Drift

I've got Rachel Maddow's new book "Drift" at the top of my list of books to buy. David Horsey has a very helpful review of the book, and it has whet my appetite.

Her book very much reflects the way she comports herself on TV. It is smart and deeply documented. It is entertaining and occasionally whimsical. (In any other book about national security issues, you would not find the word "whoopsie," nor would the word "ally" be rhymed with "schmally" in one phrase.) And, far from being a left-wing screed, it presents a sharply argued commentary that many conservatives could buy into.

Maddow's core thesis is that in the decades since the end of the war in Vietnam, there has been a steady and dramatic shift in the way the United States goes to war. There was a time when Congress stepped up to its constitutional responsibility to say when the country would send troops into battle. Once engaged, the entire country took part. Now, Maddow writes, the president can churn up a war anytime he wants, Congress rolls over, and only a tiny fraction of Americans do the fighting while the rest blithely carry on with their normal lives. ...

The best thing Maddow does is resist portraying the drift to unfettered war power as a conspiracy concocted by an evil cabal. These choices were made by intelligent men and women who seemed to truly believe they had the best interests of the country in mind. These very smart, patriotic people promoted really foolish policies because they were guided by poor information, blinded by ideology or driven by political expediency. With rare exceptions, they were not motivated by actual wickedness. (For pure wickedness, check out Maddow's chapters covering the misdeeds and greed of private contractors in the Balkans and Iraq.)

Rachel Maddow is wise enough to recognize that, even at the highest levels of government, human folly explains far more than any conspiracy theory. It's really all about "whoopsie" moments on a disturbingly grand scale. [Emphasis added]

Now, I have to admit that my tinfoil chapeau vibrated madly at this conclusion by Horsey (and presumably by Maddow). I think that especially during the Bush administration there was almost a total overlap with the administration and the private contractors (e.g., Cheney and Halliburton). The Pentagon's private contractors then, as now, seemed to have a direct line to the White House and to many in Congress. Still, the more innocent argument does have merit.

My other concern was expressed perfectly by Florence at Ruminations, an elder blog that I visit daily.

...This is a great, important, well researched, and well written book that I just could not read. That's not exactly accurate--I read the prologue, the first chapter, and the epilogue in detail. The problem was all the chapters in between. I just couldn't take the return in excruciating detail of Grenada, Iran-Contra, and Oliver North, from there we move on to Kuwait, Halliburton, and Secretary of Defense Dick Cheney, followed by Bosnia, leading inexorably to Afghanistan and Iraq. It was like nails on a chalkboard for 7 of 9 chapters. Don't get me wrong, Maddow nails it completely in the description of our not so slow drift toward the replacement of our Constitutionally designed plan that going to war should be a difficult thing to do to our current state of perpetual war which can be initiated unilaterally by the President. It's just that I lived through all of it and I just get mad all over reading about it. [Emphasis added]

Florence still thought the book was worth the price. I'm off to Vroman's later this week and I'll let you know what I think sometime soon.

[Note: Ordinarily I would give the link to Amazon for the book, but I intentionally didn't this time because I'm mad at Amazon for being a supporter of ALEC. I intend to bus it over to my independent book store in Pasadena for all purchases until Amazon retracts that support. I urge you to avoid Amazon for the same reason.]

The Unitary Governor

Wisconsin Governor Scott Walker was clearly taking notes during the last Bush presidency, gleaning a very important lesson: it's good to be king. How else does one explain his actions in the first months of his term?

He pushed $117 million in business tax cuts through the GOP-run statehouse, aggravating the state's deficit in hopes of creating jobs. Then he got the Legislature to agree to a measure requiring a two-thirds majority to raise taxes in the future, leaving fewer options to close the shortfall.

This week, he proposed a two-year budget to close the projected $3.6-billion deficit. It included big cuts in state aid to local governments — and would bar those cities and counties from raising property taxes to avoid having to make their own reductions.

Most notably, Walker used a small gap in the current fiscal year to fast-track a bill that would give his administration unprecedented powers — not only to weaken public sector unions, but to appoint dozens of powerful new bureaucrats and to determine who gets to stay in the state's Medicaid program. ...

"What you've got is a governor who's come in with a great appetite for achieving his ends," said Norman J. Ornstein, a scholar at the conservative American Enterprise Institute. "This is far more about power than it is about money." [Emphasis added]

How astute of the AEI. It's hard to disagree with that analysis, even given its source. Of course, it didn't take a session examining cow entrails to reach the right conclusion. Governor Walker has been pretty clear in his intentions:

The most consequential provision would allow Walker's administration to determine eligibility for the state's Medicaid program, BadgerCare. Previously, any changes would have to go through the Legislature. Under the bill, the governor has to consult only with the Senate's budget committee. [Emphasis added]

Sound familiar? That eight years under George W. Bush had Congress tied in knots, primarily because Congress quite cheerfully ceded important powers to the executive, just as the Republican-led state legislature is doing in Wisconsin.

Quick study, that Scott Walker.

Be Careful What You Ask For

Frankly, I was a bit surprised that the Supreme Court decided to hear the case involving the release of the Chinese Muslim Uighurs being held at Guantanamo Bay.

Here's the background to the case. At the trial level, the federal judge who held the habeas corpus hearing ordered the Uighurs released to the US where a number of resident Uighurs had expressed willingness to take in these mistakenly held men, find them suitable jobs, and help them adjust to freedom. The government appealed and won. That decision held the judge did not have the jurisdiction to order the release to the US. The Uighurs' lawyers appealed that decision, arguing that habeas corpus would become an empty concept if judges could not order the release of prisoners with nowhere to go.

Adam Liptak of the NY Times set forth the competing issues nicely this morning.

The case presents the next logical legal question in the series of detainee cases that have reached the Supreme Court. Last year, in Boumediene v. Bush, the court ruled that federal judges have jurisdiction to hear habeas corpus claims from prisoners held at Guantánamo.

Lawyers for the Uighur prisoners say the Boumediene ruling would be an empty one if it did not imply giving judges the power to order prisoners to be released into the United States if they cannot be returned to their home countries or settled elsewhere. ...

The new case pits a fundamental judicial function, that of policing unlawful imprisonment through writs of habeas corpus, against one entrusted to the political branches, that of enacting and enforcing immigration laws.

This case, and others in the chain of decisions after Boumediene, provides a classic constitutional issue with respect to the separation of powers, and that this court decided to take the case on is both surprising and a little frightening. If the court rules that the trial judge over-stepped his power by ordering the release of the unlawfully detained Uighurs into the US, then it effectively diminishes the power of the judiciary with respect to habeas corpus. If, on the other hand, the court rules that the very nature of habeas corpus requires the unlawfully detained to be released somewhere, and if the only somewhere is the US, so be it, then the Court effectively holds that habeas corpus trumps the powers granted to the legislative and executive branches.

Neither outcome is particularly attractive.

All of this, of course, might have been avoided if Congress hadn't gone all cowardly, insisting that no Gitmo prisoners can be released into the US. But it did, and unless it reverses itself and passes legislation allowing for such release when it comes to the non-dangerous detainees, we will be faced with a rather sizable constitutional crisis.

Mr. Liptak suggests that the case will be heard in February. The other two branches of government don't have much time to find a way to avoid this clash, and I don't think either branch has the spine or the wisdom to do so. The most we can hope for from this Supreme Court is that the ruling is unequivocally limited to the case and facts before it. I'm even less optimistic about that.

Heckuva job, George.

At A Glacial Pace

It appears that the Obama administration is moving to give up some of the power grabbed by its predecessor, at least in one area. The Justice Department has developed a new set of guidelines as to when the executive branch can assert the "State Secrets" doctrine to thwart lawsuits against the government. According to this NY Times article, the new policy may be released as early as today, and will involve review by the upper echelon of the Justice Department, right up to and including the Attorney General of any proposed use of the doctrine.

Here's one of the more welcome parts of the proposed policy:

The new policy would also direct the Justice Department to reject a request to use the privilege if officials decide the motivation for doing so is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”

I have to admit that I'm still a little skeptical about this new policy. After all, the Obama administration had no qualms about using the "State Secrets" doctrine several times in its opening months. And, as the NY Times article pointed out, the new policy just happens to suddenly appear as several bills in Congress have been proposed which will likewise curtail the use of this 'hide the salami' tool and will provide guidelines for judges to use when the doctrine is asserted. It looks like the new policy is in part an attempt to blunt the drive for such congressional action.

Several lawmakers adopted a cautious stance on whether they would press forward with the privilege legislation, because they had not yet seen the policy. Still, the lead sponsor of the House version of the bill, Representative Jerrold Nadler, Democrat of New York, noted in a statement that the bills would affect courts, too.

“Fixing the executive branch’s assertion of the privilege is only one part of the equation,” Mr. Nadler said. “Congress must still enact legislation that provides consistent standards and procedures for courts to use when considering state secrets claims. Our constitutional system requires meaningful, independent judicial review of
governmental secrecy claims.”

There is no reason for Congressman Nadler and his colleagues to back off on the bill. Bringing the executive branch back into balance with the other two branches of government would be a welcome beginning to the restoration of our democracy.

Who Knew?

I must admit that I am feeling some uncharitable glee at the current posturing of the congress critters over the fact that the CIA apparently withheld information, and possibly lied, about a super-duper-super-secret program it had been running during the Bush administration. Once the news hit that the CIA had been less than forthcoming about the existence of this program (about which we of the unwashed public still know nothing) because then Vice President Dick Cheney ordered them not to mention its existence to Congress, things got really heated.

Even Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, got riled by the news, so much so that she is calling for an investigation, according to this NY Times article, because laws may have been broken.

Senator Dianne Feinstein, the chairwoman of the Senate Intelligence Committee, said on Sunday that the Bush administration may have broken the law if the Central Intelligence Agency concealed a covert spy program from Congress.

The New York Times reported on Sunday that the agency’s current director, Leon E. Panetta, had told the Senate and House intelligence committees that the C.I.A. withheld the information about a secret counterterrorism program on direct orders from then Vice President Dick Cheney.

The Times said that according to two people with direct knowledge of the matter, Panetta ended the program when he first learned of its existence from subordinates on June 23 and briefed the two intelligence committees about it in separate closed sessions the next day. [Emphasis added]

Now it's bad enough that the information was at the very least withheld from the congressional oversight committees, but even the new director wasn't aware of the program until several months after he took over the CIA. If Leon Panetta didn't know about the program, I think a safe assumption is that the new President and Vice President didn't know about it either. That means that the CIA has been operating with absolutely no oversight at all for the past six months. There's something dreadfully wrong with this picture.

Of course, Republicans don't seem to mind much. After all, the Unitary President concept only applies when a Republican holds the White House. Proof of that came from John Kyl:

Jon Kyl, ... a Republican from Arizona, also said that it’s too soon to say whether an investigation needs to take place.

“What if it’s a top-secret program?” he asked. “Let’s not jump to conclusions.”

So secret that even the President and the Director of the CIA don't know about the program? So secret that the congressional committees charged with oversight of the agency don't even get a hint?

Lewis Carroll would have been proud.

Rule of Law, Please

Having been exposed to injustices that have deeply shocked me lately, I came across the account of deeper and more ingrained corruption that have been desperately fought in our neighbor, Mexico. The account was tragically contained in a memorial written to honor prosecutor José Luis Santiago Vasconcelos, who fought against the deep corruption that drug wars occasioned in that country as well as the drug war itself. He died in a flaming crash over Mexico City on Tuesday night while we were living through the magic of our election here.

While I have been attending a trial of the Holy Land Foundation in federal court in Dallas, appalled by the 'through the looking glass' nature of the prosecutors' presentation of what should be facts, this article has reminded me of how dangerous it is to allow corruption of our judicial system and its operation. As I have mentioned before, I grew up with the comfort of respect for my country, and allegiance to our much-revered Rule of Law. Seeing that noble institution thrown down by the occupants of the White House has been deeply horrifying to me. I had never thought that our country could so easily have its highest institutions debased.

What has gone on in our Department of Justice by politicizing it has presaged what has happened in Latin America during past decade. In that banana republic past, corruption perpetuated insular ruling classes who opposed public interests. Presently, an upsurge in popular government has combated that past. In our neighbor Mexico, the drug wars have been terrible, and corruption deeply invasive. A dedicated officer of justice died Tuesday night, and I want readers to be aware of the horrors we may avoid by cleaning up our own justice system now.

Vasconcelos, for years the nation's top organized crime prosecutor, has barely been mentioned. Though he held one of the world's most dangerous jobs, or perhaps because of it, he worked largely out of the spotlight.

"He was not out there making a name for himself," said Joe Bond, a top Drug Enforcement Administration agent who was posted in Mexico and worked closely with Vasconcelos. "He always took second seat, even though he was the main guy leading the war on drugs."

Vasconcelos was a prime target for drug-cartel hit men, and he received many death threats. Last January, Mexican police arrested three men with assault rifles and grenade launchers on charges that they were plotting to kill him. He, his wife and two grown children lived with suffocating security around the clock.

"It was a miserable life for him and his whole family," Bond said. "But he was very focused on doing his job. For us, he was always the guy to go to."
(snip)
He spoke of his hopes for his children and his country. He wished for a Mexico free from the gruesome violence, which has only gotten worse lately: Yet another headless corpse was suspended from a bridge in Ciudad Juarez this week.

He feared that Mexico could become like Colombia, where drug traffickers in the 1980s nearly took over the country. Unless the traffickers were defeated, he said, "our children are going to be suffering tomorrow."

He worked in dim light; perhaps it was more soothing than the usual harsh fluorescent lights of bureaucracy. During that first interview, two small sticks of Japanese incense burned on a table near his desk, which was piled high with indictment papers for alleged assassins and drug traffickers.

Though he lamented America's demand for drugs, and the fact that drug cartels bought most of their guns north of the border, Vasconcelos didn't blame anyone but Mexico for Mexico's problems.

He railed about corrupt police officers, whom he called "criminals dressed as public servants," and was angry about how deeply the drug cartels had penetrated his government.

I grew up, as I said, sure of our country's being above all this corruption. As I watch it play out in a form I never imagined would happen here, I am daily realizing that it's too easy to avoid taking action before it's too late.

The cleanup now going on in our Dallas judicial system, that has uncovered convictions that are now being overturned by DNA evidence, is timely. We are too late to avoid injustices that have probably caused executions based on wrongful convictions. We are called on to stop corruption now. The cost to society of disregarding the Rule of Law is easy to see. It has been happening right next door, and has on occasion eaten its way through the delicate fabric of our own justice system. Its pursuit of 'Terrorists' has been the basis for many miscarriages of what should have been justice. In its Gitmo perversion of justice, inmates who have never been charged, six Algerian prisoners, are now suing to be released from that infamous galag.

A wink at justice exposes us all to dangers we never want to face. Fighting its way back from corruption of our judicial system is something we must not visit on our society. Heroes should have better conditions and higher purposes than the violent battles against crime that Vasconcelos lost his life to achieve.

Let My People Go

Yesterday, perhaps the most stunning news to come out came from the federal judiciary (I'm beginning to see a pattern). The judge of the first habeas corpus hearing for Guantanamo Bay detainees ordered the 17 prisoners involved released immediately. Judge Ricardo M. Urbino did his job, according to an article in today's NY Times, and he made clear his reasons for doing so:

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said. ...

Judge Urbina, an appointee of President Bill Clinton, underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role.

He rejected Justice Department arguments as assertions of executive power to detain people indefinitely without court review. He said that “is not in keeping with our system of government.”

The Bush administration, however, is not giving up: after failing to get Judge Urbina to stay his order while they appealed, Justice Department lawyers filed an emergency appeal to get the release stayed while they prepare a formal appeal based on the theory that the federal courts have no jurisdiction over the release of the Uighurs into the United States because that is an immigration issue, which is reserved to the Executive Branch.

But that's not all that the Justice Department is doing: they're threatening to have the Uighurs busted if they ever are released in Washington, DC as ordered by the judge:

The ruling set the stage for a confrontation between the courts and the administration. John C. O’Quinn, a deputy assistant attorney general, suggested that immigration or Department of Homeland Security officials might detain the men when they were taken to the Washington area.

Nice, eh?

What is so horrific about the government's behavior in this matter is that the administration has already admitted that the Uighurs were really not enemy combatants after all, just some Chinese dissidents who fled their homeland. When they landed in Pakistan, bounty hunters rounded them up and sold them to the US.

The new and improved reason for keeping them in detention is that they "admitted" to having received "weapons training" while in Afghanistan. Not much is known about the interrogations which elicited those admissions, but it doesn't take that much of an imagination to assume that the process was akin to those other "intensive interrogation" sessions the government has relied on to justify keeping 255 men in isolation from the rest of the world.

The next round will be in the District Court of Appeals, and then we'll move up to the Supreme Court. If the first level does stay Judge Urbina's release order, it'll be another year in custody for these men. Their nightmare will continue, as will ours.

Sidelight

Watching last night's round of speakers, I was struck by a simple message from Bob Casey, that the Democratic party is about the nation's strength relying on the opportunity for everyone in it. There is a massive failure in our system because of the inability of the right wing to see that. When each of us can reach prosperity, health and enlightenment, the whole nation is improved by each incremental rise to his/her highest possibility. It works, and that's what has been proved over and over as Democrats replace Rethuglican failed regimes over and over.

As Avedon has expressed very well, this convention is going off the balance beam by trying to make this campaign about the individual candidate, Obama. While I think more of him as a candidate than many of you do, I can see that it's going to take a whole lot of dedicated service from a whole lot of realtime public servants to repair the rents in our nation's fabric from all those who have been ripping out their own piece of the pie. The damage is not irreperable, but it is large.

Casey's speech, eagerly anticipated by Pennsylvania delegates, offered one of the harshest critiques of McCain so far this week. Decrying the fact that McCain, he said, wanted to continue Bush's policies for four more years, he repeatedly said "not four more years, four more months." Soon, the crowd was roused to chants of "four more months!"

"The people of Pennsylvania can't afford four more years of Bush-Cheney economics, because you know what, with John McCain, that's exactly what we get."

Saying McCain had voted with Bush 90 percent of the time, he snapped: That's not a maverick, that's a sidekick."

Four more months. That will be hard to repair, but it's a goal worth working for, hard. It's the only one that makes any sense in view of the past nearly eight years.

***************************************************

Congratulations to Senator Clinton for a strength of character, that has developed from so much dedication to the admirably high principles of the Democratic party. She did us proud.

U.S. Found Not Trustworthy

British officials are convinced of the same thing that the U.S. public has learned the hard way, that the occupants of the White House are not to be trusted. Their word is not good, and the British government can no longer act on it. The American government is not directed toward the good of its allies, any more than it is the good of the citizens it was elected to serve.

The British government should not rely on US assurances that it does not use torture, a report by MPs says.

The foreign affairs select committee said the UK and US differ on their definitions of what constitutes torture and it urged the UK to check US claims.

It recommended the government carry out an "exhaustive analysis of current US interrogation techniques."

The MPs also said the government should check claims that Britain is not used by the US for "rendition" flights.

The committee highlighted the technique of "water-boarding" - a practice which simulates drowning.

The US describes it as "a legal technique used in a specific set of circumstances" and President Bush has refused to ban it.

Given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture
Foreign Affairs Select Committee

However, the UK Foreign Secretary David Miliband said it is torture and "the UK unreservedly condemns the use of torture."

In its report, the committee said: "Given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the government does not rely on such assurances in the future."
(snip)
The MPs also urged the Foreign Office to investigate allegations that the UK "outsourced" interrogation of six terror suspects to Pakistan's ISI intelligence agency, where they were tortured and interrogated by British intelligence officers.
(snip)
The committee's conclusions amount to saying that we can no longer rely on assurances from a US administration that purports to uphold the civil and political standards of behaviour, while in fact kidnapping people and taking them to places where they may be maltreated.

"Only by practising what we preach will we be able to win back the support of Muslim communities at home and abroad and build the strongest coalition around the world against terrorism."

The damage done by this executive branch filled with criminals is immense, internationally and at home. The infection is being excised by the British, has already been tossed by many other nations. Now we need to get serious about cutting it out, down to its hideous roots in criminality, here in our own country, while we can still call it our own.

Cngress last Wednesday passed a bill the White House threatens to veto, which would set up an inspector over intelligence, give Congress basis for cutting off funds when it has not been properly informed and require sharing of intelligence information with the Congress so that it can perform its oversight function.

As for the demand to up the flow of classified information to congressional oversight committees, the White House says it "goes beyond any legitimate oversight function" and simply encourages "micromanagement of [Intelligence Community] activities." If the bill makes it to the president's desk with any of these provisions attached, "senior advisors would recommend that he veto the bill."

This is not the first time that an intelligence authorization bill has run smack into White House instransigence. It's now been three years since Congress and the White House have been able to reach an accommodation. Why? "This administration wants maximum authority and maximum discretion," says Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, who blogs at Secrecy News. "It lashes out at any semblance of checks and balances."

The Congress needs to take charge, it is obvious that we have an executive branch that is determined to end the rule of law. The mantra of war powers cannot continue to be allowed to take the reins from the constitutionally mandated controlling branch.

A beginning has been made, by the bare majority given to Democrats in Congress in 2006. It hasn't been enough. We need to elect progressives everywhere we can, and get the criminal element under control. It will take more than casual observation, it will take intense remedial action.

The Whole World Is Watching.

Those Wacky Liberal Judges

Another federal judge has slapped the Bush administration upside the head, this time for the claim that as the Commander In Chief, the president can pretty much ignore all the laws passed by Congress. From today's NY Times:

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court. [Emphasis added]

Imagine that: a judge appointed by Bush I acting like a veritable DFH. What is significant about this judge, however, is that all the suits against the telecoms have been consolidated and are set to be heard in his court room. This particular case, while it involves a suit against the federal government and not the telecoms, certainly gives some indication of how Judge Walker will rule in those other cases. Apparently, he intends to follow the law and the US Constitution:

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

What a fine birthday gift to the nation.

Legislating Morality From the Bench

There are enough reasons to abhor the constitution of the present Supreme Court, which has time and again favored the business community when it has made its decisions. The instance of passing on the death penalty for child abuse has been one I could agree with. Leave it to the editorialistas at WaPo to ruin that.

Today, the Hiatt faction touts their approval of that decision, and cited a dissenting opinion. I am not kidding. As usual, the Hiatts want to see authoritarianism take over the helm in all the branches of government.

Even while concurring with the majority's decision, handed down Wednesday, to strike down the death penalty for child rapists, we join Justice Samuel A. Alito Jr.'s declaration in dissent that "the very worst child rapists -- predators who seek out and inflict serious physical and emotional injury on defenseless young children -- are the epitome of moral depravity."

It is just this kind of moral judgment substituted for the legal one that court action is supposed to provide, that causes so much injustice to be committed. It is no wonder that WaPo would feel more comfortable with self-righteousness than with judicial restraint, and/or judgment.

Avedon had a very telling comment at The SideShow yesterday, which she entered in a shorter version into the WaPo comment section this morning.

Avedon wrote:
"Child rape is an unforgivable offense, but not a capital crime."

One of the nice things about growing up is that you learn there are all sorts of things you can forgive. I forgave the people who sexually assaulted me in childhood a long time ago, and believe me, it feels a lot better than carrying all that hate around.

Of course, if they'd been executed, I'd have had too great a stake in believing it was justified to ever forgive them. Thank God that didn't happen.

It's too often society's indignation that pulls the strings in matters of law, when it should be rational solutions to the problems. Avedon has a rich life, and personal character, which she could have quite possibly never have reached if she'd been victimized by the atmosphere this Supreme Court promotes.

My comment at WaPo grew out of the Sideshow post yesterday as well as my own views, and was more informed because of the discourse:

/jocabel wrote:
That the argument presented in this editorial for the dissent is a condemnation on moral, not legal, grounds is a shame. Capital punishment as an institution assumes that a question of guilt has been concluded without the possibility of doubt. Over and again, the doubt is reinstituted, as convictions are overturned by DNA evidence. Child rape, as Justice Kennedy pointed out, often depends on evidence from children, often relatives of the accused. These sad facts must be taken into account. The moral repugnance of the crime makes the matter all that much more subject to pressures that counterbalance standards of proof. Judicial restraint is much better for our society, especially in dictating the behavior of others, than judicial moralizing. Our Supreme Court is dangerously dysfunctional when it comes to the strict interpretation of the existing constitution. Its majority inclines toward establishing guidelines of conduct for the public rather than determining legal redress for actual offenses.

When our highest court and major newspapers put indignation and morality in the place of the court's role as the refuge of justice, we are not receiving what we can regard as the Rule of Law. The authoritarianism that has been institutionalized by the occupied White House and its courtiers has taken away the kind of reasoning that is needed to render unprejudiced court decisions.

We badly need to return to three branches of government, separate and operating lawfully.

(This post also posted at http://www.theseminal.com/ )

************************************************************************
The WaPo editors really, really like Scalito's dissent better. Another citation: Justice Alito, however, noted in his dissent that five of those states enacted such laws over the past few years, suggesting that the pendulum of public opinion is swinging the other way.

Stuff Happens

Yesterday, Ruth made clear her displeasure with the White House for the President's veto of the Farm Bill. I had hoped to cheer her up this morning with news of a veto override by both the House and the Senate.

Alas, a technical screw-up made that impossible, according to this AP report.

Oh, the House vote to override wasn't even close, 316-to-108, and the Senate vote looked to be a similar rejection, but somebody noticed something quite embarrassing:

... action stalled after the discovery that a 34-page section of the bill had been omitted from the printed bill sent to the White House. That means Bush vetoed a different bill from the one Congress passed, raising questions that the eventual law would be unconstitutional.

That means the process starts all over again.

...House Democrats hoped to pass the entire bill, again, on Thursday under expedited rules usually reserved for noncontroversial legislation, and the Senate was expected to follow suit. The correct version would then be sent to Bush under a new bill number for another expected veto.

The new version will have a little tweaking in it, mostly in the form of a tiny reduction in the subsidies to farmers Mr. Bush allegedly objected to (like the veto was really about not handing corporate "farmers" more money), but the meat of the bill will remain intact (the part I suspect Mr. Bush really didn't like):

About two-thirds of the bill would pay for nutrition programs such as food stamps, about $40 billion is for farm subsidies and additional $30 billion would go to farmers to idle their land and to other environmental programs. ...

-Boost nutrition programs by more than $10 billion over 10 years and expand a program to provide fresh fruits and vegetables to schoolchildren.

-Cut a per-gallon ethanol tax credit for refiners from 51 cents to 45 cents. The credit supports the blending of fuel with the corn-based additive. More money would go to cellulosic ethanol, made from plant matter.

-Require that meats and other fresh foods carry labels with their country of origin.

It's hardly a perfect bill, but it contains enough good stuff for everyone, including the Republican congresscritters, that it's hard not to hope the new bill gets to the President's desk by Friday.

Here's the beautiful part:

Congressional Republicans overwhelmingly abandoned Bush in voting to override the legislation Wednesday, overlooking its cost amid public concern about the weak economy and high gas and grocery prices. GOP lawmakers are anxious about their own prospects less than six months before Election Day.

You know, if the Democrats really have overcome their scoliosis, this could be a really productive six months for Congress.

So, Ruth, hang in there.

Defying Constitutional Government

The constitution is being shredded. The legislative branch has the power to make laws, but executive branch is directed to enforce them. With war criminals in power, the opposite is happening.

The justice department not only will not enforce the laws as it is supposed to, it refuses to obey them itself.

What happens when Congress holds an oversight hearing and the overseen refuses to show up? Democrats on the House Judiciary Committee found out on Wednesday, when they convened to examine allegations of selective prosecution by the US Department of Justice. The second in a series of hearings into the politicization of the DOJ focused on allegations that the department had either failed to prosecute or delayed prosecution of people involved in GOP voter-suppression efforts during the 2002 and 2004 elections. On hand to testify: a New Hampshire congressman, a felonious former GOP political operative, a New Hampshire lawyer, and an NYU professor. Conspicuously absent was anyone from the Justice Department, which not only declined to send an official to testify, but also ignored repeated requests from the committee to hand over internal documents relevant to the hearing.

The dis was hardly unusual. Over the past year, the Judiciary Committee has held numerous oversight hearings and requested a host of documents from the DOJ on everything from the operation of its civil rights division to deferred prosecution agreements. For the most part, the agency has simply ignored the committee, setting the stage for yet another showdown between the administration and Congress. Judiciary Committee chairman John Conyers sent Attorney General Michael Mukasey a letter on May 9 lamenting that while he has sent numerous letters and document requests to the Justice Department over the past year, the agency has failed to provide the requested documents and "in some cases, even to answer" its requests. He went on to warn that if Mukasey and his staff fail to come up with a specific schedule for the document production by Friday, May 16, "we will have little choice but to consider compulsory process."

The farce that the worst administration ever has made of constitutional government desperately calls for an end to the criminals and their misuse of the powers that they have usurped by false pretenses. Under the ruse of enforcing laws, we have a justice department that undermines them.

The congress will need to do a lot of re-establishing a rule of law. The crooks who've worked against it need to be taken out of government for all time.

Secret Government

Sen. Russ Feingold (D-Wisconsin) ,the man I wanted to run for President, has an important op-ed piece in today's Los Angeles Times. In that column, he details what many of us have long complained about: the penchant of this administration to govern in secrecy.

It's a given in our democracy that laws should be a matter of public record. But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.

Perhaps the most notorious example is the recently released 2003 Justice Department memorandum on torture written by John Yoo. The memorandum was, for a nine-month period in 2003, the law that the administration followed when it came to matters of torture. And that law was essentially a declaration that the administration could ignore the laws passed by Congress.

The content of the memo was deeply troubling, but just as troubling was the fact that this legal opinion was classified and its content kept secret for years. As we now know, the memo should never have been classified because it contains no information that could compromise national security if released. In a Senate hearing that I chaired April 30, the top official in charge of classification policy from 2002 to 2007 testified that classification of this memo showed "either profound ignorance of or deep contempt for" the standards for classification. [Emphasis added]

Sen. Feingold, who sits on the Senate Intelligence Committee, frankly acknowledges that as a result of the Bush administration's secrecy no one in Congress, and certainly no one in the rest of the country, has any idea of just what "laws" the executive branch is operating under and imposing on us. As a result, there has been no accountability and no oversight by Congress for over seven years.

More troubling, however, is the fact that no one knows for certain just how far the administration has gone in eroding our First and Fourth Amendment rights because everything connected with (for example) FISA is kept so buttoned up that even members of the key committees in Congress are denied access to the information.

...But with changes in technology and with this administration's efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.

These interpretations deeply affect Americans' privacy rights, and yet Americans don't know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is. [Emphasis added]

The executive branch is supposed to execute the laws passed by Congress. Instead, the Bush administration itself is passing laws in direct contravention of the Separation of Powers clause of the Constitution and then keeping those laws secret. Many of those laws violate Americans' rights under the First and Fourth Amendments.

In other words, the President, Vice President and members of the administration have violated their oaths to protect and defend the US Constitution.

Will somebody please explain to me again why impeachment is off the table.

They Have Secrets

An editorial in today's NY Times confronts one of the hallmarks of the Bush presidency: its opacity. From the very start, the Bush White House has operated in secret, and in so doing has successfully made the executive branch more powerful and less accountable than the other two formely co-equal branches. This reliance on secrecy was manifested early on when the Vice President refused to reveal who was present at his energy meetings. The current manifestation is the administration's push to dismiss cases filed for improper behavior by the CIA and other executive agencies on the basis that to allow the cases to move forward would reveal important "state secrets." It is this manifestation that the NYT editorial takes on.

To avoid accountability, his administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk.

Thus far, the courts have meekly acceded to the administration's demands without bothering to check to see whether the arguments had any merit or any relevance to the suits before them. The US Supreme Court itself has refused to do anything on the issue, apparently happy to aid their own relegation to the sidelines. The result, of course, is that justice is being denied and the constitutional scheme of checks-and-balances has become an irrelevance.

The editorial has found a hopeful sign, however, and that signal has come from Congress (of all places).

Congress — which has allowed itself to be bullied on national security issues for far too long — may now be ready to push back. The House and Senate are developing legislation that would give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind such unsupported claims.

Last week, Senator Edward Kennedy, the Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, jointly introduced the State Secrets Protection Act. The measure would require judges to examine the actual documents or other evidence for which the state secrets privilege is invoked, rather than relying on government affidavits asserting that the evidence is too sensitive to be publicly disclosed. Senator Patrick Leahy, chairman of the Senate Judiciary Committee and an important supporter of the reform, has scheduled a hearing on the bill for Feb. 13. Representative Jerrold Nadler, Democrat of New York, expects to introduce a similar measure in the House.

The bill as described is certainly a good start at cutting back the powers asserted by the Unitary Presidency, but that assumes that it will be passed in each house of Congress. Given the actions of the Senate Majority Leader and the Speaker of the House over the last year, that assumption may be unwarranted. It also assumes that there will be a veto-proof majority, and that also is as unlikely as the veto is likely.

In other words, while I am grateful for the NYT editorial, I am not as optimistic as the editorialist.

352 days to go.

Showdown?

Senator Patrick Leahy (Vermont), Chairman of the Senate Judiciary Committee, has decided it's time to stand up to the White House, according to an article in today's NY Times. He's picked an interesting subject and an interesting time to do so.

The Senate Judiciary Committee inched forward Thursday in its struggle with the White House over subpoenas demanding information from current and former Bush administration officials about the firing of several United States attorneys last year.

The committee’s chairman, Senator Patrick J. Leahy, Democrat of Vermont, said he was formally rejecting White House claims that the subpoenaed officials, including President Bush’s chief of staff, Joshua B. Bolten, were protected by executive privilege from being compelled to cooperate with an investigation into whether the prosecutors were fired for political reasons.

By rejecting the administration’s claims, Mr. Leahy took the next procedural step toward seeking to enforce the subpoenas in court, a step that could require the intervention of the new attorney general, Michael B. Mukasey, who has suggested that he wants a better relationship with Congress than was built by his predecessor, Alberto R. Gonzales.

Judiciary Committee aides said the panel would soon vote on contempt citations for the administration officials. But even if the citations are ultimately approved by the committee and then the full Senate, it remains unclear what happens next, since the administration has suggested that it will not allow the Justice Department to go to court to enforce the subpoenas. Customarily, Congressional subpoenas are enforced by the department on behalf of the House or the Senate. [Emphasis added]

The claim of White House privilege is a tricky one, since I suppose an argument can be made that it is necessary for a free and open exchange of information on policy matters facing the president. However, when the privilege is claimed solely to hide evidence of criminal behavior (in this case, an attempt to control elections), then it has to be rejected.

And, as I said earlier, the timing is interesting, and not just because we are in the midst of another election cycle. The Senate has just confirmed Michael Mukasey as the new Attorney General because, even if he refused to state that water boarding was torture and therefore illegal, he was independent-minded. Here's the first test of that theory, especially since the administration has suggested that the Justice Department will not be allowed to enforce the subpoenas.

Before we even get to that point, however, the Judiciary Committee must vote on the contempt citations, as must the whole Senate. Is this finally the issue that will force the current Senate to push back hard against the Unitary President?

Given the actions over the past year, I am not optimistic.

Oh, Please

Knowing that her defection would cause an uproar, Sen. Dianne Feinstein decided to cover her backside with an op-ed piece which the Los Angeles Times conveniently published today. In the piece, California's senior senator attempts to justify voting for the confirmation of a man who apparently is incapable of stating that water boarding is a torture technique and is therefor illegal. Even a quick read of her justification shocked me by its obvious reaching.

During a long career in public service and private practice, Michael B. Mukasey has forged an independent path as a lawyer and federal judge. He has presided over 1,600 cases in almost 19 years on the bench. He has extensive experience on national security cases -- presiding over such critically important cases as U.S. vs. Rahman and Padilla vs. Bush. In the Omar Abdel Rahman case, 10 defendants were given prison sentences ranging from 25 years to life.

OK, so Judge Mukasey is a "hanging judge" when it comes to defendants charged with terrorist activities. I'm not so sure that qualifies anyone for the post of Attorney General or any other position. What Sen. Feinstein seems to overlook, however, is that a judge does more than issue a sentence at the end of a trial. The judge must also make rulings during a trial which are often critical to a finding of guilt or innocence, such as whether evidence is admissible or not. Confessions obtained under duress or torture should not be admitted, nor should evidence obtained from others under the same circumstances. Letting evidence in or keeping it out solely on the basis of "state secrets" denies a defendant the basic right of confronting his or her accuser. The Padilla conviction might not have happened if he'd had a judge willing to provide him with these rather basic constitutional guarantees.

But Sen. Feinstein feels there are other, important reasons to confirm Mr. Mukasey:

I believe that Judge Mukasey is the best nominee we are going to get from this administration and that voting him down would only perpetuate acting and recess appointments, allowing the White House to avoid the transparency that confirmation hearings provide and to diminish effective oversight by Congress.

We should confirm a man who refuses to answer a question unambiguously because the next nominee will probably be worse, and besides, the president will just do a recess appointment if we don't? Oh, please. Maybe if the president sees a Congress that doesn't bend-over at his every command, he might be forced to appoint someone who is actually qualified. Maybe not, but we'll never know as long as senators such as Dianne Feinstein and Charles Shumer keep assuming the position.

Her conclusion is the real kicker, however:

The bottom line is this: I hope that Judge Mukasey will fairly and evenhandedly represent the American people and direct the Justice Department wherever the facts and the law lead, not where the White House dictates.

Hope.

Yeah right.

That and $7 will get you a latte.

Does Not Play Well With Others

The Secretary of Homeland Security, like his boss, apparently doesn't believe in either the rule of law or the seperation of powers, both key to American Democracy. That much is clear from this report in the NY Times:

Michael Chertoff, the homeland security secretary, waived several environmental laws yesterday to continue building a border fence through a national conservation area in Arizona, bypassing a federal court ruling that had suspended the fence construction.

Citing “unacceptable risks to our nation’s security” if the fence along the border with Mexico was further delayed, Mr. Chertoff invoked waiver authority granted him under a 2005 bill that mandated construction of the fence.

He ordered work to continue on 6.9 miles of fence along the border through the San Pedro Riparian National Conservation Area in Cochise County in southeastern Arizona. [Emphasis added]

In a stance quite typical of this administration, Mr. Chertoff has decided that he need not follow any inconvenient rulings on the issue, even if one of those rulings came from a federal judge.

In a ruling on Oct. 10, Judge Ellen Segal Huvelle of the federal court for the District of Columbia held up construction of the fence, finding that the government had failed to carry out the required environmental assessment. The decision came in a suit brought by the Sierra Club and Defenders of Wildlife.

In a statement yesterday, the Department of Homeland Security said it “disagrees with the court’s ruling” and was confident of eventually winning the case. It noted that two federal land management agencies had authorized the department to proceed with the fence. [Emphasis added]

Mr. Chertoff might very well win the case, but it's generally considered necessary to let the appellate process play out. That's how the rule of law works. Mr. Chertoff apparently believes, as does his boss, that law is for the little people. His job is to stop pesky illegal immigrants from breaching the borders, because, as we all know (Terra!Terra!Terra!), that is how the 9/11 miscreants entered the US.

I hope Judge Huvell has the ovaries to slap a contempt of court charge on one of the real terrorists in this country.

A Partial Return to Constitutional Government

A federal judge agreed with something much spoken about on the internet, the need for constitutional government. Part of the Patiot Act bit the dust.

NEW YORK - A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

The American Civil Liberties Union had challenged the law, complaining that it allowed the FBI to demand records without the kind of court order required for other government searches.

The ACLU said it was improper to issue so-called national security letters, or NSLs — investigative tools used by the FBI to compel businesses to turn over customer information — without a judge's order or grand jury subpoena.

It would be nice to hear Abu on the subject, since he's maintained since Texass days that the executive is above the law.

As for me, HIP HIP HOORAY. The judiciary may just be beginning to take back the Rule of Law.

Trial of Holy Land Foundation Breaks Ground in Secrecy

In the trial of Holy Land Foundation, formerly of Richardson, TX - just north of Dallas - groundbreaking limitations of the evidence through grounds of security has prevailed. A witness for the prosecution who is an agent of Israel was cloistered from view by all but immediate parties, and trial attenders sent into a separate room where they could not see the Israeli secret agent. This procedure will be repeated for a further Israeli secret service agent set to appear later in the trial. Defense moved for mistrial to be declared Monday, when their cross-examination of a U.S. FBI special agent was limited.

These precedent-setting methods are not promising for judicial proceedings. The Holy Land Foundation is being accused of sending funds for charitable purposes, which freed up Hamas to use more of its assets for terrorism.

Lawyers for Muslim charity leaders accused of aiding Middle East terrorists scored a rare win in court Tuesday when a federal judge blocked some evidence seized by Israeli soldiers during raids of Palestinian organizations.

The evidence included memos indicating that the governing Palestinian Authority believed the militant group Hamas controlled Muslim social agencies supported by the Texas charity, according to a court filing by prosecutors.

Defense lawyers had objected that some of the documents were not signed or dated, and they cast doubt on Israel's handling of the evidence.

Five former leaders of the Holy Land Foundation for Relief and Development are charged with funneling millions of dollars to Hamas, which the U.S. government designated a terrorist organization in 1995. The trial is in its fourth week of testimony.

Federal District Judge A. Joe Fish has ruled in the prosecution's favor on a wide range of issues, from allowing the government to call Israeli secret agents as witnesses to denying defense requests for a mistrial.

On Tuesday, however, Fish ruled against prosecutors and blocked the jury from seeing 12 documents that prosecutors contended linked Hamas to charities called zakat committees that were funded partly by the Holy Land Foundation, or HLF.
(snip)
A lawyer for one of the men got an FBI agent to admit that the man's name did not appear on a list of Muslim Brotherhood activists or a Hamas official's phone book. Some of the other defendants' names did appear.

The defendants are charged with aiding a terrorist group, conspiracy and money laundering. The men could be sentenced to life in prison if found guilty and if deaths resulted from their actions.

This trial has a lot of questionable elements, one being that the transcript of some taped conversations contained statements that were never made, (see earlier post "Funding Charity or Terror?")

As I noted at the time, results of this trial are most likely to include the conviction on the part of the Muslim community that it is the object of undisguised official discrimination. That new ground is being broken in sequestering witnesses who have official standing in another country, Israel, does not portend well for unbiased findings.