kline (R-MN), but also for the other public figures who made similar or even more extreme accusations regarding the Haditha killings:


The Washington Post, May 25

Rep. John Kline (R-Minn.), a retired Marine helicopter pilot, said in an interview he thought Hagee was doing the right thing.

"I was saddened, surprised and outraged that this could happen," Kline said. He said he thought the incident would be regarded as "a horrific aberration" for the Marines.

Los Angeles Times, May 27

Rep. John Kline (R-Minn.), a retired Marine colonel, said there was clearly an attempt to cover up the incident by those involved. But he said he did not think the Marine command was slow in investigating.

"There is no question that the Marines involved, those doing the shooting, they were busy in lying about it and covering it up — there is no question about it," Kline said.

9 News-NBC in Denver

Representative John Kline is a Republican from Minnesota. He said, "When you have Marines who have behaved so abominably as to allegedly shoot Iraqi civilians I'm not surprised that they would lie about it and cover it up."

CBS News, May 30

"It appears that the soldiers just lost it, their leaders weren't there to stop them, and they went on a rampage," commented CBS News Military Analyst Retired Army Col. Mitch Mitchell. "when one went, the others went and there's no way to stop something like that once it gets started."

The Washington Post, June 4

On March 10, the findings were given to Defense Secretary Donald H. Rumsfeld and Gen. Peter Pace, the first Marine ever to be chairman of the Joint Chiefs of Staff. Rumsfeld told aides that the case promised to be a major problem. He called it "really, really bad -- as bad or worse than Abu Ghraib," recalled one Pentagon official.

This is just My Lai all over again," Vaughan Taylor, a former military prosecutor and instructor in criminal law at the Army's school for military lawyers, said last week. "It's going to do us enormous damage."

MSNBC, June 5

A senior defense official told the Associated Press last month that evidence points to unprovoked killings by the Marines involved.

NBC News, May 17 - the first article reporting on Rep. Murtha's statements

One military official says it appears the civilians were deliberately killed by the Marines, who were outraged at the death of their fellow Marine. “This one is ugly," one official told NBC News.

These are but a small sampling of comments which I happened to find yesterday once your lawsuit was announced. There are many others. That the Haditha killings were criminal has become the virtual consensus of those who have reviewed or otherwise been privy to the body of evidence concerning the Haditha killings, and Rep. Murtha is but one of many people to publicly make that clear. The idea that it was Rep. Murtha who principally, let alone exclusively, publicized the view that the Haditha killings were criminal is just absurd.

You claimed last night that you were aware only of the Murtha comments, a claim that is rather mystifying given that the above-excerpted comments were reported very recently by the largest media outlets in the country. It is difficult to understand how you could be aware only of Rep. Murtha's comments, unless those were the only ones in which you were interested. One would expect that a lawyer representing a Marine claiming to be defamed would search out all parties responsible for the supposed defamation.

Even one of the most virulent anti-Murtha attackers, the right-wing pundit Michelle Malkin, was forced to acknowledge that Rep. Kline made comments similar to those of Rep. Murtha's:

On May 18th, I was one of many bloggers on the Right to condemn Democrat Rep. John Murtha for blabbing about the still-not-complete investigation of alleged war atrocities by Marines at Haditha. (Formal findings are not expected for several weeks.) Since Murtha's widely broadcast accusations of Marines killing civilians "in cold blood," at least one other congressional rep-- GOP Rep. John Kline of Minnesota--has jumped the gun and gone on record issuing conclusions about what happened at Haditha before reports are finalized and hearings are convened. Bad.

If this lawsuit really is about holding accountable those whom you believe have unfairly maligned your client, rather than launching a partisan, politically motivated attack against a prominent and effective Bush critic, one would expect that you would immediately add Rep. Kline as a defendant, as you committed to doing, along with the other individuals who publicly made statements similar to those which serve as the basis for your lawsuit against Rep. Murtha.

Very truly yours,


Glenn Greenwald
________________


If you know of any other comments from Rep. Kline or anyone else, please e-mail them to me or leave them in Comments and I will be sure to forward them. I'm sure that Mr. Zaid -- who repeatedly refused to answer who was funding this lawsuit -- is so very eager, just as he claimed he was, to name as many other people as possible as defendants to this lawsuit alongside Rep. Murtha. In particular, I would really look forward to the press conference similar to the flamboyant one held yesterday where it is announced that Rep. Kline and numerous others have been added as Rep. Murtha's co-defendants.

UPDATE: The audio for the Colmes debate is here. The discussion leading to the above quote begins at 3:50 and goes until 6:00 or so. I have received some great additional Kline quotes in Comments and by e-mail. Please keep them and similar ones from others coming.