Cheney the tax wonk

Today's installment of the Washington Post series on Dick Cheney covers his influence over economic policy. (Comments on the first two installments are here.)

The vice president's staff encouraged people to cooperate on this part of the package, with unsurprising results: far fewer anonymous sources and a far more positive portrayal of the VP.

Some of the classic Cheney traits are there: a penchant for secrecy, and a profile so low he's invisible:

In a town where politicians routinely scurry for credit, Cheney more often kept his role concealed, even from top Bush advisers.

"A lot of it was a black box, and I think designedly so," said former Bush speechwriter David Frum. "It was like -- you know that experiment where you pass a magnet under the table and you see the iron filings on the top of the table move? You know there's a magnet there because of what you see happening, but you never see the magnet."

This segment also does an excellent job of illustrating how Bush's "CEO-style", big-picture approach leaves plenty of room for a detail-oriented vice president to amass power. Cheney immersed himself in the inner workings of the White House bureaucracy. He would attend low-level policy meetings, helping shape the menu of options that would eventually percolate up to Bush. Then he would sit in on the higher-level meetings, shepherding ideas he had helped germinate. Finally, of course, he almost always had the final word with Bush before decisions were made.

Possibly most important, Cheney was well positioned to simply block proposals he didn't like, because officials learned to run proposals past him before formally submitting them. A lot of things Cheney didn't like were simply never proposed.

The result was that while Cheney didn't win every battle, he won most of them -- and most battles were framed by him from the beginning, so even when he lost the final choice was within a range of options he had defined.

We also get a glimpse of Cheney the compromiser, problem-solver and peacemaker. He was responsible for resolving issues on subjects as diverse as the future of NASA, tax cuts, FBI searches of Congressional offices and what to do about Jim Jeffords -- with Cheney eventually persuading Bush to let Jeffords throw control of the Senate to the Democrats rather than meet his demands for new spending.

You also get a sense that the same traits that served Cheney, Bush and the country so badly in the realm of national security -- inflexible attachment to rigid principles, a push to win internal policy debates at all costs -- worked out better in the economic realm, where constitutional principles aren't at stake and there's a lot of incentive to abandon principles for mushy compromises, buying opponents and political capital with taxpayer money. One can dispute Cheney's principles -- the solution to everything is tax cuts for the wealthy! -- but it's hard to fault the dogged determination and bureaucratic skill with which he pursued them.

Tommorrow we'll cover the last segment.

Cheney, politics, midtopia

Cheney the legislator update

I had planned a roundup of (informed) reaction to Dick Cheney's assertion that the Office of the Vice President isn't part of the executive branch, But Joe Gandleman beat me to it.

He links to Captain's Quarters and Glenn Reynolds -- both conservatives, both unimpressed.

And he also notes the hay that Rahm Emanuel is making with it, including a move to strip funding for the OVP from the funding bill currently before the House.

Meanwhile, Newsweek notes that one reason Alberto Gonzales has not responded to the National Archives letter requesting his opinion on the matter could be because, five months later, Justice still hasn't looked into it.

The L.A. Times had a story on Friday saying the White House was exempting itself from the EO as well, something that contradicts reporting in other stories as well as the letters from the National Archives to Cheney and Gonzales. If true, it doesn't make Cheney's "not part of the executive branch" argument any less silly. But it would mean the OVP is no longer acting differently from the White House itself, isn't openly flouting an EO and that the main focus of criticism shifts from Cheney to Bush.

Cheney, politics, midtopia

Separate but unequal justice

Raise your hand if you're surprised by this. Anybody? Anybody? Bueller?

An Army officer who played a key role in the "enemy combatant" hearings at Guantanamo Bay says tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees, often without any specific evidence.

His affidavit, submitted to the U.S. Supreme Court and released Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only "generic" material that didn't hold up to the most basic legal challenges.

As generally suspected, the panels were a crock. But that's not the best part.

Abraham was asked to serve on one of the panels, and he said its members felt strong pressure to find against the detainee, saying there was "intensive scrutiny" when they declared a prisoner not to be an enemy combatant. When his panel decided the detainee wasn't an "enemy combatant," they were ordered to reconvene to hear more evidence, he said.

When the panel didn't reach the "correct" conclusion, they were ordered to try again. But that's not the best part.

Ultimately, his panel held its ground, and he was never asked to participate in another tribunal, he said.

If you're a panel member and you still insist on delivering the wrong answer, you aren't invited back!

Employ such a filtering technique two or three times, and you could end up with panels that would reach the "right" conclusion nearly every time.

To be fair, this is one man's testimony. We don't know if what happened to him was typical, or whether the decision not to let him sit on any more panels was related to the verdict rendered. More data is needed before firm conclusions can be drawn.

But this is yet another example of why legal shortcuts are a bad idea that almost guarantee miscarriages of justice.

, Guantanamo, Gitmo, terrorism, politics, midtopia

Cheney's destruction of executive power

The Washington Post is publishing an excellent four-part series examining Dick Cheney's role in the current administration, from terrorism to the economy to the environment. The first two installments are already out, with the next two coming tomorrow and Wednesday.

The series' name, "Angler", seems pretty odd until you realize it's Cheney's Secret Service codename. Though relying heavily on anonymous sources, the breadth, depth and carefulness of the reporting is impressive: More than 200 interviews with administration insiders with direct experience working with or against Cheney, who gave the reporters access to notes, calendars and other records to bolster their words. This isn't a careless, anonymously sourced hatchet job, and the story names so many names that if its claims are not accurate they would be easily demolished. This appears to be "best-practice" use of anonymous sources.

In Sunday's piece, Barton Gellman and Jo Becker detail how Cheney operates: behind the scenes, in secret, depending on his extraordinarily close relationship with President Bush to bypass other agencies and the normal review mechanisms and essentially upend the traditional model of the vice-president's role.

There's nothing particularly wrong with that; A VP who is the president's chief adviser or doppleganger could be very useful, and at a minimum is a way to squeeze extra value out of what has long been a mostly ceremonial post. Sure, one can always paint Cheney as some sort of Rasputin (or, in the current parlance, Lord Voldemort), but there's little evidence to back that up: it's not like he is blackmailing or hypnotizing Bush. It's what Cheney has done with that influence -- not the influence itself -- that deserves criticism.

(If anyone should be blamed for that influence, it's Bush -- who continues to listen to Cheney even though the veep has unhesitatingly led him down losing path after losing path in the last six years.)

The influence goes beyond Bush, though. In the early days of the Bush administration, at the height of his influence, Cheney filled the administration with allies, loyalists and former aides. That gave him huge influence at lower levels of government, allowing him to strongly influence other departments and Congress. It also reinforced his advice to the president, because the president would hear the same advice echoed by Cheney allies elsewhere in the executive branch.

Then there's his legendary penchant for secrecy:

Man-size Mosler safes, used elsewhere in government for classified secrets, store the workaday business of the office of the vice president. Even talking points for reporters are sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government said Cheney's office appears to have invented that designation, which alludes to "sensitive compartmented information," the most closely guarded category of government secrets. By adding the words "treated as," they said, Cheney seeks to protect unclassified work as though its disclosure would cause "exceptionally grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid transparency. Cheney declines to disclose the names or even the size of his staff, generally releases no public calendar and ordered the Secret Service to destroy his visitor logs.

As well, there's his recent assertion that his office isn't part of the executive branch when it comes to having to obey Executive Orders. As the story says, information flows into the VP's office -- but nothing comes out. It's a Roach Motel for information.

After 9/11 his priority became fighting terrorism without any restrictions whatsoever, be they constitutional, legal or moral. He directed the legal team that sought so many spurious rationales for ignoring plain readings of law or any meaningful limits on executive power in wartime -- regardless of whether that war were actually declared or not, or even meaningfully defined.

That disregard helped him bull through opposition in the short term, but over time has dealt him the usual punishment for overreaching:

The way he did it -- adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back -- turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush's successors.

One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.

Cheney and his legal team knew their assertions would never withstand scrutiny, which is why they went to such lengths to avoid scrutiny -- even if it meant bypassing Congress, the courts, and administration officials with direct responsibility for the matter at hand.

Cheney's office couldn't be bothered to join administration discussions about what to do with captured Taliban and Al-Qaeda fighters, preferring instead to simply ignore all the discussion about legalities and nuances and do what he wanted by going directly to the president. One of the most interesting sections of the first article explains how this practice went directly against a lifetime of Cheney's own advice.

When James A. Baker III was tapped to be White House chief of staff in 1980, he interviewed most of his living predecessors. Advice from Cheney filled four pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis, did Baker write in all capital letters:

BE AN HONEST BROKER

DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way you protect the Pres.," ensuring that any proposal has been tested against other views. Cheney added: "It's not in anyone's interest to get an 'oh by the way decision' -- & all have to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again about "'oh, by the way' decisions" at a conference of White House historians. According to a transcript, he added: "The process of moving paper in and out of the Oval Office, who gets involved in the meetings, who does the president listen to, who gets a chance to talk to him before he makes a decision, is absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president the ultimate "oh, by the way" choice -- a far-reaching military order that most of Bush's top advisers had not seen.

He should have listened to his old self.

The story contains repeated examples of how Bush delegated extraordinary authority on terrorism and intelligence to Cheney -- so much so that when officials went to the White House to complain about Cheney's policy moves, they found themselves meeting with... Cheney.

His reach was long. Supposedly confidential memos from White House officials to the national security advisor -- at the time, Condoleeza Rice -- were secretly routed to Cheney, too; Cheney was reading Rice's mail. In another sign that Alberto Gonzales is an empty shirt, Cheney's staff would prepare memos for Gonzales -- then the White House counsel -- to sign, hiding Cheney's role and putting Gonzales' name to words he never wrote. thus Bush would sometimes hear identical advice from Gonzales and Cheney -- because Cheney had written Gonzales' memo.

Monday's article delves deeper into Cheney's destructive efforts to expand presidential power -- including Cheney's nonstop efforts to allow torture, to exclude the CIA from legal restrictions on torture and to set up the President as the sole authority for deciding what is torture and what isn't (even though abuses by the executive branch are what such laws and conventions are designed to protect against). All this while ignoring, undermining and punishing anyone who dared argue differently.

Once again, the story describes repeated examples of Cheney hiding from the light -- making breathtaking assertions of executive power, then hiding those assertions from anyone who might question or oppose them.

In secret memos, Cheney's chief lawyer, David Addington, pushed some of the most extreme interpretations of presidential power:

The vice president's lawyer advocated what was considered the memo's most radical claim: that the president may authorize any interrogation method, even if it crosses the line of torture. U.S. and treaty laws forbidding any person to "commit torture," that passage stated, "do not apply" to the commander in chief, because Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

According to that logic, the president could "accidentally" strangle a prisoner with his own hands in the course of an interrogation, and there is no authority on Earth that could outlaw it. That assertion is so bizarre, so contemptuous of any limit on presidential power, that it's easy to understand why the administration kept it secret. They changed the rules to their own satisfaction, then didn't tell any of the other players.

Cheney refused to step back from even his most outrageous claims, even as they were clearly headed for defeat in the courts. In this he had the continued help of the spineless Gonzales, who often sided with Cheney and Addington over the objections of the Justice Department and even his own staff.

Even when, as predicted, Cheney's views were repudiated in court, he refused to accept reality. For example:

When a U.S. District Court ruled several months later that Padilla had a right to counsel, Cheney's office insisted on sending [solicitor general Ted] Olson's deputy, Paul Clement, on what Justice Department lawyers called "a suicide mission": to tell Judge Michael B. Mukasey that he had erred so grossly that he should retract his decision. Mukasey derided the government's "pinched legalism" and added acidly that his order was "not a suggestion or request."

Even after Cheney's views had been soundly rejected by the Supreme Court -- a defeat that probably helped prompt Olson to resign -- Cheney exercised veto power over the choice of Olson's successor.

Later, Cheney overrode the Defense Department when it tried to formulate rules for the treatment of prisoners after Abu Ghraib.

In late August 2005, [Deputy Defense Secretary Gordon] England called a meeting of nearly three dozen Pentagon officials, including the vice chief and top uniformed lawyer for each military branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set the agenda.

Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which called for humane treatment [of prisoners], "subject to military necessity" -- had left U.S. forces unsure about how to behave. The Defense Department, he said, should clarify its bedrock legal requirements with a directive incorporating the language of Geneva's Common Article 3. That was exactly the language -- prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney had spent three years expunging from U.S. policy.

"Every vice chief came out strongly in favor, as did every JAG," or judge advocate general, recalled Mora, who was Navy general counsel at the time.

But Cheney objected. Guess who won?

In the following year, Congress and the courts imposed most of those restrictions, and Waxman's successor pushed through the directive Cheney had derailed. But Cheney still found loopholes. Restrictions on torture applied to the Pentagon, not the CIA; and while Bush publicly promised to close down secret CIA prisons, he didn't promise not to open new ones -- and so he did.

For all Cheney's bluster about the supremacy of national security concerns, he has shown a willingness to subordinate those to political concerns. The article describes the case of Australian David Hicks. In plea negotiations with Hicks, they offered to jail him for "only" 20 years in exchange for a guilty plea and an affidavit that he hadn't been tortured as his lawyers claimed.

But then Cheney visited Australia, where he was told that the Hicks case threatened the re-election of Prime Minister John Howard.

Shortly after Cheney returned from Australia, the Hicks case died with a whimper. The U.S. government abruptly shifted its stance in plea negotiations, dropping the sentence it offered from 20 years in prison to nine months if Hicks would say that he was guilty. ... The deal, negotiated without the knowledge of the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J. Crawford, the senior authority over military commissions. Crawford received her three previous government jobs from then-Defense Secretary Cheney.

Thus Hicks -- up until that time portrayed as a dangerous terrorist who deserved to be locked up for a long time -- was returned to Australia with a short sentence in order to bolster Howard's re-election bid.

There's a lot more in the stories themselves. And one of the reporters, Barton Gellman, will be online in a couple of minutes answering questions about the series. Meanwhile, stay tuned for Parts III and IV.

Cheney, politics, midtopia

Chemical Ali sentenced to hang

Saddam's murderous cousin gets what's coming to him, along with two others.

The most notorious of the defendants, Ali Hassan al-Majeed -- a former general known as "Chemical Ali" -- received five death sentences for ordering the use of deadly mustard gas and nerve agents against the Kurds during the so-called Anfal campaign. ...

Also sentenced to hang were Hussein Rashid al-Tikriti, 66, former armed forces deputy chief of operations, and Sultan Hashim al-Tai, 67, a former defense minister.

Several more defendants were involved as well:

Two of the defendants in the Anfal case received multiple life sentences: Farhan al-Jubuiri, a former military intelligence commander in northern Iraq, and Sabir al-Duri, former director of military intelligence. In reading the verdict, Uraibiy said the court took into consideration Duri's expressions of regret.

Taher al-Ani, 70, the former governor of the northern city of Mosul, was acquitted because of a lack of evidence.

Meanwhile, 423(!!!) former officials remain under investigation in the Anfal case. And that's just one massacre out of several that could lead to charges.

Human Rights Watch criticized the fairness of the trial, as they did the trial of Saddam. Those concerns need to be taken seriously, because a fair and impartial judicial system is a crucial element for a unified, peaceful Iraq.

That said, it's not like there was any doubt about Ali's guilt. Such concerns are important in this case more for precedent and setting an example than for any real worry that there was a miscarriage of justice. Nonetheless, the concerns are real, and should be taken into account on appeal. Not necessarily for Ali, but for the less cut-and-dried cases that are certain to follow. If the courts cannot be counted on to provide a fair trial in a case where the defendant's guilt is beyond doubt, it cannot be trusted to deliver fair verdicts in murkier circumstances.

But I shed no tears for Ali.

And for pro-war hawks who will trumpet this as justification of the invasion: It's not. It's a terrible idea's silver lining, just like Saddam's ouster. Their apprehension and trial was not worth anything close to $500 billion, 3,500 American lives and hundreds of thousands of Iraqi ones; the cost-benefit analysis isn't even close. They simply demonstrate that few human endeavors are wholly evil or wholly good.

genocide, Iraq, Chemical Ali, politics, midtopia

"Swinging" Bishop's case goes before ethics panel

Alabama state Sen. Charles Bishop, who punched a fellow senator on the chamber floor, will have his case examined by the state Senate's ethics committee after the punchee lodged a complaint. A decision is expected by the end of summer.

Expect little more than a handslap, though, because the attack apparently doesn't qualify as a felony and Alabama apparently immunizes legislators against misdemeanors while the Legislature is in session.

Also expect fun testimony about just what Democratic Sen. Lowell Barron -- a man apparently given to directing obscenities at fellow senators -- said to provoke the wallop. All in all, this YouTube moment should shower disrepute down upon all involved.

Lowell Barron, Charles Bishop, Alabama, politics, midtopia

Pants suit plaintiff comes up empty

Roy Pearson, who claimed his lost pants were worth $54 million, was told by a judge today that, to the contrary, his pants were worth nothing at all.

In a verdict that surprised no one, except perhaps the plaintiff himself, a D.C. Superior Court judge denied Roy Pearson the big payday he claimed was his due.

Delivering her decision in writing, Judge Judith Bartnoff in 23 pages dissected and dismissed Pearson's claim that he was defrauded by the owners of Custom Cleaners and their "Satisfaction Guaranteed" sign.

And, as Pearson should have suspected, the boomerang could be quite unpleasant.

Financially, Pearson could soon be on the hook for tens of thousands of dollars in legal fees incurred by the owners of Customer Cleaners, and professionally, Pearson could find himself out of his $96,000-a-year job as an administrative law judge for the District government.

For once, idiocy appears to be its own punishment.

Pearson, politics, midtopia

Good news

It's Friday, so why not ring out the week with a good news roundup?

HABEAS CORPUS
The House is finally producing legislation that would match a Senate provision passed out of committee earlier this month. Both bills face tough floor fights and possible vetos, but it's yet another small step on reasserting the rule of law and putting terrorism back on a criminal footing, where it largely belongs.

PORK REFORM
Even as earmark reform and other ethics measures work their slow and creaky way through Congress, far more sweeping reform is taking place at the state level -- both providing an example for and increasing pressure on Congress to clean up its act. Whether you think pork is a valid government function, a necessary evil or simply evil, you have to agree that transparency in the process is a good thing. Though there's this caveat:

Even with greater transparency, will the humiliation factor work? Amid all House Appropriations Chairman David Obey's unconvincing reasons for keeping the public in the dark, he did make the fair point that even when embarrassing earmarks have been disclosed, Congress rallies around its porksters and approves the money. It's hard to shame people who have no shame.

And that's the next stage of the earmark debate. Forcing national politicians to admit to their bad spending habits is clearly difficult. Forcing them to stop, or pay the price at the polls, is the real test of "earmark reform."

Let's find out.

ENERGY INDEPENDENCE
The Senate passed an energy bill Thursday that includes a provision raising the average gas mileage requirement to 35 mpg by 2020 -- a significant increase over today's 25 mpg, even if the time frame is a long one. On the other hand, Republicans blocked the "tax hike" (see second item in link) on oil companies, as well as measures requiring electrical utilities to use far more renewable power sources. The latter item won't actually matter much, considering state regulators are already well down that path. But it does make one wonder why Republicans think the status quo is so great.

habeas corpus, earmarks, energy, politics, midtopia

Cheney the Legislator update

I've colonized the Friday open thread over at Stubborn Facts in search of a respectable legal opinion on Cheney's claim that his office isn't part of the executive branch. You can follow the discussion there if you like, and if either Pat or Simon weighs in with a fuller opinion I'll link to it.

Update: Both the L.A. Times and the Washington Post weigh in -- with the Post piece doing a good job of outlining Cheney's long obsession with secrecy. It also quotes the Justice Department saying that it's looking into the matter.

Update II: The press grills White House spokeswoman Dana Perino about the matter, and gets the runaround.

As you get further into it, she seems to be saying that yes, the president meant for the OVP to be exempt from reporting requirements. But she says that's because the president views the OVP as being essentially the same as the office of the president in this matter. The question, then, is why the president's office and the White House are complying with the EO if they're exempt. Again, it's the OVP that's the outlier.

And she doesn't even try to address Cheney's argument that his office isn't part of the executive branch.

She does, however, seemingly answer one of my questions from yesterday, which is that Congress has no authority to enforce or otherwise question how an EO is being carried out. They can attack the EO itself in various ways, but if Bush wants to let Cheney run wild, he can.

Cheney, politics, midtopia

Immigration a net plus

The White House's Council of Economic Advisors has -- unsurprisingly, given the White House's support for some sort of guest-worker program -- come out with a report that shows immigration provides net benefits to the United States and its citizens.

Among other things, they say immigrants don't depress the wages of native-born citizens, have a lower crime rate than native-born citizens, are more likely to be entrepreneurial, assimilate quickly and boost the solvency of entitlement programs like Social Security and Medicare, because immigrants tend to be young (and illegal immigrants contribute but will never collect).

Some of the data is striking, such as the observation that while 72% of first-generation Latino immigrants speak Spanish as their first language, only 7% of their kids do. This supports what I've often said, that judging assimilation requires a generational view and by that measure is quite robust.

But beyond broad observations like that -- and obvious macroeconomic principles like the fact that our aging workforce and growing retiree population benefits from an influx of young workers -- the conclusions of the report require a big grain of salt as far as how it applies to the immigration debate.

That's because it lumps legal and illegal immigrants together. Which is fair when discussing the net effect of immigration. But the immigration debate tends to revolve around illegal immigration; outside of extreme nativists and xenophobes, most people agree that legal immigration is one of our strengths.

This report not only fails to address that distinction, it distorts the picture because legal immigrants tend to have higher incomes, more education and be more likely to assimilate than illegal immigrants -- many of whom are poor, poorly educated and have no legal avenue to become citizens and thus limited incentive to assimilate.

What it does do, however, is show that a big part of any immigration reform must include a sharply higher quota of legal immigrants.

#1, we have the room; a recent piece on NPR noted that if the United States had the same population density as England, our entire population would fit in Texas.

#2, as this report demonstrates, legal immigrants strongly benefit the country.

And #3, offering would-be immigrants a realistic chance of entering the United States legally will cut down on the incentives to try to enter illegally.



immigration, politics, midtopia

Barrasso named new Wyoming senator

Ending speculation after Republican Sen. Craig Thomas died, Wyoming Gov. Dave Freudenthal has chosen a conservative state legislator, John Barrasso, to replace him.

You may recall that under Wyoming law, the deceased senator's party -- in this case, the Republicans -- selects three nominees, one of whom the governor must choose. There was some added spice to the process because Freudenthal is a Democrat, and both parties would presumably be considering the 2008 election when making their choices -- though everyone involved said they wouldn't.

Freudenthal chose Barrasso over Cheyenne attorney and lobbyist Tom Sansonetti and former state treasurer Cynthia Lummis. The Hill has a breakdown on the three.

Lummis had the disadvantage of having had sharp public disagreements with Freudenthal when she was treasurer, and she chaired the campaign of Freudenthal's opponent in the November elections.

Sansonetti was state Republican chairman in the 1980s, during part of which Freudenthal was the state Democratic chairman. But neither apparently let that get personal. Similarly, while Freudenthal vetoed some Barrasso bills, it never turned personal.

Barrasso appears to be the most qualified of the three. Thus Freudenthal's claim that he didn't take politics into account may be true, if only because it would probably be futile: Wyoming hasn't had a Democratic senator since 1977. But assuming he was considering politics, he may have relied on history: Barrasso ran for the Senate in 1996, only to lose in the Republican primary to current Wyoming Sen. Mike Enzi. And he already enjoys high name recognition, so serving in the Senate doesn't help him there. Two years in office will give him a voting record during a difficult time for Republicans, conceivably making him more vulnerable in 2008 than he would have been otherwise.

Lummis, by contrast, has handily won statewide office twice, another strike against her. Sansonetti has never run for office, which would seem to make him a weaker candidate; but the high profile of the Senate would help him more than the other two. And he's a Bush appointee, which carries its own baggage.

That's how one of the Hill's sources broke it down in the process of correctly predicting that Barrasso would be the pick:

GOP insiders say that Lummis is the top potential candidate and that Sansonetti might struggle as somebody with no campaign experience who has spent a lot of time outside of the state.

A political science professor at the University of Wyoming, James King, said Freudenthal’s clashes with the Bush administration on recent environmental issues could also cause him to shy away from choosing a Bush appointee like Sansonetti.

“Which leaves us with Barrasso, more as a process of elimination than as someone who has an array of strengths,” King handicapped. “It’s maybe more the weaknesses of the other candidates that make me think that he might be the selection.”

Which makes you wonder if the GOP gamed it that way. They had to know Freudenthal wouldn't be inclined to pick Lummis, both for their personal history and her electoral success. And if the Bush taint on Sansonetti was obvious, they'd know that was unlikely, too. Leaving Barrosso as the only palatable pick, giving the GOP a senator with a long political resume and high name recognition, positioning them as well as possible for 2008.

Barrasso, Wyoming, politics, midtopia

General silliness

Stories to make you shake your head:

SAVAGELY WRONG
Michael Savage's ego blasts C-SPAN for being "left-wing" -- resulting in his getting demolished by C-SPAN's mild-mannered president and prompting prominent conservatives to call him nuts.

TAX BREAKS ARE FOREVER
Senate Republicans blocked what they claimed were unjustified, burdensome "tax hikes" on large oil companies. Except the "hikes" were largely made up of two things: a repeal of tax breaks given to oil companies in 2004 (apparently targeted tax breaks are fine, but removing those same breaks is unfair), and a recouping of lease money that should have been paid by oil firms for the right to drill in the Gulf of Mexico, but which was lost because of errors in the lease contracts.

HOW ABOUT 'FORCIBLY NONCONSENSUAL INTERCOURSE'?
A Nebraska judge overseeing a rape trial has banned the word "rape" from the courtroom as potentially prejudicial to the jury -- along with "sexual assault," "victim", "assailant" and "sexual-assault kit." You might ask how one can discuss a rape without using any of those words. The answer, in this case anyway, was to use the word "sex". So instead of "he raped me", you'd say "we had sex without my consent" or something along those lines. You might ask if such locutions, besides obscuring actual meaning, aren't themselves prejudicial in the other direction. And you'd have a point.

politics, midtopia

Justice Department roundup

Three Justice-related stories today:

1. Deputy Attorney General Paul McNulty returned to Capitol Hill to revise some of his previous testimony and remarks about the prosecutor firings. Nothing particularly explosive came out of it, but it's yet another example of a Justice official saying one thing under oath only to have to revise it when later contradicted by facts -- although in this case there are people who feel McNulty's major crime was being honest, and he's being used as a scapegoat by Alberto Gonzales' supporters.

2. Former Attorney General John Aschroft confirmed the sharp disagreement within the administration over warrantless eavesdropping during a closed-door meeting with the House Intelligence Committee, according to committee chairman Silvestro Reyes. That is yet another bit of evidence contradicting Gonzales' claim that there was not much disagreement over the policy, and underlining once again that Gonzales is either clueless or a total hack.

3. Finally and most interestingly, Bradley Schlozman -- the last Justice official to have to do over his sworn testimony -- also played a central role in politicizing the hiring of career prosecutors during a stint as acting assistant attorney general for civil rights.

Karen Stevens, Tovah Calderon and Teresa Kwong had a lot in common. They had good performance ratings as career lawyers in the Justice Department's civil rights division. And they were minority women transferred out of their jobs two years ago -- over the objections of their immediate supervisors -- by Bradley Schlozman, then the acting assistant attorney general for civil rights.

Schlozman ordered supervisors to tell the women that they had performance problems or that the office was overstaffed. But one lawyer, Conor Dugan, told colleagues that the recent Bush appointee had confided that his real motive was to "make room for some good Americans" in that high-impact office, according to four lawyers who said they heard the account from Dugan.

But wait! There's more! It's not just Democrats that were targeted, but insufficiently Bushie Republicans:

In another politically tinged conversation recounted by former colleagues, Schlozman asked a supervisor if a career lawyer who had voted for Sen. John McCain (R-Ariz.), a onetime political rival of President Bush, could still be trusted.

On top of that, he was a coward:

That spring, Schlozman told a resistant Flynn to transfer Stevens to the disability rights section. According to sources in the office, Schlozman instructed Flynn to tell Stevens that the transfer was related to performance and was her idea.

View the allegations with a grain of salt, seeing as how they all come from anonymous sources without independent confirmation. But the extensiveness of the sourcing -- five lawyers and a supervisor within the civil-rights section -- helps boost credibility. And what verifiable facts are known are consistent with the story -- in particular that the various attorneys targeted by Schlozman have all returned to their previous jobs now that Schlozman is gone. It's unlikely they would have been returned so quickly if they were truly punished on merit grounds.

Schlozman, Ashcroft, Gonzales, politics, midtopia

Cheney secedes from the executive branch

Dick Cheney is a wonder.

Remember back in 2001 when he basically invited the oil industry to write the administration's new energy policy? When people wanted to know who attended the advisory meetings Cheney refused to say, claiming executive privilege -- that is, as a member of the executive branch, he had a right to receive "free and frank" advice without those advisors having to worry about their names or words being made public. He won a court case on the matter using that argument.

Fast forward to 2004, where in order to -- again -- maintain the cloak of secrecy over his actions, Cheney claimed that the Office of the Vice President isn't part of the executive branch, exempting it from an executive order that lays out how agencies are supposed to handle and safeguard classified information. This came to a head when the VP's staff blocked an inspection by the National Archives office tasked with making sure the order was being followed.

The National Archives had a cow, to which the VP responded with ... silence. So the Archives wrote to Attorney General Alberto Gonzales. This time the VP responded -- by attempting to abolish the Archives office doing the questioning. Gonzales' response was ... silence.

The Veep's legal reasoning seems worthy of Alberto Gonzales. It asserts that the Office of the Vice President isn't an executive branch agency for the purposes of the executive order because it has both legislative and executive functions -- for instance, presiding over the Senate and casting a vote when necessary to break ties.

Not only is this assertion novel -- no previous VP has made such a claim -- but it's also a ludicrous technicality. The Vice President's legislative duties are narrow and relatively minor, and don't involve disclosures of classified information. Essentially all of the office's handling of classified data comes through its executive duties. The argument appears to make a distinction between the VP (an executive branch officer) and his office (which has mixed duties), allowing the office to claim executive privilege when convenient and legislative-branch status when convenient.

The Archives lay out the argument in a letter to Cheney (pdf) and the subsequent letter to Gonzales (pdf).

The common thread, of course, is Cheney's obsessive need for secrecy and nonaccountability -- as well as his penchant for lashing out at perceived enemies. In this case it's particularly nutty: Cheney is asserting that the government should simply trust that his office is handling classified information appropriately. This arguably places his dislike of accountability above the demands of national security.

Henry Waxman, chairman of the oversight committee, summed things up in a fiery 8-page letter (pdf) requesting answers from the VP's office by July 12. Expect the VP's response to be either silence or a dismissal of Congress' authority in this matter. The latter point might even be valid: Congress' oversight authority over the handling of executive orders is generally limited to attacking the orders themselves (if they lack statutory authority), not questioning whether they were carried out. It doesn't appear that Congress has the power to compel the executive branch to follow or enforce its own orders.

What Congress does have, however, is the power to embarass. Cheney seems immune to embarassment, but stonewalling or public defiance will simply mean that much more political capital drained from an administration that is already running on fumes in that department. And the fault for that lies with Cheney and his congenital and destructive secretiveness, not Congress.

Update: Pulling from the discussion in the comments, I wanted to highlight the aspect of the Executive Order that discusses what government bodies are covered. Section 6.1(b) reads as follows:

"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Now, Cheney's argument is that the VP's office isn't part of the executive branch, his earlier claims of "executive privilege" notwithstanding. There could be an interesting case to be made there, seeing as how his salary is actually paid by the Senate and his sole constitutional duty is presiding over the Senate. On the other hand, the job of Vice President is laid out in detail in Article II of the Constitution -- the article describing the executive branch.

Then there's the two centuries worth of practice, precedent and legal rulings that undermine Cheney's claim. At USA.gov, the government's directory of itself, the vice president is listed under the "executive office of the President." Besides having an office in the White House, he also has an office in the Eisenhower Executive Office Building -- which, notably, contains executive offices. He's part of the president's Cabinet, something no legislative branch member is. The list goes on.

Besides, if he's not part of the executive branch, then he's an employee of Congress and can be subpoenaed or otherwise overseen at will. I'm sure Congress would love to exercise that newfound power.

Cheney, politics, midtopia

More Iraqi tribes agree to help U.S.

Even if the "surge" seems plagued with difficulties, we appear to be having one clear success in Iraq: enlisting Sunni tribes to help battle Al-Qaeda jihadis.

More than 10 Iraqi tribes in the Baghdad area have reached agreements with U.S. and Iraqi forces for the first time to oppose al-Qaeda, raising the U.S. military's hopes that a trend started in western Iraq is spreading here.

Some of the groups, which have members who fought alongside al-Qaeda in the past, have been providing useful intelligence to U.S. forces about their former allies, according to the U.S. military....

This is the same tactic that has borne fruit in Anbar province, with attacks there down 60 percent in the last year.

Before getting too excited, though, there are the caveats.

Ten tribes have agreed to cooperate; but there are 100 tribes in the Baghdad area, and tribal power isn't as strong in the city as it is in more remote areas. This is a small first step in an endeavor that is, at best, part of a solution.

In addition, the Iraqi government opposes the idea of arming and supporting Sunni tribal forces, fearing it will lead to more private militias that will one day turn their weaponry on the central government. I'm not sure what's more worrisome: that the Iraqi government wants to curtail the one program that appears to be bearing fruit, or that their fears are probably justified.

To quote from a previous post:

It remains to be seen whether that situation will hold, it doesn't address the problem with native Iraqi 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.

But frankly, at this point, what do we have to lose?

Meanwhile, with the surge reinforcements all in place, the offensive in Diyala province is proceeding apace, and we appear to finally be relearning some old lessons:

In the first hours of the American military assault, after midnight early Monday, helicopters flew two teams of American troops and a platoon of Iraqi scouts so they could block the southern escape routes from the city. Stryker armored vehicles moved along the western outskirts of Baquba and then down a main north-south route that cuts through the center of the city.

By the time dawn broke on Tuesday, the insurgent sanctuary in western Baquba had been cordoned off. Then, the American forces established footholds on the periphery of the section and slowly pressed in. “Rather than let the problem export to some other place and then have to fight them again, my goal is to isolate this thing and cordon it off,” said Col. Steve Townsend, the commander of the Third Stryker Brigade Combat Team, Second Infantry Division.

Translated, that means "no more whack-a-mole." It's classic tactics: find the enemy, fix him, and destroy him.

There are also rather eery echoes of Vietnam in the operation, from the heliborne assault tactics used to set up the cordon to the resurrection of Kit Carson scouts. One would think the military would go out of its way to avoid Vietnam associations, but the Kit Carson program was actually pretty successful and the mobility of heliborne troops has always been a valuable tool in the American arsenal. Much of what the American military knows about counterinsurgency operations comes from Vietnam, so it's natural to reuse tactics -- and, apparently, names.

Fun as this all is, it's useless if afterwards we leave and let the insurgents filter back in. I assume that "clear and hold" is part of the plan for Diyala, but I'm not sure where those troops will come from, considering that the surge was supposed to focus on Baghdad and its immediate environs, with the extra troops earmarked for that purpose. I'm not sure Baquba, 35 miles away, was part of the original scope.

But let's hope the operation works, we have enough troops for the job, and Sunni groups continue to switch sides. And let's hope that in our zeal to destroy AQ in Iraq, we aren't laying the groundwork for an even bloodier Sunni-Shiite faceoff among Iraqis.

Iraq, politics, midtopia

Major League Baseball still at it

Last year, Major League Baseball sued the operators of several online fantasy baseball leagues, demanding licensing fees for the use of players' names and images.

I noted at the time how legally questionable -- not to mention stupidly self-destructive -- the move was. I'm not sure how MLB expects to prosper when it tries to destroy a stupendously efficient fan-creation machine. The NFL, for example, has always seemed to understand how useful fantasy football is for building interest in the game -- something far more valuable in the long-run than trying to squeeze revenue out of what is a low-cost hobby for most people.

The good news: MLB lost the case. The bad news: They appealed. And the appeal got a hearing last week. But it got a rocky reception.

A panel of three judges at the 8th U.S. Circuit Court of Appeals seemed skeptical that MLB could take financial control of a game that uses publicly available statistics and widely known names of players.

It will be interesting if they lose, because an adverse ruling could jeopardize the millions in licensing fees that the biggest operators of fantasy leagues have already agreed to pay. If the judges rule that such information is essentially public domain, the big companies will no longer feel compelled to pay.

One can only hope. As I noted last year:

In it's greed-fueled quest for control, MLB threatens to damage a hobby that probably has helped baseball's bottom line far more than it has harmed it. It's the sports equivalent of Digital Rights Management, in which publishers are destroying they're online market through greed and fear.

It would serve them right if that's what happened. But I enjoy fantasy sports too much to want to endure the fallout.

(h/t: Stubborn Facts)

fantasy baseball, baseball, politics, midtopia

Mercy for Libby?

The Washington Post's Richard Cohen lays out the principled case for going easy on Lewis Libby, while avoiding most (though not all) of the partisan fact-bending emanating from that camp.

He starts out in unpromising fashion, railing about Patrick Fitzgerald making "a mountain out of a molehill" at "the urging of the liberal press." He also tiptoes up to the line of claiming positively that there was no underlying crime.

But he does not cross it. And he quickly admits that lying to a grand jury is not a trivial thing. He then proceeds to skewer the various enablers and cheerleaders in the case, which arguably did more damage to the media than the administration.

His concluding lines:

The rest of us ought to consider what Fitzgerald has wrought and whether we are better off for his efforts. I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

I disagree that the investigation shouldn't have been conducted. And arguably, Libby's lies are why this didn't turn out to be a bigger deal than it was. But I'm sympathetic to the argument that 30 months is an excessive sentence for an otherwise straight arrow convicted of an essentially political crime. Still, the man did lie, and some punishment is deserved. Pardon? No. Commute immediately? No. Let him serve half the sentence, commuting it as Bush is leaving office. That would seem to serve the needs of both justice and mercy.

Update: Cohen participated in an online discussion of his column in which he manages to muddy his point a bit. A particularly on-point exchange:

QUESTION: ... If somebody consciously and intentionally lies to a Federal prosecutor and a grand jury, isn't it appropriate for them to go to jail? Even if the prosecutor has no business having asked the question in the first place? Tell the truth or take the Fifth -- either is fine -- but intentional lying simply isn't acceptable in any witness, let alone a high-ranking government official.

Do you disagree with this basic observation? If so, please explain. If not, how can you still argue that Scooter shouldn't go to jail? I suppose you can simply disagree with the premise that Libby consciously and intentionally lied, but the jury made that determination, and that's what juries are for...

COHEN: I don't quarrel with the jury. In fact, let me just say that my own reading of the trial was that he was guilty. I don't believe that he forgot. But I do believe that while it is impermissible for anyone to lie to a grand jury -- I'm not quarreling with that -- I'm just saying that when you get called before a grand jury and you are a target, there ought to be a crime involved.... If he lied to a grand jury it wasn't because he made money illegally or took bribes or some other crime, it was because he was covering up for embarrassment or because he mistakenly thought he had committed a crime. So fine, convict him. But 30 months is excessive.

So he admits Libby lied to cover up something, but he thinks the sentence should be commuted anyway. That's really odd logic.

Libby, politics, midtopia

Two Republicans face legal scrutiny

Sen. Ted Stevens, he of the "bridge to nowhere" and other porky products, is now being investigated for his ties to an unfolding corruption scandal in Alaska.

Stevens, the longest-serving Republican in Senate history, recently hired lawyers and said the FBI told him to preserve documents. Prosecutors have questioned his friends and associates, including in some cases before a Washington grand jury, according to someone familiar with the case who spoke on condition of anonymity because grand jury matters are secret by law.

The basic case is that when Stevens decided to double the size of his home in 2000, the project was overseen by VECO, an oil services and construction company whose top executives have pleaded guilty to bribing state legislators.

His son, state Sen. Bob Stevens, has been implicated as well.

Meanwhile, in the lower 48, North Carolina's state treasurer has been indicted on drug charges.

Gov. Mark Sanford has suspended state Treasurer Thomas Ravenel after it was announced Tuesday the Charleston Republican had been indicted by a federal grand jury on charges of conspiracy to possess with the intent distribute cocaine.

Of possibly wider significance is the fact that Ravenel was also the state chairman for Rudy Giuliani's presidential campaign, a post he resigned after the news came out. It's something of a Bernard Kerik redux, although a state chairman isn't quite as important as head of Homeland Security.

Ravenel is added to the Hall of Shame; Stevens is on the watch list.

Update: The Ravenel link has updated with a lot more detail. He's charged with buying around 500 grams -- 1.1 pounds -- of coke, but he apparently planned to share it with friends, not sell it.

Here's a lesson in class from Grady Patterson, the longtime Democratic treasurer that Ravenel beat in November:

"It’s my hope for Thomas Ravenel and the people of this state that the charges don’t hold true," Patterson said in a statement.

Conversely, here's a lesson in kicking people while they're down (and, incidently, convicting them before trial), courtesy of the South Carolina Democratic Party:

The S.C. Democratic Party said Ravenel was an "embarrassment." "In only a few months, Thomas Ravenel has gone from spoiled, rich kid buying his way into office to common street criminal," Democratic chairwoman Carol Khare Fowler said.

Partisans suck.

corruption, Ted Stevens, politics, midtopia

Agencies ignore laws Bush challenged

From the Boston Globe:

Federal officials have disobeyed at least six new laws that President Bush challenged in his signing statements, a government study disclosed yesterday. The report provides the first evidence that the government may have acted on claims by Bush that he can set aside laws under his executive powers.

In a report to Congress, the non partisan Government Accountability Office studied a small sample of the bill provisions that Bush has signed into law but also challenged with signing statements. The GAO found that agencies disobeyed six such laws, while enforcing 10 others as written even though Bush had challenged them.

The good news, I guess, is that they're only disobeying a third of the laws in the sample. The bad news is that Bush has issued more than 1,100 signing statements. If the ratio held up, that would be about 400 ignored laws. And the sample didn't include any of the really controversial measures that Bush has objected to.

On the other hand, there is this caveat:

The GAO report's authors made clear that it was beyond the scope of their study to determine whether the federal agencies' failure to enforce laws as written is due to Bush's signing statements, or a mere coincidence. They did not interview individual officials to learn whether the signing statements played a role in their actions.

That said, they cite one example (which certainly sounds like Congressional micromanaging, having to do with the placement of Border Patrol sites in the Tucson area) in which the signing statement said the law was merely "advisory" and the agency in question told the GAO they considered the law "advisory." That clearly suggests that the agency was relying on the signing statement.

And there's this:

Of the other five laws that the study found were disobeyed, two provisions required agencies to get permission from a congressional committee before taking certain actions. In both cases, the agencies notified the committee but acted without their permission -- just as Bush's signing statements instructed them.

Again, that seems like a fairly clear causal link.

And finally, there's just out-and-out ignoring things:

The other three provisions involved the executive branch giving information to congressional oversight committees, including plans for emergency housing following a disaster; budget documents related to certain military operations in Iraq and Afghanistan; and a proposal to fix a problem related to funding for military medical services. In all three cases, the administration did not obey the laws as written.

Given the relatively minor nature of the provisions in question, it's best to temper the outrage a bit. In an organization as huge and sprawling as the federal government, a certain amount of stuff will simply fall through the cracks. It wouldn't particularly surprise me if a third of such obscure items simply got lost in the shuffle.

Still, the concordance between the agencies' actions and the language of Bush's signing statements suggests that there is indeed a link. And if so, it needs to be examined. There can be reasonable disagreements over whether a given law exceeds Congressional authority. But the proper response to that is to challenge the law's constitutionality, not simply ignore the laws you don't like.

signing statements, Bush, politics, midtopia

The RNC e-mail memory hole

The Congressional Committee investigating the White House's use of RNC e-mail addresses has issued an interim report that mostly confirms what was already known -- but does so with some pretty harsh detail. The highlights:

1. The White House originally said only a "handful of officials" had RNC accounts. The actual number was 88.

2. The accounts were used heavily, including for official government business -- in violation of the administration's own directives for complying with the Presidential Records Act.

3. A huge share of the e-mails have been destroyed. There are no surviving records for 51 of the 88 users, and for many of the rest there are no preserved messages from before Fall 2006.

4. Then-White House Counsel Alberto Gonzales knew about the use of the RNC accounts but took no steps to ensure the e-mails were preserved in accordance with the Presidential Records Act.

The committee next plans to retrieve e-mail records from federal agencies to see if they contain any of the missing e-mails; grill Gonzales about what he knew and what he did about it; and pursue a parallel investigation into the use of Bush-Cheney 2004 campaign e-mail accounts by White House officials.

Whether through incompetence or design, the White House appears to have massively violated the records act, destroying a treasure trove of internal communications that should have been preserved and made available to historians. Whether it's something more sinister than that remains to be seen, and may never be known one way or the other. But the committee's plan of action seems reasonable: recover the records if possible and see if other records have been lost through the similar arrangement with the Bush campaign. And grill Alberto Gonzales about yet another massive failure on his watch.

The only caveat is the same one I made a couple of months ago: This should not be allowed to devolve into a fishing expedition. Determining the extent, scope and reasons behind the problem (as well as repairing the damage as much as possible) is reasonable; going on a random tromp through Republican strategic communications is not.

RNC, Gonzales, politics, midtopia

Ruling due this week in $65 million pants case

The poster child of frivolous lawsuits went to trial last week, before a standing-room only crowd.

Meanwhile, besides ridicule, plaintiff Roy Pearson (pictured) may have to endure something a bit more concrete: the loss of his $100,000-a-year job as an administrative law judge.

The boss of Roy L. Pearson Jr., the administrative law judge whose $54 million pants lawsuit has turned the D.C. legal system into a punch line on late-night talk shows, has recommended that the city deny Pearson another term on the bench, D.C. government sources said Thursday.

In a letter to the three-person commission that will decide whether Pearson gets reappointed, District of Columbia Chief Administrative Judge Tyrone T. Butler said Pearson does not deserve a 10-year term to the post, which pays more than $100,000 a year.

It also turns out this isn't the first time Pearson has abused the court system.

In 2005, in his divorce suit, Virginia courts ordered him to pay his ex-wife, also a lawyer, $12,000 for “creating unnecessary litigation” and threatening her and her attorney with disbarment.

Perhaps the judge's ruling will include mandatory mental-health counseling for Pearson.

Pearson, politics, midtopia

The death of "enemy combatant" status?

This happened on Monday while I was on vacation, but it was important enough I want to mention it: a three-judge panel ruling that a legal resident of the United States is entitled to habeas corpus protections and cannot simply be detained without charge on the president's say-so.

A federal appeals court ruled yesterday that President Bush cannot indefinitely imprison a U.S. resident on suspicion alone, ordering the government either to charge Qatari national Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a blow to the Bush administration's assertion that the president has exceptionally broad powers to combat terrorism, including the authority to detain without charges foreign citizens living legally in the United States....

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the panel found.

You'd think that would be obvious, wouldn't you? Especially when you consider the circumstances of al-Marri's case: he was indicted, and then the day before his trial was to start -- and when it was clear that defense lawyers would challenge the admission of evidence obtained under torture -- the government dropped the charges, designated him an "enemy combatant", and moved him to a Navy brig. It was a transparent effort to avoid having to subject the basis of his detention to legal scrutiny.

I'm not defending al-Maari, by the way, or arguing that he is innocent; only that he deserves due process just like any other suspect.

The dissenting judge, a Bush appointee, makes the same mistake as all people who advocate indefinite detention for suspected terrorists:

"Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States," Hudson wrote. "There is little doubt," the judge maintained, that al-Marri was in the country to aid in hostile attacks on the United States.

If there is "little doubt", then put him on trial, convict him and throw away the key. But simply jailing him without a trial is a legal and constitutional travesty.

The opinion is being appealed to the full court, one of the most conservative in the country. Meanwhile, al-Marri remains uncharged and in prison. But the story makes clear the inglorious and failed history of the "enemy combatant" designation. Of the three people it has been used on, one was released rather than given a court trial, one was charged with crimes completely unrelated to the claims that prompted the designation, and the third is al-Marri.

The full text of the ruling is here (pdf). I'll end with some choice quotes and comments.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely....

Exactly. Further, the government has repeatedly acted in bad faith in the case:

Furthermore, the Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the Combatant Status Review Tribunal (CSRT) process ... applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT “upon dismissal” of this case. This memorandum is too little too late....

The Government’s argument that the phrase “awaiting [a CSRT] determination” covers persons confined within the United States yields a strange result. It would mean that Congress assured that Guantanamo Bay detainees were provided with an administrative factfinding process (the CSRT) followed by judicial review in the D.C. Circuit when eliminating habeas jurisdiction over their cases -- but that Congress provided neither any substitute administrative procedure nor any form of judicial review when eliminating the habeas rights of those captured and detained within the United States. The Government offers nothing to indicate that Congress embarked on this strange course, and the legislative history of the MCA renders that theory untenable.

Perhaps because the Government knows that Congress did not intend the CSRT process to apply to persons like al-Marri, the England memorandum neither convenes nor even schedules a CSRT for al-Marri. Indeed, in its motion to dismiss, the Government acknowledges that the England memorandum only indicates “how the government plans to handle al-Marri in the event the courts agree that the MCA divested the courts of jurisdiction.” Thus, the England memorandum makes al-Marri’s CSRT at best conditional -- triggered only “in the event” that we dismiss this litigation. In other words, the memorandum says only that al-Marri might receive a CSRT if this court dismisses his petition because he is awaiting a CSRT, but al-Marri will be awaiting a CSRT only if we dismiss his petition.

This is the sort of tortured and cynical legal posturing that Alberto Gonzales became famous for.

The core assumption underlying the Government’s position, notwithstanding Hamdi, Padilla, Quirin, Milligan, and Hamdan, seems to be that persons lawfully within this country, entitled to the protections of our Constitution, lose their civilian status and become “enemy combatants” if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States. Of course, a person who commits a crime should be punished, but when a civilian protected by the Due Process Clause commits a crime he is subject to charge, trial, and punishment in a civilian court, not to seizure and confinement by military authorities.

We recognize the understandable instincts of those who wish to treat domestic terrorists as “combatants” in a “global war on terror.” Allegations of criminal activity in association with a terrorist organization, however, do not permit the Government to transform a civilian into an enemy combatant subject to indefinite
military detention....

Amen.

Finally, I urge you to read the section (starting on page 63) that deals with the president's claim of "inherent authority". After laying out the precedents, the ruling efficiently demolishes the claim starting on page 69. A taste:

In sum, al-Marri is not a subject of a country with which the United States is at war, and he did not illegally enter the United States nor is he alleged to have committed any other immigration violation.... The President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.... we can only conclude that ... the President claims power that far exceeds that granted to him by the Constitution.

The dissent by Judge Hudson begins on page 78. It relies heavily on the Rapp Declaration (pdf) to justify al-Maari's enemy combatant status. He makes much of the fact that Rapp remains unrebutted -- even though the basis of al-Maari's appeal is that the onus of proof is on the government to justify the detention in the first place. In that context, the Rapp declaration is simply the unexamined assertions of a government intelligence official.

The case doesn't spell the end of "enemy combatant" status -- even if upheld by the full appeals court. The opinion notes (starting on page 38) that there are cases where the enemy combatant status may be used -- essentially, when a defendant is shown to have been associated with the military arm of a foreign government and been present in a war zone where U.S. forces were engaged. Indeed, the court argues (though I disagree) that the designation of Jose Padilla as an enemy combatant was justified because of this. In my view, Padilla never took up arms against the United States on a battlefield; thus he wasn't a soldier, and thus not a "combatant." He deserves a vigorous criminal prosecution, but not military detention.

What it does do, however (assuming the ruling is upheld) is spell the end of the arbitrary use of that designation based solely on the president's say-so.

On a more general level, the ruling provides a clear and legal argument structure for why terrorism is largely a criminal problem, not a military one. At base, it says that someone associated with a terrorist organization should be treated as a criminal, not a combatant -- with all the rights and limitations that entails. Indeed, it argues that such a person cannot be subjected to military justice. I've long argued the same, and I'm confident that eventually jurisprudence will reach the same conclusion.

And finally, Bush appears to be doing for presidential power what he has already done for neo-conservatism -- that is, set back by 20 years a cause he claims to champion. In the case of neo-conservatism, his execution of the Iraq invasion and occupation has discredited the entire idea to the point that "neo-con" is an insult. In the case of presidential power, his constant and aggressive pushing of the envelope has triggered a series of Congressional actions and court rulings that have put firmer limits on executive power than existed before. I'm all for clear lines, but I would be very wary about having Bush on my side in any sort of political or legal argument. The man is poison, be it through incompetence or sheer hubris.

al-Maari, civil liberties, terrorism, politics, midtopia

Bush stonewalls, then blames Democrats

I've become a big fan of Dan Froomkin.

President Bush last month complained that the congressional probes into the firings of nine U.S. attorneys were being "drug out . . . for political reasons." White House spokesman Tony Snow yesterday dismissed the issuance of congressional subpoenas to two former White House aides as an attempt to "create some media drama."

But if anyone is to blame for the dragging out of the probes and the drama, it's Bush himself. He and his aides have consistently refused to tell the American people why those federal prosecutors were fired....

If Bush wants this media drama to go away -- and if there is, in fact, an innocent explanation for the firings -- then it's in his best interest to come clean, in public, and sooner rather than later. Why wait for a congressional hearing?

The stonewalling looks like it will have another effect, too -- provoking a constitutional confrontation between the White House and Congress over Congress' ability to subpoena senior aides. This isn't a purely partisan faceoff -- Republican Arlen Specter, for instance, supports yesterday's subpoenas of Harriet Miers and Sara Taylor. If neither side backs down, the validity of those subpoenas could be decided in court.

Meanwhile, Slate is retiring its Gonzometer, conceding Alberto Gonzales' remarkable staying power despite revelations such as these:

Not much good is happening inside the Justice Department, either. Monday's Washington Post revealed that, thanks to Gonzales and Co., a shocking number of the nation's newest immigration judges are a bunch of GOP hacks. Yesterday, Bradley Schlozman, the former U.S. attorney for Kansas City who brought voter-fraud indictments against a liberal group just four days before the November 2006 election, in violation of department policy, wrote to Sen. Pat Leahy, D-Vt., to "clarify" that when he testified 10 times last week that he had been "directed" to bring such indictments by the Election Crimes Branch of the DoJ's Public Integrity Section, he really meant that in fact he had never been directed to do so at all.

The immigration judge story is yet another example of the extent to which the Bush administration has politicized the functioning of the executive branch, in defiance of both tradition and (in some cases) the law.

The Schlozman embarrassment is also just another in a long line of instances where Justice officials (led by Gonzales) said one thing under oath, only to say the opposite later on.

And that doesn't even count the internal Justice Department probe into whether Gonzales tried to influence Monica Goodling's testimony about the prosecutor firings.

The prize for Gonzales' and Bush's steadfastness: continued embarassing revelations, destruction of Bush's political relevance and a dysfunctional Justice Department. Yay team!!

Gonzales, politics, midtopia

"Surge" is complete

The full contingent of U.S. reinforcements for the "surge" in Iraq arrived today.

Now the surge -- and assessments of its effectiveness -- will begin in earnest.

Two reasons for pessimism:

the additional troops bring the total U.S. forces here to about 165,000, the most ever. But when put in the context of all U.S. and foreign coalition forces in Iraq, the extra troops bring the number roughly to where is was for most of 2004 and 2005, when the coalition fluctuated between 161,000 and 183,000 troops.

So while everyone agrees we need more troops, this isn't a meaningful increase.

Now, that ignores the continued build up of Iraqi forces. But that's the other reason for pessimism:

U.S. military officials have complained that the surge got off to a slow start because Iraqi police and army units performed poorly and Iraqi officials did not provided all the units they had promised. Many of the units also are considered infiltrated by Shiite militias.

The surge simply cannot work with U.S. troops alone.

And, of course, there's the political dimension -- a third reason for pessimism:

In addition, the Iraqi government and parliament have not delivered on what U.S. officials believe are the most important elements of the new strategy -- the political reconciliation measures. There has been little or no apparent progress on key issues such as dividing the country's oil revenues, reforming the constitution, readmitting more members of Saddam Hussein's banned Baath political party to public jobs and scheduling provincial elections.

Stuff like this is why I remain in the "hope it works, while suspecting it won't" camp.

Expect a bloody summer and a politically explosive fall.

Iraq, politics, midtopia