The Tanks Of Lackawanna

This is the second story in a week about how noble George W. Bush averted disaster. First he stuck to his principles about honesty and refused to pardon Scooter Libby (who he did already commute, incidentally, somehow that didn't make it into the paean of an article). Today we learn he was all that stood between us and tanks rolling down the streets:

Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

It's not that I disagree that this was brought up as an option, it's the positioning of Bush as the defender of the Constitution that kind of galls me. Cheney was the Constitution's chief beta-tester ("testing the Constitution" is quite a turn of phrase, no?), and considering the wealth of other illegal actions, all justified like this one by at-the-ready memos from John Yoo, I just doubt that Bush really made these decisions, even if he felt like he did.

Frankly, all this dumping on Dick seems like part of the Bush Legacy Project to me. While Fourthbranch has been ready for his closeup throughout the Obama Administration - right up until the moment that Eric Holder started talking seriously about prosecutions that didn't involve him, that is, then he slithered back into the undisclosed location - Bush has kept a low profile in Dallas, gave a couple speeches, told stories about walking his dog and being jus' folks, and one by one all of these articles showing how he wasn't SO bad - he didn't want to use the military in American cities, after all! - keep popping up, using anonymous sources. It's a nice kickoff for the library.

Meanwhile, there is an important component to all of this, namely, the stated reason why the authority to use military force was sought:

Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.

Earlier that summer, the administration designated Jose Padilla an enemy combatant and sent him to a military brig in South Carolina. Mr. Padilla was arrested by civilian agencies on suspicion of plotting an attack using a radioactive bomb.

(This shows once again how the construction of Bush as a savior of the Constitution is false - he USED the powers granted by Yoo to designate Padilla an enemy combatant.)

So because of concerns that the evidence was weak, Cheney wanted to use "a lower threshold of evidence," and denote the Lackawanna Six enemy combatants to keep them outside the criminal justice system. We've gotten rid of the enemy combatants term, but not really the thinking of getting around the standards of evidence when dealing with terrorism suspects. While the report on detention policy and Guantanamo Bay has been delayed a number of months, in the preliminary report, we see the seeds of a three-tiered system of justice based on the amount of evidence gathered, altering the due process granted to ensure that the government can continue to confine anyone it captured relating to the so-called war on terror. As Glenn Greenwald writes today, in reaction to the NYT article:

All of this underscores why it is so important to vigorously oppose the efforts of the Obama administration (a) to continue many of the radical Bush/Cheney Terrorism programs and even to implement new ones (preventive detention, military commissions, extreme secrecy policies, warrantless surveillance, denial of habeas corpus) and (b) to endorse the core Orwellian premise that enables all of that (i.e., the "battlefield" is anywhere and everywhere; the battle against Terrorism is a "War" like the Civil War or World War II and justifies the same powers). By itself, the extreme injustice imposed by our Government on the individuals subjected to such tyrannical powers (i.e., those held in cages for years without charges or any prospect for release) should be sufficient to compel firm opposition. But the importance of these issues goes far beyond that. Even if the original intention is to use these powers in very limited circumstances and even for allegedly noble purposes ("only" for Guantanamo detainees who were tortured, "only" for people shipped to Bagram, "only" for the Most Dangerous Terrorists), it's extremely dangerous to implement systems and vest the President with powers that depart from, and violently betray, our core precepts of justice [...]

Those are the stakes when it comes to debates over Obama's detention, surveillance and secrecy policies. To endorse the idea that Terrorism justifies extreme presidential powers in these areas is to ensure that we permanently embrace a radical departure from our core principles of justice. It should come as no surprise that once John Yoo did what he was meant to do -- give his legal approval to a truly limitless presidency, one literally unconstrained even by the Bill of Rights, even as applied to American citizens on U.S. soil -- then Dick Cheney and David Addington sought to use those powers (in the Buffalo case) and Bush did use them (in the case of Jose Padilla). That's how extreme powers work: once implemented, they will be used, and used far beyond their original intent -- whether by the well-intentioned implementing President or a subsequent one with less benign motives. That's why it's so vital that such policies be opposed before they take root.

Those Presidents who fail to show respect and deference for the system of justice that has held over two centuries and more, even if they do not use the powers granted to them, set in motion a process to devolve that system. The precedents set by the Bush Administration, and potentially the Obama Administration, will have a lasting impact. So pardon me if I don't send a thank you note over to the 43rd President for not ordering an up-armored Humvee through a Buffalo suburb.

Nothing Conservative About It

A week or so ago, Ezra Klein argued that America is a small-c conservative nation from a structural and operational standpoint, in that the checks and balances between the different branches and the practice of the filibuster in the key lawmaking body frustrate major change or rolling back policies already enshrined into law.

Insofar as you take the traditional definition of conservatism -- which prizes stasis over change -- America's legislative process is designed to prevent large scale action. The reason we don't have a universal health care system, for instance, is not because Europeans wanted health care while Americans didn't. It's that in Europe, the desire for change aligned with the system's capacity for reform. In a parliamentary democracy, where there's no filibuster, you can do things like universal health care. It's a rather heavier lift in our political system, which is choked by the filibuster and the committee structure and a thousand other traps designed to protect the minority from having to submit to reforms desired by the majority (this is all well-described in Sven Steinmo and Jon Watts's essay, It's The Institutions, Stupid).

That doesn't make us ideologically conservative -- it doesn't mean that we, as a country, agree with Republicans. But it makes us operationally conservative in a way that's as frustrating to those who would try to roll back the welfare state or privatize Social Security as those who would try and act to prevent global warming or reform our health care system.

And this is entirely true, if you focus on the theory of government, and consider the laws of the land as a guide for how government operates. On the question of universal health care, which is used as an example here, the operational conservatism of the country certainly plays a role. But in terms of how government has changed over the years, even in the last three decades, the change is nothing short of radical. Daniel Zwerdling, NPR's best correspondent, kicked off a fine series today about the federal contracting process, which has gotten completely out of control since Ronald Reagan and his "government is the problem" rhetoric, to the extent that nobody inside the government knows precisely how many contractors have been hired or whether or not they are using taxpayer dollars effectively. And this goes well beyond contracting out jobs like mowing the grass in a national park, but to basic decisions being made inside federal agencies.

•Since President Bush took office, the government has doubled the amount of contracts with industry. The administration paid corporations more than $400 billion last year to work for everybody from the Forest Service to the CIA.

•The administration has given the majority of that contract money to companies that didn't have to compete to get it — or faced only limited competition.

•There are actually more contractors handling the war in Iraq than American troops.

All these figures come from government reports. And for the most part, these contractors aren't the ones making Humvees or computer systems or other kinds of products. The administration is paying most of the contract money to corporations to perform the kinds of services that federal employees normally do. And the administration has done all this with almost no public debate.

Tomorrow's Zwerdling segment will cover the fact that private contractors are paid to recover tax money, despite the fact that countless reports have shown them to be less successful than IRS agents, while costing the taxpayer far more than they take in.

One way to measure the program's performance, Kelley said, is by the amount of revenue collected by the private contractors; that sum continues to be only a fraction of the IRS's initial estimates. When start-up costs of $71 million are considered, the IRS program resulted in a net loss of $50 million in its first year of operation. This small return has forced the agency to revise the break-even point for the program to the year 2010—at the earliest.

"The bottom line is who does the work more cost effectively?" said Kelley. "According to IRS numbers, IRS employees bring in $13 for every dollar spent, whereas private debt collectors bring in $3 for every dollar spent. It doesn't take a TIGTA report to figure that out."

Where the operational conservatism has come in is when the Congress has tried to stop this program. The House voted to end the use of private debt collectors, and it has died every time in the Senate.

But these are truly radical steps, where government has become a conduit for profit-taking by giant corporations and policy is set with an eye toward those contracts.

And a "conservative" nation would never allow this:

The U.S. military expects to have 20,000 uniformed troops inside the United States by 2011 trained to help state and local officials respond to a nuclear terrorist attack or other domestic catastrophe, according to Pentagon officials.

The long-planned shift in the Defense Department's role in homeland security was recently backed with funding and troop commitments after years of prodding by Congress and outside experts, defense analysts said.

There are critics of the change, in the military and among civil liberties groups and libertarians who express concern that the new homeland emphasis threatens to strain the military and possibly undermine the Posse Comitatus Act, a 130-year-old federal law restricting the military's role in domestic law enforcement.

What do you mean, possibly?

This goes to the other side of how this nation is changing radically - with a series of programs conceived largely by executive fiat that weakens civil liberties protections and subverts the plain letter of the law. This includes illegal wiretapping of American citizens, indefinite detention of prisoners without charges, and the dehumanizing practice of torture, which is ineffective and deeply dangerous to the lives of our troops, as this senior interrogator in Iraq explains.

Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there's the pragmatic side: Torture and abuse cost American lives.

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.

Yet this practice is what slaves to executive power like Bill Kristol think are worthy of the Medal of Freedom.

In fact, what anyone who has been paying attention must conclude is that this has become a deeply radical nation, from deregulation to privatization to the dismissal of the rule of law, and the key project for the next President is to rein in the radicalism and return us to the, yes, conservative principles that are supposed to govern. Russ Feingold ably explains the need from the standpoint of the rule of law and the Constitution in this interview. But it can be expanded to the de-fanging of federal agencies and the transfer of government wealth to corporate bank accounts.

Any restraint and respect for the structure of government from the radical right only kicks in when they're out of power, when they have to use the means at their disposal to block the reversal of their extreme policies. If the Obama Administration plays the game inside the lines, if "going through the federal government line by line" means cutting services that are purported to not work instead of getting the government back from corporate takeover; if "reviewing every executive order" means trying to maintain extreme executive power by promising to carry it out competently instead of abolishing anything that subverts the rule of law; then there will be no return to the traditional values that have made America a lasting democracy.