Unclaimed Territory - by Glenn Greenwald


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

Saturday, September 30, 2006

GOP House leaders speak out against Internet predators

(updated below - updated again re: Denny Hastert's statement - updated again)

As noted in the post below, one of the laws which Mark Foley appears to have violated is the so-called "Adam Walsh Child Protection Act of 2006" which, among other things, increases penalties for adults who use the Internet to discuss or solicit sexual acts with "minors" (defined as an "individual who has not attained the age of 18 years"). GOP leaders hailed this law as a vital tool in protecting our nation's children against Internet predators:

Denny Hastert, who said the Act was critical in "preventing child exploitation, stopping child pornography and creating new criminal offense penalties protecting children from the Internet," proclaimed:

"At home, we put the security of our children first and Republicans are doing just that in our nation’s House. We’ve all seen the disturbing headlines about sex offenders and crimes against children. These crimes cannot persist. Protecting our children from Internet predators and child exploitation enterprises are just as high a priority as securing our border from terrorists. . . That’s why today we passed the Adam Walsh Child Protection and Safety Act of 2006.”

Majority Leader John Boehner similarly intoned in referring to passage of the Act:

House Republicans have a record of working to strengthen our communities and protect American values. So far this year, House Republicans have approved legislation that protects our children from Internet predators and violent criminal offenders; improves communications capabilities of first responders and emergency personnel; and guarantees Americans’ freedom to display the American flag and recite the Pledge of Allegiance.

As much as anything else, that is what this scandal is about -- GOP House Leaders prancing around as the Protectors of our nation's children from Internet Predators while, at the same time, apparently knowing that there was such a predator in their midst. And they not only failed to do anything about it, but they actively worked to conceal the behavior (by, as noted below, ensuring that all Democrats -- including even the Democrat on the House Page Board -- were blocked from learning about these accusations). As Hastert put it at the top of his Press Release (emphasis in original): “At home we put children first, and Republicans are doing just that in the House.”

UPDATE: From George W. Bush, President of the United States, when he signed the Act into law:

And the bill I sign today will strengthen federal laws to protect our children from sexual and other violent crimes, will help prevent child pornography, and will make the Internet safer for our sons and daughters. . . .

Protecting our children is our solemn responsibility. It's what we must do. When a child's life or innocence is taken it is a terrible loss -- it's an act of unforgivable cruelty. Our society has a duty to protect our children from exploitation and danger. By enacting this law we're sending a clear message across the country: those who prey on our children will be caught, prosecuted and punished to the fullest extent of the law.

Republicans decided in this bill that the "minors" we have to protect from predatory behavior on the Internet means anyone under the age of 18 years. Yet self-evidently lurid and sexually suggestive emails sent by a leading GOP Congressman to a 16-year-old page certainly didn't seem to move them to do very much -- other than work to conceal the behavior so that the predator could remain in Congress, surrounded by other vulnerable American children sent to Washington, D.C. by their parents.

UPDATE II: As Renato notes in Comments, isn't it about time for Glenn Reynolds, Michael Barnone, Fred Barnes and all of the objective-independent-two-sided media political pundits to start explaining how this scandal hurts the Democrats and how it's a win-win for Republicans? Somehow, I'm absolutely sure it's the case that this scandal presents Democrats with the terrible dilemma of having to satisfy their rabid left-wing base without alienating the normal Americans who will naturally side with the Republicans here. How that works in this case will undoubtedly be explained to us very shortly. Check here and here for updates.

UPDATE III: One of the strangest and most incriminating aspects of this story is the excuse being proffered by the GOP House Protectors of Children that they didn't do anything about Foley because the parents of the page with whom he exchanged the emails didn't want it pursued. For one thing, as Josh Marshall notes, the fact that they wanted to investigate further but didn't because of the parents' wishes by itself proves that the knew there was something to investigate. Why didn't they investigate further: talk to other pages, determine -- as seems to have been the case -- whether there were rumors around that Foley had engaged in predatory behavior repeatedly rather than in just one case? There were plenty of steps they could have and should have taken to investigate.

Moreover, the fact that the parents of this one page did not want to pursue the issue further is hardly a reason for GOP House leaders to do nothing. As former prosecutor Christy Hardin Smith rightly points out, by doing nothing, they knowingly endangered all of the other pages in Congress. Their responsibility here was to the other children who serve as pages as well as to the one page in question. By doing nothing -- even failing to investigate meaningfully -- they endangered the welfare of every child-page on the Hill. What justifies that? As Denny Hastert said: "At home, we put the security of our children first and Republicans are doing just that in our nation’s House."

UPDATE IV: Josh Marshall has the statement released by Denny Hastert. I think Hastert is in a lot of trouble here. First, John Boehner said he told Hastert about Foley, then Boehner changed his story, and Hastert's office flatly denied Hastert knew. But today, Tom Reynolds emphatically said that he also told Hastert about this months ago, directly contradicting Hastert's denials.

With regard to Hastert's story, ask yourselves these questions: (1) even if everything happened the way Hastert claims, does that sound more like an attempt to "investigate" Foley's wrongdoing or cover it up?; (2) given that several high-ranking members of Hastert's staff were coordinating the handling of the page's complaint about Foley, is it even remotely possible that Hastert didn't learn of this -- wouldn't complaints about a GOP Congressman's conduct regarding a Congressional page be something they would tell Hastert?; (3) Hastert says he has no reason to doubt Reynolds' claim that he spoke to Hastert about this, but Hastert just doesn't recall that. If Rep. Reynolds told Hastert that a Congressional page and his parents complained about Foley's behavior and insisted that he not contact the page again, isn't that something Hastert would remember?

Then there is this statement from Rep. Dale Kildee, the Democratic member of the House Page Board, who says: "any statement by Mr. Reynolds or anyone else that the House Page Board ever investigated Mr. Foley is completely untrue. I was never informed of the allegations about Mr. Foley's inappropriate communications with a House Page and I was never involved in any inquiry into this matter."

That remains the most incriminating fact in my view -- they purposely excluded the Democratic member of the Board from knowing about these accusations to ensure that the accusations would remain concealed and un-investigated.

UPDATE V: In comments, along points out the competitor for the title of Most Incriminating Fact -- that Hastert's statement claims that the Clerk of the House Board and Hastert's office "investigated" Foley's conduct without even insisting on seeing the emails that Foley sent. What kind of an "investigation" could possibly be conducted into Foley's conduct towards the page without seeing the e-mails he sent? That would be the absolute starting point for any real investigation. The fact that they concluded their "investigation" without even seeing any of the e-mails tells you all you need to do about what they were really trying to accomplish here.

UPDATE VI: The New York Times has finally realized the significance of this story, as they now have an above-the-fold, detailed article on the cover-up aspects. And the Times reporters aren't the only ones starting to appreciate the major damage this story can wreak:

Anyone who was involved in the chain of information should come forward and tell when they were told, what they were told and what they did with the information when they got it,” said Representative Peter T. King, Republican of New York. Mr. King called it a “dark day” for Congress and said, “We need a full investigation.”

Representative Christopher Shays, Republican of Connecticut, said any leader who had been aware of Mr. Foley’s behavior and failed to take action should step down. “If they knew or should have known the extent of this problem, they should not serve in leadership,” Mr. Shays said.

Hastert, Reynolds, and Boehner all knew about Foley's problems with this page and effectively did nothing even to investigate, let alone take any action (other than to ensure that the whole thing would be covered up). It is difficult to see how the consequences here can be confined just to Foley, and that's something that is likely dawning even on House Republicans.

UPDATE VII: It will be a real challenge for the hard-core GOP loyalists to defend Hastert's truly indefensible behavior here. From Captain Ed:

As if it wasn't bad enough that John Boehner knew about Foley's track record of sexual harassment of his underage pages, now it turns out that Speaker Denny Hastert lied about what he knew and when he knew it. . . .

I cannot tell CQ readers how disgusted I am with Speaker Hastert. Reynolds is no fringe nutcase; he's the man Hastert trusted to run the midterm re-elections of the Republican caucus. He has no reason to lie, but Hastert apparently did. This also calls into question Boehner's earlier reversal, when he denied saying that he informed Hastert after Hastert denied knowing of Foley's activities.

Republicans have to act swiftly to remove the stench of Foleygate from the party. They need to demand the resignation of Hastert as Speaker, as well as Boehner as Majority Leader if he lied to protect Hastert.

It's hard to argue with that. If for no other reason than to try to save themselves (or, as in Ed's case, because they are genuinely disgusted with the behavior of these political figures), I think we're going to be hearing a lot more of this from Republicans in the coming days. The bulk of the GOP House leadership is implicated here.

GOP House leadership and Mark Foley

(updated below)

The story of the apparent non-reaction of the GOP leadership upon learning of Mark Foley's predatory interactions with Congressional pages is obviously going to grow rapidly and will dominate the news for the next several days at least, although The New York Times seems to be the only ones who haven't realized that yet (they have only one buried article on the story which focuses on Foley rather than on the actions of the GOP leadership). For those seeking detailed information, Josh Marshall and John Aravosis, among others, are digging through every aspect of the story, including posts here, here, and here.

For now, I will just note what seems to be the bizarre and incoherent contradiction in the law, noted by Atrios yesterday, that in-person, actual sex between Foley and a 16-year-old page would be perfectly legal in D.C. and in most places in the U.S. (see UPDATE below), but it seems that it is a criminal act for Foley to discuss or solicit sexual acts with the same page over the Internet. Despite all the irritatingly righteous (and overheated) "pedophile" language being tossed around, in the overwhelming majority of states, and in Washington DC, the legal age of consent for sex is 16 years old. That means that actual, in-person sex between Foley and a 16-year-old page in D.C. would not be criminal at all (though it likely could have other legal implications).

But under the so-called "Adam Walsh Child Protection and Safety Act of 2006" (of which Foley was a co-sponsor), along with 18 U.S.C. 2251, discussion or solicitation of sexual acts between Foley and any "minor" under the age of 18 would appear to be a criminal offense (see Adam Walsh Act, Sec. 111(14) ("MINOR.--The term 'minor' means an individual who has not attained the age of 18 years") and 18 U.S.C. Sec. 2256 (1) (“'minor' means any person under the age of eighteen years").

But those are just the criminal aspects. It goes without saying that having a predatory Congressman sexually solicit teenage Congressional pages is a serious problem and the House leadership had a responsibility to act when they learned about it. And here, they clearly appear not to have taken action due to the political desire to protect Foley's seat.

The most significant fact I've heard thus far is that, as reported by Roll Call, the GOP Chairman of the House Page Board (as he admits) excluded the Democratic Congressman on the Board from deliberations over what to do about Foley, thus ensuring that only Republicans knew about this problem (and therefore enabled them to conceal it and do nothing about it). And the conflicting, still-shifting stories about who in the House Leadership knew what and when they knew it suggest some real wrongdoing and, at the very least, produces precisely the whiff of cover-up which ensures that more and more reporters will be digging around and the story will endure.

Whatever else one might think of the merits of all of this, there is little question that this is going to harm the GOP in a serious way, and the only question now is to what extent they can limit the damage. This scandal underscores numerous GOP weaknesses -- the complete disregard for any substantive concerns in favor of domestic political advantage, the oozing hypocrisy of their moralistic posturing, a bumbling ineptitude for most things they touch, and just a general ossified corruption that is typically produced by unchallenged power.

Any doubts as to the genuine political significance of this story ought to be resolved by this post from National Review's Kathryn Jean Lopez, where she quotes from the paragraph of the Post story regarding Boehner and Hastert's likely prior knowledge of Foley's conduct and then uses scare quotes to refer to them as the House "leadership." If someone like Lopez is already attacking House Republicans this way over this story, it is hard to see how Republicans will contain the damage here.

And again, whatever else one might think of the merits, it is hard to deny the sweet, sweet justice of Republicans being politically damaged by a lurid sex scandal in Washington. But unlike the one they obsessively fueled in order to impeach a President, this one seems, for better or worse, actually to involve serious sexual crimes against individuals whom the law defines as "minors," with the knowledge -- and one could argue the complicity -- of the GOP House leadership. If Democrats were granted the power to create any Republican scandal they wanted at any time, I doubt their imaginations would have allowed them to come up with something this politically potent.

UPDATE: It is true that in some states, age of consent is also determined by the age of the other party (for instance, it may be legal for someone under the age of, say, 24 to have sex with a 16-year-old, but illegal for someone over the age of 24 to do so (it then becomes statutory rape)). Either way, it is not "pedophila," but since a commenter suggested that D.C. has such a two-tiered age of consent law, I will check the statute and post as soon as I find it.

UPDATE II: I neither intended nor desired to get bogged down in the fine points of District of Columbia age of consent laws -- since the only real point was that sex with 16-year-olds is legal in many, I believe most, jurisdictions in the U.S., and should not be conflated with pedophilic sexual molestation of children. But I realize that I'm the one who brought it up, so:

Via Lexis, in D.C. Code § 22-3001 -- defining crimes of sexual acts against children -- section (3) provides: "'Child' means a person who has not yet attained the age of 16 years." D.C. Code § 46-403 (2006) provides: "The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely: . . . (4) When either of the parties is under the age of consent, which is hereby declared to be 16 years of age."

It is also worth noting that most states allow 16-year-olds to marry, and some even allow 15 or 14-year-olds to do so. Needless to say (I hope), none of this remotely excuses, mitigates or justifies predatory sexual acts by an adult against a 16-year-old, nor does it have any bearing on the responsibility of the House leadership. It is merely intended to suggest that whatever else Mark Foley's conduct with 16-year-olds might make him, "pedophile" is not really an appropriate term. And many of the more raucous and righteous condemnations of him as a pedophile and criminal seem to conflict with the laws in many American jurisdictions that provide that 16-year-olds have reached the age of consent.

UPDATE III: One last point: just this year, Republicans drew the line of age of consent at 18 when, with overwhelming support, they enacted the "Adam Walsh Child Protection and Safety Act of 2006," which the President signed into law (with Mark Foley standing behind him). By definition, then, they consider the acts in which Foley apparently engaged to be criminal. They even enhanced the penalties for this conduct. For those purposes, it doesn't really matter what states have designated as the age of consent because House Republicans have declared it to be a federal crime to solicit or discuss sexual acts with someone under the age of 18.

UPDATE IV: Whatever else might be true, it seems clear that Foley's predatory pursuit of pages has been known by some Republicans for at least several weeks in Washington. Here is a comment to a Daily Kos diary about Mark Foley, left on September 5 -- more than three weeks ago (emphasis added):

The Real Problem With Foley (0 / 0)

It's not that he's gay. It's that he constantly hits on underage interns on The Hill. You guys talk about an "open secret" well Foley's eye for the young boys in the White House and around the Capitol is what has the Republican bosses scared to death. It's just wrong that this guy can hit on young boys and still be in the leadership.

by WHInternNow on Tue Sep 05, 2006 at 05:48:09 PM PDT

The person leaving this comment claims in his profile to be a White House intern, which I highly doubt. Still, someone did leave this comment on September 5.

UPDATE V: Brad DeLong documents the rapidly and suspiciously changing stories -- three different ones in all -- told just last night alone by John Boehner, as well as the shoddy news coverage of this aspect of the story.

Friday, September 29, 2006

Mark Steyn and Hugh Hewitt reveal the true impulses underlying yesterday's vote

(updated below)

At this point, the true depravity of Bush followers should surprise nobody. But still, there is something peculiarly revealing and revolting about this disgusting, giggly little chat between Mark Steyn and Hugh Hewitt yesterday. Their topic? The "very enjoyable day trip to Gitmo" which Steyn took, courtesy of the U.S. military. What is there to say about things like this:

HH: Well, the alleged enemy combatants lost their habeus [sic] corpus rights today, thanks to the steely indifference to liberty, as the Democrats would put it, of the Republican majority in the Senate. Do they appear put upon to you, Mark Steyn?

MS: No, they don't. It's interesting to me. They were being treated very lavishly . . .

And this:

HH: Mark Steyn, did you get a chance to talk to any of the interrogators at Gitmo?

MS: Yes, I did, actually. (laughing) I spoke briefly to a rather lovely female interrogator. As you know, Muslim young men often have complicated attitudes to women. And they...and she, in fact, found that although Saudi males were incredibly hostile to her the first couple of times she interrogates them, that they've been deprived of female company for so long, that actually, they warm up to her by about the third or fourth meeting.

So I found the interrogation, I think...I had the opportunity to kind of eavesdrop on a couple of interrogations, which are certainly surreal, if you're used to this sort of anti-American propaganda, where the guys are in dungeons and chains, chained to these little, wooden chairs under the bare light bulb, or some guys beating the information out of them. In fact, they're interrogated in a La-Z-Boy recliner, which is this oddly surreal point. It's a very unusual set up down there.

The whole thing is worth reading just to savor what so many Bush followers really are. At the end, Steyn cracks some really clever jokes about how fattened up the detainees are and how they'll have to lose weight when they want to go back to waging jihad (the "big, bloated, chubby Afghans").

These two coddled authoritarian cultists are giggling about people who have been put into cages for the last five years on an island, away from their lives and their families, with little hope of ever being released. Many of them have attempted suicide. Actual terrorists ought to be detained and sentenced to life in prison or, reasonable people can believe, executed, provided they are found guilty in a fair proceeding. But large numbers of these detainees have been imprisoned without ever being charged with, let alone convicted of anything. And it is beyond dispute -- even the Bush administration admits -- that many of those we have detained in Guantanamo have been guilty of absolutely nothing.

To sit around chortling about how great these detainees have it and how grateful they should be requires a sociopathic derangement that is nothing short of grotesque. And to believe that people on a one-day controlled visit get an accurate or complete picture of what goes on there requires a blind faith in the Government so absolute that it is explains most of what one needs to know about the authoritarian Bush movement. On the day our country legalized tortured techniques and vested the definitively un-American power of indefinite detention in the President, Hugh Hewitt and Mark Steyn take off their masks and reveal the hideous and frivolous face of the Bush follower.

UPDATE: In Comments, Kagro X asks a very good question.

UPDATE II: Apparently, Steyn went to Guantanamo as part of a coordinated Bush administration propaganda show, where -- right in the middle of the torture and detention debate -- they took some of the most mindlessly subservient "journalists," staged a one-day show for them, gave them a script, and then sent them on their merry way, after which the little Bush propagandists began dutifully disseminating what they were told.

National Review's Rich Lowry also went along on the field trip (h/t P. O'Neill) and look at what he has to say:

Interrogators rely on the soft sell. Detainees sit in a La-Z-Boy chair during interrogations, and beverages and movies are available to put them at ease. The most effective interrogator is said to be an older woman who adopts a nurturing attitude.

Lowry also repeated: "Detainees are offered 4,200 calories a day. U.S. combat troops get 3,800. The average detainee has gained 18 pounds." It's like a fun summer camp, only better.

There is not an iota of skepticism about what they were shown and told, no sense at all that their controlled and guided trip might be designed to depict an image or bolster a message. They blindly trust what the Bush administration and military tells them because they are propagandists, not "journalists" -- which is, of course, exactly what makes them such good Bush followers in the first place.

A pathological need to break the law

When the Bush administration accused The New York Times of gravely damaging national security by revealing the administration's surveillance of SWIFT banking transactions, that accusation made less sense than even most of the administration's other claims of that sort. After all, it has long been known and publicly discussed that the administration was specifically monitoring SWIFT transactions in order to find the terrorists' money trails (what was not known, and what the NYT significantly revealed, is that the surveillance was being undertaken without any judicial or Congressional oversight).

As today's Washington Post reminds us: "When newspapers first reported the program's existence in June, President Bush called the disclosure 'disgraceful.'" But today, the real reason for the Bush administration's desire to conceal these activities was revealed -- it's because American access to these records is illegal under European law. From the same Post article:

A secret U.S. program to monitor millions of international financial transactions for terrorist links violated Belgian and European law and will have to be changed, the Belgian government said Thursday. . .

The decision, announced by Prime Minister Guy Verhofstadt, came as the country's Data Privacy Commission released a 20-page report finding that the Belgium-based Society for Worldwide Interbank Financial Telecommunication, or SWIFT, had improperly turned over data from millions of global financial transactions to U.S. anti-terrorism investigators.

As is always the case, nobody is trying to prevent genuine anti-terrorism measures. Instead, responsible people who believe in the rule of law are simply insisting that those actions comply with the law. As the Post reports: "[Prime Minister] Verhofstadt called the anti-terrorist monitoring 'an absolute necessity' and said U.S. and European negotiators should find a way to bring it into compliance with European law." Put another way, the choice is not (as Bush followers deceitfully claim) between preventing terrorism versus refraining from surveillance. The actual choice is between combating terrorism within the law versus doing so illegally.

Just as significantly, the reason that it is illegal to allow the U.S. Government access to this information is because it fails sufficiently to safeguard privacy rights. As the NYT article reports:

Under European law, companies are forbidden from transferring confidential personal data to another country unless that country offers adequate protections. The European Union does not consider the United States to be a country that offers sufficient legal protection of individual data.

The access which the U.S. demanded was insufficiently selective -- in fact, it appeared to subject virtually all transactions to scrutiny -- and thus did nothing to safeguard the privacy interests of people who have done nothing wrong. For instance: "Such guarantees should have included stronger safeguards that the information was being used only for terrorism investigations, Belgian officials said." Instead: "While Swift did not provide a precise number for the financial transactions that it turned over to American officials, the Belgian investigation said that 2.5 billion records last year alone 'could have been the subject of subpoenas.'"

The U.S, since at least the end of World War II, has issued lists, which people actually took seriously, of countries whose governments provide insufficient liberties and which have inadequate human rights records. Now, we're the ones on those lists issued by other countries, and, as Billmon recently said, the Bush administration has "forfeit(ed) forever its ability to chastise the human rights abuses of others without triggering a global laughing fit." Now that we have vested in the President the power to abduct people and imprison them forever without charges, shouldn't we cease issuing reports which purport to criticize other governments for failing to afford sufficient due process to those accused of crimes?

In virtually every case where the Bush administrations and its followers call for the imprisonment of journalists for reporting on the secret behavior of the administration -- and the SWIFT report prompted some of the most virulent such attacks -- they never identify any actual harm to national security from the reports, because there is none. What they are truly upset about in each case is that their secret lawbreaking was exposed and that they sustained political damage as a result.

And this story reveals, yet again, an almost pathological inability on the part of the Bush administration to operate within the law, even when doing so would not, in any way, impede their stated objectives. What actually seems to be the case is that even when there is no benefit to doing so, they nonetheless choose to operate outside of the law -- they actually prefer that -- because they both resent and reject the notion that something as petty and annoying as the law can limit their power and the Important Work they have to do.

Beltway Democrats are seriously flawed, but the election is still critically important

(updated below)

Now that the torture and detention bill will become law, it is necessary to focus on the political implications of what happened yesterday and, more broadly, what has been done to our country by the Bush administration and the blindly loyal Congress for the last five years. It goes without saying that the conduct of Democrats generally (meaning their collective behavior) was far, far short of anything noble, courageous or principled. And one could, if one were so inclined, spend every day from now until November 7 criticizing the strategic mistakes and lack of principle of Beltway Democrats and still not exhaust the list.

But that's all besides the point at the moment, because -- right now -- everyone has to answer for themselves these questions: (1) do you believe that the incalculable damage imposed on this country by the Bush administration and its followers (including in Congress) can be impeded and then reversed and, if so, (2) how can that be accomplished? For those who have given up and believe the answer to question (1) is "no," then, by definition, there is nothing to discuss. You' ve decided that there is no hope, that you're done fighting and trying to defend any of your beliefs and principles, and you're ready to cede the country to those who are in the process of destroying it.

But for those who believe that the answer to question (1) is "yes" (and I believe that emphatically), then the answer to question (2) seems self-evidently clear. The most important and overriding mandate is to end the one-party rule to which our country has been subjected for the last four years. Achieving that is necessary -- it is an absolute pre-requisite -- to begin to impose some actual limits on the authoritarian behavior and unchecked powers of this administration -- because, right now, there are no such limits.

And, independently, killing off unchallenged Republican rule is the only possible way to invade the wall of secrecy behind which this administration has operated and to find out what our government has actually been doing for the last five years. Shining light on the shadows and dark crevices in which they have been operating is vitally important for repairing the damage that has been done. If nothing else, a Chairman Conyers or a Chairman Leahy, armed with subpoena powers, will accomplish that.

There is no point in trying to glorify the conduct of Democrats. I think the larger-than-expected Senate Democratic opposition to the torture/detention bill is illusory, almost a by-product of sheer luck more than anything else. The large number of votes against the bill seems to have been driven more by Democrats' objections to the significant changes made to the bill in the last several days (ones made even after the Glorious Compromise was announced) than objections to the core provisions of the bill themselves -- and even then, the Democrats' anger was more about the fact that they were excluded from the negotiating process rather than anger towards the substance of the changes themselves.

It seems that this is what accounts for the fact that most of the Democrats did not even unveil their opposition to this bill until the very last day. Many of them were likely prepared to vote for the "compromise" and only decided not to due to the substantive worsening of the bill in the last few days. After all, if they are so gravely offended by the core provisions of torture and indefinite detention, why did Harry Reid, Hillary Clinton, Joe Biden, etc. all refuse even to say how they were going to vote on this bill until yesterday (I suspect many of their votes against the bill were sealed only once the habeas corpus amendment failed yesterday). And until yesterday, most prominent Democrats made themselves invisible in the debate over torture and detention powers. All of those criticisms are accurate and fair enough.

But a desire to see the Democrats take over Congress -- even a strong desire for that outcome and willingness to work for it -- does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument -- an indispensable weapon -- in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold. A desire for a Democratic victory is also about the need to have the systematic lawbreaking and outright criminality in which Bush officials have repeatedly engaged have actual consequences, something that simply will not happen if Republicans continue their stranglehold on all facets of the Government for the next two years.

If a desire to put Democrats in office doesn't inspire you into action - and, honestly, at this point, how could it? -- a desire to block Republicans from exercising more untrammeled power, and to find ways to hold them accountable, ought to do so. Disgust and even hatred are difficult emotions to avoid when reading things like this:

Republicans, especially in the House, plan to use the military commission and wiretapping legislation as a one-two punch against Democrats this fall. The legislative action prompted extraordinarily blunt language from House GOP leaders, foreshadowing a major theme for the campaign.

Speaker J. Dennis Hastert (R-Ill.) issued a written statement on Wednesday declaring [emphasis in original]: "Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of MORE rights for terrorists."

GOP leaders continued such attacks after the wiretapping vote. "For the second time in just two days, House Democrats have voted to protect the rights of terrorists," Hastert said last night, while Boehner lashed out at what he called "the Democrats' irrational opposition to strong national security policies."

My personal list of disagreements with most Democrats on a variety of issues is quite long. But the need to restore the rule of law to our country and to put an immediate end to the unlimited reign of the increasingly sociopathic Bush movement is of unparalleled and urgent importance, and it so vastly outweighs every other consideration that little else is worth even discussing until those objectives are accomplished.

We are a country ruled by a President who has seized the power to break the law in multiple ways while virtually nothing is done about it. Yesterday, we formally vested the power in the President to abduct people and put them in prisons for life without so much as charging them with any crime and by expressly proclaiming that they have no right to access any court or tribunal to prove their innocence. We have started one war against a country that did not attack us and, in doing so, created havoc and danger -- both to ourselves and the world -- that is truly difficult to quantify. And we are almost certainly going to start one more war just like it (at least), that is far more dangerous still, if the President's Congressional servants maintain their control.

For all their imperfections, cowardly acts, strategically stupid decisions, and inexcusable acquiescence -- and that list is depressingly long -- it is still the case that Democrats voted overwhelmingly against this torture and detention atrocity. The vote total on yesterday's House vote on Heather Wilson's bill to legalize warrantless eavesdropping reflects the same dynamic: "On the final wiretapping vote, 18 Democrats joined 214 Republicans to win passage. Thirteen Republicans, 177 Democrats and one independent voted nay." And, if nothing else, Democrats are resentful and angry at how they have been treated and that alone will fuel some serious and much-needed retribution if they gain control over one or both houses.

By reprehensible contrast, the Republican Party is one that marches in virtually absolute lockstep in support of the President's wishes, particularly in the areas of terrorism and national security. It was a truly nauseating spectacle to watch each and every one of them (other than Chafee) not only vest these extraordinary powers in the President by voting in unison for this bill, but beyond that, blindly oppose every single amendment offered by Democrats -- including ones designed to do nothing other than ensure some minimal Congressional oversight over these extraordinary new presidential powers. It was like watching mindless zombies obediently marching wherever they were told to march. That has been how our country has been ruled for the last five years and, unless there is a Democratic victory, we will have more of that, and worse, over the next two years.

There is one other consideration which, by itself, ought to be determinative. The only branch of government that has shown any residual willingness to defend the Constitution and the rule of law is the judicial branch. But critical Supreme Court decisions such as Hamdan -- which at least affirmed the most minimal and basic constitutional protections -- depend upon the most precarious 5-4 split among the Justices. One of the five pro-Constitution Justices, John Paul Stevens, is 86 years old. If George Bush has free reign to replace Stevens, it will mean that the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power -- Thomas, Scalia, Roberts, Alito and New Justice -- which will control the Court and endorse unlimited executive abuses for decades to come.

In a GOP-controlled Senate, Democrats cannot stop a Supreme Court nominee by filibuster anymore because Republicans will break the rules by declaring the filibuster invalid. The only hope for stopping a full-fledged takeover of the Supreme Court is a Democratic-controlled Senate.

Continued unchallenged Republican control of our government for two more years will wreak untold damage on our country, perhaps debilitating it past the point of no return. There is only one viable, realistic alternative to that scenario: a Democratic takeover in six weeks of one or both houses of Congress. Even that would be far from a magic bullet; the limits imposed by Democrats even when they are in the majority would be incremental and painfully modest. But the reality is that this is the only way available for there to be any limits and checks at all.

In the real world, one has to either choose between two more years of uncontrolled Republican rule, or imposing some balance -- even just logjam -- on our Government with a Democratic victory. Or one can decide that it just doesn't matter either way because one has given up on defending the principles and values of our country. But, for better or worse, those are the only real options available, and wishing there were other options doesn't mean that there are any. And there are only six weeks left to choose the option you think is best and to do what you can to bring it to fruition.

UPDATE: Please see this comment for some clarification about what I mean here and what I do not mean.

And I think there is one other point that needs to be recognized about yesterday's vote: In 2002, virtually all of the Democratic Presidential hopefuls in Congress (Kerry, Edwards, Gephardt, Graham) voted for the Iraq war resolution, because they thought they had to be accommodationist in order to have a chance to win.

But this time, all of the Democratic Presidential hopefuls in Congress (Biden, Clinton, Feingold, Kerry) voted against this bill, because now they know that they can't be accommodationist if they want to win the nomination. Call that the Joe Lieberman Lesson. That is genuine progress, no matter how you slice it. Is it glorious, tearing-down-the-gate-with-fists-in-the-air Immediate Revolution? No. But it's undeniable incremental progress nonetheless.

UPDATE II: Barbara O'Brien agrees with the views in this post and adds some additional arguments with which I agree (and which address many of the comments here), as does The Editors.

Thursday, September 28, 2006

George Bush's vast new powers of detention and interrogation

Final passage of the torture/detention bill was 65-34. Without necessarily planning in advance to do so, I live-blogged the Senate proceedings here (if you're going to subject yourself to something as unpleasant as watching U.S. Senators "debate" a bill to give the U.S. President the powers of torture and indefinite detention, it's much healthier to have an outlet when doing so).

Twelve Democrats voted in favor, 1 Republican and 1 independent voted against (there may be one or two errors because I compiled the list while listening to the vote):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.).

Republicans against (1) - Chafee (R.I.).

Jeffords (I) voted against.

I will have much more later, but a couple notes for now:

Jay Rockefeller (who voted for this bill) is the ranking Democrat on the Senate Intelligence Committee. When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the interrogation program and that the Intelligence Committee members (including him) therefore know nothing about it. His amendment to compel reports to Congress was defeated with all Republicans (except Chafee) voting against it. He proceeded to vote for the underlying bill anyway, thereby legalizing a program he admits he knows nothing about (and will continue to know nothing about).

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus rights and allows the President to detain people indefinitely. He also said the bill violates core Constitutional protections. Then he voted for it.

It's good to see that many Senate Democrats (32 out of 44) voted against this bill, but it's too little, too late. Many of them announced only for the first time today that they are opposing the bill (though, to be fair, many Democrats attributed their opposition to the recent changes made to the bill over the last few days, ones which were made even after the oh-so-noble McCain-Graham-Warner-White House "compromise" was announced).

But it is still difficult to understand the Democrats' strategy here. They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they voted against the bill in large numbers, thereby ensuring those exact accusations will be made anyway -- and made loudly (the White House already started today). Yet they absented themselves the whole time from the debate (until they magically appeared today), spent the last several weeks only tepidly (at most) opposing the President's position, and thus lost the opportunity to defend and advocate the position they took today in any meaningful way. As a result, the Democrats took a position today (opposition to this bill) which they have not really defended until today.

They make this same mistake over and over. Isn't this exactly what happened when they sort-of-supported-but-sort-of-opposed the Iraq war resolution in 2002 because they were afraid of being depicted as soft on terrorism, only to then be successfully depicted as soft on terrorism because they were too afraid to forcefully defend their position? It's true that fewer Democrats voted for the President's policy this time around, but it's equally true that they found their voice only on the last day of the debate -- on the day of the vote -- after disappearing for weeks while they let John McCain "debate" for them.

Nonetheless, it is fair to say, given how lopsided this vote was (both in the House and the Senate), that the Republicans are the party of torture, indefinite and unreviewable detention powers, and limitless presidential power, even over U.S. citizens on U.S. soil. By contrast, Democrats have opposed these tyrannical, un-American and truly dangerous measures. Even if Democrats didn't oppose them as vociferously as they could have and should have, this is still a meaningful and, at this point, critically important contrast.

Judge Taylor defies the Leader again

(updated below)

As Congress prepares to enact one of the most tyrannical and un-American laws in our nation's history, at least there is a Federal Judge who recognizes that we are not supposed to live under executive tyranny and that the obsequious submission to the President which characterizes Congressional Republicans is a destructive and repugnant trait.

Judge Anna Diggs Taylor today refused the Bush administration's request to issue a "stay" of her Order in the ACLU v. NSA case. When Judge Taylor ruled previously that the President's warrantless eavesdropping violated both the criminal law and the U.S. Constitution, she issued an Order enjoining the Bush administration from continuing its warrantless eavesdropping program.

The parties agreed to "stay" that Order until Judge Taylor could rule on the administration's request that the Order be stayed until the Sixth Circuit Court of Appeals rules on its appeal. Today, Judge Taylor refused the administration's request and instead gave them only seven days to comply with her Order. According to this Detroit Free Press article, this is part of what happened:

[Justice Department lawyer Paul] Coppolino and Taylor traded gentle barbs during Thursday's 30-minute court hearing. "Your injunction, as far as we can see, was the first time in history that foreign intelligence has been enjoined at a time of war," Coppolino told Taylor.

In rejecting his request for a stay pending the outcome of the appeal, Taylor remarked that the government had failed to cite any steps it had taken to comply with her order.

As is the case virtually every time the legality of its conduct is challenged, the Bush administration has displayed nothing but contempt for the court in this case as well as for the very idea that their behavior can be or should be subject to the rule of law (which happens to be exactly why Congress today is going to give them the power to put people into black holes for the rest of their lives without being bothered by any review from any court or tribunal; the President knows best and must not have his decrees regarding Guilt and Permanent Imprisonment -- or eavesdropping -- reviewed by any court).

The Bush administration can and unquestionably will ask the Sixth Circuit to stay Judge Taylor's order pending appeal. I would be surprised if the Sixth Circuit refuses to do so. Nonetheless, on a day when one watches one obsequious, craven, authoritarian presidential worshipper after the next crawl onto the Senate floor and make some of the most wretched statements one can imagine, in defense of one of the most wretched bills imaginable, reading about someone who is willing to stand up to the administration and enforce the most fundamental principles of our government is extremely refreshing.

The contrast between the independent-minded and patriotic Judge Taylor and the mewling, mindlessly obedient Congressional Republicans could not be clearer.

UPDATE: The GOP is apparently forcing a floor vote in the House on Heather Wilson's FISA bill, which legalizes warrantless eavesdropping. They are not going to be able to get a FISA bill enacted prior to adjournment (because there is no time to get a bill passed in the Senate and then reconciled), but they want to force Democrats to vote against warrantless eavesdropping in order to exploit that vote politically. These comments and links in the comment section explain these developments.

UPDATE II: The final votes on the amendments to the torture/detention bill and the underlying bill itself are underway (see UPDATE VI in the post below).

The legalization of torture and permanent detention

(updated below - updated repeatedly - including final vote in progress (see Update VI below) -- updated below with final vote tally (see UPDATE IX below))

There is some ambivalence in writing about the torture and detention bill because it seems to be a ship that has already sailed (the only real significant unanswered question is how many Senate Democrats will vote in favor of this atrocity). And, on a very real level, it is actually difficult to ingest the reality of what is taking place. There are nonetheless a couple of points which need to be urgently emphasized.

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent NYT Editorial put it, "normal people consider torture," along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors Marty Lederman and Bruce Ackerman each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.

There really is no other way to put it. Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

I fully understand, but ultimately disagree with, the viewpoint, well-argued by Hunter and others, that this bill constitutes merely another step on a path we've long been on, rather than a fundamental and wholly new level of tyranny. Or, as Hunter put it: "So this is a merely another slide down the Devil's gullet, not a hard swallow." But even with the extreme range of abuses the Bush presidency has brought, this is undeniably something different, and worse, by magnitude, not merely by degree.

There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny -- one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in Brown v. Allen, 344 U.S. 443, 533 (1953):

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Thomas Jefferson, in his letter to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." And Patrick Henry warned us well in advance about Government officials who would seek to claim the right to imprison people without a trial:

Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.

And as a result, we are now about to vest in the President the power to order anyone -- U.S. citizen, resident alien or foreign national -- detained indefinitely in a military prison regardless of where they are -- U.S. soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?

UPDATE: Via Atrios, several noteworthy items: (i) One of the country's most stalwart defenders of our constitutional values, Sen. Russ Feingold, announces on the Senate floor his opposition to the torture/detention bill for all of the right reasons; (ii) Sen. Chris Dodd's prepared remarks announcing his opposition to the bill are here; and (iii) The Washington Post's Dan Froomkin unsurprisingly recognizes the significance of this debate: "Today's Senate vote on President Bush's detainee legislation . . . marks a defining moment for this nation."

Additionally, John Kerry and Tom Harkin will also vote against the bill. The Senate "debate" can be watched on C-SPAN here. Sen. Rockefeller is speaking now.

UPDATE II: The Specter amendment to provide the right of habeas corpus (in essence, judicial review) to detainees failed by a vote of 48-51, which means detainees will be completely prohibited from challenging the validity of their detention before any tribunal of any kind.

Whenever one watches one of these Senate debates, it becomes so viscerally clear just how dishonest and reprehensible so many of these Senators are. I just watched Sen. Kit Bond say that the President was absolutely right to invade Iraq because it was -- and I'm quoting -- "a hotbed of terrorism." He also said that Democrats were to blame for the lack of intelligence oversight because they insisted on such a frivolous investigation into how and why we went to war based on completely false pretenses.

After that, Sen. Pete Dominici spat out one banal, moronic slogan after the next, and said that we can't possibly allow detainees to access our courts because it would "clog the courts" -- a completely idiotic assertion given the number of petitions there would be as compared to the overall caseload. It is better to allow the President to imprison people for life with no hope of ever proving one's innocence because to allow them to go to court would create lots of administrative burdens. The blind loyalty to the President of Republicans in Congress is limitless -- there is no presidential power they would meaningfully oppose. People who genuinely favor this bill are craven, hollow and un-American followers.

UPDATE III: The roll call vote on the Specter amendment is here (h/t the EJ Wire). Four Republicans voted in favor (Specter, Smith, Sununu, and Chafee). Only one Democrat opposed it (Nelson). Jeffords voted in favor and Snowe didn't vote. At least Democrats opposed a denial of habeas corpus in unison. That's something, at least.

UPDATE IV: Robert Byrd is speaking now in favor of his amendment (co-sponsored with Sen. Obama, which is going to fail, just like all the amendments have and will) to have the military commission provisions in the bill elapse in five years unless they are renewed. To do so, Byrd is trying to explain to Republican Senators that it is theoretically possible that George Bush might turn out to be wrong about the wisdom of this bill since, after all, even Adam and Eve did things that were wrong, so maybe George Bush might once be wrong, too.

That might be a compelling argument on its face, but I think the tactic least likely to persuade Senate Republicans of anything is to get them to believe that, at least when it comes to terrorism, Geroge Bush might be wrong. If you watch any of these Republican Senators speak, it quickly becomes apparent that that simply is a possibility they do not recognize.

UPDATE V: The quality of the "debate" on the Senate floor is so shockingly (though appropriately) low and devoid of substance that it is hard to watch. Sen. Warner was designated to be the opponent of the Byrd/Obama amendment to have some provisions of the bill sunset in five years, but Warner literally had no idea why he was against the amendment. The Republicans have already decided to reject every single Democratic amendment and that's all Warner knew.

So when Byrd and then Obama asked him why he opposed it, he began babbling about how the amendment would somehow send the signal to other countries that we're not serious in our commitment to the Geneva Conventions -- a claim which makes no sense on multiple levels, not the least of which is that, as Byrd pointed out, the 5-year amendment has nothing to do with Geneva Conventions compliance, only with military commissions.

Ten minutes later, some aide handed Warner a statement which he read with a whole new reason to oppose the amendment -- because it would send the "wrong signal" to The Terrorists that as long as they avoid getting caught for five years, then they won't be held accountable, and we must not show weakness in this war. That is so incoherent that it's not even remotely worth addressing. The arguments being advanced in support of this bill, and the people advancing them, are not just craven and un-Americans but also just plain dumb. Listening to the "debate" is like listening to nails against a chalkboard. The whole process is so broken and corrupt, but what other type of process could produce a bill like this?

UPDATE VI: The final votes on the various amendments (Rockefeller, Kennedy and Byrd) are underway. They are currently voting on the first amendment, from Sen. Rockefeller, requiring the CIA to provide intelligence committees of the basic information regarding the CIA's interrogation program. All three amendments are going to fail. Then they will pass the bill itself. The Rockefeller vote is complete and failed, 46-53. Every Democrat has voted for it, while every Republican (except Chafee) has voted against it. That is likely to repeat itself on the other two amendments.

At this point, my guess is that between 33-38 Democrats will oppose the bill itself, along with Chafee and Jeffords. That's more than I thought a week ago, but that is just a guess. I will post more once the votes are complete. Passage of the bill itself is assured.

The Byrd/Obama amendment to have the military commission provisions elapse after 5 years (unless renewed) was just rejected 47-52 (it received one more vote than the Rockefeller amendment, though I'm not sure which other Republican besides Chafee voted in favor of it). All Democrats voted in favor of it. They are now voting on the Kennedy amendment, and will then vote on the bill itself.

The Kennedy amendment was just defeated 46-53 (Chafee voted for, while Ben Nelson voted against it). The next vote is on the underlying bill.

UPDATE VII: McCain is giving the closing argument for Republicans and Pat Leahy is doing so for Democrats. Numerous Senators (including, irritatingly, Carl Levin) all stood up to ooze reverent praise for John McCain, and then McCain himself proceeded to do the same thing, as he pompously strutted around pointing out all of the great protections he won for us in his hard-nosed negotiations with the President. His hard-nosed negotiations with the White House are about as effective as Arlen Specter's.

Sen. Leahy gave a superb closing speech, lamenting that the days when Congress imposes a meaningful check on the Presidency "are long past," and pointing out that the way our Government is operating contravenes all of the political values he was taught growing up. He was properly and genuinely angry as he described the simply astonishing fact that President Bush now has the power to abduct people from around the world and consign them to life in prison and torture them with no opportunity of any kind to prove one's innocence.

The vote is next.

UPDATE VIII: Actually, Harry Reid is speaking now, announcing his vote against the bill. This is part of what he is saying:

Second, this bill authorizes a vast expansion of the President’s power to detain people – even U.S. citizens – indefinitely and without charge. No procedures for doing so are specified, no due process is provided, and no time limit on the detention is set. . . .

History will judge our actions here today. I am convinced that future generations will view passage of this bill as a grave error. I wish to be recorded as one who voted against taking this step.

It's good to see that Senate Democrats (with what appear to be 4 or 5 exceptions) are voting against this bill, but it's too little, too late. Many of them announced only for the first time today that they are opposing the bill (though many blame the recent changes over the last few days, which were made even after the noble McCain-Graham-Warner-White House "compromise" was announced).

But it is still difficult to understand the Democrats' strategy here. They failed to try to mount a filibuster because they feared being attacked as coddlers of the terrorists. But now they are going to vote against the bill, thereby ensuring those exact accusations will be made, and loudly (the White House already started today). Yet at the same time, they absented themselves the whole time from the debate (until they magically appeared today) and thus lost the opportunity to defend their position. They make this same mistake over and over.

UPDATE IX: Final passage of the bill was 65-34. 12 Democrats voted in favor, 1 Republican and 1 independent voted against (there may be one or two errors because I compiled the list while listening to the vote):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Pryor (Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.), Nelson (Fla.), Nelson (Neb.)

Republicans against (1) - Chafee (R.I.).

Jeffords voted against.

I will have much more later, but a couple notes for now -- Jay Rockefeller (who voted for this bill) is the ranking Democrat on the Senate Intelligence Committee. When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the program and that the Intellegence Committee members (including him) know nothing about this interrogation program. His amendment was defeated with all Republicans (except Chafee) voting against it. He then proceeded to vote for the underlying bill anyway.

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

Roger Ailes petulantly protests Clinton's "assault"

Fox News Chairman Roger Ailes has never complained about or criticized any of the following recent attacks by the Government on the press: statements by Attorney General Alberto Gonzales that reporters can be imprisoned for the stories they write; accusations by a key GOP Congressman that New York Times reporters who published the SWIFT banking transactions should be prosecuted as "treasonous"; pursuit by the Bush administration of an unprecedented criminal prosecution under the Espionage Act designed to criminalize investigative journalism; the lawless detention, for more than 5 months now, by the U.S. military of AP photojournalist Bilal Hussein in Iraq; and the endless attacks and intimidation efforts directed at journalists by the right-wing blogosphere and pundits such as Bill Bennett.

But yesterday, finally, Roger Ailes courageously spoke out against what he complained was an act of "hatred for journalists" and "an assault on all journalists." What finally prompted Ailes to take such a brave and principled stand in defense of a free press? It was the tyrannical and supremely dangerous act whereby Bill Clinton refused to sit meekly by while Fox News hurled fictitious accusations at him in an attempt to steer blame away for the 9/11 attacks from the Leader and dump it on Clinton:

Fox News chief Roger Ailes says former President Clinton's response to Chris Wallace's question about going after Osama bin Laden represents "an assault on all journalists" . . . .

"If you can't sit there and answer a question from a professional, mild-mannered, respectful reporter like Chris Wallace, then the hatred for journalists is showing," Ailes said in an interview with The Associated Press on Wednesday. "All journalists need to raise their eyebrows and say, `hold on a second'". . . .

"They're out there saying (Wallace) was savage, he sandbagged (Clinton), he was taking orders on the question," Ailes said. "Chris Wallace has never taken orders on questions in his life. There's never been a discussion of that. I frankly think the assault on Chris Wallace is an assault on all journalists."

Just like the whining Ailes, Chris Wallace has been all over the air milking his newfound victimhood for all it is worth. After all, Bill Clinton refused to let Wallace interrupt, pointed his finger at Wallace, and even talked over him once or twice. What is left of the First Amendment?

Meanwhile, systematic threats and attacks directed at journalists by the Bush administration -- which, unlike Bill Clinton, happens to be the actual government with the full panoply of powers which that entails -- don't prompt Ailes, Wallace or any Bush followers to utter even a peep in protest. That discrepancy is too inane to warrant, or even permit, any real analysis.

What is notable, though, is that Bill Clinton's refusal to sit politely by -- or to respond only apologetically or defensively -- while Roger Ailes' propagandist dumped false accusations in his lap has provoked substantial anger and upset among Bush followers. The Fox News bullies, just like their fellow Bush followers on talk radio and in the right-wing blogosphere are, to borrow a phrase, paper tigers. When they are pushed back, they do what Wallace and Ailes and Bush followers generally have been doing in the wake of the Clinton interview -- stutter and whine and depict themselves as wounded victims who were treated so very unfairly by the Big Bad Wolf.

The notion that the 9/11 attacks ought to be blamed on an ex-President who tried repeatedly to kill Osama bin Laden, rather than on the individual who was President at the time and did nothing, is inane and factually false on its face. And Americans know that full well, as a newly released Gallup poll conclusively demonstrates. Even Rudy Guiliani, generally hailed as the Official Owner of all things 9/11, joined in the grave "assault" on poor Fox News: "The idea of trying to cast blame on President Clinton is just wrong for many, many reasons, not the least of which is I don't think he deserves it . . . "

But that is the propagandistic tripe that is disseminated every day on Fox News, often right in front of the faces of Democrats who meekly and apologetically try hard to explain it away. But Bill Clinton wasn't meek about anything and he stomped on, rather than tried to explain away, the falsehoods spewing out of Chris Wallace's mouth.

Fire and brimstone didn't rain down on his head as a result. Instead, Clinton looked resolute and aggressive compared to the whiny, slouched, stuttering Wallace and his victim-protector comrades on Fox News and in the Bush follower crowd. Clinton's willingness to articulate his case clearly and strongly exposed the accusations for what they are. Since those sorts of tactics are the staple of Fox News' "journalism," it is no wonder that Roger Ailes hilariously equates Clinton's interview responses to an "assault on journalism," even as Ailes cheers on the Government and the Bush movement which have made actual, real attacks on press freedoms a centerpiece of their authoritarian agenda.

* * * * *

I will be on Warren Olney's To the Point at 2:10 p.m. EDT this afternoon to talk about torture , permanent detention powers and related matters. The live audio feed is here. It never ceases to amaze, at least not yet, that in the United States, one now even has to "talk about torture and permanent detention powers," let alone watch as those powers are legally and formally vested in the President. The panel will include the DLC's Will Marshall (a Joe Lieberman-type neoconservative whom Matt Taibbi analyzed quite incisively and entertainingly here) and Thomas Mann of the Brookings Institute.

UPDATE: This whole column from Dallas Morning News columnist Mark Davis contains whiny protests like this: "'You did Fox's bidding.' 'You did your nice little conservative hit job on me.'" These bizarre interjections were an attempt to intimidate Mr. Wallace and any future interviewers who might dare to question the Clinton commitment to fighting terror."

Threats against investigative journalists from the Bush administration to be criminally prosecuted and the indefinite detention of foreign journalists are all perfectly fine. To Bush followers, there is nothing "intimidating" about any of that (because they only praise the Leader and therefore are not at risk). But a few un-nice answers from Bill Clinton in an interview constitutes a pattern of scary "intimidation" that will stifle free inquiry.

It's hard to put into words how effete and fragile and self-absorbed the Bush following "journalists" are. They're not bothered in the least by real persecution of their colleagues, but they whine and cry and self-victimize because someone criticizes the questions they ask and the accusations they make.

Wednesday, September 27, 2006

Democrats and the torture bill

(updated below re: NIE -- updated again)

I have a post at Salon this morning arguing that the apparent support for the torture/detention bill by at least some (and perhaps the majority of) Senate Democrats -- including their Leader, Harry Reid -- is as politically self-destructive as it is unconscionable on the merits.

The normally restrained Jack Balkin is understandably, and appropriately, unrestrained this morning when he writes about this topic, and his post is very worth reading. Even if Democrats support the torture bill in substantial numbers (which I think is likely), I still believe, for reasons I've set forth here, that the outcome of the election is important. But it is increasingly difficult to argue too strenuously with those, such as Balkin, for whom a pro-torture-and-detention position is an electoral deal-killer.

UPDATE: It really is odd and disturbing, as well as potentially quite dangerous, that the declassified NIE on the "Trends on Global Terrorism" focuses exclusively on Islamic terrorists -- except for the last section which conspicuously identifies "leftist" groups which use the Internet as a serious terrorist threat (h/t Sysprog). Odder still, it makes no mention at all of right-wing, anti-government movements (such as, say, the one that spawned Timothy McVeigh, an actual terrorist).

I have a post at Salon analyzing the implications of the NIE's little-noticed equating of "leftist" Internet-using groups with Islamic extremists when it comes to assessing global terrorist threats.

UPDATE II: The House voted today to pass the President's interrogation and detention bill. The roll call vote is here. Democrats voted against the bill by a vote of 160-34. Republicans voted in favor of the bill by a vote of 219-7. Of the 34 Democrats voting in favor of the bill, two are currently in close races for the Senate: Rep. Harold Ford in Tennessee and Sherrod Brown in Ohio.

House Democrats acquitted themselves reasonably well on this issue. Several House members gave very stirring and passionate speeches about defending core American values. It remains to been seen whether Democratic opposition to the bill in the Senate will be anywhere near as overwhelming.

(As a programming note, today is the last day of my one-week blogging stint at War Room, so I will be back here full-time beginning tomorrow (beginning now, actually)).

Tuesday, September 26, 2006

Will the Congressional calender preserve some basic liberties (at least until January?)

(updated below)

This new AP article by Laurie Kellman reports that there are too many competing Republican FISA bills to reconcile in time, and too many other competing issues (such as the urgent need to vest the power of torture and permanent detention in the President), and that Congress is likely to run out of time this session before it can get a warrantless eavesdropping bill passed. If this report is true, and it actually turns out to be the case that FISA will remain in place exactly as is going into the November elections (meaning that the President's warrantless eavesdropping program will continue to be criminal), that will be the best news out of Washington in some time.

It is sadly illustrative that this "best news in some time" is the by-product of the realities of the Congressional calender rather than any principled or heroic stance taken by our political leaders. But at this point, one has to take one's victories where and how one can get them.

Last week, I wrote that "delay" was the best hope for blocking enactment of a FISA bill prior to adjournment and explained why achieving that goal would be so beneficial:

These developments are all rather murky, but for precisely that reason, one clear fact appears to be emerging: the odds are rather low that there will be a legislative solution at all to the NSA scandal before Congress adjourns in nine days, and the odds of the dreaded Specter bill being enacted by both houses are even lower.

Their failure to get a FISA bill passed at all would be a real defeat for the White House. It would mean that warrantless eavesdropping would still be illegal going into the next Congress. It would mean that various lawsuits challenging the legality of the NSA program would continue undisturbed. And it would mean that the administration's legal liability (both civil and criminal) for eavesdropping on the conversations of Americans in violation of the law would still very much be an open question -- an issue that would provide rich and ample ground for investigation by a subpoena-power-endowed Chairman Conyers, or even a Chairman Leahy.

Blocking the Specter bill from being enacted is a non-negotiable imperative, and Sen. Reid's vow that it would never be enacted is looking more realistic by the minute. But preventing a Congressional solution of any kind to the NSA scandal -- particularly one that authorizes warrantless eavesdropping by the Bush administration -- is almost as important. There are only nine days left, and preventing a legislative resolution would be a very significant victory for those who believe in the rule of law and who want to see government officials held accountable for their lawbreaking.

Of course, a victory by the Republicans in November would mean that none of this matters, since they would just presumably enact a FISA bill when they return which (among other destructive results) legalizes the President's warrantless eavesdropping program. But a victory by Democrats in even one of the Congressional houses would likely mean that such a bill will not be enacted and, even more importantly, a real investigation could (and likely would) commence into exactly how (and to what extent) the administration has been violating the criminal law for the last five years in eavesdropping on Americans without judicial approval.

It is always possible for all of the obstructionist Republicans to capitulate quickly and agree on a bill to legalize warrantless eavesdropping this week. After all, one should never underestimate the capacity of Congressional Republicans to snap into line. But for procedural reasons if no others, it seems highly unlikely that there will be time in this session for Congress to give the President the legal authority to eavesdrop on Americans with no judicial oversight. That is a real cause for celebration among advocates of the rule of law.

(Alas, the news isn't all good, since the same article reports what is now indisputably clear: "More likely to win passage by the end of the week is Bush's other legislative priority: a bill agreed upon by the White House, the House and Senate governing how terror suspects are to be detained and questioned.")

UPDATE: Tomorrow's NYT article makes clear that there will almost certainly be no warrantless eavesdropping bill passed before the Congress adjourns, reporting that Congress is "all but giving up hope of agreeing on a final bill to authorize the administration’s eavesdropping program." It continued:

Lawmakers in both the House and Senate said it now appeared doubtful that bills covering the National Security Agency’s eavesdropping program could pass both houses and be reconciled before Congress adjourns this weekend, an outcome that would deny Republicans one of the main achievements they hoped to take into the election.

There are many details in the article about both the eavesdropping legislation as well as the torture bill (which the article suggests is close to passing). I will write more about these issues tomorrow, but for now, will simply pass this passage along (WARNING: Do not read this if you have trouble sleeping at night after encountering severe anger or stress):

Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. “And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution.”

One more time -- Harry Reid, Senate Democratic Leader, what is your view on the White House-McCain-Warner-Graham torture/lawless-detention bill? "We want to do this."

It has been painfully obvious ever since the torture "compromise" was announced that Democrats would not get near a real filibuster, but are we really going to have to be subjected to large numbers of Democratic Senators actually voting for this atrocity and even cheering it on? It looks that way.


(updated below)

My first post at Salon is here, and it concerns the sudden demands by Sen. Pat Roberts that the National Intelligence Estimate be de-classified.

Additionally, there are rapid ongoing developments with regard to the administration's efforts to forge a "compromise" to legalize its NSA warrantless eavesdropping program, as evidenced by these two reports. I will have a post up at Salon shortly about these developments, and will write more throughout the day about them. Any information on what is going on with the FISA negotiations would be appreciated (leave in Comments or feel free to e-mail me).

Finally (for now), I will be on the Sam Seder Show at roughly 10:30 a.m. EDT (20 minutes from now) to discuss the torture bill and various related matters. You can listen to the live audio feed here.

UPDATE: I have a post up now examining this weekend's changes to the McCain/Graham/Warner torture bill, which dramatically increase the scope of the administration's detention powers beyond even what the "compromise" originally provided. Because the administration knows that Democrats will not object to anything they do in these areas, they are now on the verge of consolidating some of the most tyrannical powers a government can have, literally.

Additionally, my post on the latest version of the FISA "compromise" is here. I now have the text of the "compromise" legislation and will post further on this later today.

Monday, September 25, 2006

Salon posts today

There are several posts I have at Salon today. This one concerns the rather incredible denial by Allen several weeks ago of having ever used the word "nigger" in his entire life, a denial which became much more relevant in light of this Salon article reporting on the claims of several college football teammates of Allen who claim that he did.

The other post is a response to Jonah Goldberg's astounding -- and flatly false -- claim that "The notion that conservatives opposed Clinton as Commander-in-Chief in the pre-war on terror or in other military ventures is simply unfair ... Sure, there were some wag the dog voices -- like noted rightwing trogs [sic] Arlen Specter and Christopher Hitchens -- but generally even the most partisan Republicans supported Clinton."

As my Salon post documents, leading GOP senators, representatives, editorial boards, organizations and pundits repeatedly called into question Clinton's motives in taking military action, including in Yugoslavia and the Middle East, and thus attacked the commander in chief at exactly the time when troops were still in harm's way. Goldberg's "response" to that post is here.

Finally, the first post is related to the post below here, documenting how false is the claim that it was Bill Clinton who "emboldened" Al Qaeda by retreating from Somalia in the face of U.S. casualties.

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