Power Begets Power

Marcy Wheeler has the gory details of today's markup for the renewal of the Patriot Act. Basically, the Obama Administration and friendly Democrats in Congress - mainly DiFi and Pat Leahy - have used the Mohammed Zazi investigation to reauthorize provisions of the Patriot Act, some of which have never been used, some of which represent deep intrusions into our civil liberties.

So the Obama administration has its first allegedly big Terrorism case, and they can hardly contain themselves as they exploit it to justify a continuation of the very Patriot Act and FISA powers which Democrats (and, in the case of FISA, Obama himself) long claimed to oppose. Indeed, key Obama ally Dianne Feinstein has worked diligently in the Senate not just to block Patriot Act reforms, but to make the law even worse, and has repeatedly cited the Zazi case to justify that.

Absolutely none of the methods used in the Zazi investigation would have commenced without Zazi being tied directly to Al Qaeda. But Feinstein and the White House doesn't want to have this burden of proof. They want the ability to engage in fishing expeditions, to use roving wiretaps or "sneak and peek" searches or the use of business records without having to prove that the subject is suspected of terrorist activity. It's pretty clear that this is leading toward tracking the records of anyone who bought large quantities of hydrogen peroxide. So look out, women who dye their hair and like to stock up!

This has come in conjunction with major pronouncements by Administration officials about how very dangerous the Zazi case was and how it proves that law enforcement needs these tools. I rebutted that earlier - they need tools, but not OPEN-ENDED ones. It also makes a mockery of Administration boasts that they're not politicizing terror - the juxtaposition of these press events and the Patriot Act markup is pretty obvious.

But that's apparently what they're getting. Russ Feingold is upset. Only him, Dick Durbin and Arlen Specter (!) managed to vote against the final bill from the perspective of civil liberties.

Before I get into the specific provisions that concern me, I want to say how disappointed I was in the debate in the committee. Today particularly, I started to feel as if too many members of the committee from both parties are willing to accept uncritically whatever the executive branch says about even the most reasonable proposed changes in the law. Of course we should consider the perspective of the FBI and the Justice Department. Keeping Americans safe is everyone’s priority. But we also need to consider a full range of perspectives and come to our own conclusions about how best to protect the American people and preserve their freedoms. Protecting the rights of innocent people should be a part of that equation. It's not the Prosecutors’ Committee; it's the Judiciary Committee. And whether the executive branch powers are overbroad is something we have to decide. The only people we should be deferring to are the American people, as we try to protect them from terrorism without infringing on their freedoms [...]

Specifically, the bill reported out of the Committee today on an 11-8 vote (five Republicans and only three Democrats voted No) fell short in a few key areas. Perhaps the most important was the failure to include the reasonable 3-part standard for issuing a FISA business records order under Section 215 of the PATRIOT Act. This standard was in a bill unanimously reported by the Committee, under Republican control, in 2005, and it was in Sen. Leahy’s original bill this year. Last week, Senator Durbin offered an amendment to put the standard back in the bill. It would have ensured that these secret authorities can only be directed at individuals who have some connection to terrorism or espionage. The standard is broad and flexible, but it places some limits on this otherwise very sweeping authority. Unfortunately, Senator Durbin’s amendment failed. When it did, I hoped the Committee would instead consider at least adopting that same standard for issuing National Security Letters, which are not approved by any court, and which were seriously abused by the FBI. Today, that, too, was rejected.

The bill that passed out of committee did include some positive changes. I was pleased my amendment to reform invasive "sneak and peek" searches was included, as well as my amendment to require the executive branch to issue minimization procedures for NSLs. But these improvements did not make up for the bill’s shortcomings, and I was unable to support it on the final vote.

I only wish that Julian Sanchez could make another rebuttal video and we'd be done with this, but Fox News is hardly the problem. We've morphed pretty solidly into a surveillance state, a factor of being a state at permanent war.

I tend to side with Anonymous Liberal that at least Obama isn't asserting the divine right to break the law just by dint of being the unitary executive. That theory is on the dustbin of history, I hope. But if he's gathering the same powers, that's a distinction without a difference.

Feingold's Czar Hearing

I'm a big Russ Feingold fan - that should come as no surprise to any longtime reader. And at a certain level, I do understand his hearing today about executive branch czars. While George W. Bush had more czars than Barack Obama, it is true that the numbers of them have expanded over the years, and we should wonder if the executive branch is using these policy coordinator positions to avoid legislative oversight. Feingold correctly explains that "czars" has become a catch-all term, and some who have fallen under that title in the media are filling positions created by statute, or hold positions inside a federal agency and report to an cabinet officlal. All of the so-called "czars" in these categories have either been confirmed by the Senate or routinely testify before Congress. He's primarily interested in the portfolios housed inside the White House instead of those more readily available to the process of checks and balances.

“I am most interested in the third category of positions, and I think we are talking about fewer than 10 people, in part because we know the least about these positions. These officials are housed within the White House itself. Three weeks ago, I wrote to the President and requested more information about these positions, such as the Director of the White House Office of Health Reform and the Assistant to the President for Energy and Climate Change. The response to that letter finally came yesterday, and I will put the response in the record and plan to question our witnesses about it.

“The White House decided not to accept my invitation to send a witness to this hearing to explain its position on the constitutional issues we will address today. That’s unfortunate. It’s also a bit ironic since one of the concerns that has been raised about these officials is that they will thwart congressional oversight of the Executive Branch.

“The White House seems to want to fight the attacks against it for having too many ‘czars’ on a political level rather than a substantive level. I don’t think that’s the right approach. If there are good answers to the questions that have been raised, why not give them instead of attacking the motives or good faith of those who have raised questions?

Michael Scherer calls this a plea for a more civil discourse. But there are several points to make:

• The forces on the right who have elevated the "czar" issue aren't interested in a civil debate. They just want to collect scalps, and kick up some nefarious scent of "scandal" inside the White House. They could care less about the Constitutional issues, as evidenced by the fact that fewer than 10 of the 32 czars on that infamous Fox News "list" could possibly, under any reading, have any Constitutional issue to speak of, and probably not then. Feingold is giving these concerns far too much weight.

• The White House has appeared to give "good answers to the questions that have been raised" with a thorough listing of all the so-called "czars" and the functions they serve and how none of them raise Constitutional issues, or are outside the bounds of oversight, given the possibility for testimony and FOIA requests for documents.

• "Czars" are a media term, not a term regularly used by any White House other than to assure some attentiveness to the particular issue once raised by the media. Feingold should have the Presidents of the news agencies answer questions on his panel about why they call any advisor with a narrow policy focus a "czar."

• At the same time, to the extent that the White House has retrenched and set up offices without the same kind of advise and consent from the Senate, it's because the Senate confirmation process has gotten completely out of control. Republicans routinely put holds on qualified nominees for no discernible reason attached to that individual, but to pick other fights on unrelated subjects. It's no surprise that a President who needs to get things done would try to leapfrog, at least in some small way, that fruitless battle over confirmation which has become nothing but a sideshow. Feingold would do well to ask his fellow Senators if freezing out a nominee for the Justice Department Office of Legal Counsel, for example, over concerns about her views on abortion, which have absolutely nothing to do with the position, represents a good use of advise and consent. It's debilitating to the country to have the Senate become a giant bottleneck.

This is an election year upcoming for Feingold, and I assume he's being coy here and playing to same cluster of independents in Wisconsin by having this hearing. In reality, it's hard to see how these positions raise any Constitutional flags. And it's hard to see how this hearing really helped matters.

Not Leaving It Alone

Chris Dodd and some colleagues have announced a bill to repeal retroactive immunity from the FISA law:

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced today that they will introduce the Retroactive Immunity Repeal Act, which eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.

“I believe we best defend America when we also defend its founding principles,” said Dodd. “We make our nation safer when we eliminate the false choice between liberty and security. But by granting retroactive immunity to the telecommunications companies who may have participated in warrantless wiretapping of American citizens, the Congress violated the protection of our citizen’s privacy and due process right and we must not allow that to stand.”

Senator Leahy, Chairman of the Senate Judiciary Committee said, “Last year, I opposed legislation that stripped Americans of their right to seek accountability for the Bush administration’s decision to illegally wiretap American citizens without a warrant. Today, I am pleased to join Senator Dodd to introduce the Retroactive Immunity Repeal Act. We can strengthen national security while protecting Americans’ privacy and civil liberties. Restoring Americans’ access to the courts is the first step toward bringing some measure of accountability for the Bush-Cheney administration’s decision to conduct warrantless surveillance in violation of our laws.”

Let's make it clear up front: This isn't going to pass. Even if you could get 60 votes for it, which you can't, you have an occupant in the White House who voted for immunity, opening the possibility of a veto if it miraculously got through the Congress.

What this does signify is that some members of Congress will not be content to let the past remain in the past, especially if a great wrong was committed. Maybe they get 30 votes for immunity this year. Maybe 35 next year. And so on. But they keep offering it up, because they don't see the justice in allowing companies immunity for perpetrating a great error by aiding and abetting the government in illegal activities that violated the constitution. So they'll continue to push this at the legislative level. Meanwhile, at the judicial level, EFF and other groups continue to sue the government for real civil penalties to this lawbreaking.

It seems to me that, to succeed in politics, you have to be relentless. Introducing bills like this year after year is one example.

If You Want Your Country Back, Start With This

Senate Democrats have introduced legislation to scale back some of the worst abuses of both the Patriot Act and the FISA legislation from last year. Obama Administration officials were noncommital.

At hearings in the House and Senate, the officials repeatedly said they had no position yet on legislation that Democrats have introduced that would tighten standards and oversight of surveillance tools authorized under laws including the USA Patriot Act.

"We are trying to figure out whether the provisions that are suggested there will work for us as is, or perhaps with modifications," David S. Kris, assistant attorney general for national security, said at a Senate Judiciary Committee hearing Wednesday on whether to renew a trio of Patriot Act powers set to expire Dec. 31.

Those provisions allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not belong to a terrorist group but may be planning attacks.

I'm surprised they've even gone to the level of noncommital. Executives generally want to retain the power handed to them.

But it took a non-lawyer Senator named Al Franken to explain in plain English why the roving wiretap statute offends the conscience.

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Yes, it is "surreal" that some politician would dare look to the Founding documents for guidance when determining whether the roving wiretaps statute violates civil liberties. I'm no originalist, but I don't think there's a ton of wiggle room in "the persons or things to be seized."

The truth is that, for all the pretty talk about exigent circumstances and "the war on terror" and the need to conduct investigations in secret, almost all Patriot Act "sneak and peek" requests, where warrants could be obtained to conduct secret searches without telling the subjects, had nothing at all to do with terrorism, but standard-issue federal drug cases. The mission creep here is obvious, and it's true on national security letters and roving wiretaps as well.

I'd be willing to overlook the regular-grade racism and general ugliness of the tea party crowd if they'd actually take a look at these examples of government overreach, and work with civil libertarians on the left to roll them back. The combination could be potent. Of course, the teabaggers aren't libertarians, they're glibertarians, who adored this kind of stuff in the Bush years when they were fighting "terrism."

Gang Of Six Member Recognizes That Bipartisanship Is Dead

Jeff Bingaman, the least vocal member of the Gang of Six, is resigning himself to the reality that his bipartisan funfest is nothing more than a charade, and anyone who actually wants to pass health care reform is on the Democratic side of the aisle.

Sen. Jeff Binagaman (D-NM)--one of the six members of the Senate Finance Committee who have been hashing out a health care reform bill for months--says that if bipartisan negotiations go nowhere, he'd support an effort to circumvent a filibuster and pass legislation without any Republicans.

"If we are unable to do it any other way, that is an option. It is a very difficult option," Bingaman told a crowd of about 200 at a town hall event in Albuquerque yesterday. He was referring to the possibility that Democrats will pass health care reform through the so-called budget reconciliation process.

The acknowledgment signals that even those members of Congress most invested in passing bipartisan health care reform are well aware that those efforts might not bear fruit.

"I don't think that that effort [at bipartisanship] is what is stymying progress," Bingaman said.

"It may well not succeed, but it has been worth the effort, and we are continuing with it."

I obviously don't agree that it's been worth the effort, but if you're a Democrat who really doesn't want to pass health care reform without bipartisan cover, it has. But the moderates made a tactical error. They now risk passing no bill at all because Republicans won't budget one inch to help them. They've allowed the town hall meeting craziness narrative to take hold, to the extent that even liberals like Russ Feingold are proclaiming that there will be no bill until Christmas. The legislative fight has become a test of mettle, and if Democrats lose their most vulnerable members will simply be wiped out next year. So now they really have to do this on their own. You wouldn't see Democrats openly talk about waiving the Byrd rule if that wasn't the case.

Should Democrats use the procedure known as reconciliation, the assumption has been that certain elements would have to be stripped out of the bill and passed separately, because a Senate rule known as the Byrd Rule only allows reconciliation for legislation that costs or raises substantial amounts of money. That would include the expansion of Medicare or Medicaid, revenue-raising tax provisions, and even the creation of a public health insurance option, depending on how it's written. But non-budget-related items -- most of the new insurance industry regulations, for instance -- would presumably be put in a separate bill that would go through regular order -- and would therefore need 60 votes to overcome a filibuster.

Passing two separate bills, however, is seen by some Democrats as too much of a lift for the slow-moving Senate.

But there's another alternative, according to Martin Paone. Paone, who served as a Democratic Senate floor staffer for 29 years, has been advising Democrats as they craft their legislative strategy. He proposes that Democrats try to get 60 votes to waive the Byrd Rule -- which would then allow the inclusion of those non-budget-related provision in one bill that would require only 51 votes for final passage [...]

Conservative senators such as Mary Landrieu (D-La.), Ben Nelson (D-Neb.) or Olympia Snowe (R-Maine) could, in voting for a Byrd Rule waiver, put themselves on the record as being in support of popular insurance industry reforms, while still opposing final passage of the bill -- a political strategy that may be appealing to them.

This happened in both 1990 and 1997, under Democrats and Republicans. The world didn't end.

Mike Lux has a primer on the best practices to get a good bill through the sausage-making process. Let's check off where we're at on them:

• Hold the progressives in the House to only vote for a public option. So far, so good. They've signed multiple letters, taken multiple pledges, sent a very clear message about their determination. They need to stay strong.

• Get the Democrats in the Senate to accept that this will have to be a Democrats-only bill. This seems to be moving in the right direction. Schumer sent exactly the right message over the weekend, and it's clear things are beginning to head that way.

• Split the bill into two parts in the Senate, with the public option and the financing going through the reconciliation process. Democats are sending signals that they are moving in that direction as well.

• Get enough Senators on board for the public option. The whip count DFA and we at OpenLeft have been running shows us at 45. We need five more, and there are several Democrats I think are prime possibilities to come along if this is the path we go down.

• Above all, don't panic. There will be some rough days ahead. Certain Senators will keep saying we can't get this done, and pundits will continue to shed the worst possible light on each day's events. But we just need to hang tough, hold strong, and keep working.

Everything's moving in the right direction, actually, and on #3 we're seeing the Senate take a look at an even bolder line. But panic is always in the air when you're dealing with Democrats.

...Shep Smith is going to get fired.



The last thing I'm worried about is that Republicans will be able to stop the budget reconciliation process. Nobody really cares about Senate procedure and you can't build a movement out of it. They're trying to scare Democrats into not using it, and that may work, but everybody knows that the GOP is full of crap on this one. Even Shep Smith.

Feingold Asks For A Timetable In Afghanistan

The initial reports out of Afghanistan show Hamid Karzai and Abdullah Abdullah even with about 10% of the vote counted. Presuming that urban areas like Kabul would be among the first to be counted rather than the outlying regions, that's probably good news for Abdullah. But Kandahar and Helmand, allegedly Karzai strongholds, have not come in yet.

But of course there have been so many allegations of fraud, in addition to intimidation from the Taliban and the near-impossibility of women to be properly represented, that these vote totals mean almost nothing. The ensuing chaos could lead to more violence and less legitimacy among the government. And four more US troops died yesterday.

In this environment, Russ Feingold has called for a timeline for withdrawal, becoming the first member of Congress, to my knowledge, who has done so.

"After eight years, I am not convinced that pouring more and more troops into Afghanistan is a well thought out policy," said Feingold. The liberal Democrat said he expressed his reservations with President Obama, Admiral Mullen, and others inside the Administration and he says he has "never been convinced they have a good answer."

"I think it is time we start discussing a flexible timetable so that people around the world can see when we are going to bring our troops out," said Feingold. "Showing the people there and here that we have a sense about when it is time to leave it one of the best things we can do," he added.

The Administration hasn't given Feingold a good answer because they don't have one. But politicians, fearing the slings and arrows of the lords of toughness, will go along to get along. Have people really tested this hypothesis? Is it actually true that to be an elected official, you have to support endless war? Russ Feingold is up for re-election next year. He's not from the bluest state in the union, but Wisconsin, a swing state in Presidential elections that normally tilts slightly blue. And yet he assessed the situation in Afghanistan on the merits and not on how it would impact his re-election chances. And he'll probably emerge victorious.

If only more Democrats shared his courage.

Not Backing Away

It's good to see the health care discussion rounding back around to what's actually in the bill, because progressives have a winnable fight on those grounds. The situation with these town hall meetings, where the signal to noise ratio was so low, just served to shut everything down. Looking seriously at where everyone stands on key elements of the legislation presupposes that legislation will pass and makes clear who needs pressure and who needs thanks. Today we're seeing lots of public officials coming together strongly in support of reform with a public option. Anthony Weiner says it cannot pass without it.

WEINER: The President does seem like he's moving away from the public plan, and if he does, he's not going to pass a bill. Because there are just too many people in Washington who believe that the public plan was the only way that you effectively bring some downward pressure on prices, and if he says well we're not going to have that, then I'm not really quite sure what we're dong here.

BECKY QUICK: So you would not vote for a bill that made it through, if it got through...

WEINER: Not only I but I think there's probably a hundred members of the House, who believe for various reasons that you need to have something to bring down prices. Otherwise you're basically, what you're doing, you're keeping the cost arc. . . the CBO agrees with that. You know as it was, I think the public plan had been watered down so much. So if the President thinks he's cutting a deal to get Senate votes, he's probably losing House votes.

Even House leadership refuses to budge:

“As the President stated in March, ‘The thinking on the public option has been that it gives consumers more choices and it helps keep the private sector honest, because there’s some competition out there.’

“We agree with the President that a public option will keep insurance companies honest and increase competition.

“There is strong support in the House for a public option. In the House, all three of our bills contain a public option as does the bill from the Senate HELP Committee.

“A public option is the best option to lower costs, improve the quality of health care, ensure choice and expand coverage.

“The public option brings real reform to lower costs over the 10 year period of the bill.”

And even on the Senate side, you have people like Russ Feingold making their presence known:

“A public option is a fundamental part of ensuring health care reform brings about real change. Opposing the public plan is an endorsement of the status quo in this country that has left tens of millions of Americans uninsured or underinsured and put massive burdens on employers. I have heard too many horror stories from my constituents about how the so-called competitive marketplace has denied them coverage from the outset, offered a benefit plan that covers everything but what they need or failed them some other way. A strong public option would ensure competition in the industry to provide the best, most affordable insurance for Americans and bring down the skyrocketing health care costs that are the biggest contributor to our long-term budget deficits. I am not interested in passing health care reform in name only. Without a public option, I don’t see how we will bring real change to a system that has made good health care a privilege for those who can afford it.”

It's just going to be incredibly hard for these politicians to climb down from that rhetoric, certainly not if they measure in the hundreds, as Weiner intimates. The House is committed to waiting on the Senate, as they won't send a bill to the floor until the end of next month. But they won't be content to just follow whatever crappy bill comes from the Finance Committee.

The fact that the White House let health care reform be defined on the left as the public option is their own damn fault. They didn't offer anything for progressives to run with, no tangible reforms that would do anything to both increase access and control costs. The public plan was all that was left. Now they have a major problem negotiating the space between House liberals and Senate ConservaDems. Considering that all they have to do is get a much smaller number of ConservaDems to agree to cloture and free them to even vote against the final bill, from a tactical standpoint the choice is pretty clear, IMO. We'll be watching.

And yes, we should thank those who are doing right in this fight.

...Yet another letter, this time from 60 House members, saying they won't vote for a bill without a public option. Mike Lux does a good job of laying out the way forward here.

Russ Feingold Is Making Sense

This reminds me of Feingold's lonely stand against the Patriot Act. He was right about that too:

Feingold said he is increasingly disturbed by the war in Afghanistan, where troop levels are escalating by the month, US casualties are mounting and the insurgency is expanding. "It appears that no one even asked the president about [Afghanistan] at his [July 22] press conference after apparently thirty or thirty-one Americans were killed in Afghanistan last month. How is that possible?" Feingold asks. "People have to wake up to what's going on in Afghanistan, and my vote is a request that people wake up to what's happening, which is we are getting deeper and deeper into this situation in a way that I don't think necessarily makes sense at all and may actually be counterproductive." [...]

Feingold believes "the so-called surge may actually make matters worse by pushing militants into Pakistan, a nuclear-armed nation which is still not effectively dealing with terrorist sanctuaries in that country." He is particularly concerned with what he calls the "balloon effect:" resistance fighters in Afghanistan being pushed into Pakistan, where "they may be safer." [...]

"This is something I've been trying to hammer away at," Feingold tells The Nation. "They admitted that it's a problem, but where's the follow-up? This administration is almost whistling past the graveyard on this issue." Feingold added, "How is it that the chairman of the Joint Chiefs of Staff and our special envoy to this region both agree that this could be a problem and that it is not talked about as a serious mistake if we're going to keep increasing troops and increase that effect? This is, in my view, the central flaw in what is otherwise a policy that is better than the Bush administration's. This is the central flaw in the thinking of the administration on this issue, and it needs to be pursued."

The kind of militants that we're supposed to be stopping from threatening American national security can always melt away and move somewhere. Heck, we just arrested seven people in North Carolina and accused them of plotting terrorism. Do we now send drones over the Outer Banks, pushing the militants into South Carolina and Tennessee?

The problem is that, while the war in Afghanistan has been sold as a war against Al Qaeda, on the ground the war has become a war protecting the Afghan people in areas where the Taliban is trying to spread its power. Incredibly, this keeps in place Taliban in Pashtun areas, which is supposed to be the point of denying them safe havens!

The U.S. and its allies must change their mission to focus on protecting the Afghan people -- even if it means temporarily allowing the Taliban to operate relatively freely in sparsely populated areas, the top U.S. commander in Afghanistan said in an interview Saturday.

Army Gen. Stanley A. McChrystal, who was appointed to overhaul military operations in the country, discussed his new strategy to shift the course of a war that has become increasingly intense [...]

He acknowledged that U.S. and alliance forces cannot routinely enter some areas.

"Practically speaking, there are areas that are controlled by Taliban forces," he said. Over time, McChrystal said, the command will "reduce" those areas, but the first priority will to be to make sure populated areas are free of insurgent influence.

It's important not to confuse this iteration of Afghan Taliban with Al Qaeda, or even the prior version of Taliban (this is not necessarily a group of Wahhabist extremists). But they war is supposed to be about denying safe havens, and the head of Afghan forces is now saying that safe havens controlled by the Taliban exist and won't really get challenged. And those safe havens equal probably half the country.

At this point, I'll have to agree with Chris Hedges.

Al-Qaida could not care less what we do in Afghanistan. We can bomb Afghan villages, hunt the Taliban in Helmand province, build a 100,000-strong client Afghan army, stand by passively as Afghan warlords execute hundreds, maybe thousands, of Taliban prisoners, build huge, elaborate military bases and send drones to drop bombs on Pakistan. It will make no difference. The war will not halt the attacks of Islamic radicals. Terrorist and insurgent groups are not conventional forces. They do not play by the rules of warfare our commanders have drilled into them in war colleges and service academies. And these underground groups are protean, changing shape and color as they drift from one failed state to the next, plan a terrorist attack and then fade back into the shadows. We are fighting with the wrong tools. We are fighting the wrong people. We are on the wrong side of history. And we will be defeated in Afghanistan as we will be in Iraq [...]

The only way to defeat terrorist groups is to isolate them within their own societies. This requires wooing the population away from radicals. It is a political, economic and cultural war. The terrible algebra of military occupation and violence is always counterproductive to this kind of battle. It always creates more insurgents than it kills. It always legitimizes terrorism. And while we squander resources and lives, the real enemy, al-Qaida, has moved on to build networks in Indonesia, Pakistan, Somalia, Sudan and Morocco and depressed Muslim communities such as those in France's Lyon and London's Brixton area. There is no shortage of backwaters and broken patches of the Earth where al-Qaida can hide and operate. It does not need Afghanistan, and neither do we.

This is pretty simple stuff, but an America at the last vestiges of hegemony and empire remains programmed not to understand. We can undertake a law enforcement and intelligence mission against Al Qaeda that protects America without a military mission in Afghanistan that does nothing for this cause.

Biting The Good Poll Numbers That Feed Them

To follow up on Tom Daschle's big fold on the public option, which is setting minds in Washington as we speak, the timing is truly impeccable. Not only did the WSJ and NBC come out with a poll finding 75% support for a public option in any reform, but an additional poll - put together by foes of health care reform - found even more support.

The poll — which was just released by the Employee Benefit Research Institute, a D.C. policy think tank — finds that a majority (53%) strongly back the availability of a public plan, while another 30% “somewhat” support it. That’s a total of 83% in favor of a public plan — a staggeringly large majority.

Even more interesting, guess who paid for the poll? From the release:

This survey was made possible with support from AARP, American Express, Blue Cross Blue Shield Association, Buck Consultants, Chevron, Deere & Company, IBM, Mercer, National Rural Electric Cooperative Association, Principal Financial Group, Schering-Plough Corp., Shell Oil Company, The Commonwealth Fund, and Towers Perrin.

Not exactly a band of raging lefties. The American Association of Retired Persons and Blue Cross Blue Shield were among the opponents of HillaryCare in the 1990s.

Meanwhile, instead of looking at those numbers and seeing that the public option must be preserved, Daschle and the Village thinks these guys must be preserved at all costs:

A Texas nurse said she lost her coverage, after she was diagnosed with aggressive breast cancer, for failing to disclose a visit to a dermatologist for acne.

The sister of an Illinois man who died of lymphoma said his policy was rescinded for the failure to report a possible aneurysm and gallstones that his physician noted in his chart but did not discuss with him.

....Late in the hearing, [Bart] Stupak, the committee chairman, put the executives on the spot. Stupak asked each of them whether he would at least commit his company to immediately stop rescissions except where they could show "intentional fraud."

The answer from all three executives: "No."

Rep. John Dingell (D-Mich.) said that a public insurance plan should be a part of any overhaul because it would force private companies to treat consumers fairly or risk losing them. "This is precisely why we need a public option," Dingell said.

Rescission is a serious problem. Here in California, Blue Cross and its parent company HealthNet have settled to the tune of about $37 million dollars in a variety of rescission lawsuits.

But no, private insurance must be preserved because it's so efficient. After all, that's why we pay twice as much for health care with worse outcomes than most of the industrialized world! (P.S. I know that doctors ordering up unnecessary treatments and tests contribute to this as well - our system's lack of integration provides perverse spending incentives.) And by the way, all of this is happening despite the fact that the Progressive Caucus has vowed to vote against any health care reform that does not have a robust public option. It's just assumed that they can be steamrolled.

Instead, we have this spectacle of so-called "centrists," supposedly concerned with fiscal responsibility, fighting against reform tooth and nail, even though that would be the only way to reduce cost.

The House's two most conservative caucuses, the Blue Dogs and New Democrats, are banding together to come up with shared principles on healthcare and counter a process many see skewing to the left.

The two groups, which combined have 131 members — more than half the House Democratic Caucus — have been holding meetings to see where they can agree on a healthcare plan [...]

There is concern among centrists in the caucus that the draft bill, to be released Friday, will reflect some of the more liberal ideas in the caucus, although leadership has already rejected the idea of a single-payer system. It is being put together by the House Education and Labor, Energy and Commerce and Ways and Means committees.

"You have a bunch of crazy liberal chairs and their crazy liberal staffers, and they want to lay down a marker," said a senior Democratic aide.

Crazy liberals, wanting to replicate the rest of the industrialized world's policy of less spending and greater effectiveness in health care!

It's really sad to see the Washington consensus just run like a truck over meaningful health care reform. Especially because the public won't buy anything without a public option as real reform, period.

UPDATE: Russ Feingold on the Senate floor:

Frankly, I am disappointed that this has become the topic of so much controversy, because it is such a fundamental part of making sure we provide the reform that my constituents, and all Americans, deserve.  Some have even suggested scrapping a public option in the interest of passing a bill with bipartisan support.  I want to pass health care reform and I hope very much we can do so with bipartisan support.  But I am not interested in passing health care reform in name only.  I am not interested in a bill that allows us to somehow tell our constituents we have done something but doesn’t really address their concerns.  We need real reform, and real reform means a strong public option.

And Americans want a public health insurance option.  According to a recent poll by NBC and the Wall Street Journal, over three fourths of those polled said they would like the ability to choose between public and private health insurance plans.  Providing a public health insurance option that does not discriminate against those with pre-existing conditions and illnesses will significantly improve the ability of people to access health care.

It's Not Like There Would Be Anything Noteworthy In Bill Clinton's Email

Well here we go again.

WASHINGTON — The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said.

The agency’s monitoring of domestic e-mail messages, in particular, has posed longstanding legal and logistical difficulties, the officials said.

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

As Rush Holt, one of the few in Congress who seems to know what he's talking about with this program, “Some actions are so flagrant that they can’t be accidental." In one instance, the NSA accessed Bill Clinton's email:

(An analyst) said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

I'm sure that investigation was completely stringent. And I'm sure that "ban" on explicitly singling out individuals was strictly enforced. Because why would anyone want to know what Bill Clinton's doing?

Don't B.S. us with the fig leaf of "inadvertent overcollection." This happens virtually the same way every time.

Every time new revelations of illegal government spying arise, the same exact pattern repeats itself: (1) euphemisms are invented to obscure its illegality ("overcollection"; "circumvented legal guidelines"; "overstepped its authority"; "improperly obtained"); (2) assurances are issued that it was all strictly unintentional and caused by innocent procedural errors that are now being fixed; (3) the very same members of Congress who abdicate their oversight responsibilities and endlessly endorse expanded surveillance powers in the face of warnings of inevitable abuses (Jay Rockefeller, Dianne Feinstein, "Kit" Bond, Jane Harman) righteously announce how "troubled" they are and vow to hold hearings and take steps to end the abuses, none of which ever materialize; (4) nobody is ever held accountable in any way and no new oversight mechanisms are implemented; (5) Congress endorses new, expanded domestic surveillance powers; and then: (6) new revelations of illegal government spying emerge and the process repeats itself, beginning with step (1).

And if you thought that the Congress or the Justice Department could at least revisit step (5) once step (1) re-occurs over and over again, Attorney General Eric Holder helpfully informs you that telecom immunity and the FISA Amendments Act is settled law, unable to be tweaked or fixed or even investigated. Holder wouldn't even stand by his statement that violating FISA breaks the law - he can't now, because as the Attorney General he would be obligated to act on his words.

FEINGOLD: On another topic, I wrote to the president on Monday about my continued concern that the administration has not formally withdrawn certain legal opinions, including the January 2006 white paper that provided the justification for the Bush administration's warrantless wiretapping program. At the letter was prompted in part by a recent speech that I'm sure you're aware of by the director of national intelligence in which he asserted that the program was not illegal, but he later clarified that.

In a speech to the American Constitutional Society in June 2008, you, sir, set the following. "I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens."

And the president himself also several times as a senator and during the campaign said the program was illegal. Now that you are the attorney general, is there any doubt in your mind that the warrantless wiretapping program was illegal?

HOLDER: Well, I think that the warrantless wiretapping program as it existed at that point was certainly unwise in that it was put together without the approval of Congress and as a result did not have all the protections, all the strength that it might have had behind it, as -- as I think it now exists with regard to having had congressional approval of it. So I think that the concerns that I expressed in that speech no longer exist because of the action that Congress has taken in regard...

FEINGOLD: But I asked you, Mr. Attorney General, not whether it was unwise, but whether you consider it to be an illegal, because that's certainly the implication of what you said in the quote I read and the explicit statement of the man who is now president of the United States.

HOLDER: Yes, well what I was saying in that speech was that I thought the action that the administration had taken was inconsistent with the dictates of -- of FISA, and I think I used the word "contravention," and as a result I thought that the policy was an unwise one. And I think that the concerns that I expressed then have really been remedied by the fact that Congress has now authorized the program.

FEINGOLD: But did you think it was illegal?

HOLDER: Well, I thought that, as I said, it was inconsistent with -- with the FISA statute and unwise as a matter of policy.

And that sound you hear is the soul of Eric Holder breaking.

The rule of law was nice to have around for a while. But it's completely broken and it's not coming back.

Loss Of Honor

The only good news out of this Marc Ambinder post is that the White House reads a lot of Glenn Greenwald. That's of course fine, but the main point here is that the White House will, at some point, endorse and implement a policy of indefinite detention. We don't know how many people will be held under this policy, but basically the idea here is to allow the President to determine, at essentially his discretion, although there may be certain safeguards, that a prisoner cannot be either charged with a crime or released from prison, and must be kept in a holding cell "until the terrorists disappear", as Newt Gingrich put it today. This prisoner will have not been proven to have committed a crime, but will simply be thought likely to commit crimes against the United States in the future, based not on actual proof (otherwise they could be charged) but the supposition of a few in the executive branch. Greenwald lays this all out here.

This really and truly makes me sick to my stomach. I recognize that the Bush Administration picked up random people off a battlefield and made little or no effort to corroborate the hearsay that brought them into custody in the first place. What evidence exists probably has been gained through coercion or torture. And so American law, or even the diminished American law in the military commissions process, cannot handle such evidence. That's the theory put forward by the White House, anyway. And yet plenty of terrorism suspects, in cases with similar challenges, have been tried and convicted in American courts, not only in recent history but for hundreds of years.

This is an unprecedented expansion of the power of the executive to detain enemies he designates essentially forever. It's also completely unjustified in a country that pretends to follow a Constitution based on the preservation of liberty.

There's more here and here, and I don't think I could add much. I'm just completely disgusted by the prospect of indefinite preventive detention.

At least we have some American lawmakers left who understand the magnitude of this decision.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not [...]

I appreciate your efforts to reach out to Congress on this important issue. In that spirit, I intend to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June and ask that you make a top official or officials from the Department of Justice available to testify. I recognize that your plans are not yet fully formed, but it is important to begin this
discussion immediately, before you reach a final decision. I will be sending formal invitations in the coming weeks and look forward to hearing the testimony of your administration.

Sadly, Feingold appears to be alone in this opinion. But one Senator can do a lot, especially with help from the outside. It's absolutely crucial that we provide him all the muscle he needs to push the Administration back on this horrific potential decision.

White House Rejected On State Secrets

Russ Feingold released a rule of law report card today, judging the Administration's efforts in restoring core Constitutional principles about justice and executive power. Feingold gave Obama generally good marks, but saved his greatest ire for the Administration's continuing use of the state secrets privilege.

Recommendation (State Secrets): "The new administration should conduct a review of pending cases in which the state secrets privilege has been invoked to assess whether the invocation was proper. It should also support legislative efforts, such as the State Secrets Protection Act (S. 2533/H.R. 5607), to allow more meaningful judicial scrutiny when the privilege is invoked."

Action: The Obama administration has invoked the state secrets privilege in three cases in the first 100 days -- Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA.

In Al Haramain, the Obama administration reinvoked the privilege in a case originally filed against the Bush administration in which the Al Haramain foundation, whose American branch is based on Oregon, alleged that the Bush administration authorized warrantless wiretaps. In Mohammed v. Jeppesen Dataplan, five individuals once held at Guantanamo Bay prison are accusing Jeppesen Dataplan, a subsidiary of Boeing, of providing logistical support for their “extraordinary rendition” to a foreign country where they were allegedly tortured. In Jewel v. NSA, the Electronic Frontier Foundation is suing the National Security Agency on behalf of AT&T customers for alleged illegal wiretapping surveillance. After Congress granted retroactive immunity to the telecom companies that allegedly participated in the Bush administration’s warrantless wiretapping program, cases in which the government is the defendant are the only legal avenues remaining to potentially test the legality of that program.

Senator Feingold has joined Senators Patrick Leahy, Arlen Specter, Edward Kennedy and others in introducing the State Secrets Protection Act, a bill to provide guidance to federal courts considering cases in which the government has asserted the state secrets privilege. The Obama administration has yet to take a position on the legislation.

Attorney General Holder has indicated that a complete review of all cases in which the state secrets privilege was asserted by the Bush administration is under way and that he hopes to make the result of that review public. Only the glimmer of hope offered by that ongoing review saves the Obama administration from a failing grade on this recommendation.

Today, the 9th Circuit appellate court agreed with Feingold and dealt a rebuke to the efforts to circumvent the rule of law by putting executive power grabs, in this case the Bush Administration's extraordinary rendition program in the Jeppesen case, behind a state secrets firewall:

Today, in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security.

In rejecting this radical secrecy theory, the court emphasized how the Bush/Obama doctrine, if accepted, would essentially place the President above and beyond the rule of law.

The court wrote, "According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands of the limits of the law." And this, basically, is where the "look forward but not backward" construction totally breaks down. The law requires scrutiny into official actions taken by the government and puts no limits on them for the sake of comity or bipartisanship. The law sees no Democrat or Republican, only the contours of the law. That was true when George W. Bush said that "In our country, when there's an allegation of abuse ... there will be a full investigation, and justice will be delivered," and that "War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, 'I was just following orders,'" and it's just as true today. The power of the state secrets privilege is the power to subvert the belief that no one is above the law by offering the executive branch a tool to block investigation by the other two branches. It is the tool of a cover-up and enables the rampant abuse and lawbreaking that can then be papered over.

The Obama DoJ appealed the ruling on Bagram detainees' habeas rights, and will probably appeal this ruling as well, and we will have to await the ruling of the Supreme Court before determining whether or not we have fully eliminated the most dangerous aspects of the state secrets privilege, or at least the passage of the State Secrets Protection Act by Feingold, America's Next Top Democrat Arlen Specter and the Congress. But as Glenn notes:

...in the meantime, the case will return to the District Court for a document-by-document assessment of what is and is not truly "secret" (and the court today held that a mere decision by the President to classify certain documents is insufficient; the court is required to exercise independent judgment as to whether secrecy is truly warranted). Finally, these 5 torture victims will have their day in court.

And hopefully, not just the victims but the perpetrators will have their day in court as well.

...I maintain that the efforts to get the White House to restore the rule of law will be aided by placing Dawn Johnsen as head of the Office of Legal Counsel, and those efforts got a major boost today when Richard Lugar announced his support. If Specter and Ben Nelson, who are opposed, vote for cloture, I think this ensures her passage.

Feingold: Bybee Must Go

Russ Feingold signs my petition, rhetorically speaking:

"The just released OLC memos, including the 2002 memo authored by Jay Bybee, are a disgrace. The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling. The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made. Clearly, the Justice Department has the responsibility to investigate this matter further. As a Senator, I would be a juror in any impeachment trial so I don't want to reach a conclusion until all the evidence is before me."

That last line is the prudent course - you wouldn't want a judge to tell you his opinion before the facts of the case are provided. But this is a very strong statement, although I liked what Feingold had to say about Peggy Noonan even more:

"If you want to see just how outrageous this is, I refer you to the remarks made by Peggy Noonan this Sunday," he said, referring to the longtime conservative columnist's appearance on ABC's This Week. "I frankly have never heard anything quite as disturbing as her remark that was something to the affect of: 'well sometimes you just have to move on.'"

I'm glad he decided to push back on this "let's look forward" meme. I've rehashed these arguments over and over again. We cannot claim to being a country of laws while leaving lawbreakers free and heinous crimes on the table.

On the flip side, you have Joe Lieberman. I like the side I'm on.

Sign the petition.

Torture Judge Lawyers Up

Jay Bybee seems to understand that the President is not the nation's chief prosecutor, and the release of the torture memos leaves him legally exposed. So he's done some hiring.

The Obama Administration assured CIA employees Thursday that they would not be prosecuted, but the White House has offered no cover to Bybee or other government lawyers.

So for now, Bybee is on his own. The good news, however, he’s got a nationally recognized lawyer on his side, Latham & Watkins’s Maureen Mahoney, who’s handling the case pro bono. In an e-mail Thursday, Mahoney said Bybee has recused himself from Latham cases, but offered no further comment on his case.

There are actually about a dozen cases that could fall under the 9th Circuit's purview, including a case against Bybee's former subordinate John Yoo, that Bybee has had to recuse himself from. So in addition to being morally unfit for office, Bybeecan barely fulfill the duties, he's so ethically compromised.

As Digby notes, Barack Obama actually doesn't hold the key to whether or not the architects of torture get prosecuted. That falls under the Justice Department, and all Eric Holder has said is that they'll not seek prosecution against those who followed OLC guidelines. And if they want to take it out of politics, all they have to do is appoint a special prosecutor. The nation's fabric didn't fall asunder when Scooter Libby was convicted. We can handle it.

And Russ Feingold agrees:

"I understand that the president believes that the people who actually administered these tactics should be immune. I'm not sure about that. I understand that they have a greater argument than those who created the policies. But those who created these legal theories, knowing full well that there was not a reasonable argument, I'm not so sure they shouldn't be accountable. I don't see how we as a country say oh fine we knew this was against international law, we knew it was against our own laws, and these people can come up with any phony legal opinion they want. I've read these opinions because I'm on the intelligence committee and had access to them much earlier than the public. These arguments are bogus.."

I have a petition to call on the California Democratic Party to support the resolution of impeachment for Jay Bybee. We're up to 2,824 signatures. Please add your name if you haven't already. And if you're in California, give a call to the CDP offices and let them know you'd like to see them support this resolution.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

DFHs 1, Sen. Hatch -2,384

What Josh Orton said.

Here's Senator Hatch, member of the Senate Select Committee on Intelligence, back in June of 2008, laughing off "onerous" oversight provisions for the FISA bill:

Orrin Hatch, wrong. The "tinfoil hat" brigade, right. Again. Why, here's one of those mad hatters right now!

“Since 2001, I have spent a lot of time in the Intelligence Committee, the Judiciary Committee, and on the floor of the Senate bringing attention to both the possible and actual effects of legislation that has dangerously expanded the power of the executive branch to spy on innocent Americans. Despite these efforts, Congress insisted on enacting several measures including the USA PATRIOT Act, the Protect America Act, and the FISA Amendments Act, embarking on a tragic retreat from the principles that had governed the sensitive area of government surveillance for the previous three decades. Congress must get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens. In addition, the administration should declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact.”

Of course, now that there's a DEMONCRAT in the White House, Hatch will probably don the aluminum foil himself. We are all conspiracy theorists now.

A couple other advances on this: Spencer Ackerman has the list of who potentially could be the mystery member of Congress who was wiretapped by the Bush Administration's NSA. The clues we had were: member of Congress who went on a trip to the Middle East in 2005-2006. That narrows it down to 27 potentials.

Also, Sen. Feingold had an interesting discussion in open testimony that hinted at this on Feb. 25 with David Kris, the nominee for Assistant Attorney General.

SEN. FEINGOLD: We had an opportunity -- and you can respond in a minute -- but we had an opportunity earlier today to discuss in a classified setting specific concerns I have about how the FISA amendment act has been implemented. Without discussing those specifics in an open hearing, do you agree that there are serious problems that need to be corrected?

MR. KRIS: Senator, I do, I appreciate very much the meeting we had this morning, you raised a number of concerns that I as an outsider had not appreciated and you certainly got my attention. I have been thinking about it since we met and if it's even possible you increased my desire to, if I were to be confirmed, to get to the bottom of the FISA amendments act and I hope if I am confirmed that I can take advantage of your learning of others on the committee and the intelligence committee to see how best to make any necessary improvements.

You may guess that none of this came from my cable news teevee this morning.

...UPDATE: DiFi says she'll hold a hearing. Maybe she can investigate her own vote to give away these massive spying powers to the NSA.

Stop The Anarchy, Stop The Piracy

Obviously, the three shots to the head have not deterred the pirates in the Gulf of Aden from continuing their pillage. They hijacked four more ships on Tuesday and attempted to board another US boat, but failed. They are armed with not just guns but rockets, according to the report from the Liberty Sun.

Obviously the US Navy has superior equipment and skills and can deal with such attacks and hijackings if needed. But it's simply impractical to guard the entire ocean when the problem remains on land, in the lawless region of Somalia where piracy represents the only economic opportunity. Russ Feingold wrote to the President yesterday asking him to address the root causes of this piracy, unlike the Bush Administration, who exacerbated them.

As you know, piracy off the coast of Somalia is a symptom of the state collapse and instability on land; thus, any military actions we take will only be stopgap measures. In recent Congressional testimony, Director of National Intelligence Blair and Defense Intelligence Agency Director Army Lt. General Michael Maples cited lawlessness and economic problems on land for the rise in piracy at sea. The ultimate solution to the problem of piracy, then, is the establishment of a functional government that can enforce the rule of law. During the rule of the Council of Islamic Courts in 2006, there was a notable decline in piracy that can be attributed, in large part, to the rise of a central authority in southern Somalia. Without replicating the repressive rule of the Courts, we must keep in mind that establishing a central governing structure in Somalia is critical to resolving, not just stopping, the problem of piracy [...]

I met with President Sheik Sharif during a trip to the region this past December, just before his election, and met last month with the new government’s Foreign Minister here in Washington D.C. In both meetings we discussed the importance of an inclusive process to unite Somalia and the importance of U.S. support to achieve that goal.

Just as you have personally become engaged in the problem of piracy off Somalia’s coast, it is essential that you personally engage in U.S. efforts to address its origins on land. As a first step, I urge you to call President Sheik Sharif and indicate a clear commitment to work with his government not only on maritime insecurity issues, but also to help establish security and functional, inclusive governance within the country. This should be coordinated with other levels of engagement and complemented by ongoing discussions with our regional and international partners on a comprehensive plan to support this transitional government and stabilize Somalia.

I actually disagree with Feingold in part, and I think he disagrees with himself. President Sheik Sharif is a moderate member of the ICU, and has some manner of legitimacy in the country despite his ties to that "repressive" regime. Anyone with legitimacy is favored over Ethiopian invaders or a puppet transitional government. You have to make peace with the group that can secure it.

Matthew Yglesias has a good piece laying out the historical markers at The Daily Beast. Military action by the Bush Administration has CONTRIBUTED to the rise of piracy in the region, and it should not be replicated. Instead, we need to support, or just leave alone, those who can move the country into some semblance of stable governance. Jeffrey Gettleman has more.

Obama's State Secrets Controversy Grows

The outcry over the President's expansive use of the state secrets privilege to shut down lawsuits against illegal wiretapping has escalated. TPM Muckraker finds a series of experts willing to acknowledge that this is no different from Bush's policy to get these lawsuits tossed out.

Ken Gude, an expert in national security law at the Center for American Progress, supported the administration's invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is "disappointing," Gude told TPMmuckraker, calling himself "frustrated."

Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. "They've taken the maximalist view that the judge has hardly any role in determining whether national security" would be compromised by the release of classified information," he said. "There's going to be people who are very unhappy, and justifiably so."

He added: "I'm very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government."

Gude's general view was echoed by Amanda Frost, an associate professor at Washington College of Law who has written extensively about issues of government transparency. Frost made clear that she hadn't followed the Jewel case, but called the Obama administration's assertion of the state secrets privilege in a similar high-profile wiretapping case involving an Oregon-based Arabic charity "indefensible." The NSA, she said, has already acknowledged the existence of the wiretapping program, and some of its details are publicly known, so the claim that national security would be jeopardized merely by allowing the trial to proceed doesn't hold water. The government is making that argument in both the Oregon case and Jewel.

There are more at the link. Even the traditional media are starting to openly question Obama officials on these points - and the officials are maintaining that the President fully supports the invocation of the state secrets privilege on expansive national security grounds to dismiss lawsuits. Dan Froomkin calls it utterly un-American. And this find by Greg Sargent makes clear the official hypocrisy at work:

Obama attacked Bush’s use of (the state secrets privilege on the grounds of national security) during the campaign. Indeed, Obama’s campaign Web site still identifies Bush’s use of the tactic as a “problem” that created undo “secrecy” and needs to be changed.

Congress can actually act here. Russ Feingold has carried legislation that would sharply limit the ability of the executive to use the state secrets privilege. Far from being the work of "America-haters" or based on a knee-jerk antipathy to George Bush, civil liberties advocates were always adamant that the standard of the rule of law be equally applied in all cases. No executive, Republican or Democratic, should have the untrammeled power to essentially supersede the courts and act above the law. Here's Feingold's statement, reflective of this belief:

I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct. The Obama administration’s action, on top of Congress’s mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program. In February, I asked for a classified briefing so that I can understand the reasons for the Department’s decision to invoke the privilege in another case, and I intend to seek information on this new case as well. I also encourage the greatest possible public accounting of the use of the state secrets privilege and welcome the Attorney General’s statement that he hopes to share his review with the American people.

Beyond the particular case at issue here, it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege. The American people must be able to have confidence that the privilege is not being used to shield government misconduct. That is why I am working with Senators Leahy, Specter, and others to pass the State Secrets Protection Act as soon as possible.

This is truly ugly stuff, and the worst aspects of the Obama Administration thus far, in fact almost all of them, have been when they have sought to participate in what amounts to a cover-up. They should not have the tools to do so, at least in this case.

The New Af-Pak Strategy

OK, so I just listened to President Obama's statement about Af-Pak policy. Essentially, Obama will deploy 4,000 additional trainers to build up the Afghan security forces to the peak number of around 200,000 (army and police) by 2011 instead of 2013. In addition, thousands of civilians will be added to aid in development and reconstruction efforts. There is an expected commitment from NATO along those lines as well, but I'll believe it when I see it. And the President will properly fund the war effort, characterizing it by saying that no longer will Afghanistan and Pakistan resources come up short due to the war in Iraq. Of course, a recent GAO report says that withdrawal in Iraq will be massively expensive in its own right, so the idea that savings in Iraq can be transferred to Af-Pak doesn't make a lot of sense, at least not in the short term. We'll still be bleeding treasure, as well as additional lives, through the near future.

President Obama's new Afghanistan-Pakistan strategy will require significantly higher levels of U.S. funding for both countries, with U.S. military expenses in Afghanistan alone, currently about $2 billion a month, increasing by about 60 percent this year [...]

Obama plans to announce a "simple, clear, concise goal -- to disrupt, dismantle and eventually destroy al-Qaeda in Pakistan," said the official, one of three authorized to anonymously discuss the strategy. The president will describe his plan in a White House speech to a group of selected military, diplomatic and development officials and nongovernmental aid groups.

The officials declined to put dollar figures on aspects of the strategy other than the cost of U.S. combat forces in Afghanistan. Initial funding requests for hundreds of additional U.S. civilian officials to be sent there, as well as increased economic and development assistance to both Afghanistan and Pakistan, will come in a 2009 supplemental appropriation that the administration has not yet outlined.

The goal is certainly more focused, a counter-terrorism effort to deny a safe haven, but it's tied up with a lot of counter-insurgency efforts, aiding locals on the ground, strengthening the corrupt government (and hopefully weeding out corruption), and trying to siphon off reconcilable Taliban. He will seek basic benchmarks for progress instead of throwing in more troops and hoping for the best.

In imposing conditions on the Afghans and Pakistanis, Mr. Obama is replicating a strategy used in Iraq two years ago both to justify a deeper American commitment and prod governments in the region to take more responsibility for quelling the insurgency and building lasting political institutions.

“The era of the blank check is over,” Mr. Obama told Congressional leaders at the White House, according to an account of the meeting provided on the condition of anonymity because it was a private session [...]

Although the administration is still developing the specific benchmarks for Afghanistan and Pakistan, officials said they would be the most explicit demands ever presented to the governments in Kabul and Islamabad. In effect, Mr. Obama would be insisting that two fractured countries plagued by ancient tribal rivalries and modern geopolitical hostility find ways to work together and transform their societies.

American officials have repeatedly said that Afghanistan has to make more progress in fighting corruption, curbing the drug trade and sharing power with the regions, while they have insisted that Pakistan do more to cut ties between parts of its government and the Taliban. Mr. Obama telephoned President Hamid Karzai of Afghanistan and President Asif Ali Zardari of Pakistan on Thursday to share the main elements of the strategic review.

There's a substantial civilian component as well as a regional diplomatic component. In fact, Iran will attend a conference on Af-Pak next week at The Hague. Clearly the United States seeks support for this effort, and Obama played up the need for all nations to be concerned about Al Qaeda safe havens in the region.

I guess my reaction is one of pessimism that this can work. That's not a reason to try, but particularly with respect to Pakistan, I think we have limited reach. Just today, the day of the announcement of a new way forward, a suicide bomber killed 48 during prayers at a Pakistan mosque. And this week has yielded reports that the Pakistani intelligence service still helps the Afghan insurgency. The intelligence service characterizes this as a counter-weight to Indian influence in the region and a hedge against American withdrawal, and now that this commitment has been made, perhaps it will subside. But perhaps not. Getting the whole region, including India, to work together against a common enemy will be a monumental task. And relying on a larger NATO commitment doesn't seem realistic.

Russ Feingold responds:

“I am pleased that the administration is focused on al Qaeda, which is our top national security threat. I particularly appreciated the President's remarks, which addressed the role of Pakistan in these problems first. A new Afghanistan-Pakistan strategy has been sorely lacking for years. I am pleased that the plan includes specific benchmarks for progress in Afghanistan, with a strong emphasis on fighting corruption in the Afghan government, and an increase in civilian assistance. I am also pleased with the beginnings of the necessary emphasis on the even greater problems in Pakistan.
“However, I am concerned that the new strategy may still be overly Afghan-centric when it needs to be even more regional. As the bombing near the Khyber pass this morning highlights, we need to fully address the inextricable links between the crisis in Afghanistan and the instability and terrorist threats in Pakistan.

“Unfortunately, the legacy of the Bush administration in this region can best be compared to a comment the Chairman of the Joint Chiefs of Staff made in 2007: 'In Iraq, we do what we must and in Afghanistan, we do what we can.' This new administration must ensure that we do what we must not only in Afghanistan, but also in Pakistan."

"In other words, the proposed military escalation in Afghanistan, without an adequate strategy in Pakistan, could make the situation worse, not better."

There was an op-ed this week (I can't find it right now) that essentially said we can't fix Afghanistan without fixing Pakistan, and we can't fix Pakistan.

So what then?

The 28th Amendment

It's hard to even write anything today because it will just pale in comparison to Jon Stewart channeling the rage of 10 million blog posts last night. But I have a responsibility to my legions of fans, so...

Let's talk the Senate appointment process!

Russ Feingold held a hearing this week on his proposed Constitutional amendment, to mandate special elections for all Senate vacancies, just as there are for House vacancies. With the spectacular flameout of the Blagojevich/Burris fiasco and other appointments handled poorly, there is no better time to get this done. And the number of appointments - 6 in the past two years - is robbing the people of their ability to choose their own representatives.

Mr. Feingold said he was motivated not only by the furor surrounding the disputed appointment of Roland W. Burris to the Senate by Gov. Rod R. Blagojevich of Illinois, since impeached, but also by the sheer number of appointees in the turnover after the election of President Obama.

“I really became troubled when I realized that such a significant percentage of the U.S. Senate was about to be appointed rather than elected by the people,” said Mr. Feingold, who will convene a joint House-Senate judiciary hearing on the proposal on Wednesday. “I think of it as a right-to-vote issue.”

At the hearing, Sen. Mark Begich testified to the personal experience in his family with this issue:

In October 1972, the Alaska Democrat’s father, Rep. Nick Begich, was declared missing along with House Majority Leader Hale Boggs, D-La., when their plane disappeared on its way to Juneau. It wasn’t until two months later that Nick Begich was declared deceased — and that was after he had been re-elected.

"Throughout this ordeal, Alaskans were officially without representation in the House of Representatives," Begich noted at a bicameral hearing of the House and Senate Judiciary committees. "But my recollection — and my review of news reports from that era — show no outcry for the appointment of a new congressman. Alaskans then, like Alaskans now, feel strongly that their elected representatives in the federal government should be exactly that — elected."

Special elections will remove the possibility for one corrupted politician to make a decision for millions of constituents and help restore democracy to the Senate. It's an obvious fix, so much so that even one of the appointed Senators, Delaware's Ted Kaufman, responded to the proposal by saying, "I think this is a good idea."

You can join Sen. Feingold as a citizen co-sponsor to what he is terming "the 28th Amendment".

Not A Good Time To Shut Down The Government

I'm struggling to find the explanation for why Democrats are aiding an abetting a potential government shutdown. Today Congress passed a continuing resolution to avoid this, but the threat remains. This is all over earmarks, about 2% of the bill, for a measure that Republicans and Democrats created together, last year. And given the current state of the economy, there's no such thing as wasteful spending if it means a job is created.

Even if there is principled opposition, there's no reason to vote against cloture on the part of Dems like Russ Feingold or Evan Bayh. If they don't like the final bill, they can vote against it. There's no reason to hold up the government's business by engaging in obstructionism.

Idiots.