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

Immigration, then and now

For an example of why immigration is a thorny problem, consider the town of Lindsay, Calif.

The packing houses here in the heart of California’s citrus belt are generally hopping the first week of February. In a normal year, the two LoBue Bros. plants would be open 50 to 60 hours a week, employing 230 workers and processing up to 7,000 bins of oranges. But after last month’s freeze, the third since 1990, LoBue is operating at quarter speed. One plant is shut down, and the other is running just 20 hours a week. About 60% of the employees are off work.

After the first of March, there will be a brief spurt of activity, when agricultural officials determine which remaining oranges are frost-free and good enough to go to market. But by mid-April, when the good fruit runs out, all activity, from picking to trucking, will stop, and there will be no more work until late October. If workers leave town -- and if those who stay are jobless -- the city’s economy will collapse.

Seeking to avert an economic meltdown, officials have come up with an innovative plan to not only address joblessness but to keep the workforce from abandoning the town. Invoking the memory of Franklin D. Roosevelt’s Depression-era Works Projects Administration, the city’s elected officials -- all of whom are Republicans -- are seeking federal aid to put the idle labor force to work on local improvement efforts.

The fact that a large-yet-undetermined percentage of farm laborers -- particularly pickers -- are illegal immigrants does not deter local officials from seeking aid for them. Unlike other parts of the U.S. where undocumented immigration is a divisive issue, in Lindsay it is a matter of economic survival.

One question that remains to be answered in the debate is whether we're willing to see towns like Lindsay get hammered economically -- some to the point of extinction. If not, it drastically constricts our options for addressing the problem.

Meanwhile, I stumbled across this Christian Science Monitor story from a year ago -- a historic example of an immigration crackdown that worked under Eisenhower.

Fifty-three years ago, when newly elected Dwight Eisenhower moved into the White House, America's southern frontier was as porous as a spaghetti sieve. As many as 3 million illegal migrants had walked and waded northward over a period of several years for jobs in California, Arizona, Texas, and points beyond.

President Eisenhower cut off this illegal traffic. He did it quickly and decisively with only 1,075 United States Border Patrol agents - less than one-tenth of today's force. The operation is still highly praised among veterans of the Border Patrol.

How did he do it? First, put someone energetic and competent in charge and insulate them from political pressure:

In 1954, Ike appointed retired Gen. Joseph "Jumpin' Joe" Swing, a former West Point classmate and veteran of the 101st Airborne, as the new INS commissioner.

Influential politicians, including Sen. Lyndon B. Johnson (D) of Texas and Sen. Pat McCarran (D) of Nevada, favored open borders, and were dead set against strong border enforcement, Brownell said. But General Swing's close connections to the president shielded him - and the Border Patrol - from meddling by powerful political and corporate interests.

Next, root out the entrenched interests:

One of Swing's first decisive acts was to transfer certain entrenched immigration officials out of the border area to other regions of the country where their political connections with people such as Senator Johnson would have no effect.

Next, make mass arrests:

Then on June 17, 1954, what was called "Operation Wetback" began. Because political resistance was lower in California and Arizona, the roundup of aliens began there. Some 750 agents swept northward through agricultural areas with a goal of 1,000 apprehensions a day. By the end of July, over 50,000 aliens were caught in the two states. Another 488,000, fearing arrest, had fled the country.

By mid-July, the crackdown extended northward into Utah, Nevada, and Idaho, and eastward to Texas.

By September, 80,000 had been taken into custody in Texas, and an estimated 500,000 to 700,000 illegals had left the Lone Star State voluntarily.

And send those arrested far, far away:

Unlike today, Mexicans caught in the roundup were not simply released at the border, where they could easily reenter the US. To discourage their return, Swing arranged for buses and trains to take many aliens deep within Mexico before being set free.

Tens of thousands more were put aboard two hired ships, the Emancipation and the Mercurio. The ships ferried the aliens from Port Isabel, Texas, to Vera Cruz, Mexico, more than 500 miles south.

Eisenhower's tactics could work today -- if we were willing to accept the resulting economic dislocation; if we were willing to accept the spectacle of mass arrests, detentions and deportations; if we were able to find a modern Gen. Swing and give him the authority, resources and protection he needed; if we were willing to ignore the protests of employers, landlords, shopkeepers and all the others who benefit from illegal aliens; and if we were willing to pay higher prices at the supermarket and elsewhere so that the illegals could be replaced with higher-paid American workers.

Those are the ifs that we need to build a consensus around before any serious action can be taken -- or else we need a president who is willing to take a lot of heat for taking such action before a consensus is reached.

Which may help explain why big issues like this are dealt with infrequently, and rarely decisively.

While you have to admire the results, I don't particularly advocate repeating Eisenhower's approach. The cut-off-your-nose-to-spite-your-face aspect of it is much larger today than it was in the 1950s, when it was still possible to think of illegal aliens as a separate "them" instead of a much more entangled "we". Not to mention the difficulty we may have getting Mexico to cooperate in repatriation efforts.

While I have no problem with mass raids and deportations, they should be tailored to minimize human suffering (families torn apart, for instance) and damage to our own economic interests. And they should be only as large and numerous as our deportation processes can efficiently handle. If we can process 10,000 deportees a month, then that's how many we should arrest. Otherwise we'll end up with huge detention camps, which are neither just nor good PR. A few innocents will inevitably be caught up in the dragnet, and beyond the moral concerns we don't want another "innocent person languishes in jail because of bureaucratic snafus" black eye.

immigration, politics, midtopia

I'm back

The prodigal blogger has returned.... but not from D.C.

Thanks to weather and a couple of computer crashes at the FAA, Our flight to Washington National was canceled less than an hour before it was to depart, leaving us standing at the gate. No other flights could get us into the area in time for the funeral, so we just scrapped the trip and went home.

The next day we cobbled together a four-day getaway to Duluth and the north shore of Lake Superior (a lake so deep that even though the surface is 600 feet above sea level, the bottom is more than 700 feet below sea level).

We stayed at a waterpark one night and a lakeshore cabin for two. We visited some friends of ours, toured the ore freighter William A. Irvin (a sister ship of the Edmund Fitzgerald), took a boat tour of Duluth Harbor and visited Split Rock Lighthouse. We also spent a lot of time on the beach hunting for banded agates and geodes and feeding seagulls.

Also did all the time-honored cabin activities like grilling, playing cards and reading trashy novels.

I'd say I'm tanned and rested, but the north shore rarely gets above 60 degrees this time of year and vacationing with two small kids is rarely restful. But we had fun, and it was great to get completely away from things -- including the Internet -- for several days.

Anyway, it may take a few days for me to get back up to speed with posting. Bear with me, and I hope your summers are off to good starts, too!

Duluth, Minnesota, politics, midtopia

Going to D.C.

Blogging will be pretty light over the next five days. Me and my family are flying to Washington, D.C. for my grandmother's burial, followed by a few days of sightseeing.

The kids are pretty young, so while we'll make a visit to the Capitol Mall I probably won't be able to satisfy my inner political geek and watch a Congressional session. Mostly we'll be visiting things like the National Zoo, Colonial Williamsburg and (if my wife is feeling generous) a Civil War battlefield or two.

We're getting back Wednesday, so look for posting to resume Thursday.

Meanwhile, feel free to treat this post as an open thread if you've got something you want to discuss.

Update: Bumped this to the top of the blog so it wouldn't get lost.

politics, midtopia

A visit to the Creation Museum

Ars Technica visits the Creation Museum. Here's their report.

evolution, science, religion, politics, midtopia

Gonzales no-confidence vote set for Monday

Darn it! I'm going to miss this one:

The Senate will hold a politically-charged vote Monday related to a no-confidence resolution in the embattled Attorney General Alberto Gonzales.

This being the Senate, the Monday vote is actually a vote on whether to hold a no-confidence vote. So assuming it passes, maybe I'll be back in the saddle in time for the actual vote.

Republican leaders are criticizing the vote as politically motivated (well, no kidding). It's something of a no-win for them. A vote against Gonzales would embarass the White House; a vote for him exposes them to the political ramifications of being on record supporting Gonzales amid various unfolding controversies over his performance.

But it still ought to proceed. If a majority of senators have no confidence in Gonzales, that should be made apparent, in as forceful a way as possible. Nothing else is likely to get through Bush's stubborness and make him realize that Gonzales is a liability, not an asset.

Gonzales, politics, midtopia

Robert Bork, hypocrite

This is priceless.

Robert Bork ... is seeking $1,000,000 in compensatory damages, plus punitive damages, after he slipped and fell at the Yale Club of New York City. Judge Bork was scheduled to give a speech at the club, but he fell when mounting the dais, and injured his head and left leg. He alleges that the Yale Club is liable for the $1m plus punitive damages because they "wantonly, willfully, and recklessly" failed to provide staging which he could climb safely.

Judge Bork has been a leading advocate of restricting plaintiffs' ability to recover through tort law.

I'm just speechless.

The Wall Street Journal has the lawsuit documents (pdf) and its own commentary.

tort reform, Bork, politics, midtopia

Another eminent domain outrage

Stubborn Facts has crossposted a Rich Horton interview with Philip Klein, maker of the eminent-domain documentary "Begging for Billionaires."

It contains one of the most absurd uses of eminent domain ever: declaring some of suburban St. Louis' most valuable real estate "blighted" so that the city could seize it and hand it over to a developer as part of a redevelopment plan.

Abuses like this have generated bipartisan support for eminent-domain reform, more clearly spelling out the conditions under which property may be taken. I think the issue is murkier than some purists would like you to believe, but the general principle is sound: the state should be allowed to seize private property only in very limited circumstances and for very limited purposes.

The linked post has much, much more. Give it a read.

eminent domain, politics, midtopia

A gay linguist speaks out

Stephen Benjamin, one of the gay Arabic translators kicked out of the military under the "don't ask, don't tell" policy -- despite a crippling shortage of Arabic speakers in uniform -- has written an essay for the New York Times.

His description of what happened:

My story begins almost a year ago when my roommate, who is also gay, was deployed to Falluja. We communicated the only way we could: using the military’s instant-messaging system on monitored government computers. These electronic conversations are lifelines, keeping soldiers sane while mortars land meters away.

Then, last October the annual inspection of my base, Fort Gordon, Ga., included a perusal of the government computer chat system; inspectors identified 70 service members whose use violated policy. The range of violations was broad: people were flagged for everything from profanity to outright discussions of explicit sexual activity. Among those charged were my former roommate and me. Our messages had included references to our social lives — comments that were otherwise unremarkable, except that they indicated we were both gay.

I could have written a statement denying that I was homosexual, but lying did not seem like the right thing to do. My roommate made the same decision, though he was allowed to remain in Iraq until the scheduled end of his tour.

The result was the termination of our careers, and the loss to the military of two more Arabic translators. The 68 other — heterosexual — service members remained on active duty, despite many having committed violations far more egregious than ours; the Pentagon apparently doesn’t consider hate speech, derogatory comments about women or sexual misconduct grounds for dismissal.

Also, consider this:

My supervisors did not want to lose me. Most of my peers knew I was gay, and that didn’t bother them. I was always accepted as a member of the team. And my experience was not anomalous: polls of veterans from Iraq and Afghanistan show an overwhelming majority are comfortable with gays. Many were aware of at least one gay person in their unit and had no problem with it.

Everyone in Benjamin's unit knew he was gay and didn't care. Which would seem to destroy the whole "bad for morale" argument against gay soldiers, at least in noncombat units.

He also notes the lengths the military is going to to entice new recruits, including lowering recruiting standards and paying higher bonuses and other benefits. He then notes that simply repealing "don't ask, don't tell" could add 41,000 soldiers to the roster. Which approach makes more sense?

(The 41,000 figure, by the way, comes from a 2005 analysis by UCLA law professor Gary Gates).

Benjamin's final paragraph:

As the friends I once served with head off to 15-month deployments, I regret I’m not there to lessen their burden and to serve my country. I’m trained to fight, I speak Arabic and I’m willing to serve. No recruiter needs to make a persuasive argument to sign me up. I’m ready, and I’m waiting.

As I said in my previous post on this, the military's policy on gays has always been asinine. But in this time of war and manpower shortages, it's gone from asinine to indefensible. Pass the Military Readiness Enhancement Act, now.

gay rights, military, politics, midtopia

Berger, assault and earmarks

Ethics-related stories are just tumbling out today, so rather than give each a separate post I'll round them up here.

SANDY BERGER
Sandy Berger accepted disbarment yesterday, giving up his license to practice law after stealing classified documents from the National Archives. Doing so means he doesn't have to answer further questions about his actions there, which undoubtedly will fuel further speculation about what he might have stolen.


STATEHOUSE FISTICUFFS
A Republican lawmaker in Alabama, Sen. Charles Bishop, punched another senator in the head yesterday. He said he was provoked when Sen. Lowell Barron called him a "son of a bitch." "I responded to his comment with my right hand," Bishop said. While expressing regret, he has so far declined to apologize.

Barron denies he said it, and claims it was Bishop who swore at him. His version has some credence, because everyone agrees that the confrontation came during a time when Republicans were angry at Democrats for blocking a Republican bill, and it was Bishop who approached Barron, not the other way around.

Makes you wonder if Bishop was channeling the U.S. Congress in 1856, when a Democrat, Preston Brooks, nearly beat Republican Charles Sumner to death with a cane. Though if so Bishop should probably be very cautious, because while Sumner eventually recovered and enjoyed a long career in Congress, Brooks died a year later of the croup.

In any event, perhaps criminal assault is not the best way to express opinions in the Senate chamber.

Update: We've got video!

SHINING A LIGHT ON EARMARKS
Finally, the Hill details the earmark requests of members of the House Armed Services Committee, and compares it with campaign contribution records. Turns out earmarks are a bipartisan smorgasbord. But the implication of wrongdoing is a bit off, in my opinion. There's no indication that the earmarks were tit-for-tat favors, and it's to be expected that members would seek help for large employers in their district, while large employers will naturally have more employees contributing to a given candidate's campaign.

The main thing this story does is serve as a test: will sunlight actually discourage earmarks? I guess we'll find out.

Berger, earmarks, ethics, politics, midtopia

Another Abramoff plea

When Democrat William Jefferson was indicted on bribery charges earlier this week, it gave the GOP a welcome respite from coverage of their own ethics problems.

But now the honeymoon is over.

Italia Federici, an ally of disgraced lobbyist Jack Abramoff, pleaded guilty Friday to tax evasion and obstructing a Senate investigation into the Jack Abramoff lobbying scandal.

Federici's plea was part of a deal with the Justice Department that two people close to the case said could lead investigators to officials in Congress and the Bush administration.

Federici served as a go-between for Abramoff, who currently is in prison, and J. Steven Griles, a deputy Interior secretary who also has pleaded guilty to lying to Senate investigators.

She also embezzled money from a lobbying group she co-founded -- the Council of Republicans for Environmental Advocacy -- and didn't bother to pay income taxes for three years. Sounds like a real charmer.

Her testimony could implicate Democrats as well as Republicans, of course. But the odds don't favor the Republicans. Besides her distinctly Republican ties, the GOP was the majority party at the time, and lobbyists would naturally have directed most of their efforts -- and bribes, if that was their modus operandi -- at Republicans. So expect this to lead to yet another crop of really bad headlines for Republicans.

Federici, Abramoff, corruption, politics, midtopia

Jefferson pleads not guilty

No big surprise here:

Rep. William Jefferson pleaded not guilty Friday to charges of soliciting more than $500,000 in bribes while using his office to broker business deals in Africa.

Jefferson, D-La., said he understood the charges during the federal court hearing. He was released on $100,000 bond.

This might indicate he doesn't plan to resign, but it doesn't preclude the possibility. Several Republicans initially refused to resign, only to change their mind as they witnessed the political damage to their party, the unlikelihood of their re-election, their diminished political power, and the difficulty in handling the business of Congress while dealing with a criminal investigation.

The real bad news is that his trial isn't scheduled to begin until January. So unless he resigns we've got another six months worth of "Jefferson still in Congress" to look forward to.

Update: Jefferson says the money in his freezer was part of an "http://www.myfoxkc.com/myfox/pages/News/Detail?contentId=3437146&version=1&locale=EN-US&layoutCode=TSTY&pageId=3.3.1">FBI sting operation. This leaves me a bit confused. Let's say he claims he was cooperating with the FBI. In that case we're supposed to believe they gave him the money, then raided his home and arrested him for having it. And if he wasn't cooperating, why did he take the $90,000 and hide it in his freezer?

If Jefferson's lawyer is worth any money at all, he'll tell Jefferson to shut up about the case from now on. Though I hope Jefferson ignores the advice.

Jefferson, politics, midtopia

9/11 bullies

Coyote Angry has a wonderful post on the abuse of the victim card being perpetrated by Ed Root, president of the Families of Flight 93, which is trying to build a memorial at the crash site in Pennsylvania.

Some excerpts:

[Root is] whining because a landowner doesn't want to give away 273 acres of his land to the National Park Service to build a memorial.

I'm truly sorry that innocent people died on that flight and I'm sorry for the pain that has caused their friends and families but I have to tell you: innocent people die every single day and we do not confiscate private property from people in order to build them shrines.

What caught my eye is that Root is trying to assemble 1,300 acres for the memorial.

Excuse me? 1,300 acres? What the heck for? The impact site is the size of a couple of football fields. The memorial design looks nice and all, but it includes a huge amount of space that has nothing to do with the crash except that it lies under the plane's flight path. And a huge amount of land that doesn't even have that much relevance.

I have no problem with him wanting to assemble a big memorial. And I fully understand the Park Service taking the opportunity to create more parkland. But 1,300 acres is a want, not a need.

That said, the land in question is the actual site of the crash. So it's "must-have" land. Because of that, Root claims the landowner is "holding the American people hostage" by refusing to sell. Coyote Angry's response:

No he is not "holding the American people hostage". You are trying to hold him hostage. It's his land, he can jolly well tell you to jump off a cliff if it suits him. Why on earth would he want to try and negotiate any sort of deal with a whiny windbag like you. You'd probably turn right around and look for some reason to sue him as soon as the deal was closed.

Meanwhile, the families have criticized a donation box the landowner has placed near the site, saying it "degrades the memories" of their loved ones. The landowner says he's trying to recoup some of the $200,000 in lost mining income and $10,000 a month in site security costs that being a neighbor to history has saddled him with.

Now, there's plenty of reason to think the landowner isn't exactly an angel. He knows his land is crucial. A memorial negotiator says he wants $10 million for it, not the $500,000 or so they say is market value; his donation box is apparently misleadingly marked, so people think they're donating to the memorial when they put money in it; and the Park Service says the security he's paying for is unnecessary.

Still, the landowner allows people on to his property to visit the site and isn't demanding compensation for lost income and increased security costs. His major crime appears to be that he won't simply sell his land to the family group, preferring instead to deal with the Park Service.

Further, I'm not sure how it's degrading to the memory of the dead to put out a donation box, but it's not degrading to their memory to use them as a club in an effort to strongarm said landowner.

First the $1 billion memorial at Ground Zero, now this. Stuff like this is going to hasten the onset of 9/11 Victim Fatigue.

Flight 93, 9-11, politics, midtopia

Senate bill targets habeas corpus

Excellent news out of the Senate today.

A bill that would allow terrorism suspects access to federal courts to challenge their imprisonment at Guantanamo Bay, Cuba, was approved by the Senate Judiciary Committee on Thursday.

The committee, on an 11-8 vote, advanced a bill that would allow prisoners to protest their detentions through a writ of habeas corpus, considered by many to be the cornerstone of the U.S. judicial system.

Nice as this is, it's sad that in 2007 I find myself writing about a decision to restore a fundamental principle of American jurisprudence.

Ten years ago, if you had asked me whether the United States government would ever imprison people -- citizen or not -- indefinitely without charge and with no right to challenge their detention, I would have laughed out loud. That went against so many laws, Constitutional principles, simple fairness and basic American values that it would have seemed inconceivable.

Today I marvel at the naive hubris of my younger self -- and the unprincipled cowardice that led our elected representatives to so readily abandon such a basic precept of justice.

I look forward to the debate on this. Democrats will try to attach it to the defense spending bill, which if they succeed should make the measure veto proof: Bush is unlikely to veto the defense authorization simply to derail the habeas corpus provision. The biggest question is whether Senate Republicans have the desire and the unity to tie it up.

Let me point out two passages from the link, one illustrative and one simply amusing.

Administration officials and most Republicans say they do not think dangerous terror suspects should have access to U.S. federal courts or other rights guaranteed to Americans under the Constitution.

The fatal flaw in this reasoning is, of course, that the defendants in question are suspects, not proven bad guys. The whole point of habeas corpus is to make sure we separate the guilty from the wrongly held. Bush and "most Republicans" apparently feel they can skip that step. We can't. Any argument predicated on "they're terrorists!" fails, because that case has not been proven.

Second, there was this:

"The great history of our nation is built on having judicial review, on having openness, and we should not out of fear or indifference or whatever turn our back on that great history," the committee's Democratic chairman, Patrick Leahy, said.

"Or whatever"? Way to kill what started out as a pretty good flight of soaring rhetoric, Patrick. Something tells me that 50 years from now, law students won't be quoting that particular utterance.

The bill is expected to hit the Senate floor later this month.

habeas corpus, terrorism, civil liberties, politics, midtopia

The J-Bomb

The indictment of William Jefferson appears to have set off an explosion of activity in Congress, most of it aimed at reviving the moribund Ethics Committee.

The House quickly approved a Democratic motion that makes an ethics investigation mandatory when a member is indicted, then okayed a Republican motion to refer Jefferson's case to the committee to see if he should be expelled.

The vote was overwhelming on the Democratic motion: 387-10, with 15 members voting "present" and 20 not voting. Of the 25 voting either "nay" or "present", 16 were Democrats and nine were Republicans.

Of the 43 members of the Congressional Black Caucus, by the way, only Lacy Clay and John Conyers voted "nay", while three voted "present" and five didn't vote (including Jefferson).

The vote on the Republican motion was only a little closer: 373-26, with 13 "present" and the same 20 members not voting. 13 members of the CBC voted "nay"; three voted "present" and the same five didn't vote.

One of the CBC members voting "present" in both cases was Stephanie Tubbs Jones, the chairwoman of the ethics committee. She and other members of the committee mostly recused themselves from both votes.

So despite concerns that the CBC would try to protect Jefferson, a strong majority of the caucus supported both measures.

As I've said before, the Republican effort is premature, driven as it is by the idea that a simple indictment should lead to expulsion. But the motion merely asks the ethics panel to examine the case and decide if Jefferson should be expelled, so it's not a big problem as is. I imagine the panel will decide "no" unless truly damning evidence emerges against Jefferson in the meantime.

ALLOWING OUTSIDE COMPLAINTS
Separately -- and to more resistance -- the Democratic leadership is pushing a rules change that would let outsiders file ethics complaints against members. Currently only members can file complaints.

That particular rule, by the way, was introduced by the Republican-led House in 1997 after Speaker Newt Gingrich was slapped with a $300,000 fine (to be fair, Democrats supported it, too). It was accompanied by an unwritten "ethics truce" that produced a truly notable result: Only two ethics complaints have been filed in the last 10 years, the most recent in 2004, when Rep. Chris Bell, D-Texas, broke the truce by filing a complaint against Tom DeLay (the other was filed by former Rep. Bob Barr in 2001).

The proposal -- which has not yet been presented to Republicans -- has some House members worried about being inundated by a wave of politically motivated complaints. That's a legitimate concern, but it ignores the Senate, where outsiders are allowed to file complaints without notable hardship for senators. A simple screening process would help weed out frivolous complaints from genuine ones.

CALLS FOR RESIGNATION
Meanwhile, The New Orleans Times-Picayune has called on Jefferson to resign, as have some freshmen Democrats. And a judge froze Jefferson's assets to prevent him from spending or hiding potentially illicit gains.

THE MONEY PROBLEM
If Jefferson truly is innocent, he should stick it out. But if he's guilty -- as seems very likely -- he should resign and spare himself and his party the embarassment. Trouble is, he's not a wealthy man: he may be in a situation where he needs his Congressional salary in order to pay the bills as well as expected legal fees. That doesn't affect the moral dimension, of course, but it may present him with a practical dilemma.

ethics, Jefferson, politics, midtopia

Ann Coulter update

I missed this one by several weeks; my apologies.

Ann Coulter has been cleared (sort of) of voter fraud charges.

I say "sort of" because the circumstances are rather weird.

Coulter's lawyer suggested that Ann put the wrong address down out of concern about a potential stalker -- which doesn't make it legal, by the way.

Then an FBI agent, Jim Fitzgerald, made an unsolicited call to the investigating officer to confirm that he was "working" a stalking incident involving Coulter.

Here's where the trail gets really murky.

As for Coulter's alleged stalker, check this out: Fitzgerald identified him as conservative Christian, rabid anti-Coulter blogger Dan Borchers of coulterwatch.com. Borchers said he remembers talking to two FBI agents about stalking accusations — in 1998.

Told those facts, Fitzgerald conceded that there was no reason to keep "working" the case.

Meanwhile, amid stonewalling by Coulter's lawyer, investigating officer Kristine Villa closed the voter fraud investigation -- without interviewing Coulter, the real-estate agent whose address she used, or any of Coulter's or the agent's neighbors.

To be fair, the poll worker who first reported Coulter's potential crime backtracked on his story somewhat:

Whited, a staunch Republican who once ran for West Palm Beach mayor, told Page Two last year that Coulter dashed out of his polling place when he asked her to write a change of address. He later bragged on a radio show that he witnessed her committing a felony.

To Villa three months ago, however, Whited said Coulter may have misunderstood him and that he may have had a hand in her voting in the wrong precinct.

The FBI is conducting an internal investigation of Fitzgerald's actions. For what it's worth (and it's not worth much), an anti-Coulter site that has been following the case closely (and for which Borchers is a guest blogger) quotes Borchers claiming Fitzgerald is an ex-boyfriend of Coulter's -- but provides no evidence to back that up.

Back in Palm Beach, meanwhile, elections supervisor Arthur Anderson is considering whether to ask the Florida Department of Law Enforcement to look into the case now that the Palm Beach police have closed their investigation.

I certainly hope there will be more to this little saga. Especially now that it has taken a really weird turn.

Coulter, politics, midtopia

Bush looks to his legacy

As President Bush's administration begins winding down to a much-anticipated close, we're starting to see some attempts at legacy burnishing. This is where presidents on the downslope of their time in office propose a series of ambitious or laudable initiatives that they hope will get them remembered as visionaries and big thinkers.

When a president is as weakened as Bush is, the burnishing takes the form of proposals that he never felt merited serious effort or political capital earlier in his administration, and that will not even be seriously considered until the next administration is in office. It's risk-free, pain-free posturing for the history books.

Thus we are treated to the following:

GLOBAL WARMING
Trying to get out in front of the global warming debate, Bush has proposed ambitious global talks to get the world's biggest polluters to cut back on greenhouse gas emissions (full text of his speech is here).

Sounds great. Except that the timeline is for the long-term reduction goal merely to be defined by the end of 2008 -- shortly before Bush exits the White House. The proposal has other weaknesses, but that's the biggie: there will be no pain incurred during Bush's watch, and implementation and enforcement will be the responsibility of his successor.

This is somehow supposed to overcome Bush's record on global warming, including the United States' continued rejection of European proposals to actually take action now and impose mandatory emission caps, his ignorance and dismissal of his own EPA's science, moving to regulate carbon-dioxide emissions only after losing a Supreme Court case (and once again, the regulation won't actually begin until the next administration), cutting back on efforts to monitor global warming, and so on.


AIDS PREVENTION
Next Bush has proposed doubling his program to combat AIDS, from $15 billion over five years to $30 billion. The original $15 billion, you may recall, partly involved shifting around money that had already been budgeted (cutting child-health programs, among other things) as well as a questionable focus on abstinence-only programs and efforts to undermine condom distributions. It was also slow to get going, with most of the spending budgeted (does this sound familiar?) for after the end of Bush's first term. But there was significant new money involved, and the plan did focus attention on the AIDS pandemic.

$30 billion is a real step forward (some quibbling over whether we're already spending that much anyway aside, as well as criticisms that the amount of money designated for HIV treatment is inadequate). But once again the five-year request -- if funded, as expected -- will not take effect until after he leaves office. So his successor will be responsible for coming up with the money to carry out his grand proposal. I think Bush's interest is genuine, but it's also not going to be his problem.

FISCAL RESPONSIBILITY
Bush's plan to balance the federal budget bears fruit in 2012 -- if all of his tax cuts are made permanent, optimistic economic growth projections are met, inflation is ignored and social programs are gutted. Then there are the other questionable assumptions, like relying on hefty revenues from the alternative minimum tax and expecting no Iraq war expenditures after 2009. Never mind the more than $2 trillion in debt he rang up -- if the budget isn't balanced in five years he'll shrug and say, "if only they had listened to me." This from the guy who routinely backloads the pain of his proposals, be they new spending or tax cuts.


IRAQ
Bush seeks to avoid any criticism for "losing" Iraq by giving the cleanup job to the next president -- or presidents, given his comparison of Iraq to Korea.

The gears of government can turn slowly, of course, and as 2009 gets closer, more and more Bush actions will see their launch points moved into the post-Bush era. And there's a legitimate use for the bully pulpit as the end draws near, to try to inspire and influence American policy long past 2008. But as the list above demonstrates, some of Bush's recent proposals are either a) pure fantasy, b) revisionist history or c) things that Bush was unwilling to tackle during his own terms.

Look for even grander proposals in the months ahead.

Bush, politics, midtopia

Democrats do the pork-weasel dance

This is astonishing, both for the brazenness of the tactic and the amount of power David Obey has arrogated to himself:

Democrats are sidestepping rules approved their first day in power in January to clearly identify "earmarks" — lawmakers' requests for specific projects and contracts for their states — in documents that accompany spending bills.

Rather than including specific pet projects, grants and contracts in legislation as it is being written, Democrats are following an order by the House Appropriations Committee chairman to keep the bills free of such earmarks until it is too late for critics to effectively challenge them.

Rep. David Obey, D-Wis., says those requests for dams, community grants and research contracts for favored universities or hospitals will be added spending measures in the fall. That is when House and Senate negotiators assemble final bills to send to President Bush.

Obey says the problem is that there are too many earmark requests, and he doesn't want scrutiny of them holding up the larger bills. Fair enough: 36,000 earmark requests is a lot to slog through.

But not only does his edict directly violate recently adopted rules on earmark disclosure, it sets him up to be the sole watchdog on earmarks. And the side effect (whole point?) of the exercise -- not leaving enough time for the earmarks to be publicy scrutinized -- makes the proposal simply unacceptable.

Just a suggestion here, David, but perhaps the solution to being inundated with earmark requests is for the leadership to put a limit on them -- say, four per legislator per session. That would immediately cut such requests to fewer than 2,000 and force legislators to prioritize them.

In the irony department, several Democrats over in the Senate oppose Obey's power grab, among them the King of Pork himself, Robert Byrd. His reasons are not particularly laudable -- he's mad that he won't find out until the fall which of his pet projects will be funded -- but they suggest that Obey's edict may not survive for very long for reasons that have little to do with ethics.

Tangentially, Robert Novak notes that it's not like Republicans are particularly virtuous on the matter, either. But that doesn't in any way excuse the Democrats, because as the majority party they bear the most responsibility for following their own rules.

The Democrats have to start following the spirit as well as the letter of those rules. Earmarks should be debated when bills are considered, just like Democrats promised. If that is a burden, then cap the number and dollar value of earmarks allowed -- preferably at very low levels.

I've said it before, but I'll say it again: if the Democratic victory signaled a mandate for anything, it was ethics reform. If they want to keep their majority in 2008, they must follow through on that. Overall they've done a pretty decent job. But stories like this demonstrate why constant vigilance is necessary, lest they slipside back into their bad old habits when they think nobody is looking.

Clean it up, guys. Write clear, strict rules and abide by them. Otherwise every charge of "hypocrisy" is justified.


Obey, ethics, politics, midtopia