Views on the surge

The latest play-by-play on whether Bush's last chance is working:

Killings are down significantly in Baghdad -- 1,586 in the past two months, down from 2,871 in the two months before that.

But that's still an unacceptably high number, and in part the killing has merely shifted to other, less well-defended areas -- killings elsewhere are up by 500 people in that period. Still, as proof of concept, it's not bad. The idea all along was to secure Baghdad and then expand that security outward to the rest of the country.

What it does demonstrate, however, is that it will take far more troops to get killings in Baghdad down to a reasonable level -- never mind reduce killings elsewhere. Which has always been the suspected weakness of the surge: that it's too small, and unsustainable even so.

Unsurprisingly, Charles Krauthammer swears the surge is working. His evidence is skimpy: mostly military claims that Anbar Province, once almost given up for lost, has now "turned the corner." Even if true -- and Krauthammer places a lot of significance on what could easily be taken as light-on-details military "happy talk" -- it has little to do with the surge. It is good news that 14 of 18 Sunni tribes in Anbar have finally gotten sick of Al-Qaeda; but it remains to be seen whether that situation will hold, it doesn't address the problem with native Iraq insurgents, and it's unclear whether it holds relevance for the Sunni/Shiite sectarian violence that has been the prime driver of violence of late. If you believe that AQ is largely responsible for that violence, great; if you believe the violence is more broadly rooted than that, trouble.

He also cites news reports that various neighborhoods in Baghdad are safer than they were a few weeks ago -- which dovetails well with the reduced death toll.

Ironically, both developments, in passing, destroy two arguments advanced by war supporters.

The killing data from Baghdad further drives a stake into the ridiculous idea that Baghdad is only slightly more dangerous than some major American cities, even the reduced death rate translates to about 9,500 killings a year in a city of 7 million. By comparison, New York City endured 596 murders in 2006.

And the "Sunnis turning on AQ" news contradicts the idea that if we withdraw from Iraq, it will became a haven for Al-Qaeda. This is further refuted by the aftermath of the Parliament bombing. The local AQ affiliate claimed responsibility for the attack, which drew bipartisan criticism from prominent Iraqis -- emphasized by an unprecedented Friday session of Parliament. There are still major questions over how the bomber gained access to the Parliament building -- dark actions that could mean more than the encouraging lip service paid today. But unanimous condemnation is a starting point.

Whatever reasons we have to stay in Iraq, preventing it from becoming a safe haven for terrorism is not one of them.

terrorism, Iraq, politics, midtopia

Two major attacks in Baghdad

Not good news:

A suspected suicide bomber blew himself up in the Iraqi parliament cafeteria in a stunning assault in the heart of the heavily fortified, U.S.-protected Green Zone on Thursday, killing at least eight people, including two lawmakers, the American military said. At least 10 other people were wounded.

Thursday's attack came hours after a suicide truck bomb exploded on a major bridge in Baghdad, collapsing the steel structure and sending cars tumbling into the Tigris River below, police and witnesses said. At least 10 people were killed in that attack.

I'm kind of surprised the suicide bombers haven't targeted big bridges before this. It's an effective way to both kill people and paralyze the city.

The Parliament bombing is more troubling, considering the Parliament is deep inside the Green Zone. The bomber either got through several layers of security undetected -- which strikes me as unlikely -- or he had inside help. The implications of that could be huge.

It would appear the Parliament bomber was Sunni, because the dead were either Shiite or Kurd. In particular we can probably rule out Moqtada al-Sadr as a suspect, because six of the wounded were from his party.

Is this a comment on whether the "surge" is working? Not of the "smoking gun" variety. The Green Zone is a heavily fortified, high value target, so attacks there don't reasonably reflect security conditions elsewhere in the city. As for the bridge attack, not only is the surge still gathering steam, but it's pretty much impossible to prevent all attacks by suicide bombers. A checkpoint on the bridge might have helped stop that attack, but there's a limit to the number of potential targets the military can protect with limited forces. It's worth asking, though, if such a major piece of infrastructure was guarded -- and if not, why not. Baghdad is crisscrossed by rivers, notably the Tigris; lose enough bridges, and the city would essentially be cut in half.

All that said, inasmuch as this reflects a recent uptick in violence in Baghdad (after an initial decline), it could end up being part of a body of evidence that the surge produced only temporary benefits. But only time will tell.

Baghdad, surge, Iraq, politics, midtopia

Padilla loses torture argument

The presiding judge has rejected Jose Padilla's motion to dismiss the criminal charges against him.

federal judge refused to dismiss terrorism charges against Jose Padilla over claims that the alleged al-Qaida operative was tortured in U.S. military custody, removing one of the last major obstacles to the start of his trial next week.

U.S. District Judge Marcia Cooke stressed in a 12-page order filed late Monday that she was not passing judgment on the torture allegations. Rather, she said the effort to dismiss the case for "outrageous government conduct" was faulty on legal grounds....

Cooke said the dismissal motion wasn't backed up by case law and failed on legal grounds because prosecutors aren't using any evidence collected during Padilla's time in the brig.

To rule otherwise would "effectively provide a defendant with amnesty for any uncharged crime so long as the government violated the defendant's due process rights at some prior point," she wrote.

She warned, however, that the issue could return should prosecutors decide to use evidence from Padilla's interrogations.

That makes sense. As I noted previously,
the government's treatment of Padilla has indeed been outrageous. But was it outrageous enough to derail a trial? The judge decided no.

With the last major hurdle out of the way, the trial can proceed. Next up: jury selection. And what a lengthy, tortuous process that will be.

Padilla, politics, midtopia

No Saddam-Al Qaeda link

So says the Defense Department. Dick Cheney, naturally, refuses to believe it.

Captured Iraqi documents and intelligence interrogations of Saddam Hussein and two former aides "all confirmed" that Hussein's regime was not directly cooperating with al-Qaeda before the U.S. invasion of Iraq, according to a declassified Defense Department report released yesterday.

The declassified version of the report, by acting Inspector General Thomas F. Gimble, also contains new details about the intelligence community's prewar consensus that the Iraqi government and al-Qaeda figures had only limited contacts, and about its judgments that reports of deeper links were based on dubious or unconfirmed information. The report had been released in summary form in February.

The report's release came on the same day that Vice President Cheney, appearing on Rush Limbaugh's radio program, repeated his allegation that al-Qaeda was operating inside Iraq "before we ever launched" the war, under the direction of Abu Musab al-Zarqawi, the terrorist killed last June.

Cheney really needs to come out of his bunker once in a while. He's become such a caricature that he's not even worth a detailed rebuttal anymore.

Cheney, terrorism, Iraq, politics, midtopia

SC shoots down Gitmo appeal

Yesterday, the Supreme Court rejected an appeal from two groups of Gitmo detainees, who were asking the Court for a habeus corpus review of their detention.

Back when the Military Commissions Act was passed, the provision stripping habeus corpus rights from detainees was expected to pose a serious constitutional problem; many observers and quite a few Congressmembers expected the Supreme Court to declare that part of the law unconstitutional. This was supposed to be the case where they did so.

But the justices chose to reject the petitions on narrow procedural grounds, saying the plaintiffs had not yet exhausted all other options.

"Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions ... and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus ... make it appropriate to deny these petitions at this time."...

The court also said its decision to stay out of the fight for now does not mean it is rejecting the claims on their merits, just that the timing was not right for the court's involvement now.

Bleh. I understand exhausting options. But by dodging the question, the Court simply delays a resolution. Eventually the prisoners will exhaust other options, and then the case will be back before the Court. If they then shoot down that portion of the act, how would they justify the continued detention of these prisoners in the meantime? Not to mention the limbo the prisoners will be in as Congress and the administration seek to craft some sort of replacement language. If language brought before the Court is clearly unconstitutional, the Court should strike it down -- not leave it operating and causing harm until every other possible remedy is tried. The Roberts Court's impulse to decide cases as narrowly as possible is excellent in principle, but in practice it often seems to delay justice and sow confusion.

That's essentially what Justices Breyer, Souter and Ginsburg argued in their dissent.

I also find this line irritating:

The majority of justices noted the court would be willing to get involved later if the prisoners could show "the government has unreasonably delayed proceedings."

Hello? Many of them have been imprisoned for years already. I understand that the justices are referring to proceedings under the newly passed act, but some sense of urgency would seem to be appropriate here.

With the prisoners in limbo -- at least for now -- is Congress doing anything to fix the Military Commissions Act's more offensive provisions?

Yes.

S576 and HR1415 are the "Restoring the Constitution Act". It tightens the definition of "enemy combatant", requires defendants have access to counsel, excludes coerced statements from evidence, improves the discovery process, gives federal appeals courts (rather than military courts) the authority to hear appeals of tribunal cases, and several other things.

S185 and HR1416 are the "Habeus Corpus Restoration Act." It's very short; it simply restores habeus corpus rights to detainees.

Both are currently in committee in both chambers. We can hope to see them hit the floor for a vote later in this session.

To repeat something I wrote a couple of months ago: Terrorists deserve to be treated harshly. But suspected terrorists deserve rights, including a fair trial; that's the only way we can demonstrate that they are terrorists and thus deserving of punishment. We debase our own principles -- and damage not only our society but our cause -- when we abuse those rights in the name of expediency.

civil liberties, Gitmo, politics, midtopia

Bad news from Iraq

Boy, talk about a perennial headline. But this is noteworthy:

Shiite militants and police enraged by massive truck bombings in Tal Afar went on a revenge spree against Sunni residents in the northwestern town Wednesday, killing as many as 60 people, officials said.

The gunmen roamed Sunni neighborhoods in the city through the night, shooting at residents and homes, according to police and a local Sunni politician.

Witnesses said relatives of the Shiite victims in the truck bombings broke into the Sunni homes and killed the men inside or dragged them out and shot them in the streets.

Ali al-Talafari, a Sunni member of the local Turkomen Front Party, said the Iraqi army had arrested 18 policemen accused of being involved after they were identified by the Sunni families targeted. But he said the attackers included Shiite militiamen.

While not a direct reflection on Bush's surge, this is disheartening on three levels:

1. It's the sort of violence we are simply not equipped to stop. Incidents like this are why people say that we're not fighting insurgents, we're caught in the middle of a civil war.

2. It involves police massacring innocents -- demonstrating that, once again, the security forces are part of the problem.

3. It happened in Tal Afar, a city once held up as an example of a pacified city. I've written about it before (and may or may not have received a comment from Col. Sean MacFarland, then the commander in that area). Here's another take, with details on how we rooted the insurgents out of Tal Afar. If we can't pacify that city despite pouring troops in and surrounding it with sand berms, I don't hold out much hope for places like Baghdad.

If this isn't a sectarian civil war, what is it?

And this is just icing on the cake:

Saudi King Abdullah, whose country is a close US ally, on Wednesday slammed the "illegitimate foreign occupation" of Iraq in an opening speech to the annual Arab summit in Riyadh.

"In beloved Iraq, blood is being shed among brothers in the shadow of an illegitimate foreign occupation, and ugly sectarianism threatens civil war," Abdullah said.

He also said that Arab nations, which are planning to revive a five-year-old Middle East peace plan at the summit, would not allow any foreign force to decide the future of the region.

With friends like these....

Iraq, Tal Afar, politics, midtopia

What a kangaroo court looks like

For travesties of justice, it's a bit hard to beat the Guantanamo Military Commission hearings currently going on in Cuba.

As the New York Times opined on Sunday, the proceedings are so slanted that even a confession from a real bad guy, Khalid Shaikh Mohammed, couldn't be taken entirely seriously.

When Khalid Shaikh Mohammed — for all appearances a truly evil and dangerous man — confessed to a long list of heinous crimes, including planning the 9/11 attacks, many Americans reacted with skepticism and even derision. The confession became the butt of editorial cartoons, like one that showed the prisoner confessing to betting on the Cincinnati Reds, and fodder for the late-night comedians.

What stood out the most from the transcript of Mr. Mohammed’s hearing at Guantánamo Bay was how the military detention and court system has been debased for terrorist suspects. The hearing was a combatant status review tribunal — a process that is supposed to determine whether a prisoner is an illegal enemy combatant and thus not entitled in Mr. Bush’s world to rudimentary legal rights. But the tribunals are kangaroo courts, admitting evidence that was coerced or obtained through abuse or outright torture. They are intended to confirm a decision that was already made, and to feed detainees into the military commissions created by Congress last year.

The omissions from the record of Mr. Mohammed’s hearing were chilling. The United States government deleted his claims to have been tortured during years of illegal detention at camps run by the Central Intelligence Agency. Government officials who are opposed to the administration’s lawless policy on prisoners have said in numerous news reports that Mr. Mohammed was indeed tortured, including through waterboarding, which simulates drowning and violates every civilized standard of behavior toward a prisoner, even one as awful as this one. And he is hardly the only prisoner who has made claims of abuse and torture. Some were released after it was proved that they never had any connection at all to terrorism.

Okay, but KSM is clearly guilty. So nobody is too concerned if we cut a few corners where he's concerned, right? The complete disembowelment of "rule of law" contained in that attitude aside, I'll concede the point -- and turn to David Hicks, another defendant processed through the system (he's the guy in the picture).

Hicks started out the day with three lawyers. He ended the day with one. The judge removed one lawyer on a technicality -- that although she had been properly appointed by the chief military defense counsel, she was not herself on active duty. He removed the other one, civilian attorney Joshua Dratel, for an even weirder reason. From the ACLU's blogging on the case:

The judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

Got that? He was removed because he wouldn't agree to rules that had not been written yet.

In case you don't like the source, here's a news article covering much the same ground.

Now the judge did give Hicks the option of keeping both lawyers with him as consultants, with all actual lawyering being done by his one remaining lawyer, Maj. Dan Mori. But Hicks said he didn't see much point to that, so they left. Mori then said he needed more time to prepare the case -- a reasonable request, IMO, seeing as how he had just lost two-thirds of his defense team. The request was denied.

A few hours later, Hicks cut a plea deal with prosecutors that will let him go home and serve whatever sentence he gets in Australia.

Hicks may very well be guilty, although what he's mostly guilty of is being a low-level Taliban combatant. But the slanted proceedings cast doubt on the verdict; generate sympathy for the defendant; give us yet another international black eye; undermine our claims of moral superiority; and give people no reason to trust either our word or our legal process. Sure, we don't blow up civilians in crowded marketplaces. Good for us. We just throw people in jail using a process more familiar to banana republics than democracies built on the rule of law.

As the New York Times summarized in its Sunday editorial:

The Bush administration has so badly subverted American norms of justice in handling these cases that they would not stand up to scrutiny in a real court of law. It is a clear case of justice denied.

And that, Mr. President, is why Gitmo and the commissions process is harming our security, not helping us. Way to go.

Hicks, Gitmo, politics, midtopia

Why logic classes should be required

When it comes to Alberto Gonzales, President Bush has thus far refused to cashier him. Some defenders of that decision have made the argument that giving Gonzales to Bush's critics would simply embolden them, so they must be resisted -- ignoring the fact that Gonzales is doing more damage to Bush's cause by remaining than could ever be caused by his resignation, a point made by Captain Ed in a link in the post below this one.

Now David Schraub sees a similar logic applied to Gitmo. The summary: While the president thinks Gitmo is hampering our broader war effort and ought to be shut down, he is reluctant to do so because that would mean moving the prisoners stateside where they would enjoy greater legal rights. So apparently we'll just have to keep hampering our own war effort.

Now one can be charitable and say the president means that shutting Gitmo would hamper our war effort even more -- except that's not what he said, and it makes little sense in context. Gitmo, on balance, is either helping or hurting our cause. If it's helping, then he should support it. If it's hurting, then it should be shut down. He said it's hurting. So that leaves one of two choices:

1. He's simply concerned about PR rather than the underlying issues, in which case what he's really saying is "I'm getting hammered for Gitmo, and I'd love to shut it down as soon as I can recreate it somewhere else."

2. He's willing to "hamper our war effort", if necessary, to avoid giving the Gitmo prisoners any real legal rights. Which, if true, demands the question Schraub asks: "Why?"

Personally, I think it's #1 more than #2. He's not truly apologetic for Gitmo; I don't think he respects the civil liberties questions involved, or how damaging such an operation can be in a conflict where global perceptions are a major part of the battleground, and where we claim to represent the forces of freedom, law and goodness.

Gitmo, Bush, politics, midtopia

Life under a gag order

If you want to get your inner civil libertarian riled, read on.

We know, of course, that the FBI has been abusing its authority to seek information without a warrant through National Security letters.

What you may not know is that keeping such abuse secret is made much easier by another FBI power: the gag order. If you're served an NSL you're not allowed to tell anyone -- even if the request is obviously improper. Even after the FBI has abandoned efforts to get the information from you, you cannot tell anyone they tried.

Here, then, is one person's story about living under an NSL gag order.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law.

In other words, the people with direct experience with NSLs are prohibited from using that experience to challenge the FBI's power. A practical consequence of that is that debate over that power is truncated:

Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny....

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Here's what it's like to have a gag order imposed:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

There are legitimate security concerns related to NSLs. Notably, you don't want to tip off a suspect to the existence of an active investigation, particularly the information sought and why. But those concerns can be addressed more narrowly. A broad gag order is the equivalent of using a sledgehammer where a scalpel is needed, and it does more to protect the FBI from scrutiny than it does to protect national security.

Congress has warned the FBI that if they don't clean up their act, they will lose the ability to use NSLs. But Congress needs to do more than that: they need to revise the gag order provisions to protect national security in a way less damaging to democratic debate and less violative of civil liberties.

politics, midtopia

How's the surge going?

With the House having passed an Iraq withdrawal timetable and the Senate hoping to follow suit, the big question becomes "are such timetables a good idea?" And the answer to that, in turn, depends mightly on how the Iraq "surge" is going.

Time has a broad assessment, so we'll start there.

First, it seems clear that if anyone can make it work, Gen. David Petraeus can. I've been impressed by his energy, tactics and professionalism. He knows what needs to be done and how to do it. The former isn't particularly impressive: the need has been obvious for a long time. But execution is a different matter, and he has shown to be highly capable in that department, from the actual deployment of security forces in Baghdad to collateral operations like those conducted in neighboring areas to catch insurgents fleeing Baghdad.

Some simple measures -- like banning car and truck traffic during business hours -- has helped cut back on car bombings in crowded places. Mostly, though, it's the "hold" part of "clear and hold" that has (unsurprisingly) proven quite effective.

But such moves don't succeed in isolation. Things have gone smoothly in large part because the Iraqi government continues to act serious about supporting nonsectarian security measures -- such as the recent arrest of former Mahdi Army members -- and has helped persuade the Mahdi Army itself to stay off the streets.

The numerical results have been promising, but with a couple of notes of caution. A week or so ago, military officials reported that killings in Baghdad were down significantly. But even as the crackdown expands, the number of deaths has been creeping back up. Yesterday 33 bodies turned up in Baghdad, uncomfortably close to pre-surge numbers.

Plus there's one key question: Can we trust the numbers? Because we've been through this once before, and it turned out they weren't counting bombing deaths.

So the answer remains "we don't know yet." Early signs are encouraging, but then they often are. Even Petraeus notes that it will take months -- until mid or late summer -- before we know whether the surge is working. And after that comes the really big question: can we sustain whatever gains we make? What happens when its time for the U.S. troops to go home?

All we can do is be patient. And it's a patience that is unaffected by the proposed Congressional timetables, because they won't take effect until long after we have a verdict on the surge -- the operation that will really determine the future of our mission in Iraq.

Petraeus, surge, Iraq, politics, midtopia

House passes Iraq timetable

By a razor-thin margin -- 218-212 -- the House of Representatives passed a war funding bill that includes a hard deadline to end combat operations in Iraq: September 2008.

I've already opined that the timetable is reasonable, giving Bush a year and a half to show progress. And even if the deadlines were enforced, it's not like we would abandon Iraq as of then. We would simply shift from doing front-line work ourselves to providing aid and training for the Iraqi military. And if Bush does manage to show progress, I'm sure he would find that the deadline, to quote Captain Barbossa, "is more of what you might call guidelines than actual rules." What Congress passeth, Congress can changeth.

Bush, however, exploded.

Just over an hour later, an angry Bush accused Democrats of staging nothing more than political theater and said that if the spending bill is not approved and signed into law by April 15, troops and their families "will face significant disruptions."...

"A narrow majority in the House of Representatives abdicated its responsibility by passing a war spending bill that has no chance of becoming law and brings us no closer to getting the troops the resources they need to do their job.

"These Democrats believe that the longer they can delay funding for our troops, the more likely they are to force me to accept restrictions on our commanders, an artificial timetable for withdrawal and their pet spending projects. This is not going to happen."

Bush's rhetoric is self-serving, of course: Whatever you think of the wisdom of its chosen course, this is Congress asserting its responsibility, not abdicating it. Abdication is what the Republican-led Congress engaged in for three years.

And if funding the war is so important, he can simply sign the bill. The money is there, and the restrictions don't kick in for quite a while. Apparently the funding isn't critical enough to keep him from vetoing it.

As political theater, this cannot be beat. As a practical matter, though, the deadline is probably a goner. The first hurdle is the Senate, where it will have trouble passing. If the Senate passes a bill lacking the timetable, that will have to be resolved in conference committee. If the deadline survives that (and the conference version passes the Senate), it faces a likely Bush veto, which will almost certainly be sustained.

At that point -- or, more likely, much earlier -- Bush and Congress will have to sit down and hammer out what sort of funding bill both sides will accept. The politics are uncertain, because both sides can accuse the other of holding our troops hostage to politics. My gut says Bush will win that battle of perception by claiming the timetable provision does not belong in the funding bill. But Congress can argue that the timetable is directly relevant to the funding.

Further, they could make the point that the timetable is a limitation on Bush, so how much sense does it make to pass it as a standalone measure that Bush will simply veto? Attaching it to the funding bill is the only way Congress can exert meaningful pressure on the president.

Problem is, that would mean Congress is using a tactical argument to try to counter a moral and strategic one. And critics could plausibly point out that if Congress cannot muster enough votes to force the timetable on Bush straight up, perhaps it is still too early to be doing such forcing.

I don't buy that particular logic but I'm still somewhat in the latter camp, mostly because I believe we need to give the "surge" time to show results before we start imposing withdrawal deadlines. More on that in my next post.

Iraq, politics, midtopia

Showdown over Iraq? Not this time

The House is racing toward a vote on a bill that would require U.S. troops to leave Iraq by mid-2008. And while Bush is using his bully pulpit to try to forestall that, passage is nearly certain.

The Senate is a different matter, because Democrats have been unable to muster the 60 votes needed for passage. And until it does, nothing changes.

Even if both houses of Congress passed such a bill, the president would almost certainly veto it. So this particular battle appears destined to end not with a bang but with a whimper.

So the battle now shifts to a different front: what restrictions, if any, to place on Bush's latest funding request for Iraq and Afghanistan.

It's a different fight in two respects. With the Iraq war resolutions, Congress needed to muster positive action to oppose Bush. With the funding bills, Bush is the one who needs positive action to get the money he wants. So Congressional Democrats have as much leverage as they could want, and the power of the Republican Senate minority to block action is mostly irrelevant.

But that's only if Democrats dare use that leverage. Because the second difference is that any move to cut or restrict funding, unless handled very carefully, could be painted as cutting the legs out from under our troops in the field. Indeed, that could be an actual unintended consequence, not just partisan Republican spin.

So we will now be treated to the sight of Congress trying to use the rather blunt instrument of its funding power to coerce relatively nuanced changes in our Iraq policy.

They could achieve the nuance pretty easily with narrowly crafted amendments, but those amendments would have to get by the Senate Republicans, and then they might face constitutional challenges.

In fact, consider this scenario: A bill passes and the administration challenges the amendments in court. That ties up the funding request until the challenge is resolved. But nobody wants to be seen as treating the troops' welfare as a political football, so Republicans force the Democrats to strip out the offending amendments and pass a "clean" funding bill while the amendments undergo court review.

I await with great curiosity what the Democrats will come up with.

Iraq, politics, midtopia

Dogpile on Fredo!

Body blow! Body blow! Body blow! How long can Alberto Gonzales remain standing?

The Senate Judiciary Committee has approved subpoenas in its probe into the firing of eight federal prosecutors, just in case it's necessary to get the prosecutors and several current and former Gonzales aides to testify. Although Gonzales has said his aides will testify voluntarily, a subpoena will probably be needed for at least one witness: Kyle Sampson, who until last week was Gonzales' chief aide.

Meanwhile, a second Republican Senator, Gordon Smith of Oregon, has joined John Sununu in calling for the AG's ouster. And A Republican House member, as yet unidentified, apparently also intends to call for him to step down.

The root of this case is less about the motivation behind the firings and more about how it was communicated to Congress -- as well as Gonzales' denials that the White House was involved. Thus the emergence of e-mails showing Karl Rove was involved in the discussion both paints Gonzales as a liar and has partisans salivating at the possibility of finally nailing Bush's Brain.

A midday e-mail between two White House staffers, dated Jan. 6, 2005, was titled, "Question from Karl Rove."

"Karl Rove stopped by to ask you (roughly quoting), `How we planned to proceed regarding US Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.,'" Colin Newman, a legal aide in the White House counsel's office, wrote deputy counsel David Leitch.

This doesn't indicate Rove was involved in deciding who to fire, but it does show he was in the loop. And the reply from Sampson (to whom Leitch forwarded the e-mail) shows that political loyalty was a factor in the deliberations.

"Judge and I discussed briefly a couple of weeks ago," Sampson wrote, referring to Gonzales, a former Texas state Supreme Court justice. He said the Justice Department was looking at replacing "underperforming" prosecutors. "The vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc.," he said.

Now, was it a big factor, or was Sampson merely trying to put the best spin on things for Bush's political advisor? We don't know. But again, these e-mails undermine Gonzales' assertions to Congress -- and Congress doesn't like being lied to.

The Senate may end up subpoenaing Rove, though they've put off a decision until Marc 22.

Finally and most explosively, yet a third Gonzales scandal may be rearing its head. The National Journal, citing government records and anonymous officials, says Gonzales advised Bush to shut down a Justice Department probe into the NSA eavesdropping program -- even after learning that he would likely be a subject of the inquiry (here's what I wrote about it back in May, when the probe was killed).

The tactic used to block the probe -- denying security clearances to the investigators involved -- was unusual to begin with. Now add in the spectre of Gonzales the AG urging Bush to derail an inquiry that would have looked into the actions of Gonzales the White House counsel.

The National Journal notes the no-win nature of this problem:

Current and former Justice Department officials, as well as experts in legal ethics, question the propriety of Gonzales's continuing to advise Bush about the investigation after learning that it might examine his own actions. The attorney general, they say, was remiss if he did not disclose that information to the president. But if Gonzales did inform Bush about the possibility and the president responded by stymieing the probe, that would raise even more-serious questions as to whether Bush acted to protect Gonzales, they said.

Either way, Gonzales is screwed. If he didn't tell Bush, he's toast. If he did tell Bush, he's still toast, because he'll be thrown overboard to protect the president.

The only path that saves him is if he can claim, without being contradicted, that he did not advise Bush about the probe. That path remains open for now: the National Journal relies on anonymous sources to make the advisory claim, and that hardly constitutes proof.

But even if he avoids that trap, the timing of the decision to end the probe was interesting. The Journal -- again citing anonymous sources -- says the decision came after investigators had notified the administration of their investigative strategy, which involved questioning some senior Justice Department lawyers who had clashed with Gonzales over the NSA program when he was White House counsel. The Journal describes worries among political appointees that investigators might conclude the administration had deliberately sidestepped the law.

Then there's this gem:

In a March 21, 2006, memo citing his inability to obtain security clearances, Jarrett, the head of OPR, wrote to Paul McNulty, the deputy attorney general, complaining that OPR was being "precluded from performing its duties."

In contrast, Jarrett noted, the administration promptly approved "the Criminal Division's request for the same security clearances for a large team of attorneys and FBI agents that was investigating who initially leaked details of the NSA eavesdropping program to The New York Times."

Security clearances for investigations the White House likes? No problem. Security clearances for investigations it doesn't like? Forget it.

In response to the National Journal story, the House Judiciary Committee is demanding answers from Gonzales.

The dogs smell blood.

Update: I'm not saying this is really significant, but I find it interesting that a site like Right Wing Nuthouse puts up a fairly standard "this is a made-up scandal" post -- and for the most part the only commenters are people who vehemently disagree with him. A couple of posters show up to take half-hearted swipes at liberals -- but nobody defends Gonzales.

ethics, NSA, Gonzales, politics, midtopia

The disaster of Alberto Gonzales

It's always the small things that bring people down.

Back when Alberto Gonzales was nominated for attorney general, he was under fire for being one of President Bush's worst enablers -- finding dubious legal justification for ignoring warrants, gutting FISA, torture, almost unlimited executive power and the odious "enemy combatant" designation, under which a U.S. citizen was detained for more than three years without benefit of trial, charges, lawyers or habeus corpus.

None of that, apparently, was enough to prevent him from being confirmed. And he had one thing going for him: He wasn't John Ashcroft, a man so generally loathed that it would be all but impossible to do worse.

As Attorney General he continued carrying water for Bush, threatening journalists with jail, and denigrating habeus corpus. But that didn't threaten his job.

Then came the nakedly political firings of eight U.S. attorneys, and the revelations that the FBI had abused its Patriot Act powers.

And guess what? It's the former, more than the latter, which may end up taking Gonzales down.

The New York Times called for his resignation this weekend, citing a litany of complaints. So did Democratic Sen. Charles Schumer. Pressure has mounted amid revelations that the White House was directly involved in the decision to fire the prosecutors, and earlier today Gonzales' chief of staff, Kyle Sampson, resigned. The growing controversy finally led Gonazales, who had dismissed the uproar as an "overblown personnel matter", to say publicly that the firings were mishandled.

It seems to be a case of a relatively minor last straw tipping the balance of opinion on a roundly disliked appointee.

The New York Times said it best, I think:

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush’s in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.

Gonzales can take solace in one impressive achievement: he may have secured John Ashcroft's legacy. Most people thought it impossible to be a worse attorney general than Bush's first nominee. But Gonzales has silenced the doubters. A dubious achievement, perhaps, but an achievement nonetheless.

Fire him. Not merely for the prosecutor kerfuffle, which while sleazy is at least constitutional. No, fire him for the full record of his achievements, and the disrepute he has brought upon our justice system and America's reputation.

Update: ThinkProgress (BIG grain of salt) thinks it has caught Gonzales lying under oath; Gonzales, meanwhile, categorically rejects the idea of resigning.

Update II: Hillary Clinton joins the chorus calling for Gonzales' resignation.

Gonzales, politics, midtopia

FBI violated Patriot Act

An internal audit has found that the FBI routinely violated Patriot Act rules for obtaining information without a warrant, and vastly underreported how often they sought such exceptions.

Man, couldn't have seen that one coming. No siree.

The discussion involves "National Security Letters" (NSL), the authorization of which was substantially broadened by the Patriot Act. Agents can use the letters to get information from companies without a warrant when time is a factor.

Roughly a quarter of the investigations audited by the Justice Department violated the Patriot Act rules. While noting that most of the violations appeared to be bureaucratic in nature rather than criminal, the details are not encouraging:

The FBI identified 26 possible violations in its use of the national security letters, including failing to get proper authorization, making improper requests under the law and unauthorized collection of telephone or Internet e-mail records....

But that's not all. Sometimes they couldn't even be bothered with an NSL.

The FBI also used so-called "exigent letters," signed by officials at FBI headquarters who were not authorized to sign national security letters, to obtain information. In at least 700 cases, these exigent letters were sent to three telephone companies to get toll billing records and subscriber information.

"In many cases, there was no pending investigation associated with the request at the time the exigent letters were sent," the audit concluded.

The letters inaccurately said the FBI had requested subpoenas for the information requested — "when, in fact, it had not," the audit found.

Having abused the letters, the FBI grossly undercounted the true scope of their use. They issued a total of 95,000 NSLs in 2003 and 2004, but told Congress they had issued only 9,254.

It's important to note that the report says that the abuses and undercounts appear to stem from bureaucratic problems and poor recordkeeping, and said it had not uncovered evidence of criminal wrongdoing.

But that's hardly the point. The reason we've traditionally required warrants is to protect citizens from an abusive government. By allowing widespread warrantless searches, we strip away that protection and end up relying on our government's good intentions to protect us.

Which is just foolish. Human organizations cannot usually be relied upon to govern themselves; the conflicts of interest are too powerful. We gave the FBI substantial new powers, with limited requirements for independent approval or review; We should not be surprised to discover that the power was abused.

This case provides yet another reason to be thankful that the White House and Congress are controlled by different parties; we can actually expect action on this and other abuses. Further, it's yet another part of the evolving conversation over how to balance security and civil liberties in an age of terrorism. After 9/11, the pendulum swung so far toward the security side that it threatened to topple the entire apparatus. Now, thank God, it is swinging back, as a new generation learns the perils of a government saying "Just trust me!" to its citizens.

Update: Alberto Gonzales and FBI director Robert Mueller admitted the FBI violated the law, and left open the possibility of criminal prosecution. Most significantly, the FBI will no longer use "exigent" letters.

All very nice, but this isn't something that can be solved through administrative means in the executive branch. As long as Congress is revising the Patriot Act to deal with the problem of interim prosecutors, I think they should revisit some other sections as well.

Patriot Act, FBI, terrorism, civil liberties, politics, midtopia

Americans are sensible

I like Americans. They may not always pay attention, but when they finally do they usually get it right.

Americans increasingly suspect the federal government has become cloaked in secrecy, a concern they don't have with their local and state governments.

People also overwhelmingly believe that their federal leaders have become sneaky, listening to telephone conversations or opening private mail without getting court permission, according to a survey of 1,008 adults commissioned by the American Society of Newspaper Editors.

By a 2-1 margin, people want FBI agents and other investigators to obtain search warrants before monitoring private communications, even if they suspect terrorism. And more than a quarter of the people in the survey said they suspect their own phone calls and letters have been intercepted.

Warrants? What sort of commie demands warrants before searches can be conducted?

Oops, sorry. I was channeling "security at all costs" proponents for a second there.

The expressed worry that their own communications have been intercepted is almost certainly overblown, unless you're talking about one of the big datamining operations that essentially sucks in everything but analyzes very little of it in detail. There simply aren't enough people in the NSA, the CIA and the FBI put together to monitor the calls of a quarter of the population.

But it does show that people are thinking about how such things might affect them, moving past the simplistic "why are you so concerned about the rights of terrorists" demonizing. I'm not concerned about the rights of terrorists; I'm concerned about the rights of all citizens and detainees, including suspected terrorists.

Fully 70 percent think the federal government is secretive. They were split (46 percent to 45 percent) on whether the press should have reported on the NSA eavesdropping program; fewer people approved of revelations regarding CIA torture (43%), CIA secret prisons (41%) and (oddly) disclosure of the identities of the inmates held at Guantanamo (38%). Approval of disclosure rose with educational attainment.

Americans, as a whole, apparently like their freedoms, and aren't scared enough to give them up just yet.

civil liberties, politics, midtopia

Rumors to the left of me, speculation to the right...

On the right, we have rumors that a retired Iranian general has gone missing and may have defected to the United States, an event that is reportedly sparking "panic" in Tehran.

The newspaper, al-Shark al-Awsat, cited "high-profile" sources saying former Iranian deputy defence minister and Revolutionary Guard commander Ali Reza Asghari had gone over to the West.

Reports from Istanbul that General Asghari's family had also disappeared in Turkey support the likelihood that he defected rather than was kidnapped by either the CIA or by Israel's Mossad, as has been speculated. The general went missing from his Istanbul hotel a month ago.

Iranian authorities, who have been silent on the disappearance until this week, claim he has been abducted.

Defections are good. As long as it's one of theirs. Why is this particularly important? Because of this:

General Asghari's crossing of the line, whether voluntary or not, is a resounding blow for the Iranian Government since he is privy to its most intimate secrets, particularly those concerning its nuclear capabilities and plans.

He served until two years ago as deputy defence minister, a post he held for eight years and which presumably offered an uninhibited view of virtually every aspect of Iran's security apparatus.

He was reportedly closely associated with Iran's activities in support of the Shi'ites in Iraq.

If true, this is a great big birthday present wrapped in ribbons and bows. But take it with a grain of salt for now. At the moment, it's just rumors and reports from unreliable sources.

On the left, Raw Story is claiming to have seen a memo confirming that one of the secret CIA prisons was at an intelligence training school in Poland. As an aside, it says its sources all say the CIA is no longer operating secret prisons -- and probably never had anything permanent, relying instead on a series of temporary, short-term facilities that it used as needed.

Take this one with a big grain of salt. It's plausible, but there is no independent confirmation of anything within it.

terrorism, Iran, politics, midtopia

Surge update

In a major test of the Iraqi committment to even-handed pacification, U.S. and Iraqi troops spread through the Shiite slum of Sadr City yesterday, following weeks of negotiations with the neighborhood's mayor.

There was no resistance and no violence.

The operation is significant beyond the fact that its a major Shiite neighborhood. Sadr City is home to 2.5 million of Baghdad's 6 million people. So controlling it means controlling a third of the population. And while the major problem with Sadr City has been its use as a base for Shiite militias rather than internal violence, a credible security presence there will weaken the militias by reducing the need for them -- and thus reducing their credibility -- as well as hindering their ability to use it as a base.

Update: on the other hand: 38 die, 105 hurt in a suicide car bombing in the heart of Baghdad. Coupled with attacks on Shiite pilgrims elsewhere in the city, it was the bloodiest day in more than a week.

sadr city, surge, Iraq, politics, midtopia

The case of the missing DVD

Whoops.

The missing DVD dates from March 2, 2004. It contains a video of the last interrogation session of Padilla, then a declared “enemy combatant” under an order from President Bush, while he was being held in military custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in the course of an unusual court hearing about Padilla’s mental condition, a government lawyer disclosed to a surprised courtroom that the Defense Intelligence Agency -- which had custody of the evidence -- was no longer able to locate the DVD.

Those sympathetic to the defense made hay with it, of course. "This is the kind of thing you hear when you’re litigating cases in Egypt or Morocco or Karachi," said John Sifton, a lawyer with Human Rights Watch -- an observation that recalls my recent comparison of the treatment of Padilla and a jailed Egyptian blogger.

The judge seems to think that, legally inexcusable as this is, the DVD isn't particularly relevant to the case. The defense was claiming a pattern of mistreatment, and such a pattern would have shown up on the other taped interrogations. As far as evidence admissable to his actual trial, there is a classified report on the interrogation that describes what went on.

Still, it's unusual. And the timing is pretty interesting. The final interrogation session took place in March 2004. Soon after -- and just before arguments on Padilla's detention were to begin before the Supreme Court -- Padilla finally was given access to lawyers. A year later, hoping to avoid an adverse ruling, the government transferred him back into the regular legal system.

So if there was going to be a session in which they pressed him hard it seems likely it would have been the final one, because they knew the case was about to go before the Supreme Court and they might be forced to give him legal rights.

As I said, it appears to have little bearing on his actual trial. But at minimum it's another example of how we've been quite cavalier with Padilla's rights. Worst case, it's a coverup of actual abuse.

terrorism, civil liberties, Padilla, politics, midtopia

Hey! Iran! Maybe we should, like, talk

Rather surprising, the administration has reversed itself and agreed to talk to Syria and Iran about the situation in Iraq.

The move was announced by Secretary of State Condoleezza Rice in testimony on Capitol Hill, after Iraq said it had invited neighboring states, the United States and other nations to a pair of regional conferences.

Okay, it was grudgingly. And they were boxed in by the Iraqi government, which doesn't share Washington's aversion to actual diplomacy and is scrapping for survival. But better late than never.

Rice says the U.S. doesn't want to be subjected to extortion. But it's silly to think Syria or Iran will lift a finger to help if we don't actually talk to them. Yeah, they're going to want something. But it sure doesn't hurt to listen to what it is -- and make a few demands of our own.

As in the past, the administration's knee-jerk reaction to ideas it doesn't like is to stonewall. But unlike in the past, the administration is showing new willingness to reconsider that reaction in the cold light of morning. A willingness to talk brought a deal in North Korea; an acknowledgement that more troops are needed appears to be bringing some success with the surge. We shouldn't get our hopes up too high over the decision to talk to Iran, but it sure can't hurt.

terrorism, Iraq, Iran, politics, midtopia