Who Needs Judicial Review?

Along the lines of our discussion of judicial review over the weekend, it seems Tom DeLay has also decided that the judiciary should not have the power to deem legislation unconstitutional. The Washington Post has an editorial criticizing DeLay's efforts to remove various bills from judicial oversight. DeLay is currently focusing on wedge issues such as gay marriage and the Pledge of Allegiance. The Post believes that ruling on constitutionality is a "central function of the federal judiciary". As per our discussion, I agree.

Following up on that discussion, I believe that if the legislature is given the right (or duty) to determine constitutionality it would almost certainly follow that they would not deem the laws they themselves write and pass to be unconstitutional, which would necessarily put the power of laws passed by congress on a level footing with the constitution itself. Aside from the fact that this seems a bad idea on the face of it, it seems clear that it was not what was intended in the constitution. Why state that the constitution is the supreme law of the land and make the process for ammendment to the constitution much more difficult and convoluted than the process of passing legislation if there was to be no substantive difference between the two?

Further, the history of judicial review does not start and end with Marbury v. Madison. Even in 17th century England, Chief Justice Edward Coke determined that both the King and the Parliament were subject to the laws of the land. He wrote: "in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void." This concept bubbled up in a few other cases prior to US independence, including one case, Lechmere's Case which was quite influention with John Adams and other revolutionaries. This would suggest that the founders were familiar with the concept of judicial review when they created teh constitution. There were also a number of cases in which judicial review was invoked in US courts even prior to the ratification of the constitution which challenged constitutionality of legislation on the state level (Holmes v. Walton, Commonwealth v. Caton, Rutgers v. Waddington, Trevett v. Weeden, Baryard v. Singleton). Regarding the last case, the plaintiff's attorney, James Iredell (later a Supreme Court justice) wrote: "Either the fundamental unrepealable law must be obeyed, by the rejection of an act unwarranted by and inconsistent with it, or you must obey an act founded on authority not given by the people. ...It is not that the judges are appointed arbiters... but when an act is necessarily brought in judgment before them, they must, unavoidable, determine one way or another... Must not they say whether they will obey the Constitution or an act inconsistent with it?"

Although not explicitly elaborated in the constitution, the power of judicial review was discussed by the framers. Elbridge Gerry wrote that "the Judiciary... by their exposition of the laws [would have] a power of deciding on their Constitutionality." The Anti-Federalist letters attacked the constitution on the issue of judicial review, an d Alexander Hamilton, in The Federalist, defended judicial review as a necessary element of the constitutional structure. The Federalist No. 78 is probably the single most critical document to consider in any discussion of judicial review. In it Hamilton established both the right of the court under the constitution to review constitutionality, and the necessity of their doing so. It is my understanding that much of the Marbury v. Madison decision was based on The Federalist No. 78. On judicial review, Hamilton wrote the following, which I'll leave as the final words on the subject:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Twisting the Story

The Washington Post has an editorial today with their take on the new updates to the Niger uranium story. They, like most coverage of the issue are missing the point. The editorial cites the Butler report as saying that intel was reasonable until October 2002 and that Joe Wilson's report did not change their assessment. While it may be true that it did not change the assessment of the British intelligence, that was not the case with the CIA. As you may recall George Tenet accepted responsibility for the charge being included in Bush's state of the union, and said the CIA should not have allowed him to say that. Previous to Tenet's statement there were numerous reports that various people in the CIA had attempted to contact the administration to warn them off of this intel, but those efforts were ignored. These claims, to my knowledge, have never been satisfactorily explored. The point is that regardless of what data has come up now, at the time of the speech, George Bush was presenting data that US intelligence believed to have been discredited.

This is not to say that the new light that has been cast on the issue is meaningless. If it is the case that Saddam Hussein was actively trying to acquire nuclear materials, that would certainly support the administration's claims that Saddam was, in fact, still pursuing nuclear weapons and it will bolster their claims that the war was necessary. What it does not do is have any impact on whether the administration was out of line in pumping the uranium claims when the US intelligence community thought those claims were bogus.

Unfortunately much of the press coverage seems to suggest that maybe Bush was right to include the famous 16 words in his speech, because now evidence justifies it. Whether or not the accusation ultimately proves to be true, the administration promoted it at a time when it was believed to not be true which demonstrates dubious judgment and ethics on their part. Nothing that happens now will change that.

The Need to Adapt

Returning again to The Atlantic Monthly, Rand Corporation analyst Bruce Hoffman has written an article on the need for the US intervention in Iraq to adapt to the realities of combatting an insurgency. The unwillingness to acknowledge that the old rules of conventional warfare do not apply against guerrilla insurgents has been a frequent criticism of mine, and Hoffman does an excellent job of assessing the situation, finding similarities and differences with past insurgencies and pointing out areas in which the US needs to make adjustments.

Praising Welfare Reform

There's a column on Christian Science Monitor by a couple of Harvard professors praising the 1996 welfare reforms based on an extensive study they've done of the results. Not to say that I haven't seen plenty of Harvard folks pushing questionable agendas, but this looks like a fairly well done study, although I haven't read through all of it (there's a link at the bottom of the article). It's always nice to see relatively unbiased research on hot-button political issues. The authors feel that the government did a nice job of supplementing the reduction in welfare support with new programs to provide support for low-wage working people, creating a carrot and stick effect. While they feel the 1996 bill has been a success, they are wary of any further efforts to reduce welfare supports.

Joe Lieberman Is the Devil

So it seems Joe Lieberman has decided to spend his free time attempting to reinvent the Red Scare, this time rebranded for the war on terrorism. Great, because more paranoia and fear-mongering are just what we needed... Just as a matter of record, the first two iterations of the Committee on the Present Danger provided such valuable services to the US as: ran a television ad blitz to promote military spending and aggressive engagement and eradication of the Soviet threat, attempted to torpedo the SALT II arms agreement with the Soviets and to convince the US to reneg on the SALT I agreement, and heavily promoted the Strategic Defense Initiative. Members of the organization have included such political luminaries as Dick Perle, Paul Wolfowitz, Irving Kristol, and Donald Rumsfeld. Senator Lieberman, you've outdone yourself this time. Congrats.

Re: Scolding the Supreme Court

Slate is back with another column, this one by Douglas A. Berman, host of the Sentencing Law and Policy Blog, on the topic of the SC's Blakely decision. Berman's column ties together the editorial by the Washington Post and Dahlia Lithwick's Slate column, both mentioned here previously. He weighs in on the side of the Post against Lithwick, calling Blakely the most significant criminal case in Supreme Court history and elaborating on the immediate need for clarification.

Iraq In Depth

The Atlantic Monthly published a pair of articles in their January issue investigating the two biggest gaffes of the Iraq war: the faulty analysis on the WMD's, and the lack of preparation for the post-war period. These are admittedly somewhat dated by now, but both provide excellent in-depth analysis and provide a strong framework into which to place these issues.

The story of the WMD's is written by Kenneth Pollack, a former analyst for the Clinton administration and author of The Threatening Storm, a book written prior to the war, in support of invading Iraq. Pollack goes over mistakes made in analyzing Iraq's weapons capabilities that led himself and others to wrong conclusions, and also spends some time constructing a convincing case as to what really happened with Iraq's weapons programs between the two gulf wars in light of the evidence we now have. I found this latter part of the article particularly insightful.

While Pollack splits blame on the WMD question between the intelligence agencies and the promotional tactics of the administration, the second article, Blind Into Baghdad is a damning account pointing blame directly at the administration. The author James Fallows finds that not only were extensive studies done on the subject of a post-war Iraq (by the State Department, the CIA, the Army War College, and various NGO's), but that these studies clearly identified nearly all of the major issues that later came back to haunt us. The administration buried all of these studies in order to avoid awkward questions that might diminish enthusiasm for invading Iraq. We were unprepared for the aftermath of the Iraq war, not because the administration was too stupid to think of it beforehand, but because they didn't want anything to come to the public attention that might interfere with their carefully contructed propaganda campaign. It is a very impressive and well-investigated article, and probably the strongest criticism of the actions of the administration related to Iraq that I have seen to date.

Jon Stewart's Commencement Address

Just a quick link here, since this came up over the weekend. It's a good one.

Brewing Scandal in Iraq?

As if we needed another one... A couple of Australian papers have run stories claiming that shortly before being named Prime Minister, Iyad Allawi personally, summarily executed as many as six prisoners at a prison southwest of Baghdad. The Christian Science Monitor has a roundup of the coverage. At this point the story appears to have a high probability of being BS, but investigations will almost surely follow. Obviously if anything were to come of this is would be a heavy blow to the US occupation.

More Criticism For the Supreme Court

The Washington Post is running a column from former Illinois congressman, chief judge of the DC federal appeals court, and White House counsel, Abner Mikva. Thirty years ago Mkva co-sponsored the Non-Detention Act, which figured significantly in the court's decision on Yaser Hamdi. Mikva reiterates the principles behind the act, and takes issue with the vague decision of the Supreme Court which passed off much of the responsibility on this issue to lower courts (this is starting to be a theme), and urges all three branches of the government to take to heart the important principles embodied in the NDA.

Re: Scolding the Supreme Court

Slate's Dahlia Lithwick has this article that summarizes the chaos that has erupted from the Supreme Court's Blakely decision.

Scolding the Supreme Court

A Washington Post editorial today takes issue with the vague decision the Supreme Court recently rendered on Blakely v. Washington. The decision casts doubt on the entire federal sentencing procedure. The Post discusses the confusion and various responses taken by federal courts, and urges the Supreme Court to clarify the issue.

Obama Keynote Speaker at Democratic Convention

Another bit of Illinois news here. The Washington Post has a column highlighting John Kerry's efforts to win the black vote, and mentions among other things that the Democrats have selected Barack Obama to deliver the keynote address at their convention. I wholly approve. As I've stated previously I really like Obama, and barring anything stupid happening, think that he could become a major figure in the party over the next 5-10 years. Between Jack Ryan's candidacy going down in flames and this added national exposure, I'd say things are looking good for Obama.

Illinois: Bastion of Liberalism

The Crhistian Science Monitor is running a series of articles analyzing the political situations in various states as an election year feature. Today they covered Illinois. I was a little surprised by their findings, as I was not aware of any strong trend towards liberal values around here. I also find it interesting that their analysis points towards changes in the voting paterns of the suburbs as the cause for the shift. They also did a recent feature on Georgia, and found that it was the massive growth of suburbs around Atlanta, and the strong conservative tendencies of folks living in them, that pushed the state toward the Republicans.

Where's the Beef?

Washington Post columnist Robert J. Samuelson is usually good for injecting a shot of reality into popular political rhetoric. He has a column today taking issue with the preposterous statements of our presidential candidates which ignore reality, but are treated by pundits at "respectable statements that ought to be analyzed and debated". He points out campaign discussions of job creation, fiscal policy, and medical plans as particularly egregious. He also notes that other critical issues are being completely ignored by the candidates and that the press pays no heed to these omissions. I've blogged similar columns on this topic from Samuelson before, as well as written a few diatribes of my own noting this problem. It can make the presidential race difficult to stomach at times.

Score One For the Propagandists

The Washington Post has an editorial on recent trade agreement legislation that demonstrates that the Post has swallowed the standard line of the pro-trade lobbies hook, line, and sinker. Since the beginning of the popular movement against the WTO, proponents of the current trade system have tarred all opposition as being against trade in all forms and situations. I'll grant that there is a radical fringe that would support that position, and further that indeed, mobs of protesters don't do nuance well. But the position of trade reformers has always been more nuanced than the Post suggests. Their claim that "Oxfam, and more broadly the coalition of organizations that campaigned for Third World debt relief under the banner of the Jubilee movement, have largely abandoned their old skepticism about trade in favor of campaigns against egregious rich-world protectionism" demonstrates their ignorance of what Oxfam has been preaching on this subject for some time. They have always been asking for "fair trade", not "no trade". Oxfam first launched its Fair Trade program some 40 years ago. It should be noted that protests are generally focused at the IMF and the WTO, organizations which Oxfam persuasively argues have consistently promoted unfair trading systems. The clear misinterpretation on the part of the Post, a respected mainstream observer, of what this debate has been about signals a victory on the part of anti-reform lobby in their campaign to smear their opposition.

Poor Ralph Nader...

Nader seems to sound more paranoid and marginal by the day.

Pitbull Fitzgerald, What's Taking So Long?

I'm getting tired of waiting for US Attorney Patrick Fitzgerald to come out with some news of an indictment in the Valerie Plame Affair. It's been some time since he had a rather long sit-down with the President, and one might imagine that was at the tail end of his investigation. There have been rumors floating around for some time that a grand jury has been impaneled--and a grand jury will indict a ham sandwich. So what's the hold-up?

Well, I suspect it might be that Mr. Fitzgerald is not stopping with the Valerie Plame business--I think he is going after big fish on the forged uranium documents. Remember, the two stories are integrally related, because Valerie Plame was outted as a spy immediately after former Ambassador Joseph Wilson spilled the beans about the unsupported tale that Iraq was seeking uranium from Niger. After some documents turned out to be really bad forgeries, the FBI began an investigation and nothing more has been made of that investigation. It is entirely possible that the same people involved in releasing Valerie Plame's name were the same people who forged the documents in the first place--or at least knew they were forgeries but tried to sell them on the street as real Rolex watches. And President Bush bought 'em.

I raise this issue because today there is supposed to be a big report coming down from the other side of the Atlantic that suggests there is other intelligence (not related to the forged documents) that supports the Niger-Iraq uranium claims. I must admit that I am dubious. But we will know shortly.

But back to these forged documents for a moment, the Financial Times reported at the end of June that the guy who apparently sold the documents to an Italian newspaper has come forward and told his story to an American televion network. Apparently the tipper has some interesting news about where he got the documents. (By the way, the recent Senate Intelligence Committee report notes that the tipper apparently requested that the Italian newspaper, Panorama, pay $15,000 euros in exchange for the documents.)

Why the network is sitting on the story (if FT has it right) is beyond me. Now would seem to be the perfect time to come out with the story--unless the network is waiting for indictments to come down, or waiting to see what is in the British report.

Or unless this is all just a crock of shit. It's always a possibility...
(Sorry for the lack of links. I'm just too lazy right now. But if anyone wants back-up for anything in here, just let me know. I'll find it. Eventually.)

Not Worth the Effort

This isn't our usual fare, nor Howard Kurtz's, but Kurtz, a Washington Post regular, is running a column in which he trashes the level of customer support offered by many of the companies we deal with on a daily basis. It can often seem like a small thing, but really it touches our lives on a regular basis and can make for some painful experiences. He makes a strong case, backed up by experiences we have all shared. But while he scores points for well-deserved indignation he misses the deeper analysis. The universal degree to which large companies short-change their customer service represents the voice of the market, and the voice says it is simply not worth the money to provide the support. The profits lost by poor service are obviously not a large a figure as the cost to provide good service. No venting of frustration changes that. Even service-conscious consumers have little option to vote with their pocketbook. What phone company can I choose that provides good customer service? None that I know of. It seems the die has been cast and businesses have responded and little avenue remains for consumer choice. And even if the choices were better, there are few channels for communication of this information by which a consumer can make an informed decision. Certainly self-reporting can't be relied upon, as most of these companies claim to have wonderful customer service. Further, most customers don't have any contact or personal experience with a company's service department until after the company already has their money. Is this poor service an expression of the preferences of consumers? Would we rather save the money? Or is this a market failure where consumers are not armed with the knowledge necessary to make choices in line with their preferences?

I know for my part I would, at least some of the time, be willing to pay more for better service. It would help to know how much it would really change the price, and would be nice to be given the choice. But as in many of these cases I think a trusted third party (be it private or public) would be needed to referee this market.

And, on the other hand, there may be a case to be made that the free market works, and this really is our choice. There recently was an article on Slashdot about companies trying to rein in the costs associated with "abusive" customers (which is sort of an interesting topic in itself). Aside from supplying a lot of fodder to support Kurtz's point, the ensuing discussion contained a number of posts from foreigners who visited the US and were absolutely appalled by the quality of service they found there. Obviously things work differently in other markets. Is this simply a cultural difference? Or have companies in those places simply not maximized efficiency to the point that they eliminated funds for customer service? Or have customers in those markets demanded good support by their purchasing decisions? I have little basis by which to answer these questions.

I suspect that at least in the case of the US market, aggressive cost-cutting during market downturns led companies to slash service expenses. Then when they saw that the world didn't come to an end, and that consumers, despite a lot of whining, mostly took it in stride, they didn't bother to pump the funding back up later, or even proceeded to cut it further.

Perhaps more fodder for our free market discussions...

A CIA Analyst Punches Back

After the release of the damning report on prewar intelligence by the Senate Select Intelligence Committee, it seems at least one CIA agent is not comfortable with intelligence analysts taking all the blame. The Washington Post reports that an analyst has revealed to them that he tried to warn his superiors that much of the content that Colin Powell was about to report the UN Security Counsel was of dubious quality. He mentioned that one major intel source nicknamed "Curve Ball" had supplied data that was especially unreliable. He said his superior responded that "This war's going to happen regardless of what Curve Ball said or didn't say, and . . . the Powers That Be probably aren't terribly interested in whether Curve Ball knows what he's talking about". This seems to be a contradiction to the report's contention that pressure from the administration did not affect the output of the CIA's assessments. In a discussion between DIA official Bruce Hardcastle and the Post mentioned in the article, Hardcastle says that he was not pressured to change his assessments on Iraq, but adds that "Generally it was understood how receptive [Defense policy officials] were to our assessments and what kind of assessments they would not be receptive to." That sounds like pressure to me...

Mercenaries Run Amok

It's no secret that the third largest military force in Iraq is the army of military contractors, essentially ex-military personnel carrying guns for private companies. The BBC is reporting on a crew of former Special Forces soldiers recenlty arrested by Afghan authorities in Kabul, for reasons unknown, possibly at the request of the US military. The report says they found eight people illegally detained by the men at a house in Kabul. One wonders at the implications of this widespread use of mercenaries. How is their conduct governed? Certainly they ought to be subject to international law, but what of the codes of conduct of the US military? What sort of oversight is tracking the actions of these people? The article mentions that they frequently wear standard issue military uniforms and carry standard military weaponry, and that it is difficult to tell who is who and under what authority these various groups of armed men are operating. It seems a prime opportunity for confusion and lawlessness. And what of the concept of the government (whether domestic or that of an occupying nation) maintaining a monopoly on the use of force? I know that privatization is all the rage with current administration, but have we really thought this through?

In the Bubble

I have previously expressed discomfort with the scope of efforts employed to separate President Bush from the public, foreign or domestic. BBC Washington correspondent Matt Frei accompanied Bush on his recent trip to Istanbul and wrote on his experience inside the bubble. Constantly trapped in a zone of privilege and isolation it's little wonder that many administration officials seem to be living in an alternate reality.

Warmongers With Short Memories

So Sir Jeremy Greenstock, British representative to the UN during the runup to the war, finally admitted on BBC that the weapons for which Britain went to war don't actually exist. Then he had to go and botch this admission with the statement that "It's only, again with hindsight, when we saw that probably the Iraqis were cheating Saddam as well as misleading us, that the evidence is just not there." Only with hindsight? I'm sorry, but weren't there a whole lot of people who found the evidence presented by the US and UK considerably less than convincing even before the war? I'm pretty sure there were, because I think I was one of them. And about the Iraqis cheating Saddam, where did that come from? All evidence that I've read suggests that Saddam had his weapons program stand down in order to get the sanctions lifted. The only misleading going on here is the bill of goods Sir Greenstock is trying to sell us. Greenstock's comments came in advance of July 14th release of the Butler report on intelligence failures related to Iraq. Hopefully some of the fallout from that report can find its way across the Atlantic...

The IAEA Gets Serious With Israel

In a great editorial today, CSM supports Mohamed ElBaradei's shot across Israel's bow over their nuclear arsenal. ElBaradei, director of the IAEA, during a visit to Jerusalem this week warned Israel that their nuclear weapons are damaging the credibility of his agency in trying to deal with Iran. CSM makes the case that it is unlikely that Iran will abandon their pursuit of a nuclear deterrent without Israel agreeing to eliminate their arsenal as well. They further argue that if Iran were to succeed in gaining an arsenal it would discredit the IAEA and the Non-Proliferation Treaty and would likely lead to further nuclear destabilization.

Steamrolled By the Bush Machine

Foreign Policy Mag is running a short editorial noting how easy everyone made it for Bush to have his way on Iraq. Thanks to Howard Dean and others, liberals are beginning to come back to life and have done a decent job of vilifying Bush. However, it should not be forgotten how many people rolled over and played dead in order for Bush to create all of the mayhem that we now need to clean up. Reading this column and thinking about it have brought to mind (again) a couple of internal conflicts that I frequently struggle with.

First, is the conflict between wanting to hold people accountable, and wanting to take back control from Bush and his cronies. This was thoroughly discussed here and elsewhere in the context of Howard Dean (and to a lesser extent Ralph Nader). The Democrats who voted for Bush's war should be held to account. But how can this be done without further aiding Bush and friends? In the presidential race Dean and Clark offered good opportunities for this, but both are now out of the picture. Additionally, in races for the House and the Senate, due to the way elections are structured it is nearly impossible to beat incumbents in the primary, leaving the only real opportunity to inflict penalties through the ballot box at the general election, at which point you would obviously be aiding Republicans in the process. In a strongly partisan environment, it seems that accountability goes out the window. A viable third party would certainly help in this regard..

My other conflict is also between principle and patisanship, but of a slightly different nature. Ideally there should be politicians who are pragmatic and moderate, but who still retain the courage of their convictions. In practice, there are vanishingly few of these people (Feingold and McCain are the only ones who pop into my head, and I think Dean could have been one as well). And with the increasingly severe problem of gerrymandering, these people will grow increasingly rare. More often the choice is between "moderates" who are spineless, calculating political hacks who will roll over to anything that polling supports on a given day, or fire-breathing partisan zealots, who can be counted on to oppose stupid things proposed by the other party, but who will never achieve anything useful through moderation and compromise with the other party. I'm generally fairly moderate myself, and I used to think I preferred the former, but having witnessed what these "moderates" did in the context of the Bush administration I've found myself wishing for more of the latter. But truthfully I despise them both. It makes me ever more worshipful of a Feingold, who has the courage to be the only person in the Senate to vote against something stupid, but the good sense to be cooperative and bipartisan to achieve important results. Unfortunately, like my other conflict, it leaves precious few good choices for voters to make. It is difficult for a person of principle to know what to do. Even more unfortunately it seems that on both issues, the trends are getting worse as time goes on.

Ashcroft: I Am The Law!

This is sort of old news, but I'm trying to get caught up here. So let me get this straight: The justice department evaluates the powers of the executive branch under the circumstances of the "War on Terror", and determines (what good luck for them) that the powers of the executive are unlimited and unrestricted by any law or convention. They can do whatever they damned well please, hurrah! They write a number of memos outlining this fact and documenting other useful bits of knowledge, including penning a definition of torture that would have exempted most of the Nazi doctors who experimented on concentration camp victims. These are then sent to the President, and, lo and behold, some number of months later egregious prisoner abuses are uncovered. Apparently there is still at least one person in the government in possession of a conscience (or more likely, an axe to grind), and the memos are leaked to the press. In view of events these memos appear to be fairly significant and worthy of some scrutiny, so the Senate decides they ought to take a look and request that they be given copies. Ashcroft declines, and rather than citing executive privilege or any legal basis for this denial, claims some sort of lawyer-client privilege between the president and the entire Justice Department. The Senate Judiciary Committee is apparently too dumbfounded by the absurdity of this claim to take any immediate action. Surely the public ridicule will convince Ashcroft to concede. But wait! Mere weeks later, in considering Vice President Cheney's refusal to turn over documents relating to the energy committee, the US Supreme Court vindicates Ashcroft by stating that rather than have awkward moments in which the various branches of the government have to check one another's power, we should just delegate to the executive whatever power they want so that we can avoid conflict. Long live the King! Am I pretty much on track here?

This is getting beyond absurd. In the immortal words of Barf from Spaceballs, "They've gone to plaid!" Are we generating some outrage yet? At what point do we get to the rioting in the streets? This is where we need a Democratic presidential candidate who can do outrage, and who can raise hell and make some waves. If this isn't a moment to point out just how dangerously far off the track we've gone, what is? And where's our candidate? Making minor campaign stops and lulling crowds to sleep all across the country, staying mostly out of the spotlight under the theory that the less the public sees him, the better he'll do. Thank god for Michael Moore. At least there's one person with the good sense to be royally pissed off by all this.

The Fate of the Middle Class

While I was traveling overseas I had little access to current news and events. I did, however, find a cache of magazines that had been left in the apartment in France when my aunt was last there in January. There were some interesting and relevant articles in them, particularly in the Jan/Feb issue of the Atlantic Monthly. One of them, Are We Still a Middle Class Nation by Michael Lind, is a frank and wide-ranging discussion of the history and current challenges of America's middle class (which as you may know, is a favorite pet topic of mine).

Lind tracks the middle class across three distinct phases: the early land-owning farmers, industrial workers, and the modern professionals. He notes the critical role of government policies in fostering each group. Lind moves on to cover the current challenges faced by the middle class. While he mentions the role of globalization in reducing the bargaining power of middle class workers, he places most of the focus on automation and mechanization. Lind cites economist William J. Baumol who theorized that a disparity between the rate of productivity growth in mechanized sectors and the growth rate in human service jobs will increase the relative cost of labor-intensive services. The problem emerges here, Lind asserts, that while productivity surges in the mechanized sectors, employment drops and the labor market becomes flooded in those sectors, so the large gains in profit created by the increased productivity are reaped by the small class of owners and managers. Labor then is pushed into sectors where long term productivity gains are relatively small, and will suffer as a result.

I'm not entirely sure that I buy this position. I agree with Baumol's thesis regarding the effect of varying rates of productivity between automated and non-automated sectors, and I concus with Lind that a relatively small number of people will benefit from the increased profits generated by the automation. However, if wages generally fall while automation makes many sectors more productive, wouldn't much of the benefit of the automation have to be realized through lower prices of goods and services in order to be able to sell them to our now lower paid middle class? It may become a sort of deflationary cycle where prices drop, but lag behind falling income... I don't really know, this is reaching beyond my meager knowledge of economics, but it seems like a more complicated and dynamic situation than what Lind depicts.

In any case, Lind finds solid numbers to back up his theory that the middle class is losing ground, regardless of what is ultimately the cause. Lind also finds that public policy, which once aided the middle class, now appears to be favoring the upper class at the expense of the middle class. Lind considers the options for restoring the balance of wealth and income and discusses frankly the need for a system of redistribution. He discusses the obvious option of increasing taxes on the wealthy and using the revenue to subsize the rising costs of education, child care, and health care for the middle class. But Lind worries about the potential for increased tax evasion or emmigration by the wealthy.

Instead Lind suggests "universal capitalism". While much more modest in its approach, this "universal capitalism" sounds strikingly like Marxism, in that the basic ideal is to the restore the balance of income between the capitalists and labor by making the labor the owners of the capital. It also sounds strikingly like some of the market-based personal retirement accounts championed by many conservatives as a replacement for the social security program. Lind proposes that child trust funds, invested in the stock market, be established by the government for all children. People would be able to save or spend the money in these accounts without restrictions. These accounts would be funded by tax revenues, but only in small amounts, as Lind puts it, "planting seeds capable of growing along with the economy over time". He suggests a system where the government matches contributions of low income workers to the account.

I have a hard time buying into this idea. The basic idea is sound: If increasing automation results in most of the benefits being delivered to the ownership class, then the public can best benefit by making everyone a part of the ownership class. However, I am not sure this would play out as intended, particularly as Lind proposes it. For example, it would obviously not work if there are no access restrictions on this account, and the government is willing to match contributions (I would assume only up to some limit) into the account. A single dollar could quickly be multiplied (by repeatedly depositing to and withdrawing from the account) into the government matching limit. Clearly there will need to be limits on access to the account. And given our obvious problems with intelligently handling credit, debt, and savings, I'm not sure how successful a program dependent on individuals (particularly individuals who are already strapped for cash) contributing to a saving account can be. Perhaps there are behavioral remedies...

Overall, I was not thrilled with the article, but it did introduce some new ideas to chew on. Baumol's theories on the impact of automation may be worth further investigation. Additionally, Lind mentions that Britain has recently introduced a system of child funds somewhat in line with the universal capitalism concept. I would be curious to learn more about how exactly that works.

Re: Fahrenheit 911

We also caught the film this past weekend. We went on Sunday night, and even then every showing was selling out an hour beforehand. I take that as a good sign.

I thought the film was fairly well done, and was certainly Moore's best effort to date. Bowling For Columbine was a fun film, but I've read much of the criticism of it, and I feel that it was less intellectually honest that I'd like. I've also seen the criticism for F:911, and found it to be relatively toothless (additionally I was familiar with most of the content presented in the film and didn't feel that Moore misrepresented it). F:911, despite occasional cheap shots felt like a more mature film, both in its content and its editing. The humor was used effectively, the emotional content powerful and memorable. I don't know where Moore digs up some of the clips he uses, but I'd love to see what got left on the editing room floor. He gets his hands on some amazing material.

The scenes of the invasion of Iraq (the Fire Water Burn sequence) will definitely be the most polarizing part of the film. I can see a lot of people being very off put by the way he portrays the US military there. I'm not sure it was really necessary, and having done it, I'm not sure he used it as well as he could have. He sort of left it hanging there as a general indictment of the US military. I don't think the US military is any worse in that regard than any other military. But the point is that shit happens when you give a bunch of 18 year olds the most advanced weapons in the world and send them off to another country to kill people. Warfare is not now, and never will be, clean and surgical. It's brutal and ugly and a lot of innocent people get hurt. And we should never allow our leaders to convince us otherwise. This part of the film should have been clearly designated as a counterpoint to the sanitized war porn and rah rah embedded reporter segments that ran 24x7 on the news during the war. In any case, the footage was devastating and was some of the most memorable of the film.

Also, I wasn't thrilled with the sections about the election and the Saudi connection, as I felt he was wasting time there. Both of those have already been hashed out in public quite a bit, and both come off as conspiracy and can be written off by detractors as circumstantial. They also give the film a scattershot feel as he jumps through so many topics. I think he could have made a tighter and more powerful film if he stuck to Iraq. Spend more time on what the administration said about the WMD's before the war, and the reality we found after, more about what they said about the Al Qaeda connection, and what we found after, more about what they said about how the aftermath would unfold, and the reality we found after. Point out how aggressively the administration silenced all of the people in the legislature, the military, the state department, and the intelligence agencies who were trying to blow the whistle on the administration's claims before the war, and how those critics were proven right and the administration proven wrong. There was a lot of material out there that he never touched that could have been far more damning than the election and the Saudi stuff were.

But then, you have to take the good with the bad with Moore. Crafting cogent and cohesive arguments that would hold up in intellectual debate has never been his gig. In fact, it is precisely his pudgy, working-class, unintellectual, average Joe demeanor that allows him to appeal to the vast audience that doesn't want to read the Washington Post or the Wall Street Journal or watch c-span. He is able to serve up politics to an audience that tunes out high-brow political discussion. It's an audience that conservatives have learned to communicate effectively with, but that is underserved by liberals. Hopefully this film, fueled by its attendant controversy and press coverage, will make some inroads there. In all, it was enjoyable to sit there and finally see someone punch back. I'm glad Moore made the film, and I'm glad I went to see it. I guess now we'll just have to wait and see if anything comes of it.

More Politics Less Science

As a follow-up to a post I made a few days ago, I note that this edition of the New Republic has a fantastic article on the de-intellectualization of the Executive.

Let Them Eat Yellowcake

This story just does not want to die. Financial Times now reports that the forged documents (that form the background for the Valerie Plame affair [Wikipedia]) "appear to have been part of a 'scam', and the actual intelligence showing discussion of uranium supply has been ignored." FT claims:

Human intelligence gathered in Italy and Africa more than three years before the Iraq war had shown Niger officials referring to possible illicit uranium deals with at least five countries, including Iraq.

Hmm.

Make what you will of that story, things get far more interesting when you read Josh Marshall's account of things over at Talking Points Memo. I have found Marshall's analysis very insightful and accurate, and he suggests in no uncertain terms that FT's story is wrong and is designed to muddy the waters when the real story comes out. As a hint of what is to come, the FT story suggests that the forger (who "has a record of extortion and deception and had been convicted by a Rome court in 1985 and later arrested at least twice") plans to reveal "selected aspects of his story to a US television channel."

And rumor has it that Patrick Fitzgerald (U.S. attorney in Chicago) may announce indictments in the Valerie Plame affair sometime this summer.

Fahrenheit 911

My wife and I saw Moore's film yesterday and wanted to share a few thoughts. Overall, I enjoyed the movie--although I found that Bowling for Columbine gave me more to think about. Some of the themes that Moore raises are old hat--the circumstances of the 2000 Presidential election, the Saudi connection to the Bush family, and the Patriot Act getting ramrodded through Congress. The one meme I liked the best: the men and women who serve in our military do not come from all walks of life but tend to come from poor neighborhoods and there is something fundamentally unfair about that. The most touching scene in the movie is an interview with a mom whose son was killed in Iraq.

Of course Moore's film is a propaganda piece, but I think it is a side of propaganda many people have not encountered before. That is, the mainstream media tends to give credence and time to the righty wackos but lefty wackos are rarely (if ever) seen or heard.

The only part of the film that I found inaccurate involved the flights of Saudi nationals after 9/11. Moore left the distinct impression that the Bin Laden family hopped a plane when everyone else (including Ricky Martin) was grounded. Moore also suggested that the FBI did not bother to interrogate the Saudi nationals or even run their names through the terrorist database.

This is what the 9/11 Commission concluded, in its Staff Statement No. 10 [PDF], presented at the public hearings on April 13, 2004:

The Saudi Flights
National air space was closed on September 11. Fearing reprisals against Saudi nationals, the Saudi government asked for help in getting some of its citizens out of the country. We have not yet identified who they contacted for help. But we have found that the request came to the attention of Richard Clarke and that each of the flights we have studied was investigated by the FBI and dealt with in a professional manner prior to its departure.

No commercial planes, including chartered flights, were permitted to fly into, out of, or within the United States until September 13, 2001. After the airspace reopened, six chartered flights with 142 people, mostly Saudi Arabian nationals, departed from the United States between September 14 and 24. One flight, the so-called Bin Ladin flight, departed the United States on September 20 with 26 passengers, most of them relatives of Usama Bin Ladin. We have found no credible evidence that any chartered flights of Saudi Arabian nationals departed the United States before the reopening of national airspace.

The Saudi flights were screened by law enforcement officials, primarily the FBI, to ensure that people on these flights did not pose a threat to national security, and that nobody of interest to the FBI with regard to the 9/11 investigation was allowed to leave the country. Thirty of the 142 people on these flights were interviewed by the FBI, including 22 of the 26 people (23 passengers and 3 private security guards) on the Bin Ladin flight. Many were asked detailed questions. None of the passengers stated that they had any recent contact with Usama Bin Ladin or knew anything about terrorist activity.

The FBI checked a variety of databases for information on the Bin Ladin flight passengers and searched the aircraft. It is unclear whether the TIPOFF terrorist watchlist was checked. At our request, the Terrorist Screening Center has rechecked the names of individuals on the flight manifests of these six Saudi flights against the current TIPOFF watchlist. There are no matches.

The FBI has concluded that nobody was allowed to depart on these six flights who the FBI wanted to interview in connection with the 9/11 attacks, or who the FBI later concluded had any involvement in those attacks. To date, we have uncovered no evidence to contradict this conclusion.

Newsweek's Michael Isikoff raised that and other challenges to Fahrenheit 911, to which
Moore responded here (inadequately, in my opinion).

Mustard Gas Attack in Baghdad?

WorldNetDaily--a, well, less-than-reputable news source--reports (if that is an accurate description of what they do) that insurgents/terrorists launched an attack inside the Green Zone using mustard gas, although no information exists about casualties.

"I think it's safe to say our little friends know where the cache is now," said one source sardonically.

Odd that no one else is reporting the "attack." However, on June 24, FoxNews exclusively interviewed Charles Duelfer, current head of the Iraq Survey Group [Wikipedia]. I haven't been able to find a transcript of the interview, but a summary news piece can be found here. Apparently, Duelfer told FoxNews that about 10 or 12 mustard gas shells have been found, all from the pre-Gulf War era (although no one else claims they were used in an attack in the Green Zone).

Yesterday, Secretary Rumsfeld had this to say at a DOD briefing:

The so-called Iraqi Survey Group, which is a multi-national group, are pouring over documentation and interviewing former Iraqi scientists. The first head of that group, Mr. David Kay, concluded, as has his successor, Mr. Delfer [sic], that in fact Iraq had filed a fraudulent declaration to the United Nations. The process of uncovering chemical or biological or nuclear program materials is continuing and within the last week a number of weapons containing various types of chemicals have in fact been found and are currently being tested. The last piece that I saw suggested it was mustard gas. And although it's a first report, it appeared to be old and something that had not been declared as the declaration to the United Nations required. Time will tell what else might be found.

I find it puzzling that the mainstream press has not reported anything about these events. At the same time, a dozen old weapons that were made before the first Gulf War do not demonstrate anything--so I am not sure how much there is to report. But I imagine this will make the headlines this week, and I am interested to see how it gets covered.

The Biggies

Slate has this coverage of the upcoming Supreme Court decisions. Rumor has it that the big decisions on the detainee cases will be announced on Monday--end of the week the latest.

Science and Politics

The Bush administration has ordered that government scientists must be approved by a senior political appointee before they can participate in meetings convened by the World Health Organization, the leading international health and science agency.

(Ryan, I hope you are still tuning in to this page every once and awhile.)

That quote is straight from this LAT article. I don't have much commentary to add. What is there to add? Scientists must be vetted before representing the United States in front of the World Health Organization. That is just down right creepy if you ask me. And Linda Rosenstock agrees:

"This is really tampering with a process that has worked very well," said Linda Rosenstock, the dean of the UCLA School of Public Health who directed the National Institute for Occupational Safety and Health under President Clinton. "To have this micromanaged at the HHS departmental level raises the specter that political considerations rather than scientific considerations will determine who is allowed to go" to the world's most important scientific meetings.

Lesson: Don't Take Your Wife to Sex Clubs Against Her Will (Take Your Mistress Instead!)

AP reports that Jack Ryan is dropping out. Whoever steps in his place will certainly have an uphill battle against Barrak Obama. Any guesses? DailyKOS has this discussion.

My shot in the dark: Illinois State Treasurer Judy Baar Topinka.

Re: New CIA Director

I am entirely unfamiliar with Goss but it seems that the Bush administration is forced to nominate a relatively safe replacement for Tenet, and Goss appears to fit the bill. If there is a terrorist attack before the election, and the position remains open, the public might blame the Bush administration for failing to appoint a captain to run the ship.

On the other hand (as Dave observed in our off-line discussion on the topic), the Bush administration could name a controversial replacement and blame Congress if America is attacked. But that is certainly a risky strategy and President Bush isn't in the position to take gambles right now.

The Cheney Decision

Today the Supreme Court decided that the DC Circuit wrongly dismissed Vice President Cheney's writ of mandamus challenging discovery orders in the district court (here's the opinion [PDF], or here [HTML or PDF]). The AP provides a brief summary here.

The decision was poorly decided, but in order to explain why I feel that way a couple of facts about the case must be understood. First, Vice President Chaney did not actually raise the executive privilege. Second, none of the defendants argued that the discovery requests were too broad--rather, the defendants argued that plaintiffs were entitled to zero discovery. The defendants argued that they did not need to turn over a freakin' thing, and didn't have to explain themselves either. And the Supreme Court essentially bought it.

The majority was right to note that the executive privilege case involving Nixon was different because it involved criminal and not civil charges. But the majority largely ignored some language in the Nixon opinion, which taught that the Presidnet cannot make some "broad and undifferentiated" assertion of an "absolute, unqualified" privilege. Such an expansive reading of executive power is what the Vice President was looking for--and what it received by this holding. The defendants admitted that their argument was "in the nature of a claim of immunity from discovery." And while the majority did not go that far, it did say that the courts below should have paid more attention to the separation-of-powers concerns and could not in fairness allow broad discovery requests to proceed.

But this case was not about how broad or narrow discovery should be in this case. It was about some over-arching immunity from discovery because of the position of the executive branch in our system--even without raising any executive privilege. The majority argues it would be far too burdensome to require the executive branch to raise objections to discovery in every instance (whether based on executive privilege or other grounds). And this is where things get really strange--the majority argues that the executive privilege should not be required because it is some serious weaponry that should not be used lightly:

Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive's Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive's claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These "occasions for constitutional confrontation between the two branches" should be avoided whenever possible.

Ok--Let me get this straight: The Executive branch should not have to raise the privilege, because whenever they raise the privilege, some tough questions come about. So we are just going to give them the benefits of the privilege without asking them to raise it. Any questions?

Documents on Interrogation Tactics Available at WP

The WP has scanned the documents that were released yesterday by the Bush administration. They include the 2002 memo by now-judge Bybee (who sits on the 9th Circuit Court of Appeals) and several memos by White House General Counsel Gonzales. I am sure there will be lots of stories cropping up today on these memos (and I plan to make more comments when I have the time to go through those documents), but I found one scanned document particularly interesting right off the bat.

On November 27, 2002, William Haynes II recommended to Secretary Rumsfeld that certain interrogation techniques be available for detainees at Guantanamo--and Rumsfeld approved his recommendations. Among the techniques that were approved in the memo [PDF] include:

a. Category I techniques. During the initial interrogation the detainee should be provided a comfortable chair and the environment should be generally comfortable. The format of the interrogation is the direct approach. The use of rewards like cookies or cigarettes may be helpful. If the detainee is determined by the interrogator to be uncooperative, the interrogator may use the following techniques:

(1) Yelling at the detainee (not directly in his ear or to the level that it would cause physical pain or hearing problems)
(2) Techniques of deception:
(a) Multiple interrogator techniques.
(b) Interrogator identity. The interviewer may identify himself as a citizen of a foreign nation or as an interrogator from a country with a reputation for harsh treatment of detainees.

b. Category II techniques. With the permission of the GIC, Interrogation Section, the interrogator may use the following techniques.

(1) The use of stress positions (like standing), for a maximum of four hours.
(2) The use of falsified documents or reports.
(3) Use of the isolation facility for up to 30 days. Requests must be made to through the OIC, Interrogation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.
(4) Interrogating the detainee in an environment other than the standard interrogation booth.
(5) Deprivation of light and auditory stimuli.
(6) The detainee may also have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.
(7) The use of 28-hour interrogations.
(8) Removal of all comfort items (including religious items).
(9) Switching the detainee from hot rations to MREs.
(10) Removal of clothing.
(11) Forced grooming (shaving of facial hair etc...)
(12) Using detainees individual phobias (such as fear of dogs) to induce stress.

The same memo also approved one item from "Category III": "Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing."

When Secretary Rumsfeld signed off on the above techniques, he added a written notation that reads:

However, I stand for 8-10 hours a day. Why is standing limited to 4 hours? DR

White House Releasing Interrogation File [AP]

White House General Counsel Alberto Gonzales will reportedly brief the news media later today on the contents of a stack of papers that is being released relating to the deliberations for setting the rules on interrogations. The story says that the administration decided to release the documents to fight "the constant drip on this issue."

The disclosure may have an unintended legal consequence--if the administration has cherry-picked the documents they released and are still withholding others, they may have a hard time raising any executive or other privilege to prevent those documents from being withheld. As a matter of fact, now would be an opportune time for someone to file a "Freedom of Information Act" request with the Whitehouse demanding all documents on that subject that do not fall within some exception (like national security).

Update: On further deliberation (and actually reading over the language of FOIA, especially 5 U.S.C. 552(b)(5)) I highly doubt that an ordinary citizen could get at the documents that the government failed to include in its two-inch stack released today. That provision exempts:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

But Congress could still subpoena the Executive for that information (yeah, that'll happen).

Saddam and Osama Sitting In a Tree...

Talking Points Memo has this entry regarding all the recent hub-bub over the Iraq-al Qaeda link.

The 9-11 Commission recently released a staff statement (entitled "Overview of the Enemy" [PDF]--isn't that catchy?) that started all this talk anew when they had this to say:

Bin Ladin also explored possible cooperation with Iraq during his time in Sudan, despite his opposition to Hussein's secular regime. Bin Ladin had in fact at one time sponsored anti-Hussein Islamists in Iraqi Kurdistan. The Sudanese, to protect their own ties with Iraq, reportedly persuaded Bin Ladin to cease this support and arranged for contacts between Iraq and al Qaeda. A senior Iraqi intelligence officer reportedly made three visits to Sudan, finally meeting Bin Ladin in 1994. Bin Ladin is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded. There have been reports that contacts between Iraq and al Qaeda have also occurred after Bin Ladin had returned to Afghanistan, but they do not appear to have resulted in a collabiorative relationship. Two senior Bin Ladin associates have adamently denied that any ties existed between al Qaeda and Iraq. We have no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.

Somehow the Bush administration took from that report the idea that "9-11 Commission Staff Report Confirms Administration's Views of al-Qaeda/Iraq Ties," according to a Talking Points email that the administration sent out to its supporters (as reported in this WP article). And Vice President Cheney recently confirmed that Saddam "had long established ties with al Qaeda" [Remarks available on Whitehouse.gov].]

One last thing--Stephen Hayes (of Weekly Standard fame) wrote a book called The Connection that highlighted all the purportedly strong evidence for the relationship between Iraq and al Qaeda, but most of it does not hold much water (if Hayes' article of the same name is at all similar to the book). The one claim worth looking into (and highlighted recently by 9-11 Commissioner John Lehman on Meet the Press) is that a dude named Ahmed Hikmat Shakir was revealed on a roster of Saddam's (as a liuetenant colonel) and a dude by the same name also participated in meetings with sketchy folks in Malaysia in 2000. But I fail to see hwo that constitutes "long established ties." I guess I'm just dense (but then so is this CSMonitor commentator).

For other quotes by the Bush administration, see this New Republic Online post.

Update: Newsday is reporting that the CIA concluded ("a long time ago") that the Shakir fella who showed up on Saddam's list is not the al Qaeda terrorist by the same name. LAT is also reporting that "a U.S. intelligence official" is disputing the connection: Apparently a CIA investigation earlier this year "concluded that the individuals listed in captured Iraqi documents as members of the Fadayeen are not the same as the Iraqi who facilitated the arrival of a September 11 hijacker in Kuala Lumpur." So apparently he's an Iraqi--just not the Iraqi they thought he was? The WP claims that "a senior administration official" explained the name mix-up: the al Qaeda guy is "Ahmad Hikmat Shakir Azzawi" and the Iraqi military guy is Lt. Col. "Hakmit Shakir Ahmad." Sorry Iraq--it was just a simple misunderstanding. Here's your country back, just as we found it.

Should Bush Find a Permanent CIA Director Before November?

The NYT writes that the Bush administration is actively pondering that question right now (I know what you're thinking. I didn't think that the Bush administration could actively ponder either. But I guess we were wrong.)

Oh where is David when you need him for his witty and pragmatic political analysis?

On a (somewhat) related note and discussed in that same NYT story (and also at this CSM story), a new book is about to be released by a "senior intelligence official" that was apparently vetted by the CIA. Who is this mystery author?

Bush and McCain Play Nice

Hopefully this story [WP] will put to bed those nagging rumors about McCain serving as Kerry's running mate.

WP Story on Negroponte

Well, it's good to see that not everyone in the mainstream media has forgotten that June 30 ain't too far off. Good coverage on the man taking over the mess (see this earlier BWJ entry on Negroponte). Well, apparently not the whole mess--according to this National Security Presidential Directive obtained by Steve Aftergood at the Federation of American Scientists, the U.S. Military retains authority over security and military operations:

When the CPA is terminated, the United States will be represented in Iraq by a Chief of Mission, who on my behalf and under the guidance of the Secretary of State, shall be responsible for the direction, coordination and supervision of all United States government employees, policies, and activities in country, except those under the command of an area military commander, and employees seconded to an International Organization.

Commander, USCENTCOM, under the authority, direction, and control of the Secretary of Defense, shall continue to be responsible for U.S. efforts with respect to security and military operations in Iraq. In all activities, the Chief of Mission and Commander, USCENTCOM, shall ensure the closest cooperation and mutual support.

The Presidential Directive also provides that the Secretary of Defense gets to choose the Director for a new temporary office called the "Project and Accounting Office," whose services include "engineering, auditing, and other contract-related services."

And of course, our role is limited anyway seeing that Iraq will get "full sovereignty" on June 30. (I'll believe it when I see it).

Thanks to Talking Points Memo for pointing me to the Presidential Directive.

Getting His 80th Birthday Kicks

NYT ran this story on #41. I can't help but wonder whether it can be seen as a symbollic gesture that President Bush Sr. suddenly feels the need to practice his parachuting skills.

A Novel Approach to Foreign Policy: Help Weak States Before They Devolve To Chaos

CSM ran this article today about a report (full report available here; executive summary here) released by the bipartisan Commission on Weak States and US National Security. The executive summary made many interesting points, and so I am tempted to read the whole thing. Anyone else interested in making this a focus point for discussion?

And Sanchez is the Winner! (or the Loser, All Depending How You Look At It)

The WP opens this story with the following:

Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq, borrowed heavily from a list of high-pressure interrogation tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and approved letting senior officials at a Baghdad jail use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation, and diets of bread and water on detainees whenever they wished, according to newly obtained documents.

I'm sure that the Pentagon's decision to "rotate out" General Sanchez (LAT) had nothing to do with this. President Bush: Sanchez "has done a fabulous job. He's been there for a long time. His service has been exemplary."

A "Senior Defense Official" said "He's been there going on 14 months now. Anybody trying to draw a line between the natural progression of looking for somebody to rotate into that position to the alleged abuses at Abu Ghraib would be just wrong. There's absolutely no connection whatever."

From the LAT story: "It was unknown what Sanchez's next assignment would be."

Sanchez or Pappas or Miller in the Doghouse?

From the Senate Hearing on May 19:
REED: General Sanchez, today's USA Today, sir, reported that you ordered or approved the use of sleep deprivation, intimidation by guard dogs, excessive noise and inducing fear as an interrogation method for a prisoner in Abu Ghraib prison. Is that correct?

SANCHEZ: Sir, that may be correct that it's in a news article, but I never approved any of those measures to be used within CJTF-7 at any time in the last year.

REED: Excuse me. Because I want to get back to this. It may be correct that you ordered those methods used against a prisoner. Is that your answer?

SANCHEZ: No, sir, that's not what I said. I said it may be correct...

REED: Well, I didn't hear; that's why I want...

SANCHEZ: ... that it's printed in an article, but I have never approved the use of any of those methods within CJTF-7 in the 12.5 months that I've been in Iraq.

From Today's Washington Post:
Sgts. Michael J. Smith and Santos A. Cardona, Army dog handlers assigned to Abu Ghraib, told investigators that military intelligence personnel requested that they bring their dogs to prison interrogation sites multiple times to assist in questioning detainees in December and January. Col. Thomas M. Pappas, who was in charge of military intelligence at the prison, told both soldiers that the use of dogs in interrogations had been approved, according to the statements.

"I have talked to Col. Papus [sic] and he said it was good to go," Smith told an investigator on Jan. 23.

* * *

In Army memos regarding interrogation techniques at the prison, the use of military working dogs was specifically allowed -- as long as higher-ranking officers approved the measures. According to one military intelligence memo obtained by The Post, the officer in charge of the military intelligence-run interrogation center at the prison had to approve the use of dogs in interrogations. There is no explanation in the memo of what parameters would have to be in place -- for example, whether the dogs would be muzzled or unmuzzled -- or what the dogs would be allowed to do. The Army previously has said that the commanding general of U.S. troops in Iraq -- Lt. Gen. Ricardo S. Sanchez -- would have had to approve the use of dogs.

This all comes out immediately after Lt. Gen. Sanchez asked that a higher-ranking official take over the investigation so that he could be questioned about his role in the prison abuse (see this CNN article)

In an earlier story, the WP quotes Col. Pappas as saying that Gen. Miller did in fact approve the use of dogs (from Taguba's report--apparently Pappas's statement is in the 2,000 pages that the Pentagon failed to deliver to Congress (see this NYT story)--although this Reuters story claims the Army now certifies that the Senate now has a "true and accurate copy of the report")
"It was a technique I had personally discussed with General Miller, when he was here" visiting the prison, testified Pappas, head of the 205th Military Intelligence Brigade and the officer placed in charge of the cellblocks at Abu Ghraib prison where abuses occurred in the wake of Miller's visit to Baghdad between Aug. 30 and Sept. 9, 2003.

"He said that they used military working dogs at Gitmo [the nickname for Guantanamo Bay], and that they were effective in setting the atmosphere for which, you know, you could get information" from the prisoners, Pappas told the Army investigator, Maj. Gen. Antonio M. Taguba, according to a transcript provided to The Washington Post.

* * *

After calling the use of dogs Miller's idea, Pappas explained that "in the execution of interrogation, and the interrogation business in general, we are trying to get info from these people. We have to act in an environment not to permanently damage them, or psychologically abuse them, but we have to assert control and get detainees into a position where they're willing to talk to us."

Pappas added that it "would never be my intent that the dog be allowed to bite or in any way touch a detainee or anybody else." He said he recalled speaking to one dog handler and telling him "they could be used in interrogations" anytime according to terms spelled out in a Sept. 14, 2003, memo signed by Sanchez.

That memo included the use of dogs among techniques that did not require special approval. The policy was changed on Oct. 12 to require Sanchez's approval on a case-by-case basis for certain techniques, including having "military working dogs" present during interrogations.

Wait--There's More Bad Apples

The San Diego Union-Tribune reports here:

While world attention was focused on the scandal at Abu Ghraib prison, two Marines were court-martialed May 14 for abusing an Iraqi prisoner with electricity, it was disclosed yesterday.

Five more Marines have been implicated in the same early April incident at a Marine-run detention facility and might face charges, according to Marine officials in Iraq.

Andrew J. Sting and Jeremiah J. Trefney, both 19 and privates first class assigned to the 2nd Battalion, 2nd Marine Regiment at Camp Lejeune, N.C., pleaded guilty to charges that included cruelty and maltreatment for shocking an unruly prisoner, according to a Marine statement in response to questions from The San Diego Union-Tribune.

The East Coast-based infantry battalion is attached to the 1st Marine Expeditionary Force, which has headquarters in San Diego.

The prisoner had been detained at Al Mahmudiya prison.

Sting was sentenced to a year in jail and Trefney received eight months. Both were reduced in rank, will forfeit all pay and will leave the military with a bad conduct discharge.

Notice that the last two reports are NOT from Abu Ghraib.

A Few More Bad Apples

The LATimes reports here:

A military investigator has concluded that low-ranking Marines repeatedly struck two defenseless Iraqis at a makeshift prison camp last June, and one of the detainees died after he was left disabled and naked under a scorching sun.

In two reports obtained by The Times, Marine Col. William V. Gallo also criticized an investigation into the death, saying the deceased Iraqi's bodily fluids were mishandled by investigators and were destroyed on the way to a laboratory for analysis.

* * *

Although Gallo found no evidence of the type of abuse or sexual humiliation depicted in photographs from Abu Ghraib, he did report that testimony showed that the Marine guards at Camp Whitehorse used a stressing technique known as 50/10, in which detainees were required to stand for 50 minutes out of every hour. The tactic was used until the arrival of trained interrogators — members of a "Human Intelligence Exploitation Team" — sometimes as long as eight hours later.

Several guards testified at hearings late last year and early this year that they were directed by the interrogators to use the technique "as a means to soften up a detainee before the initial interview occurred," Gallo wrote. Two military intelligence interrogators denied this in testimony at the same hearings, the military equivalent of a preliminary hearing in a criminal case. But Gallo concluded in his reports that someone from the intelligence unit "must have directed or strongly suggested" that guards use the tactic.

The Actions of a Few

I have been thinking some about the Bush administration's response that the whole Abu Ghraib affair should be brushed aside and focus placed on more pressing issues because it is simply "the actions of a few" and does not represent "the true nature and heart of America" according to Bush in his apology to Jordan's King Abdullah [AP](I never did figure out why Bush apologized to Jordan for the prison abuses). And it finally struck me that we are asking the Arab world to measure us not by the actions of those few derelict soldiers (assuming that is an accurate assessment of the situation), but rather by the conduct of all Americans. However, when it comes to the Global War on Terror, the Bush administration and many who support the war continue to condemn and oppress the Arab world based on the actions of a few.

For example, Senator Inhofe expressed "outrage at the outrage" at the Senate Hearing on May 11 (NYT) because the prisoners we are so concerned about are all (in Inhofe's mind) murderers, insurgents, and terrorists. And almost to prove his point, "those people" decapitated Nicholas Berg--one of "us"--that same day.

Contrary to Senator Inhofe's suggestions, the ICRC claims that most of the Abu Ghraib prisoners (up to 90%) are innocent. At the very least, we know that Abu Ghraib prisoners were not "high value"--the "high value" campers got extra-special treatment at a separate facility near the Baghdad Airport (that is now being investigated too [MSNBC]).

My point is that many of the problems that we face now and will continue to face in battling this Global War on Terror stems from separating "us" from "them," and holding "us" to a different standard than "them." How many Fallujans did we kill to avenge the deaths of four civilian contractors? Were they all murderers, insurgents, and terrorists too? Until we are willing to extend the same basic liberties that we consider inalienable for ourselves to all those who share this planet, there will be terrorism. Until we are willing to accept that the actions of a few others do not justify waging war on all others, we cannot hope to persuade the world that the actions of a few of "us" should not reflect poorly upon America.

You Call Yourself a Patriot and a Republican?

From this article in today's NYT:

Today, Speaker J. Dennis Hastert was asked about Mr. McCain's view that Congress should not enact tax cuts during wartime because it keeps the public from developing the sense of shared sacrifice that war requires. Mr. Hastert, who was discussing tax cuts, the Republican budget and $50 billion for the war in Iraq, had had enough.

"Who?" asked Mr. Hastert as he heard Mr. McCain's name. "Where is he from? Is he a Republican?"

Then Mr. Hastert really unloaded on Mr. McCain, who sustained lifelong injuries as a prisoner of war in Vietnam.

"John McCain ought to visit our young men and women at Walter Reed and Bethesda," Mr. Hastert said. "There is the sacrifice in this country. We are trying to make sure they have the ability to fight this war, that they have the wherewithal to do it. At the same time we have to react to keep this country strong not only militarily, but economically. We have to have the flexibility to do it. That is my answer to John McCain."

According to Noted Now [ABCNews], McCain responded thusly:

"I fondly remember a time when real Republicans stood for fiscal responsibility. Apparently those days are long gone for some in our party."

Could It Be?

President Bush has scheduled a press conference at 11:30 ET at the Pentagon...

Update: That press conference was worthless. And my prediction was wrong. I am constantly amazed at the depth of this administration's denial. But I am even more amazed that the people have lost all affect. Rape? Torture? Those are just things that happen during wartime, and anyone who thinks otherwise is hopelessly naive. International disgrace? Who cares, so long as things look good at home. Lies? Everyone's a liar. And anyone accusing this administration of doing bad things is obviously making those accusations for political purposes.

No, the Bush administration isn't giving Rumsfeld walking papers. They are giving him accolades. President Bush (according to the AP): Secretary Rumsfeld "is doing a superb job"--he's a strong secretary and the nation owes him a debt of gratitude. Vice President Cheney (according to Reuters): He's the best Secretary of Defense the United States has ever had. People ought to get off Rumsfeld's case and let him do his job.

God bless America.

Questioning Prisoners of War

Both the Geneva Convention Relative to the Treatment of Prisoners of War and the U.S. Law of Land Warfare have this to say about the questioning of prisoners of war:

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or the fingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to its armed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.

The questioning of prisoners of war shall be carried out in a language which they understand.

Section VI, which discusses quarters, food, and clothing, states that POWs "shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health."

I leave it to you to decide whether the Pentagon's approved tactics of "sensory assault" (as described in this WP story) constitute exposure "to any unpleasant or disadvantageous treatment of any kind," and whether the conditions in Abu Ghraib were the same as those provided to U.S. troops in Baghdad.

The Taguba Report and "National Security"

My second concern regarding Rumsfeld's testimony is his explanation about how the investigation of prisoner abuse was handled within the military. As Rumsfeld repeatedly emphasized, the military began an investigation in January, and we now know that Major General Taguba released his report in February. It was classified. Why? When that question was posed to Rumsfeld in a press conference on May 4th, this is what he and General Pace had to say:

Q: General, a quick follow-up on that, please. Could you explain to us why the Taguba report was classified secret, no foreign distribution? Those of us who have read the report, there's clearly nothing in there that's inherently secret, such as intelligence sources and methods or troop movements. Was this kept secret because it would be embarrassing to the world, particularly the Arab world?

GEN. PACE: First of all, I do not know specifically why it was labeled secret. Potentially there are parts of the hundreds and hundreds of pages of documentation that are classified. I do not know that to be a fact, but normally we will classify a document at the highest level of anything that's in that document.

But as the secretary pointed out, immediately we told the world that we thought we had a problem. So there has been no attempt to hide this. What we've been trying to do is find out the truth of the matter so we can get on about correcting; finding out who did what, and then taking a proper action.

Q: Mr. Secretary, can you say why it was classified secret? Do you know?

SEC. RUMSFELD: No, you'd have to ask the classifier.

Q: Mr. Secretary?

Q: Mr. Secretary? Taking into account –

SEC. RUMSFELD: You can ask General Casey, who's going to be down here discussing that later.

I don't know whether General Casey indeed discussed that later. As far as I have been able to find, there has been no explanation for why the Taguba report was classified.

On March 25, 2003, President Bush issued Executive Order 13292 that sets forth the policies and procedures for classifying information. It provides (in section 1.1) that "information may be originally classified under the terms of this order only if all of the following conditions are met:"

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

The DOD is considered an "original classification authority," so requirement #1 is met. The report was produced by the US Government, so #2 is ok. What about #3? The categories of information that can be classified according to section 1.4 are as follows:

(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security, which includes defense against transnational terrorism;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security, which includes defense against transnational terrorism; or
(h) weapons of mass destruction.

For the life of me, I cannot see how the Taguba report fits within any of those categories. And more importantly, section 1.7(a)(1) provides: "In no case shall information be classified in order to:
(1) conceal violations of law, inefficiency, or administrative error."

I am disappointed that no member of Congress asked Rumsfeld about this (as far as I know). There has also been very little press coverage. The Federation of American Scientists issued a press release stating "Torture Report May Have Broken Classification Rules," and according to this WP article the group sent a letter to J. William Leonard, director of the Information Security Oversight Office (the office responsible for overseeing classified material), seeking an explanation. CNet's News.com also published a story on this, and Friday's Democracy Now broadcast also mentioned the issue. But this certainly deserves more coverage, and a better explanation from the government.

Command Influence

There are two lingering concerns that I have after Secretary Rumsfeld's testimony in front of Congress. First, Rumsfeld suggested that the "command influence" doctrine somehow prevented him and other high-level DOD officials from learning too much about the claims of torture because their knowledge could somehow influence military prosecutions. That is a preposterous interpretation of the command influence doctrine. The Judge Advocate General School for the Air Force has published an instruction book entitled The Military Commmander and the Law that it uses to instruct commanders on the law and "it also serves as a handy reference guide for commanders in the field, providing general guidance and helping commanders to clarify issues and identify potential problem areas." That publication has a section dedicated to "Unlawful Command Influence." It explains what the doctrine prohibits:

A superior commander must not direct a subordinate commander to impose a particular punishment or take a particular action. To do so would constitute unlawful command influence because the decision was not that of the commander taking action or imposing punishment, but rather that of the superior commander.

The key consideration is whether a commander is taking disciplinary action based upon that commander?s own personal belief that the disciplinary action is appropriate or whether the commander is merely acquiescing to direction from a superior to impose the particular discipline.

It also explains what the doctrine does not prohibit:

Superior commanders are not prohibited from establishing and communicating policies necessary to maintenance of good order and discipline. They are also free to pass on their experience and advise subordinate commanders regarding disciplinary matters. Having done so, however, the superior commander must then step back and allow the subordinates to exercise their discretion in the matter.

It is simply ridiculous to assert that the command influence doctrine prohibits Secretary Rumsfeld or General Myers (or any other commander below them) from obtaining information regarding the conduct of its troops, particularly where that information is necessary to evaluate whether troop conduct complies with the obligations imposed by the Geneva Convention. Rumsfeld and others in the chain of command should not make statements that subordinates could interpret as suggesting how a prosecution should be resolved, but of course that does not restrict the flow of information in any way. Along those lines, as the Baltimore Sun explains in this article, Rumsfeld and Bush should be more cautious when making statements like "the wrongdoers will be brought to justice" and labeling the soldiers' behavior as "un-American." But the command influence doctrine simply does not encourage a commander to stick his head in the sand and ignore reports that detail unlawful troop conduct.

Rumsfeld's Senate Performance

The Washington Post has the transcript of Donald Rumsfeld's appearance before the Senate Armed Services Committee today. Pretty entertaining. John McCain's session was by far the best. Here's an excerpt:

MCCAIN: Thank you.

I'd like to know who was in charge of the -- what agencies or private contractors were in charge of interrogations? Did they have authority over the guards? And what were their instructions to the guards?

RUMSFELD: First, with respect to the...

SMITH: We did not bring it.

RUMSFELD: Oh, my.

SMITH: Yes, oh, my is right.

RUMSFELD: It was all prepared.

SMITH: Yes, it was, indeed.

RUMSFELD: Do you want to walk through it?

MCCAIN: Anyway, who was in charge? What agency or private contractor was in charge of the interrogations? Did they have authority over the guards? And what were the instructions that they gave to the guards?

SMITH: I'll walk through the chain of command and...

MCCAIN: No. Let's just -- you can submit the chain of command, please.

WARNER: General Smith, do you want to respond?

MCCAIN: No. Secretary Rumsfeld, in all due respect, you've got to answer this question. And it could be satisfied with a phone call. This is a pretty simple, straightforward question: Who was in charge of the interrogations? What agencies or private contractors were in charge of the interrogations? Did they have authority over the guards? And what were the instructions to the guards?

This goes to the heart of this matter.

RUMSFELD: It does indeed.

Re: Rummy's Rules

I've seen that before, and I'm pretty sure it's authentic. Although this one seems to be missing:

-When the weapons of mass destruction that you bet the farm on don't turn up, torture the prisoners for more information.

Rummy's Rules

I don't know if this is for real, but all the better if it is (from a Daily KOS discussion).

Talking Points Memo points out that the full PDF version may be found here.

My Prediction

Either Rumsfeld or Myers will be looking for a new job by the time the weekend is over.

Re: Abu Ghraib

Just a brief follow-up on the previous post. I think there are three distinct and interesting threads to follow on this incident: a) How many troops/contractors had direct involvement in or knowledge of these events, and what will the consequences be for them, b) what sort of policy mistakes were made by higher ranking officers and officials that allowed this sort of conduct to take place and to go unnoticed long enough for it to get so out of hand, who will be held accountable, to what degree, and what procedural changes will be implemented, c) have there been any efforts at a cover-up, if so, who was involved and how far up the chain of command did it go. It may be some time before all of this becomes clear...