Bush's Congressional end-around

Apparently Kerry won't get his scalp after all. From Fox news (pun intended):

President Bush named Republican fundraiser Sam Fox as U.S. ambassador to Belgium on Wednesday, using a maneuver that allowed him to bypass Congress where Democrats had derailed Fox's nomination.

Democrats had denounced Fox for his 2004 donation to the Swift Boat Veterans for Truth. The group's TV ads, which claimed that Sen. John Kerry exaggerated his military record in Vietnam, were viewed as a major factor in the Massachusetts Democrat losing the election.

Recognizing Fox did not have the votes to obtain Senate confirmation, Bush withdrew the nomination last month. On Wednesday, with Congress out of town for a spring break, the president used his power to make recess appointments to put Fox in the job without Senate confirmation.

This means Fox can remain ambassador until the end of the next session of Congress, effectively through the end of the Bush presidency.

Okay, my bad; I should have seen that one coming. I just didn't consider that Bush would so blatantly ignore the Congress he has to work with for the next two years. Stuff like this will just make it that much more difficult to get other nominees approved, or get cooperation on the rest of his agenda. If your viewpoint is that Congress wouldn't cooperate anyway, fine. But I'm just not sure that installing Fox as ambassador to Belgium was so important that it was worth the cost.

We can also expect to see this sort of maneuver a lot more frequently in the months ahead, as Bush's term grows shorter and shorter and Congressional Democrats find reasons to drag their feet on many of his nominees, particularly judicial ones, in hopes that a Democrat will win the White House in 2008 and be able to fill those positions.

Is this legal? Yes. Have other presidents done this? Yes. But it's worth noting that the original point of recess appointments was simply to allow the machinery of government to function when Congress was out of session. It was never intended to be a way for the president to simply ignore the confirmation procedure.

Bush is not the first offender, and probably not the worst (though he has used recess appointments at a higher rate than Clinton); but that doesn't mean it's okay. If you respect the respective roles assigned to each branch of Congress by the Constitution, then presidents should only use recess appointments for the originally intended purpose. The equation changes a bit if you have an obstructionist Congress that refuses to confirm most presidential nominees. But that's not the case here.

As noted, the price will be paid politically. Whatever Bush's agenda is for the next two years, I think we can kiss most of it goodbye. Not for this one act, but for the attitude displayed by myriad similar acts over the past six years. Congressional Democrats may be gunning for Bush after six years of being walked on; but Bush is helping them dig his grave.

Update: I failed to point out that Fox wasn't the only recess appointment Bush made. He also made two fox-in-the-henhouse appointments: Susan Dudley, an opponent of government regulation, as White House regulatory czar; and Andrew Biggs, a supporter of Social Security privatization, as deputy Social Security commissioner. The latter appointment was also a direct slap at Congress, since Biggs' appointment had been rejected by the Senate in February.

The link notes that this is apparently the first time a president has made recess appointments during such a short recess, but otherwise this particular power has been broadly interpreted by presidents since the dawn of the Republic.

Congress does have one minor response: They can refuse to pay the recess appointees. But if the appointees are willing to serve for free, there's not much else Congress can do except fume.

recess appointment, Sam Fox, politics, midtopia

Yet another McCain gaffe

Really, I'm not trying to pick on the guy. But he just keeps doing dumb things.

After claiming that parts of Baghdad were safe enough to walk around in, John McCain decided to prove his claim by flying to Baghdad and doing so, touring the Shorja market in the central part of the city.

"Never have I been able to drive from the airport, never have I been able to go out into the city like I did today. The American people are not getting the picture of all that is happening here," McCain said.

Wow. A U.S. senator is able to stroll the streets of Baghdad. Are things really that safe?

No.

NBC’s Nightly News provided further details about McCain’s one-hour guided tour. He was accompanied by “100 American soldiers, with three Blackhawk helicopters, and two Apache gunships overhead.”

He also arrived in an armored Humvee and wore a bullet-proof vest the entire time. I don't know what American cities he frequents, but I don't think any of that is standard procedure for most places in this country.

Now in one sense, the comparison is unfair, because he's an American VIP and thus a target of high interest to insurgents, and his point was more about what ordinary Iraqis have to deal with. George Clooney needs bodyguards to walk down a street in the United States; you and I don't.

Even by that standard, however, McCain's claims seem more fantasy than fact. Even while he was there, Iraqis disputed his assessment:

Amir Raheem, 32, a floor carpeting merchant at the Shorja market, disagreed with the upbeat assessment of the congressional visitors. "Just yesterday, an Iraqi soldier was shot in his shoulder by a sniper, and the day before, two civilians were shot by a sniper as well," he said.

He said Sunni insurgents routinely clashed with Shiite militiamen or with Iraqi soldiers and policemen in the area. "Everybody closes their shops by 2:30 p.m.," Raheem said.

Although the congressional delegation reported seeing crowds of Iraqis shopping in the market, Raheem said the number represented a sliver of the customers he used to see. "It is not even 10 percent of our work before the bombings, because people are afraid to come," he said.

Worse, he said, the closure of the main street by barriers has affected his business. If it was so safe, he said, "let them open the street, for the market has died since they put them there."

The snipers vacated the area when McCain's security phalanx visited. But the next day, they were back. Residents say they kill at least one person a day, on average.

Snipers: another thing you don't routinely encounter in American cities.

The surge seems to be producing some good results, though much of it is from such heavy-handed measures as barring car and truck traffic from busy streets to prevent car bombings. But McCain's assertions go so far beyond the bounds of what might be considered reality that you have to wonder just how firm is his grasp on that reality.

Iraq, McCain, politics, midtopia

Dems show spine, but judgement is another matter

Ratcheting up the pressure on the White House, Sen. Harry Reid has co-sponsored a bill that would end funding for the Iraq war within a year.

Reid announced that he had teamed up with Sen. Russell Feingold, one of the Democrats' strongest war critics, on legislation to set a deadline of March 31, 2008, for completing the withdrawal of combat forces and ending most military spending in Iraq.

For his part, President Bush blasted the Democratic strategy, even as the military sped up redeployments to Iraq -- an example of how difficult it is to sustain current troop levels in Iraq, much less sustain the entire surge, which is only 40 percent complete at the moment.

Reid is pursuing a two-track strategy here, because Congress is also debating a compromise funding bill in preparation for Bush's expected veto of the recently passed measures. The compromise would dispense with timetables but include nonbinding calls for troop withdrawals to begin.

Republicans call Reid a hypocrite, because in November he said "We're not going to do anything to limit funding or cut off funds" for the war.

Reid, however, has his own explanation:

Reid had previously opposed setting a firm end date for the war, a stance he has backed away from in recent months as others in his party moved to increase pressure on Bush. He officially converted after visiting wounded soldiers last week at Walter Reed Army Medical Center.

"Talk about a way to be depressed," Reid said yesterday in a talk-radio interview with liberal host Ed Schultz. "The American people, I repeat, have to understand what is happening. It is not worth another drop of American blood in Iraq. It is not worth another damaged brain."

You can debate whether that's a good rationale, but at least he's got one.

And frankly, that's just a distraction. Because this move is a part of the complex dance between Congress and the White House over Iraq. This is, quite simply, an escalation of that dance because Bush has refused to accept the timetables in the recently passed funding bills.

I think it's fair to say that where contrary views are concerned, Bush generally only responds to 2x4s upside the head. With this move, the Dems are contemplating supplying just such a piece of lumber. Bush won't accept timetables? Reid's response is "Fine. No timetables, no money at all."

Is Reid cutting off funds for the troops? He would say no: Congress has passed the necessary funding bills. If Bush doesn't like the strings, whose fault is that? The president would apparently rather not have any funding than have funding with strings attached. That's his choice, but he can't say Congress refused to give him money.

So it's a toss-up who would deserve the blame for a lack of money: Bush for vowing not to accept any strings on the money Congress gives him, or Congress for refusing to give him money without strings. This fight will be won on public opinion grounds: The winner will be the side that the public blames the least.

Constitutionally speaking, I think Congress is in the stronger place here: it's up to them to determine the broad outlines for conduct of the war, and up to Bush to carry out the mission within that outline.

Politically speaking, though, the president might have the upper hand. While Democrats can cut off funding simply by refusing to act, there's not much political support for an immediate aid cutoff. So a funding bill of some sort will be passed. Further, there's probably not enough support in Congress to actually pass the Feingold bill, so Reid's co-sponsorship of it is something of an empty threat. At best it's yet another sign of hardening Democratic resolve on Iraq -- a signal to Bush that there are more and worse fights down the road, and he had better start planning according.

Some side notes:

1. There are infinite wrinkles in this little game. Congress could, for instance, pass a temporary funding bill with no strings attached, allowing the larger ballet to stretch out for months and holding the threat of a funding shutoff as a constant cudgel over Bush's head.

2. I think the $20 billion in pork that went into the funding measures is going to do more damage to the Democrats than whether Harry Reid flip-flopped. I recognize that pork greases the wheels of Congress. But $20 billion was simply a ridiculous amount of money. A couple of billion would have been more reasonable.

3. Political timing plays a role here. Much of what is done now will be forgotten by the time the 2008 elections roll around. And for those elections, both parties in Congress want Iraq off the table. For the Democrats, beginning an exit from Iraq would be a feather in their cap with their antiwar supporters. It would also make the 2008 election more about domestic issues, a perennial Democratic strength. Congressional Republicans, for their part, would like Iraq to be a nonfactor as well. It's a drag on their poll numbers on its own, and also serves as a direct and highly visible link to an unpopular lame-duck president. Republicans will let Democrats take the rap for putting a halt to it, but unless things in Iraq improve rapidly they won't work too hard to thwart the process.

4. Many of the people criticizing the Dems for doing this are the same ones who called the Dems "spineless" and "unwilling to simply yank funding", and called the timetable bills "meaningless" and "symbolic." Note the rhetorical win-win there: If they refuse to pull funding, they're cowards engaged in mere "symbolic" acts; if they pull the funding, they're undercutting the troops, encouraging terrorists and playing politics with our soldiers' lives. The only acceptable course is to keep giving Bush what he wants. Bleh: partisan logic makes me nauseous.

As it turns out, the Dems were not only serious but they have spines as well. Whether that spinage is being used in a good cause is, to me, the proper area for debate. I think as a negotiating tactic, Reid's move is just fine. But I think Bush's surge needs time to show it can work, so any bill that simply yanks funding immediately is a poor idea.

As a compromise, Congress should consider a "clean" bill that funds Iraq operations through the end of summer. That gives the surge time to work, but forces Bush to come back and request another installment after the August recess. At that point we'll have a good idea of whether the surge is working and sustainable, and thus be able to make some hard decisions on continued funding.

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

Thin on the ground

I'll put up several posts later today, but in general posting will be light this week. It's spring break for my daughters' schools, so I'm going to be home playing with Barbies, going to the zoo and other parental things.

I'll make sure to keep my picks list in the sidebar updated, so feel free to check out the fine posts I've highlighted there. And I'll be back up to my usual posting pace next week.

politics, midtopia

Three senior White House aides leaving

The Wall Street Journal calls it "routine turnover," but the timing is interesting.

Peter Wehner, the head of strategic initiatives, and political director Sara Taylor are expected to be heading for the White House exits soon, according to a person familiar with the situation. Barry Jackson, a longtime aide to Karl Rove, also is thought to be leaving soon.

A WaPo profile of Wehner supports the idea that it's just routine. ""I've been here six years, and there was just the sense that it was time to go. We've been through a lot," Wehner said in an interview. "If you're not going to stay through to the end, you have to figure out when to get off the train."

But while that may be the underlying reason, the particular timing may be due to the fact that being in the Bush administration is just not much fun anymore.

Although none of those leaving says so publicly, it has been an especially exhausting presidency, one in which many on the inside have grown frustrated by the political and policy setbacks of Bush's second term. Some aides look to the remainder of the administration and see more gloomy times.

Barry Jackson has been a subject of scrutiny amid questions about White House officials' heavy use of outside e-mail accounts to conduct politically sensitive communications. And Sara Taylor had at least a guest star role in the prosecutor firings. One of her deputies, Scott Jennings, has a subpoena with his name on it awaiting the outcome of negotiations with the White House over whether and under what conditions he and five other senior aides will talk about the dismissals.

Meanwhile, over in La La Land, Alberto Gonzales again defended his conduct. Stating "I believe in truth and accountability," he said he had not resigned because he was "fighting for the truth."

Hmm. So it was in the service of truth that he lied to Congress? It was because he places truth on a cherished pedestal that he's had to revise his statements several times to account for inconvenient facts? It's because he holds truth (and accountability) dearer than life itself that he has refused to, in fact, be held accountable?

Got it.

politics, midtopia

Religion and politics

They often make strange bedfellows. But some mixtures are more toxic than others.

You've probably heard about James Dobson telling U.S. News & World Report that he didn't think Republican Fred Thompson was a Christian.

That was silly enough. But following Thompson's angry rebuttal, the clarification was even more obnoxious.

Focus on the Family spokesman Gary Schneeberger said Dobson "use[s] the word 'Christian' to refer to people who are evangelical Christians."

Oh, yes, that makes it all better. In Dobson's formulation, 90 percent of the Christian faith -- Catholics, Lutherans, Presbyterians, Methodists, Anglicans, what have you -- aren't actually Christian. How charming.

What you might not have heard about was something that took place at the same time: 40 members of Congress calling for a "prayer wall" around the United States.

Mr. Forbes and about 40 other members of Congress from both parties and 19 states will gather outside the Capitol today at noon to issue what they are describing as a call to bring "America back to prayer."

The group has even set up a web site where people can sign up for five-minute slots to pray for the United States.

There's plenty to comment on there. Particularly this:

"If we have several thousand people praying for five minutes for the future of our country, that creates a spiritual fire wall around America that is pretty significant," he said.

"Spiritual fire wall"? Besides sounding goofy, this seems like really bizarre theology, conflating religion with nationalism. What part of the Christian faith would lead one to believe that God would favor the United States over, say, Belgium or Italy or India or Singapore? It's like praying for a sports team to win: it cheapens and distorts the very idea of prayer.

That said, the reaction by Americans United for the Separation of Church and State was completely over the top:

Said the Rev. Barry W. Lynn, Americans United executive director, “Lawmakers should stick to their constitutional duties and leave religious decisions to individuals. Congressional meddling in religion is an affront to the First Amendment principle of church-state separation. Religion is too important to become a political football.”

Their weblog went further, stating: "For lawmakers to call Americans to their knees and insist that religious worship is the only way to solve our many problems is insulting, divisive and, frankly, unconstitutional."

Excuse me?

American citizens don't give up their right to free speech when they get elected to Congress. They are as free as you and me to express their opinion on any subject whatsoever, including belief.

What they are not free to do is use their office to compel compliance, or use the levers of government to promote their faith. But the group has not attempted to do so; they have simply expressed their view that the country needs our prayers.

Americans United is laudably vigilant on church-state separation issues. But their willingness to declare simple speech unconstitutional is, frankly, more violative of the Constitution than the behavior they decry. And their shrillness on this incident suggests a religious intolerance that is the mirror image of what they oppose.

Criticize what members of the Prayer Caucus say. But do not deny them their right to say it.

religion, politics, midtopia

Concealed carry: no big deal

A new study of Minnesota's liberalized concealed-carry law revealed no positive effect on crime.

Violent crime has risen 13 percent in the three years since the law took effect.

Firearm injuries and deaths have doubled.

There was only one instance of a permit holder using the gun under the "lawful and justifiable" provision -- and it didn't involve stopping a crime or self-defense.

So it seems pretty clear that the law isn't helping fight crime. But nor has it turned into the Wild West. Of 42,189 permit holders just 174 have been involved in a crime, only 23 of which involved a pistol. While that debunks the assertion of some supporters that "no permit holder has ever been involved in a crime" -- an assertion that is statistically ludicrous anyway -- it doesn't show rampant vigilantism either.

Whether you think the law is a problem depends on how closely you tie the rising crime and injury rates to the concealed-carry provision, and what weight you give to the various factors. To me, it's mostly a wash. I didn't feel unsafe before the law; I don't feel unsafe now. The most irritating part is constantly being confronted with those big, legislatedly ungrammatical signs warning that Company X "bans guns in these premises." Given the number of such signs, we probably could have saved a lot of money by requiring instead that businesses voluntarily opt-in with a sign that said "Company X welcomes concealed weapons."

gun control, Minnesota, politics, midtopia

Meningitis vaccine puts health before profits

It's not as simple as that, but the math is pretty stark. GlaxoSmithKline, which spent decades and more than $400 million developing a meningitis vaccine, expects to sell it only in Africa, and at a price that will never cover the cost of development.

As the story notes, this is not an entirely selfless act. Some of it is PR, attempting to repair the damage done by a lawsuit over AIDS drugs a few years back. Some of it is marketing, establishing a presence in markets where GSK may hope to sell other drugs down the road.

Nor is it a solution to finding cures for "neglected" diseases -- illnesses that occur solely in the developing world, and thus have no rich-nation market that can be charged higher prices to pay for the development costs. Companies cannot be expected to routinely write off $400 million for the global good.

But it is a sign that pharmaceutical companies are waking up to the complex world they operate in, and that profit motive is not the only valid consideration for their research efforts. GSK is doing an extraordinary thing, and millions of lives will likely be saved because of it. Good for them.

GlaxoSmithKline, meningitis, Africa, health care, politics, midtopia

Political profiling?

Somehat apropos to the prosecutor firing flap, a study updated last month by University of Minnesota graduates (and now communications professors) Donald Shields and John Cragan uncovered an interesting data point: The Justice Department has investigated or indicted seven times as many Democratic elected officials as Republicans during the Bush administration. That's out of a pool of officials that is 50 percent Democratic, 41 percent Republicans and 9 percent independent.

Dig a little deeper, and that startling number only holds true for local officials. There's no apparent bias in investigations of statewide and federal officeholders, and overall Democrats get investigated four times as often, not seven.

The researchers postulate that media scrutiny explains the difference. Investigations of prominent officials get attention and thus must be more defensible; investigations of local officials tend to fly under the radar, being covered in a fragmented fashion by local press with no reference to the overall picture.

It would be instructive, of course, to run the same numbers for previous administrations. A certain amount of bias is almost unavoidable, given the political nature of U.S. attorney appointments. But a sevenfold (or even fourfold) difference certainly seems excessive at first blush.

Before jumping all over this factoid, however, perhaps some skepticism of the methodology is in order. David Frum has a go at debunking the study, citing Michael Smerconish, a columnist at the Philadelphia Inquirer who claims the "study" was little more than a tabulation of Google search results.

But his criticisms, while worthwhile, don't do a very good job of explaining why an essentially random search method would come up with seven times as many investigations of Democrats as of Republicans. He makes a good case that the methodology probably misses or miscounts cases; he offers no reason to think that those missing cases would involve disproportionatly Republican defendants.

But don't stop there. A much more thorough debunking is available over at Stubborn Facts, including a reply to Smerconish by the study's authors.

All in all, I'd be skeptical of the claims. The methodology clearly has some holes in it, starting with the rather nonrigorous definition of "investigation". That did not stop the authors from making broad claims based on the data, which should raise alarm bells about their credibility -- because either they don't know how flawed the data are, or they don't care. There might be a kernel of something here, but it requires some serious fleshing out and analysis before we can state anything conclusive.

(H/T: The Moderate Voice)

U.S. attorneys, politics, midtopia

Sampson on the spot

This morning I got to watch a portion of the Congressional testimony of Kyle Sampson, the former chief of staff to Alberto Gonzales. I recommend finding the time to view parts of it yourself, because you get a sense of the actors far better than anything you'll get from a news summary or even a quality blog such as this one.

YouTube has tons of video to choose from.

Sampson came across as sincere and convincing, for the most part, though he seemed like a guy who was given far more responsibility than he could handle. He said "I don't know" or "I don't recall" a lot, but that's normal and prudent. He was particularly convincing when he flatly denied that the firings were related to ongoing investigations or other purely political considerations.

His main meme was clear: the firings were legal, but perhaps poorly handled. And the response to Congressional questioning was totally botched, which was why he resigned.

Fair enough, but there were plenty of troubling details that senators of both parties kept bringing up. Orrin Hatch pitched softballs, but Jeff Sessions sharply criticized the whole affair.

Some of the more notable points raised:

1. While saying the firings were based on performance, he acknowledged that the process was not "scientific nor extensively documented." Which led several senators to ask just what criteria were used to select these particular attorneys for removal.

2. He said Lam was criticized for her lack of immigration prosecutions. Then Sen. Diane Feinstein read a February 2006 letter from the Justice Department praising Lam for her immigration work in (I think) 2005, with prosecutions up three or fourfold and alien smuggling down by half. That said, the letter was apparently describing improvements over 2004. So one interpretation could be that Lam was doing a horrible job in 2004 -- when the firing process was already underway -- and her improved performance in 2005 wasn't enough to save her.

3. Sampson later added that Lam was also let go for her failure to go after gun violations aggressively enough, which seemed like a bit of alternate justification after his initial justification was undermined.

4. He repeated several times, under prodding from senators, that Gonzales said various things that were untrue in previous statements to Congress. On March 12, Gonzales said he was "not involved in seeing any memos, was not involved in any discussions." But Sampson said he discussed the matter four or five times with Gonzales and kept him informed. And of course there was the Nov. 27 meeting at which Gonzales approved the firing plan. Gonzales said Sampson didn't share information within the department; Sampson said he did.

5. Sampson said the firings were in the works for two years, as they first compiled an initial list and then waited for the attorneys' terms to expire. But then there was this bombshell:

Sampson also revealed that New Mexico U.S. Attorney David C. Iglesias was not added to the dismissal list until just before the Nov. 7 elections, after presidential adviser Karl Rove complained that Iglesias had not been aggressive enough in pursuing cases of voter fraud.

Not only proof of direct and forceful Rove involvement, but a last-minute addition that undermines the "two year" and "for performance" claims -- since they apparently had no problems with his performance up until that point, and it would seem difficult to properly assess his performance given the hastiness of the addition.

6. Sampson even suggested firing Patrick Fitzgerald in the middle of his prosecution of Lewis Libby. One can only imagine what a firestorm that would have caused. Luckily for all of us cooler heads prevailed, in the form of Harriet Miers. But that's saying something, consider Miers was the one who initially proposed firing all 93 attorneys at the beginning of Bush's second term. When she's considered the cooler head, you've got some trouble going.

So what does it all mean?

Sampson made a strong case that the firings were legal and proper, and at least some of them probably were. Kevin Ryan, for instance, the U.S. attorney in San Francisco, was a devoted Bush loyalist. His removal, everyone seems to agree, actually was performance-based.

But even that case highlights the political nature of the dismissals, because the administration wanted to keep him on because he was so loyal, despite myriad complaints about his performance.

And at least some of the firings, like Iglesias', seem to have no other explanation than politics.

Sampson made a spirited case defending even that practice, saying "the distinction between political and performance-related reasons for removing a U.S. attorney is, in my view, largely artificial." His general argument: if a U.S. attorney lacks political support or the confidence of the President, he cannot be effective.

Legally, he may be right. So far, Congress has not uncovered any criminal wrongdoing, and I don't think they're likely to. The attorneys do, after all, serve at the pleasure of the president. Firing them for sleazy reasons may be sleazy, but it's not illegal.

But ethically and politically, he's dead wrong. Ethically, the firings have undermined the independence, impartiality and morale of U.S. attorneys as a group -- something the attorneys themselves have been rather pointedly telling Gonzales. Politically it's just stupid, because the defense doesn't satisfy the understandable desire to believe our justice system is impartial. This seemed to be something that particularly incensed Sen. Sessions, who opened his statement by saying that he wanted to make clear the justice system worked and the U.S. attorneys were all fine, dedicated public servants, whatever doubts the current scandal may raise in that regard.

Then there's the little matter of lying to Congress. And on that score, I think Gonzales is doomed. His earlier statements have been almost entirely discredited, and his explanations ring hollow. His main defense is that he has since, uh, "clarified" his earlier statements, and his new version of events comports well with Sampson's. Why he considers that a defense, I don't know. Only the most sympathetic reading of his March 12 comments would lead one to say he was merely imprecise or misspoke. Even conservative bloggers have derided his tortured explication of what he meant by "involved", invoking the dreaded Clintonian "that depends what the meaning of 'is' is."

I've said all along that Gonzales should be fired for the totality of his resume, not the prosecutor firings. The true grounds are incompetence -- both in law and in management -- and a willingness to bless things like torture and "enemy combatant" statuses that are grossly violative of clearly written law and basic human decency.

Initially I was simply amused that a relatively minor flap such as this would be what finally brought him down. But Gonzales exceeded my expectations by choosing to lie. It is a fitting capper to the twilight of his tenure: He will be forced to resign because he managed to take a minor embarassment and turn it into a raging disaster.

Gonzales, Sampson, politics, midtopia

Earmark watchdog shuts down

Coming on the heels of the Democrats using $20 billion in pork to buy votes for their war-funding bill, this has me a little bit wary:

The federal agency that tracked pork-barrel spending during the 12 years of the Republican congressional majority has discontinued the practice....

The Congressional Research Service, a nonpartisan agency of the Library of Congress created to conduct research for members of Congress on legislative issues, changed its policy in February -- a month after Democrats took control of the Congress and vowed to curb the number of special-interest projects inserted into spending bills or even reports that don't require a vote.

The stated reason:

CRS said the Office of Management and Budget recently has been taking on a greater role in monitoring earmarks. And with both chambers of Congress this year establishing new guidelines and clearer definitions of earmarks, the agency said its role as a scorekeeper of earmarks is obsolete.

Fair enough, if true. And some of it is. The OMB, for instance, decided to get tough on earmarks back in February. And Congress has indeed passed tougher earmark guidelines.

But the OMB policy is simply that, a policy -- one that can be rescinded at any time. And we have yet to see how the new Congressional guidelines will work -- or if they will work -- in practice. Perhaps we should see how the new mechanisms work before scrapping one that has served us well for 12 years.

Further, while OMB will track earmarks, it won't do earmark research for Congress members the way CRS does -- er, did.

Congressional Republicans make two other good points:

Republicans said they want an independent observer because pork is often in the eye of the beholder and estimates of the amount vary widely....

Mr. DeMint said no other agency or group has the resources, expertise and access to provide Congress with data on earmarks.

Yup.

There's no evidence that Democrats pressured CRS to drop the monitoring. But CRS should reconsider it's decision and continue tracking earmarks for at least another year until we see how the replacement mechanisms hold up.

pork, earmarks, politics, midtopia

Income gap widened in 2005

In case you wonder why the American public isn't all that excited about their economic outlook despite an economy that's doing well on the macro level, here's the reason.

While total reported income in the United States increased almost 9 percent in 2005, the most recent year for which such data is available, average incomes for those in the bottom 90 percent dipped slightly compared with the year before, dropping $172, or 0.6 percent.

So despite what looks like healthy wage gains, very little of it was actually wages. All of the income increase and more went to the top 10 percent. Actually most of it went to the top 1 percent, whose income grew 14 percent.

That explains the following statistics from the article:

1. Both the top 10 percent and top 1 percent have hit income shares not seen since 1928 -- shortly before the 1929 stock market crash and the Great Depression.

2. The top 300,000 Americans -- one tenth of one percent of the population -- earned almost as much as the bottom 50 percent -- 150 million people. On average, each of those 300,000 people earned 440 times as much as one of those 150 million.

And the numbers probably understate the situation:

The Internal Revenue Service estimates that it is able to accurately tax 99 percent of wage income but that it captures only about 70 percent of business and investment income, most of which flows to upper-income individuals, because not everybody accurately reports such figures.

Defenders of the current tax system argue that the problem isn't tax levels -- even though federal income taxes, measured as a share of income, has stayed largely flat for middle-income workers over the past 40 years while dropping by half for the affluent.

They make two main claims:

1. The numbers simply reflect the demands of the global economy, where skilled workers command ever more of a premium and unskilled workers fall behind.

2. The numbers don't count benefits, such as health insurance, that make up a much larger share of total income for poorer Americans than they do for the wealthy.

There is probably some truth to #1, but it's a stretch to argue it accounts for the entire difference. And even if it did, it's not an argument for complacency or acceptance. Extreme income inequality is a hallmark of unstable societies. Too much wealth concentrated in too few hands sparks unrest.

#2 is mostly bogus. The reason health insurance makes up a larger share of worker income is because health costs have gone up sharply. My employer paying 20 percent more for health insurance doesn't leave me better off if my health costs go up that much; it's a wash as far as disposable income is concerned. Never mind that I'm probably worse off because health-care costs also are eating into my take-home pay, in the form of higher premiums, co-pays, deductibles and all the other ways hard-pressed employers are devising to push more such costs on to workers.

While there can be plenty of principled disagreement about what causes the situation and what should be done about, two things seem obvious:

1. The tax system that conservatives often criticize as "punitive" toward the wealthy or successful has turned out to be nothing of the sort. Despite such "confiscatory" measures, the wealthy have increased their share of income -- to the point of hoovering money out of the pockets of the less affluent.

2. Given #1, as well as the gigantic federal deficit and the consequences of extreme income inequality, it makes zero sense to prolong or enhance tax cuts for the wealthy. The estate tax should be retained, and the AMT fixed instead. The cap on Social Security taxes should be removed, and income caps on benefits should be added. Marginal rates should be re-examined. Tax enforcement should be beefed up to capture more of that non-wage income.

Perhaps you think this is somehow a socialist redistribution of wealth downward, ignoring the fact that the current situation is a socialist redistribution of wealth upward, which simply makes no sense.

Dealing with the national debt will require work on both the spending and revenue side of the federal ledger. But as far as the revenue goes, it is only logical to take the most money from those most able to pay. Everyone's second $100,000 should be taxed more heavily than everyone's first $100,000. Doing so will not only restore our federal finances to health; they will head off a building social convulsion that benefits nobody -- especially the rich.

deficit, AMT, class, income, taxes, politics, midtopia

Ballot access hurdles

I've written before about the sort of electoral reforms we should push for to make third parties (and any sort of moderate slate) viable. Whether you support a third-party candidate or or a confirmed Democrat or Republican, fixing these problems shouldn't be controversial: it's a simple matter of fairness in most cases.

One thing I left out of the earlier post was specific examples of ballot-access problems.

For example, here in Minnesota, getting a new party on the ballot requires gathering signatures equivalent to 5 percent of the vote in the last statewide election. For 2008, that means 110,000 signatures. There's a reason no party has ever been recognized using this method since the law was enacted in 1913.

Instead, most third parties run not as a party but as a bunch of independent candidates, who only need 2,000 signatures each -- though they only have two weeks in which to do it. Then they hope that one of their candidates nets 5 percent of the vote, which entitles them to "major party" status the next time around.

At least Minnesota has a back-door option. In many states, such as Tennessee, not only do you need to collect a whole bunch of signatures, but once you get on you don't get your party name listed. Anyone who isn't a Democrat or a Republican is labeled simply "independent."

In Texas, you wait until after that year's state primary elections to start collecting signatures, and then you have 60 days to collect signatures of registered voters equivalent to 1 percent of the vote total in the last election. However, to be an independent candidate you cannot have participated in those primary elections -- either as a voter or a candidate -- and nobody who signs your petition can have done that, either. So in order to get on the ballot, both you and your signatories are locked out of the regular election process that year.

It's not like these are simply old laws that have never been updated. In the current session of Congress there's a campaign financing bill, S936, that has been co-sponsored by Arlen Specter and Richard Durbin. It sets up a public campaign-financing fund for Senate candidates that receive a certain amount of tiny ($5, to be exact) donations. The ostensible purpose is to make it easier for nonincumbents and independent candidates to run for office.

However, Democrats and Republicans need 2,000 such donations. Everybody else needs 3,000.

(To check for yourself, go to Thomas.gov and search for "S936". Then scroll down to Section 505 and read Subsection (b).)

Beyond that you have the usual travails of minor-party candidates: not getting media coverage, not getting invited to participate in debates, etc.

Most of those side effects are market-driven and not properly addressed by legislation. But ballot access is another matter. States have a legitimate interest in setting reasonable requirements to getting on the ballot, to weed out crackpots and prevent ballots from being hundreds of names long. But it's manifestly clear that the current limits go way beyond reasonable. And once on the ballot, candidates should be able to identify themselves by party name and enjoy all the othe benefits afforded their major-party rivals.

Then there's the biggie: the winner-take-all nature of our elections, which encourages people to choose the least objectionable major-party candidate rather than take a chance on a third-party contender. Getting on the ballot is the first step; passing instant-runoff voting is the second.

Again, whatever your political stripe, you should support these efforts. There are some technical hurdles to be overcome, but philosophically we should agree that election laws should treat all candidates equally, and encourage people to vote for the person that best reflects their viewpoint, not try to game a system rigged to favor the two major parties.

ballot access, elections, politics, midtopia

McCain stumbles again

That smell is John McCain's presidential campaign crashing and burning.

First there was "I'm not sure what I think, but I'm certain I agree with the president."

Now there's McCain on Iraq, in which he says something dumb and then, when confronted with reality, backtracks.

Yesterday, Sen. John McCain (R-AZ) told CNN that that President Bush’s escalation in Iraq is going so well, “General Petraeus goes out there almost every day in an unarmed humvee.” On Monday, he told radio host Bill Bennett that there “are neighborhoods in Baghdad where you and I could walk through those neighborhoods, today.”

The bit about Baghdad being safe was simply fatuous. But even his claim about Gen. Petraeus is wrong; the good general doesn't go anywhere except in an armored Humvee.

Some Democratic partisans have suggested McCain has endangered Petraeus' life by tipping off insurgents to his vulnerability. The lack of such vulnerability aside, the argument is silly. Anyone setting out to kill Gen. Petraeus would certainly figure out what kind of vehicle he drives.

But McCain was simply wrong. And foolish. And then he made it worse by attempting to deny he had said it.

McCain really isn't to be taken seriously; he's been wrong and alarmist and weak-spined on so many things over the last couple of years that he's going to get tied in knots. If Republicans nominate him they'll essentially be ceding the presidency to whomever the Democrats put up.

McCain, politics, midtopia

Gonzales deathwatch

Add Rep. Pete Hoekstra, R-Mich., to the growing list of conservatives and Republicans who have criticized Alberto Gonzales' handling of the prosecutor firings.

(Parts of the list are here, here and here).

Compare that to the number of Republicans who have defended him: zero.

All this comes amid what one former Justice official describes as "open warfare" within the Justice department, something I commented on a couple of days ago.

At some point Gonzales will have to go simply to keep the Justice Department from imploding -- if it hasn't already.

Gonzales, politics, midtopia

Kerry gets a scalp

Unexpectedly, the White House has withdrawn ambassador nominee Sam Fox, A Republican money man who was harangued by Sen. John Kerry earlier this month for helping fund the Swiftboat Veterans for Truth.

At the time, Fox's confirmation was considered a sure thing. But apparently too many Democratic senators decided Fox wasn't apologetic enough (indeed, he wasn't apologetic at all).

It's hard to feel bad about this. Yes, a president should generally have the right to put anyone he wants into appointed positions, such as ambassadorships, unless they're clearly unqualified. On the other hand, if one is going to fund outrageously partisan organizations, perhaps one should not expect to be confirmed in any post requiring the approval of your victims.

Sam Fox, Kerry, politics, midtopia

The Equal Rights Amendment lives!

This feels a bit time-warpish, but Congress may try to re-pass (and then urge the states to ratify) the Equal Rights Amendment.

Oh, joy. I always get excited at the prospect of more Phyllis Schlafly (pictured) on my television.

On the one hand, why not? On the other hand, it's arguable whether such an amendment is even necessary any more, given the current culture and the fact that many states already have laws against gender discrimination.

I do think that some of the "con" arguments advanced in the article are pure scare tactics, however -- like the one that says the ERA would require abortions be legal.

I also like how Schlafly has simply updated her list of bogeymen. In the 1970s she said the ERA woud lead to women being drafted and unisex bathrooms. This time around, it will "compel courts to approve same-sex marriages and deny Social Security benefits for housewives and widows."

Okay, Phyllis. Sure.

Update: Schlafly, in an appearance at Bates College in Maine, was in full cry, calling intellectual men "liberal slobs" and saying feminism is "incompatible with marriage and motherhood." She went on to argue that women should be prohibited from working in traditionally male jobs such as firefighting or construction, thanks to their "inherent physical inferiority." But the topper was when she dismissed the whole idea of marital rape. "By getting married, the woman has consented to sex, and I don't think you can call it rape." (H/T: The Debate Link)

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