Nothing Aside

Doing It The Hard Way

Today Kevin Drum raises a good point about this NSA-wiretapping-ignoring-Congress story.  The reason so many Democrats and a good number of reasonable Republicans are upset about this is not the program itself.  Yes, the public is extremely nervous about the word "wiretapping" but that's not totally what this is about because that's not the best term for it.  The program itself is filling a gap where a gap needed to be filled as far as I can tell.  Ultimately, the problem here then, is that the President didn't attempt to get the law changed by what was a pliable Congress in the days and months after 9-11 so that this program would be legal and legitimate.  Instead he dodged Congress.  That is the real story here.

Politically, I think Democrats should make it absolutely clear that what they're attacking isn't necessarily the program itself, but the fact that the president unilaterally decided that he could approve the program without congressional authorization. In the world of 10-second sound bites, that might end up being a difficult distinction to make, but it's worth making it over and over anyway. We're not opposed to cranking up our intelligence efforts, but we are opposed to a president who thinks that a vague and indefinite state of war gives him the authority to do anything he wants.

I hope this distinction can be made.  The White House would like nothing better than to make this another "Democrats are weak on defense and security" story, but it's not about that.  It's about the Bush administration purposely sidestepping Congress in an effort to exert presidential powers that only it believes it has.  There was an easy way to get approval for this program.  The White House instead chose to bull rush Congress in a push for imperial powers in an unending war.

Ignoring Congress

What is happening to our Constitution?  There is clearly a massive fight over power between the branches of government that seemingly only the executive branch is aware of and actively engaged in. Congress needs to stand up for its Constitutionally-mandated role and ensure that the laws that it passes, and the president signs, are actually carried out.  On Friday the President signed the Defense Appropriations Bill that includes the so-called McCain Amendment that reiterates the standards for interrogation that are already in the rules of conduct in the Army field manual.  The White House, and specifically the Vice President's office, have fought this simple declaration of America's rules on interrogation practices as an encroachment on the President's duties to defend America and other grrr!, roar!, patriotic macho stuff.

However, after the Senate voted 90-9, the writing was on the wall and the White House had to back down.  It seemed that McCain had prevailed, what with a huge majority of the public backing his view that torture is wrong and should not be used in interrogations.

But take a look at what the President wrote when he signed the Defense Appropriations Bill on Friday.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Essentially the President is saying that the McCain Amendment isn't worth the paper it is written on since he plans to ignore it anyway.  He will cite his wartime powers and say that the rules do not apply since he is just acting within his authority to protect Americans.  Anyone who stands in his way is weak and doesn't care about the security of our nation.

But when does the war end?  The answer, of course, is that it doesn't.  The war against terrorism is one without any endpoint. We don’t live in a time when war is openly declared and when peace treaties signal the end of hostilities. That will never happen again and the President knows it.  As such he is confident that he can use his war powers indefinitely, thereby ignoring the stipulations of the McCain Amendment.

So what will McCain's response be to the President's boldfaced dismissal of Congress' wishes?  We will have to wait and see on that one.  But I think Congress needs to recognize how much it is getting hosed here.  I'm not a huge fan of the petty, mind-numbing nonsense that goes on in the House of Representatives, but it serves a purpose.  One of its duties is to balance the power of the Executive.  It is time for Congress, and the Judiciary while we're at it, to do their job and look at where we are headed.  It's not a pretty picture.

Liberty Neglected

One of the most fundamental issues in our republic is at the fore of our national political discussion right now: the protection of civil liberties.  We are seeing the issue arise on a number of fronts.  With the news of the NSA wiretaps authorized by the Bush administration based on its own interpretation of executive authority we saw the issue jump to the front pages.

Today there is this AP story about a memo that Judge Sam Alito wrote in 1984 when he worked in the Reagan Justice Department.  It is troubling on a few levels.  First there is the fact that Alito argues that the Attorney General deserves "absolute immunity" for anything he does to ensure national security.  Absolute immunity.  If there were ever a jurist with more blind deference to executive authority, Alito would be hard pressed to top him or her.  With civil liberties being chipped away every day (as the PATRIOT Act is reauthorized in the coming weeks), a judge with such total deference to the power of the president is exactly the wrong person for the job. 

Social conservatives in the Republican base should realize what President Bush is really after.  Alito isn't the nominee that is out to overturn Roe vs. Wade and signal a sharp turn towards social conservatism.  Rather, Alito is just like Roberts as far as his believe in unfettered executive power.  Bush is out to mold a Court that will bow to his every grave pronouncement of the "threat" we face.  Whatever that threat is, of course, depends on the day.  Meanwhile our civil liberties shrink, wither and are smothered.

And don't count on Republicans on the Senate Judiciary Committee to stand up for civil liberties as Republicans in the past used to.  Here is Sen. John Cornyn of Texas giving the clearest summation of today's Republican Party I've heard in a while:

None of your civil liberties matter much after you're dead.

That statement has everything you need to know about the priorities of the Republican party:  fear-mongering and an utter disrespect for the most basic of civil liberties that define our nation. 

A few of our founding fathers might have a thing or two to say about Cornyn's declaration:

They who would give up an essential liberty to obtain temporary security deserve neither liberty nor security.

That's Ben Franklin, of course.  And let's not forget Patrick Henry:

Give me liberty or give me death.

If we forget what made our country great in the first place, what is left?  Certainly our security is of great importance, but if we're secure and have nothing left that originally defined our country as a beacon of liberty, we will have lost.

Liberty And Security Out Of Balance

It's been a bit too long since I last posted and a lot has happened in the meantime.  Most notably, this business with the NSA spying on calls by U.S. citizens without warrants.  I haven't had time to really read all about the issue, but even if I did much of this would be beyond my expertise.  On the surface of it all though, it seems very troubling.

I'm not an expert on FISA or on the full legal history of executive power, but this seems like an overstep.  What's more, the White House seems almost excited about the possibility of picking this fight on what seems like one of the most important issues in our country: the trade-off between security and liberty. 

What the Bush administration has shown over the past five years however, is nothing that would let me think that this is harmless.  This is an administration that has sought executive power without end and in the wake of 9/11 has had that authority unchecked and unchallenged.  It seems only inevitable that some of that hubris would backfire and would ultimately prove to be beyond basic standards of reasonableness. 

It seems that these extra-judicial, post-facto warrants (or even total lack of warrants) fall into this category of the Bush administration declaring itself king and seeing what it can get away with.  This is a fundamental affront to our freedoms as American citizens and to our basic liberties.

Some have argued that there is nothing wrong with these (illegal) searches because they target such and such terrorist or more infamously on Fox News and other conservative talking shops, "a guy whose phone number is in Zarqawi's cell phone".  Any student of the law, or any citizen who has ever taken an interest in the rule of law that governs American society knows this to be a faulty argument from the very beginning.  To argue "I'm OK with the government potentially spying on innocent people because they have nothing to hide" is the first, second and third step towards fascism.  If we are to live up to the ideals that support American patriotism the rule of law must be maintained and civil liberties must not be surrendered.

Another argument in support of the FISA-less wire taps suggests our new threat from terrorism requires new powers for the president and if the legislature can't keep up in responding to the looming, never-ending threat, then the president is free to do just about anything he wants in the arena of foreign policy.  This is nonsense.  When is "war time"?  What is war these days?  When will this war ever end?  The answers are not clear and the Bush administration has taken that as an invitation to gobble up as much of the constitution as possible. 

Meanwhile the president and his spokesman are insisting that these powers to make dubious wire taps were authorized by, of all things, the authorization to go to war with Iraq.  Considering that these wire taps were happening well before that vote occurred, this is a blatantly flawed argument.  But then again, that hasn't stopped this administration before.

I don't know.  There is clearly a lot we don't know about here and probably a lot that has not come out yet.  The radical Hamiltonians in the White House right now seem to have forgotten Ben Franklin's famous quip:

Those who would give up essential liberty for temporary safety deserve neither liberty nor safety.

It seems those in the White House who are defending this abuse of basic constitutional rights have forgotten how quickly our liberty can disappear in the face of overzealous "defenders of security".  For too long the White House has suggested that those who oppose its version of necessary security are weak on protecting America.  They forget, or perhaps refuse to see, that protecting America means protecting our basic civil liberties first and foremost.

Cheney Against The World

There is a great article in the Post today about the battle raging over detainee/torture policy between the Vice President and his aides on one side, and Congress, the Pentagon and the State Department on the other.  It really seems difficult to believe that the Vice President would continue to insist on legalizing torture in certain circumstances when there is almost unified opposition to such a plan.  But I guess when your approval rating is only 19% being popular wasn't a high priority in the first place.

On the other side of the debate are those who believe that unconventional measures -- harsh interrogation tactics, prisoner abuse and the "ghosting" and covert detention of CIA-held prisoners -- have so damaged world support for the U.S.-led counterterrorism campaign that they have hurt the U.S. cause. Also, they argue, these measures have tainted core American values such as human rights and the rule of law.

"The debate in the world has become about whether the U.S. complies with its legal obligations. We need to regain the moral high ground," said one senior administration official familiar with internal deliberations on the issue, adding that Rice believes current policy is "hurting the president's agenda and her agenda."

That quote quite clearly came from someone high up on the 7th floor of Foggy Bottom, if not from Rice herself.  And she's right.  The torture issue is hurting America's image and making her job as top American diplomat much more difficult. 

Then there is this childish move by chose in Cheney's office:

On the issue of the CIA's interrogation and detention practices, this spring Cheney requested the CIA brief him on the matter. "Cheney's strategy seems to be to stop the broader movement to get an independent commission on interrogation practices and the McCain amendment," said one intelligence official.

Beside personal pressure from the vice president, Cheney's staff is also engaged in resisting a policy change. Tactics included "trying to have meetings canceled ... to at least slow things down or gum up the works" or trying to conduct meetings on the subject without other key Cabinet members, one administration official said. The official said some internal memos and e-mail from the National Security Council staff to the national security adviser were automatically forwarded to the vice president's office -- in some cases without the knowledge of the authors.

For that reason, Rice "wanted to be in all meetings," said a senior State Department official.

It's quite understandable that Rice would want to be present for these types of important policy meetings.  Cheney's office already seems to be stretching its long leash a bit too much, and reasonable minds like Rice should be on hand to keep the overzealous Vice President in line.

Cheney's positions are being opposed by other administration officials, including Cabinet members, political appointees and Republican lawmakers who once stood firmly behind the administration on all matters concerning terrorism.

Personnel changes in President Bush's second term have added to the isolation of Cheney, who previously had been able to prevail in part because other key parties to the debate -- including Attorney General Alberto R. Gonzales and White House counsel Harriet Miers -- continued to sit on the fence.

But in a reflection of how many within the administration now favor changing the rules, Elliot Abrams, traditionally one of the most hawkish voices in internal debates, is among the most persistent advocates of changing detainee policy in his role as the deputy national security adviser for democracy, according to officials familiar with his role.

At the same time Rice has emerged as an advocate for changing the rules to "get out of the detainee mess," said one senior U.S. official familiar with discussions. Her top advisers, along with their Pentagon counterparts, are working on a package of proposals designed to address all controversial detainee issues at once, instead of dealing with them on a piecemeal basis.

Cheney's camp is a "shrinking island," said one State Department official who, like other administration officials quoted in this article, asked not to be identified because public dissent is strongly discouraged by the White House.

It is good to hear that Cheney's influence is being opposed within the administration on important, and basic issues like the treatment of prisoners.  It is difficult to see why Cheney continues to push on this issue in the face of several quite intelligent cabinet secretaries, 90 senators (including John McCain who knows a thing or two about torture), and American public opinion.

But then towards the end of the article David Addington pops up again.  When he's not busy leaking the identity of covert CIA agents, he's defending and promoting torture:

Cheney's chief aide in this bureaucratic war of wills is David S. Addington, who was his chief counsel until last week when he replaced I. Lewis "Scooter" Libby as the vice president's chief of staff.

Addington exerted influence on many of the most significant policy decisions after Sept. 11, 2001. He helped write the position on torture taken by the Justice Department's Office of Legal Counsel, a stance rescinded after it became public, and he helped pick Guantanamo Bay, Cuba, as the location beyond the reach of U.S. law for holding suspected terrorists.

When Addington learned that the draft Pentagon directive included language from Article 3 of the Geneva Conventions, which prohibits torture and cruel treatment, including "humiliating and degrading treatment," he summoned the Pentagon official in charge of the detainee issue to brief him.

During a tense meeting at his office in the Eisenhower Executive Office Building, Addington was strident, said officials with knowledge of the encounter, and chastised Deputy Assistant Secretary Matthew C. Waxman for including what he regarded as vague and unhelpful language from Article 3 in the directive.

Addington is riding a dying horse and hasn't realized it.  Cheney's office will not win this battle even if it can convince a few senators of the Vice President's position.  Being pro-torture just doesn't play well to the voters back home.

An End To Partisan Judicial Elections

It has always made me uneasy to see judges campaigning for office.  Perhaps it is a bureaucratic necessity to elect some judges so as to not overwhelm the executive with appointments and to avoid putting too much power in the hands of the executive branch of state government, but it seems pretty clear to me that electing state Supreme Court justices, and perhaps their colleagues a rung or two below them as well, is a bad thing. 

Justice is supposed to be a nonpartisan affair so as to ensure equal justice under the law.  One way states have sought to avoid this problem is to make judicial elections nonpartisan.  This is perhaps the best solution to a difficult problem.  Other states like Texas, however, elect just about every judge, and do so in partisan elections.  This is bad for democracy and it is certainly bad for justice. 

Take, as an example, the Tom Delay case.  It seems that it is incredibly difficult to find one judge in the entire state with whom both sides can agree:

The state of Texas finally found a judge yesterday to preside over the criminal trial of former House majority leader Tom DeLay (R-Tex.), but not without a new, last-minute dispute about partisan political interference.

Administrative Judge B.B. Schraub, who earlier this week removed a judge overseeing the proceedings against DeLay for alleged liberal bias, withdrew yesterday from decision making about a replacement judge after an official complaint about Schraub's links to Republicans.

Schraub passed the decision to the chief justice of the Texas Supreme Court, Wallace B. Jefferson. But within hours, political activists in Texas complained that Jefferson has close ties to individuals and political contributors at the heart of the allegations against DeLay.

By day's end, Jefferson seemed to settle the matter by appointing a retired judge from San Antonio, Pat Priest, whose only recent political donations were three checks of $150 each to Democratic candidates for the Texas House in 2004, according to the watchdog group Texans for Public Justice.

The task of finding a supposedly apolitical arbiter for DeLay's trial was complicated by the fact that Texas -- like seven other states -- elects its judges in partisan elections. It also allows elected judges to make financial contributions to partisan causes, and it even permits those with business before the courts to subsidize the judges' political campaigns.

Texas could solve this problem easily by taking the partisanship out of their judicial elections.  Yes, judges are perfectly free to contribute to campaigns and candidates of their choosing, but they themselves should not run as overt partisan officials.  On top of that, judges should be able to prescribe the law without letting their partisan flavor poison their rulings.  While it is entirely possible that any one of the judges considered for the Delay case would have been able to do this, the fact that judges are elected in partisan elections makes this possibility all the more visible. 

And in this case, a battle over the partisanship of judges is exactly what Delay wants since he has all but admitted that he did the dirty deeds he is charged with.  Attacking the partisanship of judges is now his only defense.  Texas should strip Delay of this unfortunate possibility by dumping partisan judicial elections.  It is simply bad for justice.

Boot Rove

Karl Rove escaped the bullet last week when Patrick Fitzgerald passed on indicting him - at least for now - on charges ranging from perjury and obstruction of justice to mishandling classified information.  The statute for the handling of classified information charge sets the bar quite high, leaving it at least plausibly clear that Rove, Libby and the others did not break that law.  But nevertheless, because of conversations with Rove and Libby, reporters were able to confirm the covert status of Valerie Plame.  While the events suggest that Rove did not intend harm against the nation in the very explicit way that the statute outlines, Rove still released and confirmed information that should not have escaped the privvy of those individuals with the proper clearance. 

It seems then, that Rove violated another hurdle: an executive order that strips officials of their security clearances if they are guilty of leaking classified information without authorization.  Here is how it breaks down:

According to last week's indictment of Scooter Libby, a person identified as "Official A" held conversations with reporters about Plame's identity as an undercover CIA operative, information that was classified. News accounts subsequently confirmed that that official was Rove. Under Executive Order 12958, signed by President Clinton in 1995, such a disclosure is grounds for, at a minimum, losing access to classified information.

Section 5.1 of Clinton's executive order prohibits "any knowing, willful or negligent action that could reasonably be expected to result in an unauthorized disclosure of classified information." While the law against revealing the identity of a CIA operative requires that the perpetrator intentionally disclosed such classified information (a high standard, which may be one reason Fitzgerald did not indict on those grounds), the executive order covers "negligence," or unintentional disclosure.

That means the only proper answer to a reporter's questions about Joseph Wilson's wife would have been something along the lines of, "You know I cannot discuss who may or may not be in the CIA." The indictment makes clear that this was not the answer Official A provided when the subject was discussed with reporters Bob Novak and Matt Cooper.

Republicans blinded by their own hatred will no doubt suggest that Rove is not guilty of violating this executive order because it was initiated by President Clinton.  We can ignore these people out of hand.  But otherwise, this seems pretty clear.  Rove confirmed Cooper's suggestion that Wilson's wife worked at CIA.  A confirmation is as good as a leak according to this executive order, and Rove should be stripped of his clearance. 

But perhaps the more important issue here is why Rove was ever involved in this matter in the first place.  Trent Lott, of all people, questioned Rove's strength in the White House and why he was so actively involved in policymaking and foreign policy when he was really nothing more than a campaign strategist. 

"He (Rove) has been very successful, very effective in the political arena. The question is, should he be the deputy chief of staff for policy under the current circumstances?" Lott told MSNBC's "Hardball."

"Most presidents in recent years have a political adviser in the White House. The question is, should they be, you know, making policy decisions. That's the question you've got to evaluate," the former Senate Republican leader added.

This seems like a very valid point - one that has been noted from the very beginning of this administration.  And we have seen the effects of mixing politics with policy: national security is compromised in order to smear a political opponent.

Rove should lose his clearance.  And since it is impossible to work in the White House without a high level clearance, this should mean that Rove is gone.

And Your Next Supreme Court Justice Is...

Scalito.  Samuel Alito, who has been a U.S. Appeals Court judge since 1990 when he was elevated to that post by George H. W. Bush, is exactly what the right has been looking for.  Early word is that he shares Justice Scalia's tough, and frankly cold, judicial philosophy but does so without badgering and yelling at lawyers who appear before him.  We'll have to see how acceptable this guy is, but it sure looks like he's more than qualified for the post.  Of course, just about anyone nominated after Miers would look extremely qualified.

More later...

Indictments

Finally, the shoes start dropping.  I. Lewis "Scooter" Libby has been indicted by a federal Grand Jury on five counts: one count of obstruction of justice, two counts of perjury and two counts of making false statements. 

If you read the indictment or if you listened to Patrick Fitzgerald lay out the evidence against Libby, it sounds pretty cut and dry that Libby is guilty of at least some of these charges, if not all.  Yes, there is no charge relating directly to the original inquiry into the leaking of classified information concerning Valerie Plame, but as Fitzgerald said in his horrifically convoluded baseball analogy, an impediment to the investigation shows that something fishy is going on as well.  Why would Libby tell the Grand Jury that he had gotten his information about Plame from two reporters if he had actually gotten it from the Vice President?  There should be no reason to lie about that.  After all, it is perfectly legal for two government officials with high clearance levels to discuss classified information.  Why not admit that the info came from Cheney?

The other area of speculation and rumor that has been going around lately is that Karl Rove would be indicted as well.  He managed to avoid any charge today, though apparently the investigation will continue.  My hunch is that Rove will escape the ax, probably thanks to his last minute testimony of a few weeks ago where he may have cleared up some discrepencies in his previous testimony.  We'll wait and see on Rove.

The area that I am most interested in, and the one that I haven't seen get a lot of play in the major newspapers, is the connection in all this to the State Department's Office of Arms Control and International Security.  That office was run, until a few months ago, by Undersecretary of State John Bolton.  Yes, that John Bolton.

Why is this an interesting angle to the story?

According to the Times account, Cheney told Libby the covert name of the wife of Joseph Wilson, a former U.S. diplomat who had publicly alleged that the administration had mishandled of intelligence relating to Iraq's nuclear weapons programs.

But several former and serving U.S. intelligence officials strongly disputed this.  "That is simply not accurate," a very former senior CIA official told this repoter. "Libby's notes on this are misleading and inaccurate or both."

This source, supported by three others, alleged that it was a telephone call from the Department of State that first gave Libby the name of Plame.

The name of the caller? No one is sure. But these sources said that the call defintely came from the State Department office of John Bolton, then the arms control chief of the department.

These same sources alleged that two employees of Bolton, David Wurmser, a virullent pro-war hawk, first told Libby that Valerie Plame had sent Wilson to Niger to attempt to discredit the administration's line on Iraq's nuclear weapons programs.

These same intelligence sources alleged that Wurmser, as Bolton's special assistant, got his knowledge of Plame's classified identity from a colleague in his office, Frederick Fleitz, a CIA officer detailed to Bolton's office from the agency who worked in the CIA's Weapons Intelligence Non-Proliferation and Arms Control Center (WINIPAC).

WINIPAC.  That, of course, is where Plame was working at the time of her outing. 

This story seems entirely plausible to me.  It also adds a giant new wrinkle to the story if Bolton or his former office are involved.  Let's not forget that among Judy Miller's visitors while in prison was Bolton himself.  Everyone was confused by this visit at the time, but perhaps it makes a bit more sense now.  Was Bolton checking to make sure he wasn't the source that Miller was in jail for?  And since it was Libby whom she was in jail to protect, and Libby was not the person who first told Miller Plame's (Flame) name, could it be that Bolton or either Wurmser or Fleitz was her original source (the one Miller conveniently could not remember in her Grand Jury testimony)?  Was it someone in Bolton's office that was the original leaker, the one who committed the original crime?

This story is just getting started, folks.

The Pro-Torture Nine

Yesterday the Senate voted 90-9 to prohibit the use of torture by American armed forces and intelligence personnel.

WASHINGTON -- The Republican-controlled Senate voted overwhelmingly Wednesday to impose restrictions on the treatment of terrorism suspects, delivering a rare wartime rebuke to President Bush.

Defying the White House, senators voted 90-9 to approve an amendment that would prohibit the use of "cruel, inhuman or degrading treatment or punishment" against anyone in U.S. government custody, regardless of where they are held.

Who, you might ask, would vote against such an amendment?  Who is pro-torture?  Here are the Pro-Torture Nine:

Allard (R-CO)
Bond (R-MO)
Coburn (R-OK)
Cochran (R-MS)
Cornyn (R-TX)
Inhofe (R-OK)
Roberts (R-KS)
Sessions (R-AL)
Stevens (R-AK)