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.

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.

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.

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)).

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.

Today

(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.

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.

Who wanted to "cut and run" from Somalia?

My post this morning on Salon concerns the accusation voiced this weekend by Chris Wallace in his Fox News interview with President Clinton (a favorite accusation of neoconservatives) that Clinton "emboldened" Al Qaeda when he withdrew American troops from Somalia as soon as we suffered casualties, which (so the neoconservative mythology contends) led Osama bin Laden to believe that we were weak and could be defeated.

President Clinton's response was refreshingly aggressive because the premise of the question is so patently and outrageously false. Clinton responded: "They were all trying to get me to withdraw from Somalia in 1993 the next day after we were involved in 'Black Hawk down,' and I refused to do it and stayed six months and had an orderly transfer to the United Nations."

As I document in the Salon post, that defense, if anything, is a profound understatement, because it was Clinton (along with Senate Democrats like John Kerry) who wanted to stay in Somalia because a precipitous withdrawal would be panicky and weak, but it was primarily conservatives in Congress -- mostly Republican Senators and some conservative Southern Democrats -- who were demanding that American troops be withdrawn immediately, and were even threatening to cut off all funds for our troop deployment.

My analysis is set forth in the Salon post. Following are the full excerpts providing the factual support for that analysis:

GOP Sen. Kay Bailey Hutchinson, speech on the Senate floor October 6, 1993

I supported our original mission, which was humanitarian in nature and limited in scope. I can no longer support a continued United States presence in Somalia because the nature of the mission is now unrealistic and because the scope of our mission is now limitless. . . . Mr. President, it is no small feat for a superpower to accept setback on the world stage, but a step backward is sometimes the wisest course. I believe that withdrawal is now the more prudent option.

GOP Sen. Dirk Kempthorne, speech on the Senate floor, October 6, 1993

Mr. President, the mission is accomplished in Somalia. The humanitarian aid has been delivered to those who were starving. The mission is not nation building, which is what now is being foisted upon the American people. The United States has no interest in the civil war in Somalia and as this young soldier told me, if the Somalis are now healthy enough to be fighting us, then it is absolutely time that we go home. . . It is time for the Senate of the United States to get on with the debate, to get on with the vote, and to get the American troops home.

GOP Minority Leader Sen. Robert Dole, Senate speech, October 5, 1993

I think it is clear to say from the meeting we had earlier with--I do not know how many Members were there--45, 50 Senators and half the House of Representatives, that the administration is going to be under great pressure to bring the actions in Somalia to a close. . . .

GOP Sen. Jesse Helms, Senate floor speech October 6, 1993:

All of which means that I support the able Senator from West Virginia--who, by the way, was born in North Carolina--Senator Robert C. Byrd, and others in efforts to bring an end to this tragic situation. The United States did its best to deliver aid and assistance to the victims of chaos in Somalia as promised by George Bush last December.

But now we find ourselves involved there in a brutal war, in an urban environment, with the hands of our young soldiers tied behind their backs, under the command of a cumbersome U.N. bureaucracy, and fighting Somalia because we tried to extend helping hands to the starving people of that far-off land. Mr. President, the United States has no constitutional authority, as I see it, to sacrifice U.S. soldiers to Boutros-Ghali's vision of multilateral peacemaking. Again, I share the view of Senator Byrd that the time to get out is now.

President Clinton's speech, on October 8, 1993, arguing against withdrawal

And make no mistake about it, if we were to leave Somalia tomorrow, other nations would leave, too. Chaos would resume, the relief effort would stop and starvation soon would return. That knowledge has led us to continue our mission. . . .

If we leave them now, those embers will reignite into flames and people will die again. If we stay a short while longer and do the right things, we've got a reasonable chance of cooling off the embers and getting other firefighters to take our place. . .

So, now, we face a choice. Do we leave when the job gets tough or when the job is well done? Do we invite the return of mass suffering or do we leave in a way that gives the Somalis a decent chance to survive? Recently, Gen. Colin Powell said this about our choices in Somalia: "Because things get difficult, you don't cut and run. You work the problem and try to find a correct solution." . . .

So let us finish the work we set out to do. Let us demonstrate to the world, as generations of Americans have done before us, that when Americans take on a challenge, they do the job right.

Sen. John Kerry, Senate floor speech, 10/7/93, supporting Clinton's anti-withdrawal position

But, Mr. President, I must say I have also been jarred by the reactions of many of our colleagues in the U.S. Senate and in the Congress. I am jarred by the extraordinary sense of panic that seems to be rushing through this deliberative body, and by the strident cries for a quick exit, an immediate departure notwithstanding the fact that what we are doing in Somalia does not bear any resemblance to Grenada, to Panama, to Iraq, and most importantly, to Vietnam. . . .

We must recognize that any decision that we make about Somalia is not just a decision to get our troops home. It is not just a decision about looking out for the interests of the United States. There are extraordinary ramifications attached to the choice that we make in the next days in the Congress and in this country. . . .

Mr. President, we are in a situation now where withdrawal would send the wrong signal to Aidid and his supporters. It would encourage other nations to withdraw from the U.N. effort in Somalia and no doubt would result in the total breakdown of the operation and possibly the resumption of the cycle of famine and war which brought the United States and other members of the international community to Somalia in the first place.

Rightly or wrongly, the Bush administration committed us to this operation. We, as a nation, have accepted this responsibility. We should not panic and flee when the going gets rough. If we are going to withdraw, we have an obligation to do so in a responsible manner, in a way that does not undermine the operation or leave the Somali people to a worse fate. I think the President's plan, as currently outlined, will allow us to step aside responsibly.

New York Times article, October 6, 1993, by then-reporter Thomas Friedman

As hundreds of additional United States troops with special weapons and aircraft began heading to Somalia, a wave of hostility toward the widening operation swept Congress. . . . But Mr. Aspin and Mr. Christopher were besieged by skeptical lawmakers, who scorched them with demands for a clear road map for an exit from Somalia, coupled with bitter complaints that the policy goals were unclear or unrealistic.

It is not clear whether the critics can assemble sufficient votes to pass a law requiring Mr. Clinton to stop the operation. But Congressional anxiety, already high, has been fueled by a wave of constituents' telephone calls reflecting outrage over the prospect of a new hostage crisis, and television pictures of Somali crowds dragging a dead American servicemen through the streets. . . .

Mr. Christopher said the United States wanted to withdraw its forces when possible, "but not before our job is done of providing some security."

New York Times, October 6, 1993

A wave of hostility toward the military operation in Somalia swept Congress today, forcing the White House to send two Cabinet secretaries to Capitol Hill to try to calm critics and plead for additional time to formulate a new policy.

"It's Vietnam all over again," said Senator Ernest F. Hollings, Democrat of South Carolina, who is in a group of conservatives calling for quick withdrawal from Somalia. . . .

Mr. McCain, a prisoner of war in the Vietnam War, said of Mohammed Farah Aidid, who has been blamed for attacks on United Nations peacekeepers: "We should tell Mr. Aidid that we want the Americans back. Otherwise he will pay sooner or later. Then we should come home."

As always, no matter how many times it occurs, it is truly disturbing how there seems to be no limit on the false propaganda and rank historical revisionism which can be disseminated by this administration and its followers and uncorrected by our national media. My full analysis of this is here.

Osama bin Laden died again - Vote Republican

The Terrorism Outrage of the Day for Bush followers, led by Matt Drudge, is that a 9/11 memorial in Arizona contains sentiments they consider "political" -- such as "Feeling of invincibility lost" and "You don’t win battles of terrorism with more battles.” Apparently, this is absolutely intolerable because nothing -- absolutely nothing -- is more immoral or outrageous than "politicizing" the 9/11 attacks.

Those, of course, are the same attacks which have so usefully served as the central prop for three consecutive Republican campaigns, as well as for most of the President's most controversial policies, such as his recent announcement that he would transfer certain terrorist suspects from our secret Eastern European gulags to Guantanamo, after which he demanded that Congress enact legislation authorizing him to use torture and creating the military commissions he wanted. That speech took place, as the President eagerly pointed out in the very first sentence out of his mouth, in the presence of "families who lost loved ones in the terrorist attacks on our nation."

At the same time, Bush followers have spent the last several days declaring Osama bin Laden dead -- again. Instapundit beat his chest and roared: "REPORTS THAT OSAMA BIN LADEN IS DEAD. . . . Dying of typhoid in a cave doesn't sound very heroic." Instapundit's principal source for news, Gateway Pundit, had a post (on which Instapundit relied) entitled "Osama bin Laden Is Dead!" In that post, "G.P. News" announced: "Typhoid Got Him! Doctors were not able to reach his cave in time!" He also summarized a "report" from Jawa Report this way: "the report comes from an actual secret document."

Tom Maguire proclaimed: "Osama being considered to be dead works well for Bush, Musharaff, and Osama," but "AceofSpades" worried that "without Osama to kick around anymore, so to speak, the American public might give the GOP a Churchillian boot out of office." Michelle Malkin's Hot Air suggested that "Rove wouldn’t want this to come out too close to the election. Otherwise he risks a backlash from people disgusted at his cynicism." And on and on and on it went like this, from the crowd that would never, ever do anything to politicize the 9/11 attacks in any way because those attacks -- which they own -- are sacred and proprietary and should never be used to make a political argument.

Osama bin Laden has died more times than any human being in history. In fact, he died right around this same time in 2002, a few weeks before the 2002 midterm elections. From The World Tribune - 10/16/02:

TEL AVIV -- Osama Bin Laden appears to be dead but his colleagues have decided that Al Qaida and its insurgency campaign against the United States will continue, Israeli intelligence sources said. . . .

The Israeli sources said Israel and the United States assess that Bin Laden probably died in the U.S. military campaign in Afghanistan in December. They said the emergence of new messages by Bin Laden are probably fabrications, Middle East Newsline reported.

How many times has the Administration or its close allies planted stories in the media indicating or strongly implying that bin Laden is dead, only for the stories to be proven entirely false? Let us count:

Michael Ledeen, National Review, January 9, 2006

And, according to Iranians I trust, Osama bin Laden finally departed this world in mid-December. The al Qaeda leader died of kidney failure and was buried in Iran, where he had spent most of his time since the destruction of al Qaeda in Afghanistan.

Christian Science Monitor, 12/21/2005

US Secretary of Defense Donald Rumsfeld said Wednesday that he doubts Osama bin Laden is in any position to command the worldwide operations of Al Qaeda. The BBC reports that Mr. Rumsfeld told reporters on a flight to Pakistan that bin Laden could still be hiding along the Pakistan-Afghanistan border, but it was hard to know since the terrorist leader had not been heard from in more than a year.

Pakistani Ausuf - October 24, 2005

The Pakistani newspaper 'Ausaf' which is based in the city of Multan in the Punjab Province is reporting that Osama bin Laden died last June in a village near Kandahar in Afghanistan. According to the newspaper report, Bin Laden was campaigning at Bamiyan, fell very ill, returned to Kandahar where he died and was buried in the Shada graveyard in the shadow of a mountain.

National Review -April 30, 2005

Was chatting with Jim Robbins. He keeps hearing this morning that the president might have some OBL news tonight? A new Islamist website is reporting that bin Laden is dead...and Musharraf has for the first time said that OBL is in his country.

CBS News - 7/17/2002

FBI counterterrorism chief Dale Watson said Wednesday he believes Osama bin Laden is dead — the first time a senior U.S. law enforcement official has publicly given an opinion on the al Qaeda leader's status.

CNN - January 19, 2002

Pakistan's president says he thinks Osama bin Laden is most likely dead because the suspected terrorist has been unable to get treatment for his kidney disease. "I think now, frankly, he is dead for the reason he is a ... kidney patient," Gen. Pervez Musharraf said on Friday in an interview with CNN.

Most of our "counter-terrorism" efforts have been like this -- like a Three Stooges routine. The reality is that we have no idea whether bin Laden is dead (the latest report, for instance, suggests the whole thing is a sham and he's alive) because we know so little about him, his whereabouts and his activities, because virtually all of our military and intelligence resources are devoted to a war in a country which never had anything to do with terrorism directed at the U.S., and in preparing for a war with another country which doesn't either. Bush followers are doing what our government has been doing for the last five years when it comes to bin Laden -- stumbling around in the dark, dealing only with baseless, fact-free insinuations, and ignoring him (by necessity) except to grasp desperately for him when some domestic political gain can be squeezed out of him.

In the hands of Bush followers, terrorism and Al Qaeda are big toys, things to be tossed around aimlessly for fun and diversion when one wants to escape the stresses of the real world. Their discussions of these issues -- including from our Government -- are on the level of comic book hysteria or a National Enquirer gossip article over celebrity couple break-ups ("the report comes from an actual secret document"!) and are about as unserious and frivolous and uninformed as can be imagined. Terrorism plots and Osama bin Laden's latest death are playthings that get dragged out for fun and political profit.

But worse than the endless political exploitation of 9/11 attached to the most transparently hypocritical protests that 9/11 must never be politicized (all of that is old news) is the sheer ineptitude of the administration's efforts to capture the individual we have long been told is responsible for the slaughter of several thousand innocent people (and scores of other attacks in pursuit of the War of Civiliziations).

Our country's handling of the Al Qaeda terrorist threat is as inept and just pitifully incompetent as its handling of the war in Iraq (and, as the consensus of the intelligence community recognizes, nothing has done more to worsen than former than the latter). But the media will tell you time and again that it is a "great win" for Republicans whenever terrorism is discussed because they are so tough and powerful with the terrorists and only they are serious enough to protect us. Whatever Bush followers might be when it comes to terrorism, "serious" is not one of them.

This report alone ought to dictate the outcome of the election

(updated below)

If I were shaping the Democrats' election strategy, I would create a television commercial where someone reads the following four paragraphs -- from a new report in the NYT today -- and then I would air it over and over and over every single day as much as possible until November 7:

A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.

The classified National Intelligence Estimate attributes a more direct role to the Iraq war in fueling radicalism than that presented either in recent White House documents or in a report released Wednesday by the House Intelligence Committee, according to several officials in Washington involved in preparing the assessment or who have read the final document.

The intelligence estimate, completed in April, is the first formal appraisal of global terrorism by United States intelligence agencies since the Iraq war began, and represents a consensus view of the 16 disparate spy services inside government. Titled “Trends in Global Terrorism: Implications for the United States,’’ it asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread across the globe.

The report “says that the Iraq war has made the overall terrorism problem worse,” said one American intelligence official.

Numerous sources told the NYT about the contents of NIE, which "are the most authoritative documents that the intelligence community produces on a specific national security issue, and are approved by John D. Negroponte, director of national intelligence." So this assessment -- that the war in Iraq has increased the terrorist threat to the U.S. -- is from the Bush administration itself and is the consensus of the same intelligence community which the administration purged of all dissidents.

Only in the U.S., with its toxic mix of Bush administration propaganda and media listlessness, could it ever even be a question open to debate whether invading, bombing and occupying a Muslim country in the Middle East for almost four years would fuel Muslim radicalism, inflame anti-American resentment, and create far more terrorists than ever existed before. And only in the current political climate where up is down could the political party directly responsible for severely exacerbating the terrorism problem with a pointless, disastrous and seemingly endless war have their chances for victory depend upon maximizing the country's focus on terrorism -- the very problem they have so severely exacerbated.

So, a recap of the Iraq war: there were never any WMDs. The proliferation of government death squads and militias in Iraq means that, compared to the Saddam era, human rights have worsened and torture has increased to record levels. Iranian influence has massively increased, as a result of a Shiite fundamentalist government loyal to Tehran replacing the former anti-Iranian regime. We've squandered hundreds of billions of dollars and thousands of lives. And we have -- according to the consensus of our own intelligence community -- directly worsened the terrorist problem with our invasion, and continue to worsen it with our ongoing occupation.

How can anyone claim with a straight face that this war was a good idea? There are no even theoretical justifications left for it. And all of the Republican election-driven fearmongering over terrorism ought to be met with this clear, straightforward report documenting that that threat has worsened under this administration directly as a result of its policies and, in particular, as a result of its signature policy -- the war in Iraq.

UPDATE: For one of the most potently constructed arguments against the use of torture -- and specifically the damage it wreaks for the society which uses it -- read this entire Digby post.

Marty Peretz and anti-Muslim stereotypes

Marty Peretz's new blog, "Spine," is basically a museum for every anti-Arab/Muslim stereotype and caricature that exists. Each day, one can read about how primitive, violent, deceitful and generally horrible Arab Muslims are. Peretz's blog has revealed that he is basically a glorified (though otherwise quite standard) LGF commenter who happens to own a magazine.

Peretz's latest complaint about Arab Muslims is of the strain commonly voiced by Pat Buchanan and VDARE about Latinos -- namely, that the primitive peoples are reproducing like rabbits and are overwhelming the better educated classes (what Kieran Healy described as: "someone’s always worried that group x are breeding like flies"). Specifically, Peretz claims that Muslims are having large families because they're uneducated and thus don't understand that small families are superior and necessary for a family to be "truly loving" (emphasis added):

Some 2 percent of the Arabs of the West Bank and Gaza are Christians. Not so long ago they were roughly 15 percent of the Arab population. The rest are Muslims, all Sunnis. What explains the decline? Birth rates, of course. Christians are better educated than Muslims (all over the Middle East), and they know that if you want to raise a productive, truly loving, and educated family, you'd be wise to raise fewer children and give them all more attention.

Peretz also claims that in addition to Muslims breeding like flies, the Christians fled the region because -- needless to say -- "their living among Muslims was a frightful experience."

I would imagine that most anyone with a large number of children would take great offense at Peretz's claim that only small families can be "productive" and "truly loving." I wonder what Sen. Orrin Hatch (6 children), Sen. Rick Santorum (6 children), former Sen. Jake Garn (7 children), Sen. Jim Bunning (9 children), Sen. Robert Bennett (6 children), Sen. Sam Brownback (5 children), and Joe Kennedy (9 children), to name just a few, think of Peretz's claim that smart people have small families because only such families can be "truly loving" and are necessary to enable children to get the attention they need and deserve.

But leaving aside its offensive qualities, Peretz's warning about Arab and Muslim breeding habits is completely misleading. It is true, as a general proposition, that predominantly Muslims countries have a higher birth rate than those in the Western world. And it is also true, in general, that the wealthier and more educated a society becomes, the lower the fertility rate is (mostly because birth control and abortion become more readily available, because women have opportunities outside the home, and because poor women with access to poor health care suffer high infant mortality rates and need to have large numbers of children to replace the ones who die).

But the real determinant of high birth rates is not whether someone is Muslim, but whether someone is religious. Peretz seems not to have heard that not only Islam, but also Christianity generally, Catholicism specifically, and Judaism consider large families to be anything from a great blessing to a non-negotiable mandate from God. That's why both the evangelical Religious Right and the Catholic Church so adamantly opposes birth control, and Orthodox Jews have among the highest birth rates of anyone in the world. For that reason, equating Muslims with large birth rates -- scary to Peretz though it may be -- is completely dishonest because devout adherence to any religion, not to Islam, is the most reliable predictor of large numbers of children.

In fact, contrary to Peretz's insinuations, Orthodox Jews in the Israel have a substantially higher birth rate than Muslims in Israel. From a U.N. Report (.pdf) on World Population trends:

Fertility patterns in Israel revolve around three major ethno-religious groups. The Jewish nonreligious group . . . has a total fertility rate of about 2.1 children per woman as of 1995-2000. Arab Muslims had a total fertility rate of 4 children per woman as of 1995-2000. The Jewish ultra-Orthodox and national Orthodox population . . . had a total fertility rate of between 6 and 7 children per woman as of 1995-2000.

The same Report explains why this is so: "The religious ideology of the Orthodox Jew is strongly pro-natalist. . . . It seems very unlikely that this will change."

By contrast, several Muslim countries have experienced a substantial decrease in birth rates. From the same U.N. Report: "Fertility in the Islamic Republic of Iran was over 6 children per woman during the early 1980s. By the end of the 1990s, it had reached replacement levels (2.26 children per woman)." Thus, the birth rate for Iranian Muslim women is roughly equal to that for non-religious Israelis women, and is roughly 1/3 of the birth rate for Orthodox Jewish women in Israel. Just compare those facts to Peretz's sloppy, misleadingly alarmist complaints about Muslim birth rates.

A similar fertility report found: "According to Devorit Angel, the Central Bureau of Statistics' official responsible for the analysis of childbirth trends, after 15 years during which the fertility rate in Israel's Muslim population remained stable at 4.7 children per female, a slight decline has emerged in recent years and the figure in 2003 was 4.5. Orthodox Jews have an average of 6.4 children."

And while many population centers are growing, population projections over the next 50 years are far more notable for their religious and racial diversity than for the nightmare of Muslim domination via breeding which keeps Peretz and others up at night:

The uneven nature of population growth is evident from the fact that during the next 45 years just nine countries are expected to account for half of the world's projected population increase: India, Pakistan, Nigeria, the Democratic Republic of Congo, Bangladesh, Uganda, the United States, Ethiopia and China.

An even casual review of Peretz's blog reflects that (like LGF) he has almost no interest whatsoever in any topic other than the Middle East, and specifically in the project of demonizing Arabs and Muslims. Hurling these sorts of fact-free, bigoted insults towards "Muslims" is the staple of his blog and, apparently, of his world-view.

There are plenty of people who advocate aggressive and militaristic policies in the Middle East who are not motivated by this sort of bottom-scraping hostility, but there are many, many people like Peretz who seem driven by anti-Muslim animus and little else. For that group, American military action need not make geopolitical sense as long as it entails lots of bombs dropping on the right countries and the right people.

Everyone -- including Democrats -- agrees to pretend that Bush "compromised" on torture

(updated below)

No matter where one stands on the ideological spectrum, there is nothing confusing or unclear or ambiguous about the so-called "compromise" on torture, nor is there a lack of clarity about who won. It couldn't be any clearer. On the interrogation issue, there was only one simple issue from the beginning -- the Bush administration, through the CIA, has been using an array of "interrogation techniques" (induced hypothermia, long standing, threats to harm families, waterboarding) which most of the world considers to be torture. The question was whether the U.S. would be a country that uses these torture techniques (as the administration wanted) or whether it would ban them. That was the only issue all along.

Just last week at his press conference -- does the media have any short term memory at all? -- the President said he cared about only one thing with regard to the torture legislation: "I have one test for this legislation. I'm going to ask one question, as this legislation proceeds, and it's this: The intelligence community must be able to tell me that the bill Congress sends to my desk will allow this vital program to continue. That's what I'm going to ask." By "this program," he means the CIA's torture program.

This legislation unquestionably allows the administration to continue to do exactly what it is was doing before. It legalizes those methods. It actually strengthens what the administration was doing because now it provides those activities with statutory authority. Why are the media and others pretending that these questions are murky? They're not.

It's true that the "compromise" takes the indirect, cowardly path towards legalizing torture by relying upon vague standards to define torture and then vesting in the President the sole power (unreviewable by courts) to determine what techniques are and are not allowed by those standards. It is the President who decides whether the "aggressive interrogation" program (i.e., the torture program) can continue, and he has already decided, obviously, that it will.

That is why the President and his senior advisors are celebrating the fact that the "program" can now continue. Because it can. Because the "compromise" allows that. Because the White House won. Because the principled, dissident Republican Senators capitulated entirely on the central question of whether the U.S. will continue to torture people.

Rep. Duncan Hunter, who is more of an extremist on torture issues than even Dick Cheney (he was threatening in advance to block any "compromise," even if the White House signed on to it, if it even potentially impeded the C.I.A.'s interrogation program in any way), excitedly announced that he "like(s) the compromise legislation even better than the [President's] bill his committee had passed." It's bad enough that we are legalizing torture but can we at least stop pretending that we're not sure if we're really doing that?

But worse than any of that, would it at least be possible for Democratic leaders to stop drooling on themselves with praise for John McCain, John Warner and Lindsey Graham, and refrain from holding them up as the heroes who safeguarded all that is good and just in the world. Because not only is it false to say that those Heroic GOP Senators did anything praiseworthy regarding torture, praising them this way is politically so inept and self-destructive that it is hard to believe (although it shouldn't be) that they're actually doing this.

Who needs GOP commercials when you have Democratic Senators?

"A handful of principled Republican Senators have forced the White House to back down from the worst elements of its extreme proposal for new interrogation rules,” said Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader. . . .

And Senator Carl Levin of Michigan, the senior Democrat on the Senate Armed Services Committee, praised Senators Warner, McCain and Graham as “standing up to the administration” and producing a bill that, “while it has a number of problems, is a substantial improvement over the language proposed by the administration.”

So, according to Sen. Reid and Sen. Levin, Americans should be directing our gratitude to the brave, principled, independent Republicans who stood up to the President and protected us all while legalizing torture. That is a really good, shrewd message to be sending right now.

The only real advantage Democrats have during this election season is that Congressional Republicans are perceived to be rubber-stamping loyalists to George Bush who fail to impose any limits or checks on his behavior. But Sen. Reid and Sen. Levin are here to tell us that this isn't true, that Republican Senators are actually brave, principled and courageous and boldly stand up to the President in order to protect all of us not only from the Terrorists but also from the occasional excesses of the President.

The one good thing about incidents of this sort is that they really shine a light on just how dysfunctional and sickly our political institutions are. The President has been torturing people in violation of the law. Republican Senators pretend to object to that but then end up enacting a law legalizing the President's conduct and giving him the power to torture. The media disseminates the patent falsehood (jointly emanating from the White House and GOP Senators, and unchallenged by Democrats) that the President "compromised" and everything Good was preserved. And Democratic Senators, in order to excuse their fear to take a position one way or the other, cheer the whole thing on after it's done, in the process obsequiously praising their political opponents seven weeks before a major national election.

In a nutshell, that, right there, is how our political system works. It is what accounts for most of what has happened for the last five years. What else do you need to know?

UPDATE: The Wall St. Journal Editorial Board is as excited over the "compromise" as Duncan Hunter is, and they are having no trouble understanding exactly what it does. In their editorial headlined "An Antiterror Victory," they explain, correctly:

the upshot of the agreement is simple and welcome: Aggressive CIA interrogations of such high-level al Qaeda prisoners as Khalid Sheikh Mohammed will be able to continue. . . . This will be a service to the American public and to future Presidents of both parties--perhaps even to Mr. McCain. No matter their rhetoric now, they will surely be glad to have aggressive interrogations as one antiterror tool.

The reason extremists like Duncan Hunter and The WSJ Editorial Board -- and the White House, for that matter -- are cheering on this "compromise" is because it's actually nothing of the sort.

Battling apathy and indifference

I have a post up at Salon now describing my overall view of the political landscape, and specifically the way in which Democrats make it so difficult to avoid a sense of apathy and indifference over the outcome of this election. But the radicalism of the Bush administration -- and the damage to this country from another two years of unrestrained presidential power and one-party rule -- render that sentiment a luxury one can't really afford to indulge.

I am putting this in a new post because I am very interested in what other people's views are on these issues and because the last Comment thread is now very long (please continue to discuss specific issues relating to torture/interrogation legislation in that Comment thread).

America to legalize torture

(updated below)

My first post today at Salon focuses on what, in my view, is the only genuinely important fact one needs to know about the "compromise" reached by the glorious leaders of our Ruling Party: namely, the President had only one objective with these "negotiations," which was to ensure that the CIA's torture program could continue, and that goal has been fulfilled in its entirety.

UPDATE: Has anyone seen the Democratic Party anywhere? I think it's time to issue an Amber Alert for them because they have been missing for quite some time now and we're really beginning to worry.

My second Salon post concerns the tactics used to depict our dissident, independent Republican saviors -- the principled and righteous Senators McCain, Graham and Warner -- as the moderate, reasonable, serious, balanced leaders even as they advocated, and ultimately endorsed, an indescribably radical and extremist proposal. The danger -- one could even say the inevitably -- is self-evident that this same sad dynamic will repeat itself in order to ensure enactment of a warrantless surveillance bill.

UPDATE II: I have a plea (directed to myself as much as anyone) to declare dead -- forever -- the Myth of the Independent, Dissident Republican Senator and bury it in a coffin deep in the ground where it belongs. At this point, I think encountering the Lochness Monster is more likely than finding a genuinely independent Republican Senator willing to impose meaningful limits of any kind on the President.

Blogging at Salon

(updated below - updated again re: torture "compromise")

As I indicated yesterday, I am blogging for the next week at Salon's War Room. If you are not a Salon subscriber, you can read all of the posts there by clicking through the ad. If you have problems doing so, please e-mail me. I will update this post with links to my War Room posts. Feel free to participate in the comment section over there.

The first post concerns Hugo Chavez's United Nations speech yesterday and the extent to which the Bush administration is in a position to complain about what it considers to be the inflammatory, undiplomatic and undignified tone of Chavez's rhetoric.

The second post examines the implications of the findings of the new NYT/CBS poll (results are here - .pdf) which, among other things, reveals that 31% of Americans -- almost one-third of the country -- still believe that Saddam Hussein was personally involved in the 9/11 attacks.

UPDATE:

The next post at Salon concerns the semantic games being played by the administration (and then dutifully adopted by the media) in the interrogation/torture debate, along with the finding by the NYT/CBS poll that 56 percent of Americans said torture is never justifiable, even "to get information from a suspected terrorist" (and 63 percent say that "when it comes to the treatment of prisoners of war," the U.S. "should follow the international agreements that it and other countries have agreed to," rather than "do what it thinks is right, even if other countries disagree"). Why aren't Democrats aggressively opposing the administration's proposals?

The fourth post concerns the Bush administration's refusal even to acknowledge, let alone accept responsibility for, the abduction, rendition and torture of Maher Arar, the innocent Canadian who was kept in a tiny cell in Syria for 10 months after being abducted at JKF airport.

UPDATE II: The last post at Salon for today looks at the cynical anti-semitism accusations being hurled by the Allen campaign towards Jim Webb, the erroneous claims made by David Frum regarding media coverage of this incident, and some odd and interesting facts regarding how Jon Henke (who is irresponsibly spewing these anti-semitism accusations) became the official paid blogger of the Allen campaign.

UPDATE III: I haven't had time to really look at the torture "compromise," but I will obviously write a lot about it tomorrow. Marty Lederman had read the compromise and says that it is a complete capitulation, though one should read the comments to Marty's post - including from JustAnObserver - which suggests that it may not be as complete and total a defeat for the McCain-Warner-Graham position as it first seems (although this is a horrendous bill no matter how you slice it).

One thing to watch out for is whether this will be the same template used in the warrantless eavesdropping context - namely, that the "maverick, dissident, independent Republicans" who are "fighting" against the White House suddenly reach a "compromise" with the Bush administration that is slightly short of the Specter bill but nonetheless gives the White House virtually everything it wants - including legalizing warrantless eavesdropping on Americans with full discretion.

Then, Republicans dramatically join together as One and celebrate the victory they won in the war on terror, creating the appearance that they compromised, all while remaining tough-on-terrorism and protective of our civil liberties, while Democrats sit quietly and meekly on the sidelines, invisible, irrelevant and impotent. In other words, we will see the sequel to the sadly predictable spectacle which Digby predicted would occur with the interrogation debate and which, as Digby insightfully explains, is exactly what has now happened.

Serious problems for the White House in the NSA scandal

(updated below)

Many people are debating whether the "conflict" among Republicans over the detainee/ interrogation bill is part of some grand Rovian political plan (to make Republicans appear as though they are independent and willing to stand up to the President, to ensure that scary pictures of Khalid Shaikh Mohammed rather than piles and piles of bodies in Iraq dominate the news, etc.). Regardless of one's views on that question, one thing is beyond dispute at this point: the White House's plan to resolve the NSA scandal by obtaining amnesty for past lawbreaking and future legislative blessing for its warrantless eavesdropping program has veered far off course and, at least for now, appears genuinely imperiled.

First, via the Heretik, is this admittedly odd but plainly significant report from the AP's Laurie Kellman, which begins by claiming (not all that accurately) that "President Bush's embattled anti-terrorism agenda has some new momentum from a House member [GOP Rep. Heather Wilson] who has rewritten her warrantless wiretapping bill more to his liking." The article then proceeds to report facts which make clear that we are far from a legislative solution on FISA, and that these events are anything but "to the Presidetn's liking."

Although the focus for stopping the Specter/FISA bill has been on the Senate, the White House has a substantial problem in the House as well, where Wilson -- a member of the House Intelligence Committee and Chair of a key Intelligence Subcommittee -- has been touting (with the support of the House Leadership) her own bill that is more restrictive than the Specter bill (though still far more permissive of warrantless eavesdropping than is tolerable). In sum, Wilson's bill would legalize warrantless eavesdropping but still keep the program within the FISA framework and require far greater Congressional oversight than the White House wants.

Wilson discovered this newfound resistance to the White House agenda only because she is in a very close re-election battle in her evenly divided District where the President is unpopular, which makes it unlikely that she will capitulate completely to the President after opposing his FISA plan in such a public way. But the AP article reports that Wilson "is swapping her original bill giving legal status to Bush's domestic surveillance program with one that would grant a key administration request . . . ." The article also claims that in exchange for this concession, she has added much more stringent oversight and Congressional notification requirements now included in her bill.

None of this makes much sense. Leaving aside the details of the Wilson bill, even with the "concession" Wilson agreed to, it is very difficult to imagine her bill -- which, unlike the Specter bill, actually purports to restrict the circumstances under which the President can eavesdrop without warrants on Americans -- would ever be acceptable to the White House. Whatever might be going on with the Wilson bill seems more likely to clog up, rather than facilitate, any Congressional-White House agreement. The Wilson framework itself (given that it purports to restrict the President's eavesdropping powers) is not acceptable to the White House and negotiations over its wording -- particularly if it entails greater oversight and reporting requirements -- is not going to change that.

And then there is this report from the Post's Charles Babington and Jonathan Weisman about serious problems the White House is encountering in the Senate:

On another front, legislation to authorize Bush's warrantless wiretapping program may be in more jeopardy. Frist said yesterday that he referred the warrantless surveillance matter to the Senate Select Committee on Intelligence for further review and would not bring it up for Senate consideration until next week.

[Incidentally, just to get a sense for how little reporters actually know despite their authoritative tone, compare the principal point made by Kellman's article (Wilson's bill "represents a possible breakthrough" on the warrantless wiretap controversy and the White House "has some new momentum") with the Post's article ("legislation to authorize Bush's warrantless wiretapping program may be in more jeopardy")].

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. The Post article explains:

Frist also surprised senators yesterday on the warrantless wiretapping issue, sending surveillance legislation already approved by the Senate Judiciary Committee to the intelligence committee for further review. With one week left to consider the bill on the Senate floor, Sen. Olympia J. Snowe (R-Maine), an intelligence committee member, said passage before the election would be "extremely ambitious."

There is an argument to make that with or without an actual legislative solution, the White House may have benefited politically from the NSA debate, given that it places the focus on their anti-terrorism efforts rather than on Iraq. But that claim is unpersuasive at this point.

The detainee debate has overwhelmed the FISA issues in terms of media attention. And there is simply no question that it was (and probably still is) a very high White House priority to obtain -- while they still control the Congress -- legislative immunity for past illegal eavesdropping and Congressional authorization for future warrantless eavesdropping. The President and Vice President negotiated the Specter bill personally and every sign has strongly reflected its great importance to them.

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.

* * * * * * *
NOTE: Beginning tomorrow, I will be posting at Salon, in the War Room, for one week (from tomorrow until next Wednesday). I will also post here on my blog each day (to link to the posts there and to add other thoughts) and will also post here on the weekend. There are, believe it or not, still many people, including people who are politically interested, who don't yet read blogs, and posts on Salon therefore reach a different audience.

This upcoming week is a very important week (particular for FISA and detainee/torture issues). Reading the posts at Salon is easy -- if you're not a subscriber, just click through the ad with the link above, or go to the Salon home page. If you experience problems, please e-mail me and let me know.

UPDATE: In an updated AP story from today, Heather Wilson echoes the sentiments of Olympia Snowe -- that whatever compromise is reached (if any) on the warrantless surveillance issue, Congress is unlikely to have the time to enact a bill prior to adjournment. Wilson "told reporters differences between the House and Senate versions were unlikely to be worked out before Congress reconvenes in a lame-duck session after the Nov. 7 elections."

That would truly be the best of all outcomes -- having this Bush-enthralled Congress, unable to deliver what the President wants due to the election pressure it faces from an anti-Bush electorate, adjourn with no new bill passed and FISA still in place. As Paul Rosenberg pointed out in Comments and as Wilson seems to be insinuating, it is at least theoretically possible that Republicans, even if they lose one or both Congressional houses, could try to use the post-election, lame-duck session to legalize warrantless eavesdropping. But if that were to happen, Democrats (as even they, with their excessively cautious mentality, would recognize) would be in a strong, nothing-to-lose position by using any means, including a filibuster, to prevent that.

Well beyond satire

Michelle Malkin is extremely upset because three convicted Christian terrorists in Indonesia are going to be executed despite -- in Michelle's words -- "grave doubts raised over the fairness of the trial." The title of her post is "Muslims will execute Christians" -- by which she means that the Government of a predominantly Muslim country will execute three defendants who happen to be Christian, because they also happen to have been convicted in a trial in an Indonesian court of law "of masterminding a massacre of 200 Muslims in Poso."

Michelle favorably links to this article from Asia News which reports -- and I'm not making this up -- that the lawyers for the three convicted Terrorists:

will take their case before the International Criminal Court in Geneva, as per a human rights convention ratified by Jakarta, to safeguard the three men’s right to life and to denounce irregularities of Indonesian trials.

Michelle, and an equally outraged Gateway Pundit (to whom she links), both provide contact information to protest on behalf of the Terrorists and to help those organizations trying to secure them a stay of execution and a new trial.

According to the article to which Michelle linked, the complaint is that the Terrorists "were convicted by a trial riddled with illegalities, like witnesses who were not listened to and evidence that was rejected by the court." Wow -- a trial where the witnesses are not listened to and improper evidence was used. What kind of country would convict someone of terrorism using procedures like that? And what kind of disgusting barbarians would be opposed to having "the International Criminal Court in Geneva," pursuant to an international "human rights convention," demand greater legal protections for terrorists?

This post writes itself. For instance, I thought (from having read Michelle's blog) that people who were concerned about due process for Terrorists are themselves pro-terrorists. I wonder what it is about this case that makes Michelle and Gateway Pundit so concerned for the Rights of Terrorists when normally they mock those who express such concern? What's different here? Do Malkin and her comrades want to protect terrorists more than innocent people? Sure seems that way. And just look at how brutal and inhumane Muslims are -- convicting people of terrorism despite evidentiary irregularities in their trial. That is the Evil we are battling in our War of Civilizations.

Maybe the U.S. Government could intervene on behalf of the convicted Terrorists and insist that even accused terrorists have the right to a fair trial and due process, and that it is inhumane and barbaric to impose the death penalty after convicting them of terrorism without first giving them a trial free of any irregularities. A fair trial prior to execution is, after all, a universal value -- even for Terrorists.

We have great moral authority in the world to make that point and I'm sure our protest would go over really well and Indonesia would do what it could to ensure that it was meeting our high standards of justice before proceeding with the execution of these Terrorists. Or maybe we could use our influence with the International Criminal Court in Geneva to advocate for greater protections and a fair trial for these convicted Terrorists.

UPDATE: Of course, if Indonesia would only do what the Bush administration does -- which is imprison people without giving them any trial or process at all, as Michelle gleefully celebrates -- then they wouldn't have to worry about all this hand-wringing from the terrorist rights crowd over "trial irregularities."

The fruits of the President's interrogation policies

In addition to all of the other horrors and disgraces highlighted by our Government's conduct in kidnapping an innocent Canadian citizen and torturing him for a year in Syria, this fact -- reported by the WP article -- should be particularly highlighted and broadcast far and wide:

Arar, now 36, was detained by U.S. authorities as he changed planes in New York on Sept. 26, 2002. He was held for questioning for 12 days, then flown by jet to Jordan and driven to Syria. He was beaten, forced to confess to having trained in Afghanistan -- where he never has been -- and then kept in a coffin-size dungeon for 10 months before he was released, the Canadian inquiry commission found.

That is what the President and his followers insist we have to do in order to stay "safe" -- abduct people, hold them in secret prisons and torture them. That way, they will confess to crimes they didn't commit, admit that they trained in terrorist camps located in countries they've never been to, tell us about non-existent terrorist plots they invented to satisfy their interrogators, and confirm that detainees whom they don't know and never met are very bad Al Qaeda terrorists -- all so that they won't be tortured any more.

And then we'll all be safer. And by doing all of that, we will have taken important steps in winning the hearts and minds of the Muslim world -- so that Al Qaeda won't be able to exploit anti-American resentment for recruitment purposes any longer -- and, by example, we will be leading a revolution in the Middle East where democracy and a respect for human rights finally prevail.

Evangelical desires for the Rapture and Bush's Middle East wars

One of the issues which does not get discussed very much at all is the extent to which people who compose the President's "base" -- and even the President himself -- are so obsessed with the Glorious War of Civilizations because they see it as a religious war between Islam and Christianity. Reporters have always been reluctant to ask the President about his religious beliefs -- such as the influence, if any, of end-of-the-world "Rapture" doctrines on his political decisions -- but the issue is pressing given that many evangelicals believe the Rapture is what is driving (and justifying) not just our current, but also future, conflicts in the Middle East:

Christian minister Jerry Falwell announced that the beginning of the end of the world as we know it likely has begun and that Christians should “proclaim the Gospel of Jesus Christ and prepare for his imminent return.”

If the televangelist’s prediction is accurate, thousands of Sacramentans soon may experience what evangelical Christians call the Rapture: Believers will spontaneously disappear from their homes and workplaces and be carried to heaven, while the remaining population will be left behind to endure trauma and hardships never before experienced by mankind. . . .

Falwell’s ominous prophecy is based primarily on the current conflicts in the Middle East--mainly the recent war between Israel and Hezbollah--which parallel Evangelical beliefs about the final battle between good and evil. Tarr explained that Evangelicals believe that a consortium of forces will attempt to demolish the state of Israel and that that battle will trigger the Second Coming of Jesus Christ, who will come to the aid of the Jews.

Is fighting in order to bring about the Rapture -- whereby "believers will spontaneously disappear from their homes and workplaces and be carried to heaven" -- really all that different from 72 virgins awaiting martyrs in heaven? And much of that language is how the President publicly describes his view of the Middle East. There is just no question that Rapture doctrine is what causes very large numbers of the President's supporters (and the President himself?) to believe that fighting against enemies of Israel in the Middle East is a moral and theological imperative:

“He will fight, and his forces will fight against those who want to annihilate the Jewish people,” he said. The significance of the Second Coming will not be missed by the Jews, Tarr said. “Christ comes back and protects the Jewish nation. For the first time, the Jewish nation is going to recognize that he was the Messiah that came before, and they’re going to accept him as their Messiah.”

Although Falwell implied that the prophesized anti-Israel coalition now can beidentified and consists of Iran, Syria, Hezbollah and Hamas, Tarr isn’t so sure. “For people to name the countries, 'It is going to be Iran and Iraq and Syria, and Russia and China,’ or whatever, I don’t know.

During his small, intimate sitdown with "reporters" such as Fred Barnes, Rich Lowry and Kate O'Beirne last week, the President repeatedly emphasized the good-vs-evil and religious aspects of his political beliefs in the War on Terror. As Lowry put it: "Bush’s faith in the rightness of his strategy in the broader war is deep-seated — it is, indeed, a product of faith." Bush also spoke of a religious revival -- the Third Awakening -- which he claims is sweeping the United States:

I’m not giving you a definitive statement — it seems like to me there’s a Third Awakening with a cultural change. And it would be interesting to get your observations if that is accurate or not accurate. It feels like it. I’m just giving you a reference point, if this is something you’re interested in looking at. It feels like it to me. I don’t have people coming in the rope line saying, ‘I’d like a new bridge, or how about some more highway money.’ They’re coming to say, ‘I’m coming to tell you, Mr. President, I’m praying for you.’ It’s pretty remarkable.

All of that is by way of highlighting the context for the following ABC report concerning an upcoming documentary on evangelical movements and how they are inculcating American youths -- by mixing evangelical doctrine and political beliefs. It's hard to watch this and not be alarmed -- and the worship session with George Bush's photograph is hardly surprising to any observer of our political discussions. How common is this mindset, and what influence does it play on the decisions -- both past and for the next two years -- of the Bush White House with regard to the wars we fight against Muslims?

Thomas Sowell's comprehensive guide to our political debates

Thomas Sowell has performed a truly great service. He has managed to squeeze in every dishonest rhetorical tactic, flagrant myth, and hysterical premise of Bush followers into a single new column, in which he argues that we are too weak, cowardly, squeamish and soft to do the dirty, brutal work necessary to defeat the Islamic super-villains who are trying to take over our country (after nuking us) and impose Islamic sharia law on us, whereby we will all speak Arabic and live in submission to the Worldwide Islamic Caliphate with Osama bin Laden as our Supreme Ruler.

The column is like a comprehensive Cliffs Notes for the propaganda of Bush followers:

Even with a nuclear Iran looming on the horizon and the prospect that its nuclear weapons will end up in the hands of international terrorists that it has been sponsoring for years . . .

Iran is on the verge of acquiring nuclear weapons (or, as Glenn Reynolds responsibly suggested, perhaps they already have them). They are allied with international terrorist groups and, very soon, they will give those nuclear weapons to the Terrorists who will then use the nuclear weapons against us.

. . . many in the media and in the government that is supposed to protect us have been preoccupied with whether we are being nice enough to the terrorists in our custody.

Those who want to give people minimal due process before shooting them in the head are daintily preoccupied with "being nice." And everyone whom we have detained and is in our custody -- including the people who have had no trials, commissions or even charges brought against them -- are "terrorists" -- not alleged terrorists, not suspected terrorists -- just terrorists. Anyone the Bush administration accuses of being a terrorist is, by definition and without anything more required, a terrorist, and ought to be treated as such.

The issue has been brought to a head by the efforts of Senators John McCain, John Warner, and Lindsey Graham to get us to apply the rules of the Geneva convention to cutthroats who respect no Geneva convention and are not covered by the Geneva convention.

The Geneva Convention does not apply to Guantanamo detainees even though the U.S. Supreme Court, charged by the U.S. Constitution with interpreting all laws, just said that it did.

Congress has the power to impeach judges, including Supreme Court justices, but apparently not the guts. Runaway judges are not going to stop until they get stopped.

When Supreme Court judges issue legal rulings you don't like, they should be impeached. Only cowards (those without "guts") would refuse to do that.

The argument is made that we must respect the Geneva convention because, otherwise, our own soldiers will be at risk of mistreatment when they become prisoners of war. Does any sane adult believe that the cutthroats we are dealing with will respect the Geneva convention?

Since the barbaric, uncivilized, inhumane evil terrorists don't abide by the Geneva Conventions, why should we behave any differently?

The much larger question -- the question of survival -- is whether we have the clarity and the courage to go all-out in self-defense against those who are going all-out to destroy us, even at the cost of their own lives.

Our very survival as a nation is imperiled. We face an Enemy that is determined -- and able -- to invade us, destroy us, end civilization as we know it. Just like the Greatest Generation which gloriously triumphed over Evil, we, too, face a dramatic and character-testing challenge -- do we fight for our civilization and defend our country against Evil Personified, or do we submit and surrender and have our children speak Arabic and live under the rule of Osama bin Laden?

In a country where all sorts of individuals and organizations tap into our personal computers and our computerized medical, financial and other records, some have gone ballistic over the fact that the federal government tries to keep track of who is being phoned by international terrorist organizations.

People who object to the President's illegal eavesdropping don't want to eavesdrop at all on Al Qaeda. They want Al Qaeda to be able to freely call into the U.S. and not have the Government listen in. Although the law they insist be complied with allows for eavesdropping on Al Qaeda, they oppose eavesdropping on Al Qaeda.

Squeamishness about how this is done is not a sign of higher morality but of irresponsibility in the face of mortal dangers.

Those who are opposed to torturing people, breaking the law, violating our treaties, having the Government secretly spy on Americans, and executing people with no due process aren't moral at all. They are weak.

That really is the full quality and scope of the debate we are having and have been having in this country for several years now. There is nothing more elevated or noble about it. The debate really is this superficial, shallow, craven and just plain dumb -- but "Dr. Sowell" is a very "serious scholar" who is voicing the ideas that "serious, responsible people" voice.

Here is the "moral authority" of the U.S. under the Bush administration

(updated below)

For the last four years, the United States has been (and still is) a country which kidnaps other countries' innocent citizens (including those of its own allies); brings them to Jordan, Syria and Egypt to be tortured (sometimes for as long as a year); lies to its allies about what it is doing with their citizens; and then, when the innocent citizens are finally released and they go to an American court to try to obtain compensation from the U.S. government for their disappearance and torture, the Bush administration tells the federal judge that the case must be summarily dismissed because national security would be harmed if the administration were held accountable in a court (and the courts then comply).

Do any other counties in the world kidnap civilians who are citizens of other countries and torture them? The case of Maher Arar -- a Canadian citizen abducted by the U.S. and sent to Jordan for a year to be tortured depsite having no terrorist ties of any kind -- is receiving substantial attention today because a Canadian government commission issued a report which "say(s) categorically that there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constituted a threat to the security of Canada." The report also blasts the Bush administration, which abducted Arar during a layover at JFK airport when he was flying home to Canada from a vacation in Tunisia:

On Oct. 8, he was flown to Jordan in an American government plane and taken overland to Syria, where he says he was held for 10 months in a tiny cell and beaten repeatedly with a metal cable. He was freed in October 2003, after Syrian officials concluded that he had no connection to terrorism and returned him to Canada. . . .

Evidence presented to the commission, said Paul J. J. Cavalluzzo, its lead counsel, showed that the F.B.I. continued to keep its Canadian counterparts in the dark even while an American jet was carrying Mr. Arar to Jordan. The panel found that American officials “believed — quite correctly — that, if informed, the Canadians would have serious concerns about the plan to remove Mr. Arar to Syria.”

Mr. Arar arrived in Syria on Oct. 9, 2002, and was imprisoned there until Oct. 5, 2003. It took Canadian officials, however, until Oct. 21 to locate him in Syria. The commission concludes that Syrian officials at first denied knowing Mr. Arar’s whereabouts to hide the fact that he was being tortured. It says that, among other things, he was beaten with a shredded electrical cable until he was disoriented.

By no means is Arar the only individual to be subjected to this barbaric, lawless behavior by the Bush administration. I wrote about several such cases -- including Arar's -- in this post from May, in which I argued that these incidents "provide a thorough picture of what the U.S. is becoming, and has become, under the Bush administration."

That post focused on what the Bush administration did to compel dismissal of a lawsuit brought by Khalid El-Masri, a German citizen who alleges -- with the support of German prosecutors -- that the U.S. Government abducted him, drugged him, flew him to multiple different torture-using countries (and shuttled him at least to Kabul, Baghdad, and Skopje, Macedonia) as part of the administration's "rendition" program, only to then release him after five months when the U.S. realized it had abducted the wrong person (El-Masri has a name similar to a suspected terrorist). There is no dispute about El-Masri's complete innocence:

This year, German investigators confirmed most of Masri's allegations, which have received extensive publicity in Europe. In December, during a joint news conference with Secretary of State Condoleezza Rice, German Chancellor Angela Merkel said Rice had admitted the mistake.

But as courts almost always do, the Federal Judge in El-Masri's case deferred to the administration's "state secrets" claim and dismissed the lawsuit, even as the judge said: "all fair-minded people . . . must also agree that [Masri] has suffered injuries as a result of our country's mistake and deserves a remedy.''

The administration did the same thing in the case of Arar -- when he sued for damages as a result of being wrongfully kidnapped and tortured by the U.S. Government, the Bush administration argued that "state secrets" compelled the court to dismiss the case, and the federal judge deferred to the President's wishes. And then there is the case of Mustafa Osama Nasr, who was abducted by the CIA off the streets of Milan and flown to Egypt to be tortured, which prompted Italian prosecutors to issue arrest warrants for the 13 CIA officers responsible for this kidnapping within Italy.

So on top of operating secret torture gulags in Eastern Europe, we also kidnap people, charge them with no crime, give them no opportunity to defend themselves, deny them contact with their consulate in violation of international treaties (as the Canadian report complained about), send them off to be tortured for months, and then when it turns out that they are completely inncoent, we block them from obtaining compensation in our courts because our Government claims that national security would be jeopardized if they were held accountable for their behavior.

How can you be an American citizen and not be completely outraged, embarrassed, and disgusted by this conduct? What the Bush administration is doing on so many levels is a grotesque betrayal of every national value and principle we have always claimed to embrace and for which we have fought, and which we claim we are defending as part of our current "war".

Can it even be debated at this point that the Bush administration has so plainly, as Billmon described it the other day, "forfeit(ed) forever its ability to chastise the human rights abuses of others without triggering a global laughing fit"? Who would ever take seriously the notion that a Government that engages in this behavior can lecture anyone on human rights abuses or import democratic values around the world?

And how much more potent of a case could there be to underscore the point that being detained by the Bush administration. or being accused by them of being a terrorist, does not mean that someone is a terrorist -- a most basic logical axiom which Bush followers constantly violate because the media allows them to? Advocating minimal due process protections for military commissions before people are executed for being "terrorists" cannot honestly be described as "giving rights to terrorists" because they are not terrorists solely by being accused -- and anyone who describes it as such is engaged in deceit and distortion, not "framing" techniques or political spin. The same is true of oppositing torture ("advocating terrorist rights"), warrantless eavesdropping ("opposing spying on terrorists") and every other related debate -- conflating accusations of terrorism with being a terrorist is not political advocacy but outright dishonesty and the media has the responsibility to describe it as such.

It's nice that Colin Powell and John McCain have objected to a few of the more grotesque excesses, but Democrats have to stop being invisible and afraid of having this debate. If we are going to fundamentally change the type of country we are -- as the Bush administration is well down the path of doing -- then that ought to be something that gets decided by an election after a full and explicit debate.

Do Americans want to be a country that kidnaps people without charges, tortures them, lies to its allies about it, and then, when it turns out they were completely innocent, blocks the Government officials who are responsible from being held accountable? That's the country we've become under this administration and its blindly loyal servants in Congress.

UPDATE: In Comments, DcLaw1 highlights what may actually be the most important part of this story, from the Washington Post article: In Jordan, Arar "was beaten, forced to confess to having trained in Afghanistan -- where he never has been -- and then kept in a coffin-size dungeon for 10 months before he was released, the Canadian inquiry commission found." What is there to say about that? Or about people (such as the President) who want to do more of that?

Hinderaker shows us the central defect in the mindset of Bush followers

(updated below)

Greg Sargent conclusively documents today's Daily Dose of Dishonesty from John Hinderaker. Powerline's latest deceit involves the detention and imprisonment by the U.S. military in Iraq of an AP photographer, Iraqi citizen Bilal Hussein. According to the AP, the military claims that Hussein has a "close relationship" with insurgents and is "afforded access to insurgent activities outside the normal scope afforded to journalists conducting legitimate activities."

But the military has brought no charges of any kind against Hussein and refuses to have any public hearing. Instead, it is doing to Hussein what the Bush administration did in the U.S. to American citizens Jose Padilla and Yaser Esam Hamdi -- imprisoning him based solely on the unreviewable and unchallengeable say-so of the administration that he is guilty, while refusing to bring charges. As Sargent reports, AP has protested this state of affairs by insisting: "'We want the rule of law to prevail. He either needs to be charged or released. Indefinite detention is not acceptable,' said Tom Curley, AP's president and chief executive officer."

But when Hinderaker "reported" these events to his readers, he falsely claimed that "the Associated Press, rather than expressing any embarrassment that it has been publishing propaganda photos taken by an apparent associate of al Qaeda in Iraq, is campaigning for Hussein's release." As Sargent points out, AP is not campaigning for his release, but is insisting that he either be charged with a crime or released. Sargent asks: "Why on earth would Powerline readers put up with such deception? Maybe they like being deceived." (And all of that leaves to the side Hinderaker's independently deceitful conflation of the accusation that Hussein is working with Iraqi "insurgents" with Hinderaker's claim that he is an "associate of al Qaeda").

I don't think Powerline readers would realize that Hinderaker was deceitful here even if they read Sargent's post because the deceit rests on a distinction which Bush followers don't recognize. Hinderaker's deceit here is noteworthy because it illustrates the central propagandistic myth which really does lies at the heart of almost every terrorism-related debate we are having. It is a myth which the Bush administration propagates on almost every issue and which the media, inexcusably, almost never points out, even though it is extremely simple, clear and of central importance.

This principle is just axiomatic -- the fact that someone is accused by the Bush administration of being a terrorist or suspected by the administration of working with terrorists does not, in fact, mean that they are a "terrorist." There is a distinction between (a) being accused or suspected by the Bush administration of working with Al Qaeda and (b) actually being in cahoots with Al Qaeda and being a "terrorist."

But Bush followers simply do not recognize any such distinction. They literally operate from the premise of Presidential Infallibility. Thus, to them, if the Bush administration suspects that someone is a terrorist, then it means that they are a terrorist. To Hinderaker, the AP photographer is a terrorist because the Bush administration says he is. Hence, Hinderaker complains that AP is not "expressing any embarrassment that it has been publishing propaganda photos taken by an apparent associate of al Qaeda in Iraq".

Therefore, there are only two choices which a Bush follower like Hinderaker can recognize -- (1) support the War on Terrorism by supporting the administration's imprisonment of this photographer, or (2) side with the Terrorists by demanding that this Terrorist be released (which is what he told his readers AP is doing). Hinderaker doesn't recognize a third option (such as charge the photographer with terrorism and then determine in a hearing if it's true) because, to him, the Bush administration's accusation of terrorism is tantamount to proof. Anyone who objects to the Bush administration's detention of Hussein is, by definition, objecting to the detention of a Terrorist. Why wait to see if he really is that? The Leader has said it is so. It is thus so.

This mindless, authoritarian belief in Presidential Infallibility repeats itself in almost every debate we are having. Those who favor greater protections for accused terrorists for military commissions are labelled by Bush followers as advocating for "terrorist rights" even though the whole point is that we can't know they are terrorists until we give them a fair trial. But to Bush followers, the Leader's decision to detain them and accuse them is all we need to know. We can place blind faith in the Leader's judgment. Thus, to be accused by the Bush administration of terrorism is the same as being a Terrorist. Those detained at Guantanamo, or by the U.S. military, or anyone accused by the President of being an "enemy combatant," is guilty for that reason alone. And thus anyone who advocates rights for those so accused is, by definition, advocating rights for Terrorists.

The same irrational, zombified mental process dominates the debate over warrantless eavesdropping. According to the administration, it is only eavesdropping on individuals whom it suspects are involved in some way with Terrorists. But to the administration and its followers, to be suspected of terrorism by the administration is to be a Terrorist. Hence, they will say that the Bush administration is only eavesdropping on terrorists because they recognize no distinction between being accused by the administration of terrorism and being a Terrorist. Thus, anyone opposed to warrantless eavesdropping is, to them, opposed to eavesdropping on Terrorists (rather than objecting to the administration's ability to eavesdrop without first demonstrating that there is reason to believe they are a terrorist).

Our entire system of Government and the Bill of Rights is based on the principle that to be accused by the Government of being guilty of a crime is not the same as being guilty. But a recognition of that distinction requires a healthy and definitively American distrust of Government -- exactly what Bush followers lack.

It requires recognition that the Government falsely accuses people all the time of being guilty of things of which they are not actually guilty. Yet Bush followers are so enamored of their Leader's Wisdom and Rightness that this distinction eludes them. They place blind faith in the Leader's ability to decree who is guilty, and to them, trials and safeguards and rights are just annoying obstacles which interfere with the Leader's ability to punish the Guilty Terrorists (i.e., those who have been accused of, or are suspected by, the President of being involved in Terrorism).

Those who believe that the Government should have to prove that someone is likely a terrorist before eavesdropping on their conversations -- or those who would like to ensure a reasonably fair trial before we imprison and execute people for being guilty of terrorism -- are no more "pro-terrorist" than those who favor the Bill of Rights are "pro-murderer" or "pro-pedophile." People are only guilty once they are charged and their guilt is demonstrated, not when the Government secretly concludes that they are guilty.

It's clear why Bush followers like Hinderaker can't process that distinction -- because the idea that the Bush administration might falsely accuse someone is something they can't consider -- but why can't the media make that point clear? It is very basic to everything Americans know and it rather central to every argument the Bush administration is making when trying to justify ever increasing powers.

UPDATE: The reliably misleading Mitch McConnell shows how this is done: "For example, I imagine it would be awkward for many of my Democrat colleagues to go home and explain a vote to provide sensitive, classified information to terrorists . . . " According to McConnell, those who advocate rules whereby accused terrorists can actually see the evidence to be used against them to determine if they are terrorists want "to provide sensitive, classified information to terrorists."

Similarly, McConnell calls Bush's legislation establishing military commissions Bush's "proposal for terrorist detainees." If they are already "terrorists," why bother with military commissions at all? What are the commissions supposed to determine? Why not just skip to the execution part?

Bush followers distort history to justify their radical changes

(updated below)

In order to justify a complete overhaul of the legal framework and value system which the United States has embraced since at least the end of World War II, Bush followers have been insisting -- by necessity -- that the threat we face now is unprecedented and the enemy is more barbaric and dishonorable than any we previously confronted. Thus, they argue, all of those conventions of the past, such as the Geneva Conventions and FISA, were from a now-obsolete era of relative peace and tranquility, where the only enemies we fought abided by the noble rules of war.

As both Andrew Sullivan and Charles Pierce noted, John Yoo actually claimed in his Op-Ed in the NYT yesterday (my analysis of that Op-Ed is here) that "the changes of the 1970’s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia." That would come as a great surprise to Ronald Reagan, who warned on March 31, 1976 -- the time Yoo claims we "had no serious national security threats":

But there is one problem which must be solved or everything else is meaningless. I am speaking of the problem of our national security. Our nation is in danger, and the danger grows greater with each passing day. Like an echo from the past, the voice of Winston Churchill’s grandson was heard recently in Britain’s House of Commons warning that the spread of totalitarianism threatens the world once again and the democracies are wandering without aim.

And yet FISA was enacted a mere two years later, and President Reagan abided by it -- and never complained about it or contested its validity -- even as he confronted and defended the country against a threat which, in 1983, he characterized as follows: "The Soviet Union is acquiring what can only be considered an offensive military force. . . .They're spreading their military influence in ways that can directly challenge our vital interests and those of our allies."

The notion that long-standing American principles embodied by the Geneva Conventions and FISA are a by-product of a peaceful past is just rank historical revisionism. And the fact that these fictions come from those who revere Ronald Reagan and his dramatic warnings of the "evil empire" of the Soviet Union leave little choice other than to conclude that this is deliberate deceit. We adhered to and embraced -- and, indeed, enacted -- the Geneva Conventions and FISA when we were constantly told that we faced great peril from a mortal, unprecedented enemy, not when we were in some bucolic time of peace with threats posed only by noble and upstanding enemies.

Even worse is the attempt to suggest that Al Qaeda's tactics are unparalleled in their barbarism and evil and therefore we must fundamentally change the way we conduct ourselves as a nation if we have any chance of defeating that threat. Andrew McCarthy, in his National Review article advocating the Bush-desired repudiation of the Geneva Conventions (which the clownish Hugh Hewitt patronizingly insisted in an interview with Lindsey Graham that Graham read because McCarthy's article would single-handedly make Graham see the Light on the virtues of torture), actually argued that John McCain's experiences as a POW in North Vietnam are worthless for the current debates because the enemy we fought in the past was fundamentally different than Al Qaeda.

With that premise, Andrew McCarthy presents the Noble, Upstanding North Vietnamese soldiers whom we confronted back then:

The universal, reciprocal chivalry that guided warriors, and nation-states, when young John McCain’s unflinching valor blazed its legend on the honor-roll of American heroes no longer obtains. Now, the enemy is barbaric, and the only weapon is intelligence.

So the North Vietnamese were chivalrous warriors -- just like everyone else we fought until we encountered the Whole New Barbaric Al Qaeda threat -- and therefore the Honor Code that obtained then is no longer valid.

But everything that the Bush administration and its followers are claiming now about Al Qaeda and The Terrorist Threat generally was said about the North Vietnamese, and every other enemy that we have faced. Demonizing The Enemy as a Unique, Unprecedented Threat is routine. It is a tool used by every Government to justify every war. Here is Lyndon Johnson in his 1965 speech at Johns Hopkins University, talking about the unique evil of the North Vietnamese:

And it is a war of unparalleled brutality. Simple farmers are the targets of assassination and kidnapping. Women and children are strangled in the night because their men are loyal to their government. And helpless villages are ravaged by sneak attacks. Large-scale raids are conducted on towns, and terror strikes in the heart of cities.

And here is Johnson in his State of the Union Speech of 1967, emphasizing the terrorist tactics used by the North Vietnamese:

This war -- like the war in Vietnam -- is not a simple one. There is no single battleline which you can plot each day on a chart. The enemy is not easy to perceive, or to isolate, or to destroy. There are mistakes and there are setbacks. But we are moving, and our direction is forward. . .

I think I reveal no secret when I tell you that we are dealing with a stubborn adversary who is committed to the use of force and terror to settle political questions. . . .

Our South Vietnamese allies are also being tested tonight. Because they must provide real security to the people living in the countryside. And this means reducing the terrorism and the armed attacks which kidnapped and killed 26,900 civilians in the last 32 months, to levels where they can be successfully controlled by the regular South Vietnamese security forces. . . .

And -- and as I've documented previously -- if one reads any speech by Lyndon Johnson regarding Vietnam, it is just so striking how identical its reasoning is -- both in terms of why we have to fight there and why we are winning -- to the speeches President Bush has been giving for three straight years about Iraq. As just one example, from Johnson's speech at Johns Hopkins:

We are also there because there are great stakes in the balance. Let no one think for a moment that retreat from Viet-Nam would bring an end to conflict. The battle would be renewed in one country and then another. The central lesson of our time is that the appetite of aggression is never satisfied. To withdraw from one battlefield means only to prepare for the next. We must say in southeast Asia--as we did in Europe--in the words of the Bible: "Hitherto shalt thou come, but no further.

And from his State of the Union speech in 1966: "Support of national independence -- the right of each people to govern themselves -- and to shape their own institutions. For a peaceful world order will be possible only when each country walks the way that it has chosen to walk for itself."

Claims that the enemy we face poses a unprecedented, mortal threat -- and that they operate beyond all bounds of decency, humanity, and civilized norms -- is something that we have heard (often accurately) about all sorts of enemies over the last 100 years, and especially since the end of World War II -- exactly during the time we enacted, among other things, the laws of war, FISA and other safeguards. The nature of the enemy is not new, nor is the threat unprecedented.

The only difference is that, for the first time, we have a President who claims that America is too weak and ineffective to defeat those enemies while adhering to our defining values and a superior set of civilized norms. George Bush is the first President, certainly since World War II, if not ever, to claim that we have to become the enemy and to descend to their barbarism in order to protect ourselves. What is new and unprecedented is not the enemy we face, but the fundamental and depraved changes to our national character which the President insists we much accept in order to win.

UPDATE: Mona has more on Andy McCarthy's chivarlous North Vietnamese warriors who -- unlike the never-before-encoutered Al Qaeda brutes -- reciprocated the protections of the warrior honor code to those Americans whom they captured.

David Broder, Poster Child for the sickness of American journalism

(updated below)

This simply defies commentary, so I will let the Dean of Washington Journalists, "liberal" David Broder, illustrate with his own words the profound sickness at the heart of so much of our political dialogue. From his "online chat" on Friday (h/t Byron York), Broder explains why Bill Clinton should have done the "honorable" thing and resigned as Preisdent, but President Bush should not:

Washington, D.C.: Mr Broder, if you feel Karl Rove is owed an apology from the pundits and writers over Valerie Plame, did you also call for an apology to the Clintons after Ken Starr, the Whitewater investigation and the failed attempt to impeach President Clinton? If not, why not?

David S. Broder: As best, I can recall,I did not call for such an apology. My view, for whatever it is worth long after the dust has settled on Monica, was that when President Clinton admitted he had lied to his Cabinet and his closest assoc, to say nothing of the public, that the honorable thing was for him to have resigned and turned over the office to Vice President Gore. I think history would have been very different had he done that.

So David Broder still thinks that Bill Clinton should have resigned as President of the United States because he lied about having sex with Monica Lewinsky. So do these high moral standards mean that Broder thinks Bush should resign from office -- how about for continuing to claim a Saddam/al-Zarqawi connection long after it has been clear that no such connection ever existed, or for any other credibility-destroying action taken by this administration? No, of course not - the mere suggestiong is absurd:

Princeton, N.J.: Since one can lie by omission, do you believe the President and Vice President (at least) should resign because of the lies about Iraq's atomic program and their link with Al Qaeda? As phase II of the Senate Intelligence Committee's report appears and leaks pop up about the rest of it, it becomes clearer and clearer that we were lied to.

David S. Broder: I think if you want to disqualify as lying everyone in government who believed Saddam Hussein had weapons of mass destruction, you would empty not only the White House but most of Capitol Hill. I think the way to do that is through election, not mass resignation. Resignations seem appropriate to me when individual responsibility is clear and unique.

So, lying over an extramarital affair is serious enough to justify the resignation of a President. Leading the country to invade another country on false pretenses, and then plainly invoking fictitious justifications for why we did so, is just a routine political matter that ought to be addressed by elections.

How about the fact that the administration is engaged in systematic law-breaking -- does that compete in importance with lying about an extramarital affair? Why, no, of course not -- to the upstanding, responsible Dean of Washington Journalism, the notion that there is anything unusual going on with this administration is just all a bunch of shrill, overheated "rhetoric":

Kingston, Ontario: I'm rather surprised by your and your correspondents' calm tone of voice this morning. Unless the New York Times editorial page is wildly off-track, the U.S. is in the grip of a major constitutional crisis, with the government trying to set aside long established guarantees of legal behavior, both internally and in relation to international law. Where's the sense of urgency?

David S. Broder: Far be it from me to question the New York Times, but I'd like to assure you that Washington is calm and quiet this morning, and democracy still lives here. Editorial writers sometimes get carried away by their own rhetoric.

Protesting presidential lawlessness is shrill and overheated. Demanding that the President of the United States resign his office for lying about an extramarital affair is sober, serious and responsible. What is it, then, about Clinton's actions in the "Lewinsky scandal" that justified resignation? The Dean soberly explains:

We return a second time to President Clinton. What bothered me greatly about his actions was not what he said to his lawyers but what he told the Cabinet, his White House staff--You can go out and defend me because this did not happen. And he told the same,e lie to the American people. When a president loses his credibility, he loses an important tool for governing--and that is why I thought he should step down.

So to recap: President Clinton "lost his credibility" because of what he said about having sex with Monica Lewinksy, and therefore he should have resigned as President. But President Bush hasn't said or done anything to lose his credibility -- needless to say -- and, therefore, only respectful political disagreements with him, to be resolved only at the ballot box, are permissible. That's a pretty comprehensive picture of what has been going on with American journalism over the last decade or so.

UPDATE: As Crust points out in Comments, David Broder probably missed this April, 2004 speech from George Bush -- who, whatever else a reasonable, serious commentator might want to say about him, never lied about anything the way Clinton did: "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

Shrill, hysterical lefty partisan blogger

I began writing a post in response to this truly ridiculous Op-Ed by John Yoo in this morning's NYT -- in which Yoo gleefully celebrates every authoritarian transgression of the Bush administration, from torture and pre-emptive wars to endless invocations of presidential secrecy, the issuance of "hundreds of signing statements" declaring laws invalid, and even what Yoo calls the President's assertion of his power to "sidestep laws that invade his executive authority" (what we used to call "breaking the law") (emphasis added in all instances).

But then I thought better of it, because, at this point, anyone who fails (or refuses) to recognize that the President does not have the power in our system of government to violate laws by invoking national security concerns is never going to recognize that. Yoo's Op-Ed is so flagrantly frivolous that it ought not be taken seriously. He even goes so far as to claim that the "founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." How can you be on the faculty of a major law school and say this?

It is indeed true that the President has the power to "check" legislation that he considers "wrongheaded or obsolete" -- by vetoing bills before they're enacted into law, not by violating them after they're enacted into law. The whole point of Hamilton's Federalist No. 73 is to explain the purpose of the veto power, and specifically that "the case for which it is chiefly designed" is "that of an immediate attack upon the constitutional rights of the executive." That is how the President in our system of government defends against Congressional encroachments on his power and imposes "checks" on "wrongheaded or obsolete legislation" -- by vetoing such bills (an action which is then subject to being overridden), not by secretly violating laws at will.

Why is it even necessary to point out that the U.S. President does not have the power to violate laws which he thinks are "wrongheaded or obsolete," or that Presidents have no authority to disregard "wrongheaded or obsolete judicial decisions" (whatever that might mean)? And what permits a "law professor" to claim otherwise on the Op-Ed page of the NYT? Under this administration, there is no notion too radical or authoritarian to be off limits not only from being subject to debate, but from being implemented.

Just look at the things we're debating -- whether the U.S. Government can abduct and indefinitely imprison U.S. citizens without charges; whether we can use torture to interrogate people; whether our Government can eavesdrop on our private conversations without warrants; whether we can create secret prisons and keep people there out of sight and beyond the reach of any law or oversight; and whether the President can simply disregard long-standing constitutional limitations and duly enacted Congressional laws because he has deemed that doing so is necessary to "protect" us.

These haven't been open questions for decades if not centuries. They've been settled as intrinsic values that define our country. Yet nothing is settled or resolved any longer. Everything -- even the most extremist and authoritarian policies and things which were long considered taboo -- are now openly entertained, justifiable and routinely justified.

Rather than dissect Yoo's lawlessness-venerating Op-Ed, I instead want to quote a "lefty blogger" who makes some critically important points even though he is (admittedly) rather shrill and imprudent with his language and often sounds a bit like a partisan hysteric (he uses regrettably shrill words like "tyranny" and "despotism"). But on two issues in particular -- (a) secret prisons and detentions, along with punishment without trials, and (b) claims (such as those by Yoo and the White House) that courts are acting improperly by "interfering" in the President's national security programs -- he really does articulate some important points.

Here is the first post:

The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

Here is the second one:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

This lefty blogger fails to take seriously the existential threat posed by Islamofascist-Nazi Terrorists, because he resists the notion that the Constitution changes as a result of that threat. Instead, he claims that the Constitution can only be changed by the amendment process set forth within that document, not by whimsical reactions to contemporary events. Apparently, he hasn't heard the brilliant insight that the Constitution is not a "suicide pact"-- which means we can disregard it any time doing so makes us safe -- or that, as the President said, Judge Taylor's decision ruling the NSA program unconstitutional happened because she "simply do[es] not understand the nature of the world in which we live":

. . . yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

The vision of John Yoo and the Bush administration is exactly what this country was founded in order to avoid. The powers Yoo insists the President possesses are exactly those which were identified by the Founders as the hallmarks of tyrants and despots. Of course, if Hamilton said anything like he said in the above-excerpted quotes as part of our current debates, he would be branded a shrill, unserious, soft-on-terrorism, partisan hysteric by the Washington Post Editorial Board and certain highly serious and very responsible magazines.

If only Alexander Hamilton and the other Founders had understood the grave, existential, unprecedented threat posed by Islamicfascist Nazi jihadists, they would have understood all of this and would have enthusiastically embraced all the things they waged war to prevent and which they impetuously and shrilly called "notorious acts of despotism." But there is no need to change the Constitution they created and for which they advocated. It can just be decreed to be different by the President whenever national security demands it. Just ask John Yoo or Richard Posner or any Bush followers. That's what they'll tell you.

* * * * * *

At 2:20 pm EST today, I will be on the Ian Masters Show on KPFK 90.7 FM public radio in Los Angeles -- along with Marty Lederman -- to discuss the FISA and military commission issues. You can listen to the live audio feed here.

And more shrill, partisan lefty bloggers -- here and here -- respond to John Yoo by claiming that we ought to maintain the rule of law and Constitutional limits on government even though Islamofascist Nazis want to stage more terrorist attacks.

Arlen Specter is lying about his own bill -- again

In June, both the ACLU and The Washington Post's Walter Pincus reported that the FISA bill proposed by Arlen Specter would expressly immunize Bush officials from any legal consequences arising out of their illegal eavesdropping -- giving them what Pincus called "blanket amnesty" -- by retroactively legalizing warrantless eavesdropping going back to 1978. But that weekend, Specter went on CNN with Wolf Blitzer and categorically denied that his bill contained any such provision, stating:

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

At the time of Specter's denial on national television, there was no copy of his bill available online, so I actually wrote a post aggressively criticizing Pincus for his erroneous claim, because I assumed that Sen. Specter (due to self-interest, if for no other reason) would not go on national television and categorically deny that his bill contained what amounts to a Congressional pardon for the administration if it really did contain such a provision.

But once a copy of Specter's became available that week, it turned out that Specter's bill did contain the very blanket amnesty provision which he falsely denied on national television he was offering. As I wrote at the time, the Post and the ACLU were completely correct and Specter -- in order to make his bill seem less draconian than it really was -- simply lied about what his own bill said (that express amnesty provision was thereafter removed from the bill, though the effect of the current Specter bill might be the same).

In order to manipulate enactment of his FISA bill this week, Specter is lying again about his own bill. I have a high threshold for using the word "lie"; I try to avoid it whenever possible and use it only when there is no other accurate description for someone's conduct. That is the case here.

There are currently pending around the country various lawsuits against the Bush administration (and telecom companies) which allege that the President's NSA program is both unconstitutional and a violation of the criminal law. In one of them, the court (Judge Taylor's case) has already ruled that the program is unconstitutional and a violation of FISA. The Bush administration has been trying to get all of those cases transferred away from the various federal judges presiding over them and moved to the secret FISA court in Washington.

One of the criticisms which many people have made of Specter's FISA bill is that it grants the administration's wish by simply stripping these cases away from the judges currently deciding them -- several of whom have demonstrated hostility to the administration's claims (such as Judge Taylor in Michigan, Judge Walker in San Francisco, and Judge King in Oregon) -- and sticking them all behind a wall of secrecy in the FISA court (and then, after that, restricting appellate review and adding on new, possibly insurmountable hurdles for the plaintiffs to overcome).

I have repeatedly highlighted these court-stripping provision as one of the most objectionable aspects of the Specter bill -- here, for instance -- because it places judicial proceedings on these vital questions behind a secrecy wall (even the decision itself could be kept secret) and is also a blatant attempt by the administration to strip these federal judges of jurisdiction because they have shown that they will not just obediently accept any claims the administration makes.

On Thursday, though, Arlen Specter went to the floor of the Senate to defend his bill and he outright denied that his bill compels transfer of those cases to the FISA court. This is what he said (h/t EJ and Obijuan):

We will be moving ahead, I hope shortly, with the leader calling the bill to the floor so that we can make a determination on judicial review to see to it that whatever wiretapping is going on is judicially approved. It may be that some cases will come up collaterally. There are a number of cases in district courts. The one in Portland may have standing.

I do not propose, in my legislation, to strip any court of jurisdiction where a case has been started and has proceeded. I think, in the course of business, the matters ought to be referred to the FISA court, but not for any jurisdiction stripping where courts have proceeded.

That is just false - undeniably, unambiguously false. Here is the version of the Specter bill reported by the Judiciary Committee. Section 702(b) is entitled "Mandatory Transfer for Review," and this is what it says (emphasis added):

In any case before any court challenging the legality of classified information intelligence activity relating to a foreign threat, including an electronic surveillance program, or in which the legality of any such program or activity is in issue, if the Attorney General files an affidavit under oath that the case should be transferred to the Foreign Intelligence Court of Review because further proceedings in the originating court would harm the national security of the United States, the originating court shall transfer the case to the Foreign Intelligence Court of Review for further proceedings under this subsection.

Specter's bill mandates that "any case" challenging the legality of the NSA program be transferred to the FISA court, not only cases commenced in the future. The administration already filed a Motion (with the Multidistrict Litigation Panel) requesting that all NSA cases be consolidated in the FISA court a federal district court in the District of Columbia -- a move which deservedly backfired when that Panel denied the administration's request and, instead, ordered all such cases consolidated with Judge Walker in San Francisco, who was the first judge (of three) to reject the administration's claim that no court could review the legality of the NSA program because to do so would risk disclosure of "state secrets."

That's why it is so important to the administration to have all of these cases yanked away from these judges who have shown independence and a willingness to scrutinize the administration's claims. The Specter bill does exactly that, and Specter's denial that it does -- on the floor of the Senate -- is nothing more than a rank, indefensible falsehood.

And then there is the core dishonesty which lies at the heart of Specter's defense of his bill. In his Senate floor speech, Specter admitted that "there is no doubt that the President's program violates the Foreign Intelligence Surveillance Act, which purports to be exclusive." But ever since the bill was announced, Specter has been trying to depict his humiliating capitulation to the White House as some sort of victory, and to do so, he has continuously touted one perversely hilarious claim -- namely, that he extracted the oral commitment from the President to "consent" to having the NSA program "submitted" to the FISA court for judicial review. He made that same claim on Thursday on the Senate floor:

What I have sought to accomplish is to have this program reviewed; and the President has made a commitment, confirmed by the White House, that this program will be submitted for judicial review.

The level of ignorance and stupidity required to believe this is so extreme that it's actually offensive. In case Specter hasn't noticed, the NSA program is already "submitted for judicial review" -- in Michigan, San Francisco, Oregon and numerous other places. Specter's bill does not increase the likelihood of judicial review. It does the opposite -- it restricts what can be judicially adjudicated to the mere constitutionality of the program (as to opposed to the question of whether the President's lawbreaking was without a defense), and it makes judicial review more difficult in numerous ways.

The President's "consent" is completely irrelevant to having this program submitted for judicial review. In this country, courts can review the legality of the President's conduct with or without the President's "consent." Specter's claim that he won this "concession" from the President would be like him reaching an agreement with the President where the President agreed that from now on, decisions about how monies will be appropriated will be made by the Congress -- or Specter excitedly announcing that he forced to President to magnanimously agree that from now on, the President's nominees for the Supreme Court have to be approved by the Senate.

The President's warrantless eavesdropping is already submitted for judicial review -- neither Specter's bill nor the President's consent is required in any way for that, nor would it help that process along. It would do the very opposite, just as intended, by making judicial review infinitely more difficult and shrouding the whole process with a cloud of secrecy. Specter obviously knows what a complete travesty -- a total capitulation -- his bill is, which is why he feels the compulsion to so blatantly misrepresent its contents.

UPDATE: There is one slightly more technical but (at least) equally important false claim Specter keeps advancing. In his Senate speech, Specter said: "There has been a contention raised that there is an inconsistency between Senator Feinstein's bill, S. 3001, and my bill, S. 2453, and it is not true. The provision in Senator Feinstein's bill says that the FISA is the exclusive means for wiretapping. That is true, unless the statute is superseded by a constitutional provision."

That is exactly, appallingly wrong. The Specter bill is, in the most critical respect, the polar opposite of the Feinstein bill. The Feinstein bill purports to restrict the President's eavedropping powers by making clear that they can be exercised only within the FISA framework. By contrast, the Specter bill expressly states the opposite -- that it does not seek, in any way, to limit or restrict the President's eavesdropping powers. They are exact opposites on this most vital point. Compare Sec. 101 (a) of the Feinstein bill (FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted") with Sec. 801 of the Specter bill ("Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers").

Specter's claim that they are consistent is a by-product of his much-documented, continuous inability (or deliberate refusal) to understand one of the most critical and basic principles of constitutional law -- that the mere fact that the President has a particular power under the Constitution does not mean that Congress is unable to restrict or regulate that power. That is the whole point of Hamdan and Youngstown -- that where there is a conflict between a President's constitutional power (such as the right to try war detainees by military commissions) and Congressional restrictions on that power (such as a law requiring that all such military commissions comply with the laws of war), the President's power is subject to Congressional law.

Feinstein's bill deliberately creates that Youngstown/Hamdan conflict by requiring the President's eavesdropping powers (such as they are) be exercised only in compliance with FISA, whereas Specter's bill deliberately eliminates that conflict by specifying that there is no intent to regulate or restrict the President's eavesdropping powers in any way. Specter's belief (or claimed belief) that a President's constitutional power cannot be regulated by Congress is undebatably false. To say that the two bills are consistent requires either an embarrassing lack of understanding of this basic constitutional principle or a decision to purposely ignore that principle. I honestly don't know which it is, but whichever it is, Specter's central argument on the most crucial issue in this debate is just factually, demonstrably wrong.

The increasing extremism of Bush followers

(updated below)

(1) Even after being subjected to a relentless, month-long, 9/11-exploiting fearmongering campaign from the White House, a majority of Americans (50-43), according to the latest Pew poll, still believe that it is not "necessary to give up some civil liberties to curb terrorism." And the trend line demonstrates how solidly entrenched this view is among mainstream Americans:














As the chart reflects, opposition to sacrificing liberties in the name of terrorism is typically even higher when we're not bombarded with endless 9/11 pageantry accompanied by an election-driven tidal wave of dire warnings from the Government about The New Islamic Nazi existential threat (the poll was taken from September 6-10). Put another way, the minority in our country known as "Bush supporters" are eager to give more power over their lives to the Government due to their fear of terrorists, but most Americans are not.

(2) Like John Podhoretz before him, Charles Krauthammer in his column today announces that he now understands the President's words to mean that war with Iran is inevitable:

The next day, [President Bush] responded thus (as reported by Rich Lowry and Kate O'Beirne of National Review) to a question on Iran: "It's very important for the American people to see the president try to solve problems diplomatically before resorting to military force."

"Before" implies that the one follows the other. The signal is unmistakable. An aerial attack on Iran's nuclear facilities lies just beyond the horizon of diplomacy. With the crisis advancing and the moment of truth approaching, it is important to begin looking now with unflinching honesty at the military option.

Trying to show that he learned his lesson with Iraq, Krauthammer cursorily acknowledges that "the costs will be terrible," and then -- almost with a palpable yawn -- runs through what he thinks those "costs" will be: skyrocketing oil prices; a "worldwide recession"; an Iranian naval blockade of the Strait of Hormuz (which the U.S. Navy will have to break up, presumably in direct military confrontation with Iran's Navy); and a violent uprising by the Shiite militias in Iraq whereby Iraq will be further destabilized and (yawn) "many Iraqis and coalition soldiers are likely to die as well." Revealingly, Krauthammer makes no mention -- at all -- of the deaths of Iranian civilians when listing the "costs" which "we" will have to incur.

Among what Krauthammer calls "the lesser dangers" are the possibility that "Iran might activate terrorist cells around the world," and the likelihood that "there will be massive criticism of America from around the world" -- but only from the usual, irrelevant leftist European circles and the "Arab street." But needless to say, the costs of starting this new war are dwarfed by the costs of not starting the war, and after describing all the terrible things that are going to happen once Iran has nuclear weapons, Krauthammer declares, without explanation: "These are the questions. These are the calculations. The decision is no more than a year away."

Democrats really should make this a more prominent issue. The warmongering against Iran is boxing us into a corner where, as the President's most influential supports celebrate, war with Iran is all but inevitable [just as was true for Saddam "Hitler" Hussein, how can any diplomatic solution possibly satisfy those who say that Iranians are the New (and latest in a long, now-routine line of) crazed, genocidal Fascist Nazis who are beyond reason and can't be trusted?]. Krauthammer obviously thinks we just have to get past this annoying election and can then really settle in preparing for the new war. Do Americans want that new war? Democrats should be asking them.

(3) This CNN report vividly illustrates the outright detachment from reality which characterizes the people who have been -- and still are -- running our country. A Subcommittee of the House Intelligence Committee issued a report (.pdf) concerning Iran (adopted by the full Committee) which makes a claim that is supported by no credible evidence -- namely, that Iran "is currently enriching uranium to weapons grade."

The IAEA then sent a letter to the Committee pointing out that it is not in dispute that "Iran is far from that capability." When confronted with the fact that undisputed reality plainly contradicts the false claims in the Report, one of the leading Republican Committee members just blithely denied that the Report says what it says:

Rep. Mike Rogers, a Michigan Republican who sits on the Permanent Select Committee on Intelligence, which prepared the report, said the subcommittee's assertion is "very clear."

"It says that we don't believe that they've gotten there. But the point of that whole section is, they are trying to enrich uranium to weapons grade," he said.

The Report expressly claims that Iran "is currently enriching uranium to weapons grade" and it even purports to show a satellite photograph of how and where they are doing that (page 9: "Iran is currently enriching uranium to weapons grade using a 164-machine centrifuge cascade at this facility in Natanz"). But when confronted with the fact that this claim is false, they just insist that the Report doesn't say exactly what it says ("'It says that we don't believe that they've gotten there").

Worse, "the subcommittee's report also insinuates that the IAEA may be in cahoots with Tehran in covering up Iran's nuclear ambitions." The IAEA's letter, which CNN called "scathing," called that accusation "outrageous and dishonest."

We really are now a country run by people who, in order to justify more wars against countries which have not attacked us, will simply invent wholesale fiction about the countries they want to attack, and then smear as a Terrorist-ally anyone or anything (such as the IAEA) which points out that the claims are false. The debacle in Iraq has not deterred them in the slightest. Deceiving this country into new wars is now just standard operating procedure for them.

(4) It never ceases to amaze or appall when Bush followers who are furious at John McCain over his very occasional dissent from the Bush movement go from being curtly dismissive of the importance of his experience as a prisoner of war (even with regard to POW matters) to trying actively to use it against him, usually to repugnantly insinuate that his experience rendered him psychologically impaired and therefore without credibility. Here is Paul at Powerline, railing against "McCain and his entourage of terrorist rights advocates":

Sen. McCain's unwillingness or inability to see past his experiences as a prisioner (sic) of war in very different times under very different circumstances raises this question: Can the nation afford a President John McCain? (One might also ask whether, given his power and influence with respect these issues, the nation can afford a Senator McCain).

Relatedly, Tony Snow yesterday had to retract his statement calling Colin Powell "confused" all because Gen. Powell thinks the U.S. should continue to abide by the Geneva Conventions, and as part of that retraction, Snow oh-so-generously added: "I know that Colin Powell wants to beat the terrorists, too." They exploit terrorism for political gain so reflexively that accusations of being sympathetic to terrorists just comes pouring out of their character-smearing mouths even when the targets are individuals who have devoted their adult lives to service in the American military.

The spectacle of people like George Bush, Dick Cheney, John Boehner and Tony Snow, along with their wretched followers, sitting around day after day smearing Americans as being terrorist sympathizers -- or, even worse, anointing themselves with the power to oh-so-magnanimously clear them of those charges ("I know that Colin Powell wants to beat the terrorists, too") -- is becoming more disgusting by the day.

UPDATE:

(5) For the clearest and most definitive explanation of exactly what is being debated (and what is not being debated) with regard to the Guantanamo/Geneva Convention issues, see this superb post from Marty Lederman.

(6) Also at Balkinization, David Barron identifies yet another fundamental flaw in the Specter bill -- namely, that what Specter has touted as the grand concession he won from the White House (i.e., that the President "consented" to have the FISA court adjudicate the constitutionality (not the legality, just the constitutionality) of the NSA program) might be entirely illusory, since federal courts are prohibited from issuing "advisory opinions," i.e., ruling on an issue in the abstract, as opposed to issuing only those rulings which are necessary to resolve a specific and actual dispute (a "case or controversy") between parties. It is not certain that this would be an advisory ruling, since the Specter bill would consoldiate all cases before the FISA court where there are real parties with real disputes that have raised this issue, but it's certainly possible, as Barron suggests, that the FISA court would rule that it is being asked to issue an advisory ruling and therefore simply dismiss the entire matter.

The analytical problem here is that Specter's claimed agreement with the White House on this issue is entirely oral. We have no idea what the terms are. I've assumed, without knowing, that the White House agreed to waive all defenses to such a ruling (e.g., they would not claim that the "state secrets" doctrine bars such an adjudication), but the prohibition on the issuance of "advisory opinions" is a jurisdictional limitation on the court's authority (imposed by the Constitution), and therefore, it cannot be waived by any party.

To the contrary, courts have the obligation on their own to refuse to issue such rulings even if no party objects (indeed, even if every party consents) to the issuance of the ruling. Since the prohibition on such rulings is imposed by the Constitution, Congress would lack the power to direct the court to decide this question. For so many reasons, the concession which Specter "won" is completely meaningless (see, for instance, item (4) in this post). Barron has possibly identified yet another one, which, by itself, would be enough to render pointless and inconsequential the entire Specter-White House agreement to have the FISA court rule on the constitutionality of the NSA program.

Sen. Reid: The Specter bill will NOT be enacted. Period.

(updated below)

Sen. Harry Reid participated in a conference call with a dozen or so bloggers this afternoon. For the first question, I asked him about the Specter bill -- specifically, what the Democrats' strategy was for preventing its enactment (I wanted to wait until the second question but I couldn't contain myself).

Sen. Reid stated flatly and unequivocally -- and I'm paraphrasing -- that the Specter bill was not going anywhere, that it would not be enacted. I then asked him how he could be so certain about that -- specifically, I asked where the 51 votes against the Specter bill would come from in light of the support it enjoys from both the White House and at least some of the ostensibly "independent" Republicans, exacerbated by the fact that all 10 Republicans on the Judiciary Committee voted in favor of it yesterday (at least they voted in favor of sending it to the Senate floor).

In response, Sen. Reid explained that our system does not allow every bill to be enacted simply because a majority supports it, that Senate rules allow minority rights to be protected, clearly alluding to a filibuster. Indeed, as part of that vow, Sen. Reid specifically referenced the fact that in the Senate, one does not need 50%, but only 40%, to block the enactment of a bill. He explained that rule existed to protect minority rights. When I asked him expressly whether the Democrats are committed to filibustering the Specter bill if doing so is necessary to defeat it, he said he thought that would not be necessary, but repeated that they would make sure the Specter bill did not become law. He was unequivocal about that a second time.

There were numerous other questions on other topics, and Susie Madrak ended the call by underscoring the premise underlying most (if not all) of the questions posed to Sen. Reid, including mine -- namely, that the Democrats' greatest failing has been their failure to take real stands against the Bush administration and to convey to Americans that they are genuinely committed to fighting for their interests. She was appropriately insistent with that point, not allowing Sen. Reid to dismiss it away by claiming that he is sometimes accused of being too confrontational (it's probably true that he is, just like journalists are "sometimes" accused of being too hostile to the Bush administration, but they're both besides the point).

Sen. Reid is a former prosecutor who is one of those middle-of-the-road (politically), basically conservative (in the personality sense) Americans who has become truly alienated by the Bush administration. I have been on several calls with him and never once got the sense (as I have with many -- actually, most -- other Beltway Democrats) that he just spouts combative criticism of the administration because he thinks that's what angry, rambunctious bloggers want to hear. He really means it. He is disillusioned and angry about what has happened to our Government and to his country. I believe that is very genuine.

But that doesn't necessarily translate into Democratic Party resoluteness, although it has the potential to do so. And now, it should and must. Democrats can't just hope to run out the clock between now and November by sitting around passively hoping that Americans dislike Republicans enough to defeat them, or that Republicans don't manage to demonize Democrats sufficiently to stave off defeat. Democrats need to be viewed as presenting a clear alternative -- and the base of the party has to be energized -- both of which will come by obstructing the Bush administration's extremism and taking a stand.

If Sen. Reid's commitment that they will do what they have to do to prevent enactment of the Specter bill is a serious one -- and I believe it is -- that would be as potent an act as any.

* * * * * * *

As a reminder, I'll be on The Majority Report with Sam Seder tonight at 7:45 p.m. EDT (in about an hour) to discuss these matters. You can listen to the live audio feed at the link.

I should also add that before posting this, I asked two other bloggers who were on the call to review this post to ensure that they agreed that it accurately described what Sen. Reid said. They both did. One is so unaccustomed to hearing such a resolute commitment on an issue this important that it seemed prudent to be extra certain of its accuracy.

UPDATE: McJoan of Daily Kos, who was on the call, has a post up about Reid's comments. She argues that "given the already expressed bipartisan opposition to the Specter legislation in the Senate, it seems that a filibuster will be unnecessary."

That might be the case, and she makes a good argument (referring to the letter sent by 6 Senators, including 3 Republicans (Craig, Murkowski and Sununu), demanding that no vote be held on FISA until there are hearings on warrantless eavesdropping). But no GOP Senator has vowed to vote against the Specter bill if a vote is held (which, barring a filibuster, appears highly likely). But McJoan's broader argument is persuasive that there is clearly more Congressional resistance to the President's dictates.

Libertarians, Conservatives and Warrantless Eavesdropping

I find this so, so interesting and genuinely revealing. Back when he was still a "libertarian" -- a mere 5 years ago -- Glenn Reynolds was vigorously opposed to warrantless surveillance and even shared the view of Judge Anna Diggs Taylor that warrantless surveillance is unconstitutional. Via some excellent research from D-Day, please read and savor what Reynolds said on September 14, 2001 -- 3 days after the 9/11 attacks (emphasis added):

THE SENATE has approved a bill allowing warrantless taps of Internet traffic. This is one of those losses of freedom I was talking about. It may (and should) be ruled unconstitutional. But it shouldn't be passed at all.

Would this have prevented Tuesday's attacks? No, because we didn't know who to tap. Has the FBI wanted this for years anyway, under a variety of excuses (drug dealers, organized crime, kiddie porn, whatever the flavor of the week was)? Yes. Is this bureaucratic opportunism? Yes again.

If the bill can't be stopped, opponents in the House should insist on a sunset provision -- say in two years. If it hasn't proved its usefulness by then, it should be scrapped. But really, it should be scrapped now.

Amazingly, if you follow the link which Reynolds included, you will find that the legislation which so offended his libertarian sensibilities (the "Combating Terrorism Act of 2001") -- and which he said was unconstitutional (presumably on Fourth Amendment grounds) -- provided far, far less surveillance power to the President than the current Specter bill (or the President's NSA program), since all that bill provided was that "prosecutors could authorize surveillance for 48-hour periods without a judge's approval." And the surveillance allowed was restricted to a very narrow category of Internet usage data:

Warrantless surveillance appears to be limited to the addresses of websites visited, the names and addresses of e-mail correspondents, and so on, and is not intended to include the contents of communications. But the legislation would cover URLs, which include information such as what Web pages you're visiting and what terms you type in when visiting search engines.

So that bill -- co-sponsored by Sens. Hatch, Kyl and Feinstein -- merely provided for a 48-hour warrantless surveillance window on a limited amount of data. It did not even allow for surveillance of the content of communications. Yet, to the libertarian Reynolds, it was nonetheless a grave intrusion on liberties and a violation of the Constitutional rights of Americans.

How did Reynolds -- even 3 days after 9/11 (around the time he was saying things like: "Now, if [the President] wants to nuke Baghdad, there is nobody to say him nay -- and damned few who would want to") -- go from finding such limited surveillance powers to be so objectionable (and unconstitutional) to having no apparent problem at all with the full-scale warrantless surveillance which the President has been secretly engaging in for the last five years? [Note also that, back then, Reynolds recognized the obvious truth that warrantless surveillance would not have enabled us to stop the 9/11 attacks, but now never says anything about claims from the White House that the "Terrorist Surveillance Program" might have prevented 9/11].

Relatedly, Mark Steyn denies on his website -- in response to a reader e-mail he received --that he supports "Big Government" abridgments of liberty in order to fight terrorism (emphasis added):

ATTACK FROM THE LEFT FLANK

It seems Andrew Sullivan and some guy named Glen Greenwald are taking issue with your example of western weakness, but not actually taking issue with the theme itself. Greenwald puts forth an extremely intelligent and somehow completely backwards take on everything you were trying to say. It really is dizzying. It can be read here. Sullivan's response to your blurb about him here.

Since you've never been one to run from criticism, I'm looking forward to your response. Thanks and big fan here...as always...

Jake - Austin, Texas

MARK REPLIES: I’d respond if there were anything to respond to. But this guy Greenwald’s idea that I want to give away all our freedoms to a big state security apparatus is, as they say in Britain, bollocks on stilts.

I’ve been opposed to “Big Government” solutions to terrorism since the days after 9/11 and I’ve written a lot more on the total pointlessness of the TSA and the DHS and all the rest than either Greenwald or that ninny Sullivan, and did so again on my return from New Zealand, in both National Review and on the Rush show. I’m happy to defend my positions but Greenwald attributes to me views I’ve never held – though I’m fascinated to say these lefties are apparently in favor of Big Government solutions to everything except national security.

Giving the President the power to eavesdrop on American citizens in secret and without judicial oversight, as Steyn eagerly advocates, is exactly the sort of Big Government, extremely intrusive power which conservatives and right-leaning libertarians have always claimed to oppose above all else -- in Reynolds' case even after 9/11. Given that FISA already permits extraordinarily aggressive eavesdropping (which would become even more aggressive under Feinstein-Specter), there is no justification for self-professed conservatives and libertarians to favor warrantless eavesdropping. To know why that is, just go read what Reynolds said about warrantless surveillance.

It really is a sad spectacle to see how many ex-conservatives and libertarians have followed Reynolds' path of completely abdicating their belief system in order to become consumed by blind support even for this President's most authoritarian policies. Only 3 days after 9/11, Reynolds was aggressively protesting even temporary warrantless surveillance as both unnecessary and unconstitutional. Back then, he really did see it exactly how Judge Taylor sees it now.

Yet now, he never utters a peep in protest about the President's secret decision to spy on Americans without any warrants at all, nor does he utter a peep about pending legislation which is about to vest that power expressly in the President. Over the last five years, this creepy, mindless ethos has become predominant among so many Bush supporters whereby nothing is more important than vesting more power in the Executive and rejecting any claims that the Leader has exceeded or abused his power.

Weapons for stopping the Specter bill

Anyone who, over the past five years, has placed hopes in the Congress -- and especially the Senate -- to stand up to the President, particularly with regard to policies ostensibly justified by terrorism, has encountered one bitter disappointment after the next. It is difficult to find any period in American history burdened by a more impotent and submissive Congress.

For that reason, substantial skepticism has already arisen concerning the prospects for preventing enactment of the White House's Specter bill. Democrats (and GOP opponents of this bill) have real weapons to use in order to defeat it, if they are willing to shed their irrational, destructive fear of opposing this weak and unpopular President.

Given how well-positioned Democrats are to oppose this bill -- and, more importantly, given how vital it is that Democrats finally show the country that they can take a resolute stand on critical issues (like, say, the rule of law, and protecting Americans from presidential eavesdropping abuses) -- I began with the (admittedly optimistic) assumption that Democrats would be open to meaningful resistance to this bill. But then I read this NYT article this morning by Eric Lichtblau and Kate Zernike:

Democrats have allowed Republicans to fight among themselves over the [FISA and Guantanamo] issues, and appear willing to allow the issues to come to a vote rather than risk charges of political obstructionism in an election season . . . .

The administration had also faced resistance over the N.S.A. wiretapping program. The Democrats had bottled up the administration’s proposals, saying Congress was being forced to legislate “in the dark” about a secret program that few members had been briefed on. They have repeatedly used procedural maneuvers to block the proposals from coming to a vote in the Judiciary Committee, drawing accusations of obstructionism from Republicans.

But Democrats, who appeared to realize the risk of being accused of thwarting debate on national security matters, did not stand in the way of the committee vote on Wednesday.

Who knows if that's really an accurate reflection of the fears which are consuming Senate Democrats on FISA issues, but it certainly does sound like them (although my guess is that Judiciary Committee Democrats allowed a vote on the Specter bill only in exchange for the Committee's also sending the competing -- and far superior -- Feinstein-Specter bill to the full Senate for a vote). What does an opposition party do exactly if it doesn't "obstruct" a weak and unpopular President from shoving extremist legislation down the country's collective throat?

Whatever else is true, there are numerous potent weapons (substantively potent and politically potent) available to Democrats to defeat the Specter bill:

(1) To oppose the Specter bill, Democrats need not merely "obstruct," but can also advocate their own legislation which strengthens presidential eavesdropping powers. That's because, along with the heinous Specter bill, the Senate Judiciary Committee yesterday sent to the Senate floor a competing bill co-sponsored by Dianne Feinstein and Arlen Specter (the bill he co-sponsored before he capitulated to the White House). That bill [a copy is here (.pdf); my analysis of it is here] is something Senate Democrats can vigorously advocate, so that they are not merely "obstructing."

The whole point of the Feinstein-Specter bill is to strengthen eavesdropping. The Senate Judiciary Committee sat in one hearing after the next listening to critics of FISA complain that it was too restrictive and cumbersome in various ways, so this legislation fixes all of the alleged flaws in FISA (by, for instance, increasing the warrantless period from 72 hours to 7 days, streamlining the warrant process, allowing immediate warrantless eavesdropping without the AG's approval). At the same time, it prevents eavesdropping abuses by mandating that all eavesdropping continue to be conducted only with FISA court oversight, thus preventing secret presidential spying on Americans.

The Feinstein-Specter bill fixes every claimed problem that exists with FISA. It allows full-scale eavesdropping on terrorists. Thus, there is only one possible reason to oppose that bill -- namely, because what the President really wants is to eavesdrop on Americans in secret and with no judicial oversight. That is what the debate is about, not about whether the President can eavesdrop on terrorists. That is an easy argument to make, as Sen. Feinstein's own Release demonstrates, and as Sen. Leahy demonstrated with his defense of that legislation in David Stout's NYT article yesterday (Leahy: Feinstein-Specter bill "ensure(s) that the U.S. intelligence community can continue to operate and protect the nation with the necessary F.I.S.A. court oversight").

(2) There is genuine and substantial opposition to the Specter bill among many Congressional Republicans -- either because they want to show real opposition to this unpopular President for political reasons (can Democrats please take note of that fact) and/or because they genuinely oppose vesting in the President the unlimited power to eavesdrop on Americans. This morning's reasonably (and uncharacteristically) thorough article from The Post's Jonathan Weisman makes this important point:

In the House, the Judiciary Committee was forced to scrap a planned drafting of a warrantless surveillance bill, in part because nearly half a dozen Republican conservatives were in open rebellion against GOP leaders' efforts to weaken controls on the eavesdropping program.

"There are enough Republicans with concerns," said Rep. Jeff Flake (R-Ariz.), who was pushing bipartisan legislation that would all but scuttle the warrantless surveillance program. "Once you basically give the president this authority, it's very difficult to pull it back. That's very shortsighted just to point out the differences between Republicans and Democrats."

Additionally, just last week, three perfectly conservative Republican Senators (Craig, Murkowski, and Sununu) joined with three Senate Democrats (including conservative Democrat Ken Salazar) to announce their opposition (.pdf) to the Specter bill without first holding hearings to address serious objections they have.

Protecting Americans from unlimited spying by the Government is not a "liberal" position, but --- as polls have continuously shown -- appeals to a wide cross-section of Americans (FISA, after all, was approved in 1978 by a 95-1 vote in the Senate).

Republicans need to show that they are not rubber-stamps for the President's wish list. Democrats can and should work with the Republicans who are genuinely opposed to unlimited presidential eavesdropping, and simultaneously pressure those Republicans whose electoral chances depend upon standing up to the President. Recruiting and/or forcing Republicans to oppose the Specter bill will dilute the type of political attacks Democrats (irrationally) fear and, if successful enough, could even enable defeat of this bill by a majority vote, without the need for a filibuster.

(3) The complete lack of information about warrantless eavesdropping is an alternative ground for opposing the Specter bill, or at least (following the example of the letter from the 6 Senators) to force a delay in the vote until after November.

This is a critical and overlooked point. When the Senate Intelligence Committee in March disgracefully refused (by a party line vote, needless to say) to hold hearings in order to investigate the President's warrantless eavesdropping program, we were told that the Senate would nonetheless be exercising robust oversight as a result of a new Subcommittee that was formed (with 4 Republicans and 3 Democrats) which would have full briefings on how the NSA program works, including who has been eavesdropped on, how many people were eavesdropped on, how they were selected, etc.

As it turns out (oh-so-surprisingly), the administration has completely stonewalled even this Subcommittee, leaving them with virtually no knowledge at all about the NSA program that they are now being asked to legislatively approve. As Laura Rozen notes, even the normally meek and passive Jay Rockefeller (who is on the Subcommittee) has complained "that the Administration has not been able to document convincingly the benefits of the program" because:

“For the past six months, I have been requesting without success specific details about the program, including: how many terrorists have been identified; how many arrested; how many convicted; and how many terrorists have been deported or killed as a direct result of information obtained through the warrantless wiretapping program.

“I can assure you, not one person in Congress has the answers to these and many other fundamental questions,” Rockefeller stated emphatically.

Sen. Feinstein, who is also on the Subcommittee and has thus received those same briefings, has made a related point: "I have been briefed on the terrorist surveillance program, and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process."

How can Congress even consider voting on legislation regarding warrantless eavesdropping when the Bush administration has refused to fulfill its commitment to provide briefings even to the select Intelligence Subcommittee, and Congress thus knows virtually nothing about warrantless eavesdropping, how it has been used, and whether it is necessary?

(4) The absurdities of both the Specter bill and Specter's defense of it could fill a book, literally. But there is a new one that needs to be noted. When Specter announced his bill, he proclaimed that he won a huge concession because the President (as part of a side, oral deal, which is conditioned on there not being a single change to the bill) "consented" to having a court rule on whether his NSA program was unconstitutional. That claim was inane from the beginning, because we don't actually have a country where our political officials have to "consent" to have courts decide if their conduct is unconstitutional or otherwise illegal. The "rule of law" means that courts rule on the legality of the conduct of government officials even if they don't "consent" to such a ruling.

But now Specter's defense of his bill is even more clearly frivolous, since a court has now ruled -- without the President's consent (actually in the face of his explicit objections) -- that the NSA program is unconstitutional and, independently, is in violation of the criminal law. Nobody needs the President's "consent" to "allow" a court to rule on the program's legality because courts can rule and are ruling on whether the program is legal even without the President's permission. The Specter bill does nothing but give away power and authority to the President while getting nothing in exchange.

* * * * * *

I'll be on The Majority Report with Sam Seder tonight at 7:45 p.m. EDT to discuss these matters.

Also, there is a blogger conference call this afternoon with Sen. Harry Reid which I (and hopefully other bloggers) intend to use to press him on the need to stop the Specter bill by any means necessary. We'll see how serious Senate Democrats are soon enough. Stopping this bill is of incomparable importance and not nearly as difficult or politically "risky" as they likely think it is.

The Specter bill much closer to being enacted today

(updated below)

The Senate Judiciary Committee voted today on various proposals relating to the Specter FISA bill, as well as the other competing FISA bills pending before the Committee. This report from the AP's Laurie Kellman, published in The Washington Post, is completely unclear about what happened, but the gist of it seems to be this:

Senate Republicans blocked Democratic attempts to rein in President Bush's domestic wiretapping program Wednesday amid a sustained White House campaign to give the administration broad authority to monitor, interrogate and prosecute terrorism suspects.

While refusing to give the president a blank check to prosecute the war on terrorism, Republicans in the Senate Judiciary Committee kept to the White House's condition that a bill giving legal status to the surveillance program pass unamended.

By voice vote and roll calls, Republicans defeated Democratic amendments to insert a one-year expiration date into the bill and require the National Security Agency to report more often to Congress on the standards for its domestic surveillance program.

That report suggests that Democrats proffered a series of amendments designed to soften the Specter bill, but each was rejected by a 10-8 party line vote. I have no idea what Kellman means when she claims that Republicans are "refusing to give the president a blank check to prosecute the war on terrorism" (when haven't they done that?), and that phrase -- giving the president a blank check -- is really the best way to describe what the Specter bill does with regard to eavesdropping powers.

But today, I received this release from the ACLU which paints a somewhat different picture. It reports that the Specter bill -- along with both the DeWine bill and the Specter-Feinstein bill -- all passed the Senate Judiciary Committee by a 10-8 vote (the Specter and DeWine bills were passed by straight party line vote, while the Specter-Feinstein bill had the support of the 8 Democrats plus Sens. Specter and Lindsey Graham).

Those three bills are mutually exclusive, so one can presume (although the ACLU release doesn't say and the AP report makes no mention at all of those events) that the Committee decided to pass all three bills along to the Senate floor so the full Senate can decide what it will do.

JustAnObserver, who comments regularly here and over at Volokh, among other places, is one of the most knowledgeable commentators anywhere on these issues and he recently wrote this superb and highly informative summary in a comment here of the major features of all of the pending FISA bills. I have written about the Specter bill here and here and A.L wrote about it here; I wrote about the DeWine bill here and here, and the Specter-Feinstein bill here.

Given that the events of today are somewhat unclear and I am mostly surmising what happened, it seems as though the Judiciary Committee decided to pass on all three bills to the full Senate floor, rather than embrace the Specter bill in full, for this reason, reported by AP:

Specter, sponsor of one administration-backed bill, acknowledged that GOP lawmakers fighting for re-election may not embrace a measure bearing Bush's stamp of approval.

"It is popular to have bills that are not White House bills," Specter, R-Pa., told reporters recently.

Specter was referring specifically to the fact that a competing (and slightly more restrictive) FISA bill which was introduced by GOP Rep. Heather Wilson -- who is in a tough election fight in her closely divided New Mexico district -- has been endorsed by the GOP House leadership and is opposed by the White House. The House Intelligence Committee, on which Wilson sits, was scheduled to mark-up the Wilson bill today, but the AP reports that that session was cancelled for unknown reasons. Clearly, there is all sorts of intense White House lobbying going on and they are trying to finesse passage of the Specter bill as is.

From what I can discern, the Senate Judiciary Committee essentially passed on responsibility to the full Senate to save the Bush administration by enacting the Specter FISA bill, while simultaneously blocking Democratic efforts on the Committee to dilute the most offensive parts of the Specter bill. Democrats have been reluctant to pay much attention to the Specter bill, but the way in which it (a) abolishes all limits on the President's eavesdropping powers; (b) embraces the Bush administration's most radical executive power theories; and (c) virtually destroys the ability to obtain judicial review for the President's lawbreaking, renders it a bill that is at least as pernicious as anything else that is pending. It deserves full-scale attention and opposition.

UPDATE: This article from The New York Times doesn't add much information but it does confirm the explanation I provided above: "Indeed, the Judiciary Committee voted today to send other provisions to the Senate floor for debate, even though they are not wholly compatible with the Specter-White House agreement." The Times also says that "many Democrats are sure to try to derail or amend the measure when the Senate takes it up," but the only way to really put a stop to this travesty is with a filibuster (assuming, as is wise, that House Republicans cease being a real impediment).

Democrats should have no fear of that -- most polls show that Americans want limits and oversight on this administration, and it is not difficult finally to make the case that this debate is not about whether there will be aggressive eavesdropping on terrorists (since FISA, just like every other proposal, allows that), but whether the Bush administration will be able to eavesdrop on Americans in secret and with no judicial oversight, precisely the situation that brought us decades of severe eavesdropping abuses by presidents in both parties.

UPDATE II: As I've documented many times -- the most recent such documentation here -- the notion that Democratic opposition to warrantless eavesdropping will "help Republicans" is transparently false Rovian bravado that has been empirically disproven time and again. As I document here, the opposite is true -- most Americans oppose warrantless eavesdropping, and the throngs of Americans who have abandoned the President are not going to stream back to Republicans based on a non-existent desire to see the President have the power to eavesdrop on Americans with no oversight.

What we're fighting for in Iraq

During the last two weeks, the President has delivered a series of terrorism-related speeches (which are beyond partisan politics and have absolutely nothing to do with the upcoming elections) in which he identifies Iran as the prime enemy of America. And the administration's newly released National Strategy for Combating Terrorism claims that "Iran remains the most active state sponsor of international terrorism."

Apparently, the Government of Iraq which we fought to install and are still fighting to strengthen doesn't see it that way -- at all. The New York Sun reports:

Iraq's prime minister made his first official visit to Iran yesterday, asking Tehran to prevent Al Qaeda militants from slipping across the border to carry out attacks, an Iraqi official said. Iran's president promised to help Iraq establish security. . . .

Mr. Maliki, who lived in Iran during part of a long exile from Iraq during the rule of ousted leader Saddam Hussein, received a red-carpet reception at the presidential palace before talks with President Ahmadinejad.

Asked at a joint press conference following their talks about allegations that Iran was interfering in Iraq, Mr. Maliki said, "There is no obstacle in the way of implementing agreements between Iran and Iraq."

"All our assistance to the Iraqi people will be to establish complete security in this country," Mr. Ahmadinejad said, according to a state-run news agency report of the press conference. "Iran and Iraq enjoy historical relations. These relations go beyond from neighborly ties. Our relations will remain excellent," Mr. Ahmadinejad said.

What a nice gift we have delivered -- and continue to deliver -- to Iran:

The Iranian Preisdent, on his own site, yesterday celebrated the "excellent bilateral ties between the Iranian and Iraqi governments and nations." As Iran's news agency made clear (h/t Juan Cole), this was a true lovefest between the two countries, and the love was mutual:

Nuri al-Maliki described Iran as the good and great neighbor of Iraq and reiterated that there resides no impediment in the way of the implementation of the agreements signed with Iran.

"We have witnessed Iran's tolerance and preparedness and the agreements we have concluded in the different political, security and economic areas prove fruitfulness of our visit to Tehran," he stressed.

This is one of the most incoherent and baffling aspects of an extremely incoherent war -- even if our ongoing occupation of Iraq had any hope of stabilizing the Iraqi government, all we will have accomplished is ensuring that Iraq is run by a government whose primary allegiance is to the country which is, according to the Bush administration, our greatest enemy and the worst threat to world peace. We transformed Iraq from a steadfast enemy of Iran into a subservient colony. How could doing that even theoretically make us "safer"?

That was the question which Tim Russert posed to Dick Cheney this weekend -- what sense does this whole war make given that the Iraqi government is now so closely allied with Iran? -- and Cheney, after casually dismissing Iraq's alliance with Iran as nothing more than relations between "neighbors," then said:

But the fact of the matter is, you’re a lot better off today. You don’t have a government in Baghdad that’s pursuing weapons of mass destruction, you don’t have a government in Baghdad that is a state sponsor of terror. You don’t have a government in Baghdad that is doing all those things that Saddam Hussein did for so long. So we’re safer.

So, it's better that Iraq is now controlled by Iran because at least Saddam doesn't have his WMDs anymore to use as part of his close alliance with Al Qaeda. As Billmon has pointed out several times recently:

The bottom line, which an odd member of the punditburo might even reach one of these days, is that this is an administration that no longer makes any sense at all -- not even on the most formal, semiotic level. Shrub's speechwriters have literally been reduced to babbling, a relentlessly on-message babbling that shows just how ill suited the tools of domestic politics are for conducting a half-way serious foreign policy, much less an extremely serious war.

It's not just that this war is deceitful or destructive or immoral. The whole thing just makes no sense. The longer we stay, the more lives we lose, the more billions of dollars we squander, the best that we can hope for -- the best -- is to solidify Iran's control over this strategically vital country at exactly the time we have decided to decree Iran to be our worst enemy. Who could possibly defend that?

Banished U.S. citizens mysteriously permitted to return home (maybe)

The two American citizens who were banished from their own country by the Bush administration despite not having been charged with (let alone convicted of) any crime have now been magnanimously bequeathed permission to return home (maybe):

Two relatives of a Lodi man who was convicted of supporting terrorists have been cleared to return home from a long trip to Pakistan, ending a five-month standoff in which the U.S. citizens were told they had to cooperate with the FBI to get off the government's no-fly list, a federal law enforcement official said Tuesday.

"There's been a change," said the official, who spoke on condition of anonymity and would not detail the reason for the move, which was made by the U.S. Department of Homeland Security.

Lodi residents Muhammad Ismail, a 45-year-old naturalized citizen born in Pakistan, and his 18-year-old son, Jaber Ismail, who was born in the United States, were never charged with a crime. But they are the uncle and cousin of Hamid Hayat, 23, who was convicted in April of supporting terrorists by attending a Pakistani training camp and is awaiting sentencing.

The most striking aspect of this entire travesty was the sheer lawlessness of it. There was never any document issued to these citizens or their lawyers stating what the restrictions were or the basis for them. Instead, they were given multiple inconsistent explanations as to why they were barred from returning -- all delivered orally and informally by a shifting mix of airline security agents and representatives of the FBI. They were essentially trapped in some caricature of a Kafka nightmare where they were barred by unseen powers from returning to their country without any explanation as to what, if anything, they did to provoke that punishment and without being able even to know for certain who imposed the punishment.

There was even confusion all along as to what the punishment actually was -- i.e., whether they were barred entirely from entering the country or whether they were barred from flying into the U.S. (could they fly to Canada and enter by car? Could they travel to the U.S. by boat?). Roughly 10 days ago, I spoke with their lawyer, Julia Harumi Mass of the ACLU, and she had received informal indications that they were barred entirely from re-entry, not merely included on a no-fly list. But because this was all done so mysteriously and without any process of any kind, she could not even determine with any certainty what the actual punishment was, nor was there any way to find out.

The Good and Just Leaders who rule our country apparently decreed that these two subjects would be permitted to re-enter the kingdom after their lawyer, Mass, filed an administrative complaint with the Department of Homeland Security on their behalf. Even the way in which the punishment was (maybe) lifted is creepy and Kafkaesque -- "'There's been a change,' said the official, who spoke on condition of anonymity."

So, there's "been a change," notes an unseen government official in the passive voice, so there's no way to know who made "the change" or what "the change" even is. Whether Mass' complaint had anything to do with "the change" in this case is completely unclear. We have no basis for knowing why they imposed these restrictions in the first place or why they were rescinded or "changed."

And we don't need to know. All we need to know is that we are being Protected and that our Government Leaders are Good and Just and if they secretly and with no explanation ban our fellow citizens from the country, there is Good Reason for them having done that and we should feel nothing but gratitude as a result. We have no right to question or challenge their decisions in court because that would risk disclosure of critical "state secrets." Our Government Leaders can't have their decisions and actions subject to scrutiny by courts because they have an important War to wage. And we have no right to know what they are doing or why, even when it comes to actions they take against American citizens.

The only justification provided for the original banishment was this:

"They've been given the opportunity to meet with the FBI over there and answer a few questions," Scott said, "and they've declined to do that."

That explanation, however, is factually false, since both of the citizens did answer questions from the FBI during their banishment in Pakistan, but only refused to do so a second time as part of a polygraph test that was demanded of them. They refused to comply with that demand because their cousin was convicted of engaging in planning terrorist acts (and faces decades in a federal prison) based solely on the answers he gave during a single FBI interrogation that they claim was coercive. As a result, the last thing these two Americans wanted to do was submit to a similar interrogation for a second time, in Pakistan where they had no counsel, as part of a polygraph test they have no obligation to take (and a constitutional right not to take).

Worse than being factually false, the explanation given by the Bush administration is also completely outrageous, since the Government so plainly has no authority to compel U.S. citizens to answer questions in a law enforcement investigation as a precondition to re-entering the country. See e.g., the plain and clear language of the Fifth Amendment, specifically the part about how no person "shall [a] be compelled in any criminal case to be a witness against himself, nor [b] be deprived of life, liberty, or property, without due process of law." The Bush administration managed the feat of violating those two core Fifth Amendment guarantees with one secret, lawless action that has no basis in any recognizable authority of any kind.

The Bush administration also refused, needless to say, to explain "the change" in this case, except to say this:

Joanna Gonzalez, a Homeland Security spokeswoman, said the agency's Office for Civil Rights and Civil Liberties "did some research on the case and did make appropriate changes." She would not say what the changes were.

That's another way of saying that there was never any legal authority in the first place to deny American citizens who were not charged with any crime the right to enter their own country. But the Bush administration did it anyway, in the most secretive, authoritarian way possible - by unilaterally decreeing a secret punishment that could not be seen, read, understood or meaningfully challenged. Even now, they refuse to clarify whether there are remaining restrictions and, if so, what those restrictions are (Gonzalez "would not say what the changes were" and Mass "said the two received a letter from Homeland Security last week stating that their records had been 'modified to address any delay or denial of boarding.' The letter, though, did not make clear whether they could fly").

All they can do is try to return home to their country and hope that unspecified, unseen officials in the Bush administration deign to grant them permission to re-enter. There's no law or authority for their banishment, just the President's unchecked, unrestrained will that they be banished, which, as we have seen in many other contexts, is now the primary source of authority for how our Government functions.

Rich Lowry, Serious Foreign Policy Expert, announces his serious plan for victory in Iraq

(updated below)

One of the most depressing aspects of the Iraq debate is to watch the self-styled "experts" who advocated this war, such as National Review Editor (and Sean Hannity substitute) Rich Lowry, thrashing around, constantly grasping for new excuses as to why their war is failing, desperate to embrace any explanation at all other than the only true one sitting right in front of their faces -- that the invasion was a bad idea from the beginning, that it was premised on false assumptions, that war advocates were wrong about everything they predicted would happen, and the ongoing occupation has produced incalculable disaster along with virtually no good.

Today, Lowry was given a platform on the Op-Ed page of The Washington Post to outline for us (along with co-author Bill Kristol) the easy, obvious way we can win the war in Iraq -- and, in doing so, said the opposite of everything he has been saying for the last three years:

Rich Lowry (with Bill Kristol), today in The Washington Post:

We are at a crucial moment in Iraq. Supporters of the war, like us, have in the past differed over tactics. But at this urgent pass, there can be no doubt that we need to stop the downward slide in Iraq by securing Baghdad.

There is no mystery as to what can make the crucial difference in the battle of Baghdad: American troops. . . . The bottom line is this: More U.S. troops in Iraq would improve our chances of winning a decisive battle at a decisive moment. This means the ability to succeed in Iraq is, to some significant degree, within our control. The president should therefore order a substantial surge in overall troop levels in Iraq, with the additional forces focused on securing Baghdad.

Rich Lowry, National Review, April 14, 2006 -- just 5 months ago

You hardly qualify as a retired general these days unless you have written an op-ed piece demanding Secretary of Defense Donald Rumsfeld's resignation. One of Rummy's alleged sins was not providing enough troops to secure postwar Iraq. The debate over troop levels will rage for years; it is both characteristically American and somewhat beside the point.

Obviously, if we had it to do over again, we would send more troops in the hopes that sheer numbers would head off our problems. But to think that higher troop levels would have been a magic bullet is to indulge a very American faith in the power of mass to overcome anything. In Iraq, we have faced a delicate political and cultural problem that requires finesse above all — finesse dependent on a fine-tuned understanding of an alien society.

So, in just five short months in Rich Lowry World, we went from "The debate over troop levels" is "somewhat beside the point" and "to think that higher troop levels would have been a magic bullet is to indulge a very American faith in the power of mass to overcome anything" to "There is no mystery as to what can make the crucial difference in the battle of Baghdad: American troops" and "The bottom line is this: More U.S. troops in Iraq would improve our chances of winning a decisive battle at a decisive moment." It's not just profoundly wrong; it's worse than that. It's ludicrous.

All along, over the past several years, Lowry has been insisting that troop levels don't matter, that we have a sufficient force to get the job done in Iraq, and that we are winning, winning, winning. This is the same Foreign Policy Expert Rich Lowry who, following the example of the Commander-in-Chief's aircraft carrier victory dance, boldly announced in the May 9, 2005 issue of National Review: "It is time to say it unequivocally: We are winning in Iraq" -- an article which prompted this embarrassing NR cover (a cover which, as TBogg notes, competes with "Dewey Wins" for humiliating headlines of historic proportions). In that same article, Lowry announced:

If current trends continue, our counter-insurgent campaign in Iraq will be fit to be mentioned in the same breath as the British victory over a Communist insurgency in Malaysia in the 1950s, a textbook example of this form of war. . . . The basic approach of the Pentagon to the insurgency was right from the beginning.

"The strategy was always political as well as military," says a Pentagon official. A counterinsurgency is never about simply killing enemy fighters the way it is — or at least seems — on a conventional battlefield. Insurgents have an endless capacity to replicate themselves, unless political conditions are created that drain them of support.

Back then -- just a year ago -- we were "winning" because the Pentagon brilliantly realized that you can't defeat an insurgency by increasing troop levels. Today, we would be "winning" if only we would increase our troop levels. It's like an Abbott and Costello routine, but that is what passes for serious foreign policy analysis in our national dialogue.

As always, abject, endless error is accompanied in people like Lowry with a grotesque mix of smugness and bravado. Just last week, Lowry donned his tough-guy warrior mask and trotted out all of the cliches: "On Iraq, the Democrats are the party of defeat." He complained that "The Democrats don’t offer stirring rhetoric about the need for victory and for stalwartness in the face of setbacks, but instead a dreary recitation of mistakes in the war leavened with little hope or positive policy proposals."

Those dreary, un-fun Democrats. They keep pointing out the deceit and errors which brought us into this unparalleled strategic disaster in Iraq -- so that we don't make the same mistakes by listening to the same people -- when they should instead just "offer stirring rhetoric about the need for victory and for stalwartness in the face of setbacks." But all Lowry ever does is "offer stirring rhetoric about the need for victory and for stalwartness in the face of setbacks," and, in case he hasn't noticed, it doesn't help. It's equally meaningless and misleading. Here is what Lowry said on December 16, 2005:

This is why Democratic calls for retreat are so politically perilous, and so senseless, when Iraq might be on the cusp of a turning. What a fine irony it would be if after denouncing President Bush for being out of touch with Iraqi reality, Democrats were even more so, right at the moment they began to be true to themselves.

To Lowry, we're always on the cusp of winning. It's always -- as he announced today -- the "crucial moment." The "decisive battle at a decisive moment." Everything is always going really swell in Iraq. And all we need for it to get even better, to get to the finish line, is some more Churchillian "stirring rhetoric about the need for victory and for stalwartness in the face of setbacks." Anyone serious can see that that's all we need.

And war critics have been so annoying, so unfair -- above all, so unserious -- because they have been drearily pointing out the reality that things actually aren't going very well in Iraq and that more "stirring rhetoric" is unlikely to change that. That's what leads Lowry to say things like this:

What is legitimately in question is whether Democrats can be trusted on national security.

Just go read a few Rich Lowry columns about Iraq over the last few years -- just pick some randomly -- and then ask yourself if there is anyone you would trust less on national security; ask whether, short of being Bill Kristol, it would be possible to have been more wrong about everything. Virtually every one of his Iraq columns are filled with bitter mockery of those who were right, along with pompous predictions about what would happen which were plainly grounded in a world composed in equal parts of adolescent fantasy and rank ignorance.

But as always with Iraq and terrorism debates, being endlessly wrong is a sign of profound seriousness, and cheering on wars -- no matter how misguided and misinformed the cheering is -- renders one a serious foreign policy expert who recognizes the serious threats we face in these very serious times. That's why, when The Washington Post wants to find someone to counsel us on its Op-Ed page as to what to do in Iraq, it turns to two of the Wrongest People in America.

If we had determined our Iraq policy over the last three years by picking proposals out of a hat, we would have been way more right than we were by listening to Bill Kristol and Rich Lowry. But they favor wars and more wars and put on a grave, serious face when they talk about The Terrorists, so they are Serious Foreign Policy Experts and need to be listened to.

UPDATE: As A.L. notes, there is a real question -- at least according to Gen. Barry McCaffrey -- as to whether we would even have the troops available to increase our troop levels by any meaningful amount in Iraq. Gen. McCaffrey flatly says that "they're not available."

As I've explained before, I do not agree that someone who advocates a war has an obligation to fight in that war, nor do I think there is anything per se improper about advocating a war without having served (most Americans favored the war in Afghanistan and the first Iraq war). But if one advocates, as Lowry does, sending more troops to a war where there is a troop shortage, and if, as is true for Lowry, one is of an age eligible to fight in combat, doesn't that at least give rise to an obligation for the increased-troop advocate to explain why he won't make the sacrifices for his own policy by becoming one of the reinforcing troops?

More generally, is it ever legitimate to ask what sacrifices war advocates are making on behalf of the wars they advocate? Scott Lemieux asks a related question about Lowry.

John Yoo summarizes the last 5 years in two short sentences

Bob Egelko has an interesting article in The San Francisco Chronicle today examining how U.S. law has changed over the last five years as a result of the 9/11 attack. He includes this truly revealing quote from John Yoo:

UC Berkeley law Professor John Yoo, who as a Justice Department lawyer was one of the Bush administration's chief legal theorists, summarized its view in his forthcoming book, "War by Other Means":

"We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.''

Actually, I'm pretty sure that it's always the case in America (or at least it used to be) that "Congress enacts the laws, the president enforces them, and the courts interpret them." That's pretty fundamental to how our country works. In fact, the whole structure of the Constitution is based on that system -- not just the "Peacetime Constitution" we have, but the actual Constitution itself.

The Constitution is actually pretty clear on that score. Article I says "All legislative Powers herein granted shall be vested in a Congress of the United States" -- Article II says the President "shall take Care that the Laws be faithfully executed" -- Article III says "the judicial Power of the United States, shall be vested in one supreme Court, and in . . . inferior Courts." That arrangement isn't really a side detail or something that shifts based on circumstance. It's pretty fundamental to the whole system. In fact, if you change that formula, it isn't really the American system of government anymore.

Someone who says that it's only sometimes true in America that "Congress enacts the laws, the president enforces them, and the courts interpret them" is someone who doesn't understand how the country works. There is really no other way to put it. But Yoo -- as he candidly admits -- doesn't think that's how it should work, and, thanks in no small part to him, that isn't how it has been working ever since 9/11. To use Yoo's formulation, if we were to simply return to a "system in which Congress enacts the laws, the president enforces them, and the courts interpret them," that would go a long way to alleviating many of this country's most pressing political problems.

More on Disney's highly selective PT911 marketing campaign

(updated below)

Alan Colmes is the co-host of one of the highest-rated television cable news shows in the country. He is also, according to Talkers Magazine, the sole host of one of the most listened-to radio talk shows in the country, with an audience in excess of 1 million listeners. He has access on a daily basis to millions of Americans who are interested in political matters.

If you were a publicist for that film trying to generate "buzz" for it, there are few people whom you'd rather have screen the film than Colmes -- assuming, that is, that you didn't have an agenda of trying to ensure that no Bush critics viewed the film. Following up on my post this weekend about the bizarrely selective marketing campaign for Path to 9/11, I asked Colmes this morning by e-mail if he received a screener of Path to 9/11. Here is what he said:

No, I did not receive an advance copy of the ABC show at any time.

What an odd oversight. Hugh Hewitt (who has no television show and whose radio audience is smaller than Colmes') received a copy, as he has been reminding us on a daily basis for that last two weeks. Even Bill Handel, a local radio host (who coincidentally happens to be a worshipful supporter of the Bush "war on terror" at a neoconservative radio station) who did not even request a copy and evinced no interest in viewing it, nonetheless recieved a screener. Yet Colmes did not. I wonder what accounts for that discrepancy. What possible marketing strategy might explain that?

According to Talkers, Air America's Randi Rhodes has roughly the same audience size as Colmes for her radio show, which is also more than Hewitt's. Did Rhodes get a screener? Why would Disney send screeners to Hugh Hewitt and even Bill Handel but not Alan Colmes?

UPDATE: John Amato confirms that Air America's Al Franken also received nothing from ABC. Additionally, Amato -- who has one of the largest political blogs on the Internet -- attempted to have a screener sent to him but was continuously given the run-around and never received one, just as was the case for other large liberal blogs.

Mark Levin's America

Writing on National Review, Mark Levin quotes at length from this Washington Post article -- which reports that numerous CIA officers have taken out insurance policies because they fear being sued for war crimes violations (which are felonies under federal law) as a result of their involvement in torture and secret prisons. The article describes the Bush administration's legislative proposals to provide retroactive immunity to anyone who engaged in war crimes, a proposal opposed by Democrats as well as a handful of Republican Senators (McCain, Warner, Graham).

In response to all of this, Levin writes:

If we get attacked again, we know who to blame. Not the administration, which has worked overtime to defend the homeland, but the lawyers, courts, and members of Congress who are responsible for disastrous policies that lead to situations like this — counterterrorism officials having to purchase insurance against lawsuits by, among others, terrorists.

This debate over torture and gulags and lawlessness is really crystallizing the fundamental corruption in the belief system of Bush supporters. People like Levin think that America can "defeat terrorism" only by torturing people, operating secret, lawless Eastern Europe gulags, and generally ignoring our own laws. Therefore, anyone opposed to torture and lawbreaking is an enemy in the War on Terror -- they (not the terrorists, not even the party that controls our entire government) will be the ones "to blame" if we get attacked again.

Put another way, Levin thinks that America can "win the war on terror" only by fundamentally relinquishing virtually every national value that we have and degrading our national character. We didn't need gulags and torture and lawless detentions and presidential lawbreaking in order to defeat communism or any other external threat the country faced. But Levin doesn't believe in any of those principles or traditions. He is so consumed with rage and fear and a desire to destroy that he wants no limits on how we conduct ourselves and the policies we embrace.

What matters is indiscriminate slaughter and brutality for its own sake and anything that gets in the way of that -- including our core principles and national values and even the notion of living under the rule of law and in accordance with the most minimal precepts of a civilized society -- is to be scorned. Those who actually believe that this country ought to battle terrorism while maintaining our values and avoiding a descent into barbarism are, says Levin, the ones who will be to blame for the next terrorist attack. Those who want America to remain distinguishable from Al Qaeda and to live under the rule of law are, as Powerline calls even the Republican torture opponents, part of the "terrorist rights wing."

Mark Levin doesn't blame Al Qaeda for terrorists attacks. He literally blames America. He thinks that the values which define what America is and the principles Americans have fought for are exactly those things we need to wage war upon and eliminate. And he thinks that anyone who believes in those principles and defends them are the real enemies, the ones who will be to blame for future terrorist attacks. "Radicals" are those who want to overthrow the existing order of things and replace it with a fundamentally different value system. That is what Mark Levin and his allies are -- pure radicals who do not believe in this country and who want to transform it into an authoritarian state, permanently at war, using the defining tools of tyrants (torture, gulags and lawlessness).

That is what most of these terrorism-related debates are about, and it is especially what this current torture/Guantanamo debate will determine -- whether we want to be the country we have always aspired to be and which adheres to the values and principles which we have advocated, or whether we want to fundamentally change the country we are by pursuing Mark Levin's decadent, depraved vision of a country that abducts, detains, interrogates, executes, and slaughters without constraints, limits or law. Americans have always attempted to defeat enemies while adhering to -- rather than abolishing -- our core principles. That is exactly what Mark Levin and his allies oppose.

Fighting to make Iran and Al Qaeda stronger

Dick Cheney bravely ventured outside of the green media zone yesterday and gave an hour-long interview to Tim Russert on Meet the Press -- a rare trip for the Vice President, whose "interviews" are typically conducted within the protected confines of Fox News and Rush Limbaugh.

Shockingly, Russert dispensed with giddy banter and solemn reverence and instead was actually adversarial in his questioning, even confrontational, thus reminding us of what our country has largely (and destructively) lacked over the last five years -- national journalists performing their most basic function. Russert is among the most guilty in that regard -- and perhaps it takes one of the most unpopular political figures of our generation, defending a war that most of the country has turned against -- but yesterday, at least, Russert asked real questions and challenged the Vice President's evasive and misleading answers.

Literally, virtually every exchange illustrates the hard-core, deliberate deceit which has driven this war -- the Vice President's capacity to insist on obvious falsehoods without blinking is unparalleled even for this administration, which is really saying something -- but I think this exchange is the most significant in terms of underscoring the core incoherence and real danger to the U.S. posed by the invasion of Iraq:

MR. RUSSERT: Have we, have we created a fundamentalist Islamic regime in Iraq?

VICE PRES. CHENEY: No.

MR. RUSSERT: The prime minister of Iraq is going where tomorrow? Iran.

VICE PRES. CHENEY: Mm-hmm. It’s a neighbor.

MR. RUSSERT: If, if you go to southern [Iraq], Richard Engel, our correspondent, has been there for three years, they answer the phone in the hotels in Persian. Iran has built an airport in Najaf. They built a railroad in Najaf in Iraq. Who has more influence with Iraq? Iran or the U.S.?

VICE PRES. CHENEY: Well, I think the U.S. does today, but there’s no question but what the new government of Iraq has to get along with its neighbors. It also visits the Saudis. It also has had sessions with the other governments in the region. Their people need to work with the Turks, with the Syrians, with the Jordanians and with others. We have encouraged the states in the region to come together to help the new government in Iraq. It is a Shia government, no question about it. They’ve got close ties. Iran was the place where most of the leadership took refuge during the period of time when Saddam Hussein was in power, because it was the only place they could go.

But the fact of the matter is, you’re a lot better off today. You don’t have a government in Baghdad that’s pursuing weapons of mass destruction, you don’t have a government in Baghdad that is a state sponsor of terror. You don’t have a government in Baghdad that is doing all those things that Saddam Hussein did for so long. So we’re safer.

MR. RUSSERT: But you’ve also lost—you’ve also lost a buffer to Iran, and that’s what I’m going to come back and talk about, if I could.

VICE PRES. CHENEY: Mm-hmm.

At this point, that is the most incomprehensible and just tragically stupid aspect of this war. Just last week -- last week -- the administration's newly released National Strategy for Combating Terrorism claimed that "Iran remains the most active state sponsor of international terrorism." But the government in Iraq which we are struggling and fighting to stabilize and strengthen is already one that has -- to use the Vice President's own words -- "close ties" to Iran, our arch enemy. And those ties with Iran are obviously only going to strengthen if and when we ever reduce our presence there, let alone if we ever leave ("'Who has more influence with Iraq? Iran or the U.S.?' VICE PRES. CHENEY: Well, I think the U.S. does today'").

That means that we are essentially fighting for Iran. And the longer we stay and the more we fight and drain all of our resources in order to stabilize the Iraqi Government, the more we do to promote the interests of the country which the administration says is the greatest threat to American interests. Every time the administration or its supporters talk about the dangers posed by Iran, Democrats ought to immediately point out that nothing has strengthened Iran more than our invasion of Iraq, which has replaced a regime that was hostile to Iran with one that is subservient to it.

It's actually unfathomable -- for a country to fight a protracted and bloody war where the sole beneficiary is that country's worst enemy, where the principal result is to depose a government that was extremely hostile to that enemy and replace it with a government that is extremely sympathetic to -- actually controlled by -- that enemy. Without hyperbole, it is difficult to imagine anything more disastrous and counter-productive to American national security.

It may not be entirely accurate to say that Iran is the sole beneficiary of our invasion of Iraq, since there may be another one. As Thomas Ricks reports today in the Washington Post:

The chief of intelligence for the Marine Corps in Iraq recently filed an unusual secret report concluding that the prospects for securing that country's western Anbar province are dim and that there is almost nothing the U.S. military can do to improve the political and social situation there, said several military officers and intelligence officials familiar with its contents. . . .

One Army officer summarized it as arguing that in Anbar province, "We haven't been defeated militarily but we have been defeated politically -- and that's where wars are won and lost." . . .

Devlin reports that there are no functioning Iraqi government institutions in Anbar, leaving a vacuum that has been filled by the insurgent group al-Qaeda in Iraq, which has become the province's most significant political force, said the Army officer, who has read the report.

Al Qaeda thrives where there is anarchy and chaos, and by transforming Iraq into a cauldron of chaos -- which our own military says, at least with respect to some parts of that country, "there is almost nothing the U.S. military can do to improve the political and social situation there" -- we have transformed Iraq from a place where Al Qaeda could not operate into one where they are the most dominant force.

Democrats should not be afraid of having the administration focus on the terrorist threat as much as possible -- to the contrary, Democrats should be doing that -- because the administration's signature policy (the invasion of Iraq) has been uniquely beneficial to Al Qaeda on so many levels, by draining away of our resources, creating an invaluable recruitment tool, increasing anti-American resentment throughout the region, forcing us to neglect Afghanistan and Osama bin Laden, and creating a vaccum for Al Qeada to fill in Iraq.

Put another way, the two largest beneficiaries of this war -- arguably the only two -- are our two greatest enemies, Iran and Al Qaeda. And when confronted with those facts, the only thing the Vice President does is recite outright fantasy:

You don’t have a government in Baghdad that’s pursuing weapons of mass destruction, you don’t have a government in Baghdad that is a state sponsor of terror. You don’t have a government in Baghdad that is doing all those things that Saddam Hussein did for so long. So we’re safer.

The country which the President says is the greatest threat to world peace now controls much of Iraq. Al Qaeda controls other parts. But the Vice President tells us that we are nonetheless "safer" as a result of the war because of all those WMDs which Saddam was developing and all of that work he was doing with Al Qaeda has been eliminated. In other words, the most powerful official in our government spouts and/or believes pure fiction -- fantasy -- when it comes to the most dangerous and volatile situation our country faces.

That's not just non-serious. It is actually disturbed -- to wave away the incalculable disaster we created by telling us things are good because we got rid of Saddam's WMDs and made sure he no longer works with Al Qaeda. There is simply no greater priority than preventing this mindset -- which grows more deranged by the day -- from being able to operate for the next two years with a free hand.

Government pressure on networks is a tactic pioneered by the GOP

(updated below)

Bush supporters have spent the last several days expressing all sorts of shock and outrage that Democratic Senators would write to Disney to protest Path to 9/11 and insinuate that Disney's decision to allow ABC to be used as a partisan propaganda channel is inconsistent with Disney's obligations which are intrinsic to its right to use the public airways. Hugh Hewitt, for instance, proclaimed that Democrats have "reached a new basement," and solemnly frets that he "didn't think such a reprehensible action was possible in the era of robust First Amendment protections."

Perhaps the Democrats who sent the letter were following the example set by Republican Congressman Eric Cantor of Virginia, who wrote a substantively indistinguishable letter (.pdf) on October 23, 2003 to CBS Chairman Les Moonves -- on his official Congressional letterhead -- demanding that the script of The Reagans meet his approval (emphasis added):

Based on initial media reports, I have serious concerns about "The Reagans" . . . I want to be assured that it is not, as the New York Times reported yesterday, "deconstruction of Reagan's presidency shot through a liberal lens, exaggerating his foibles and giving short shrift to his accomplishments" . . .

CBS, as one of the most watched and respected American television networks, has a duty to its audience, sponsors and history to create an accurate and fair biography of the Reagans. . . .

As the President and CEO, you are responsible for the message promoted by CBS through the programs it airs. I hope that the final cut of "The Reagans" is an accurate and fair portrayal of an immensely popular and important presidency. I look forward to your response on this urgent issue.

And, of course, Republican efforts to demand that CBS cancel -- not change or alter, but cancel -- The Reagans was led not by private citizen groups or concerned bloggers, but by Ed Gillespie, in his official capacity as the Chairman of the Republican National Committee, at a time when that party controlled the entire executive branch and both houses of Congress. Gillespie filed a complaint with CBS officially on behalf of the RNC, and then went all over television objecting to the content of CBS' broadcast.

Objections directed to CBS came from this Republican Congressman and the RNC at exactly the time when CBS' parent company, Viacom, had critical matters pending before both the Republican-controlled Congress and executive agencies such as the FCC:

Moonves's no-go decision comes as CBS and its parent Viacom are fighting congressional legislation that would reverse newly relaxed FCC limits on national TV ownership. If CBS loses, the company would be forced to sell a couple of TV stations it very much wants to keep. The company also owes no small amount of gratitude to the FCC for last week's approval of a DTV antipiracy measure.

Even the Fox News story included the obvious observation:

Showtime and CBS are both owned by Viacom, which is anxiously awaiting federal action on rules to restrict ownership of local TV stations. Failure to enact such changes could cost Viacom millions of dollars, said Jeff Chester, head of the Center for Digital Democracy, a communications lobbying group.

Viacom needs help from Republicans in the White House and Congress who might not like seeing Reagan portrayed negatively, Chester said. "They made a business decision," he said. "In doing so, they clearly caved in to the political pressure."It's not likely CBS faced much pressure from advertisers, said Brad Adgate, analyst for the ad-buying firm Horizon Media. Some advertisers might have been scared by the controversy, but many would have been attracted by the prospect of big ratings, he said.

Does one really need to wonder whether CBS understood the intended impact of the message from a Republican Congressman and the Chairman of the political party on whose fortunes it depended? As Broadcasting & Cable put it:

The attacks from political leaders, including Republican National Committee Chairman Ed Gillespie, caused many to question whether CBS faced an implied threat of government retribution unless it axed the show. If so, such a cave-in carries troubling implications for programmers hoping to air controversial takes on highly charged political issues.

Once they capitulated, Viacom was duly patted on the head by Rep. Cantor, as USA Today reported:

Conservatives hailed the success of furious lobbying led by Republican Party chairman Ed Gillespie. "This reminds us all that the American people have a strong voice in deciding what is fair and appropriate," Rep. Eric Cantor, R-Va., said.

The rationale which Democrats are using now -- that networks hold a public trust which imposes a particular obligation to be netural -- is exactly the rationale Moonves used at the time to explain CBS's decision to transfer The Reagans to Showtime:

As a broadcast network, we feel [CBS is] a public trust," the New Haven Register reported Moonves telling Yale students last Wednesday. "We have a news division. We have to be fair in what we show, and a pay-cable network can be a little more biased in what they show. It can be an opinion piece. We can't do that.

Personally, I am not in favor of -- in fact, I strongly oppose -- Democratic political officials threatening ABC (although, as Greg Sargent points out, it is hardly clear, to put it mildly, that they did so in that letter). I think pressure on and protests against ABC over this mini-series ought to come from the public, not from the government or political officials.

But Republicans are in no position to voice that complaint or to pretend that they oppose government pressure on a television network with regard to the political content of broadcasting, given that their successful effort to force CBS to cancel The Reagans was led by the Chairman of the Republican Party and by a Republican Congressman -- not when, as is the case now for Democrats, they were in the minority, but instead, when they controlled the entire federal government (as they still do).

UPDATE: This radio interview from Friday of Ed Gillespie by Mike Gallagher is hilarious and illustrates the point perfectly. Gallagher continuously expresses outrage over what he calls Democratic efforts to "censor" ABC, and he keeps trying to get Gillespie to join with him in his righteous condemnation. But Gillespie, who was on the show in order to promote his new book, can't do so, because he exerted exactly that pressure on CBS when he was the RNC Chairman. Gillespie keeps trying to change the subject by spouting RNC talking points about Democrats' "weakness in the War on Terror," but Gallagher just keeps ranting on about how outrageous it is that politicians in Washington would try to pressure a television network over the content of their programming.

UPDATE II: A couple of weeks ago, I wrote about the absurd though relentless dynamic where every political event is described by Republican hacks and then by pseudo-independent "pundits" as being good for Republicans no matter the outcome: "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."

Today, Instapundit posted about the Path to 9/11 controversy and announced that he "agree[s] with this comment" from Ann Althouse: "This firestorm is a lose-lose for Dems." So, ABC broadcasts a film produced by right-wing ideologues which contains admittedly fictitious scenes featuring Clinton administration officials regarding who is to blame for the 9/11 attacks, and when Democrats object, it is -- all together now -- a "lose-lose for Dems." What isn't a "lose-lose for Dems"?

The President's FISA statements now are the opposite of what he said in October, 2001

(updated below)

The President this week urged passage of the Specter bill by arguing that FISA is an inadequate tool for eavesdropping on terrorists, and that we therefore need to legalize his warrantless surveillance program. This is his explanation as to why FISA is inadequate:

When FISA was passed in 1978, there was no widely accessible Internet, and almost all calls were made on fixed landlines. Since then, the nature of communications has changed, quite dramatically. The terrorists who want to harm America can now buy disposable cell phones, and open anonymous e-mail addresses. Our laws need to change to take these changes into account. If an al Qaeda commander or associate is calling into the United States, we need to know why they're calling. And Congress needs to pass legislation supporting this program. (Applause.)

This statement is completely misleading, because it depicts FISA as some sort of relic from 1978 that doesn't take into account all of this new, complicated communications technology. But FISA was amended in October, 2001 at the request of the President precisely in order to take that technology into account, and when it was, the President himself even used virtually the same language back then to praise the FISA amendments that he is now using to claim that FISA is obsolete. Here is what President Bush said once FISA was amended in October, 2001 via the Patriot Act:

We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law was written in the era of rotary telephones. This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones.

The flaw which President Bush is claiming exists with FISA today is exactly the flaw which he himself said -- using almost identical language -- was eliminated by the 2001 amendments to FISA which he requested. In his radio address the next weekend (on October 27, 2001), he emphasized the same point by praising the new FISA as follows:

Surveillance of communications is another essential method of law enforcement. But for a long time, we have been working under laws written in the era of rotary telephones. Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.

So, in October, 2001, the President said the problem with FISA is that it was an old law which -- to use his words -- was "written in the era of rotary telephones." Therefore, he argued, his power to eavesdrop needed to be expanded, and when it was, he said that "[u]nder the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists."

But now that he wants all limits on his eavesdropping power eliminated via the Specter bill, he is saying the exact opposite of what he said in October, 2001. Now he is pretending that those amendments never happened and is claiming that he has to work under a FISA law passed in 1978 which does not take into account that "the nature of communications has changed, quite dramatically." The dishonesty of that is so glaring and obvious but he knows that he can get away with it because going back and looking at what he said in October, 2001 and comparing it to what he is saying now is something the media simply will not do.

And just as a side note, the President's supporters have been insisting -- and his own Attorney General has been explicitly considering -- that the reporters and editors of The New York Times who revealed this illegal eavesdropping program should be imprisoned on the ground that they "blew the cover" on this program and thereby rendered it ineffective. If that's true, how could it also be the case that "Congress needs to pass legislation supporting this program"? Why would it be urgent that Congress pass a law legalizing a program which The New York Times destroyed when -- to use the President's words -- "details of the Terrorist Surveillance Program were leaked." When he urged the imprisonment of Jim Risen and Bill Keller (along with Dana Priest), Bill Bennett argued:

How do we know [the NSA story] damaged us? Well, it revealed the existence of the surveillance program - so people are going to stop making calls - since they are now aware of this - they're going to adjust their behavior . . . .

The President argues that "if an al Qaeda commander or associate is calling into the United States, we need to know why they're calling." Leaving aside the obvious point that eavesdropping on such conversations is already permissible under FISA, shouldn't it be the case, as Bennett claimed, that al Qaeda commanders no longer call into the U.S. ever since they "learned" from the New York Times that we are eavesdropping on their conversations?

The contradictions in the President's claims as to why he needs to be able to eavesdrop on Americans without judicial oversight are endless. The media cannot, I suppose, be expected to make all of those contradictions clear. For instance, perhaps it is too much to ask of the media to explain that Alberto Gonazles himself previously said -- contrary to the President's arguments -- that the "Terrorist Surveillance Program" does not expand the scope of conversations on which the President can eavesdrop, because the standard it uses is the same exact standard as FISA uses. As Gonzales said in a February 28, 2006 letter (.pdf) to Sen. Arlen Specter (written in order to enable Gonzales to retract numerous statements he made at the Judiciary Committee hearing):

Senator Feingold noted that, on September 10, 2002, then-Associate Deputy Attorney General David S. Kris testified before the Senate Judiciary Committee. Sen. Feingold quoted Mr. Kris' statement that "we cannot monitor anyone today whom we could not have monitored last year."

Given that Kris was comparing a time when the "Terrorist Surveillance Program" was in place (September, 2002) to a time when FISA was the only means of eavesdropping (September, 2001), his statement -- that "we cannot monitor anyone today whom we could not have monitored last year" -- would by necessity mean that the "TSP" does not expand the President's power to eavesdrop. And that is exactly what Gonzales said was the case:

In any event, [Mr. Kris'] statements are also accurate with respect to the President's Terrorist Surveillance Program, because the program involves the interception of communications only when there is probable cause ("reasonable grounds to believe") that at least one party to the communication is an agent of a foreign power (al Qaeda or an affiliated terrorist organization).

The President's own Attorney General has told the Senate that the "TSP" and FISA use exactly the same standard for eavesdropping -- i.e., that there is eavesdropping "only when there is probable cause" for believing that one party is part of a terrorist group. At least by that reasoning, FISA doesn't restrict the President's power to eavesdrop on terrorists. Instead, it merely requires that such eavesdropping be undertaken only with judicial oversight to prevent abuse. Even if that fundamental contradiction is too complex for journalists to consider, they ought to be able to digest and convey the simplest and most self-evident contradictions.

The fact that the President himself said that FISA -- once it was amended in October, 2001 -- was sufficient to enable him to eavesdrop on all modern forms of communication used by terrorists, only now to say the opposite, is not that difficult to explain. And it is equally easy, at least, to make clear that the difference between FISA and the so-called "Terrorist Surveillance Program" is not whether he has the power to eavesdrop on the communications of terrorists (he has that power under both), but instead is whether he can eavesdrop in secret and without judicial oversight.

UPDATE: Anonymous Liberal -- who originally was the first blogger to find and post the October, 2001 comments from Bush -- points out similar and additional contradictions embedded in Bush's FISA comments this week, including those which fall into the category A.L. labels as "pathologically dishonest."

Disney/ABC and Hugh Hewitt's audience of "millions"

(updated below - updated again re: Patterico's guest blogger, Justin Levine)

One of the most incriminating aspects of Disney's conduct is that it made Path to 9/11 screeners available only to the likes of Rush Limbaugh, Hugh Hewitt and even obscure right-wing bloggers, while expressly refusing to provide a copy to liberal bloggers, including those with large audiences, or even to Bill Clinton and the former high-ranking Clinton officials smeared by the film.

Hugh Hewitt, who has become as much of a blindly loyal apologist for Disney's film as he is for the Bush administration, had this to say in response to that complaint (emphasis added):

First, hundreds of people have screened :The Path to 9/11," including me and many other critics and/or hosts of large audience shows. (Complaints from tiny lefty bloggers that I received a screener and other s didn't ignore the fact that I requested it weeks ago and that I have an audience in the millions, not the tens.)

According to Hewitt, it was audience size which determined who received screeners, not ideology. Currently, the average number of visitors to Hewitt's blog is 41,000. Firedoglake has 50% more; blogs such as Crooks & Liars and Atrios have almost triple Hewitt's audience; and the readership of DailyKos is ten times larger than Hewitt's. If one were using audience size as the determining factor for which bloggers received screeners, Hewitt would still be waiting for his. But he was one of the first to receive a copy, while others with larger audience (measured in the tens of thousands, not the "tens") were expressly refused.

If Hewitt is referring to his talk radio show, that still doesn't seem to justify his flamboyant, self-promoting claim. Talkers Magazine, an industry trade publication, published a 2005 list of the radio talk show hosts around the country with an audience of 1 million or more. Hewitt is not even on the list. If Hewitt's show does not even have an audience of 1 million, what is his basis for claiming that he has an "audience in the millions?"

Independent of all of that, Think Progress has documented that bloggers with -- to use Hewitt's sneering description -- "tiny" audiences received screeners, but they were individuals who were certain to ooze with praise for the film. And ooze with praise is exactly what they did (emphasis added):

I have been fortunate enough to see an advance showing of The Path to 9/11 - due to air in 2 parts on ABC on 9/10 & 9/11 respectively.

For those who have been asking for a clear historical account of the build-up to the 9/11 disaster, free of political spin, politically correct whitewashing and partisan wrangling - I can say wholeheartedly that this is the film that you have been waiting for.

“The Path To 9/11″ is astonishing.

It is an amazing achievement on many levels. It is flat-out one of the best made-for-televison (sic) movies seen in decades. The only thing that would keep this movie from theatrical distribution is its nearly 5-hour running time (split over two days in this instance). Forget CNN’s “replay” broadcast from 9/11 - Trust me and mark your calendars to watch ABC these nights.

Many of the most prominent television critics who have seen the film have mocked it mercilessly on dramatic and artistic grounds alone, but Disney obviously knew that if it fed its biased, fictitious product into the mouths of the most biased political hacks -- those who have been trained to consume fiction as their political diet (Iraq is going really well, Saddam worked with Al Qeada, Bush is a popular president, only the fringe Left is anti-war, etc. etc.) -- they would generate the type of drooling, mindless praise evidenced in the above quote, or by the Rush Limbaugh monologues, or by every Hugh Hewitt post over the last week on this topic.

While promoting this film as an unbiased account leading up to 9/11 based on the non-partisan 9/11 Commission, Disney was ensuring that only the most reliably Bush-worshipping partisan hacks received screeners of the film. Disney knew full well that it was preparing to broadcast a one-sided account which only Bush worshippers would love. The outright falseness of Hewitt's defense of Disney's conduct here makes that glaringly clear.

UPDATE: In response to this post, L.A. County Assistant District Attorney Patrick Frey (who blogs under the name "Patterico") claims that the reason his guest blogger (quoted above) received a screener of Path to 9/11 was because the guest blogger is the highly influential Justin Levine, who, Frey says, "produces the highest-rated morning talk radio show in Los Angeles." The link which Frey provides for that claim takes one to a post that was written by Levine, but which has nothing to do with Levine's work for any radio show. where Levine links to the website of a show on a local radio station in Los Angeles, KFI-AM.

Either way, there are all sorts of liberal commentators with audiences comparable to, or larger than, that which listens to the show Levine produces. Alan Colmes and Keith Olbermann come to mind, as does Markos Moulitsas and Jon Stewart. By contrast, Levine, based on what Frey wrote, doesn't have his own audience, but merely produces a local radio show that has an audience.

Thus, if it were true -- as Frey claims -- that Levine received a copy not because he is a mindless, Bush-loving partisan hack writing on Patterico's blog, but instead because "publicists have obviously been trying to generate buzz by promoting the movie on talk radio," then one would logically expect that all radio talk show hosts and bloggers with large audiences -- and television commentators and newspapers columnists, for that matter -- would have received copies. But they didn't. Only mindless, Bush-loving partisan hacks like Rush Limbaugh, Hugh Hewitt and even Justin Levine did, while liberals and other Bush critics with larger audiences did not, and were even refused copies when they requested one.

Frey is right that Disney distributed the screeners because they wanted to "generate buzz," but only positive, reverent buzz. Thus, they sent the screeners only to those they knew would warmly embrace the film because it is so skewed to their partisan biases -- namely, mindless, Bush-loving partisan hacks -- and purposely prevented those who would object to the film's fabrications from being able to view a copy.

Frey's claim -- which was echoed earlier by Hewitt (that unlike what Hewitt called "tiny bloggers," Hewitt has what he claimed is "an audience in the millions, not the tens," which is why he received a screener) -- would make sense only if Disney sent out the screeners to everyone with a large audience (or other buzz-generating abilities) without regard to their ideological leanings. That is exactly what Disney did not do, because they knew they had on their hands such an abjectly biased product which only partisan hacks would like.

UPDATE II: This interview with Justin Levine (h/t HM) tells you all you need to know about why he received a Path to 9/11 screener. His prior jobs: serving as an intern for David Horowitz, working on behalf of Matt Drudge in Sydney Blumenthal's libel lawsuit against Drudge, and then, after that, working as a screener for Drudge's radio show (where, according to Levine, he was fired for stalking his ex-girlfriend). The stalking issue to the side, Levine is obviously the exact person whom Disney would want screening Path to 9/11 -- a former colleague of David Horowitz and employee of Matt Drudge who now works for a highly "conservative" radio station.

Levine also says in the interview that he is "one of three producers on the Bill Handel morning show on KFI," and that his duties include "dealing with fan mail and hate mail." Does that really sound like the kind of person with towering influence which Disney, in normal circumstances, would want to ensure has a screener? Isn't it infinitely more likely that it was his connections to Horowitz and Drudge, and the reliable ideological leanings those connections reflect, which caused a video to end up in his hands, ensuring that the quite predictable praise would thereafter gush forth?

UPDATE III: Patterico has now removed entirely -- just zapped out of existence -- the post where he responded to me. I hope it was nothing I said. [After a brief hiatus, the post has been restored].

UPDATE IV: John Aravosis finally obtained a copy of the film and is reviewing it as he watches it. This post, regarding the fictitious Sandy Berger scene, makes crystal clear exactly why Disney wanted this film only in the hands of the Limbaughs, Hewitts, and Levines -- how could Disney not know what it had?

UPDATE V: Patterico has now written a second post (and one will be shocked if it is his last one) in response to this post, claiming that my post contains "paranoid rantings," and that I made "wild and untrue accusations," all because, Patterico now claims, Disney did not send a screener to Levine as I suggested. Instead, Patterico says, Disney sent it to someone else at Levine's radio station, and Levine simply picked up a copy.

Where could I have possibly gotten the idea that Disney sent a copy to Levine himself? How about Patterico's first post today:

This is either disingenuous bilge, or lack of familiarity with the facts. I have already explained, and Justin has confirmed that Justin received his advance screening, not because the publicists knew he would be writing guest posts on an “obscure” blog with a “tiny” audience — but because he produces the highest-rated morning talk radio show in Los Angeles.

Since the publicists have obviously been trying to generate buzz by promoting the movie on talk radio, it’s natural that Justin would get an advance screening.

One minute, Patterico says that it's so obvious that Levine got the film because he's a producer of a highly important (conservative) radio show, so of course Disney would get him a copy. The next minute, he calls it "paranoid rantings" and "wild and untrue" to suggest -- based on Patterico's own post -- that Disney gave Levine a screening.

These shifting explanations of Patterico and his friend, Justin, are, in any event, wholly besides the point. The radio station at which Levine works is a conservative station. Included in its line-up are Rush Limbaugh, Dr. Laura, and the Drudge Report. Their afternoon drive show is "John and Ken," a rough version of a talk radio Michelle Malkin. These were the targets of Disney's marketing campaign, all while denying liberal bloggers, and even an ex-President, copies of the film.

NSA story v. 9/11 film -- the "Liberal MSM" strikes again

(updated below)

The reason why there is so much intense objection over ABC's 9/11 propaganda film isn't merely because it inexcusably relies on total fictions in order to assign blame for 9/11 -- although that would be cause enough for protests. Well beyond its fabrications, what makes it so inexcusable is the timing of the film -- two months before a critical election -- along with the fact that it is tailor-made for advancing the Republicans' central electoral strategy of hyping the terrorist threat and blaming Democrats for failing to confront that threat.

Path to 9/11 is basically one big five-hour, prime-time Republican propaganda political commercial on the most important political dispute our country faces, masquerading as a film by ABC, which is broadcasting it for free. It is its intended impact on the imminent election which is what makes Disney/ABC's conduct so uniquely appalling here.

Contrast Disney's conduct with what The New York Times did with regard to the NSA warrantless eavesdropping story prior to the 2004 presidential election. When the Times first published the story on December 16, 2005, it admitted that it sat on the story for some time, but misled its readers -- as its own Public Editor, Byron Calame, recently noted -- by claiming that it "delayed publication for a year," meaning beginning in December, 2005, after the election. But it was then later acknowledged by Bill Keller -- accidentally, during an online chat with readers -- that the Times actually had the story in final draft form ready to go in late October/early November, 2004 -- prior to the election.

After giving all sorts of shifting and contradictory reasons as to why the Times held the story, Keller finally admitted in an interview with Calme that part of the reason for holding the story was a fear of unfairly influencing the election. As Calme reported:

Holding a fresh draft of the story just days before the election also was an issue of fairness, Mr. Keller said.

We're not talking here about a fictionalized film, but one of the most important journalistic stories of the last decade -- and the Times held it, in part, out of fear of unfairly influencing the election. If anything, the Times ought to have rushed to find a way to publish the story before the election precisely to avoid a situation where voters were electing a President without knowing that the President was violating the law by eavesdropping on them without warrants (and they could then decide that they approved of that program as a necessary counter-terrorism measure or disapproved as a lawless act). But they withheld it until after the election.

What possible justification, then, exists for ABC to broadcast this mini-series now, as opposed to, say, three months from now? Jane Hamsher and others have suggested that delaying the 9/11 broadcast until after the election would be a fair compromise -- it would allow ABC to broadcast this propaganda if it really wants to while avoiding undue influence on a major national election by injecting into it a bunch of fictionalized propaganda manufactured on behalf of its entertainment division and one of the two political parties contesting the election. Major networks are trustees of the public airways, and the last thing they ought to be doing is trying to sway imminent elections by taking sides -- via a work of admitted fiction -- in the most critically important political disputes our country has.

As Atrios noted yesterday, Disney seemed to recognize exactly that mandate before when it refused to distribute Farenheit 9/11, at great financial cost to it and its shareholders. As CNN reported then:

One executive told the paper it did not want to be seen taking sides in the election and risk alienating customers of different political views.

"It's not in the interest of any major corporation to be dragged into a highly charged partisan political battle," said the executive, who was not identified by the paper.

When it came to Michael Moore's film (which reflected poorly on Bush), why did ABC adopt the same reasoning the NYT did with regard to the NSA story (which reflected poorly on Bush) -- namely, that it wanted to avoid influencing elections and taking sides in political disputes -- only to now act in complete contradiction to that goal by broadcasting, for free, propaganda that could have been easily produced by the RNC and which fits in perfectly with the Bush political strategy for this election?

All corporations instinctively try to avoid political controversy and to avoid unduly influencing elections. The NYT even went so far as to withhold one of the most significant journalistic discoveries of the Bush presidency -- for which it ultimately won a Pulitzer Prize -- on the ground that it wanted to avoid unfair influence on the election.

Yet here, Disney/ABC seems not just willing, but bizarrely eager, to violate all of those principles, sacrifice its own corporate interests, spend huge amounts of its own resources, and take sides in an intense political controversy -- not just with the effect, but with the intent, to influence this election. If that's not the case, why won't Disney/ABC do what the NYT did under much less justifiable circumstances -- broadcast this film after the November election?

UPDATE: As several people noted quite quickly in Comments, I was unclear with this sentence -- "All corporations instinctively try to avoid political controversy and to avoid unduly influencing elections. " Obviously, corporations try to help candidates get elected who will advance their corporate agenda and/or as a means of securing influence, but they typically try to avoid publicly taking sides in a political controversy in a way that will alienate their customers. This is a divided country politically and large national corporations do not want to be perceived as being on one side or the other lest they alienate a huge part of their customer base.

UPDATE II: You can find action steps for keeping up the pressure on Disney/ABC here, along with Disney e-mail addresses here.

UPDATE III: Matt Stoller has written what is, in my view, the definitive explanation of what likely happened here regarding Disney and the dangers to it from its conduct.

Another major NSA legal defeat for the Bush administration

(updated below)

A federal judge in Oregon yesterday became the third consecutive judge (after Judge Walker in the Northern District of California and Judge Taylor in the Eastern District of Michigan) to reject the Bush administration's claim that national security concerns (i.e., the "state secrets" doctrine) bar courts from ruling on the legality of the NSA warrantless eavesdropping program. The ruling (.pdf), from Federal Judge Garr King, resoundingly rejected the Bush administration's now-standard tactic for placing the President's conduct beyond the reach of the law, and Judge King used reasoning identical to that used by the two prior federal judges who also rejected the Bush administration's claims:

King ruled that the NSA program is hardly secret anymore, and the Oregon charity can attempt to prove that some of its private conversations were picked up by the eavesdropping program.

"The existence of the surveillance program is not a secret, the subjects of the program are not a secret and the general method of the program -- including that it is warrantless -- is not a secret," King wrote. "Where plaintiffs know whether their communications have been intercepted, no harm to national security would occur if plaintiffs are able to prove the general point that they were subject to surveillance."

This decision is remarkable in several respects. And it is the latest example of a clear, extraordinary and extremely encouraging trend where the federal judiciary is finally re-asserting its role in imposing checks and limits on the Bush administration by compelling the administration to abide by the law.

The case in Oregon arguably presents the most potent legal challenge to the NSA warrantless program. The most significant hurdle for plaintiffs to overcome in the other lawsuits (including the one before Judge Taylor) is the need to prove "standing" -- i.e., that the plaintiffs were actually harmed by the warrantless eavesdropping program, a burden that is exceedingly difficult to meet because the Bush administration has been eavesdropping in secret and with no oversight -- while its allies in Congress have blocked any investigations into the program -- and therefore nobody knows who has been subject to the eavesdropping program.

But in the Oregon case, the plaintiff, an Islamic charity, has alleged that the NSA eavesdropped without warrants on conversations between an officer of the charity (who was in Saudi Arabia at the time) and the charity's own lawyers (in Washington, DC). And they have compelling evidence to support that allegation -- namely, a classified NSA log listing calls intercepted by the NSA which was accidentally provided by Justice Department lawyers to the charity's lawyers. According to the charity's lawyers, that document reveals that the NSA eavesdropped on the calls between the charity and their own lawyers as part of the warrantless eavesdropping program, which gives the plaintiffs standing to challenge the legality of that eavesdropping.

Once the charity's lawyers revealed that they had received that document and furnished it to the court, the DoJ demanded that the court return all copies to the FBI -- a request which Judge King defiantly refused on the ground that the FBI was a party to the lawsuit and therefore should not be entrusted with its safekeeping. Instead, Judge King ordered the document to be kept by prosecutors in Oregon. The DoJ then argued that the charity should not be allowed to use that document as the basis to prove "standing" because that document is so classified that its use by plaintiffs in the lawsuit would damage national security.

Relatedly, The Oregonian has been impressively fulfilling its journalistic duties with regard to this case, not only by reporting on the lawsuit intelligently and aggressively (which it has been doing), but also:

In a separate development, The Oregonian newspaper reported Thursday that it had filed suit last week seeking documents in the case.

"If the government is committing crimes against its citizens, the public is entitled to know the nature of the crimes," said the newspaper's attorney, Charles Hinkle.

The court previously instructed the DoJ to find a compromise to allow the document to be used in the lawsuit without jeopardizing national security, and last week, during Oral Argument,