Hullabaloo

Tuesday, January 06, 2009

 
Not So Fast, Immunity Granters

by dday

Marcy Wheeler has a series of posts taking a look at some intriguing events in the courtroom of Vaughn Walker, the judge who the Bush Administration - and many Democrats - thought would be forced to rubber-stamp the immunity provisions in last year's FISA law. The biggest issue with that blanket amnesty was that we would never know the extent of the lawbreaking and that there would subsequently be no accountability for those who authorized and directed it. Well, Judge Walker isn't going along with that.

I just finished reading Vaughn Walker's opinion explaining that the government will have to give him the document that--the lawyers for al Haramain claim--shows they were wiretapped without a warrant under Bush's illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.

The al Haramain case was one where the lawyers for the prosecution accidentally gave the defense a secret transcript of the defendants (an Islamic charity), proving they were eavesdropped on without a warrant. At the time, a court ruled that even with a hard document like that, the defendants in al Haramain couldn't show standing, and they couldn't enter it into evidence because it was classified. Now Walker is essentially vacating that decision. Threat Level has more.

U.S. District Judge Vaughn Walker said the lawyers' amended lawsuit, even absent the classified document, showed there was enough evidence for the case to continue. The amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity the lawyers were working for and, among other things, a speech about their case by an FBI official.

"The plaintiffs have alleged sufficient facts to withstand the government's motion to dismiss," Walker ruled in a 25-page opinion (.pdf). Walker said the nation's spy laws now demand that he view the classified document and others to decide whether the lawyers were spied on illegally and whether Bush's spy program was unlawful.

The case concerns lawyers Wendell Belew and Asim Ghafoor, whose case appears now the most likely to lead to a ruling on the legality of Bush's warrantless-wiretapping program. That program started after the Sept. 11 terror attacks and involved various initiatives that peered into Americans' phone and internet usage without court approval — a surveillance program ratified by Congress last year in legislation immunizing participating telecommunication companies.

The deadline for the government to hand over the incriminating document for Judge Walker is the day before the inauguration. And Marcy lays out the additional stakes.

Remember, Vaughn Walker has more than just this FISA mess on his plate. He is also--as we speak--deliberating on EFF's suit to prevent the awarding of retroactive immunity to the telecoms for their role in the illegal wiretap program. In fact, last we heard from him, Walker was wondering why he shouldn't wait until the new President comes in, to see whether that President's Attorney General is really so sure that the retroactive immunity for constitutional violations was as legal as Michael Mukasey claims it to have been. BushCo, of course, insisted that it's unheard of for a new Attorney General to reverse what the prior Administration's Attorney General has said [...]

Mukasey has made his representations on this issue--both about the constitutionality of retroactive immunity, and about the legality of the underlying program--based on his typical crap about Yoo's OLC opinions.

But he's also about to hand over a document to Walker that proves that there are aggrieved parties that can sue the government for violating FISA. He's about to hand over a document that will demonstrate clearly that Bush broke the law.

It's going to be a lot harder for Walker to find retroactive immunity legal (not least because he's contemplating the same issues of separation of powers that has him so riled up here), and it'll be a lot harder for Mukasey's successor to continue to affirm the program itself was legal, if Walker is in the process of affirming that Bush broke the law.

Once again, when Congress cannot be trusted to uphold the rule of law, the judicial branch takes steps to bail them out. However, as mcjoan notes:

...it's very possible that we could finally have some light shed on the warrantless wiretapping program in this case. That should not, however, preclude Congress from finally conducting its own investigation in the form of a reconstituted Church Commission and the Obama administration from cooperating fully with that investigation. There really isn't a way for Congress to recover everything it lost in its myriad capitulations to a lawless administration. But a bright light shined on the whole affair might just keep it from happening yet again.

It will be interesting to see what the Obama Administration does with this once they come into office. The legal team assembled over the last few weeks doesn't seem like they'd be willing to carry forward Mukasey et al.'s warped legal theories, and yet Obama himself voted for immunity. Should be another early test.


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dday 1/06/2009 03:00:00 PM |

 
The Real Deal

by digby


Congratulations to Matt Stoller who is taking the DFH spirit to the Hill. Matt's a good friend of mine, so I'm biased, but I can't think of a person with more integrity or more passion for the progressive movement, and if he's crashing that gate, then change is no longer a slogan.

I'm sure that Matt will benefit greatly from getting an inside view of the nuts and bolts. But more importantly, I think the Hill will benefit greatly from getting a dose of Matt Stoller. Viva la revolucion.


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digby 1/06/2009 01:00:00 PM |

 
Torture Ideology

by digby

Did Chuck Todd recently attend a Mark Halperin seminar on how to be an insufferably obtuse purveyor of stale and useless insider conventional wisdom? (Or does he just have a natural talent for it?)

Check this out:

Competence And Ideology: One reason why intelligence has become such a tough nut for Obama to crack: There's a lot of Democratic rhetoric on intel from the presidential campaign, and it's something that Obama is allowing the intellectual left to have veto power over. Obama finds himself caught in this first intra-party vise between his instinct to pick competence over ideology. His first rumored choices for CIA were competent picks -- but both would have been eviscerated by the intellectual left because of their anger at Bush over interrogation practices. He's allowing ideology to trump competence for the first time in one of his major appointments. Now, the pick of Dennis Blair to be DNI is a tip toward competence, while the Obama folks hoped Panetta was a compromise between competence and ideology (Panetta was praised as a smart manager during the Clinton White House years). But it looks like it ain't being received that way...

Apparently being against torture is now a crazed left wing ideological position built on "anger" at George Bush. And it's incompetent, to boot.

I don't know how many times people have to make this point, but when it comes to torture it is not a matter of being mad at bush or even simple human decency. It is a matter of competence as well. Not only does torture not work as an intelligence tool, the sincere and public repudiation of torture is essential to the success of Obama's foreign policy. If he were to choose someone who was implicated in or associated with Bush's torture regime, his credibility around the world would be damaged before he even begins. It would be dramatically incompetent for him not to make a clear distinction both to the intelligence community and the rest of the world between his policies and the Bush administration's.

The fact that this is considered ideological at all by the vaunted centrist villagers tells you everything you need to know about their morals, their intelligence and their competence. But that's no surprise. These are people, after all, who giddily supported Bush and Cheney taking the gloves off, even though it was clear that it would end up making the country an international pariah and obviously, therefore, less safe. (Superpowers without a moral compass are inherently seen to be untrustworthy --- duh.)

As Greenwald said, the mere fact that the complicit whiners Feinstein and Rockefeller (who, you'll notice, immediately ran crying to the press) are upset about it, reflects well on the decision. I'm sorry that the intelligence community believes that the lefties are out to get them, but they really need to get a grip. As I've written before, the left has always supported the intelligence community and defends their intelligence gathering and analysis against the ongoing right wing attacks on them for being wimps for underestimating the threat. The left understands the need for intelligence, but they draw the line at secret coups, assassination, torture and other illegal activities. The community seems to be perfectly willing to take endless crap from the right for being befuddled, stupid and cowardly, but it goes into high dudgeon when anyone asks them to stop their more violent and illegal activities. That tells you more about them than it does about the "intellectual left."



h/t to bb


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digby 1/06/2009 11:30:00 AM |

 
I Gotcher Progressive For Ya, Right Here

by digby

If you want to know what a real progressive candidate looks like, this is the guy. He's running for Congress to fill Rahm Emmanuel's seat (which formerly belonged to Rod Balgojevich!)

Here's his statement:

Why I’m Running

By Tom Geoghegan

I’m running for Congress in the Fifth District of Illinois. As a Chicago lawyer for thirty years I have fought for working people in this District and throughout the city. I have represented unions as well as people with no unions to protect them. In plant closings I have helped them recover health and pension benefits. I obtained health care for the uninsured. I’ve been pressing the State of Illinois to crack down on payday lenders.

In my life as a lawyer I have lived out a commitment to one cause above all – to bring economic security to working Americans, in our District, in our country. That’s the same commitment I will bring to Congress. We’re deep in an economic crisis unlike any other we’ve known. It may last years. We need new and creative ways to protect working Americans, especially our older working people who have no real pensions to live on.

For years we’ve heard the doomsayers: “We can’t afford Social Security.” “We can’t afford ‘single payer’ national health.” One thing we all learned from the $700 billion bailout: We’ve got the money to do all of this and more. At the moment, the Federal Reserve is literally printing money, to give not billions but trillions to banks and financial firms. To the people of this District, the banks and others have gotten their money. Now it’s your turn. Here’s the bailout I will go to Congress to get:

First, I want to expand Social Security, our public pension system, to replace, not overnight but in stages, the private pension system which has collapsed. Social Security now pays about 38 to 39 percent of your working income. In other developed countries, it averages 65 percent. That’s where our fiscal stimulus should be: a commitment to reach this goal, a public pension that ordinary working people can live on.

Second we have to move to single payer health care program, at least in phases: we might begin with extending Medicare to children, but the government should ultimately be the single payer for all. That’s not because single payer is the only ethical and efficient way to protect us all. No, it’s also because it is crucial to making us competitive globally. Through single payer and expanded Social Security, the goal is to pick up the “non-wage” labor costs that employers now have to pay. That’s already how other countries out-compete us: they have the government and not the private employer pick up these non-wage health and pension costs.

Unless we have government pick up the costs of pensions and health care, our companies can’t compete, and we’ll go on piling up huge trade deficits. We’ll have debacles like GM, which has collapsed in part because of the health and pension costs that the federal government should have been paying all along.

For years, the conservatives have said: “We can’t do this. The money isn’t there.” Well, the money is there. It was there for the Iraq war, a colossal waste of money, and for the bailout, the first half of which has been a colossal waste as well. And if we now have the government pick up non-wage labor costs with the use of general revenues, we will in fact make it cheaper and easier for our companies to hire. This is in fact the best and most realistic approach for a long term recovery.

Finally we have to put limits on returns to financial firms. We should re-enact the usury laws, the interest-rate caps that were in place in America up till the 1970s. We need to stop the rates of 30 to 35 percent, the hidden fees, the hundreds of ways that banks pull our money out of industry and into gambling and speculation.

In my campaign, I will have a single minded focus on the economic security to working Americans, that’s why I so strongly support the Employee Free Choice Act and other changes in our labor laws. And that’s why I support policies that will reduce the debt of working Americans. Overall, the plan I am setting out here will help make our country more competitive.

I’m a strong supporter of President Obama. Yes, I strongly support his program to repair our infrastructure. Even so, we don’t have to pave the streets with gold. If not the meltdown then the bail out should have opened our eyes. The real fiscal stimulus has to be the kind that brings financial security to the middle class. The message of this campaign is: We’re moving beyond the bailout. Now it’s your turn.

I first found out about Geoghegan through his friend Rick Perlstein some years back, who turned me on to Geoghegan's books. They were the kind of books liberals always try to write but rarely pull off --- intelligent, informative and ... inspiring. They teach you how to see the legal system, American society and the world:

Which Side Are You On?: Trying to Be for Labor When It's Flat on Its Back

The Law in Shambles

See You in Court: How the Right Made America a Lawsuit Nation

The Secret Lives of Citizens: Pursuing the Promise of American Life

In America's Court: How a Civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial

If you want to support a real progressive to fill Rahm's seat you can donate through Act Blue.

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digby 1/06/2009 09:30:00 AM |

 
Village Ceremonial Burying Of Secrets

by dday

It's more than a little surprising to me that the choice for CIA Director of Leon Panetta, who I considered a card-carrying Villager if there ever was one, is ruffling such feathers inside official Washington, particularly official Democratic Washington. At first blush this looked like whining about not being informed, but it seems like there's more there. Here's the relevant section from the LA Times:

Sen. Dianne Feinstein (D-Calif.), who this week begins her tenure as the first female chair of the Senate Intelligence Committee, said today that she was not consulted on the choice and indicated she might oppose it.

"I was not informed about the selection of Leon Panetta to be the CIA director," Feinstein said. "My position has consistently been that I believe the agency is best served by having an intelligence professional in charge at this time." [...]

A senior aide to Sen. John D. Rockefeller IV (D-W.Va.), outgoing chairman of the Senate Intelligence Committee, said that the senator "would have concerns" about a Panetta nomination.

Rockefeller "thinks very highly of Panetta," the aide said. "But he's puzzled by the selection. He has concerns because he has always believed that the director of CIA needs to be someone with significant operational intelligence experience, and someone outside the political realm."

Most of the intelligence professionals at the top over the past eight years had plenty of "experience" and that didn't work out too well. The one who came from the political arena, Porter Goss (who was a former spy), wasn't so objectionable to Dianne Feinstein - I mean she voted to confirm him, after all. Of course, he was a Republican, which makes everything OK.

But I don't think this is about Panetta's lack of experience; it's his wealth of it, which presages a change in culture inside the agency.

Panetta's selection suggests that Obama intends to shake up the agency, which has had little public accounting of its role in detaining top terror suspects and transferring others to regimes known to use torture, a procedure known as extraordinary rendition.

The CIA, which denies subjecting detainees to torture, is part of a 16-agency intelligence community whose annual budget now exceeds $47.5 billion. The agency keeps its own budget and number of employees secret. Its successes, too, are mostly kept secret while some of its failures reach front pages.

Panetta has suggested that Obama could do much to signal a break with Bush administration policies by signing executive orders during his first 100 days that ban the use of torture in interrogations and close the Guantanamo Bay prison.

"Issuing executive orders on issues such as prohibiting torture or closing Guantanamo Bay would make clear that his administration will do things differently," Panetta wrote Nov. 9 in a regular column he published in his local newspaper, the Monterey (Calif.) County Herald [...]

"He will be an outsider and I think the president wants an outsider's perspective on the CIA," said Lee Hamilton, a former Indiana congressman and a former chairman of the House Permanent Select Committee on Intelligence who heads the Woodrow Wilson Center in Washington. "The intelligence community has lost a lot of confidence with the American people and the Congress. I'm talking about 9/11, the Iraq war."

It's that he's an outsider with enough institutional power to actually make changes, and the moral compass to make those decisions based not on burying the past but rooting it out. THAT'S what has DiFi and Jello Jay spooked. In fact, they wanted Michael Hayden's right-hand man to take over.

NBC News has learned that Senate Democrats -- including Dianne Feinstein and Jay Rockefeller, who are the incoming and outgoing Intelligence chairmen -- have privately recommended a career CIA officer to head the agency.

Democratic sources indicate that both have recommended deputy CIA Director Steve Kappes, a veteran CIA intelligence officer who is widely credited with getting the Libyans to give up their nuclear program. Kappes also was former Moscow station chief [...]

One potential downside for Kappes: Like former counter-terror chief John Brennan, some critics says he had line authority over controversial decisions involving interrogation and detention. Brennan was taken out of contention for the CIA job after criticism on the Web on that issue, even though he says he privately objected to the policies and was not in the chain of command at the time.

Panetta isn't going to be sneaking through the Middle East collecting human intelligence; he's going to be managing a large bureaucracy. But moral lepers like DiFi value "experience" that will lock in the status quo over experience that will reveal the agency's sins, and by extension her own. They don't want to risk any culpability on their part from becoming public, so they'd rather "keep it in the family." By the way, the resultant fight suggests that "liberal bloggers" were only the excuse for the Obama transition to disqualify John Brennan; in fact, they wanted a strong manager with a spine who would follow the rules. That is distasteful to those Senate Dems who don't want the family secrets spilling out.

And lest this become abstract, read today's New York Times:

When Muhammad Saad Iqbal arrived home here in August after more than six years in American custody, including five at the military prison at Guantánamo Bay, Cuba, he had difficulty walking, his left ear was severely infected, and he was dependent on a cocktail of antibiotics and antidepressants.

In November, a Pakistani surgeon operated on his ear, physical therapists were working on lower back problems and a psychiatrist was trying to wean him off the drugs he carried around in a white, plastic shopping bag.

The maladies, said Mr. Iqbal, 31, a professional reader of the Koran, are the result of a gantlet of torture, imprisonment and interrogation for which his Washington lawyer plans to sue the United States government [...]

Mr. Iqbal was never convicted of any crime, or even charged with one. He was quietly released from Guantánamo with a routine explanation that he was no longer considered an enemy combatant, part of an effort by the Bush administration to reduce the prison’s population.

“I feel ashamed what the Americans did to me in this period,” Mr. Iqbal said, speaking for the first time at length about his ordeal during several hours of interviews with The New York Times, including one from his hospital bed in Lahore.

Mr. Iqbal was arrested early in 2002 in Jakarta, Indonesia, after boasting to members of an Islamic group that he knew how to make a shoe bomb, according to two senior American officials who were in Jakarta at the time.

Mr. Iqbal now denies ever having made the statement, but two days after his arrest, he said, the Central Intelligence Agency transferred him to Egypt. He was later shifted to the American prison at Bagram Air Base in Afghanistan, and ultimately to Guantánamo Bay.

Much of Mr. Iqbal’s account could not be independently corroborated. Two senior American officials confirmed that Mr. Iqbal had been “rendered” from Indonesia, but could not comment on, or confirm details of, how he was treated in custody. The Pentagon and C.I.A. deny using torture, and American diplomatic, military and intelligence officials agreed to talk about the case only on the condition of anonymity because the files are classified.

There are hundreds of human beings like this - at least the ones who are alive - who really don't care if Dianne Feinstein or Jay Rockefeller will be "embarrassed". They were flown around the world, interrogated and tortured, and in the process, America not only created thousands of new terrorists while received no actionable intelligence, but lost its soul. The road to restoration has nothing to do with the delicate sensibilities of Senate Democrats.


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dday 1/06/2009 08:11:00 AM |

Monday, January 05, 2009

 
Smokin' Em Out

by digby

Billmon found a very tasty little tidbit today coming out of the Pentagon. It looks like the Obama team is smoking out some of the neocon moles. And one of the nasty little critters is loudly squealing. (Some of you who've been following blogland for a while will remember him as Mr. Sixty Grit.)

This is a bit of a relief. Many people were worried that Bob Gates would want to keep these con artists on board, but it looks like at least a few of them are being exiled.


h/t to sleon

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digby 1/05/2009 10:30:00 PM |

 
Integrity

by digby

Perlstein has written a interesting post up about Leon Panetta from Nixonland, which I had totally forgotten about.

Did you know that Panetta was a member of the Nixon administration? And did you know that he resigned in protest? Read on for the intriguing details ...


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digby 1/05/2009 08:30:00 PM |

 
Tax Cuts Forever

by digby

Here's some info on the proposed tax cuts:

If the two-year plan is enacted, workers would see larger paychecks almost immediately because taxes withheld by the government would drop. The break would be retroactive to Jan. 1, and couples receiving a $1,000 tax cut would begin receiving an extra $40 in twice-monthly paychecks as the government tries to spark more consumer spending.

[...]

The Obama plan's tax cuts for individuals and couples would be a bit different from the rebate checks sent out last year by the Bush administration and Congress in a bid to boost the slowing economy. The relief this time around would be awarded by withholding less from worker paychecks. That provision would cost about $140-150 billion over two years.

It's going to cost a whole lot more than that. One of the problems with this kind of tax cut (as opposed to a one time is rebate)is that you will likely never get the cash flow back into the treasury after the crisis is past. (And if anyone doesn't believe me on that, I think they should contact Gray Davis and ask him what happens when a Democrat tries to reinstate taxes or fees that were "temporarily lowered" in order to respond to a shortfall. And then ask Arnold Schwarzenner how that whole thing's worked out for California in the long run.)

But hey, if people go out and spend that extra 80 bucks a month and it gets the economy going again then the government can cross that bridge when they come to it. If it doesn't, then I suppose our problems are going to be much bigger than a permanent loss of tax revenue. (And at least the 140 billion is going to working people. The larger number of tax cuts are going to business, which as Krugman says, "isn't very New Dealish".)

I'm sympathetic to the idea that "shovel ready" projects aren't the quickest way to stimulate the economy and that they need to do something immediately, but I really don't want to see anyone doing the kind of fiddling with budget projections the Bush administration did with their bogus "sunset" provisions. Let's have honest accounting, both in the numbers and the politics.

And hey, in the end, it might make it possible for the Obama administration to actually allow the Bush tax cuts on the rich to expire (but which the Republicans and the Blue Dogs are going to turn into a shrieking war cry for the 2010 election.)It's a shame they think they can't raise those taxes right away, but maybe this will provide them a good argument down the road --- in order to preserve the middle class tax cuts, they have to raise revenue from the wealthy.

But tax cut politics are never good for progressives in the long run. It's playing the game on Republican turf, which is a shame.



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digby 1/05/2009 06:30:00 PM |

 
Taser Error

by digby

This is just unbelievable:

BART's police chief asked for patience from the public on Sunday after video footage surfaced showing one of his officers fatally shooting an unarmed man who was on the ground on a station platform on New Year's Day, and after an attorney for the dead man's family said he planned to sue the transit agency for $25 million.

Chief Gary Gee said he, too, had seen video images of the shooting of Oscar Grant, a 22-year-old supermarket worker from Hayward. But Gee said he found the footage to be inconclusive, and he said his investigators still needed to interview a key witness - the officer himself.

That officer, a two-year veteran, has not been publicly identified and has been placed on routine administrative leave. BART officials have said only that his handgun discharged at about 2:15 a.m. Thursday at the Fruitvale Station in Oakland and that the bullet struck the unarmed Grant, who had been detained with several others.

Officials have not said whether the officer intended to shoot Grant. One source familiar with the investigation said BART is looking into a number of issues, including whether the officer had meant to fire his Taser stun gun rather than his gun. Alameda County prosecutors are conducting their own investigation, as is standard in officer-involved shootings.

I wouldn't be surprised if he did. The police use their stun guns on people who are already on the ground and offering no threat all the time. It's no wonder that one of them would get confused and just start shooting people in the same position. They have no sense of what constitutes a real threat anymore.

See, the problem isn't the form of gun they use, a stun gun or one with bullets. It's that they use any gun on people who are already down. They do not have a right to inflict pain or kill people who are already in custody, for any reason.

If you can stomach it, check out the video at the link.

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digby 1/05/2009 04:30:00 PM |

 
Boo Hoo

by digby

Dianne Feinstein is having a little public fit because she wasn't consulted about Panetta and had instructed the president-elect that he had to choose an "intelligence professional." Well, excuse me. When did Difi get a veto on cabinet appointments?

The fact is that DiFi is actually implicated in the torture regime and should just shut up on this. Panetta is a royal pain in the ass in many ways, but he's not a torture apologist, he's not implicated in it and he's reputed to be a good manager. I see no reason why the position has to be chosen from among the CIA ranks just because Porter Goss was a miserable failure or the CIA rank and file are having a hissy.

Welcome to Washington, Barack. First your good friend Bill Richardson forgets to be forthcoming about his little problems and now DiFi goes public in a fit of pique. Wrangling the egomaniacal Democrats and the defensive bureaucracy is always one of the biggest challenges for any poor Dem who actually wins the presidency. Good luck.


Update: Mojoblog has more on Panetta


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digby 1/05/2009 02:30:00 PM |

 
Chutzpah!

by digby

You just can't make this stuff up. From John Cole:

No one could have predicted this would happen. John Yoo and John Bolton, in the NY Times, discuss the need to limit executive authority.

Up next, David Addington and Dick Cheney write in the Washington Post on the need to reject Unitary Executive theory.

Drawing on dday's post below, until recently this sort of obnoxious absurdity would have gone unanswered. Certainly the Democratic establishment's first impulse would be to split the difference and the media would dutifully absorb their message without ever considering the context. We well informed DFH's, however, have memories and aren't likely to allow these jackasses to easily rehab their reputations this time.

I think ensuring that nobody ever takes John Bolton and John Yoo seriously again is good for the country. Others disagree so we'll fight it out in the modern coffeehouse. (You need to read this article to understand what that means.) It's an imperfect way to organize society but my experience tells me that it's the best we can hope for.


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digby 1/05/2009 12:30:00 PM |

 
Panetta To CIA

by digby

I've had my problems with Panetta over the years, but he's a much better pick for this job than I might have hoped for. Here he is, just this year on the torture regime:

Fear exacts a terrible toll on our democracy. Five years ago, America went to war in Iraq over the false fear that Saddam Hussein had weapons of mass destruction.

Even though we now know that there were intelligence officials who questioned the assertion, few leaders were willing to challenge this argument for war because they knew it might undermine public support for the president's decision to invade Iraq.

More recently, President Bush vetoed a law that would require the CIA and all the intelligence services to abide by the same rules on torture as contained in the U.S. Army Field Manual.

The president says the rules are too

But all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike.

Our forefathers prohibited "cruel and unusual punishment" because that was how tyrants and despots ruled in the 1700s. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law.

But then there's this:

The same rationale is used to justify eavesdropping on U.S. citizens without a warrant. The president has made clear that the failure of the Congress to pass this authority could jeopardize our security. Instead of trying to negotiate a compromise with Congress that would meet both our intelligence and privacy concerns, it is easier to threaten with fear.

Luckily the wiretapping is not a purview of the CIA and torture is, so he's on the right side of what I consider to be the most important issue pertaining to his job.

I'll have to do some research on the rest of Panetta's ideas on intelligence. He's an extremely annoying bipartisan fetishist, but I'm not sure how that would affect him in this position. I would guess that the most important constituency here is the CIA itself, and I have no idea what they think of him.

My first instinct is to be relieved about this appointment. Panetta is smart and he has a reputation for being an excellent manager, so at least we won't be dealing with another Porter Goss debacle.

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digby 1/05/2009 11:32:00 AM |

 
A Note On Ideology and "What Works"

by dday

To follow up on Digby's post about the potential inclusion of $300 billion in tax cuts in the Obama economic recovery package, I'll start by noting that these were, for the most part, campaign promises. It's why I remember Kevin Drum and others saying that Obama had not successfully fought against the great Tax Revolt, even as it showed signs of running out of steam. He would insist that we was offering a tax cut for 95% of Americans and tossed out tax incentives like they were candy, even while he was talking at the same time about other economic goals. Once you play on that side of the field, those lobbyists who know how to cram tax loopholes into Congressional bills start licking their chops.

Now, his plans would probably make the tax code more progressive, which is good. The tax credits for businesses that don't lay off workers, for example, seems good, as well as eliminating the ability for corporations who paid no federal tax to apply for the credits. Then there's the "Freakonomics" proposal to reduce withholding, so that workers will get a little bit more in their paychecks instead of a lump sum, which may lead to more consumer spending. And this article leaves out some of the details. But aside from the fact that tax cuts didn't stave off the current recession, and that this limits the pool of money for infrastructure and public works projects to a insufficient level, the worst part of all of this is the fact that it appears the Obama team looks at tax cuts as a way to get Republicans on board. Here's the deal: there are only two Republicans in America, at most, that need to be "on board" with something like this, and if a new President and a Democratic Senate can't flip them, I don't know why they even try anymore. This looks like an example of a bias that the Obama team has had for a while, that everything has to be bipartisan and attract the support of both parties, because only then can it be legitimate.

Incredibly, there's a quote in the WSJ article from am Obama spokeswoman that goes: "We're working with Congress to develop a tax-cut package based on a simple principle: What will have the biggest and most immediate impact on creating private-sector jobs and strengthening the middle class? We're guided by what works, not by any ideology or special interests."

That's just not true. If you were guided by "what works," you would take out the reams of nonpartisan charts about what works best as stimulus and go with those programs that provide the biggest and most immediate impact. And they are NOT broad tax cuts. But the holy grail of bipartisanship has been intertwined with "what works," leading us to more use of the tax code (and magically, the repeal of the Bush tax cuts for the rich have vanished). And so that IS being guided by ideology. It's setting the policy at the midpoint of the Republican caucus to ensure some support from that side of the aisle. That's not only ideological, it's Republican in character.

The reason we have seen an explosion of citizenship in the past year, as this TAP article argues, is actually because of partisanship, because both sides made an argument, because people were excited to line up with either alternative, and because they were enabled through new technologies to break down what were seen as barriers to entry. It was partisanship, however, that spurred the citizenship.

The rebirth of civic participation this year is not a product of experiments in deliberative democracy or a new interest in league bowling. Rather, it is based on party politics, coupled with and accelerated by new opportunities provided by the Internet. Skocpol's claim that "conflict and competition have always been the mother's milk of American democracy" tells part of the story. Just as social-movement theorists might have predicted, the major innovations came from outsiders, like members of MoveOn.org, who wanted to challenge the system. At the time when it led opposition to the Iraq War, MoveOn represented a point of view that had little support among political elites, which meant it wouldn't have been able to use conventional tools of interest-group politics even if it had wanted to. Instead, it turned to the Internet and created a new model of mass mobilization.

Unlike the mass-membership national organizations that Skocpol described, which asked for a single act from each member -- a donation -- MoveOn engaged its members through a never-ending flow of transactions -- petitions, letters to Congress, polls, contests. In his book The Argument, Matt Bai writes that MoveOn's members were typically ordinary suburbanites who have been "isolated for too long, entirely disconnected from each other and despondent over the rise of Republican extremism." Thus, MoveOn built exactly the kind of dense local networks Putnam dreamed of and connected them to national debates as Skocpol hoped [...]

Evidence suggests that people who are strongly engaged in politics and hence likely to volunteer for campaigns are strongly partisan and tightly clumped around the ideological poles (they are strongly liberal or strongly conservative). If this is right, online activists are unlikely to follow Obama if he moves toward a post-ideological politics of citizenship and may even use Obama's own machine to organize against him (as they did within MyBarackObama.com when Obama announced his support for controversial wiretapping legislation). By rebuilding the Democratic Party around a model that is friendlier to decentralized online participation, Obama is both making it easier for Democratic activists to organize in protest against overly "moderate" decisions, and forcing Republicans to adopt similar organizing techniques in order to win elections.

That's just a sample, I invite you to read the whole article.

We're not going to see Obama walk into the Oval Office and sign this bill, so there's some time to bring this around to the right direction. And again, I hope this is just a trial balloon. But if the debate in Washington devolves into one side vowing bipartisan love fests while the other side plays the same partisan game, those civic bonds will break down, or at least to the extent that they are tied to Obama. Politics draws its breath from the conflict of ideas in the public square. Those who have been energized over the past couple years will not take kindly to an Administration that calibrates itself at the midpoint of the opposing party to ensure wide support. Even Bill Clinton, who was supposed to be the master triangulator, put out a tax plan that did not receive a single Republican vote. Somehow he, and the economy, survived.

What's most dangerous about this is the effort to corral 75-80% support just for the sake of doing so. Not only is it unlikely, it will end up really eroding Obama's ability to draw on popular support to govern.


Update: from digby --- I just wanted to intrude on dday's post to encourage you all to read the article to which he links called "Can Partisanship Save Citizenship" by Henry Farrell. It is very illuminating.

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...I want to further intrude on my own post to link to Krugman's view, via his blog, on the tax cut rumblings.
dday 1/05/2009 10:30:00 AM |

 
Yes He Will

by digby

This is an excellent day for those who believe in presidential adherence to the rule of law -- the Obama team has chosen an absolutely first rate person to bring back "honor and integrity" to the Office of Legal Council. As Greenwald says this morning," there is probably no official who will have a more significant role in determining the extent to which the Obama administration really does reverse the lawlessness and legal radicalism of the Bush years," and Dawn Johnsen is the perfect choice for such a job. There have been few experts in the field of presidential authority who have been more outspoken and critical of the Bush administration's lawless regime. He literally couldn't have chosen anyone better to signal an abrupt change with the past.

Greenwald highlights some of her writings on the subject and she sounds as if she would not turn a blind eye to any evidence that's uncovered of Bush administration lawbreaking. It's impossible to know if that might happen, but it's very, very good news that President Obama intends to completely reverse course on these executive atrocities. It's not that I particularly doubted that he was going to do it, but picking someone like this says that he means to make it a priority in the new Justice Department and that he wants everyone to know it. Huzzah.

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digby 1/05/2009 10:00:00 AM |

 
Stimulating Debate

by digby

The Democrats are floating the idea that they will spend 40% of the proposed 700 billion dollar stimulus package on tax cuts. I certainly hope they really believe that it will work to create jobs and stimulate investment because if they are doing this as a political move to appease the Republicans they will not only create a stimulus that is highly unlikely to work, but the Republicans will not reward them for it. Sure, they may get a few more to sign on to the plan, but if it doesn't get the job done the conservatives will soon swarm them like a school of starving piranhas, no matter who voted for it.

I actually suspect this unfortunately isn't about Republicans, but rather about a bunch of Blue Dog Democrats who are so incredibly stupid that they can't tell the difference between fiscal responsibility for a family of four and trying to stave off another Great Depression. (Yes, they really are that thick.)

I will withhold judgment until I learn more. It's possible that this thin article doesn't really reflect their thinking. And I'll look forward to reading what the smart economists have to say, because maybe I'm just being reflexively anti-tax cut and failing to see this for the brilliant economic mix that it is. But if this is really about politics and a 40% of the stimulus in tax cuts is the opening bid then I would guess they are at least testing the idea of not rocking the tax cut boat and are hoping that an extra few hundred bucks will get people buying a bunch of garbage at the malls again this time. Maybe it will. But with Paul Krugman saying things like this, (before the article I linked was published) I'm skeptical that a 400 billion dollar infrastructure stimulus combined with more ineffectual tax cuts and a lot of happy talk about "waste fraud and abuse" will get the job done:

News reports say that Democrats hope to pass an economic plan with broad bipartisan support. Good luck with that.

In reality, the political posturing has already started, with Republican leaders setting up roadblocks to stimulus legislation while posing as the champions of careful Congressional deliberation — which is pretty rich considering their party’s behavior over the past eight years.

More broadly, after decades of declaring that government is the problem, not the solution, not to mention reviling both Keynesian economics and the New Deal, most Republicans aren’t going to accept the need for a big-spending, F.D.R.-type solution to the economic crisis.

The biggest problem facing the Obama plan, however, is likely to be the demand of many politicians for proof that the benefits of the proposed public spending justify its costs — a burden of proof never imposed on proposals for tax cuts.

This is a problem with which Keynes was familiar: giving money away, he pointed out, tends to be met with fewer objections than plans for public investment “which, because they are not wholly wasteful, tend to be judged on strict ‘business’ principles.” What gets lost in such discussions is the key argument for economic stimulus — namely, that under current conditions, a surge in public spending would employ Americans who would otherwise be unemployed and money that would otherwise be sitting idle, and put both to work producing something useful.

All of this leaves me concerned about the prospects for the Obama plan. I’m sure that Congress will pass a stimulus plan, but I worry that the plan may be delayed and/or downsized. And Mr. Obama is right: We really do need swift, bold action.

Here’s my nightmare scenario: It takes Congress months to pass a stimulus plan, and the legislation that actually emerges is too cautious. As a result, the economy plunges for most of 2009, and when the plan finally starts to kick in, it’s only enough to slow the descent, not stop it. Meanwhile, deflation is setting in, while businesses and consumers start to base their spending plans on the expectation of a permanently depressed economy — well, you can see where this is going

Stay tuned. There are a lot of trial balloons being floated and we have no idea what's real and what isn't. But I really hope that something this important isn't being dealt away in the vain hope that "bipartisan support" will help insure success. Success will ensure success and it's far more important to properly fix the economy than change the tone in Washington, which doesn't matter a damn to the average American if he's lost his home and he's out of a job. I would guess that a majority of Republican politicians don't care about anything but making a comeback, but there are probably a handfullwho will give Obama the bipartisan cover he feels he needs without sacrificing the efficacy of the plan. There's a reason for having a real majority and it's for times like this.


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digby 1/05/2009 06:00:00 AM |

Sunday, January 04, 2009

 
Changing The Tone

by digby

It was only two and a half years ago that Time Magazine put Ann Coulter on the cover saying: "the officialdom of punditry, so full of phonies and dullards, would suffer without her humor and fire." And thank goodness, it looks like the mainstream media is planning to keep this woman's humor and fire accessible to the masses.

In preparation for the media blitz, the good folks at Media Matters have read her new book "Guilty" so you don't have to. Evidently, she hilariously posits that liberals are assaulting America with their victimization (the conservatives are busy fighting the war on Christmas, no doubt.) She asks "who's the biggest pussy? Barack or Hillary?" and claims that Republican turncoats, male and female, are nothing but a bunch of ... women, which is the worst epithet Coulter can think of. (She calls John McCain a pussy too.) Fun stuff.

But I wonder if she's going to find a friendly audience even among the neanderthals with her attack on divorced people and single mothers:

• Coulter calls children whose parents divorce "future strippers" in a chapter titled "Victim of a Crime? Thank a Single Mother":

In any event, divorced mothers should be called "divorced mothers," not "single mothers." We also have a term for the youngsters involved: "the children of divorce," or as I call them, "future strippers." It is a mark of how attractive it is to be a phony victim that divorcées will often claim to belong to the more disreputable category of "single mothers." [Page 36]

Later in the chapter, Coulter writes: "Single motherhood is like a farm team for future criminals and social outcasts." [Page 38]

So Coulter is not only attacking liberals these days, but Republicans, war heroes, single mothers, divorcées and their children as well. At some point there is going to be nobody left to buy her books --- except for media figures, who apparently continue to believe that she's just rollicking good fun. But then they love nothing more than kissing up to those who abuse them.


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digby 1/04/2009 06:00:00 PM |

 
Questions

by digby

Over the holiday break I wrote a post about and initiative spearheaded by Ari Melber of the Nation and Democrats.com to ask President-elect Obama if he will appoint a special prosecutor to investigate war crimes in the Bush administration over at Change.gov. (In a previous round, it was the sixth most asked question, and the new administration has only agreed to answer the first five, so it went unanswered. )

This time, through their efforts, it's number one. This is particularly important, since the press has only asked Obama about this one time, last April. And a lot has happened since then, most obviously the fact that Vice President is all over television admitting to war crimes as if he's proud of it.

Democrats.com quotes Melber saying:

"With so few journalists directly asking the President-Elect about these issues, however, it is up to the rest of us to put accountability and the rule of law on the agenda."

Yes we can.

The voting is still open:

Voting remains open:

1. Sign in at http://change.gov/openforquestions
2. On the left menu, click "Additional Issues." Bob Fertik's question will appear at the top.
3. Look right for the checkbox, mouseover it so it goes from white to dark, then click to cast your vote

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digby 1/04/2009 04:30:00 PM |

 
Proportional Stupidity

by digby


You know, it's one thing for people to dispute whether Israel's incursion into Gaza is disproportionate. It seems obvious to me that it is, but people can argue that in good faith. However, I'm frankly gobsmacked by the cavalier attitude of some Israeli and American politicians, like Michael Bloomberg, who blithely assert that a disproportionate response is exactly the right thing to do:

"The concept of proportional response is one of the stupider things I've ever heard in my life. If it was your family, would you want a proportional response? No, you'd want every single resource to be brought to bear to stop those who are killing innocent people."

Well then genocide and nuclear holocaust are logically on the menu too, eh?

Why am I not surprised. Once we became a nation whose leasers casually describe torture techniques as "no-brainers" why would anything be off limits? This is the natural snowball effect of a nation which no longer even tries to pay lip service to the idea of international law. Apparently, all such laws are now irrelevant in all things, not just under the Bush doctrine. (And even Bush acknowledges the concept.)

You don't have to be foreign policy genius to understand why the concept of "proportionate response" is necessary to the survival of the planet.


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digby 1/04/2009 03:00:00 PM |

 
The Story Of Blame

by digby

Think Progress has a post up today about the somewhat loony conspiracy theories coming out of the right wing and they highlight The New York Times articlee from a couple of weeks ago about the noise machine's plans to airbrush history, torture Obama and blame the Democrats for the economic crisis. It sounds ridiculous, of course, but then most of what these people come up with sounds ridiculous. (I would guess that the right wing is far from fully invested in this, and further that this "plan" has as much to do with ratings, membership lists and donation than any serious political plan.)

Having said that, it would be a mistake to dismiss it as the rantings of a bunch of irrelevant losers. I think that if the administration is able to wrangle the congress effectively and begin to reverse the economic slide fairly quickly (and keep the world from imploding) that their support will remain strong and they'll be given credit by the people. But, if the pessimists are correct and this recession gets worse and the pain starts to spread widely then these crazy rantings may be taken more seriously by more people than we might think. Economic hardship can turn things sour in a hurry.

The right wing understands something that progressives just refuse to engage in and that is that most people, particularly the media, understand their world through stories. And so they consciously craft plots and narratives to explain events that favor their worldview. Right now, after eight years of Bush and a decisive election repudiating Republican rule, it seems impossible to believe that their story makes any sense to people. But they will tell it anyway, full in the knowledge that within a few months any talk of Bush will be as stale as Rickrolling and the focus will be completely on Obama. And they will already be well on their way to setting forth an alternate reality that slides neatly into familiar grooves worn smooth by decades of right wing propaganda.

I do not believe it is inevitable that they will persuade enough people to buy their narrative that they can turn around their political fortunes. The failures of conservatism are manifest and huge. But beyond some vague idea that politics has been too partisan I don't believe people have heard a story that really explains it yet and until we see real progress manifested in real life by an Obama administration, I'm not sure that people have anything other than some vague hope that the other guys should be given a chance. It certainly doesn't mean that a new narrative of progress and competence won't naturally just emerge, but it's going to take time. And during that time, the right will be spinning their epic tale of Democratic irresponsibility, fecklessness and elitism, among other things, while Democrats refuse to publicly engage.

It seems to me that progressives have to devote at some energy to battling the right on this, even if the party and the administration don't want us to. Pretending they are losers who don't matter is just plain foolish. They are good at this sort of thing and if the economy has not hit bottom, as some very smart people with excellent track records believe, then the pain could start to get much more acute for a large number of people. And they will be looking for ways to understand what has happened to them. It would be a shame if the conservative freakshow were the only ones with a ready narrative on offer.

Nobody has yet repudiated conservatism or explained why the country is in this mess, because Democrats decided that they didn't want to play the blame game. And if we're lucky, it won't matter because the country will turn around quickly, the Democrats will get the credit and the modern conservative movement will slink off into obscurity having been rendered irrelevant for all time by the the irrefutable progressive success of Barack Obama and the Democratic congress. But I think it's a mistake to assume that's how it will go.

Along with good policy, you need rhetoric and narratives that give people something to believe in --- and someone to blame. History has shown that it's never smart to let demagogues go unanswered under the assumption that people will see through them, particularly in a time of great stress and dislocation.


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digby 1/04/2009 11:30:00 AM |

Saturday, January 03, 2009

 
Saturday Night At The Movies

Earsplittenloudenboomer

By Dennis Hartley
















Cruise: A patchy uprising.



One of my favorite throwaway lines from the original 1968 film version of Mel Brooks’ The Producers is uttered by psychedelicized thespian Lorenzo St. Dubois (Dick Shawn), star of the fictional Broadway musical romp Springtime for Hitler. After “Goebbels” (David Patch) carelessly tosses a lit reefer into a vase, making it explode, our “Hitler” turns to the audience and bemoans in mock consternation: “They try; man, how they try!”

Man, how they tried. By 30 April 1945, the day Adolph Hitler finally put us all out of his misery by treating himself to a cyanide cocktail, followed by a Walther PPK 7.65mm caliber chaser, there had been no less than 17 (documented) schemes/attempts to take him out. The would-be assassins ranged from military officers (captains to field marshals) to members of his trusted inner circle (including Armaments Minister Albert Speer, who toyed with the idea of sending poison gas down the ventilator shaft of his Berlin bunker in early 1945). It looked like Hitler was going to be tougher to get rid of than Rasputin.

The most famous attempt, codenamed “Valkyrie”, was spearheaded by an idealistic German nationalist named Colonel Count Claus von Stauffenberg, an army staff officer who ingratiated himself into one of the more well-organized consortiums within the German resistance movement. On July 20, 1944, Stauffenberg, who had finagled himself into a position which gave him clearance to attend Hitler’s military strategy meetings, managed to smuggle a briefcase full of timed plastic explosives into a conference at the “Wolf’s Lair”. He slipped the briefcase under the table, close to where Hitler was positioned, excused himself to take an “important call”, and waited outside for the earth-shattering ka-boom. Once all hell broke loose, Stauffenberg made a beeline to Berlin to initiate the next phase of the plot, ostensibly an elaborate coup that entailed neutralizing the SS and mobilizing the reserve army (under an emergency contingency government reorganization plan that ironically had been set up by Hitler himself). It almost worked (except for the part where they forgot to check Hitler’s pulse before proceeding with Step 2). The day did not end well for Stauffenberg and several other key conspirators; they did not live to see the next sunrise (they faced the firing squad just after midnight).

This true-life tale contains all the thrills, suspense and complex plotting of a ripping WW2 yarn by Alistair MacLean, except that in this case, the “good guys” and the “bad guys” are all…the “bad guys” (i.e., based on the traditional Hollywood depiction of WW2 era Germans). This presents an interesting dilemma for a filmmaker. It is only in recent years that we have seen films that (for better or for worse) posit a relatively objective view of what the Second World War looked like from the perspective of the Germans. Now, I am not an apologist (I had many distant relatives who perished in concentration camps, and the very sight of a swastika makes me physically ill) but it is a fact that not every single person who lived in Germany between 1933 and 1945 was a blindly obedient member of the National Socialist Party who worshipped Hitler. There was an active military and civilian resistance movement that flourished during that era.

One of the earliest films to lurch in that direction was Edward Dmytryk’s The Young Lions(1958) which featured among its three principal characters a conflicted Nazi lieutenant (played by Marlon Brando) who was devoted to duty, yet palpably repulsed by the inhumanity being perpetrated in the name of the Fatherland. Cabaret (1972) tentatively touched on the idea of the anti-Nazi sentiment within Germany, but the story ends just as Hitler is coming to power, so in historical context, his full capacity for avarice and evil would have still been an unknown quantity to the general populace at the time. Das Boot (1981) was probably the first film to portray members of the Nazi era German military in a “sympathetic” light (again, for better or for worse) and also was one of the first to feature characters expressing anti-Hitler sentiment (in this case, U-Boat crewmen) Then again, this was not a Hollywood production (it was originally produced for German TV). And tangentially, we have Schindler's List (1993) which ultimately has the audience cheering for an unlikely hero-an (initially) opportunistic Nazi businessman who profited from the abundance of cheap labor provided by concentration camps.

All of which now inevitably (unavoidably?) brings us to the latest Tom Cruise vehicle, Valkyrie, reuniting director Bryan Singer with his screenwriter for The Usual Suspects , Christopher McQuarrie (who co-scripted with Nathan Alexander). Cruise stars as Col. Stauffenberg-stern of jaw, steely of gaze and nattily resplendent in polished jackboots and matching eye patch. To the chagrin of some, he is also completely bereft of a German accent. This is really a moot point, because most of his co-stars are sporting British accents. Since we know that everybody in this story is German, it’s only a momentary distraction (like when Tony Curtis informs Spartacus that he is “…a singah of sooangs.”)

Singer showcases his prowess for well-staged action sequences in a slam-bang battle scene early on the film that depicts how Stauffenberg suffered his disfiguring wounds (he lost an eye, one of his hands and several additional fingers while serving in North Africa). As he recovers from his injuries, we catch a glimpse of his family life, and glean the sense of a warm relationship with his children and his devoted wife (Carice van Houten). As the tides of the war turn against the Reich, Stauffenberg comes to realize that Hitler’s hopes for victory are turning more delusional by the day and can only lead to the complete annihilation of his beloved Germany, so he decides that he must be stopped.

The film recreates several other assassination attempts by Stauffenberg and his associates which preceded the conference room bombing at Wolf’s Lair in July 1944. The final attempt is quite riveting, tautly directed and full of nail-biting suspense. Unfortunately, however the film is marred by an abrupt ending; the split second after Cruise has his Big Death Scene, it’s time to fade to black and roll credits (it’s probably in his contract rider).

Another problem is Cruise himself. Yes, he is a Movie Star, right down to those dazzling choppers, but try as he might over the years (bless his heart), he is just simply not cut out to be a character actor. The real Stauffenberg was a complex person; a fervent German nationalist, an aristocrat, politically conservative and introspectively philosophical by nature. All I kept seeing up on that screen was…Tom Cruise with an eye patch. Don’t get me wrong, when a part is tailor made for his particular brand of energy (Risky Business , Jerry Maguire , Magnolia) he can be undeniably appealing and genuinely charismatic. However, the role of one Colonel Count Claus von Stauffenberg is not one of those parts.

Two supporting performances are particular standouts; the always-excellent Tom Wilkinson as General Fromm, and Bill Nighy as General Olbricht. A couple other venerable Brits are on board (Terrence Stamp and Kenneth Branagh) but they aren’t given too much room to flex (perhaps Producer Tom didn’t want to be upstaged).

Singer does have a keen eye for historical detail. Several key scenes were filmed on location, most significantly the recreation of Stauffenberg’s execution, which was staged in the very Berlin courtyard where the original incident took place (that courtyard now contains a memorial to the conspirators, who are regarded as national heroes in Germany). History buffs (guilty!) will likely be more forgiving regarding the film’s shortcomings and just enjoy it as a straightforward WW2 action thriller. Tom Cruise fans will see it regardless of critical opinion, and the rest may want to just wait for the DVD.


Previous posts with related themes: Black Book/The Good German


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Dennis Hartley 1/03/2009 06:00:00 PM |

 
No More Debate: Defend It Or End It?

by dday

One of the better side effects of Obama's inauguration is that we can finally stop the endless theoretical arguments in the blogosphere about how he means to govern. Whether he's a cautious centrist who will fulfill his campaign promises in incremental ways and do little to challenge Beltway assumptions, or he's a secret progressive who has been hiding his true intentions and employing scores of cabinet members from the political center to give himself breathing space to implement sweeping progressive policies, we'll know soon enough and the exhausting parlor game of pondering will be over. One early test will come in the case of Ali al-Marri, where an Obama Administration will have to provide an opinion on where they stand on key Constitutional issues such as the rule of law, executive power and detainee policy in the "war on terror."

Just a month after President-elect Barack Obama takes office, he must tell the Supreme Court where he stands on one of the most aggressive legal claims made by the Bush administration — that the president may order the military to seize legal residents of the United States and hold them indefinitely without charging them with a crime.

The new administration’s brief, which is due Feb. 20, has the potential to hearten or infuriate Mr. Obama’s supporters, many of whom are looking to him for stark disavowals of the Bush administration’s legal positions on the detention and interrogation of so-called enemy combatants held at Navy facilities on the American mainland or at Guantánamo Bay, Cuba.

During the campaign, Mr. Obama made broad statements criticizing the Bush administration’s assertions of executive power. But now he must address a specific case, that of Ali al-Marri, a Qatari student who was arrested in Peoria, Ill., in December 2001. The Bush administration says Mr. Marri is a sleeper agent for Al Qaeda, and it is holding him without charges at the Navy brig in Charleston, S.C. He is the only person currently held as an enemy combatant on the mainland, but the legal principles established in his case are likely to affect the roughly 250 prisoners at Guantánamo.

It's almost unquestionable that al-Marri cannot have a fair trial in US courts without acquittal, as a substantial portion of the evidence against him is likely to have been acquired through the use of torture. Bush's intel officials consider al-Marri dangerous and unable to deport. And yet the legal claims made by the Bush team, that the executive has the right to indefinitely detain an American citizen (and in established practice, a legal resident of the United States has the same right to due process), without charges, and hold them inside the United States as long as they wish, is abhorrent and must be disavowed. Obama has already disavowed this during the campaign.

A year ago, Mr. Obama answered a detailed questionnaire concerning his views on presidential power from The Boston Globe. “I reject the Bush administration’s claim,” Mr. Obama said, “that the president has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.”

That sounds vigorous and categorical. But applying this view to Mr. Marri’s case is not that simple. Although he was in the United States legally, he was not an American citizen. In addition, a 2001 Congressional authorization to use military force arguably gave the president the authority that Mr. Obama has said is not conferred by the Constitution alone.

Still, Andrew C. McCarthy, a former federal prosecutor who has generally supported the Bush administration’s approach to fighting terrorism, said Mr. Obama’s hands are tied. He cannot, Mr. McCarthy said, continue to maintain that Mr. Marri’s detention is lawful.

“I don’t think politically for him that’s a viable option,” Mr. McCarthy said. “Legally, it’s perfectly viable.”

Big thanks to Mr. McCarthy for setting the boundaries of what is politically viable for a new President.

Anonymous Liberal has a very good post laying out the options for the Obama Administration:

I do expect that the Obama administration will make some concessions, though. The most likely, it seems to me, is a concession that the basis for originally detaining al-Marri was improper. Remember, al-Marri was already in federal custody and facing trial on criminal charges when the Bush administration transferred him to military custody. There's little question that this move was made for interrogation purposes. The government had been trying to pressure al-Marri into talking, but he was intent on going to trial. So instead they transferred him to military custody and held him incommunicado for 18 months in order to extract information from him (probably by unlawful techniques).

Even if you assume that the President, pursuant to the AUMF, has the authority to military detain al Qaeda "combatants" found legally residing within the U.S., the justification for such detention has to be limited to incapacitation, to preventing the combatant from returning to the "battlefield" and doing more harm. That's the purpose of detention under the laws of war. In this case, al-Marri was already in custody on a criminal matter. He was incapacitated and there was no chance of him "returning to the battlefield." Under those circumstances, transferring him to military custody is not justified, even if you accept all of the government's premises.

This a real test for the Obama administration. If they don't back off at least some of the positions taken by the Bush administration in this case, it will leave a lot of people (myself very much included) very disappointed and angry.

We have a group in power currently that has no problem reconciling the dissonance between prosecuting foreigners for torture while allowing those inside the government who directed and authorized the same to go free. This is what has diminished America's standing in the world and strained relations with allies. If the Obama Administration continues operating under this double standard, insisting that other countries respect human rights and international agreements while declining to do the same, he will find it impossible to convince the world that anything resembling change has come to America, as well as most of us in this country as well. The future of the rule of law, badly crippled through eight years, is at stake.

And within a month, there won't need to be any more debate about it - the first filing in the case is due the Monday after Inauguration Day.


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dday 1/03/2009 05:00:00 PM |

 
Heretics and Heroes

by digby

Lambert links to this Krugman blog post and a Wall Street Journal article revisiting a meeting of economists back in 2005.

Krugman:

Two things are really striking here. First is the obsequiousness toward Alan Greenspan. To be fair, the 2005 Jackson Hole event was a sort of Greenspan celebration; still, it does come across as excessive — dangerously close to saying that if the Great Greenspan says something, it must be so. Second is the extreme condescension toward Rajan — a pretty serious guy — for having the temerity to suggest that maybe markets don’t always work to our advantage. Larry Summers, I’m sorry to say, comes off particularly badly. Only my colleague Alan Blinder, defending Rajan “against the unremitting attack he is getting here for not being a sufficiently good Chicago economist”, emerges with honor.

As Lambert points out, the words condescension and obsequious are perfect descriptors for a whole range of village behaviors on any number of issues.

Greenspan is, of course, an uber-villager, married to one of the most important beltway media mavens and who, for the past two decades, was considered a living example of the the non-partisan wise man. Except,of course, he was actually an Ayn Rand extremist who grubbed around in politics with as much glee as any Louisiana congressman. But you couldn't say that. In fact, during the 2000 election we came close to having him legally declared a living God --- a Pharoah of Finance, who could not be questioned lest the sun turn cold.

Why anyone ever thought that a man who openly followed a creed which literally claims that captains of industry can do no wrong because capitalism is a moral system based upon self-interest was anything but a fool is beyond me, but they didn't. He was in a state of "shocked disbelief" when that turned out not to be true:

"I have found a flaw," said Greenspan, referring to his economic philosophy. "I don't know how significant or permanent it is. But I have been very distressed by that fact."

"I made a mistake in presuming that the self-interests of organisations, specifically banks and others, were such that they were best capable of protecting their own shareholders and their equity in the firms.

I wouldn't have believed that anyone but the most starry eyed 17 year old John Galt fanboy