Unclaimed Territory - by Glenn Greenwald


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

Friday, June 30, 2006


By Barbara O'Brien

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Various matters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Will Hamdan have any effect on the Bush Presidency?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Look Out, David Addington's Head Just Exploded

By Anonymous Liberal

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

Whether or not the President has independent
power, absent congressional authorization, to
convene military commissions, he may not
disregard limitations that Congress has, in proper
exercise of its own war powers, placed on his
But if Addington was vexed by the majority opinion, he probably had an aneurysm when he got to Justice Kennedy's concurring opinion, which seems to have been directed specifically at the David Addingtons and John Yoos of the world. Kennedy wrote:

Military Commission Order No. 1 . . . exceeds limits
that certain statutes, duly-enacted by Congress
have placed on the President's authority to convene
military courts. This is not a case, then, where the
Executive can assert some unilateral authority to
fill a void left by congressional inaction. It is a case
where Congress, in the proper exercise of its
powers as an independent branch of government,
and as part of a long tradition of legislative
involvement in matters of military justice, has
considered the subject of military tribunals and set
limits on the President's authority. Where a statute
provides conditions for the exercise of
governmental power, its requirements are the
result of a deliberative and reflective process
engaging both of the political branches. Respect for
laws derived from the customary operation of the
Executive and Legislative Branches gives some
assurance of stability in time of crisis. The
Constitution is best preserved by reliance on
standards tested over time and insulated from
the pressures of the moment.
If that wasn't enough to make Addington's head explode, the next paragraph probably did the trick. There, Kennedy discussed "the importance of standards deliberated upon and chosen in advance of crisis, under a system where the single power of the Executive is checked by other constitutional mechanisms." Kennedy noted, in closing, that "as presently structured, Hamdan's military commission exceeds the bounds Congress had placed on the President's authority."

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 29, 2006

The significance of Hamdan v. Rumsfeld

(updated below)

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: A few additional points worth noting or emphasizing:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Applying the "One Percent Doctrine" in a Vacuum

By Anonymous Liberal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 28, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The "October Surprise" Revisited

By Anonymous Liberal

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

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

On Oct. 29, 2004, Osama bin Laden released his
"October surprise," an 18-minute tape attacking
Bush. The CIA analyzed the tape and concluded
that "bin Laden's message was clearly designed
to assist the President's reelection." That day,
at a meeting at the CIA, acting director John
McLaughlin remarked, "Bin Laden certainly did
a nice favor today for the president." [Jami]
Miscik [deputy director of the CIA's Directorate
of Intelligence] presented analysis that bin
Laden felt challenged by the rise of the thuggish
Zarqawi, who called himself commander of
al-Qaida in Iraq, and that bin Laden was
refocusing attention through his tape on his
cosmic and continuing one-on-one battle with
Bush. "Certainly," she said, "he would want Bush
to keep doing what he's doing for a few more
Of course the fact that the Bush administration itself had concluded that the purpose of the tape was to tilt the election in favor of the President did not stop the Bush/Cheney campaign from sending its surrogates out to make the exact opposite claim, and right on the eve of the election:

Here's Bill Kristol:

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

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

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

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

Sean Hannity:

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

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

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

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

And finally, Rush Limbaugh:

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

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

Tuesday, June 27, 2006

The Bush lynch mob against the nation's free press

(updated below)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jefferson warned:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

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

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

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

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

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

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

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

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

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

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

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