Justice Department roundup

Three Justice-related stories today:

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

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

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

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

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

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

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

On top of that, he was a coward:

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

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

Schlozman, Ashcroft, Gonzales, politics, midtopia

Cheney secedes from the executive branch

Dick Cheney is a wonder.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cheney, politics, midtopia

More Iraqi tribes agree to help U.S.

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

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

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

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

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

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

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

To quote from a previous post:

It remains to be seen whether that situation will hold, it doesn't address the problem with native Iraqi insurgents, and it's unclear whether it holds relevance for the Sunni/Shiite sectarian violence that has been the prime driver of violence of late. If you believe that AQ is largely responsible for that violence, great; if you believe the violence is more broadly rooted than that, trouble.

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

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

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

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

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

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

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

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

Iraq, politics, midtopia

Major League Baseball still at it

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

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

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

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

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

One can only hope. As I noted last year:

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

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

(h/t: Stubborn Facts)

fantasy baseball, baseball, politics, midtopia

Mercy for Libby?

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

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

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

His concluding lines:

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

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

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

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

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

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

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

Libby, politics, midtopia

Two Republicans face legal scrutiny

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

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

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

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

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

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

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

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

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

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

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

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

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

Partisans suck.

corruption, Ted Stevens, politics, midtopia

Agencies ignore laws Bush challenged

From the Boston Globe:

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

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

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

On the other hand, there is this caveat:

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

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

And there's this:

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

Again, that seems like a fairly clear causal link.

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

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

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

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

signing statements, Bush, politics, midtopia

The RNC e-mail memory hole

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

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

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

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

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

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

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

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

RNC, Gonzales, politics, midtopia

Ruling due this week in $65 million pants case

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

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

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

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

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

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

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

Pearson, politics, midtopia

The death of "enemy combatant" status?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Amen.

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

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

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

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

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

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

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

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

Bush stonewalls, then blames Democrats

I've become a big fan of Dan Froomkin.

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

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

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

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

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

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

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

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

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

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

Gonzales, politics, midtopia

"Surge" is complete

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

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

Two reasons for pessimism:

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

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

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

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

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

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

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

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

Expect a bloody summer and a politically explosive fall.

Iraq, politics, midtopia

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