Tuesday, July 31, 2007

Congress passes ethics reform

The House finally joined the Senate in passing its ethics reform bill. Because objections from Republican Sen. Jim DeMint prevented the bill from going through conference committee, we have two curious effects: The law features different rules for the House and Senate, and the Senate will now have to vote on the new version before a unified bill becomes law.

The House on Tuesday overwhelmingly approved a sweeping lobbying and ethics reform bill on a 411-8 vote.

“We have kept our promise to drain the swamp that is Washington, D.C.,” Speaker Nancy Pelosi (D-Calif.) said, adding that the legislation is “historic.”

Among the few dissenters was (of course) John Murtha. And for pure ironic humor, you can't beat this: over in the Senate, Ted Stevens has threatened to place a hold on the legislation.

Pelosi's grandiose words aside, this is a work in progress, not a finished product. For one thing, at least some of DeMint's fears appear justified: the House version appears to be less stringent than the Senate version in a few respects. (Here's the text (pdf) of the revised bill that the above link is working from.)

Are they key respects, however? Not really. Let's go through their objections:

The old version (passed by the Senate) required conference / committee reports to list all earmarks and required the chairman of the relevant committee to distribute the earmark list. But the new version of the bill allows the Majority Leader (as opposed to the Senate parliamentarian, a more objective judge) to determine whether or not a conference report complies with the disclosure requirements.

True, but minor. Somebody has to certify it. The Senate parliamentarian is by tradition nonpartisan and accorded a fair bit of deference, but s/he serves at the pleasure of the majority leader, so the distinction is less material than it might seem. That said, I'd support changing it back to the original.

The new version removes the requirement for earmark lists posted online to be in searchable format.

This appears to be simply wrong. For example, Page 68, line 6 and Page 69, line 3 expressly require a searchable format. The exception seems to be when a bill emerges from conference committee. The earmark data is still required to be publicly available 48 hours prior to vote, but the "searchable" requirement is missing (page 69, lines 22-24). Whether that's deliberate or simply a mistake, I don't know. But again it's a minor, easily fixed problem that doesn't change the underlying reporting requirement.

The new version removes the provision that prevented any bill from being considered at all prior to the disclosure of earmarks; now the text only prohibits a formal motion to proceed, which leaves open a procedural loophole that would allow bills to slip through without disclosure.

I'm no parliamentarian, but I'm not sure what loophole the writer envisions here. In the Senate, procedure is everything. Can someone tell me how a bill could reach the Senate floor for debate without a motion to proceed?

The old version prohibited earmarks which benefit a Member, their staff, or their family/their staff’s family. The new version waters that down and only prohibits earmarks that would “only” affect those parties --- which means so long as you can make a case that your shiny new project affects at least one person other than you positively, you’re all set.

This again appears to be wrong. Page 73, lines 8-11 require senators to certify that their relatives do not have a monetary interest in the item. That prohibition is fleshed out (and weakened somewhat) on Page 76, lines 3-12. But it does not go as far as the writer suggests.

It says no member may knowingly request an earmark if "a principle purpose" of the earmark is to benefit "only" the member, or members of his family, or (and this is the biggie) a "limited class of persons or enterprises" of which the member or his family is a member.

That language seems pretty reasonably drawn to prohibit narrowly directed self-benefit. It wouldn't, for instance, outlaw the kind of earmarks I wrote about a year ago, in which a project in a member's district benefits the member. Which only makes sense. Lawmakers live in their districts; a rule that banned earmarks that benefited lawmakers even indirectly or in a small way would be unworkable.

So this list appears to be a collection of mostly minor complaints, the strongest of which is the issue with the parliamentarian.

Now that we know what the bill doesn't do, here's what it does do:

1. Lawmakers must disclose "bundled" contributions of $15,000 or more from lobbyists.

2. Earmarks must be disclosed 48 hours in advance of a bill's consideration, along with the name of the Congressmember that requested it, the cost and a description of the project and the beneficiaries.

3. Senators and candidates would have to pay full charter fare to fly private jets. House members cannot fly in private planes.

4. Legislators and their staff may not accept gifts from lobbyists.

5. Senators must wait two years after leaving office to become lobbyists; House members must wait one year.

6. Lawmakers may not attempt to influence hiring decisions at lobbying firms -- a direct blow at the K Street Project idea.

Those are real reforms. Could Congress do more? Of course. Severe statutory restrictions on the number and value of earmarks would be a great idea, for instance, as well as some basic rules for justifying them. But Democrats can honestly say they've enacted more reforms than any Congress in recent memory. And Republican criticisms ring pretty hollow considering it was their misbehavior that led to Democrats promising such reform. Anything this Congress does will be more than the previous Republican Congresses did.

The next step -- after passage of the final bill -- is to watch and see how and if members try to get around the rules. There will almost certainly be some unintended consequences that will need to be fixed, which could be an opening for weakening some of the rules. Democrats have talked the talk and walked the walk as far as passing the legislation goes; now we have to see if they'll walk the walk as far as following it.

But it's a good start, and deserving of praise.

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Gonzales update

The White House has sent Congress a letter that apparently backs up Alberto Gonzales' contention that when he said there was "no serious dispute" about NSA eavesdropping, he may have been technically correct -- the dispute was, as I discussed yesterday, over the NSA's data-mining program.

Also, thanks to PatHMV for pointing out the transcript (pdf) of James Comey's testimony before Congress, in which Comey repeatedly refuses to identify the program that prompted a nighttime visit to John Ashcroft's hospital room. That means that in order to believe Gonzales you don't have to call Comey a liar, and vice versa, restoring the possibility that they're both telling the truth. If that bears out then it will end this particular sideshow to the prosecutor scandal, returning attention to the main question of who fired the prosecutors, and why.

Meanwhile, a few Democratic hotheads in the House, led by Rep. Jay Inslee of Washington, want introduce a resolution calling for an impeachment investigation of Gonzales.

Even allowing for the fact that the resolution calls for an investigation, not impeachment itself, such a call is breathtakingly premature, and it has drawn scant support even among Democrats. Most importantly, there's no indication that the resolution, once submitted, would ever reemerge from committee. So chalk it up as simply one more piece of evidence pointing to Gonzales lack of support outside the Oval Office -- though Dick Cheney thinks he's doing a good job, too.

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Improvement in Iraq? You be the judge

Two members of the liberal Brookings Institute, Michael O'Hanlon and Kenneth Pollack, are just back from a trip to Iraq -- and they are pumped.

Here is the most important thing Americans need to understand: We are finally getting somewhere in Iraq, at least in military terms. As two analysts who have harshly criticized the Bush administration’s miserable handling of Iraq, we were surprised by the gains we saw and the potential to produce not necessarily “victory” but a sustainable stability that both we and the Iraqis could live with.

Wow! That's pretty cool.

But who are these guys, who say they have harshly criticized the Bush administration? As Glenn Greenwald points out, they've been war supporters since 2003. And that "harsh criticism"? They don't like the way Bush has executed things. In retrospect, that is; they tended to praise it as it went along.

This doesn't mean that they're wrong, and it would be very nice to think that they're right. But a war supporter claiming things are turning around is hardly surprising -- indeed, it's a mantra we've heard repeatedly at various points in the fighting. And the deceptive way in which they described their history with the war doesn't enhance their credibility.

I'd examine the specific points they make and decide whether they're significant, and take their overview comments with a grain of salt -- while waiting for September to come so we can make judgements based on fact, not biased opinion.

Update: Greenwald has yet another go at the pair, citing yet more writings showing that their support for the war has been pretty much constant -- including advocating a "surge" of troops before Bush ever proposed one.

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Monday, July 30, 2007

Et cetera

Finishing off the day, a roundup of outrage, humor and the merely interesting:

Ignoring pleas from the United States, legislators took their month-long recess. They won't be back until Sept. 4, making it that much harder to make progress on the various "benchmark" laws we are asking them to pass. The report on the military surge in the Baghdad area will be due in September, and now it's highly unlikely that we will be able to point to any legislative successes to accompany it. Which makes it that much more unlikely that voters will support our continued presence. Even worse is that the main culprit is the government of Prime Minister Nouri al_Maliki, not rebellious members of Parliament.

After Newt Gingrich declined to defend Alberto Gonzales during his appearance this weekend on Fox News Sunday, host Chris Wallace dropped this little bomb: "By the way, we invited White House officials and Republicans on the Senate Judiciary Committee to defend Attorney General Gonzales. We had no takers."

A 2006 report commissioned by former Surgeon General Richard Carmona -- on the link between poverty and poor health -- was held up by a political appointee with no background in medicine or public health because the report wasn't political enough. That's according to several current and former health officials. The appointee, Will Steiger, acknowledged he told Carmona the report needed to promote administration policies, but he denied that that dispute held up its release; he said the report was delayed because of "sloppy work, poor analysis and lack of scientific rigor." Steiger is the scion of a well-connected Republican family; his expertise is in education and Latin American history. And a "former administration official" said the report is just one of several that the administration has bottled up because they didn't like the conclusions.

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Gonzales the truthteller?

The New York Times (alert, "liberal media" claimants) has a go at absolving Alberto Gonzales of lying to Congress.

The question, you may recall (primer here), involves whether Gonzales lied to Congress about the amount of internal dissent over the NSA eavesdropping program. There were three possible answers:

1. Yes.

2. No, because being a misleading weasel he was referring to the later, modified version of the program rather than the earlier, controversial one.

3. No, because he was referring to a totally separate program.

Earlier stories suggested the answer was #2, but the Times story suggests that it's #3, and that Gonzales was referring to the NSA data-mining program, not the warrantless eavesdropping program.

There's some self-congratulation at work here, inasmuch as the Times first broke the story of the data-mining effort. But it's a plausible explanation.

The only problem is, if the Times is right, why did James Comey -- the man whose testimony set off this whole controversy -- suggest that the whole thing was about the eavesdropping program, not the data-mining effort? Both of them can't be right, can they?

They can -- if we accept the premise that both Comey and Gonzales were punctilious about details to the point of silliness.

Take this scenario out for a spin:

The "eavesdropping program", broadly defined, includes both data-mining and wiretapping.

When it came time to reauthorize it, the data-mining provision was far more controversial than the wiretapping provision.

So the confrontation at the hospital was mostly about the data-mining provision, but it was all part of the decision whether to reauthorize the overall eavesdropping program.

Thus Comey is right when he describes the confrontation in the context of the eavesdropping program. And Gonzales is right when he splits the program into parts in order to make a distinction between the publicly admitted wiretapping effort and the still-unadmitted data-mining effort.

But neither Comey nor Gonzales bothers to clarify their testimony -- despite it being abundantly clear that their comments have caused confusion -- because doing so would require admitting the existence of the data-mining effort.

That's a pretty tortuous path of speculation and assumption in order to show that neither man lied. And it doesn't explain why they couldn't simply explain the distinction in private briefings. So to adopt this scenario, you must further believe that the Congressmembers have been so briefed, and are posing knowingly misleading and false questions to Gonzales in public simply to embarrass him.

Even if you believe that about Democrats, why would you believe it about the Republicans on the panel? And what would keep Gonzales from making a pointed rebuttal, along the lines of "I've explained all that in private, as you well know, Senator"? So that, too, seems unlikely.

All in all, it seems difficult to reconcile Gonzales' and Comey's testimony in a way that results in outcome #3. Might the Times story be correct? Yes. But if it is, then Comey either lied or misled. Of the two, though, Gonzales is less trustworthy and had more incentive to lie. So the answer seems more likely to be #2, with #1 as a possibility.

Update: Tully over at Stubborn Facts does, indeed, assume the worst about the members of Congress. He doesn't address the inconsistencies with that theory, though.

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Spitzer's apology

New York Gov. Eliot Spitzer had an op-ed piece in Sunday's New York Times, discussing -- and apologizing for -- his office's misuse of state troopers in an attempt to dig dirt on Republican Senate majority leader Joseph Bruno.

He starts out by stating categorically that "what members of my administration did was wrong -- no ifs, ands or buts."

He then goes into a short summary of what happened, followed by his response: suspending one advisor and transferring another.

The piece represents an interesting strategy. In my earlier post I called this "Spitzer's Plamegate" because of the similarities between the two cases. But there's a key difference here.

In the Plame case, the Bush administration denied any impropriety at all, prompting investigations, a special prosecutor and a years-long scandal.

Spitzer, on the other hand, essentially admits to the charges against his administration. That more or less makes moot Bruno's threats of investigations and hearings, because Spitzer has already pleaded guilty to what such an investigation might hope to prove: impropriety, not illegality.

Spitzer appears to hope that derailing those investigations will make the scandal blow over quickly and not linger on to impede his policy agenda -- though there will be lingering problems thanks to his sour relationship with Bruno.

It's worth a shot, but it's probably a forlorn hope. Setting aside Bruno's personal pique and the political hay to be made by dragging out this embarassing episode, state Senate Republicans will note that one unanswered question is "who knew what when" -- in other words, was Spitzer part of the effort, or unaware as he claims?

That's a legitimate question, though the apparent lack of any possible illegality puts a limit on how aggressively and intrusively the Senate can pursue it. If Spitzer really wants to kill this scandal, he's going to have to give them an answer -- with documentation, if possible. Otherwise he gives them a premise to continue to flog the issue for months.

Senate Republicans, for their part, need to avoid overreaching and accept a reasonable solution if one is offered. That's not just simple fairness: Spitzer is a lot more popular than Bush, and an aggressively political investigation will backfire on them, especially now that Spitzer has donned a hairshirt over it.

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Friday, July 27, 2007

White House flip-flops

The White House has issued new information clarifying its flip-flops -- or rather, clarifying that flip-flops are forbidden.

signs have popped up at various White House entrances -- including the press entrance and the staff and visitors' entrance at the southwest gate -- along with e-mails to staff members, to remind everyone, particularly tour groups, that, even in these times of sinking poll numbers, proper attire is to be maintained.

The e-mail reminder was all in capital letters. It advised that there would be no jeans, sneakers, shorts, miniskirts, T-shirts, tank tops and -- with boldface added -- "NO FLIP FLOPS."

Dress code for staff? Make it tophat and tails. Dress code for reporters? Sure; it's a working environment.

Dress code for tourists that outlaws standard tourist attire? That's a bit odd. Especially because they apparently don't tell you about it until you've reached the front of the tour line. At which point you have to leave, change your clothes, and come back.

I actually have a hard time believing the White House would do that, so somebody please debunk this if possible. The White House web page explaining the tour rules doesn't mention any clothing requirements. It also mentions that tours must be arranged through your member of Congress, so perhaps would-be tourists get alerted to the dress code sometime prior to their arrival.

And overall -- is the sight of casually dressed citizens touring a building that belongs to them really so unbearable that it must be banned?


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White House on Gonzales

The White House has come out in defense of Alberto Gonzales' truthfulness -- but, of course, they can't tell you why.

Mr. Snow said, in effect, that Mr. Gonzales had been constrained in what he could say because there was a danger he would divulge classified material. “I understand it’s difficult to parse, because what you have involved here are matters of classification,” Mr. Snow said. “Sometimes it’s going to lead people to talk very carefully, and there’s going to be plenty of room for interpretation or conclusion.”

I'm not entirely clear how this could be true. The program was either the eavesdropping program or a different program. We know about the first, and Gonzales has already essentially said the second. How does making it clear that two different programs were being discussed compromise security any more than it already has?

And even if true, the White House is always free to brief the Congress members. After all, we're often told that Congress sees the same intelligence briefings that the President does.

Color this intriguing, but a bit lacking in punch without any supporting details. I don't expect the administration to publish sensitive information, but I do expect them to go beyond a mere assertion when making a claim like this. "I'd tell you but then I'd have to kill you" is a joke, not a legitimate rhetorical tactic.

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Redistricting update

In Wednesday's post about a new redistricting algorithm, I focused on the technical specifics of the proposed method, and the pros and cons that made it different from previous proposals.

I deliberately avoided delving into all the standing arguments about how best to draw districts, largely because I've discussed them in tedious detail before. But judging by the comments and e-mails I've received, a quick overview would be useful.

The complicating factor is that there are situations where gerrymandering produces a better result than a purely nonpartisan approach. That's because redistricting involves several legitimate but competing principles:

1. District boundaries should make geographic sense.

2. District boundaries should be nonpartisan.

3. The makeup of Congress should reflect the makeup of the citizenry.
If a given group makes up 15 percent of the citizens, it should probably have about 15 percent of the Congressional seats.

4. Districts should be socially coherent, so that their representative can truly represent them. A suburban neighborhood on the edge of the city, for instance, is better grouped with a suburban district with similar demographics than an urban district with which it has nothing in common.

The problem is that #4 is highly subjective, and it's hard to get #3 if you want both #2 and #1. For instance, assuming minorities are somewhat evenly spread through the population, a totally nonpartisan approach would create zero districts where blacks, say, are a majority -- greatly reducing the political power of black voters.

So one consequence of a completely objective method for drawing districts would probably be a steep drop in the number of minority members of Congress.

That doesn't feel right. That's why increasing minority representation is one of the few legal exceptions to the "no excessive gerrymandering" rules.

Besides leading to travesties like District 12 on the above map of North Carolina, such efforts created a whole new set of problems. Republicans, for instance, found that if you draw those minority districts right you not only get more minorities but you also get more safe Republican seats. Republicans gained 10 House seats in the 1992 elections -- 12 of them in states where minority districts had been created. Gains in those states, in other words, offset losses elsewhere.

This, in turn, has contributed to careerism and the alarming polarization of national politics, because someone with a safe seat is free to demagogue as much as they like, and it's harder to find common ground with other legislators. Why would a representative from poor inner-city Detroit care about the issues most dear to people in suburban Orange County, Calif.? Or vice versa? Their constituents have almost nothing in common.

If more districts were politically and racially mixed, you might find more legislators with direct experience and interest in a range of issues, making sane policy and pragmatic compromises more likely.

The problems don't end there.

Once you allow gerrymandering for one purpose, it opens the door for a whole host of questions, like: How much gerrymandering is too much? If it's okay to gerrymander for race, how about gender or religion or other demographic features? You end up having to engage in a lot more arbitrary, complicated and difficult-to-defend line-drawing than if you simply ban the practice altogether.

And while we must recognize race as a political force, why should we encourage it? Being willfully color-blind often disguises residual racism, but that doesn't mean we should build racial assumptions into the very structure of our political system. Perhaps if we stop reinforcing the idea that race should be a factor in politics, it will stop being as much of a factor.

In the end, while #3 and #4 are commendable ideals, in my book they come in second to #1 and #2. As an extension of adjusting the algorithm to account for existing political boundaries I'm willing to accept very minor adjustments to a district's boundaries in order to nudge it over into "minority" status. That will result in fewer minority districts, but more than if no adjusting were done at all.

To minorities who say that such a move destroys their political power, I'd say "join the club." Speaking as an agnostic political moderate, I can confidently say my views aren't proportionately represented in Congress, either.

The solution to that is to organize politically to create a voice out of proportion to your numbers. It worked for the religious right; it works for unions; it can work for racial groups, too. And it has the added advantage of making a given minority's concerns part of the political calculus of a far larger number of Congressmembers. Sufficiently organized, that could result in far greater political influence than could every be achieved by packing minorities into their own districts.

Even better would be to stop viewing representation through the prism of race and start organizing around specific issues instead. Symbolically important as minorities in Congress can be, would black voters, for instance, really prefer a black representative with whom they totally disagree, or a white representative whose positions they support?

Here in Minnesota, one of the main political divides is rural vs. urban. I find it difficult to believe that a rural black has more in common politically with an urban black than with a fellow rural dweller of any color.

In sum, then, the collective good of removing politics from the redistricting process generally outweighs the collective good of proportional representation. The first should be the priority, while the second should be a bonus to be added where possible -- but only if it doesn't derail the whole shebang.

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Thursday, July 26, 2007


Some interesting nonpolitical stories that crossed my path today:

Britain has decided to build two new aircraft carriers, each about 65,000 tons. They will be the largest ships ever to serve with the Royal Navy, three times the size of Britain's current carriers: three Invincible-class ships displacing just 20,600 tons. Even so, they pale in comparison to the American Nimitz class carriers, which tip the scales at 102,000 tons.

What makes this particularly interesting is that very few countries are building new carriers. China is trying to base one off the unfinished hull of an old Soviet carrier, the Varyag; France is considering adding a second carrier similar in size to the new British ones; India, Italy and Spain are all either building or thinking of building small carriers in the Invincible range. But that's it. American naval supremacy has really put a damper on the construction of large capital ships.

Oscar, a cat that lives in a nursing home in Rhode Island has an uncanny ability to identify patients that are about to die. He curls up next to them shortly before they die. He's apparently so reliable that the nursing home calls family members when he chooses someone, because it usually means the patient has less than four hours to live.

It takes more than anecdotal evidence to prove a phenomenon, of course, including strict observation to see how Oscar interacts with healthy patients, what separates a "choosing" from other behaviors, and the like. But the cat apparently does a better job of predicting deaths than the human doctors at the home. And it's easy to at least imagine cues that might guide her behavior -- changes in a patient's smell, for example, or breathing or movement. Spooky, in any case.

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Bush's "Al Qaeda" mantra

President Bush gave a speech earlier this week in which he laid out his view of Al-Qaeda's influence, presence and history in Iraq. It's a bit of a classic, both for what it admits and what it doesn't, and the most recent example of what I recently called his "rhetorical war" in Iraq.

His main point seems to be proving that AQ is in Iraq. That makes the whole speech is a bit of misdirection, inasmuch as nobody denies their presence. Critics tend to point out that AQ in Iraq accounts for a small minority of the combatants we face and that its ties to AQ Central are not that of a directly-controlled subsidiary, but of a loosely associated "affiliate."

The problem is that Bush tends to paint all of our adversaries in Iraq as being part of AQ, which simply is not true.

Some excerpts and my responses:

Al Qaeda in Iraq was founded by a Jordanian terrorist, not an Iraqi. His name was Abu Musab al Zarqawi.


In 2001, coalition forces destroyed Zarqawi's Afghan training camp, and he fled the country and he went to Iraq, where he set up operations with terrorist associates long before the arrival of coalition forces.

Uh-huh. In a part of Iraq not controlled by Saddam. Here Bush admits (despite himself) that there was no terror link with Iraq prior to our invasion.

In the violence and instability following Saddam's fall, Zarqawi was able to expand dramatically the size, scope, and lethality of his operation.

He elides over the fact that this expansion was made possible by our lack of troops, the disbanding of the Iraqi army, and myriad other missteps on our part thanks to the fatuous nature of our occupation plan.

In 2004, Zarqawi and his terrorist group formally joined al Qaida, pledged allegiance to Osama bin Laden, and he promised to "follow his orders in jihad."

Again, as an affiliate, not a wholly owned subsidiary.

the Zarqawi-bin Laden merger gave al Qaida in Iraq -- quote -- "prestige among potential recruits and financiers." The merger also gave al Qaida's senior leadership -- quote -- "a foothold in Iraq to extend its geographic presence ... to plot external operations ... and to tout the centrality of the jihad in Iraq to solicit direct monetary support elsewhere."

In other words, as critics have said for years, our invasion gave AQ a huge boost in recruiting and fundraising.

The merger between al Qaida and its Iraqi affiliate is an alliance of killers -- and that is why the finest military in the world is on their trail.

Except he gets his causation exactly backwards. AQ in Iraq exists because we invaded, not the other way around. And if Zarqawi was a proximate cause of our decision to invade, why didn't we try to take him or his camp out earlier?

Zarqawi was killed by U.S. forces in June 2006. He was replaced by another foreigner -- an Egyptian named Abu Ayyub al-Masri. His ties to the al Qaida senior leadership are deep and longstanding.... Many of al-Qaida in Iraq's senior leaders are foreign terrorists.


Many of al Qaida in Iraq's other senior leaders are also foreign terrorists.

Eliding over the fact that most of the organization is Iraqi -- and those native members were not fighting us before we invaded Iraq. But that's almost irrelevant. Once again, Bush focuses on proving details about AQ while ignoring the larger fact that AQ in Iraq is only a small part of the total resistance.

"Our intelligence community concludes that `al-Qaida and its regional node in Iraq are united in their overarching strategy' and they say they that al-Qaida's senior leaders and their operatives in Iraq `see al-Qaida in Iraq as part of al-Qaida's decentralized chain of command, not as a separate group.'"

However they see themselves, the fact remains: AQ in Iraq is a separate group that was not involved in 9/11, because it did not exist before we invaded Iraq. Even if it has now allied itself with AQ, it is still not the same group that attacked us on 9/11.

You might wonder why some in Washington insist on making this distinction about the enemy in Iraq. It's because they know that if they can convince America we're not fighting bin Laden's al Qaida there, they can paint the battle in Iraq as a distraction from the real war on terror.

Bush's favorite "some people say" strawman is on full display here. He says the distinction between AQ and AQ in Iraq isn't important, and on one level he's right: they're both groups of bad people that deserve a few 500-pound bombs dropped on their heads. But the distinction is important -- just not for the reason Bush claims. It's important because the president keeps insisting that AQ in Iraq consists of the same people who attacked us on 9/11, and that's simply untrue.

Separately, Iraq is a distraction not because AQ in Iraq is a bunch of goldfish fanciers; it's a distraction because:

1. We helped create AQ in Iraq;

2. In order to fight AQ's 10 percent of the resistance we're also having to fight the other 90 percent -- people who weren't shooting at us before we invaded;

3. It's tying up our military and costing hundreds of billions of dollars, resources that could be put to much better use elsewhere;

4. It's making AQ stronger.

al Qaida is the only jihadist group in Iraq with stated ambitions to make the country a base for attacks outside Iraq.

Ambitions are highly distinct from capabilities. The one attack they pulled off, bombing a wedding in Jordan, backfired hugely on them.

Al Qaida in Iraq shares Osama bin Laden's goal of making Iraq a base for its radical Islamic empire, and using it as a safe haven for attacks on America.

Thing is, Iraq is never going to be fertile ground for AQ, even if we leave. Especially if we leave. Iraq is not a conservative, tribal country like Afghanistan, where a significant portion of the people and leadership support AQ's atavistic brand of Sunni fundamentalism. If we leave, who is going to support them? The Shiite majority? No. Shiite Iran? No. The Kurds? No. Even the Sunnis are getting heartily sick of them and their fanaticism, tolerating them largely because of our presence. If we leave, AQ in Iraq will find themselves besieged from all sides. They may well persist, but it would be no safe haven.

Further, our withdrawal may hasten the marginalization of AQ's fanatics. Because the day AQ blows up innocent Muslim Arabs without our presence as an excuse is the day they lose.

Bush's only real strategy these days appears to be "gotta keep fighting; gotta keep fighting." While doggedness in war can be a good trait, it's not particularly helpful if we're fighting the wrong fight. Is Iraq the best way -- or even an effective way -- to combat terrorism? Bush's own words and intelligence reports suggest the answer is "no."

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Spitzer's Plamegate

A man I like a lot -- Democratic New York Gov. Eliot Spitzer -- is in the middle of his own version of Plamegate, complete with accusations that he sought to discredit a political rival by misusing government resources, and Spitzer's vow to claim a state version of executive privilege in the burgeoning confrontation with Republican state senators.

A scathing report issued on Monday by Attorney General Andrew M. Cuomo concluded that the governor’s staff had broken no laws but had misused the State Police to gather information about Joseph L. Bruno, the Senate majority leader, in an effort to plant a negative story about him.

Basically the governor's staff had Bruno's state police escorts document Bruno's whereabouts when they accompanied him on "official" trips, apparently hoping to show that he was engaging in personal travel or junkets on the taxpayer's dime. The report specifically cleared Bruno (right) of that charge, saying each of his trips had at least some legitimate legislative business attached to it.

Cuomo, by the way, is another Democrat -- the son of former New York Gov. Mario "Hamlet" Cuomo. And the report was endorsed by Spitzer's Inspector General, Kristine Hamann.

Spitzer says he was unaware of the activity, and his response to it was a lesson in the proper way to handle such things:

The governor said he accepted the findings, saying his administration had “grossly mishandled” the situation.

“As governor, I am accountable for what goes on in the executive branch and I accept responsibility for the actions of my office,” he said at a press conference this morning, with many of his staff members looking on somber and staggered.

“I apologized to Senator Bruno and I did so personally this morning,” he added. “In addition, I apologized to the men and women of the State Police, and to acting Superintendent Preston Felton personally for allowing this esteemed institution to be drawn into this matter.”

“They should never have been put into this situation. Finally, I apologize to the people of the State of New York for having allowed this matter to have become a distraction from the vital work at hand.”

Darren Dopp, Mr. Spitzer’s communications director and one of his closest aides, was put on indefinite unpaid leave of at least 30 days. William Howard, the Assistant Secretary for Homeland Security, will be reassigned to a post outside the governor’s office.

All well and good, but two of Spitzer's aides refused to cooperate with the Cuomo investigation, and Republicans in the state Senate -- led by an incensed Bruno -- are pushing an investigation to find out if Spitzer was, indeed, unaware of what his staff was up to. They're talking about subpoenaing everyone, including Spitzer.

Spitzer, for his part, has vowed to resist any effort to compel his aides to testify.

Much as I like Spitzer, he's in the wrong here. Legally he's got the same legitimate point as Bush does on executive privilege, with similar strengths and weaknesses (although New York law has generally been hostile to executive privilege claims). But as in the Plame and prosecutor inquiries a legitimate question has been raised, and it deserves to be answered.

Spitzer can point to one difference: unlike with Plame and the prosecutors, Cuomo made a concrete determination that no laws were broken. That's not enough to get off the hook, however. As in the prosecutor case this is less an investigation of illegality than an investigation of impropriety, which falls into the legislative branch's oversight capacity. Spitzer should order his aides to talk. If doing so violates their Fifth Amendment rights, they should invoke the Fifth and let the Senate grant them immunity in exchange for their testimony.

Republicans, for their part, are overreaching, moving to subpoenas as a first resort and casting an overly broad net. Subpoenas should be narrowly tailored and a last resort, or else they risk giving Spitzer a legitimate executive privilege defense.

I'm disappointed in Spitzer, and hope he truly was uninvolved. I also hope this doesn't derail his policy initiatives. But regardless of the political cost, Spitzer needs to come clean. Doing the right thing aside, if he doesn't put this to rest quickly it will turn into a drawn-out battle with the legislature, which surely will derail his initiatives just as the Gonzales scandals have harmed Bush and the Justice Department.

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Wednesday, July 25, 2007

Nonpartisan redistricting

Last week, Simon over at Stubborn Facts linked to a group that has developed a mathematical algorithm for drawing Congressional districts -- one that would make gerrymandering a thing of the past.

The so-called splitline algorithm follows a few simple rules to divide up a state using the fewest number of straight lines as possible.

For example, here's how Tennessee looks now:

And here's how it would look if the algorithm were used:

Obviously, the computer-generated map seems far more in keeping with the spirit of geographical representation.

But just as obviously, the upside of total nonpartisanship is gained at the expense of ignoring all existing natural and political boundaries. The district lines would arbitrarily split cities, neighborhoods, even streets. It would be technically simple to determine what district you were in using a GPS device, but it would be hard to do so simply looking at a map.

That said, gerrymandering often produces the same result, and for far less defensible reasons.

Such a problem seems solvable, however. The algorithm could be linked to a database of geographical and political boundaries, and modified to draw the simplest districts while giving maximum deference to those boundaries. The key point -- automated, nonpartisan district drawing -- would be retained. All that would change is that the district borders would get a little more complicated in order to be easier to understand.

Like Simon says, it's a start, not a finish. But it's a promising one.

BTW, here's how Minnesota might look.

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House ups the ante on Gonzales

Congress is rushing headlong into its confrontation with the executive branch.

The House Judiciary Committee has voted to issue contempt citations for Joshua Bolton and Harriet Miers. If the full House approves the citations -- and it could be weeks before that occurs, thanks to Congress' upcoming summer break -- they will be referred to a U.S. attorney for possible prosecution. That will trigger a court battle when the president cites executive privilege as reason for the attorney to ignore the citations.

Although the committee vote was along party lines, that doesn't mean Republicans weren't up for a fight with Bush. James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush's executive privilege claim.

The text (pdf) of the committee memo (all 70 pages of it) outlines not only the reasons for the citations but also the Democratic case for the investigation into the prosecutor firings.

According to the WaPo summary, it's mostly a compilation of everything that has come up in this whole flap, as well as a lot of fingerpointing at Rove and a rebuttal of Bush's most recent assertion that federal prosecutors cannot undermine an executive privilege claim.

Here are a few key excerpts from the report:

Although the Supreme Court has held that even a sitting president is not immune from subpoena or from participation in civil litigation, the White House and Ms. Miers nevertheless assert that a former White House Counsel, who currently occupies no position in the federal government, is absolutely immune from compulsion even to appear before [Congress]. The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the ... firings. [They] have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts....

Further on, the memo lists what it deems improper interference in the activities of six of the fired prosecutors. And then it lists what it considers false or misleading statements by senior Justice officials, including Alberto Gonzales, Paul McNulty, Kyle Sampson, Mike Elston and others. Finally it mentions the improper political test applied to new career prosecutors by Monica Goodling.

That evidence, coupled with the failure of anyone in the administration to take responsibility for developing the list of attorneys to be fired, is Congress' justification for further investigation. Bush's response: "executive privilege." To which Congress responds:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a "balancing of interests" based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee's oversight and legislative interests should prevail.

It's a powerfully stated case, although it overreaches a bit (such as the claim of "clear evidence of wrongdoing" and a too-forceful assertion of Karl Rove's role in the firings).

The rest of the memo goes into great detail about who knew and did what, and when, along with supporting arguments and lots and lots of footnoted citations. The key questions:

If no one at the Justice Department identified [the attorneys] for firing, who did? If the reasons given to Congress and the public to support the firings are false, what were the real reasons? If the White House role was innocent and routine, why was a concerted effort made to hide it?

Put that way, doesn't this sound like it has Dick "obsessive secrecy" Cheney's fingerprints all over it?

Okay, let's no go there.

Much of the memo stresses the argument that Congress has exhausted other sources of information and now needs White House documents in order to exercise its oversight function or properly consider potential legislation. This cames into stark play on page 32, when it addresses the president's strongest defense: attorneys are political appointees that can be fired for any reason or no reason at all.

While U.S. Attorneys serve at the pleasure of the President, it is widely accepted that they should not be dismissed for improper reasons, such as to influence prosecutions or to retaliate for the exercise of prosecutorial judgment in a manner that was not beneficial to a particular political party. Based on the ongoing investigation, Congress may wish to consider some limitation on removal of U.S. Attorneys ... in the middle of a presidential term.

Note the angle of attack. Yes, U.S. Attorneys are political appointees. But they're supposed to be relatively independent, and the only reason they're political appointees is because Congress allows it. Further, Congress sets the rules for such appointments. If the hiring or firing process is being abused, Congress needs to know so it can change the rules if necessary. Their appointee status and current law may shield the administration from criminal charges, but it does not protect the administration from oversight.

That strikes me as a pretty powerful argument.

I invite our resident Bush supporter to rebut the case, with one request: focus on materially significant matters, not minor quibbles such as those I've already outlined, like the as-yet-unproven assertion that the whole thing originated with Rove.

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The science of climate change

The latest issue of Scientific American has a pretty informative article on the current state of climate science: why we know the earth is warming, and why we know human activity is partly to blame.

The authors are William Collins of UC-Berkeley; Robert Colman, an Australian; James Haywood of the UK's Met Office; Martin Manning of NOAA; and Philip Mote, the climatologist for the state of Washington.

Unfortunately it'll cost you $5 to read the article online. I'll summarize the key points here, but if you want to read the whole article you'll need to buy a copy or go to the library.

The main points:

1. Atmospheric concentrations of carbon dioxide, methane and nitrous oxide have been stable for 10,000 years -- until they began growing rapidly about the time the Western world industrialized.

1. 11 of the past 12 years are the warmest since reliable records began around 1850. That's a pretty short time frame, geologically speaking, but the chances of that happening by chance are very small.

2. Measurements from ice cores and tree rings provide a longer time line, showing that the current climate is warmer than it has been for at least 1,300 years.

3. While natural variability occurs, temperature extremes have changed in accordance with the warming trends. Frost days and cold days have become less common, while heat waves and hot days have become more common.

4. The oceans are warming as well, more so at the surface than in the depths, a sign that the warming source is at the surface.

5. Overall, the planet's average temperature has risen .75 degrees Centigrade (about 1.5 degrees Fahrenheit) in the last 100 years -- and the pace is accelerating.

1. The oceans have absorbed more than 80 percent of the added heat. This has warmed the water, which expands, causing sea levels to rise. Melting glaciers and ice sheets add to the effect.

2. The oceans have been measured rising an average of 3.1 millimeters a year. Over 50 years, that would mean a total increase of 155mm, or about 6 inches. The process is expected to accelerate, however, for a total rise in the 21st Century of maybe 40 centimeters (400mm, or about 16 inches) and possibly as much as 60 centimeters (about two feet).

3. With rising sea levels comes inundation of low-lying coastal areas, a higher water table, increased flooding, erosion, salination of coastal waterways and wetlands, and greater danger from storms. An EPA study of the effects of various levels of sea rise suggests (while admitting it is an underestimate) that even a 6-inch increase would cost the United States alone something like $100 billion if we wanted to protect developed coastal areas and prevent inland flooding (the cost is spread over 100 years, so the annual cost isn't too bad. But that assumes coastal development all but ceases, and that sea levels stop rising. The costs rise fairly rapidly with additional increases in sea levels).

We know humans are responsible for this increase for several reasons.

1. Some greenhouse gases, like halocarbons, have no natural sources.

2. Geographic differences in concentration comport well with human causation, with heavier concentrations over the more heavily populated and industrialized northern hemisphere.

3. Analysis of isotopes in atmospheric gas can identify the origin of the gas. It turns out most of it comes from burning fossil fuels.

4. There is more warming over land than over sea, and in the ocean the greatest warming is occurring at the surface -- both indicators of a human factor.

5. The troposphere (the lower atmosphere) is warming while the stratosphere is cooling -- exactly what you would expect if the cause was increased emissions of greenhouse gases and depletion of stratospheric ozone. If warming was primarily caused by solar activity, both layers of the atmosphere would warm up.

1. For the long-lived greenhouse gases, we know their heat-trapping effects fairly well, because we have precise measurements of their concentration and distribution in the atmosphere, and we know how they affect the planet's energy balance.

2. Five years have passed since the last major report, and in those five years temperature increases have been consistent with projections of greenhouse-driven warming.

3. The climate models used to make predictions and measure the effects of various warming and cooling factors are getting better. In addition, results are drawn from an ensemble of 18 modeling groups, so the weakness of any single model can be identified and its effect on conclusions reduced.

The article ends with a discussion of what isn't known, the limitations of current research and thus the lack of granularity in some areas. But overall I think it does a good job of explaining why leading scientists think humans are a significant factor in global warming.

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Tuesday, July 24, 2007

Gonzales testifies

I didn't get to watch even a part of Gonzales' testimony on Capitol Hill today, but I gather I didn't miss much. He still has no idea who decided to fire the U.S. attorneys in the agency he supposedly runs, and he still has problems making claims that turn out to be misleading.

For instance, he claimed that top Congressional leaders were fully briefed on the warrantless eavesdropping program and urged the administration to continue it. Five lawmakers who attended the briefing disputed his claim. One of them, Sen. Jay Rockefeller, said: "He once again is making something up to protect himself." Another, former Sen. Tom Daschle, said "this appears to be another attempt to rewrite history."

Senators, who gave Gonzales some deference during his last appearance, simply were not in a forgiving mood, with many of them telling him pointblank that he should resign.

"I do not find your testimony credible, candidly," said Sen. Arlen Specter (R-Pa.), who became visibly angry at several points during his exchanges with Gonzales. "The committee's going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable."

Chairman Patrick J. Leahy (D-Vt.) told Gonzales bluntly: "I don't trust you."

Specter also suggested that Gonzales might need to appoint a special prosecutor to get to the bottom of the prosecutor firings. The fact that a Republican would suggest such a thing is a sign of how deep the mistrust of Gonzales runs.

And in this exchange, Gonzales appears to admit he misled Congress.

"It's hard to see anything but a pattern of intentionally misleading Congress again and again," Sen. Russ Feingold, D-Wis., told Gonzales during the often-bitter Senate Judiciary Committee hearing. "Shouldn't the attorney general of the United States meet a higher standard?"

"Obviously, there have been instances where I have not met that standard, and I've tried to correct that," Gonzales answered.

Senators took turns raking him over the coals. Specter, again, had the most devastating things to say about Gonzales' misleading 2006 testimony about the eavesdropping program.

Specter said that it was obvious that, as Gonzales initially confirmed last month, Comey was testifying about the Terrorist Surveillance Program -- meaning that Gonzales was not only lying to the Senate in his 2006 testimony, but lying today about "other intelligence activities" to cover up the lie. His advice to Gonzales was "to review your testimony carefully" and that the committee should see "if your credibility has been breached to the point of being actionable."


If you follow the link immediately above, you'll see that Gonzales maintains he told the truth back then, about there not being "significant" disagreement about the eavesdropping program "as confirmed" by the president. But that's only because the disagreement preceded modifications that led to the "confirmed" version of the program.

In that May 2007 post, I concluded the testimony wasn't particularly relevant, because he didn't actually lie and it's not that important whether there was disagreement or not. Further, he was already in so much hot water that it was hard for it to get any hotter. Turns out I might have been wrong: Congress doesn't like to be misled for any reason, artfully worded or not. Many senators simply believe he lied, or at least deliberately misled, and are focusing much of their anger on that.

At the end of the day, the senators made it very plain that they have lost all confidence in Gonzales. The question now is whether that makes any difference. Answer: probably not. But it means the Justice Department will limp along for the rest of Bush's term, with a discredited Attorney General who has lost nearly all of his senior staff to resignations and who is having difficulty finding replacements.

Most members of Gonzales's senior staff have resigned or are on the way out. Several outside candidates turned down chances to be considered for the job of his deputy, and more than a half-dozen other top positions remain filled by temporary appointees. Some of the department's key legislative priorities — including intelligence law revisions and anti-crime proposals — have also bogged down because of the fight with Democrats over the prosecutor firings.

And it's only going to get worse.

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Monday, July 23, 2007

Gonzales v. Congress, Round Four or so

Tomorrow, Attorney General Alberto Gonzales will appear once again before Congress. The Carpetbagger Report has an outstanding post on the subject. A taste:

Gonzales has become the most reviled man in the administration, after having been caught lying and losing control of the Justice Department. The political norms of Washington say Gonzales has to go. Bush, meanwhile, is The Decider — and The Decider doesn’t much care about rules.

A couple of months ago, the New York Daily News quoted a “senior Republican” saying, “[Bush] wants to fight, but that will change because it has to.”

But it doesn’t “have to.” It only “has to” if the president wants to be a responsible leader in a political system in which conduct has meaning.

Slate recently concluded, “It is just about universally agreed upon that Gonzales will go down in history as the attorney general who helped the president: 1) torture, 2) wreak havoc on civil liberties, 3) fire U.S. attorneys who didn’t prosecute along preferred political lines, 4) demoralize the Department of Justice, 5) worsen Bush’s already dismal relationship with Congress, and 6) relentlessly hector a man in the intensive care unit.”

News stories are keying off Gonzales' 26 pages of prepared testimony, of which five paragraphs are devoted to the attorney firings. Gonzales' main point: he's staying to help fix the Department's broken image.

Of course, the reason the department's image is broken is largely Gonzales himself. The single biggest thing he could do to repair that image is resign. Which makes his stated rationale just a little suspect. Perhaps Gonzales thinks he can repair the damage, but that's just a bit outside the scope of reality (which, I suppose, would be par for the course.) People had plenty of reasons to dislike Gonzales, starting with his justification of torture. His mismanagement of Justice was really just icing on the cake.

It's tempting to say that if Gonzales really cared about the department, he'd resign. I won't go that far; I'll give him the benefit of the doubt and assume that he cares, but harbors major delusions about his ability to fix things given that he himself is the problem.

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Anyone but the godless

My presidential ambitions took a hit this weekend. The New York Times ran a story about religion and morality in politics, with Mitt Romney as the hook. But the chart that ran with it -- reproduced above -- is worth a long, close look (click on it to get a larger version).

Not believing in God -- which, defined that way, applies to agnostics like me -- renders a candidate suspicious in the eyes of two-thirds of voters. It's worse than being old, uneducated, gay, Muslim, female, divorced, a drug user or a philanderer.

It's a positive for just 3 percent. Which makes a certain amount of sense: lack of belief is a negative trait, after all -- not negative in the sense of "bad", but negative in the sense that it's defined by the lack of something. It's hard to get excited about something a candidate isn't.

So I'm actually pleasantly surprised that it makes no difference for a third of voters.

It turns out that while the specific nature of one's belief has an effect -- more people are willing to vote for a Mormon than a Muslim, all things being equal -- the most important thing is simply to have a belief.

It's not that simple, of course. For one thing, a candidate usually has more than one trait listed on the chart, and any real candidate is an actual person, far more than the sum of his or her labels. So the chart is more useful as a description of general attitudes than as an attempt to apply it to specific races.

Further, the story goes on to note that the real concern with regard to candidates with minority beliefs is tolerance: John Kennedy got past anti-Catholic bias by promising he would resign rather than let his religion interfere with the national interest. It suggests Romney could pursue the same tact.

I don't know about the resigning bit, but "tolerance" (or more carefully chosen words like "admiration" or "respect") is how I'd frame it if I were running. Lack of belief on my part does not imply hostility to religion; far from it. It simply reflects my own inability to claim belief in something for which I see no compelling proof. In some ways I envy believers, for clearly they've found something that I have not. And who am I to say who's right?

On a political level, religion has a valid and vital role in society, and that role should be tapped wherever and whenever it makes sense to do so. Religion should suffer neither fear nor favor from government.

One concern about a "godless" candidate is that they have no personal ethics, no solid moral foundation. It's tempting to label such concerns ignorant, but there's little political gain in insulting voters. Luckily, such questions are easily addressed by discussing my personal ethics and the principles they spring from. Alternatively I could simply point to various politically useful biographical items, like my military service, faithfulness in marriage or the fact that I was an Eagle Scout. That might not assuage concerns about unbelievers in general, but it would help make one agnostic candidate more palatable.

Meanwhile, the chart reveals some interesting relationships:

1. Being a smoker is worse than being a woman, which is worse than being divorced;

2. Being a former minister is even worse than that.

3. Having an extramarital affair is (slightly) better than admitting past drug use. But both are better than never having gone to college.

4. Being a Muslim is almost exactly as bad as being gay.

5. "Drain the swamp" rhetoric notwithstanding, 35 percent of voters view being a "longtime Washington politician" as a positive.

6. Apparently the recipe for a successful politician is a Christian veteran who ran a business after attending a prestigious university.

Lots more in the chart. What would you do? Which of the characteristics listed are positives or negatives for you, and why?

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Not your typical whistleblower

The New York Times today has a nice profile of Lt. Col Stephen Abraham, the man whose testimony has cast a shadow on the legitimacy of the Guantanamo terror tribunals and seems to have led the United States Supreme Court to reverse itself and hear arguments about the legal rights of detainees.

His political and professional pedigree make it difficult to accuse him of acting out of base motivations:

A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel.... A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.

He served at the tribunal in 2004-2005, and officially registered many misgivings at the time. But he didn't decide to step forward publicly until he was contacted in 2006 by a law firm representing detainees, who read him an affidavit describing the tribunal process as orderly and carefully considered. Knowing that wasn't true, he agreed to testify. Clearly, these were not the actions of a man seeking publicity.

When the story first came out, I mentioned that one problem with Abraham's account was that it was anecdotal: we had no way to know if his experience was typical, or what the reasons behind it were.

But it turns out he had access to a lot of information, not just his isolated experience on a single tribunal panel.

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies....

What sort of problems did he find?

It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”

To demonstrate the sometimes laughable nature of the evidence, consider this public example:

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp. The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.

In another case, an Afghani was being held because he had associated with jihadis. He admitted to doing so -- in the 1980s, during the Soviet occupation of Afghanistan, when "jihadi" had a whole different meaning. He asked the tribunal if that was the basis of the accusations against him. "We don't know what that time frame was, either," the tribunal's senior officer replied.

Pentagon officials say Abraham simply wasn't in a position to know the full extent of the tribunal process, despite his access to the central database. But Abraham makes his point on more direct grounds:

Colonel Abraham said that in meetings with top officials of the office, it was clear that [innocent] findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”

As noted in my earlier post, when his panel decided unanimously that a detainee was not an enemy combatant, they were told to reconsider. They declined.

As it turns out, the story didn't end there -- a move that again calls into serious question the impartiality of the hearings.

Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”

One wonders how many do-overs the Pentagon was allowed in order to get a "correct" verdict.

Damning as all of this is, caveats remain. This is largely a story that relies on one source -- Abraham himself. He seems a credible witness, and what he says is both compelling and specific. But until his account is subjected to cross-examination or attempted refutation, it should not be taken as gospel.

But it's a reason to look forward to his testimony before Congress on Thursday, and the Supreme Court hearing this fall.

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Stop making me defend Bush

The Gun-Toting Liberal has a post up today expressing outrage over a recent executive order that freezes the assets of, and prohibits aid or donations to, groups or individuals seeking to undermine the government of Iraq.

GTL's up in arms because, on his reading, people could find themselves in trouble for even tenuous links to organizations on Bush's enemies list.

But this isn't as big a deal as GTL makes it sound. It simply extends existing practice regarding anti-U.S. terrorist activities to cover activities aimed at the government of Iraq. And it doesn't criminalize donors -- it simply prohibits them from donating to such groups or individuals.

If you read the referenced laws, you'll find that he's merely exercising authority granted him by Congress, specifically section (b)(2)(A).

One can disagree with the underlying assertions -- whether we are properly in the midst of a "national emergency", whether the identified groups are actually terrorist supporters, how donations of humanitarian aid "seriously impair" Bush's ability to deal with terror.

But his legal authority is clear. He declared a national emergency regarding Iraqi reconstruction efforts back in May 2003, and later amended it in various fashions.

If you've got a problem with it (and I don't, unless and until we find problems with the execution -- for instance, that the list of groups and persons is overbroad) contact Congress. They're the ones who gave him the authority.

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Saturday, July 21, 2007

Rethinking "Collision Course"

More opinions are starting to roll in over President Bush's assertion that Congress cannot pursue contempt charges in cases where the president invokes executive privilege. Plus I've had 24 hours to think it over. And it appears I overreacted a little bit yesterday.

It's deeply offensive on the face of it for the administration to essentially say "we control the prosecutors, and we won't use them on ourselves." It's also deeply offensive to claim that the president and the president alone determines whether executive privilege applies, and that the judiciary had no authority to rule on such a decision. That is what Bush seemed to be saying.

But it appears that the administration's opinion is strictly limited to contempt proceedings, and to a narrower part of such proceedings than I thought. And in that context, all they're saying is that the Justice Department cannot be forced to undermine a valid presidential invocation of privilege. As Walter Dellinger, a Justice Department official under President Clinton who made a similar argument in 1995, puts it:

"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.

Which in the end echoes my position on the matter: Bush should claim privilege, Congress should claim oversight, and let a court decide who wins.

One reason I thought the president's claim was too broad was framed by a question: What happens if the court rules against the president and he still refuses to turn over the documents? If he cannot be held in contempt, what penalty is there with which to enforce the ruling?

We've got some answers there, too. Besides the political remedies I mentioned yesterday, the key concept is that the Justice Department cannot be used to undermine a valid claim of executive privilege. But if the claim is rejected, it becomes invalid. And if the president still refuses to cooperate, presumably the Justice Department could be used to compel his cooperation.

So let's move past this distraction and get on to the real meat of the matter: a court ruling on the competing constitutional claims.

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Friday, July 20, 2007

D.C. madam update

Add to the list of prominent people linked to Deborah Palfrey's call-girl ring: Democratic activist and lobbyist Bill Broydrick. He called Palfrey's number three times in 2004.

Who the heck is Broydrick?

A former state lawmaker and longtime Democratic activist, Broydrick is considered one of the most influential lobbyists in Wisconsin and Washington.

Broydrick and Associates, the firm owned by Broydrick and his wife, Cynthia, consistently ranks among the highest-paid lobbying firms in the state and has offices in Madison, Washington and Tallahassee, Fla.

Broydrick declined to comment on the finding. One interesting twist: His lobbying firm is a joint venture with his wife, Cynthia. If there's any personal fallout, it could turn professional as well.

No evidence of hypocrisy just yet, though.

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Collision course

Can you say "landmark ruling ahead"?

The White House has just thrown Miracle-Gro on to the growing Constitutional confrontation between Bush and Congress over the latter's investigation into the firing of U.S. prosecutors.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

Go ahead and file contempt charges, the administration is saying. Under federal law, those charges can only be pursued by a U.S. attorney. And because the administration won't let the Justice Department approve such a pursuit, the charges will die from neglect.

The power-grab here is pretty astonishing. The president isn't just asserting that his invocation of executive privilege trumps Congress' power of oversight, a claim that is at least plausible; he's asserting that such invocation of executive privilege in the face of a contempt citation can never be challenged in court, because the Justice Department will simply refuse to bring the charges.

Now, this claim is currently limited to the narrow question of Congress filing contempt charges. But within that narrow scope it effectively puts the President above the law. And since contempt charges are Congress' main weapon against executive privilege claims it removes most limits on such claims.

True, Congress could still file a civil lawsuit to force a judicial decision on a specific claim. But such a decision would lack teeth. Say Congress wins its civil lawsuit, and the president still refuses to turn over documents. What recourse does Congress have? Nothing short of impeachment, with contempt charges off the table.

But beyond that, why can't the same logic be applied to any violation of federal laws that rely on the Justice Department for enforcement? Commit the crime, then forbid Justice to investigate; it's a get-out-of-jail-free card, with (once again) impeachment the only remedy.

It's also a sign of the lapdog status to which the Justice Department has fallen. Though the Bush stance rests heavily on a similar argument (pdf) advanced as part of a Reagan administration lawsuit, Reagan's White House never actually tried to carry it out. Nor was it resolved in the courts, because the Reagan administration official in question eventually agreed to give Congress the documents it wanted (pdf) -- derailing the lawsuit by caving.

Rep. Henry Waxman gets the best quote on that aspect: "I suppose the next step would be just disbanding the Justice Department." But the best summation comes from Mark Rozell, a professor described as an expert on executive privilege: "It's allowing the executive to define the scope and limits of its own powers."

Hidden within here is an interesting, legitimate question. When Congress suspects wrongdoing in the executive branch, how can it be handled? Should Congress have the power to compel an investigation and prosecution of a "co-equal" branch? Probably not. Should the administration have the power to decide whether to investigate or prosecute itself? Probably not. So what's left?

The ideal situation would involve an independent prosecutorial service weighing each case on its merits, not on politics or who signs their paychecks. But it's easy to see why that might not be practical. And anyway the phrase "independent prosecutor" still sends shivers up the spines of people on both sides of the aisle.

That's why the best solution is probably current practice: Let Congress bring contempt charges; let the president invoke executive privilege; and let the judiciary sort out the winner, establishing legal tests for doing so in a consistent manner.

The audacity of the claim aside, what would happen if the president's interpretation carried the day? Not quite as much as you might think. He'd be immune from contempt charges, certainly. But that would not shield him from Congressional wrath.

For one thing, Congress could turn to its "inherent contempt" power, last used in 1934, which entails having the Sergeant-at-Arms arrest the suspect and holding a trial on the Senate floor. Sen. Patrick Leahy described the process and history of the procedure back in May 2000, during discussions about whether to subpoena Clinton's attorney general. Among other things, Dick Cheney would preside over the proceedings (unless he was forced to recuse himself for conflict of interest).

There are problems with such a course, however. Besides the archaic spectacle and huge waste of time, Bush could just pardon anyone so convicted -- although there's some debate over whether his pardon power extends to contempt of Congress.

More prosaically, Congress could simply hold up funding bills, nominee hearings and any other business until the president coughs up the information it wants, as well as tying the administration up with endless subpoenas, investigative hearings and other forms of harassment. Not to mention riders specifically forbidding any use of federal funds to fight a contempt citation.

So perhaps the administration should think twice about pushing their case much further. As I argued above, Bush should invoke executive privilege and then let the courts decide if that outweighs Congressional oversight in this particular case.

Of course, the administration may be less interested in proving its case than in simply delaying it until Bush leaves office. Two executive privilege assertions, both of which will probably be appealed to the Supreme Court, may well do the trick -- though Congress could petition the Supreme Court to accept the cases directly, bypassing lower courts.

For now, look for two separate constitutional questions to head to the courts. The first will be an opinion on the viability of the latest administration claim. The second (assuming the administration loses the first round) will be the underlying question of whether privilege trumps oversight in this particular case.

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