Thursday, November 10, 2005
Wednesday, November 09, 2005
Tuesday, November 08, 2005
Senator Trent Lott (R-MS) told CNN's Ed Henry Tuesday afternoon that he believed it was a Republican senator who gave information about secret CIA jails abroad to the Washington Post, RAW STORY can report.
Lott said that much of the information contained in the Post report -- which stated that the U.S. was holding terrorist suspects in secret CIA jails overseas -- was discussed at a meeting of Republican senators last Tuesday.
The revelation appears to torpedo the political gambit of Senate Majority Leader Bill Frist (R-TN) and House Speaker J. Dennis Hastert (R-IL) who called on the Senate and House intelligence committees to investigate who leaked the information to the Post.
That's it, if this pans out, I'm going to dust off my copy of the Upanishads and convert to Hinduism.
UPDATE: CNN has confrimed this much. Trent Lott indeed told a roomful of reporters that he believes that a Republican Senator and/or staffer leaked the "black sites" story to the Post. According to CNN's Ed Henry, Lott "stunned reporters" by disclosing that the "black sites" were discussed at a republican-Senators-only luncheon with Dick Cheney the day before the Post article ran (once again, the image of a beer hall in Munich around 1923 leaps to mind, don't know why). Apparently Lott complained that "we can't keep our mouths shut" and that "every word that was said in there [i.e., inn the Minich-beer-hall luncheon] went right to the newspaper." Wolf Blitzer then dons his Captain Obvious suit and says, "this could really boomerang against the Republican leadership." ThinkProgress has the video.
There can be no doubt (to use the immoral words of the Big Dick himself) that this is an hilarious spectacle. And I do hope that Lott's instinct is correct and that at least one source for the Dana Priest article is a Republican Senator or Senate staffer. But I'm getting a distinctly fishy whiff from Lott's statements. First of all, taking Lott's statements at face value (perilous, I know), he is basing his belief in the GOP origin of the leak on the coincidence of the article coming out the day after the black sites were discussed at a GOP-Senator-and-Cheney luncheon putsch and the similarities between what was related in the meeting and what Dana Priest reported in the Post. That is, to be sure, a might big co-ink-ee-dink. But I have a number of problems with the Lott scenario all the same:
The Post article simply does not look like something that was dashed off in less than one day on the basis of a leak from a Senator or hill staffer. To the contrary, looking first just at the substance of the thing, it appears to be a throughly researched piece, with a great deal of background and context woven into it, not simply a wad of Capitol Hill dish. Moreover, even allowing for some of the, shall we say, vagaries of how reporters describe anonymous sources, the piece is sourced variously to: "U.S. and foreign officials familiar with the arrangement"; "current and former intelligence officials and diplomats from three continents"; "officials familiar with the program"; "current and former and U.S. and foreign government and intelligence officials"; "four current and former officials"; and, more specifically, in some instances to "a former senior intelligence officer who worked in the CIA's Counterterrorist Center"; "another former senior CIA official"; and "a senior CIA officer." If we were dealing with Judith Miller rather than Dana Priest, I might be less credulous, but I'd say it is very safe to say that Priest has at least four sources, probably more -- at a minimum, two distinct former CIA officials (part of the Goss purge, no doubt), one current CIA official (that's one brave hombre), one or more current or former State officials. I would like to think that there's somebody at Justice with a conscience and a set of cojones as well.
I listened to Dana Priest's interview on the Diane Rehm show last week, and in it Priest convincingly and credibly painted a picture of a story that has been long in the making and that is based on disclsoures from a variety of long-cultivated sources. She was rather cagey when asked why those sources suddenly decided to talk about the black sites; her response was that it was due to the dogged pursuit of the information (or words to that effect), which is certainly tantalizing. But I was convinced -- especially having read the article -- of her veracity on the matter of the article's development.
None of this, of course, excludes the possibility that one of Priest's sources was a GOP Senator or Hill staffer. Indeed, some of the information reported smells like it might have come from the Hill (e.g., "[t]he CIA and the White House . . . have dissuaded Congress from demanding that the agency answer questions [about the treatment of CIA-held prisoners] in open testimony" or "[m]ost of the facilities were built and are maintained with congressionally appropriated funds, but the White House has refused to allow the CIA to brief anyone except the House and Senate intelligence committees' chairmen and vice chairmen on the program's generalities"). But what I have briefly cataloged above certainly leads me to doubt that a Hill souce -- if one does exist -- was anything like the prime source for the piece.
It also is possible that Lott knows more than he is letting on and that he actually does have some inside info on a GOP leak. But color me very, very suspicious. Let's hope Lott's not handing the Democrats a boomerang.
Thursday, November 03, 2005
Without plumbing what Jack Shaefer aptly calls the "deep weeds" of the Niger forgery story (aka "The Italian Job"), suffice to say that Hadley's Sept. 9, 2002 meeting with Italian intelligence chief Nicolo Pollari is an awfully big co-ink-ee-dink, given (a) the Sept. 8, 2002 launch of the White House Iraq Group's grand bamboozlement campaign (aka Project Silver-Bullet-Smoking-Gun-Mushroom-Cloud), a major feature of which was the notion that Iraq was on the brink of fetching tons of yellowcake uranium, (b) the U.S.'s prior receipt, confirmed by even the Silberman whitewash report, of verbatim transcriptions of the Niger forgeries from Itallian intelligence sources, and (c) the subsequent transmission of the forgeries themselves from the U.S. Embassy in Rome to Washington (perhaps directly to the White House), by way of an Italian journalist working for Berlusconi's paper Panorama. (Confused yet? That's just the very tips of the weeds peeking out amid the pond scum.)
It looks as though there's just too much confirmation out there that Hadley had the meeting for there to be a denial. That's OK, Hadley was prepared with the greatest of talking points: I don't really remember much of anything that did occur at that meeting, but I do recall very clearly what didn't happen at that meeting--viz., that I didn't get no dodgy documents handed to me. (As Josh Marshall astutely points out, no-one was actually making the allegation that Pollari passed Hadley the docs at that point; we all know the documents came over later. There's a a way to describe a person who gives an impromptu denial of a damning allegation that hasn't been made. What is it? Oh, yeah: GUILTY.)
Continuing this theme, Hadley then goes on to field a question about the CIA "black sites" in which he says, basically, 'We're not saying those facilities exist, but we don't mistreat anyone in those facilities if they did exist, which we're not confirming, ok?"
This would be hilarious, except for the fact that our country has set up secret prisons around the globe and is doing unspeakable things to people in them.
Wednesday, November 02, 2005
Well, it looks as though the price of gold is headed for another tumble:
CIA Holds Terror Suspects in Secret Prisons
Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11
By Dana Priest
Washington Post Staff Writer
Wednesday, November 2, 2005; A01
The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.
The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe . . . .
The hidden global internment network . . . . depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions.
The existence and locations of the facilities -- referred to as "black sites" in classified White House, CIA, Justice Department and congressional documents -- are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.
Hmmm, I guess if the Preznit promises to track down and "take care of" whoever leaked this classified information, we might actually take him at his word this time.
[T]he CIA has not even acknowledged the existence of its black sites. To do so, say officials familiar with the program, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad.
Goodness! We con't have that, can we? Of course, I guess it hasn't occurred that the best way to minimize the risk of lawsuits and political condemnation for illegal and immoral activity is to, um, not engage in illegal and immoral activity.
Since [the immediate aftermath of 9/11/01], the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. Mid-level and senior CIA officers began arguing two years ago that the system was unsustainable and diverted the agency from its unique espionage mission.
Oh, so it did occur to someone in the CIA. Oh good. There has been spirited debate on the matter. I rest much easier now.
It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials.
I think the English transaltion of this passage is that administration lawyers say it violates U.S. law to do this at home but it does not violate U.S. law to do it abroad. I don't think the latter proposition is true, but I am certainly willing to believe that the administration has lawyers who say it's true.
Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.
Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law.
Tuesday, November 01, 2005
A fine way to interrupt Operation Change The Subject and a damn fine bill of particulars against the lying scumbags. A taste follows:
The Libby indictment provides a window into what this is really about: how the Administration manufactured and manipulated intelligence in order to sell the war in Iraq and attempted to destroy those who dared to challenge its actions.
As a result of its improper conduct, a cloud now hangs over this Administration. This cloud is further darkened by the Administration's mistakes in prisoner abuse scandal, Hurricane Katrina, and the cronyism and corruption in numerous agencies.
And, unfortunately, it must be said that a cloud also hangs over this Republican-controlled Congress for its unwillingness to hold this Republican Administration accountable for its misdeeds on all of these issues.
Let's take a look back at how we got here with respect to Iraq Mr. President. The record will show that within hours of the terrorist attacks on 9/11, senior officials in this Administration recognized these attacks could be used as a pretext to invade Iraq.
The record will also show that in the months and years after 9/11, the Administration engaged in a pattern of manipulation of the facts and retribution against anyone who got in its way as it made the case for attacking Iraq.
There are numerous examples of how the Administration misstated and manipulated the facts as it made the case for war. Administration statements on Saddam's alleged nuclear weapons capabilities and ties with Al Qaeda represent the best examples of how it consistently and repeatedly manipulated the facts.
Not ony that, but Reid's maneuver scared/shamed Pat Roberts (R-Jesusland) into moving forward on Phase II of the Senate Select Committee on Intelligence's investigation into prewar intelligence on Iraq, i.e., the one that was supposed to look into whether the Cheney squad pulled a Gulf of Tonkin on a gullible press and public. (Answer: Of course they fucking did. With apologies to the Great Bearded One, history repeats itself -- the first time as tragedy and the second time as, well, tragedy.)
Good on you, Harry. Best don that flak jacket posthaste.
Friday, October 28, 2005
2. "Official A" is, of course, Rove. We'll be hearing more about him before too long. My first instinct on the unnamed "Undersecretary of State" is Marc Grossman. But outside odds make it John Bolton. That would be delicious. "Goo-goo-goo-fucking-joob" indeed. But let's not get too greedy too soon.
3. Fitz is not done. He's probably not even done with Scooter. Scooter's love-letter to Judy deserves its very own count in a superseding indictment.
4. Any efforts to crank up the noise machine to go after Fitz will backfire, horribly. He's very, very good. And he's just doing his job. Very well.
I think we will get something short of ten lords a-leaping, eleven pipers piping, and twelve drummers drumming -- but we should get at least a Libby in pear tree. I'm still holding out hope for turdle doves Rove and Hadley.
Don't put too much stock in the "no Rove indictment today" line, as it is clearly coming from Rove's lawyer "Goldbar" Luskin. That decision is obviously going down to the wire because Luskin and Fitz are in deep negotiations. The decision might be deferred as the talks continue, and it might not. All depends on a lot of things we don't know (and that Luskin ain't gonna tell us).
Thursday, October 27, 2005
Cheney, Libby Blocked Papers To Senate Intelligence Panel
Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources.
Among the White House materials withheld from the committee were Libby-authored passages in drafts of a speech that then-Secretary of State Colin L. Powell delivered to the United Nations in February 2003 to argue the Bush administration's case for war with Iraq, according to congressional and administration sources. The withheld documents also included intelligence data that Cheney's office -- and Libby in particular -- pushed to be included in Powell's speech, the sources said.
The new information that Cheney and Libby blocked information to the Senate Intelligence Committee further underscores the central role played by the vice president's office in trying to blunt criticism that the Bush administration exaggerated intelligence data to make the case to go to war.
My only complaint: Why, Colin, did you wait so long? Did Poppy Bush keep the leash on Snowcroft through the last election?
Wednesday, October 26, 2005
Since there is not enough time to show my work, I'll skip ahead to the predictions/speculations -- as hinted at below.
Two, possibly three indictments approved by the grand jury today: Just about certain that Libby and Rove will be the first two. Libby for a classified-information-related charge (whether IIPA, Espionage Act, or something else) as well as for perjury and obstruction. Rove for perjury and obstruction alone (Fitz likely offered to deal down to a plea of lying to federal agents, and Rove said, no I'm going for all the marbles). Rove skates by any mishandling-of-classified-information charge because his (final) story that he got the info from Libby and had no idea it was classified checks out (and, frankly, that makes some sense).
As for the possible third, my money's always been on Hadley. As the Croupier says, always go with your first count, odds are you're right.
Indictments remain sealed for some time. Plea bargain offers from Fitz remain on the table.
A new grand jury is empanelled to finish up the job, which shouldn't take too long now.
I propose the following severance package: If you (Judy) walk away, we (The Times) will not hold you personally responsible for the millions of dollars in lawyers' fees that your mendacious ass cost the newspaper (not to mention the incalculable damage you have done to what is left of our credibility).
Long Overdue Headline of the Year, First Prize, should appear tomorrow or Friday. My guess: "Rove, Libby Indicted: Indictments Remain Sealed; Special Prosecuotor Empanels New Grand Jury; Questions About Cheney's Involvement Seen as Focus"
Tuesday, October 25, 2005
Well, Steve Clemons -- who generally has pretty damn good sources -- reports that Fitz will hand down 1-5 indictments tomorrow, that the indictments will be sealed and that a press conference will follow on Thursday. Josh Marshall seems to vouch for Clemons's source.
Wonkette reports rumors that Fitz will recall some witnesses, which she believes contradicts this other rumor.
And Thinkprogress sez CBS Evening News will say that Fitz will announce indictments tomorrow.
One tantalizing tidbit is the notion of "sealed indictments." Indictments are usually seaaled until the defendant is apprehended or turns him/herself in, but they can remain sealed for cause. One cause could be: the need to impanel a new grand jury to complete the investigation. (Fitz's current grand jury has served its maximum 18 months and cannot be extended further.) This could well be what will happen -- and it is a hypothesis that accounts both for Clemons's info and Wonkette's rumors: Fitz will perhaps bank a number of sure-fire indictments now and continue the investigation. Which would mean we can't peek at Father Fitzmas's presents yet. But we will surely find out who's indicted before long.
This scenario would make sense. While I certainly credit Fitz with being many chess moves ahead of the Gang That Couldn't Lie Straight, an awful lot of new information and document have surfaced only recently. The apparently recent appearance of Scooter's notes of a June 12 meeting with Cheney would likely be reason enough to impanel another grand jury to tie everything up. (Fitz's investigation of Governor Ryan's little mob, I believe, took two grand juries, and resulted in a second superseding indictment that included all of the dirt dug up by each.)
By the way, it's fun to remember that obstruction of justice, bribery, and witness tampering are all RICO predicate crimes.
Boy can dream, can't he?
UPDATE: I am reminded that David Corn mused about the possibility of sealed indictments a few days ago.
Friday, October 21, 2005
Wednesday, August 31, 2005
The product of this, shall we say, somewhat disorderly process is, predictably, an epic cock-up. The document is riddled with internal contradictions. No law shall contradict the "undisputed laws of Islam" (sharia), yet no law shall contradict the "principles of democracy." Gee, when a document declares sharia to be a matter "undisputed," while also offering some sort of ritula obeisance to "the principles of democracy," one can be forgiven for wondering which one wins in a fight between the "undisputed laws of Islam" (elsewhere declared to be a "fundamental source for legislation") and the mushy, loosey-goosey, hippie-dippie "principles of democracy"? And of course the draft contains various forms of accellerant for the already at-least smoldering civil war by, for instance, allowing for an Iran-supported shi'ite superstate in the south. To top it all (because there really aren't enough fuckups in this misadventure), our man in the Green Zone, Zalmay Khalilzad,* is suggesting that this turkey should be subject to further tinkering before the October (!) referendum. (Good thinking, Zalmay. Yes, by all means, let a thousand discrepant drafts bloom! How in the hell will the punters even know what draft they're voting on, one wonders?)
Excellent work by the administration. Props all round.
*Khalilzad, by the way, was heavily involved in the Reagan Administration's amazingly forward-looking idea of arming the mujahadeen in Aghanistan. Khalilzad then crowed about the "victory" that was soon to usher in the Taliban on the Op-Ed page of the Washington Post through an oily piece of propaganda called, "How the Good Guys Won in Afghanistan." (Gee, the punchline is already written!) Given how things turned out there, I think the old Medal of Freedom is too low an honor for this rube once he gets done thoroughly fucking up in the Green Zone. Chimpy should nominate him for the Nobel Peace Prize, I would think.
Now let's take a trip to the Dr. Pangloss files, shall we, to see what our fearless leaders previously said about this grand experiment in democracy?
In response to Tim Russert's question of February 8, 2004 -- "If the Iraqis choose . . . an Islamic extremist regime, would you accept that . . . ?" -- our Prognosicator-in-Chief said:
They're not going to develop that. And the reason I can say that is because I'm very aware of this basic law they're writing. They're not going to develop that because right here in the Oval Office I sat down with Mr. Pachachi and Chalabi and al-Hakim, people from different parts of the country that have made the firm commitment, that they want a constitution eventually written that recognizes minority rights and freedom of religion.
Ahhh, a "Shiia fellow" assured Resident Bush that Iraq is going to be "a free society where you [a Methodist] may worship freely." Sure, so long as your freedom in no way "contradicts Islamic law."
I remember speaking to Mr. al-Hakim here, who is a fellow who has lost 63 family members during the Saddam reign. His brother was one of the people that was assassinated early on in this past year. I expected to see a very bitter person. If 63 members of your family had been killed by a group of people, you’d be a little
bitter. He obviously was concerned, but he — I said, you know, “I'm a Methodist, what are my chances of success in your country and your vision?” And he said, “It's going to be a free society where you can worship freely.” This is a Shiia fellow.
What, me worry?
And dig Rumsfeld, running with the Administration meme on April 24, 2003:
[I]f you are suggesting how would we feel about an Iranian type government, with a few clerics running everything in the country. The answer is, that ain’t gonna happen, I just don’t see how that’s going to happen.
(In the same interview, Rummy also wheeled out the old "pockets of resistence" line as well.)
Missed it by that much!
For his next press conference (if his handlers ever allow another), Chimpy could do worse than crib his script from Voltaire. Just imagine David Gregory as Candide.
"Well, my dear Pangloss," said Candide to [Pangloss], "when You were hanged, dissected, whipped, and tugging at the oar, did you continueto think that everything in this world happens for the best?" "I have always abided by my first opinion," answered Pangloss; "for, after all, I am a philosopher, and it would not become me to retract my sentiments; especially as Leibniz could not be in the wrong: and that preestablished harmony is the finest thing in the world, as well as a plenum and the materia subtilis."(Cf. Bush's Press the Meat appearance, supra, containing this lovely nugget: In response to Russert's query "Why do people hold you in such low esteem?" President Flightsuit responded, in pertinent part, "I think that people — when you do hard things, when you ask hard things of people, it can create tensions. And I — heck, I don't know why people do it. I'll tell you, though, I'm not going to change, see? I'm not trying to accommodate — I won't change my philosophy or my point of view." Hmmm. Perhaps he reads more than we credit him for.)
He read it this way just to make it more challenging.
Thursday, August 11, 2005
Taking out my trusty calculator, I estimate that this will be roughly equivalent to the result of having 1 million Denny Hasterts talking simulataneously for 20 minutes.
Warming hits 'tipping point'
A vast expanse of western Sibera is undergoing an unprecedented thaw that could dramatically increase the rate of global warming, climate scientists warn today.
Researchers who have recently returned from the region found that an area of permafrost spanning a million square kilometres - the size of France and Germany combined - has started to melt for the first time since it formed 11,000 years ago at the end of the last ice age.
The area, which covers the entire sub-Arctic region of western Siberia, is the world's largest frozen peat bog and scientists fear that as it thaws, it will release billions of tonnes of methane, a greenhouse gas 20 times more potent than carbon dioxide, into the atmosphere.
Wednesday, July 27, 2005
WASHINGTON -- An independent panel headed by two former U.S. national security advisers said Wednesday that chaos in Iraq was due in part to inadequate postwar planning.But hey, how can you trust the product of two raving revolutionaries like Brent Snowcroft and Samuel (no, those aren't classified National Archives records in my pants, I've just been daydreaming about Jessica Simpson) Berger.
Meanwhile, back at the White House:
"Heh, heh . . . Mars, bitches!"
Thursday, July 21, 2005
I hold no brief for Roberts, to be sure (see last post), but he is a less-unreasonable, less-in-your-face choice than expected. As such, the nomination is no doubt an index of how wounded Shrubbie is politically right now. All of the women under consideration other than the maguffin, Clement (who apparently wasn't really being seriously considered but was only on the list to serve as a head feint and smokescreen) are nasty pieces of work (Jones, Owens, Brown). As I noted below, the fact that he's very smart and very talented might make him more dangerous than one of those Looney Tunes, but for the same reasons, it's hard -- indeed, I think, impossible -- to say he's not qualified.
And let's tick off just a couple fo the costs. First of all, a war will consume an awful lot of money that is needed to fight Rehnquist's replacement, and believe it or not there is a limited quantity of George Soros's money to be spent. Second, it would cost us dear in the precious currency of credibility. And like it or not, we need it. They seem to get by fien without it. Life sucks but that's the way of the world right now.) Going to the mat on Roberts would play right into the prefabricated talking point that the libr'lz are going to put a Fatwa on anyone Bush nominates, doesn't matter who. And, c'mon folks. He's very conservative. Anyone able to keep a straight face while pretending to be surprised that Bush didn't appoint a "moderate" like O'Connor? (And don't get me started on Sandy. She's not really moderate so much as incoherent. And her presence on the Court has contributed mightily to incoherent constitutional doctrine.)
Much more intriguing is Billmon's later suggestion (prompted by, of all things, reading an Ann Coulter screechfest) that we should instead consider using some jujitsu.
[M]aybe the Dems should praise him instead of slamming him. Talk about his tolerance and his respect for diversity. Congratulate Bush for picking such a moderate, fair-minded jurist -- one who has already testified that Roe v Wade is settled law." Tell the world they're overjoyed the president selected a nominee who can reach across the partisan divide, instead of some extremist skin job with a radical religious agenda. Smother Roberts in some hot, juicy Demo love.
Say that kind of stuff often and loud enough, and it might plant some seeds of doubt in those tiny wing-nut minds: "If the filthy 'rats like him so much, he mus' be some kinda librul."
Now that's some deep-game thinkin'. I like it.
But lets get back to Mr. Justice WhiteMan himself for a moment. There are definitely serious-ass concerns.
If we can strive to think about something other than abortion for a moment, I think Roberts is a serious threat to all manner of beneficial federal regulation. Hell, it appears that while in law school, he was dreaming up ways to resurrect the Lochner-era notion that the constitutional provision prohibiting laws "impairing the obligations of contracts" elevates freedom of contract to a sacral realm that cannot be touched by social and economic regulation.
I am very troubled by his dissent in Rancho Viejo v. Norton, in which he argued in a that Congress was without power under the Commerce Clause to apply the Endangered Species Act to matters such as a property developer's rare-toad-killing development activities because there was no evidence that -- I shit you not -- the particular toad or toads in question ever hopped across state lines. (For the unitiated, the power ‘‘[t]o regulate Commerce . . . among the several states" -- the Commerce Clause -- is the most potent source of legislative authority in the Constitution. Without it we wouldn't have, among other things, the Civil Rights Act of 1964, the National Labor Relations Act, the Fair Labor Standards Act, you get the idea. Lose the Commerce Clause authority and we lose a LOT.) I find the fact that Roberts took up his pen here particularly significant because of the posture of the case. A three-judge panel of the D.C. Circuit (a court that handles a hugely disproportionate amount of regulatory litigation, and which is hardly stocked full of wooly-headed Bolsheviks) had already concluded, in a very able opinion I might add, that the Endangered Species Act in fact applied to Rancho Viejo's bulldozing of rare toads and that such application was not outside Congress's Commerce Clause authority. Thus, Roberts's dissent was addressed to the court's failure to take the case en banc (that is, before the full complement of D.C. Circuit judges) in order to overrule the panel decision and overrrule some settled precedents as well. As noted, this court is hardly brimful with hariy Marxists, and only one other judge (Sentelle, don't get me started on him) thought the same way. Thus, that decision is significant for two reasons beyond the fact that it's just plain scary on the merits (and a little nutty to boot, although his position finds solace in some of the Supremes' recent -- but, significantly, pre-medical-marijuana -- Commerce Clause cases): First, it shows clearly what kind of stuff lights Roberts's fire -- regulatory legislation that gets in the way of bulldozers (well, really, any economic activity). Second, and in a related vein, it gives us a window into where he might want to go in terms of blazing new legal trails (and, perforce, bulldozing precedents) as a Supreme. And it don't look good.
In addition, Roberts joined the opinion of another D.C. Circuit Brownshirt to hold in Hamdan v. Rumsfeld that (1) the Administration's Kangaroo 'Military Tribunals' were properly authorized by Congress's pussilanimous 9/11 terrorism resolution and two other (rather obscure) federal laws; and (2) the Third Geneva Convention's protections for prisoners of war are not enforceable in court. Also bad news.
These are my Big Two red flags. That said, I must confess to finding it impossible even to feign being exercised over Roberts’ ‘french fry’ ruling. For those unfamiliar, the DC Metro authorities decided that the chief problem confronting commuters on the subway system of the nation's capital is not bomb-wielding zealots but rather fast food consumption, especially by minors. Accordingly, they adopted a zero-tolerance policy for any violation of a D.C. law forbidding passengers from sipping their coffee or stuffing their faces with heavily salted foods. A young girl was arrested and detained pursuant to the policy and tried to make a federal case out of it, alleging that the stupid, hamfisted antics violated the Constitution. Roberts wrote the opinion (for a unanimous panel) affirming the trial court's dismissal of the case.
Why no outrage?
Well, first, the decision seems pretty unimpeachably correct. The girl claimed an equal-protection violation based on the theory that she was singled out for extra nasty treatment because of age (older spud-eaters were not arrested), but that claim involves the absolute lowest-level scrutiny of the government's action, which virtually always requires that the challenged action be upheld. She also claimed a Fourth Amendment violation, a claim that is dead on arrival in light of the Supreme Court’s decision upholding the arrest and detention of a woman for failing to wear her seatbelt in Atwater v. City of Lago Vista. Shitty decision, for sure. But you have to blame Souter (who wrote the opinion) as well as Rehnquist, Scalia, Thomas, and Kennedy (who joined) for that one.
Second, I have to admit that Roberts writes a damn good opinion, and in this one he took pains to be kind to the plaintiff. Here's the first paragraph:
No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.
Hell, when I lose a case, that's how I like to lose it. By the way, the hapless motorist in Atwater had a shitty time of it too, but you see nary a kind word in Souter's very businesslike opinion. Here's her ordeal:
In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint . . . Turek approached the truck and “yell[ed]” something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two hundred times.” Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.While Roberts has been accused of writing a hard-hearted decision in the french fry case, check out what Souter (a justice I otherwise admire greatly) says after recounting Atwater's travails. Does he make so much as a nod to the fact that the treatment is hugely disproportionate or "foolish"? No. He starts with a history lesson: "We begin with the state of pre-founding English common law and find that [based on some 20 pages of really unenlightening historical meandering, the common law was just fine with warrantless arrests on the spot]."
I'm just sayin'.
*Rehnquist is clearly opting for death-at-desk, so I think we can probably count on him being in on at least the first cases in October.
Given his solid Repugnican creds -- White House counsel's office under Reagan, "political" deputy Solicitor General in the Bush I Justice Department, etc. -- the likelihood of him turning Souter- or even Kennedy-ish is pretty damn slim. But I wouldn't be surprised if he occasionally departed from the wolf pack here and there. I figure he's more interested in the "federalism revolution" -- that is, the devolution toward the Articles of Confederation -- and in scaling back federal regulation than the hot-button wingnut social issues, but that doesn't necessarily mean he wouldn't vote with the Gang of Three on, say, Roe. But he could surprise. (And we still have five votes on what's left of Roe.) Meanwhile, here's hoping that the increasingly nutty vitriol that Scalia is spilling in his recent opinions (or, rather, the Wall Street Journal Op-Eds he publishes in the Supreme Court Reports) continue to alienate Kennedy so much that that he inches further leftward.
Aside from that, all the hype about his intellectual firepower is pretty well warranted. As a judge, I've found him to be smart, tough, and extremely well prepared. He gets right at the heart of the issues with incisive questions. That is to say, he is more Scalia than Thomas. This, of course, makes him more dangerous than a whacknut like J.R. Brown or Priscilla Prissy-Pants Owen.While Brown and Owen would -- like Roberts -- be reliable conservative votes on various issues, those two are so crazy and thick that they would probably have little influence beyond their votes: A Brown or an Owens would write whacknut concurring opinions saying all sorts of crazy shit that would be very unlikely to garner other votes or be cogent enough to have influence in other ways (like, say, being picked up with any seriousness in the legal academy). Roberts on the other hand has chops to really have some influence on the Court and beyond.
Politically, this was a shrewd move, and not just as the opening fusillade in Operation Knock Rove Off the Headlines. I think that Democrats in the Senate would be well-advised not to attempt to launch a major war against the nomination but rather should save their ammunition for other fights (like, say, recapturing the Senate in '06 while hoping that Rehnquist has the best doctors in the world). There is no way that Roberts is not going to be confirmed. To be sure, sometimes you should fight even if you think that confirmation is a sure bet, but he does not have the kind of crazy-ass record that would allow the Dems to score any political points that way. Quite the contrary. My advice to Dem Senators: Question him hard, show as much as you can where he stands, show where he's unwilling to commit, vote against him, and move on. The Rethugnicans who actually have to run for re-election are likely to pay a price for Bush's failure to replace O'Connor with a woman. If the Dems on the Judiciary Committee smoke Roberts out on any major issues (which is unlikely in any event), his appointment may cost the Republicans some more moderate votes as well.
Wednesday, June 29, 2005
In the film, Danny utters these words in the waning days of September, 1969. Shortly after this fictional event (on Nov. 3, 1969 to be precise), a very real (albeit fictional-seeming) Richard Milhaus Nixon responded to escalating unrest over the Vietnam War by giving his (in)famous "Vietnamization" speech. In it, Milhaus offered his own version of Danny's Balloon Thesis:
Sit down man, find your neutral space. You have done something to your brain. You have made it high. If I lay 10 mills of diazepam on you, you will do something else to your brain. You will make it low. Why trust one drug rather than the other? That's politics ain't it?
. . . .
If you are holding onto a rising balloon you are presented with a difficult political decision: let go while you've still got the chance or hold onto the rope and continue getting higher. That's politics man.
We are at the end of an age. The greatest decade in the history of mankind is nearly over. . . . . It is 91 days to the end of the decade and as Presuming Ed here has so consistently pointed out, we have failed to paint it black.
Milhaus, of course, chose to hang on to the balloon: "I have chosen this second course. It is not the easy way. It is the right way."
My fellow Americans, I am sure you can recognize from what I have said that we really only have two choices open to us if we want to end this war.
-I can order an immediate, precipitate withdrawal of all Americans from Vietnam without regard to the effects of that action.
-Or we can persist in our search for a just peace through a negotiated settlement if possible, or through continued implementation of our plan for Vietnamization if necessary - a plan in which we will withdraw all of our forces from Vietnam on a schedule in accordance with our program, as the South Vietnamese become strong enough to defend their own freedom.
Why do I once again trouble you, my one and only reader, with the dark name of Milhaus? Why do I disturb your dreams with the nightmare image of the melon-jowled trickster figure of U.S. History? Well, mon semblable, mon frère, I do this to you because our Commander-Cuckoo-Bananas-in-Chief positively channeled the old villain while exhorting his fellow 'mericans to please, dear Je-yay-sus, hang on to that balloon.
Let it not be said that "the greatest decade in the history of mankind" passed George by without leaving a trace on his booze-addled brain, for last night's speech was not simply a rerun of George's own greatest hits (although it certainly was that), it was a stunning rewrite of Nixon's November excrescence, which featured such Smash Hits as "the great silent majority" and (who can forget?) the "just peace." Trust me, dear reader, the process of reading the two pieces side by side rewards the effort -- the edification it provides is worth the nausea it provokes. For the more squeamish, I will offer the following Cliffs Notes primer on the similarities between the speeches.
First, a little context.
- Nixon was facing mounting opposition to the Vietnam War, and decided to take to the airwaves to sell the policy of keeping U.S. combat troops in Vietnam until the "military forces" of "South Vietnam" were sufficiently trained to take over from the U.S. military the task of being systematically slaughtered by the Viet Cong and the North Vietnamese Army. Bush is facing mounting opposition to the Iraq War, and decided to take to the airwaves to sell the policy of keeping U.S. combat troops in Iraq until the "military forces" of "the New and Sovereign Iraq" are sufficiently trained to take over the task of being systematically slaughtered by Sunni and nationalist insurgents, soldiers and officers from the disbanded Iraqi Army, and a collection of foreign and home-grown jihadis.
Now the speech. The similarities abound. I will pick some of the choicest morsels.
- Milhaus pretends that he is executing a new policy of working to hand over the fight to the South Vietnamese: "[W]e are Vietnamizing the search for peace. . . . . Under the [Vietnamization] plan, I ordered first a substantial increase in the training and equipment of South Vietnamese forces. . . . . Under the new orders, the primary mission of our troops is to enable the South Vietnamese forces to assume the full responsibility for the security of South Vietnam." Dubya pretends that he is executing a new policy of working to hand over the fight to the Iraqis: "Our strategy can be summed up this way: As the Iraqis stand up, we will stand down. . . . . Our task is to make the Iraqi units fully capable and independent. We're building up Iraqi security forces as quickly as possible, so they can assume the lead in defeating the terrorists and insurgents." Well, this worked so swimmingly from 1968-1975, why not give it another whirl, eh?
- Milhaus sez, we're making progress: "And now we have begun to see the results of this long overdue change in American policy in Vietnam. [Et lying-ass cetera, et lying-ass cetera.]" Dubya sez, we're making progress: "In the past year, we have made significant progress. [Et lying-ass cetera, et lying-ass cetera]. "
- However, Milhaus sez, timetable bad: "I have not and do not intend to announce the timetable for our program. . . . . [The enemy] would simply wait until our forces had withdrawn and then move in. . . . . [And if we withdraw troops] our allies would lose confidence in America. Far more dangerous, we would lose confidence in ourselves." However, Dubya sez, timetable bad: "Some contend that we should set a deadline for withdrawing U.S. forces. Let me explain why that would be a serious mistake. Setting an artificial timetable would send the wrong message to the Iraqis, who need to know that America will not leave before the job is done. It would send the wrong message to our troops, who need to know that we are serious about completing the mission they are risking their lives to achieve. And it would send the wrong message to the enemy, who would know that all they have to do is to wait us out." (OK, let's give Dubya's speechwriters credit for coming up with a reason or two that didn't appear in Nixon's speech.)
- Milhaus sez, I really, really do want to bring our troops home, but we have to defeat this boogeyman first: "There are powerful personal reasons I want to end this war. . . . . I want to end the war to save the lives of those brave young men in Vietnam. But I want to end it in a way which will increase the chance that their younger brothers and their sons will not have to fight in some future Vietnam someplace in the world." Dubya sez I really, really do want to bring the troops home but we have to defeat this boogeyman first: "I recognize that Americans want our troops to come home as quickly as possible. So do I. . . . . We have more work to do, and there will be tough moments that test America's resolve. We're fighting against men with blind hatred -- and armed with lethal weapons -- who are capable of any atrocity. . . . . They will fail."
- Milhaus sez, we've been in some tight spots before, but by gum we always pull through 'cuz we're Americans and are therefore always right: "We have faced other crises in our history and have become stronger by rejecting the easy way out and taking the right way in meeting our challenges. Our greatness as a nation has been our capacity to do what had to be done when we knew our course was right." Dubya sez, we've been in some tight spots before, but by gum we always pull through 'cuz we're Americans and are therefore always right: "America has done difficult work before. From our desperate fight for independence to the darkest days of a Civil War, to the hard-fought battles against tyranny in the 20th century, there were many chances to lose our heart, our nerve, or our way. But Americans have always held firm, because we have always believed in certain truths. We know that if evil is not confronted, it gains in strength and audacity, and returns to strike us again. We know that when the work is hard, the proper response is not retreat, it is courage. And we know that this great ideal of human freedom entrusted to us in a special way, and that the ideal of liberty is worth defending."
- Milhaus makes a pit stop at the last refuge of the scoundrel before wrapping up: "I know it may not be fashionable to speak of patriotism or national destiny these days. But I feel it is appropriate to do so on this occasion. Two hundred years ago this Nation was weak and poor. But even then, America was the hope of millions in the world. Today we have become the strongest and richest nation in the world. And the wheel of destiny has turned so that any hope the world has for the survival of peace and freedom will be determined by whether the American people have the moral stamina and the courage to meet the challenge of free world leadership." Dubya makes a pit stop at the last refuge of the scoundrel before wrapping up: "This Fourth of July, I ask you to find a way to thank the men and women defending our freedom -- by flying the flag, sending a letter to our troops in the field, or helping the military family down the street. . . . . At this time when we celebrate our freedom, let us stand with the men and women who defend us all."
Friday, June 03, 2005
I've just decided to settle for finding myself appalledly gob-smacked by the antics of the members of Nixon's former cabal following the revelation that Mark Felt -- former number 2 man at the FBI -- was the Woodstein source known as Deep Throat.
I have to admit that I'm finding my satiric abilities completely powerless in the face of:
- G. Gordon Liddy calling Mark Felt “unethical.”
- Robert Novak saying that “it goes against my grain” for Felt to be considered a hero (he's not, but what the fuck right does the Douchebag of Liberty have traducing anyone's integrity, especially as regards the leaking of information for ulterior purposes).
- Peggy Noonan, Ben Stein, and Chuck Colson saying -- with straight, albeit really ugly, faces -- that Felt, by taking down Nixon, is himself personally responsible for the killing fields of Pol Pot. (I guess he killed the cat that ate the rats who shat on the mats, or something or other, in the House that Jack Built).
Fortunately, we have Jon Stewart.
Now I really thought that the fulminations cataloged above might represent the high water mark in the Death of Irony flood-plain marker, but then Kissinger went and got himself interviewed on Hardball last night, claiming (drumroll please) Nixon vass ohnly JOKING about wanting to burglarize the offices of his enemies and set up a secret domestic espionage boutique within the CIA for the purpose of doing so, and and so on, so that the real problem was that some commendably loyal but foolish retainers TOOK THE OL’ JOKESTER SERIOUSLY (mit a hearty danke schön to Josh Marshall):
MATTHEWS: Let me ask you about the whole Nixon—and I‘m sure you‘ve thought this over a zillion times in your life in your long career and all that you‘ve done. If you think about Nixon and break-ins, I know I have a tape -- I listened to it myself over at the archives—of Nixon saying, go break into Brookings after the Pentagon Papers were published. There was another tape I listened to where he said, let‘s go break into the Republican headquarters and make it look like the Democrats did it. What is with Nixon and break-ins?
KISSINGER: You have to understand that Nixon had a habit of making grandiloquent statements. This was his way of letting off steam to prove that he was macho. And the people who really knew him would not act on these comments. When I learned about Watergate, I asked Bryce Harlow, who was a wise old man around Washington, I said , what do you think happened here, Bryce? And he said, some damn fool went into the Oval Office and did what he was told, because Nixon didn‘t mean these things to be carried out. And he didn‘t really order them. He would say these things rhetorically. Let‘s break into Brookings. . . .
Holy Murder in the Cathedral, Batman! I think I’ve heard this script before. You know, good ol’ King Harry II (whom I had always credited with the invention of the concept of ‘plausible deniability’) was himself just a misunderstood yuckster. When he declaimed his famous drunken query -- "Who will rid me of this meddlesome priest?"* -- why, he was just cutting up with his pals, practicing for a run in some Borscht-belt resort.
*This particular locution is, of course, the stuff of legend. As veteran smarty-pants, ruin-everyone's-fun Simon Schama points out, His Royal Hilariousness's actual lighthearted jape was more like this: "What miserable drones and traitors have I nourished and brought up in my household who allow their lord to be treated with such shameful contempt by a low-born cleric!" Simon Schama, A History of Britain: At the Edge of the World (2000).
Man, that Henry II was every bit the knee-slappin' gagmeister as the King of Comedy himslef, Milhaus.
Felt, by the way, is certainly no hero. I’m mighty glad he came along -- replete with all his agendas and mixed motives -- and he did great things. But he’s simply proof that good can come of intra-mural conflicts among the ruling class.
That Danny Ellsberg, on the other hand -- he who leaked the Pentagon Papers and was prosecuted for it -- now that’s a hero (which is of course why Liddy’s Crack Plumbers – or was it Plumbers’ Cracks? -- broke into his shrink’s office).