As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."
Tuesday, May 12, 2009
Failing Upwards
I almost have to get out of my seat and clap at the absurdity of this news: Torture lawyer John Yoo has been given a monthly column at the Philadelphia Inquirer.
That's a data point you'd expect at the end of a Vonnegut novel. So it goes.
Aside from justifying waterboarding and other forms of torture, aside from saying that terror suspects didn't deserve habeas corpus because it costs too much, aside from willingly offering every argument to aggrandize executive power in ways that would make a monarch blush, aside from authorizing a torture regime that has led to multiple homicides, aside from a looming disciplinary report from the Office of Professional Responsibility, aside from potential war crimes trials in Spain, here is the latest handiwork from Yoo, designed to get him and his buddies off scot-free (clearly he didn't need to worry):
A Bush administration attorney who approved harsh interrogation techniques of terror suspects advocated in 2006 that President Bush set aside recommendations by his own Justice Department to bring prosecutions for such practices, that the President should consider pardoning anyone convicted of such offenses, and even that jurors hearing criminal cases about such matters engage in jury nullification.
That advice came from John Yoo, a former attorney with the Justice Department's Office of Legal Counsel and author of memos that served as a legal rationale for the Bush administration's interrogation techniques. Yoo's recommendations constitute one of the most compelling pieces of a body of evidence that Yoo and other government attorneys improperly skewed legal advice to allow such practices, according to sources familiar with a still-confidential Justice Department report.
I don't think you need further evidence that Yoo and his cohorts knew what they did was wrong in the eyes of the law. Of course, to the media fraternity, that just means he's "knowledgeable," as it says in this explanation of Yoo's hiring from the editor of the Inquirer opinion page:
John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won't discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo's actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He's a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary.
His most recent op-ed attacks President Obama for seeking "empathy" in his next Supreme Court pick. Obviously Yoo wouldn't know anything about that.
Here's Will Bunch:
But it's not too late to change things. Last Sunday's column by Yoo should also be his last, period. While Yoo is a free man who is thus free to utter his detestable viewpoints on any public street corner, the Inquirer has no obligation to so loudly promote these ideas that are so far outside of the mainstream. People should write the Inquirer -- inquirer.letters@phillynews.com -- or call the newspaper and tell them that torture advocates are not the kind of human beings who belong regularly on a newspaper editorial page, officially sanctioned. Journalists here in Philadelphia or elsewhere who wish to strategize on where to take this next should email me at bunchw@phillynews.com.
I'll write the paper, but this really makes me sad more than anything. Not only has a substantial portion of the country accepted torture as a viable option, the scoundrels who authorized it, who debased this country, are not only likely to avoid any justice for the crimes they committed, but they're getting op-ed columns to boot, a ticket into polite society. Despite the fact that Jay Bybee's moral and ethical fitness can be fully questioned by his decision to allow torture committed in our name, he can just lobby his Congresscritters and elude accountability and sit on the federal bench in judgment of other Americans.
And here's maybe the kicker to the whole thing - at least in Bybee's case - federal judges can be held accountable in this country. It just happened yesterday:
A disgraced federal judge was sentenced Monday to nearly three years in prison for lying to investigators about whether he sexually abused his secretary.
U.S. District Judge Samuel Kent was sentenced to 33 months Monday. He was also fined $1,000 and ordered to pay $6,550 in restitution to the two women whose complaints resulted in the first sex abuse case against a sitting federal judge.
Kent could have received up to 20 years in prison after admitting to obstruction of justice, but prosecutors said they wouldn’t seek more than three years under a plea agreement.
“Your wrongful conduct is a huge black X ... a stain on the judicial system itself, a matter of concern in the federal courts,” U.S. District Judge Roger Vinson said as he imposed the sentence. Vinson is a visiting senior judge called in from Pensacola, Fla.
Right after the verdict, this popped up in my email inbox, a joint statement from the Chair and Ranking Member of the House Judiciary Committee:
Unless Judge Samuel Kent immediately resigns, we intend to introduce a resolution jointly tomorrow to commence an inquiry into whether grounds exist to impeach him and remove him from office.
Are they trying to kill me?
I'm obviously not saying that a sex abuser doesn't deserve this kind of treatment, but that for some reason, authorizing torture which led to detainee homicide doesn't get the dander up in Washington in the same fashion. It makes a mockery of the phrase "moral obligation."
Despite, or in a weird way, because of the troubling return of unitary executive theory in Obama Administration filings in the Al Haramain case, the Justice Department is striving for transparency in releasing many secret OLC memos from the Bush era, as well as the information that the CIA destroyed 92 videotapes of interrogations of terror suspects.
The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001, terrorist attacks, the Bush administration determined that certain constitutional rights would not apply during the coming fight. Within two weeks, government lawyers were already discussing ways to wiretap U.S. conversations without warrants.
The Bush administration eventually abandoned many of the legal conclusions, but the documents themselves had been closely held. By releasing them, President Barack Obama continued a house-cleaning of the previous administration's most contentious policies.
"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties," Attorney General Eric Holder said in a speech a few hours before the documents were released. "Not only is that school of thought misguided, I fear that in actuality it does more harm than good."
The Obama administration also acknowledged in court documents Monday that the CIA destroyed 92 videos involving terror suspects, including interrogations — far more than had been known. Congressional Democrats and other critics have charged that some of the harsh interrogation techniques amounted to torture, a contention President George W. Bush and other Bush officials rejected.
The new administration pledged on Monday to begin turning over documents related to the videos to a federal judge and to make as much information public as possible.
The ACLU has the legal letter acknowledging the destruction of the CIA tapes, and the OLC memos are here. One of the more interesting memos, described by Christy Hardin Smith, is a recent one from October 2008 from the Bush Administration's head of the OLC:
Let me get this straight: we waited all the way to October 6, 2008 -- more than 7 years -- to issue such a memoranda governmentally regarding a fundamental question of posse comitatus? One that the OLC clearly got wrong?
Bradbury goes on to issue a blanket statement that the OLC is not to be used for:
"...broad, hypothetical scenarios involving domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic attacks of 9/11..."
Which is understandable that there would be hasty errors given the circumstances but, again, why did it take more than 7 years to correct their misperceptions?
I have a theory. The Bush Administration knew these were extra-legal actions, and so to cover their behinds they had their OLC chief make them all inoperative just before they left. I don't think it necessarily would make it harder to prosecute, but considering that the incoming Administration wants to "look forward and not backward," it would certainly push them to conclude that the worst is behind us and at least these theories have been rejected.
Except they have not been rejected. In Al Haramain the Obama White House is still using them. Look at this John Yoo memo on FISA, where he claims that domestic searches and wiretaps would not violate the Fourth Amendment as long as the President is combating terrorism, or the one where Yoo argues that First Amendment speech and press rights may have to be suppressed to protect the nation, and ask yourself what Obama is hiding. Ask yourself why he's relying on similar theories of executive power to hide the truth.
This is why we need a Congress with the insistence to uphold their oversight functions and use the tendency for sunlight on the part of the Justice Department to deliver a full investigation into the crimes of the Bush era. I agree with Nancy Pelosi that prosecutions should result from any violations of federal statute found by those investigations. However, even a Truth Commission would be powerful and paradigm-shifting.
Spearheading Senate efforts to establish a torture commission is Rhode Island Democrat Sheldon Whitehouse. As a member of both the Judiciary Committee and the Intelligence Committee, Whitehouse is privy to information about interrogations he can't yet share. Still, regarding a potential torture commission, he told Salon, "I am convinced it is going to happen." In fact, his fervor on the issue was palpable. When asked if there is a lot the public still does not know about these issues during the Bush administration, his eyes grew large and he nodded slowly. "Stay on this," he said. "This is going to be big."
"We may be faced with the prospect of looking at horror in our own country's deeds." Let's hear about all of it. And let's let the current Administration know that we will not abide by the same horror from their conduct, no matter how noble the intention.
The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:
"In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access."
That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency.
Just for a little background on the Al Haramain case - the Islamic charity, in an accidental court filing from the Bush Justice Department, discovered they had been spied upon illegally by the government, without a warrant. Their certainty is due to the transcript of the eavesdropped conversation that the government gave them. Since that time, both the Obama and Bush Administrations have ordered that the document, and therefore the evidence for illegal conduct, is classified and cannot be admitted into court. Despite several rulings to the contrary, this President - like the one before him - is claiming that only the executive can decide what may be done with classified information, with the potential being that any President can just classify whatever compromising information exists about his or her activities and shield it from the view of the Congress, the courts, and the people. It is an expansive and un-American view of the Constitution, used in this case to service a massive cover-up.
There is simply so much that Obama's team has had to overturn from the Bush regime, they're probably getting heartburn from all of the decisions. Yet while, in isolated respects, they've done a decent job, it cannot excuse this conduct. I don't know whether it's foreknowledge of the extent of the lawbreaking, or pressure from the telecoms to save their immunity (which could absolutely be threatened by this ruling, as there's a pending case with the same judge, Vaughn Walker) or what, but Washington is united in really, really not wanting the truth on warrantless wiretapping to come to light. It is despicable that this has become so vital that Obama, a constitutional law professor, would adopt the same unitary executive theory than he actually swore an oath to reject.
About a year or so ago, the local ACLU chapter had Pulitzer prize-winner Charlie Savage in for a chat, and much of the discussion centered on the Office of Legal Counsel (OLC), which he called "the Supreme Court for the executive branch." Essentially, a favorable OLC opinion can justify virtually any abuse of the system by the executive, and because it's pretty much a secret office, nobody understands the legal ramifications unless and until the executive branch is challenged on their reading of the law. The OLC is the provenance of the worst abuses of the Bush Administration, including memos justifying torture and warrantless wiretapping. Therefore, seeing that Dawn Johnsen, a powerful advocate for the rule of law, will be heading up that body is extremely encouraging news for anyone who believes the Obama Administration will represent a break from prior practice and the expanding of the Presidency through unitary executive theories. Johnsen is a professor at Indiana University, but her public writings are what give civil liberties hope. The starkness of the language, the ANGER with what the Bush regime has done to justice, is what sticks out in this Slate article Johnsen authored:
I want to second Dahlia's frustration with those who don't see the newly released Office of Legal Counsel (OLC) torture memo as a big deal. Where is the outrage, the public outcry?! The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it--all demand our outrage.
Yes, we've seen much of it before. And yes, we are counting down the remaining months. But we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law--and not just for the remaining nine months of this administration, but for years and administrations to come.
OLC, the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted. That Congress lacks the authority to regulate the interrogation and treatment of enemy combatants. . . .
John Yoo, the memo's author, has the gall to continue to defend the legal reasoning in this memo, in the face even of Bush administration OLC head Jack Goldsmith's harsh criticism--and withdrawal--of the memo. Not only that, Yoo attempts to spin the memo's advice on presidential power as "near boilerplate" . . .
I know (many of us know) Yoo's statement to be false. And not merely false, but irresponsibly and dangerously false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law.
Far from "near boilerplate," recall that the last President who took the view that "when the President does it that means that it is not illegal" was forced to resign in disgrace. . . .
Is it possible John Yoo alone merits our outrage, as some kind of rogue legal advisor? Of course not.
As Dahlia points out, Bush has not fired anyone responsible for devising the legal arguments that have allowed the Bush administration to act contrary to federal statutes with close to immunity--or for breaking the laws. In fact, the ones at Justice who didn't last are the officials (like Goldsmith) who dared to say "no" to the President-which, by the way, is OLC's core job description. . . .
The correct response to all this? Marty has several good suggestions to start. And outrage. Directed where it belongs: at President Bush, as well as his lawyers.
As Glenn Greenwald notes, this is not the language of the Village, and it is much to Johnsen's credit to play this out in public.
I don't know all that much about her, but anyone who can write this, in this unapologetic, euphemism-free and even impolitic tone, warning that the problem isn't merely John Yoo but Bush himself, repeatedly demanding "outrage," criticizing the Democratic Congress for legalizing Bush's surveillance program, arguing that we cannot merely "move on" if we are to restore our national honor, stating the OLC's "core job description" is to "say 'no' to the President," all while emphasizing that the danger is unchecked power not just for the Bush administration but "for years and administrations to come" -- and to do so in the middle of an election year when she knows she has a good chance to be appointed to a high-level position if the Democratic candidate won and yet nonetheless eschewed standard, obfuscating Beltway politesse about these matters -- is someone whose appointment to such an important post is almost certainly a positive sign. No praise is due Obama until he actually does things that merit praise, but it's hard not to consider this encouraging.
One of the better side effects of Obama's inauguration is that we can finally stop the endless theoretical arguments in the blogosphere about how he means to govern. Whether he's a cautious centrist who will fulfill his campaign promises in incremental ways and do little to challenge Beltway assumptions, or he's a secret progressive who has been hiding his true intentions and employing scores of cabinet members from the political center to give himself breathing space to implement sweeping progressive policies, we'll know soon enough and the exhausting parlor game of pondering will be over. One early test will come in the case of Ali al-Marri, where an Obama Administration will have to provide an opinion on where they stand on key Constitutional issues such as the rule of law, executive power and detainee policy in the "war on terror."
Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.
The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.
During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.
It's almost unquestionable that al-Marri cannot have a fair trial in US courts without acquittal, as a substantial portion of the evidence against him is likely to have been acquired through the use of torture. Bush's intel officials consider al-Marri dangerous and unable to deport. And yet the legal claims made by the Bush team, that the executive has the right to indefinitely detain an American citizen (and in established practice, a legal resident of the United States has the same right to due process), without charges, and hold them inside the United States as long as they wish, is abhorrent and must be disavowed. Obama has already disavowed this during the campaign.
A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”
That sounds vigorous and categorical. But applying this view to Mr. Marri’s case is not that simple. Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.
Still, Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration’s approach to fighting terrorism, said Mr. Obama’s hands are tied. He cannot, Mr. McCarthy said, continue to maintain that Mr. Marri’s detention is lawful.
“I don’t think politically for him that’s a viable option,” Mr. McCarthy said. “Legally, it’s perfectly viable.”
Big thanks to Mr. McCarthy for setting the boundaries of what is politically viable for a new President.
Anonymous Liberal has a very good post laying out the options for the Obama Administration:
I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).
Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.
This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.
We have a group in power currently that has no problem reconciling the dissonance between prosecuting foreigners for torture while allowing those inside the government who directed and authorized the same to go free. This is what has diminished America's standing in the world and strained relations with allies. If the Obama Administration continues operating under this double standard, insisting that other countries respect human rights and international agreements while declining to do the same, he will find it impossible to convince the world that anything resembling change has come to America, as well as most of us in this country as well. The future of the rule of law, badly crippled through eight years, is at stake.
And within a month, there won't need to be any more debate about it - the first filing in the case is due the Monday after Inauguration Day.
Boy, I guess I hadn't realized how much of a positive impact not seeing the national cable news shows during the day has had on my life. It's been nearly a year since I've been around during the day with the shoutcasts on in the background, and the editorial decisions they make on what is news just fascinates me. On this day, with the economy continuing to crumble, commercial real estate now looking for a bailout, and the incoming Administration's thoughts on both the size of the economic stimulus and the doubling of forces in Afghanistan coming into focus, the big stories are... Republicans like Peter King said bad things about Caroline Kennedy and Fourthbranch Cheney said bad things about Joe Biden? Wow, it really is like junior high school in media world. They're all frustrated theater directors, I guess, and they want to construct human drama using soap opera techniques instead of the consequential issues and actions that impact people's lives.
Nevertheless, it was good to hear the name "Joe Biden" on any cable news show, considering that he'll become the second in line to the most powerful job in the world. And it was even better to hear some of his views and responsibilities in that role. For example, he's going to be heading up a task force aimed at increasing the ranks of the middle class, which I'm fairly certain based on the policies of the last eight years was not a priority.
As vice president, Joe Biden will oversee an Obama administration effort to find ways of building up the ranks of the middle class, that ambiguously defined segment of society most Americans identify with.
The task force will include four Cabinet members as well as other presidential advisers, the Obama transition team announced Sunday.
The goal is to recommend proposals to ensure the middle class is "no longer being left behind," Biden said. The proposals could include executive orders and legislative plans.
"Our charge is to look at existing and future policies across the board and use a yard stick to measure how they are impacting the working and middle-class families," Biden said in a statement released Sunday. "Is the number of these families growing? Are they prospering? President-elect Obama and I know the economic health of working families has eroded, and we intend to turn that around."
The fact that progressive economist Jared Bernstein has been named Biden's chief economic advisor will be a great aid to this effort, and it's a very encouraging sign at a time when all we have are signs. So is the fact, chief to the cable shoutcast musings, that he fully rejects the unitary executive concept popularized by Bush/Cheney, and how that has played out in practice with respect to Guantanamo:
The vice president-elect said he would “restore the balance” to the office, and he offered his own critical assessment of Mr. Cheney, saying the vice president’s recommendations to Mr. Bush on the war and counterterrorism issues were “not healthy for our foreign policy, not healthy for our national security.”
“His notion of a unitary executive,” Mr. Biden said, “meaning that, in time of war, essentially all power, you know, goes to the executive, I think is dead wrong.”
Mr. Biden said that he was still committed to closing the American prison at Guantánamo Bay, Cuba, and that he remained critical of the Bush administration’s surveillance and detention programs, saying, “we have created, not dissuaded, more terrorists as a consequence of this policy.”
However, the news isn't entirely glowing. Biden uses the foolish "looking forward, not backward" construction when answering whether he supports prosecuting Bush Administration officials for war crimes, when of course only deterrence from committing those crimes will provide a bulwark to ensuring a future without them. He said that "The questions of whether or not a criminal act has been committed…is something the Justice Department decides ... that’s a decision I’d look to the Justice Department to make,” and hopefully that means he'd stay out of any DoJ investigations or indictments, but let's just say I'm not hopeful.
Barack Obama said you've got to reach out. You've got to reach a hand of friendship across the aisle and across philosophies in this country.
We can't continue to be a red and blue country. We can't be divided like we have been. And he's made good on his promise.
And I would say to the gay and lesbian community, they have nothing to worry about. Barack Obama, every aspect of his life, every aspect of his public life, and every commitment he's made relating to equality for all people, will be things that he will stick with and that they should view this in the spirit in which he offered the opportunity to -- to Mr. Warren.
I eagerly await seeing Obama and David Duke appearing on stage together, in the spirit of reaching out.
Of course, MSNBC's Mike Barnicle told me I'm in the minority on this argument based on my geography, saying on Hardball today that "If you take Cambridge, the Upper West Side of Manhattan, Georgetown, Santa Monica and San Francisco out of the argument, there is no argument." Of course, it's just an axiom of faith that alienating millions of key supporters is a universal good. That's how the media reported it on the few occasions when Bush moved against conservative orthodoxy, as on the Medicare prescription drug bill (at least on its face) and immigration reform, right?
Yeah, I don't remember seeing that either. In the Beltway you only get points for kicking the LEFT.
Let's Check What Holder Had To Do With Carter's Bungled Iranian Hostage Rescue!
I know that the right is trying to make an example of Eric Holder, but going back to questioning his role in the Elian Gonzales case and his support of the Brady Bill (???) just makes them look completely ridiculous. If the goal is to stop the Holder nomination, or even to paint him as a tool of liberal special interests, dredging up things that are 9 and 10 years old is not going to help. This rebounds back on them more than anything.
However, I think Marcy Wheeler is on to something. The goal is to slow down the Holder nomination with countless challenges enough to delay the time that he gets his hands on the opinions approving torture and warrantless wiretapping produced by the OLC (Office of Legal Counsel). There's a lot of incriminating material in those opinions, which the Bush Administration hasthus far held from the Obama transition team as well as Patrick Leahy, the chair of the Senate Judiciary Committee.
Why would the delay be so important to Bush and company? Maybe to just keep the programs going for a little while longer. Or, maybe to give more time to impress upon Obama that he needs these radical powers:
In an interview with Rush Limbaugh (via Politico), Vice President Dick Cheney predicted that the next president will appreciate the way he and George Bush expanded executive power.
"Once they get here and they're faced with the same problems we deal with every day, then they will appreciate some of the things we've put in place," Cheney said.
"We did not exceed our constitutional authority, as some have suggested," Cheney added. "The President believes, I believe very deeply, in a strong executive, and I think that's essential in this day and age. And I think the Obama administration is not likely to cede that authority back to the Congress. I think they'll find that given a challenge they face, they'll need all the authority they can muster."
Cheney has been practically bursting with pride over invading a country with no real rationale and waterboarding terror suspects. I'm certain he's delusional enough to believe that everyone is as psychotic as he is, and once given supreme unitary executive powers they won't want to relinquish them. Delaying Holder ensures that Obama at least has a few months to test out the new tools. Now, he has repeatedly promised to close Gitmo and end torture (on wiretapping he hasn't been completely clear, and he voted for the awful FISA bill), so I don't think this is such a good bet. But once you give someone powers, it's not always likely that they willingly give them up.
The auto rescue is dead. Notice how the AP blamed it entirely on the UAW in the lede, and not the neo-Hooverist Republicans who want to blame workers for the sins of executives, and boost the heavily-subsidized foreign auto companies making cars in their home states.
A $14 billion emergency bailout for U.S. automakers collapsed in the Senate Thursday night after the United Auto Workers refused to accede to Republican demands for swift wage cuts.
The collapse came after bipartisan talks on the auto rescue broke down over GOP demands that the United Auto Workers union agree to steep wage cuts by 2009 to bring their pay into line with Japanese carmakers.
Here's Harry Reid's statement:
"Given the unhappy choice between a bridge loan and bankruptcy, Democrats have always believed that we must give the Big Three and the millions of Americans they employ every possible chance to succeed.
"By rejecting every good-faith bipartisan compromise – including those from the White House and Senator Bob Corker – it is now abundantly clear that Republicans have no interest in keeping the Big Three from collapsing.
"Because Republicans failed to act, three million Americans are more likely than ever to lose their jobs and our economy is at risk of suffering even greater damage. Our hearts go out to those families who will now have to deal with this burden as the holidays near.
"Republicans may think that rejecting this legislation sent a message to the auto industry. Instead, they sent a message to every single American that they are more interested in settling scores than solving problems."
They took a cloture vote tonight, which failed 52-35. You'll notice that bipartisan maverick John McCain voted no. The 52 votes don't include Biden, Kerry (in Europe, I believe), Kennedy and Wyden (?). Add in those 4 plus Reid (who voted no for procedural reasons) and you're 3 votes away. Lame ducks Gordon Smith, John Sununu and Series of Toobz Stevens sat this out by not voting. Merkley, Shaheen and Begich would be likely to vote Yes, and add in Biden and Obama's successors (whenever that is) and you have the votes to pass this come Jan. 6 when the new Congress is sworn in.
But we probably don't have that kind of time. And so the only hope for GM and maybe Chrysler is for the Treasury Department to use some TARP money for the loans.
The proposal to loan $14 billion to Detroit's struggling automakers collapsed late Thursday night but the Big Three may get some money anyway.
Bush officials warned wavering GOP senators that if they didn't support the legislation, the White House will likely be forced to tap the Wall Street bailout to lend them money, two Republican congressional officials told CNN earlier.
This is a noteworthy change since the White House and Treasury Secretary Henry Paulson have previously refused to use bank bailout funds to help General Motors (GM, Fortune 500), Ford Motor (F, Fortune 500) and Chrysler LLC.
The sources asked not to be named because of the sensitivities of private conversations.
This probably plays well to Bush's inner decider. He gets to walk out and scold the Congressmen who didn't do his bidding and put it into law by executive fiat. And as much as I don't want to imbue the President with MORE executive power, at this point he already has it (in fact, Bernanke could hand out this money tomorrow), and faced with 3 million unemployed middle-class workers, I can handle my discomfort with the obliteration of checks and balances for just a few days longer. So I join the Democratic leadership in asking the Decider to go ahead and decide.
Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi, Senate Banking Committee Chairman Chris Dodd and House Financial Services Committee Chairman Barney Frank today sent a letter to President George W. Bush to again urge him to use the authority provided under the Troubled Assets Relief Program (TARP) of the Emergency Economic Stabilization Act (EESA) of 2008 to provide limited, temporary assistance to the automobile industry during this financial crisis. The letter notes that the failure of the Big 3 would have a major direct and negative impact on the financial sector, not just on the economy as a whole. The Treasury Department has stated that funding from the EESA should only be used to protect the U.S. financial sector.
In the letter, they further state: “Your decision to utilize the TARP funds, or to work with the Federal Reserve to make available assistance through its existing lending programs, or both, are essential to the Congress’ ability to address this critical economic situation in a timely manner, and would also eliminate the uncertainties inherent in the legislative process.”
If he's going to do this, he ought to do it EARLY in the day. Like before 9:30am. Between the imminent collapse of the domestic auto industry and this $50 billion dollar Ponzi scheme the SEC just uncovered, Wall Street is just going to be awful tomorrow.
In a crisis, we're all liberals. Make us proud, unitary executive.
General Motors Corp. has hired bankruptcy counsel and restructuring advisers to prepare for a filing if Congress does not authorize $14 billion in emergency federal loans.
"The Board is meeting frequently and is monitoring the situation closely and is considering all options, as is management," GM spokesman Steve Harris told The Detroit News tonight. "And they have engaged appropriate advisors for all contingencies."
The more that you delve into Sarah Palin's Thursday night performance in the debate, the worse it appears, because lots of her statements were outright lies. She stated that John McCain favors bankruptcy judges restructuring the principles homeowners allow on their mortgages - not so. She stated that public schools need additional funding and teachers need to be paid more - that's not the McCain position. She said that she favored divestment from Sudan while Governor of Alaska - sadly, no (apologies to Sadly, No).
"The [Palin] administration killed our bill," said Alaska state representative Les Gara, D-Anchorage. Gara and state Rep. Bob Lynn, R-Anchorage, co-sponsored a resolution early this year to force the Alaska Permanent Fund a $40 billion investment fund, a portion of whose dividends are distributed annually to state residents to divest millions of dollars in holdings tied to the Sudanese government.
In Thursday's debate, Palin said she had advocated the state divest from Sudan. "When I and others in the legislature found out that we had some millions of dollars [of Permanent Fund investments] in Sudan, we called for divestment through legislation of those dollars," Palin said.
But a search of news clips and transcripts from the time do not turn up an instance in which Palin mentioned the Sudanese crisis or concerns about Alaska's investments tied to the ruling regime. Moreover, Palin's administration openly opposed the bill, and stated its opposition in a public hearing on the measure.
"The legislation is well-intended, and the desire to make a difference is noble, but mixing moral and political agendas at the expense of our citizens' financial security is not a good combination," testified Brian Andrews, Palin's deputy revenue commissioner, before a hearing on the Gara-Lynn Sudan divestment bill in February. Minutes from the meeting are posted online by the legislature.
Not to mention the answer about how as Vice President she will seek additional authority from the legislative and judicial branches, which is honestly frightening. We already know that Palin is perfectly willing and able to abuse her authority - the machinations to shut down the Troopergate investigation are a perfect example. This is a dangerous person to put into power. The fact that the emergency appeal to the Alaska Supreme Court warns that "the plaintiffs and Alaskans will suffer irreparable harm" if the Branchflower report is released as scheduled on October 10, which is the exact language used in Bush v. Gore, gives you a clue.
All the more reason to work harder and make sure she comes nowhere near Washington.
Digby called attention to this stunning excerpt from Jane Mayer's new book, where she reveals that DoJ lawyers (and from context, this could be Jim Comey and Jack Goldsmith, two extremely high-level officials) were speaking in codes because they suspected their government was wiretapping them to determine their motives. It's really only the latest in a long, long series of outrages, and it's not even the most amazing one of the week:
As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. Furthermore, the agents' belief they weren't in fact torturing their captives didn't even need to be "reasonable."
These are the implications of a controversial August 2002 memo from the Justice Department to the CIA that was released Thursday. The American Civil Liberties Union obtained several internal Bush administration documents it says authorizes the CIA to torture detainees.
And we all know that torture just scratches the surface, if that can be believed. Slate has now put together an interactive guide to all the lawbreaking. The very fact that you can make a rich media interactive guide is enough to make you vomit. While more and more information leaks out every day, there's certainly enough to make a credible case for just about any prosecution you can imagine. The question, of course, is: will there be any justice?
On Friday, the House Judiciary Committee held a not-impeachment hearing. They literally couldn't use certain words that would suggest the President or his staff lied, broke laws, or violated the public trust. Just informational and all that. It was very prim and proper, and while Democrats and Republicans and libertarians alike testified to the scope of the unconstitutional rogue Presidency under which we've all lived since January 2001, and allies like the ACLU praised the first step, let's be honest - in the accountability-free culture of Washington, holding a hearing that avoided the word "impeachment" or indeed any kind of responsibility for the actions outlined, is about as far as anyone wants to go.
If you're looking for accountability, it's highly unlikely that you'll get it from either potential incoming Administration. Cass Sunstein's interview on Democracy Now put an end to any hopes of that, rejecting prosecution for "non-egregious" crimes that would amount to the criminalization of politics. Anyway, the Military Commissions Act effectively nullified any opportunity for War Crimes Act prosecutions domestically. And since the conservative movement goes apeshit at just the hint of accusing these guys of what they've admitted to doing, there's little chance any Democrat will have the stomach for following through.
And yet, there are other intriguing possibilities. The very fact of this surfeit of lawbreaking has bred a new kind of Democrat, a reform-minded type who will run on - and possibly win on - accountability. If we had 20 Alan Graysons in Congress, you bet something would happen.
Alan Grayson: I'm Alan Grayson, and I'm the Democratic candidate for Congress in Florida's district eight. And I'm the attorney of record in every single case now pending in Federal court involving war profiteers in Iraq. These are cases in which I represent whistleblowers. The Florida civil rights association named me Humanitarian of the Year for my work in this regard, taxpayers against fraud named me lawyer of the year, and I've been featured in Vanity Fair magazine, in media like CBS evening news, 60 minutes, and even Dailykos, imagine that. I'm running because I'm fed up with the government mismanagement, the Bush administration's shameless pandering to war profiteers. I think they set out on a deliberate course to make this war good for the people who were their friends. And I want to try to hold them accountable when I'm in Congress. When I'm in Congress... the Bush administration's worst nightmare is going to be me with subpoena power because I know everything that they've done, and I'm going to hold them accountable for it.
Matt Stoller: But wait wait, let me just interrupt you there, the Bush administration's gone in 2009.
Alan Grayson: Oh but all the people they set up as the new kings and queens of America are still around. What Eisenhower said, that we need to fear the military industrial compex, has become true because they have manufactured a five year war that they want to perpetuate for a generation or even a century so that they can keep lining the pockets of their friends, the war whores.
Matt Stoller: So, people are going to say, let bygones be bygones, or let's have some sort of truth and reconciliation commission, what do you think needs to happen?
Alan Grayson: We don't need truth and reconciliation, we need punishment. We need people to be held accountable for all the mistakes that they made that have screwed us up in this war and screwed us up in this economy. The economy is falling apart, the chickens are coming home to roost. You cannot spend $10,000 for every man, woman, and child in America for a war that never should have taken place in the first place.
Right on. Now how this manifests itself is unclear, but there is talk of a 21st-century Church Committee to relentlessly investigate and bring to light the worst abuses of the past eight years, and with someone like Grayson involved in it there's at least hope that the road leads to prosecution instead of admonishment.
New Zealand students protesting the Iraq war offered a reward to anyone who carries out a citizen's arrest of Secretary of State Condoleezza Rice during her visit to the country Friday.
The Auckland University Students' Association is seeking Rice's arrest for her role in "overseeing the illegal invasion and continued occupation" of Iraq, Association President David Do said. The group is offering a $3,700 reward.
Des Moines police arrested four people Friday who attempted a citizen's arrest of former White House adviser Karl Rove.
Rove was in Des Moines to speak at a fundraiser [...]
The four accused Rove of election fraud and conspiracy to commit offense or to defraud the United States in the time before the Iraq war.
Now on the surface it appears that actions like this are futile, just a way for protesters to vent and make Administration officials' lives just a smidge less comfortable. But let's face it. Though a new Church Commission or a wave of reformers would be nice, the idea that Bush and Cheney and Rumsfeld and Feith and Wolfowitz and Rice and Rove will get anything approaching their just consequences for what they have done is remote (though that's no reason not to keep pushing). However, there's a cumulative effect, I imagine, to the spectacle of people being arrested for trying to serve you with a summons everywhere you go for the rest of your life. I guess the Amish culture has shunning, and this is the opposite. I'm well aware that these people aren't well acquainted with the concept of shame. But the idea that forever more, they will have to run from one car to the next, have to use subterfuge to escape criminal prosecution abroad, can never walk down the street in comfort, and need to always look over your shoulder, is at least something. And one of these days, one of them will slip up. It's the equivalent of holding up a mirror, forcing these people to look at themselves for all their ugliness, forever. Aside from the psychological impact, it builds the movement for accountability. And it keeps the signature issues - torture, illegal spying, lying in service to endless war, extreme executive power - in the spotlight, so that the next set of conservatives won't be able to enter the White House so stealthily. The goal here is to prosecute, of course, but also to discredit, to nuclearize, to keep these actions out of the memory hole. We cannot do any less.
Digby mentioned yesterday the video of Omar Khadr, the first we have of an interrogation at Guantanamo, sobbing uncontrollably as he attempts to tell his story to Canadian investigators. The kid is 16 and he's clearly on the edge of a nervous breakdown.
This is only the most recent in what is now a mountain of information on torture that has slowly seeped out over the past year. Just yesterday Osama bin Laden's driver Ahmed Hamdan discussed his coercive treatment in a Guantanamo military commission. And Jane Mayer's much-anticipated book on torture, rendition, and the policies of the Bush Administration has already revealed enough information to fill several stories, including the news that the CIA knew that significant numbers of prisoners captured "on the battlefield" were innocent of any charges, that the Red Cross had secret knowledge of torture that they wrote up in a classified report to the CIA, which incriminated top Administration officials in war crimes, and much more. Mayer's book, ably reviewed by Tim Rutten, is an account of the battle inside the White House as much as the battle around the world, with the stories of heroes and patriots who tried to preserve American ideals by resisting efforts to rewrite the rules of interrogation and the treatment of prisoners, and their opponents, mostly in the Vice President's office, who stymied them. Anyone who questioned the program, like the Inspector General of the CIA John Helgerson, who in 2004 wrote a very serious report alleging war crimes, mistreatment and homicide, and who received personal visits from Dick Cheney thereafter, was shut down.
...the White House was relying on opinions from John Yoo and other authoritarian ideologues in the Office of Legal Counsel who secretly told the president and vice president that they enjoyed inherent powers to overturn any law restraining surveillance, searches and seizures within the United States. As one such memo said, "The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
Mayer does a superb job of describing how the trauma of 9/11 all but unhinged Bush and Cheney and predisposed the chief executive to embrace the ready-made unitary executive theory of presidential power, which the vice president and his chief aide, David Addington, had come to Washington prepared to promote. In the opinion of the late historian Arthur Schlesinger, "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history."
Those who have been paying attention know the consequences of this. Much of the torture and abuse was subjected to people who had no intelligence value and were never credibly charged with any crime. The methods were based on decades-old survival techniques produced by the Navy to resist torture, and a manual from the Chinese that used torture to elicit false confessions. They used psychologists to develop a program of "learned helplessness", reverse-engineered from the SERE techniques. In the end, not one terror suspect has been convicted of anything since 9/11. The "intelligence" gained from the likes of Abu Zubaydah and Khalid Sheikh Mohammed was of the wild goose chase variety. Evidence of torture inflamed the Islamic world and became a recruitment poster for Al Qaeda. And on and on. There's more from Dan Froomkin, Andrew Bacevich, Frank Rich and Daniel Larison.
And any effort to stop this, even in the face of overwhelming evidence of its failure, was squelched, in a bipartisan fashion, because of politicians who wanted to cover their tracks. As Glenn Greenwald puts it:
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice [...]
If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.
Yes, because the torture program itself, in a sense, was a method to cover up an earlier crime. In the months before 9/11 the White House was completely disinterested in terrorism, dismissing the concerns of the intelligence community and neglecting to address the threat. After 9/11, they swung completely in the other direction, and the programs of torture and indefinite detention and surveillance, which were largely off the shelf from long into, were put into action to prove to the nation that something was being done, that there was a manner of payback being extracted.
After interviewing hundreds of sources in and around the Bush White House, I think it is clear that many of the legal steps taken by the so-called “War Council” were less a “New Paradigm,” as Alberto Gonzales dubbed it, than an old political wish list, consisting of grievances that Cheney and his legal adviser, David Addington, had been compiling for decades. Cheney in particular had been chafing at the post-Watergate reforms, and had longed to restore the executive branch powers Nixon had assumed, constituting what historian Arthur Schlesinger Jr. called “the Imperial Presidency.”
Before September 11, 2001, these extreme political positions would not have stood a change of being instituted—they would never have survived democratic scrutiny. But by September 12, 2001, President Bush and Vice President Cheney were extraordinarily empowered. Political opposition evaporated as critics feared being labeled anti-patriotic or worse. It’s a familiar dynamic in American history—not unlike the shameful abridgement of civil liberties represented by FDR’s internment of Americans of Japanese ancestry. One of the strongest quotes in the book, I think, comes from Philip Zelikow, the former executive director of the 9/11 Commission, former counselor to Secretary of State Condi Rice, and a historian who teaches at the University of Virginia. He suggests in time that America’s descent into torture will be viewed like the internment of the Japanese, because they happened for similar reasons. As he puts it, “Fear and anxiety were exploited by zealots and fools.”
In an interview with "Fresh Air," Jane Mayer talked about how Bush and Cheney were receiving raw, unfilitered intelligence after 9/11, lurid tales of nuclear attacks on the country and massive terrorist bombings, most of it bullshit, but so vivid as to justify, in their minds, whatever depravity they ended up putting into practice. One claim in the book is that Cheney thought he had taken a lethal dose of anthrax, which contributed to his insistence on tough tactics. Incidentally, it was based entirely on a false alarm in the White House Situation Room. That didn't stop Cheney's paranoia. He was completely consumed with this stuff, and I'm sure he believes what he did was necessary to protect the country.
But that's not a legal justification. And no matter how many times John Yoo and David Addington try to rewrite the history of the Constitution, what has been done violates federal law, international treaties and war crimes statutes. In a just world, as Jerrold Nadler said yesterday, Bush and Cheney would be impeached. But this goes well beyond removal from office. This is about indictment for murder and war crimes, by definition. In case you were wondering, however, here is the official Village pronouncement about what we should do with the fact that our leaders, in a complete breakdown of the rule of law, have tortured, detained without charges, and murdered:
Dark deeds have been conducted in the name of the United States government in recent years: the gruesome, late-night circus at Abu Ghraib, the beating to death of captives in Afghanistan, and the officially sanctioned waterboarding and brutalization of high-value Qaeda prisoners. Now demands are growing for senior administration officials to be held accountable and punished. Congressional liberals, human-rights groups and other activists are urging a criminal investigation into high-level “war crimes,” including the Bush administration’s approval of interrogation methods considered by many to be torture.
It’s a bad idea. In fact, President George W. Bush ought to pardon any official from cabinet secretary on down who might plausibly face prosecution for interrogation methods approved by administration lawyers.
That's right. Just shut it down. Those mean old hippies are just too worked up about all of this stuff. We need to just move on and heal the nation's partisan wounds and forget about all this "accountability" nonsense.
As Greenwald said, this is what happens to a country when there is a removal of the rule of law, when the powerful can absolve themselves of blame and the media courtiers serve to protect them. There is no question that top Democrats were briefed about this program, if not the full extent of it. They absolutely voted to immunize any Administration official from prosecution in the Military Commissions Act (funny how "immunity" keeps coming up as a theme of Bush-led legislative initiatives). They want to pardon themselves by vowing never to bring up the word "indictment" in polite company, so leaders of all political stripes can whistle and laugh at Washington cocktail parties at the end of empire.
This "Truth Commission" thing is taking hold throughout the Village, and I understand the impulse to an extent, but it's not like the parties who would be pardoned have even acknowledged any wrongdoing. They're still asserting unitary executive powers, and they're still winning battles in the courts, so why would you instinctively want to pardon people who believe they've done nothing wrong?
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
The same court ruled that this prisoner has the right to an additional habeas hearing, and additional habeas hearings have been ordered by other judges. But read that above sentence. Indefinite military detentions of civilians captured inside the United States. Why would anyone submit to a Truth Commission when they're winning.
But the real reason I can't abide by a Truth Commission any more, not after the slow drip of illegalities over the last few years, is because of this aspect of the Village mindset. Bradrocket says it best:
"A criminal investigation would only hinder efforts to determine the truth, and preclude any apologies. It would spur those who know the most to take the Fifth. Any prosecutions would also touch off years of partisan warfare."
And this, my friends, is the absolute nightmare of the Village Mindset: years of partisan warfare. Why do evil people like George W. Bush and Dick Cheney feel they can simply break the law with reckless abandon? Because they know that modern American political culture simply does not believe in accountability for its political class. They know that in the end, they’re part of the same Villager club of Special People who are too powerful and too privileged to ever face any consequences for their actions. Prosecute government officials for state-sanctioned torture?? How uncouth!
And that's the racket in Washington. Accountability is just a word people throw around.
At some level I suppose it's futile to expect Nero to do something other than fiddling, but it's the manner in which they went about this that's so frustrating. Feeling unsatisfied by directly contravening federal Congressional statutes, the Bushes have moved on to contravening judicial mandates. And since nobody in Washington is demanding anything approaching accountability, they'll get away with it.
The Environmental Protection Agency plans to announce today that it will seek months of further public comment on the threat posed by global warming to human health and welfare -- a matter that federal climate experts and international scientists have repeatedly said should be urgently addressed.
The Supreme Court, in a decision 15 months ago that startled the government, ordered the EPA to decide whether human health and welfare are being harmed by greenhouse gas pollution from cars, power plants and other sources, or to provide a good explanation for not doing so. But the administration has opted to postpone action instead, according to interviews and documents obtained by The Washington Post.
To defer compliance with the Supreme Court's demand, the White House has walked a tortured policy path, editing its officials' congressional testimony, refusing to read documents prepared by career employees and approved by top appointees, requesting changes in computer models to lower estimates of the benefits of curbing carbon dioxide, and pushing narrowly drafted legislation on fuel-economy standards that officials said was meant to sap public interest in wider regulatory action.
The decision to solicit further comment overrides the EPA's written recommendation from December. Officials said a few senior White House officials were unwilling to allow the EPA to state officially that global warming harms human welfare. Doing so would legally trigger sweeping regulatory requirements under the 45-year-old Clean Air Act, one of the pillars of U.S. environmental protection, and would cost utilities, automakers and others billions of dollars while also bringing economic benefits, EPA's analyses found.
Short version: The EPA lost a case in court, the Supreme Court ordered a decision on regulating greenhouse gases as a pollutant, the EPA rendered one, the White House decided not to open the email, and now they're going to punt on the whole thing. So goodbye from the world's biggest polluter.
The radical nature of the Cheneyite project in Washington has revealed giant flaws in the modern rendition of the Constitutional system. What we've now seen is that the structure of democracy in America has to this point been held by a broad gentleman's agreement. If laws aren't followed by the branch meant to execute the laws, everything breaks down. If court orders mean nothing, if federal statutes can be appended by someone other than the legislature, we are living in a spinning chaos.
This isn't that new - Andrew Jackson's famous quote about Chief Justice John Marshall's ruling on removing Cherokees from their land in Georgia, "John Marshall has made his decision, now let him enforce it," comes to mind - but there's an audacity to the current project that does suggest that somuch of this government's practices are faith-based. Many of us believe in the law and the rules and the expected conduct based on following them, and this sliver of conservative thought just doesn't. They find it perfectly acceptable to disavow their own reports and rewrite their own rules and create their own reality. It's only because of the stunning lack of success of this project that there's even a chance to discredit it.
But this all comes back to accountability. Nobody tries to pull this off if they aren't confident they'll suffer no consequences. I think one of the more revealing essays of the week comes from Tim Noah at Slate, discussing this new Serious Bipartisan Commission report from Village elders about war powers, which is pretty much not needed if Article I, Section 8 were ever consulted in a rigorous manner. The document that James Baker and Warren Christopher provided this week would eliminate what little accountability is provided in the 1973 War Powers Act, eliminating the sunset provision for military action by the executive without Congressional approval after 30 days. But this is precisely what Congress desires. Noah writes:
Congress doesn't want to streamline its role in declaring war, because, for all its bluster (not to mention its constitutional responsibility), Congress doesn't want to be held politically accountable for the results. I first became aware of this phenomenon 21 summers ago while covering a House debate on the use of Navy convoys to escort 11 Kuwaiti oil tankers through the Persian Gulf. Iraq and Iran were at war, and although the United States didn't officially take sides, this military action reflected our government's quiet tilt toward Saddam Hussein's Iraq...
Anyway, on that August afternoon in 1987 the House was debating whether to invoke the War Powers Resolution, a 1973 law meant to require congressional approval of any executive action that introduced the armed forces into hostilities, or into a situation in which hostilities seemed pretty goddamned likely, as appeared to be the case here. (Happily, the Navy escort occurred without incident.) What amazed and shocked me, and moved me to write up the debate for the New Republic, was the unembarrassed manner in which members of Congress declared as their paramount interest the absence of any legislative fingerprints on whatever might result from allowing (or not allowing) the Navy convoys to enter an area of violent conflict. In fact, it was pretty much taken as a given that the War Powers Resolution would not be invoked, not because the president was not complying with it (no president ever has) but because doing so would require Congress to either approve or revoke Reagan's decision. Here is how I described the House debate 14 years later in this column (I can't seem to locate the original New Republic piece); I should point out that the first two speakers were members of Reagan's own party:
"This resolution puts congressional fingerprints on our course of action," complained Rep. Toby Roth. "Does this put the fingerprints and the handprints of the Congress on that policy?" asked Rep. Donald Lukens. No, assured Rep. Pat Schroeder: It was "a teeny-weeny first step" that "doesn't commit the Congress in any way." Only then could the resolution pass.
The Baker-Christopher proposal, then, is an empty exercise in high-mindedness for its own sake. Congress has all the war-making power it needs, and considerably more than it wants. The latter problem can't be solved legislatively. Cowardice, opportunism, and indecision inhabit a realm beyond the reach of law, and you'd think that two experienced hands like Baker and Christopher would understand that better than most.
Oh, they understand it all right. They're counting on it. And so do the Cheneyites who mapped out this plan for an unfettered unitary executive. It may have lost in unimportant areas like "court" and "public opinion," but inside the Beltway it is victorious and shining.
"Perhaps the best that can be said is that the vice president belongs to neither the executive [branch of government] nor the legislature, but is attached by the constitution to the latter."
The best part was when Cohen said "So he's like a barnacle?" And Addington got all uppity and said "The Constitution is not a barnacle, Congressman!" which showed that, despite the bravado, Addington is a crucially stupid man.
As long as the Constitution is just a piece of paper anyway, I say that everybody gets to be their own branch of government, provided they're attached to the whole in some fashion. I'm going to be attached to the Gretchen Mol branch, rowrr!
Rule number one of politics: when in a war, never say that you're fine with 100 more years of it. Having learned this lesson, John W. McCain tried to reduce his commitment by 96 years, claiming that Iraq will be "won" by 2013 and most combat troops will then be home (left unsaid is that the 100-year occupation would then begin at that point).
John McCain, looking through a crystal ball to 2013 and the end of a prospective first term, sees "spasmodic" but reduced violence in Iraq and Afghanistan, Osama bin Laden dead or captured and government spending curbed by his ready veto pen.
The Republican presidential contender also envisions April's annual angst replaced by a simpler flat tax, illegal immigrants living humanely under a temporary worker program, and political partisanship stemmed by weekly news conferences and British-style question periods with joint meetings of Congress.
How dare he support a timetable for withdrawal! Doesn't he know that the terrorist murderers will just wait us out?
That wasn't much of a speech at all, basically saying "McCain would be awesome, vote McCain!" without explaining how he would accomplish any of this. Eric Martin calls it the Straight Pony Express, a fantasyland of proposals that amount to "we'll win because we will win."
Alternatively, Ezra Klein finds a couple things worth liking in the speech.
First, McCain addresses nuclear non-proliferation right at the top. There's an argument whether someone with such a loose view of treaties and a dismissive view of multilateral institutions could actually coordinate international action on this, but it's heartening that he's attentive to the issue. Similarly, I was struck to see him come out forcefully against presidential signing statements and executive office overreach. "The powers of the presidency," says McCain, "are rightly checked by the other branches of government, and I will not attempt to acquire powers our founders saw fit to grant Congress. I will exercise my veto if I believe legislation passed by Congress is not in the nation's best interests, but I will not subvert the purpose of legislation I have signed by making statements that indicate I will enforce only the parts of it I like. I will respect the responsibilities the Constitution and the American people have granted Congress." It's testament to how far we've fallen that a president simply saying he'll abide by the law is cause for celebration, but hey, we're there.
I don't know about the second part, McCain has basically endorsed Bush's view of radical executive power that shouldn't be "constrained" by the judiciary. So his demurral on signing statements is nice (so is Republican Walter Jones' bill which would provide oversight on signing statements), but it's hardly the full story.
• The California School Employees Association made their endorsements for the June primary. In addition to Migden, they strike of an aversion to go out on a limb. They only endorsed one Congressional candidate in a Republican-held seat (Charlie Brown), and they opted out of a lot of contested primaries in the legislative seats as well. Manuel Perez did get the endorsement in the 80th AD, however (he is a school board member, so not a big shock).
• We don't get into a lot of rural issues on the site, probably because of the bias toward writers here in urban environments. But this salmon fishing ban is a big deal along the Mendocino coast. This actually goes back to the Klamath fish kill in the beginning of the decade and Darth Cheney's efforts to ensure that. I think there are going to be a lot of angry fishermen wanting answers this fall.
• I keep forgetting to write about the State Senate primary in my own backyard of SD-23, between Fran Pavley and Lloyd Levine. Here's some background on the race to succeed Sheila Kuehl. I actually attended an environmental forum with these two last week and found them both to be really solid, with different strengths. While Pavley is an astonishingly effective lawmaker - she probably has her name on more far-reaching climate change legislation than anyone in the entire country - Levine really seems to understand the nature of the fight in Sacramento and how best to bring about sweeping change. I'm not going to be disappointed on June 3, regardless of the winner. We're hoping to get both Pavley and Levine on a future Calitics Radio show.
• Here's a user-created video of our debate protest at ABC last week. We have our own video set for release as well.
• Adam Liptak in The New York Times today: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners."
Yet we must remain "tough on crime," even though rises and falls in the crime rate are not correlative to imprisoning people (Canada's rate goes up and down roughly at the same time ours does, without a corresponding increase in the prison population).
In a letter, Yoo's lawyer told Conyers he was "not authorized" by DOJ to discuss internal deliberations.
"We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch," Yoo's lawyer, John C. Millian, wrote in a letter to Conyers.
As we all know, the executive branch can ignore subpoenas and prevent Congressional oversight. Why, Yoo wrote it in a memo! But he can't discuss it. Because the executive branch follows the law. That he wrote.
After a weekend of total radio silence on the revelations that the American President approved and designated torture tactics on detainees, a reporter finally got up the gumption to ask John McCain a kind of oblique question about it at the Associated Press annual meeting, without referring to the President. And in his answer, McCain got all mixed up again.
Reporter: Why doesn't the same principle apply to detainee enemy combatants, don't we stand for something better...
McCain: Yes, and I’ve made it very clear, I’ve made it very clear in my statements and in my support of the Detainee Treatment Act, the Geneva Conventions, etc., that there may be some additional techniques to be used, but none of those would violate the Geneva Conventions, the Detainee Treatment Act…And we cannot ever, in my view, torture any American, that includes waterboarding.
The "American" slip-up may have been a slip-up. But the weasel language of "there may be some additional techniques to be used," there, my friends, lies the rub. Considering that McCain already voted against banning the CIA from using waterboarding, which he very specifically describes as torture, then that must be one of those additional techniques. And I'm guessing they wouldn't violate those international agreements and American laws because... the President says so.
McCain is essentially setting out exactly the same position as the President has - forcefully stating that we do not torture in public, while authorizing and directing torture techniques in private, and finding lackeys to write legal opinions indemnifying the conduct. The consequences of those techniques has been nothing short of murder, dozens of homicides of prisoners while in US custody. Let's pick a couple at random:
Detainee was found unresponsive restrained in his cell. Death was due to blunt force injuries to lower extremities complicating coronary artery disease.Contusions and abrasions on forehead, nose, head, behind ear, neck, abdomen, buttock, elbow, thigh, knee, foot, toe, hemorrhage on rib area and leg. Detainee died of blunt force injuries to lower extremities, complicating underlying coronary artery disease. The blunt force injuries to the legs resulted in extensive muscle damage, muscle necrosis and rhabomyolysis. Electrolyte disturbances primarily hyperkalemia (elevated blood potassium level) and metabolic acidosis can occur within hours of muscle damage. Massive sodium and water shifts occur, resulting in hypovolemic shock and casodilatation and later, acute renal failure. The decedent's underlying coronary artery disease would compromise his ability to tolerate the electrolyte and fluid abnormalities, and his underlying malnutrition and likely dehydration would further exacerbate the effects of the muscle damage. The manner of death is homicide [...]
Cause of death: Closed head injury with a cortical brain contusion and subdural hematoma. Manner of Death: Homicide. Iraqi male civilian detainee died in US custody 12 hours after a reported escape attempt. Physical force was required to subdue the detainee, and during the restraining process, his forehead hit the ground. Closed head injury: subarachnoid hemorrhage over brain, cortical brain contusion, right subdural hematoma. Additional injuries: fractured rib, multiple contusions and abrasions to head, torso and extremities. Abrasions on wrists and ankles consistent with restraint. Hemorrhage of right muscle of neck. No evidence of natural disease. DOD 003329 refers to this case as "1 closed head injury - died 12 hours after escape attempt."
The press loves McCain (for the honor of speaking to him, they handed him the gift of coffee and donuts today) so this massive hedge on torture, combined with recent votes allowing the CIA to continue to engage in it, will probably go unnoticed. The elephant in the room, George Bush's admission of guilt in violating domestic and international laws regarding toture, has gone almost completely unnoticed, after all.
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