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, September 15, 2006

The increasing extremism of Bush followers

(updated below)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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