Category: Politics

There have been a couple of interesting developments in the Bush/FISA story. First, a group of lawyers have comprehensively demolished the attempt by the Department of Justice to provide a legal justification for Bush’s actions. Money quote:

The argument that conduct undertaken by the Commander in Chief that has some relevance to “engaging the enemy” is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.

Second, Doug Thompson at Capitol Hill Blue has identified a fairly impressive list of Bush appointees who told Bush that his actions were “breaking the law” and “could doom your administration”. They include:

• Colin Powell, ex-Secretary of State
• James D. Comey, ex-Deputy Attorney General
• John Ashcroft, ex-Attorney General
• George Tenet, ex-Director of the CIA

Of course all are now “ex”….

From Suburban Guerrilla

Last week, Col. Janis Karpinski told a panel of judges at the Commission of Inquiry for Crimes against Humanity Committed by the Bush Administration in New York that several women had died of dehydration because they refused to drink liquids late in the day. They were afraid of being assaulted or even raped by male soldiers if they had to use the women’s latrine after dark.

Just to be clear, we’re talking about women in the US Army choosing to risk death to avoid being assaulted or raped by their brothers-in-arms. Somehow I missed this aspect of the Army’s guiding ethos.

Here’s a stirring piece by Polly Toynbee in the Guardian about today’s Commons’ debate on the Religious Hatred bill. Money quote:

Free speech is fragile: laws change cultural climates in the media and inside minds. Police who can, absurdly, question Sir Iqbal Sacranie for his homophobic views yet never arrest him for his inflammatory remarks over Salman Rushdie, will make no sense of this law. Police stations will be besieged by insulted zealots brandishing ancient books. Only the attorney general can agree an actual prosecution. Refusing will add offence to the already offended.

It’s an absurd bill, a bad bill, a deeply illiberal bill. Hopefully MPs will boot it out.
Update: The MPs did the right thing by endorsing the Lords’ amendments – and curiously, when the time came for the decisive vote, Tony Blair was nowhere to be found!!

A long and thoughtful piece by Rachel from north London, a survivor of the 7/7 bombings in London. The bottom line:

To understand the roots of terrorism is the only way to defeat it.

From my colleague, Jeff Kesselman:

And remember… only Nixon could go to China and only Sharon could pull out of the west bank. Perhaps, for the same reasons, only Hamas can bring peace to the Palestinians.

I really have to stop raising my blood pressure by reading The Weekly Standard. However I followed a link to a piece by Harvey Mansfield (William R. Kenan Jr. professor of government at Harvard) entitled The Law and the President, and thought it might be interesting. It was – but not in the way I thought. It was sophomorically bad. Is this bozo REALLY a tenured professor at Harvard?
An example from the very first paragraph: “But enemies, being extra-legal, need to be faced with extra-legal force.” Say what? Aren’t all criminals “extra-legal”? Does this mean we give the police “extra-legal” force? Or take this sentence: “The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law.” In what way does “energy” correspond to “discretion”?
Of course all of this is in service of his dubious thesis that the Constitution should be interpreted as endorsing a unitary (unchecked) executive:

In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. The Framers made a strong executive in order to have both power and security, and they took note of emergency occasions when more power gives more security.
Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws.

Note the selective use of the word “emergency”. Mansfield (and others of his way of thinking, like Alito) introduce the word to justify exceptional action in exceptional conditions, and then quietly drop it to leave the impression that they’re talking about ordinary, everyday powers. The equivocation is relentless – and blatant.
For a more complete take-down of this “profoundly silly” piece, see David Luban’s analysis over at Balkinization.

I just finished watching Al Gore’s speech in Washington today. (Here‘s the link to the RealMedia stream from C-Span, and here‘s the text of his remarks.) Highly recommended. And as Suburban Guerilla notes, it’s getting widespread positive coverage in the press. Perhaps the fourth estate is getting a spine. Congress next?

Must-read: Terry on “an environment of active hatred”. There’s no excuse for liberals to descend to the moral depths of Coulter and Derbyshire. None whatsoever.

An assessment of US Army tactics in Iraq, by the British Brigadier who is the Deputy Commander of the Office of Security Transition in the Coalition Office for Training and Organizing Iraq’s Armed Forces. (Couldn’t they have come up with an acronym for that? “DCOST in COTOIAF” sounds much better.) Sparks are flying. As the Guardian reports:

A senior British officer has criticised the US army for its conduct in Iraq, accusing it of institutional racism, moral righteousness, misplaced optimism, and of being ill-suited to engage in counter-insurgency operations.
The blistering critique, by Brigadier Nigel Aylwin-Foster, who was the second most senior officer responsible for training Iraqi security forces, reflects criticism and frustration voiced by British commanders of American military tactics.
What is startling is the severity of his comments – and the decision by Military Review, a US army magazine, to publish them.

[Later]
OK, I’ve read the paper now. It’s unfortunate that the media have concentrated on a few easy, inflammatory topics. This seems to be a serious and well-researched study. Much of the data is simply incontrovertible: the absence of COIN (counterinsurgency) training in the US Army, the cultural focus on “destruction” rather than “defeat”, and the surprising “de-professionalisation” of the US Army during the 1990s. I had not previously been aware of the “exodus of the captains”, which led to rushed promotions and a consequent reluctance to trust junior officers, exacerbating the trend towards bureaucracy and micromanagement. (None of these issues should be unfamiliar to business people who have been involved in rapid organizational change.)
And the article closes with another idea that resonates for those of us in commercial organizations. The US Army is showing signs of “silver bullet” thinking. (My term, not the author’s.) It’s recognized many of the issues, it’s establishing programs to address the defects – especially in training – but it still views these changes in terms of its core warfighting mission. It’s like Christiensen’s The Innovator’s Dilemma; the US Army doesn’t realize that it has to deliberately replace and supercede its old thinking and culture, not merely patch it up. The author is concerned that the US Army may be starting to congratulate itself on having successfully recognized the need for change and adapted, not realizing that it hasn’t really changed at all. And how easy it is to make that mistake….

Geoffrey R. Stone posts a fascinating analysis by an impressive squad of constitutional scholars of Bush’s law-breaking. (I wonder if any Senator will read this into the record and ask Alito about his opinion.) It’s long, but surprisingly readable. Bottom line:

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President–or anyone else–to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

Of course the next questions is, “Is anyone going to do anything about it?”