January 11, 2004, Monday
_________________________
1. www.whitehouse.gov.
2. Radio address, www.whitehouse.gov.
President Bush announced that he wants to send a mission to Mars. If the President were to go along, it might be considered a return trip, as his programs and attitudes seem to be from another planet. Such a program would cost tens if not hundreds of billions. Proposing that, in the face of massive debt and deficits, and ignoring far more pressing needs such as adequate health care demonstrates serious detachment from the realities of this world. Actually, it may be Mr. Bush's advisors, handlers, mentors and controllers who are the aliens. Increasingly, his role is that of front man and fundraiser. The former role was evident in the space-exploration speech, which again did not sound much like him and which he read with seeming disinterest.
Administration officials reportedly are planning a program to promote marriage, in part through training to develop better attitudes and interpersonal skills, something which would be ridiculed if offered by liberals for one of their projects. Big government is good or bad depending on the end to be served, and so too, apparently, is solving social problems through counseling.
However, such analysis possibly is beside the point. Both proposals may simply be election-year posturing, the first to distract the public from Iraq, unemployment and other unpleasant truths, the latter to placate the right, which would rather have an anti-gay-marriage amendment. Even so, The New York Times reported them on page 1. It accorded less prominence to a story which is at least as significant, politically and intrinsically.
Paul O'Neill claims that President Bush began planning to invade Iraq early in 2001. The Times reported that as follows on January 12:
''From the very beginning, there was a conviction that Saddam Hussein was a bad person and that he needed to go,'' Mr. O'Neill said in an interview with the CBS program ''60 Minutes.''
Mr. O'Neill...said Iraq was discussed at the first National Security Council meeting after Mr. Bush's inauguration. The tone at that meeting and others, Mr. O'Neill said, was ''all about finding a way to do it,'' with no real questioning of why Mr. Hussein had to go or why it had to be done then. ''For me, the notion of pre-emption, that the U.S. has the unilateral right to do whatever we decide to do, is a really huge leap,'' Mr. O'Neill said.
He got briefing materials.... "There are memos. One of them marked, secret, says, 'Plan for post-Saddam Iraq,' " adds Suskind, who says that they discussed an occupation of Iraq in January and February of 2001.
Based on his interviews with O'Neill and several other officials at the meetings, Suskind writes that the planning envisioned peacekeeping troops, war crimes tribunals, and even divvying up Iraq's oil wealth.
He obtained one Pentagon document, dated March 5, 2001, and entitled "Foreign Suitors for Iraqi Oilfield contracts," which includes a map of potential areas for exploration.1
A response by the administration appeared the following day. President Bush acknowledged that, "Like the previous administration, we were for regime change." However, he denied an early plan for an invasion. He said that initially he was considering other options, but added, "And then all of a sudden September the 11th hit." That might suggest that he then decided on war, a decision he professed, into early 2003, not to have made. The Times ran this story on page 22.
O'Neill's accusation is important in itself and the regime-change admission, however hedged, lends some credence to it. There is, to put it cautiously, reason to suspect that this administration started a war under false pretenses. Revelations of early discussions and insights into how the decision was made not only are newsworthy - more newsworthy than the Mars and marriage stories - but are vital information to a public which must decide whether to risk four more years.
However, the editorial writers of The Washington Post share the view that the story is not important. On January 15, they noted that Rep. Kucinich concluded from the Suskind-O'Neill claims that "the American people, in effect, have been misled," and commented: "The question is: Who is doing the misleading." That is an odd response, or would be if The Post's editorial page were as skeptical of the administration's statements as it is of Mr. O'Neill's or of those of the opposition candidates. Its concluding observation was this: "The wisdom of waging war in Iraq is a legitimate and important topic of political debate. But the Democratic candidates do no favors to their positions when they accept, uncritically, a half-unsurprising and half-dubious account, for no better reason than that it fits their prejudices." I don't know whether The Post entered the war debate with any prejudices but, in swallowing the administration's fully dubious war rationale, it outstripped the Democratic candidates in uncritical acceptance.
________________________
1. CBSNews.com, 1/11/04.
January 19, 2004
Justice Scalia did a little duck "hunting" at a private camp recently, in the company of Vice President Cheney. Not long before, the Supreme Court agreed to hear Cheney's appeal regarding the records of his energy task force. Faced with questions about a conflict, the Justice responded, "I do not think my impartiality could reasonably be questioned."1
It might seem stunning that Justice Scalia could believe himself to be impartial, with or without joint bird-shooting, in a case involving Mr. Cheney, a man he put in office by a decision of dubious legal and ethical validity. However, Mr. Scalia is not bothered by the appearance of conflict, because his heart is pure. It also helps to be arrogant and lacking in self-perception.
No one doubts that the judge has the former characteristic; an article I came across recently suggests the latter. The May, 2002 issue of First Things published an article by Justice Scalia, adapted from a speech given at The University of Chicago Divinity School. The article was entitled "God's Justice and Ours" and set out his views on the death penalty. It began as follows:
Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a "living document" - that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.
*** If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our "maturing" society's "evolving standards of decency," this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead - or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted....
Whichever is true, Justice Scalia does not follow his own formula. Take as an example his opinion in California Democratic Party v. Jones, 2 in which the Court held that the California blanket primary law violated the First Amendment because, in allowing non-party members to vote in party primaries, it interfered with the right of political parties to refuse to associate with non-members. Does the Amendment mention political parties, or a right of non-association? Does it refer to action by the states? No; it says this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
If, prior to the Jones appeal, Justice Scalia had delivered a speech on blanket primaries, he would have, to use his phrase, provided a preview of his next vote. The degree to which personal preference entered into the decision is, I think, unusual for any judge. Whether or not that is true, the process of decision, involving extended interpretation leading to a result not hinted at in the text, renders Scalia's pretensions ludicrous.
The conflict between Justice Scalia's principles of decision (and his prior opinions) and the decision in Bush v. Gore, 3 in which he joined, are discussed by Alan Dershowitz in Supreme Injustice. His critique goes further: not only does Scalia introduce personal views into his decisions - as do all judges; the only issue is admitting it - he and the others in the Bush majority decided that case based on the identity of the parties: they decided for Bush because he was Bush (i.e., the Republican). If that is fair analysis, and I'm inclined to think that it is, Scalia's ethical deficiency goes far past untimely social contact.
__________________
1. The Seattle Times, 1/18/04, from The Los Angeles Times.
2. 530 U.S. 567 (2000); see my notes of 4/19and 4/21/02.
3. 531 U.S. 98 (2000).
January 20, 2004
I had a bad day, so the State of the Union address would have been too much to bear. Between Bush's smirk and the brainless applause at each of his inane punch lines, I knew that I would gag. When I feel stronger, I'll read the transcript.
We did watch the Democratic response, but that was worse. Nancy Pelosi managed to combine a manic expression with comments of numbing blandness. By the time Tom Daschle delivered his half, I had lost all interest, but his usual soporific delivery would have accomplished that unaided. If there were any useful ideas in either segment, I was not alert enough to hear them.
Howard Dean has his faults as a candidate, but at least he has passion, which no doubt accounted for his early lead. Someone needs to convince people that the emperor has no clothes, but the Congressional leadership only averts its eyes. Dick Gephardt's defeat in Iowa was poignant, but I had difficulty understanding how he thought anyone could take him seriously as an adversary to George Bush after failing to mount any credible opposition to him in Congress.
The Iraq-invasion rationale continues to evolve. President Bush, in his State of the Union address,1 offered the now-familiar pastiche of phantom weapons, invented ties to terrorism, implied connections to 9-11 and liberation. The argument included the newest and dumbest fallback formula: war was justified because we've found "weapons of mass destruction-related program activities." A few more months of not finding anything and it will be "minutes of committee meetings devoted in part to weapons of mass destruction-related program activity proposals." The President attributed the program- activity discoveries to David Kay, just as Dr. Kay was about to make clear that he can't rely on actual WMD.
In a press conference on January 27,2 Mr. Bush avoided answering questions about his WMD claims. At one point, his evasions left him so confused that he said that, following the adoption of Resolution 1441, Saddam Hussein "did not let us in." That should surprise Hans Blix.
While Mr. Bush amused us with his rhetorical retreats, the Vice President offered up golden oldies. In an interview on January 9, he discussed the link between Iraq and 9-11: "On...the 9/11 question, we've never had confirmation one way or another." 3 Confirmation of what? His only reference was to the long-discredited report of a meeting between a 9-11 plotter and an Iraqi in Prague. "That was the one that possibly tied the two together to 9/11." An unsupported possibility isn't much of an excuse for war.
In the same interview, he discussed the more general question of a link between Iraq and al Qaeda. He referred the reporter to a November article in The Weekly Standard: "That's your best source of information." He claimed that the article was "based on an assessment that was done by the Department of Defense...." That "assessment" was a leaked document. In November, the Defense Department responded to the article and its source as follows:
News reports that the Defense Department recently confirmed new information with respect to contacts between al Qaeda and Iraq in a letter to the Senate Intelligence Committee are inaccurate.
A letter was sent to the Senate Intelligence Committee on Oct. 27, 2003, from Douglas J. Feith, under secretary of defense for policy, in response to follow-up questions from his July 10 testimony. One of the questions posed by the committee asked the department to provide the reports from the intelligence community to which he referred in his testimony before the committee. These reports dealt with the relationship between Iraq and al Qaeda.
The letter to the committee included a classified annex containing a list and description of the requested reports....
The items listed in the classified annex were either raw reports or products of the CIA, the National Security Agency or, in one case, the Defense Intelligence Agency.... The classified annex was not an analysis of the substantive issue of the relationship between Iraq and al Qaeda, and it drew no conclusions.
Individuals who leak or purport to leak classified information are doing serious harm to national security; such activity is deplorable and may be illegal. 4
In an interview on NPR, Cheney hauled out the trailers:
We know, for example, that prior to our going in that [Saddam Hussein] had spent time and effort acquiring mobile biological weapons labs, and we're quite confident he did, in fact, have such a program. We've found a couple of semi trailers at this point which we believe were, in fact, part of that program.... I would deem that conclusive evidence, if you will, that he did, in fact, have programs for weapons of mass destruction.5
Mr. Cheney has been the usual candidate for power behind the throne, but that is becoming increasingly difficult to accept given his pattern of being about two steps behind the official line as to Iraq.
However, we do seem to need a candidate. The contrary assumption, that Bush is in charge, also is becoming more difficult to maintain. His major visible activity has been to attend fund-raisers. Several of his speeches, beginning with a policy address on November 6, have sounded as if they were written not only by, but for, someone else. The recent announcement of the bold new program for space exploration seemed to be something he'd been told to read, not anything in which he had any real interest.
Karl Rove is an obvious possibility as the controlling force, but more likely it is a shifting alliance of advisors in which Mr. Rove is prominent. The Suskind-O'Neill book may shed some light.
___________________
1, 2. www.whitehouse.gov.
3. Transcript of interview, The Rocky Mountain News, 1/9/04.
4. www.defenselink.mil/releases/2003 11/15/03.
5. www.fair.org, 1/23/04, quoting from NPR broadcast.
The administration's approach to public finance has led to some memorable quotes. Treasury Secretary Snow: "Make no mistake; President Bush is serious about the deficit."1 He is so serious that this year will show a record deficit. Budget director Bolten: "With Congress's help in enacting the budget we transmit today, we will be well on the path to cutting the deficit in half within five years."2 That is accomplished by increasing spending and making expiring tax cuts permanent. Fantasy, for this administration, is not limited to weapon stockpiles. Nor is misrepresentation: the budget does not include the costs of the occupation of Iraq and Afghanistan.
Of all the summaries of the budget, the one which jumped out was a chart showing the sources of revenue. The regressive payroll tax will account for 39% of federal revenue for fiscal 2005.3
__________________
1. www.ustreas.gov/press/releases 1/26/04.
2. The Washington Post, 2/2/04.
3. Chart in The Seattle Times; data from www.whitehouse.gov/omb/budget/fy2005
February 7, 2004
The unraveling of the administration's case for war has led to varying responses by its spokesmen and supporters. Vice President Cheney has been in denial and Secretary Powell has been confused, but most have taken the same path as President Bush: if today's rationale springs a leak, try another; there must be one out there that will hold water. A few supporters have admitted to being deceived about WMD, although in some cases clinging to the belief that the war still was justified: Iraq might have developed dangerous weapons sometime; Saddam was bad; democracy in Iraq would be good.
However, these rationalizations ignore the fact that the invasion of Iraq not only was unjustified but, strategically, was a bad idea. A study published in December by the Strategic Studies Institute of the Army War College reaches that conclusion. The study runs to 46 pages plus 10 pages of footnotes, but it is preceded by a summary which is worth quoting in full.
In the wake of the September 11, 2001, al-Qaeda terrorist attacks on the United States, the U.S. Government declared a global war on terrorism (GWOT). The nature and parameters of that war, however, remain frustratingly unclear. The administration has postulated a multiplicity of enemies, including rogue states; weapons of mass destruction (WMD) proliferators; terrorist organizations of global, regional, and national scope; and terrorism itself. It also seems to have conflated them into a monolithic threat, and in so doing has subordinated strategic clarity to the moral clarity it strives for in foreign policy and may have set the United States on a course of open-ended and gratuitous conflict with states and nonstate entities that pose no serious threat to the United States.
Of particular concern has been the conflation of al-Qaeda and Saddam Hussein's Iraq as a single, undifferentiated terrorist threat. This was a strategic error of the first order because it ignored critical differences between the two in character, threat level, and susceptibility to U.S. deterrence and military action. The result has been an unnecessary preventive war of choice against a deterred Iraq that has created a new front in the Middle East for Islamic terrorism and diverted attention and resources away from securing the American homeland against further assault by an undeterrable al-Qaeda. The war against Iraq was not integral to the GWOT, but rather a detour from it.
Additionally, most of the GWOT's declared objectives, which include the destruction of al-Qaeda and other transnational terrorist organizations, the transformation of Iraq into a prosperous, stable democracy, the democratization of the rest of the autocratic Middle East, the eradication of terrorism as a means of irregular warfare, and the (forcible, if necessary) termination of WMD proliferation to real and potential enemies worldwide, are unrealistic and condemn the United States to a hopeless quest for absolute security. As such, the GWOT's goals are also politically, fiscally, and militarily unsustainable.
Accordingly, the GWOT must be recalibrated to conform to concrete U.S. security interests and the limits of American power. The specific measures required include deconflation of the threat; substitution of credible deterrence for preventive war as the primary vehicle for dealing with rogue states seeking WMD; refocus of the GWOT first and foremost on al-Qaeda, its allies, and homeland security; preparation to settle in Iraq for stability over democracy (if the choice is forced upon us) and for international rather than U.S. responsibility for Iraq's future; and finally, a reassessment of U.S. military force levels, especially ground force levels.
The GWOT as it has so far been defined and conducted is strategically unfocused, promises much more than it can deliver, and threatens to dissipate scarce U.S. military and other means over too many ends. It violates the fundamental strategic principles of discrimination and concentration. 1
The author is Jeffrey Record, Ph.D., a Visiting Research Professor at the Strategic Studies Institute and a professor at the Air Force War College. The study is prefaced by a disclaimer that "views expressed in this report are those of the author and do not necessarily reflect the official policy or position of the Department of the Army, the Department of Defense, or the U.S. Government." The BBC reported that "US officials have played down the report. They say the views are those of the author alone and do not represent any official policy." But it added, "Our correspondent says the suspicion will nevertheless be that the views are shared by some in the US Army."2
Whether or not the last is true, it is too much to expect this administration and its cheerleaders to acknowledge that they have engaged in an "unnecessary preventive war of choice." The President's latest war-rationale fudge was delivered on Thursday in Charleston: "The liberation of Iraq removed a source of violence and instability from the Middle East. And the liberation of Iraq removed an enemy of this country and made America more secure."3 Possibly the NBC interview tomorrow will reveal how we have been made more secure. More likely it will provide another variation on the theme.
__________________
1. http://www.carlisle.army.mil.ssi/
2. http://www.news.bbc.co.uk/ 1/13/04.
3. www.whitehouse.gov, 2/5/04.
February 11, 2004
I read the transcript of President Bush's appearance on "Meet the Press" 1 and found his answers to be rambling and nonresponsive. There were numerous distortions: on intelligence, the budget and his cooperation with the 9-11 commission.2 Then I read a column by Peggy Noonan3 in which she said that one had to see the interview to appreciate just how bad it was, so I ran the tape we had made. She was right; he was also nervous, defensive and confused.
Judging from comments to date, this interview fell with about a loud a thud as the State of the Union address. No transcript of the interview has turned up on the White House web site, which has recorded virtually every word said by Mr. Bush to this point. (There is a "Global Message" dated February 10, which is one page of slightly modified and rearranged excerpts). As Ms. Noonan's comment indicates, conservatives were no more impressed than liberals. She suggested that Mr. Bush give up interviews and stick to speeches. David Brooks, agreeing that articulating on his own isn't the President's long suit, offered a text of what he should have said.
Tim Russert was criticized for not pinning Mr. Bush down with follow-up questions. There were a few that begged to be asked, but his prepared questions were pointed and he probably wanted to cover a certain amount of ground rather than exhaust any subject.
Many of the answers were nothing more than recitals of catch-phrases; on a couple of occasions, Mr. Bush quoted his speeches, as if they were an independent source of information; perhaps they are to him. A few answers were significant, if sometimes incoherent.
Mr. Bush conceded that his statement about Iraq's WMD on the eve of the was wrong:
RUSSERT: The night you took the country to war, March 17th, you said this: Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised.
BUSH: Right.
RUSSERT: That, apparently, is not the case.
BUSH: Correct.
It's important for people to understand the context in which I made a decision here in the Oval Office. I'm dealing with a world in which we have gotten struck by terrorists with airplanes, and we get intelligence saying that there is, you know, we want to harm America. And the worst nightmare scenario for any president is to realize that these kind of terrorist networks had the capacity to arm up with some of these deadly weapons and then strike us.
If there were no WMD and a tie cannot be made to terrorism, what justification remains? One of Mr. Bush's favorite fall-back rationales has been Saddam Hussein's brutality. Russert asked a question based on Paul Wolfowitz' interview in Vanity Fair, in which Mr. Wolfowitz identified "three fundamental concerns" about Iraq. The reference is slightly mangled, but presumably the point would have been familiar to anyone who had read the article or had taken part in the administration's internal debate on Iraq.
RUSSERT: ....[N]ow that we have determined there are probably not these stockpiles of weapons that we had thought, and the primary rationale for the war had been to disarm Saddam Hussein, Paul Wolfowitz, the deputy defense secretary, said that you had settled on weapons of mass destruction as an issue we could agree on.
But there were three: One was the weapons of mass destruction, the second is support for terrorism, and third is Saddam's criminal treatment of his Iraqi people.
He said the third one by itself is a reason to help Iraqis, but it's not a reason to put American kids' lives at risk, certainly not on the scale we did.
Now looking back, in your mind, is it worth the loss of 530 American lives and 3,000 injuries and woundings simply to remove Saddam Hussein, even though there were no weapons of mass destruction?
...I've got a foreign policy that is one that believes America has a responsibility in this world to lead, a responsibility to lead in the war against terror, a responsibility to speak clearly about the threats that we all face, a responsibility to promote freedom, to free people from the clutches of barbaric people such as Saddam Hussein who tortured, mutilated.
There were mass graves that we have found. A responsibility to fight AIDS, the pandemic of AIDS, and to feed the hungry. We have a responsibility. To me, that is history's call to America. I accept the call and will continue to lead in that direction.
Russert instead asked a more abstract question: "In light of not finding the weapons of mass destruction, do you believe the war in Iraq is a war of choice or a war of necessity?" The President clearly was flummoxed by this, even though the question used a common formulation. He stammered, paused for help from Russert, which did not come, and finally returned to the script:
BUSH: I think it's -- that's an interesting question. Please elaborate on that a little bit. A war of choice or a war of necessity?
I mean, it's a war of necessity. We -- in my judgment, we had no choice when we look at the intelligence I looked at that says the man was a threat.
The attacks on our country affected our economy. Corporate scandals affected the confidence of people and therefore affected the economy. My decision on Iraq, this kind of march to war, affected the economy.4
The interview has been described as the beginning of Mr. Bush's reelection campaign. If so, he's off to a slow start with working people. Following one of his references to tax cuts and economic stimulation, Mr. Bush said this:
See, I'm more worried about the fellow looking for the job. That's what I'm worried about. I want people working. I want people to find work.
One facet of increased services trade is the increased use of offshore outsourcing in which a company relocates labor-intensive service industry functions to another country.... When a good or service is produced more cheaply abroad, it makes more sense to import it than to make or provide it domestically. 5
Outsourcing is just a new way of doing international trade. More things are tradable than were tradable in the past. And that's a good thing.6
_________________
1. washingtonpost.com/FDCH eMediaMillWorks 2/8/04.
2. For an analysis, see, e.g., http://www.americanprogress.org/ "Claim v. Fact."
3. www.opinionjournal.com, 2/8/04.
4. This appears in more hedged form in the Economic Report of the President, February 2004.
5. The Annual Report of the Council of Economic Advisers, p. 229, attached to the Economic Report of the President, February 2004.
6. The Seattle Times, 2/10/04.
March 1, 2004
President Bush is not doing well in polls and his recent appearances and initiatives have been remarkably ineffective.
The State of the Union address fell flat. His interview on "Meet the Press" was an embarrassment.
The Mars proposal was greeted with some derision, but mostly with yawns. It seems to have been relegated to the punctured-trial-balloon box.
The revisions to Medicare, which the administration hoped would steal an issue from the Democrats, are not popular, the "correction" to the cost has offended members of Congress across the political spectrum, and the commercial being run at taxpayer expense has generated still more criticism.
The hesitant preliminary stance on marriage, proposing to spend 1.5 billion to improve attitudes and skills, impressed no one, especially social conservatives, leading to the President's recent statement in support of a constitutional amendment banning gay marriage.1 The President's remarks left open the possibility of "legal arrangements other than marriage," which could lead to the same position taken by the Democratic candidates, heterosexual-only marriage, with the possibility of "civil unions" for gays. Therefore, Mr. Bush seems to have added nothing of substance to the debate, but has proposed mucking about with the Constitution. That is a bad idea in principle, and the amendment being discussed is hopelessly ambiguous.
The fact that the White House felt compelled to take this tack reveals doubts about its core support. The gesture pleased some conservatives - one group ran an ad in The New York Times yesterday thanking Mr. Bush for his "courage" - but the balance of reaction has been negative, and there is a good chance that he lost more votes than he gained. His announcement of support for the amendment set a new standard for unenthusiastic, pro-forma endorsement, and the Times reported today that the issue may not be brought up in future speeches.
Added to all of this is the beating Vice President Cheney has been taking, which has led to suggestions that he leave the ticket. His latest gaffe, the Scalia duck shoot, has reminded voters of how he and Bush came to be "elected."
The standard explanation for the bad patch is that attention has been concentrated on the Democratic candidates; when that race is over, the spotlight will return to the President and he has unlimited funds with which to burnish his image. It may work out that way, but more exposure of the Bush we have seen lately would not aid the cause. Whatever the outcome, recent events have demonstrated the inherent weakness of George Bush and Dick Cheney as candidates and Karl Rove's limitations as a strategist.
________________
1. www.whitehouse.gov, 2/24/04.
March 5, 2004
In surfing the TV today, I landed on C-SPAN in time to catch Tony Blair's attempt to justify his anti-terrorism policies, including the invasion of Iraq. As to Iraq, it was a thoroughly unconvincing account. One would think that an intelligent man, given a year, could do better.
His rationale for the war was a hodge-podge of familiar themes: Saddam's brutality, the irresolution of the U.N., Iraq's failure to faithfully report, the possibility that WMD might get into the hands of al-Qaeda. He had some difficulty with the latter, as his overarching theme was religious terrorism and Iraq wasn't a fundamentalist state. Iraq's weakness also was inconvenient, so he theorized that its porous borders would have allowed terrorists to steal the WMD. Of course, there weren't any WMD, a fact he did not emphasize. Most of it came down to a more literate and elegant version of "I'm not going leave him in power and trust a madman."1
As a final, desperate argument, he declared that once we'd gone through the military buildup and threatened war we had to proceed; "backing down" would have made us look weak and encouraged the terrorists. If, once having threatened the use of force, we must attack, it would seem to follow that we should have solid grounds for war before issuing the threat. However, Mr. Blair certainly has not reached that conclusion.
___________________
1. President Bush, "Meet the Press," 2/8/04, among other occasions.
March 10, 2004
In testimony yesterday, CIA Director Tenet provided support for two familiar charges: the administration has distorted the facts in creating Iraq-invasion rationales; the CIA is not exactly on top of things. The support presumably was unintentional as to the second, perhaps less so as to the first.
Mr. Tenet said that he has felt compelled to correct exaggerations by the President and Vice President. He gave three examples, including the African-uranium story and Mr. Cheney's insistence that the famous two trailers were "conclusive evidence" of WMD programs. A report of his testimony remarked that, although Mr. Tenet identified only three instances of correction, he "left the impression that there had been more."1
The third example illustrates the CIA's shortcomings as a gatherer of information. On January 9, Mr. Cheney said in an interview by the Rocky Mountain News that the best source of information as to an Iraq-al Qaeda connection was an article in The Weekly Standard.2 Mr. Tenet said yesterday that he intended to correct the Vice President, but he had not yet done so because he only learned about the interview on Monday. The CIA is a massively-funded gatherer of information. Distortions by the White House were a source of embarrassment, to it and to the CIA, so one might expect the agency to keep track of them. The interview was published in a newspaper with a circulation near 400,000. The Rocky Mountain News has an on-line edition. Its archives indicate that the transcript of the interview was posted on January 9. References or links to the transcript appeared in other on-line sources later that month: on americanprogress.org January 22, on washingtonpost.com and misleader.org January 23.
Another item which tends to underscore both problems is a reference to a briefing by Douglas Feith to a group including the Vice President's chief of staff and the deputy national security advisor. It reportedly hyped the al Qaeda connection and disparaged the CIA position. The briefing took place in August, 2002; Mr. Tenet learned of that within the past two weeks.3
These lapses might lead one to the comforting conclusion that the CIA isn't conducting domestic intelligence operations and isn't spying on other branches of government. Or maybe it's just incompetent.
________________
1. The New York Times, 3/10/04.
2. See my note of 2/4/04 for more on this episode.
3. The New York Times, The Los Angeles Times, both 3/10/04.
March 16, 2004
It will be interesting to see where President Bush's poll numbers go over the next few weeks. A CBS poll released yesterday shows Bush 3 points ahead of Kerry after trailing by one point two weeks ago. However, it reported that 63% thought that Bush "cares about you," so one has to wonder whom they asked.
On the plus side for Mr. Bush, the race for the Democratic nomination is over, eliminating a source of free media for the Democrats and presenting a single target. Kerry is not defining himself clearly, allowing Bush to do the defining through attack ads. Kerry has had several episodes of clumsiness. On one of these occasions, a microphone left open accidently (?) caught Kerry calling the opposition a band of crooks and liars. This didn't play well with anyone, but Republican shock was a bit much. Maureen Dowd captured the mood:
These tough-guy Republicans, who rule the House with an iron fist, were suddenly squealing like schoolgirls at being victimized by big, bad John Kerry. J. Dennis Hastert, the House speaker, said Mr. Kerry would have his "upcomeance coming." Tom DeLay sulked that the public was getting "a glimpse of the real John Kerry." The Hammer was talking like a nail.
Marc Racicot, Mr. Bush's campaign chairman, accused Mr. Kerry of "unbecoming" conduct and called on him to apologize.
Oh, the poor dears. The very Bush crowd that savaged John McCain in South Carolina, that bullied and antagonized the allies we need in the real war on terror, that is spending a hundred million dollars on ads that will turn Mr. Kerry into something akin to the Boston Strangler; these guys are suddenly such delicate flowers, such big bawling babies, that they can't bear to hear Mr. Kerry speak of them harshly.1
On the minus side for Bush, his ads to date have been rather inept and have drawn criticism for trading on 9-11. Two of the ads have a defensive tone; as Ms. Dowd put it, "Mr. Bush's subtext is clear: If it weren't for all these awful things that happened, most of them hangovers from the Clinton era, I definitely could have fulfilled all my promises." Actually, he's tried to have it both ways, also claiming that he's done good things, in some cases things everyone knows he hasn't done, such as creating jobs or reducing the cost of health care.
Each of the ads produced by the re-election campaign begins or ends with Mr. Bush reciting that it has his approval. The administration is more flexible. Not content with merely spending public money to promote the Medicare/drug company bill, it now has attempted to disguise the propaganda by presenting it as news and enlisting local stations to aid in the deception.
In one script, the administration suggests that anchors use this language: "In December, President Bush signed into law the first-ever prescription drug benefit for people with Medicare. Since then, there have been a lot of questions about how the law will help older Americans and people with disabilities. Reporter Karen Ryan helps sort through the details." The "reporter" then explains the benefits of the new law.2
Vice President Cheney has been absent from the ads thus far. We can sympathize; who would want to remind people of that embarrassment? However, he's half of the ticket, and at some point the strategists will have to decide what to do with the mentor/millstone.
The Washington Post reported Sunday that "The White House will mark this Friday's first anniversary of the invasion of Iraq with a week-long media blitz arguing that the overthrow of Saddam Hussein was essential to combating global terrorism and making the United States safer." However, not all events are cooperating. The terrorist attack in Madrid caused a popular uprising against the Spanish government, which had supported the invasion of Iraq. The possibility that the attack was in retaliation for that stand was enough to turn the election. Bush has lost an ally and has been given a pointed reminder of what the world thinks of his adventure. No amount of spin will change the fact that Spanish voters think that invading Iraq has made then less safe.
The beginning of the administration's crass anniversary week performance was marked by the death of six more soldiers last weekend, nine in less than a week, bringing the total to 564, of whom 425 have died since Bush took his victory lap. In addition, six American civilians were killed in Iraq in the past week.
__________________
1. The New York Times, 3/14/04.
2. The New York Times, 3/15/04.
March 23, 2004
Justice Scalia denied the Sierra Club's motion asking that he recuse himself from the energy-committee records case, Cheney v. U.S. District Court. Rather than leaving it at that, he chose to issue a memorandum attempting to justify his decision. To some degree he succeeded, by clarifying certain facts and thereby showing his actions to be less blatantly inappropriate than they were made to appear in news reports, editorials and cartoons. He offered arguments which may support his decision, if one adopts his version of the facts, including his lack of bias. He did not rehabilitate his reputation, because it is beyond help.
A statute sets out the tests for recusal. One section states a general rule: "Any justice... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."1 Scalia's memorandum and his earlier informal responses quote or paraphrase this test. In the memorandum, he offers an argument which relies in part on social contacts by judges in the past to show that the Louisiana trip is not disqualifying. He concedes that, if Cheney were "sued personally," their friendship would require recusal. However, here Cheney is a mere nominal party: the action really is against the federal government.
Whether the historical review proves anything is questionable. The nominal-party argument is somewhat disingenuous, as is his claim that Cheney's integrity and reputation could not be affected by this litigation. However, on pragmatic grounds, the personal-official distinction may be defensible; as Scalia says, any other interpretation would result in mass recusals because many judges have social contact with people in the administration, and government officials often are named as parties where only official action is at issue.
Another section of the statute lists situations which mandate recusal; the only one which could apply provides that the judge shall "disqualify himself in the following circumstances: "(1) Where he has a personal bias or prejudice concerning a party,..."2 Scalia did not discuss this provision, but it is fair to say that he provided an answer, the first part of which is the status of Cheney as a nominal party with no personal interest. The second part is his statement that he is not biased, or as he puts it, he will rule impartially. That cannot be accepted.
The memorandum includes an statement which might suggest bias toward the petitioner, i.e., Cheney. He argues that it would be unfair to recuse because it would make it harder for the petitioner (the appellant, the one seeking reversal) to win:
...Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.3
In December, 2000, Bush and Cheney applied to the U.S. Supreme Court for a stay of proceedings then pending in Florida. The Court granted the stay, halting the Florida recount. In an opinion explaining his vote in favor of the stay, Scalia offered this rationale (referring to Bush as if he were the sole petitioner):
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.4
I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.5
Therefore, although Scalia is a bit dense as to the perception of bias, he is right, ironically, in maintaining that his impartiality should not be determined by the recent trip to Louisiana. From the time the stay was issued in Bush v. Gore he had no possible claim to impartiality, and palling around with Cheney or remaining socially remote won't change that.
Justice Scalia's bias may lead him to hold for Mr. Cheney in the pending case. He may overcompensate and hold against. He may be capable of truly independent adjudication. The point is that we can't know whether the last is true; he and his colleagues engaged in an act of partisanship in Bush v. Gore which taints everything that follows. Regardless of outcome, no decision by the Court during Bush's tenure will have clear legitimacy.
_________________
1. 28 U.S.C. § 455(a).
2. 28 U.S.C. § 455(b).
3. Memorandum p. 4, Cheney v. District Court, 541 U.S. ___, (3/18/04).
4. Bush v. Gore, 531 U.S. 1046, 1047 (2000). The concern about ballots "of questionable legality" was an argumentative device, and it was replaced in the opinion on the merits, 531 U.S. 98, with the more manipulable notion that different interpretive standards from county to county raised an equal protection question, a theory which was so far-reaching that the Court was forced to say that its reasoning applied only to that case.
5. 531 U.S. 1046.
March 26, 2004
President Bush no doubt had planned to mark the first anniversary of the invasion of Iraq with some sort of celebration. It wouldn't have been as shallow, false and blatantly political as the carrier-deck strut last year, but no doubt he wanted it to be upbeat. We had been told that removing Saddam Hussein from power had made America and the world safer. Then Saddam Hussein was captured on December 13, and that further increased our safety. Despite the terrorist alerts which followed, Mr. Bush continued to make that claim in January and February. It's likely that the anniversary theme would have been something along that line.
However, at some point, events in the real world force a change of emphasis. Mr. Bush's anniversary party was marred by the terrorist attack in Madrid on March 11. On March 16, Paul Wolfowitz started down the road to restatement by fudging the formula into the future tense: referring to the occupation of Iraq, he said, "It's going to make our country safer, it's going to make the world safer,..."1
In his anniversary address on March 19,2 Mr. Bush abandoned the formula altogether and retreated to the mantras of his baffled response to the resistance in Iraq. "We will never bow to the violence of a few." "Any sign of weakness or retreat simply validates terrorist violence, and invites more violence for all nations." That implicitly recognizes the absence of safety, but it's a long way from admitting that our policies contribute to it.
__________________
1. www.defensewlink.mil/transcripts.
2. www.whitehouse.gov.
April 2, 2004
In his column in Wednesday's P-I, Joel Connelly quoted a prediction by Mary Matalin that the President would be reelected because millions of Americans like him "and sense an authenticity about the man." If authenticity means acting in office as one did on the campaign trail, Bush flunked the test early and often: the humble, moderate uniter became the arrogant, ideological divider. If it refers to matters of appearance and reality in personality and character - he is what he tells you he is - she's no nearer the truth.
Mr. Bush recently appeared at the Houston Livestock Show. In a moment of candor, he admitted to being a "windshield cowboy," meaning that he wanders around his ranch in a pickup, not on a horse. Apparently he doesn't ever ride, so any horses on the place are for decoration. Not only is the cowboy a fake, so is the ranch. It is a made-for-politics backdrop (or "stage set" as Paul Krugman put it), purchased in 1999; the present house was built in 2000.
"Windshield cowboy" captures the phoniness not only of his Texas-rancher pose but of much of his public persona. Consider these roles:
Ordinary guy. The boots and jeans are part of an act in which Mr. Bush pretends to be just a reg'lar fella, someone you can relate to, not one of the eastern elite like, say, John Kerry. George W. Bush has succeeded in obscuring his Andover-Yale-Harvard background because none of that elite education appears to have rubbed off on him. However, he is no more an ordinary guy than he is a rancher; underneath the pose, he's still an Andover cheer-leader, palling around with the other rich kids.
Populist. This is the application of the man-of-the-people act to policy: George Bush cares about ordinary folks and is doing everything he can for them. This theme goes back to the 2000 campaign, during which he told us repeatedly that he trusts the people. For example, he trusts them to invest for their own retirement, so he wants to modify Social Security in a way which will allow that and, by the way, will destroy the system. More recently, his concern for seniors struggling to pay for drugs led to a plan which bars Medicare from negotiating lower prices, but will fatten the profits of drug companies and HMOs, while running up the debt, thereby further threatening Social Security. He is so concerned about single moms and small businesses that he wants to cut their taxes: it's your money and you should keep it; well, you should if you're in a Bush-contributor bracket. He worries about people looking for work and has expressed concern for those suffering the hardships of poverty or unemployment, but supports shipping jobs overseas and refuses to extend unemployment benefits.
George W. Bush has validated the (formerly Republican) joke: "I'm from the government and I'm here to help you."
Entrepreneur. Mr. Bush is fond of telling us about his business background and his experience as an executive. In fact, his business experience consists of using family connections and insider knowledge to roll one losing venture into another, leading to his sweetheart deal in the Texas Rangers, which made him wealthy. The only plus on his resume is his surname.
Warrior. Forget the National Guard issue and look only at George Bush the president as warrior king. The carrier-deck landing to provide a military setting for the announcement of victory in Iraq exemplifies the phoniness. His strut across the deck in a borrowed flight suit was the low point in this charade. A Tom Toles cartoon published at the time Wesley Clark announced his candidacy captured the pose. Under a banner reading "Tonight's Debate: Clark-Bush," the general stands in uniform while Bush struggles into a flight suit taken from a trunk labeled "Dress-up Box."1
Mr. Bush continues the play-acting by donning a military jacket whenever he visits the troops, attempting to identify himself with them; he told an Air National Guard Unit, "You not only have a former Guardsman in the White House, you have a friend."2 However his only interest in the troops is to use them as extras in the story of his life. We are reminded to support the troops, but the President has given himself an exemption from such duty. He or his administration have proposed cuts or opposed increases in benefits, including pay, tax credits, housing allowances and medical care. They have failed provide the troops in Iraq with sufficient body armor, forcing some of them to buy their own, and have opposed an attempt by troops tortured by Iraq during the first Gulf War to obtain payment of their damages from impounded Iraqi assets. V.A. medical centers were told not to publicize available benefits, hoping that veterans wouldn't learn of them.
Protector of national security. More than any other, this role defines the Bush presidency and, for current political purposes, the man. "I will defend America, whatever it takes" is a typical boast. To some degree the falsity here is less intrinsic; Mr. Bush undoubtedly wants to protect the country from attack. In numerous ways, his policies work against those goals, but they do not reflect on his sincerity as to national security. In other ways, however, character is an issue.
Mr. Bush has decided that his response to 9-11 must define him and his presidency. That's fair enough, but appropriating a national tragedy for political purposes carries with it an obligation to be honest about the response and about our state of preparedness. From the beginning, from September 11, 2001, Mr. Bush has offered a false portrayal of his role. His version of what he did that day is at variance with the facts, which leave the impression of disinterest, confusion and indecisiveness. He opposed investigation of the background to the attacks and has obstructed the 9-11 commission at every turn, making concessions only when forced to do so by bad publicity. The reason for the opposition is clear enough: terrorism was not, as Richard Clarke put it, "an urgent issue" for this administration before 9-11. And Mr. Bush's record since then does not match his rhetoric. He opposed a Department of Homeland Security and now claims it as an achievement; he uses pictures of firefighters to burnish his image but, a year after the attacks, tried to hold up funds allocated to providing them with better equipment. Instead of concentrating on al-Qaeda, he diverted resources to Iraq, pretending that, in doing so, he was somehow fighting terrorism, but instead demonstrating that terrorism remained a secondary issue even after 9-11.
Iraq was declared to be a menace in order to justify an invasion desired for other reasons. All of the lies and distortions employed to gain Congressional approval and public support are well known. The point here is that Mr. Bush sold himself as our protector not only against terrorism, but against Iraq, based on tales about WMD, fantasies about unmanned planes and hysterical images of mushroom clouds. In this case, he is a protector who has saved us from a nonexistent threat.
Model for personal responsibility. Mr. Bush has advocated greater personal responsibility; he claims to stand for "a culture of responsibility" and "a new responsibility society." On numerous occasions, he has urged others to show responsibility; one example was his response two years ago to the corporate scandals, but the standards he demanded were notably different from those he adhered to in his Harken Energy days.4
He frequently refers to his "responsibilities;" however, all such references are merely another way of announcing his intentions, for example his responsibility to "defend America" or "to make sure the judicial system runs well." These are easily translated "we're going to do it my way."
One aspect of personal responsibility notably absent is admission of error or failure. The vicious attacks on Richard Clarke were prompted in part by Mr. Clarke's willingness to accept some blame for 9-11, creating an unfavorable comparison to the champion of responsibility.
President. To no small degree, Mr. Bush is play-acting as president. His principal public role is to attend fund-raisers and to visit military installations. His speeches could be read by someone else, often more persuasively. On the few occasions when he has been allowed to be interviewed or questioned by reporters, he has revealed the extent to which the job is beyond him; he falls back on catch-phases, often mangled or misapplied. His pathetic performance in the Meet the Press interview has resulted in his agreeing to be interviewed by the 9-11 commission only if Uncle Dick is there to coach him. The insider accounts to date verify the impression of one little interested in policy and easily influenced. By his own admission, he is dependent on his staff for information about the outside world.
Many people do seem to accept the version of Mr. Bush that Ms. Matalin offers, but the image of a ordinary guy turned decisive, bold, caring leader is pure hokum, something she and her fellow spinners have created. It's difficult to resist the joke about another form of advertising: he isn't a president; he just plays one on television.
___________________
1. The Washington Post, 9/18/03.
2. Army Times, 11/10/03, reproduced on Truthout.com
3. An article in Slate sets out the contrast.
April 9, 2004
In the course of a column pointing out the administration's distance from reality, TomDispatch.com informed us yesterday that the April 7 "Fact of the Day" on the White House web site was "Iraqis Reject Violence." The detachment continues; yesterday and today the Fact of the Day was "Iraq took an important step this week by establishing three national security agencies." Both are, to put it mildly, ironic since security is exactly what Iraq doesn't have and violence is.
It certainly is too much to expect the administration to admit that Iraq is a war zone, that chaos is near, but it was a bit much to bleat about security agencies created by a puppet government while American forces were being killed at the highest rate since the invasion, higher than that during the formal war. 1
However, reality is no more evident on the WH site than honesty is in its public statements: the "Renewal in Iraq" page still features a picture of happy children and still has a section entitled "100 Days of Progress in Iraq" which ends on August 8, 2003, 100 days after the flight-suit victory strut.
_____________________
1. April 1-8, 2004, 5.75 military fatalities per day; March 19-31, 2003, 5.41.
April 16, 2004
After his embarrassing performance on "Meet the Press," Peggy Noonan suggested that President Bush stick to formal speeches. He followed that suggestion in part in his "press conference" on Tuesday, by opening with a quarter-hour prepared statement on Iraq which, if one ignored content, was impressive. He was forceful, and read the speech well. Then came the question and answer session, which negatively validated Ms. Noonan's advice. On his own, Mr. Bush is a misprogrammed robot: each question prompts a string of memorized phrases having little relationship to each other or to the question. Often it required close attention to extract or infer an answer. The impression of command which might have been received from the set speech was entirely negated by his bumbling, meandering non-answers, and examination of the content of both parts raises serious questions about his policies.
Let's consider what the President said1, first in his formal remarks.
According to his generals, we face three opposition groups in Iraq. The one in Fallujah consists of "remnants of Saddam Hussein's regime, along with Islamic militants; in the south, it is a militia assembled by al Sadr. The third is made up of "terrorists from other countries" who have "infiltrated Iraq to incite and organize attacks." The description of the third group appears to say, as have nearly all reports, that foreign terrorists have come in following the occupation, which stands in contrast to Mr. Bush's claim that Iraq was a haven for them under Saddam.
These various groups "want to run us out of Iraq and destroy the democratic hopes of the Iraqi people. The violence we have seen is a power grab by these extreme and ruthless elements." By all accounts the majority of the attackers are Iraqis; does their desire to run an occupying force out of Iraq seem odd to him? Was our invasion not a power grab? If there are legitimate arguments for what we're up to, his speechwriters should state them, not rely on platitudes which add to the impression that he's dense. Do the attackers want to forestall democracy? That may be so, but is there any evidence or is that simply a slogan?
Iraqis "want strong protections for individual rights; they want their independence; and they want their freedom." Does the occupation not contradict the last two? Perhaps the solution is in our plan to turn over "sovereignty."
The President attempted to address the issue of an exit strategy, although disguising it as the accomplishment of our goal, "the transfer of sovereignty back to the Iraqi people." He reiterated that there is a deadline of June 30th for that transfer, and indicated that the date will not be changed. "It is important that we meet that deadline. As a proud and independent people, Iraqis do not support an indefinite occupation -- and neither does America." The last two statements are true, and transfer as soon as possible obviously serves those ends. One problem, which became clear in response to a question, is that we don't even know who will be the recipient of the transfer, let alone whether it will be stable, effective or legitimate.
In addition, there are two anomalies in the plan. First, although we will be transferring "sovereignty" to some Iraqi body, we have set out a program which will extend beyond the transfer date.
On June 30th,... the transitional administrative law, including a bill of rights that is unprecedented in the Arab world, will take full effect.... Iraq will hold elections for a national assembly no later than next January. That assembly will draft a new, permanent constitution which will be presented to the Iraqi people in a national referendum held in October of next year. Iraqis will then elect a permanent government by December 15, 2005....
The other anomaly might lead one to think so. Even though Iraq will commence self-rule on June 30, the President expects to have troops there long afterward.
As we've made clear all along, our commitment to the success and security of Iraq will not end on June 30th. On July 1st, and beyond,... our military commitment will continue. Having helped Iraqis establish a new government, coalition military forces will help Iraqis to protect their government from external aggression and internal subversion.
The President needs public support for "staying the course" despite sharply escalating losses. The purpose of the exit strategy is to create the appearance of progress, and thereby to provide one prop for that support. For that reason, he can't admit that the transfer is merely symbolic, and that little will change on July 1.
The other prop for his policy is the argument that it is necessary to our safety. He addressed this in summary form early in his speech: "Iraq will either be a peaceful, democratic country, or it will again be a source of violence, a haven for terror, and a threat to America and to the world. By helping to secure a free Iraq, Americans serving in that country are protecting their fellow citizens." Public support for our involvement in Iraq depends heavily on believing the last proposition. What is the evidence for it? It isn't something to be taken on faith; the administration also argued that Iraq under Saddam was an urgent threat to us. Later in his speech, Mr. Bush attempted to provide the evidence, but that turned out to be another back-door argument that Iraq is connected to 9-11.
Above all, the defeat of violence and terror in Iraq is vital to the defeat of violence and terror elsewhere; and vital, therefore, to the safety of the American people....
The violence we are seeing in Iraq is familiar. The terrorist who takes hostages, or plants a roadside bomb near Baghdad is serving the same ideology of murder that kills innocent people on trains in Madrid, and murders children on buses in Jerusalem, and blows up a nightclub in Bali, and cuts the throat of a young reporter for being a Jew.
We've seen the same ideology of murder... in the merciless horror inflicted upon thousands of innocent men and women and children on September the 11th, 2001.
...The servants of this ideology seek tyranny in the Middle East and beyond.... They seek to intimidate America into panic and retreat, and to set free nations against each other. And they seek weapons of mass destruction, to blackmail and murder on a massive scale.
Even if this were factual, even if the opposition in Iraq were made up entirely of al Qaeda, where would this logic lead? Would we defeat the world-wide terrorist movement by killing off or driving out its Iraqi cell? Of course not. We might weaken it, but I don't expect to hear that modification; "let's fight on and sustain more casualties in order to weaken al Qaeda" wouldn't sound convincing. Therefore Mr. Bush will continue to talk about victory while dropping his hints about connections to 9-11 so that we believe that we are taking revenge as well as preventing another attack.
There is an alternative form of the second prop, essentially a fallback rationale, which requires treating the opposition as terrorists but not necessarily as al Qaeda: to withdraw would encourage more terrorism. "Over the last several decades, we've seen that any concession or retreat on our part will only embolden this enemy and invite more bloodshed." There probably are events which support this thesis, but the attack in Madrid could be read as teaching an entirely different lesson. "And the enemy has seen, over the last 31 months, that we will no longer live in denial or seek to appease them." Living in denial is a good description of the administration's attitude toward the quagmire in Iraq.
The question period was three-quarters of an hour of evasion, confusion and dissembling which can be appreciated fully only by reading the entire transcript or, better, seeing a video. Let's look at a few of the questions and answers; they are out of order so that related issues can be discussed together.
Q. "Mr. President, April is turning into the deadliest month in Iraq since the fall of Baghdad, and some people are comparing Iraq to Vietnam and talking about a quagmire.... [H]ow do you answer the Vietnam comparison?"
Mr. Bush replied that the analogy is false, which certainly is a legitimate view, but added, "I also happen to think that analogy sends the wrong message to our troops, and sends the wrong message to the enemy." Here is a failed program's last line of defense: criticism is disloyal. The question also referred to polls showing that support for the war is declining. Mr. Bush repeated his disdain for polls: "And as to whether or not I make decisions based upon polls, I don't. I just don't make decisions that way." More on this later.
Q. "What's your best prediction on how long U.S. troops will have to be in Iraq? And it sounds like you will have to add some troops; is that a fair assessment?"
As to numbers, he said, "Well, I -- first of all, that's up to General Abizaid, and he's clearly indicating that he may want more troops. It's coming up through the chain of command. If that's what he wants, that's what he gets." Since he knows of the request, the conditional nature of the answer is odd. So is the off-hand assurance that we'll supply however many we need, given that our reserves are stretched to the breaking point now. As to duration, we got another slogan: "as long as necessary, and not one day more."
The basis for our continued presence remained an assumption: "Once we transfer sovereignty, we'll enter into a security agreement with the government to which we pass sovereignty, the entity to which we pass sovereignty." The vagueness as to that entity came out in another exchange.
Q "... Mr. President, who will you be handing the Iraqi government over to on June 30th?"
He answered, referring to the U.N. envoy: "We will find that out soon. That's what Mr. Brahimi is doing; he's figuring out the nature of the entity we'll be handing sovereignty over [to]." This is bizarre; he has set a nonnegotiable deadline for transferring an illusory sovereignty to an entity to be named later.
The same question asked why he and Cheney insist on appearing together before the 9-11 commission. He ducked that, prompting the reporter to try again, which drew a brushoff. Q. "I was asking why you're appearing together, rather than separately, which was their request." A. "Because it's a good chance for both of us to answer questions that the 9/11 Commission is looking forward to asking us...."
There were several questions which asked about possible mistakes.
Q. "Mr. President, before the war, you and members of your administration made several claims about Iraq[,] that U.S. troops would be greeted as liberators with sweets and flowers, that Iraqi oil revenue would pay for most of the reconstruction; and that Iraq not only had weapons of mass destruction, but as Secretary of Defense Rumsfeld said, we know where they are. How do you explain to Americans how you got that so wrong? And how do you answer your opponents, who say that you took this nation to war on the basis of what have turned out to be a series a false premises?"
There wasn't anything resembling an answer to this. Mr. Bush told us that he had thought Saddam was a threat to us; that (echoing Tony Blair), once we had threatened military action, we had to carry through for the sake of credibility; that the U.N. had to maintain its credibility (so, apparently, we had to wage war in its name); that "we needed to work with people" (?); that Saddam refused to disarm (how one disarms if not armed was not made clear); that the new weapons inspector thinks that Saddam had been devious; that oil revenues are larger than Mr. Bush expected (which is strange, as they are smaller than the administration's published pre-war estimates); and that Saddam was a torturer.
Four of those questions asked, in effect, for an apology.
Q. "Do you feel a sense of personal responsibility for September 11th? "
In the midst of a ramble, he said this, which is as close as he came to an apology or an admission of responsibility: "There are some things I wish we'd have done when I look back. I mean, hindsight is easy."
Q "...Two weeks ago,...Richard Clarke, offered an unequivocal apology to the American people for failing them prior to 9/11. Do you believe the American people deserve a similar apology from you, and would you be prepared to give them one?"
Well, no. "Here's what I feel about that. The person responsible for the attacks was Osama bin Laden. That's who's responsible for killing Americans."
Q "...One of the biggest criticisms of you is that whether it's WMD in Iraq, postwar planning in Iraq, or even the question of whether this administration did enough to ward off 9/11, you never admit a mistake. Is that a fair criticism? And do you believe there were any errors in judgment that you made related to any of those topics I brought up?"
The closest Mr. Bush came to even discussing the subject was this excuse: "nobody in our government, at least, and I don't think the prior government, could envision flying airplanes into buildings on such a massive scale." Is the 9-11 evasion now down to the "massive scale?" Certainly Mr. Bush can't claim that no one thought of aircraft as missiles, as a rumor surfaced in June, 2001 of such a plot to attack a conference he attended in Genoa in July; in response, the Italian government closed the airspace above Genoa and installed anti-aircraft batteries. In fact, in answer to another question, which dealt with the August 6, 2001 Presidential Daily Briefing, Mr. Bush referred to that episode: "I asked for the briefing. And the reason I did is because there had been a lot of threat intelligence from overseas. And so - part of it had to do with Genoa, the G8 conference that I was going to attend."
Q "...In the last campaign, you were asked a question about the biggest mistake you'd made in your life, and you used to like to joke that it was trading Sammy Sosa.... After 9/11, what would your biggest mistake be, would you say, and what lessons have you learned from it?"
This one really has to be seen; the inanity of the response doesn't fully come through on the page.
I wish you would have given me this written question ahead of time, so I could plan for it.... I'm sure historians will look back and say, gosh, he could have done it better this way, or that way. You know, I just -- I'm sure something will pop into my head here in the midst of this press conference, with all the pressure of trying to come up with an answer, but it hadn't [sic] yet."
I hope I -- I don't want to sound like I've made no mistakes. I'm confident I have. I just haven't -- you just put me under the spot here, and maybe I'm not as quick on my feet as I should be in coming up with one.
There has been speculation as to the origin of Mr. Bush's inability to admit a mistake. Whatever psychological reasons there may be, his strange performance here is a result of tactics combined with his obvious inability to deal with even slight deviations from script. An article in The New York Times yesterday revealed that the White House strategy was: no apologies. "In fact, his advisers said Wednesday that there was near unanimity in the White House, starting with Mr. Bush himself, that the last thing he should do in his first prime time news conference since the Iraq war was to show any sign of remorse." This may proceed less from calm political calculation than from hubris:
One of his senior advisers broke out laughing Wednesday as he recalled the persistence of reporters pressing Mr. Bush on the subject of remorse, suggesting that contrition would have been a sign of weakness that was both alien to Mr. Bush and more typically found in the corridors of the Democratic Party. "We must return to the days of Jimmy Carter!" the aide said in a sarcastic invocation of a Democratic president that Republicans have long sought to equate with presidential weakness. "We must have malaise! We must have a weak president! We must have a morose Kerrylike apology!"
Oh, and as to Mr. Bush's refusal to make decisions by poll, "One adviser said the White House had examined polling and focus group studies in determining that it would be a mistake for Mr. Bush to appear to yield."2
_________________
1. Transcript, www.whitehouse.gov/news/releases, 4/14/04.
2. Adam Nagourney, "Bush takes strategic no-remorse stance." The article also ran in yesterday's Seattle Post-Iintelligencer
April 20, 2004
One of the President's faithful supporters on Iraq has admitted that he misjudged events there. In his column in Saturday's New York Times, David Brooks acknowledged that he had badly underestimated the difficulties we would face. He wasn't duped by the cakewalk scenario, but he didn't expect that, a year after invasion, we would be fighting an urban war.
Most of all, I misunderstood how normal Iraqis would react to our occupation. I knew they'd resent us. But I thought they would see that our interests and their interests are aligned. We both want to establish democracy and get the U.S. out. I did not appreciate how our very presence in Iraq would overshadow democratization.
Mr. Brooks' pre-war statements indicate that he thought that the threat of WMD necessitated the invasion, but that liberation and democratization also justified it. Apparently he didn't believe that we invaded Iraq to bring democracy to the Iraqis, as he criticized Mr. Bush for not making that case. He seems to be an adjunct member of the group for which Thomas Friedman has been the leading spokesman, those who expect that a positive transformation of Iraqi society will follow an invasion undertaken for different reasons.
Or perhaps Mr. Brooks thinks that the administration has changed its goal, and not merely its rhetoric, that the course we are staying really is the effort to bring democracy to Iraq. Whatever the source, the illusion is there: "Despite all that's happened, I was still stirred by yesterday's Bush/Blair statements about democracy in the Middle East." Those statements1 were the same pious slogans we've heard many times. President Bush's commitment to democracy in the Middle East, and his effectiveness in bringing peace, can be measured by his abandoning any pretense of neutrality in Palestine and approving Prime Minister Sharon's plan, which Sharon celebrated with another assassination. The most that can be said for the supposed Bush-Blair vision for Iraq is that they recognize that it would be better to leave Iraq with a stable, moderate government; the rest is just filler.
A commitment to democracy is not the only characteristic which Mr. Brooks projects onto our leader; "To his enormous credit, the president has been ruthlessly flexible over the past months and absolutely committed to seeing this through." I'm not sure what ruthless flexibility is, but what we've seen is a series of vows not to change followed by changes forced by political pressure. Last year Mr. Brooks had a somewhat less complimentary view of flexibility; then he complained that the Bush administration "has the most infuriating way of changing its mind." It never admits that it makes mistakes, listens to critics or changes course, while doing just that. He found the President's September 7 speech on Iraq to be an example: "The policy ideas Bush sketched out represent such a striking series of policy shifts they amount to a virtual relaunching of the efforts to rebuild Iraq. Yet the president unveiled them as if they were stately extensions of the policies that commenced on Sept. 11, 2001." However the adjustments are described, I fail to see any credit due for a program so flawed that it requires constant retooling and a policy of pretending that no mistakes were made.
In a way it isn't fair to pick on Brooks, as he's had the character to admit error, in contrast to the President and his National Security Advisor. However, in other ways, he deserves it. He hasn't gone far enough in his reappraisal; he's only at the level of tactics: "The failure to establish order was the prime mistake, from which all other problems flow." No; the mistake, from which all the rest flows, was invading, but Mr. Brooks is not about to admit that. "We hawks were wrong about many things. But in opening up the possibility for a slow trudge toward democracy, we were still right about the big thing." Mr. Brooks not only was wrong about that, he was, so to speak, wrong at the top of his voice. His arguments for the war were smug, pompous and arrogant. They were, intentionally or not, part of the administration's drive to bully the American people and the Congress into supporting a war without giving the issue the thought it required. Some examples:
A Congressional debate on the war was "a terrible idea." In Mr. Brooks' view, we were confronted with a "stark truth," that Saddam Hussein wanted to "get nuclear weapons in order to dominate his region and murder his enemies." That formulation implicitly conceded the lack of evidence of actual WMD, which would seem to suggest a factual issue for debate, to say nothing of questions of principle, international law and collateral effects. Not so: Congressional hearings won't enlighten us; "On the contrary they fog the minds of all who hear them."2 This is straight out of the administration playbook: get the war under way before anyone catches on.
He relented long enough to say a few good things about the speech by Senator Kennedy. However, it was flawed because it had "the tone of lack of compassion.... A tone of almost meanness, that we are going to sit here in a gated community while the tide of despotism spreads across the Middle East and we are not going to do anything about it."3 If you don't agree that we should invade Iraq, then you are an elitist, a "peacenik," and callous about the oppression of its people.
But weren't there other issues? The matter wasn't that simple, was it? Apparently so; you see, those in "the peace camp" weren't sincere about their concerns. "Instead of facing the real options, they fill the air with evasions, distractions, and gestures - a miasma of insults and verbiage that distract from the core issue."4 He pointed out, accurately enough, that some liberals never moved beyond indecisiveness, but unless one assumes, contrary to fact, that there was an imminent danger (something the administration now claims never even to have mentioned), being hesitant to go to war was not much of a fault. However, Mr. Brooks considered doubt to be a product not of careful thinking but of narcissism. "In certain circles, it is not only important what opinion you hold, but how you hold it. It is important to be seen dancing with complexity, sliding among shades of gray. Any poor rube can come to a simple conclusion--that President Saddam Hussein is a menace who must be disarmed--but the refined ratiocinators want to be seen luxuriating amid the difficulties, donning the jewels of nuance, even to the point of self-paralysis." Real Americans grasp the truth intuitively. The opponents are relativists to whom truth is unimportant; all they care about is style. "And they want to see their leaders paying homage to this style. Accordingly, many Bush critics seem less disturbed by his position than by his inability to adhere to the rules of genteel intellectual manners. They want him to show a little anguish. They want baggy eyes, evidence of sleepless nights, a few photo-ops, Kennedy-style, of the president staring gloomily through the Oval Office windows into the distance." 5 Accidentally, in the course of this heavy sarcasm, Mr. Brooks said something significant: thinking people don't trust decisions about war based on the simple conclusions of a poor rube. They would like to believe that someone competent has thought the matter through and, yes, agonized about it.
I haven't seen anything by Mr. Brooks about the Vietnam-quagmire parallel, but just before the war he saw Iraq as a way out of the supposed post-Vietnam crisis of confidence: "If the effort to oust Saddam fails, we will be back in the 1970s. We will live in a nation crippled by self-doubt. If we succeed, we will be a nation infused with confidence. We will have done a great thing for the world, and other great things will await."6 Feeling down? Launch a war against a weak opponent; results guaranteed.
Bush can't be re-elected if the public sees the Iraq fiasco for what it is. To forestall that, he desperately needs to create two illusions: something has been accomplished and we're starting to pull out. Those ideas need to be planted well before the election, ideally before the Democratic convention, so he's adamant about the June 30 date but ready to turn over "sovereignty" to whomever the U.N. picks. Maybe that's what "ruthless flexibility" means: ruthless in achieving the political goal, but flexible as to means and as to theories of why we've done what we've done.
Another column in The Times last weekend urged ruthlessness of a different sort. Naill Ferguson returned on Sunday to repeat his advice that the U.S. admit that it's an imperial power and get on with acting like one. He advised us, in looking for precedents, to think about the British in Iraq after World War I, not ourselves in Vietnam. We are experiencing a revolt in Iraq, as did the British. A "revolt against colonial rule is not the same as a war. Vietnam was a war."
Most would consider the British experience in Iraq a cautionary tale, but Ferguson would be content to have us learn three lessons from it, two of them dubious. "The first is that this crisis was almost inevitable." Whether or not one accepts Ferguson's somewhat diffuse argument, that conclusion seems a fair one, although not everyone would proceed from there to his second lesson, that revolts must be put down brutally.
"Putting this rebellion down will require severity. In 1920, the British eventually ended the rebellion through a combination of aerial bombardment and punitive village-burning expeditions. It was not pretty." He notes that the Brits lost 2,000 men in the action, but apparently that's just part of the deal, along with civilian casualties. "Is the United States willing or able to strike back with comparable ruthlessness?" Probably not, to his dismay.
"This could prove a grave error. For the third lesson of 1920 is that only by quelling disorder firmly and immediately will America be able to achieve its objective of an orderly handover of sovereignty." Obviously an orderly transition will be easier if no fighting is going on, but it is absurd to argue that brutal repression is the first step toward handing over sovereignty to a government that we want to be democratic, moderate, and pro-American. Ferguson admits that the sovereignty which the British handed over was illusory and that British troops remained in Iraq until 1955; some model.
The administration isn't likely to follow much of Ferguson's advice, including his recommendation that we stop fooling ourselves and admit that "America is in the empire business." However, that is in effect what the neocon vision of Iraq entails and Ferguson may have done a service by pointing out just how bad an idea that is.
___________________
1. See www.whitehouse.gov/news/releases, 4/16/04.
2. The Weekly Standard, 9/6/02.
3. "The News Hour," PBS, 9/27/02.
4. The Weekly Standard, 9/30/02.
5. The Times (London), 3/7/03.
6. The Weekly Standard, 3/17/03.
April 22, 2004
On Sunday, The Seattle Times carried a photograph on page 1 showing flag-draped coffins inside a transport plane in Kuwait. That was surprising given the administration's policy against admitting the cost of the war. Today the explanation appeared: the picture was not sanctioned by the government and the photographer, an employee of a contractor, was fired, along with her husband. The Times reported that "Tami Silicio, a Kuwait-based cargo worker...was let go yesterday for violating U.S. government and company regulations."
The image of the crusade in Iraq which the administration wants us to absorb is rather different. There are seventy "Photos of Freedom" on the Iraq page of the White House web site. Sixty-eight are upbeat: Iraqis waving, soldiers distributing food or giving candy to children, etc. There are only two that refer even indirectly to the reality of war: each is a picture of a mine, the significance of which is unclear; they were "confiscated somewhere in the North Arabian Sea." Sixty-eight happy scenes, two obscure munitions: war in Bushland.
April 25, 2004
The administration dropped the other shoe last week and admitted that the "sovereignty" to be transferred to Iraqis on June 30 is something less than that. It has been obvious from the outset that there was a conflict between a transfer of sovereignty and retention of control of the armed forces by the U.S., but the conflict was not often noted. Even now, it seems to be a surprise or an unwelcome admission; Marc Grossman, under secretary of state for political affairs, "referred in testimony on Wednesday to what he said would be 'limited sovereignty,' a phrase he did not repeat on Thursday, apparently because it raised eyebrows among those not expecting the administration to acknowledge that the sovereignty would be less than full-fledged."1
In addition to stating that American forces - and apparently Iraqi forces as well - would remain under American command, Mr. Grossman indicated that the administration does not want the interim government to have the power to enact new laws or change those imposed by the occupation.
__________________
1. The New York Times, 4/23/04.
After Representative Jim McDermott, omitted "under God" from the pledge on the House floor - and managed to call attention to the omission by clumsily pausing, as if to ask himself "shall I be provocative and leave it out?" - the "leader" of the House Democrats - does a group in confused flight have a "leader"? - summoned McDermott to her office to deliver a stern lecture on the centrality of the phrase to true Americanism. How pathetic. Congreesman McDermott is repetitively inept and embarrassing, but his version of the pledge conforms to the currently controlling law for schools in his district and may be the version required nationwide if the Supremes affirm the Ninth Circuit. Ms. Pelosi obviously subscribes to the same theory of politics which seems to inform (that's a dumb word, but I need to seem au courant) the Kerry campaign: don't say anything which might be construed as offensive by the most uninformed, hyprersensitive pseudo-patriot.
May 4, 2004
Among his inventory of reasons for invading Iraq, the President has advanced a righteous argument, removing a despot whose prisoners were subjected to torture and rape. Last May, he boasted that "we are the nation that closed the torture chambers of Iraq." Apparently not.
An Army internal investigation by General Antonio Taguba describes the acts of abuse, degradation and torture inflicted on Iraqi prisoners by American guards at Abu Ghraib prison. His report was completed in late February or early March, but no one in authority seemed to be in a hurry to find out what it said until - or even after - "60 Minutes II" broke the story last week. As of Sunday, neither Secretary Rumsfeld nor Chief of Staff General Myers had read it, even though CBS had delayed its broadcast for two weeks at the request of DoD. Now there are reports of other incidents, including homicides.
"Civilization is hideously fragile," C.P. Snow wrote; "there’s not much between us and the horrors underneath, just about a coat of varnish." That can't be true of Americans, can it? Aren't we different, exceptional? Mr. Rumsfeld apparently thinks so: he described the acts as "un-American."
Sadly, we are capable of inhumane acts, just as other nations are. At the moment, we may be more so. A government which engages in pre-emptive war without justification, which has no regard for civil liberties or international law, which jails and mistreats immigrants simply because they are Arab or Muslim, which holds citizens incommunicado without charge, which designates people as "enemy combatants" more or less by whim, which runs a prison camp in which inmates do not have the rights of prisoners of war, and over which it claims the courts have no jurisdiction, cannot pretend to be shocked by these events. The road from Guantánamo to Abu Ghraib is short and straight.
May 17, 2004
Whether considered alone or as a metaphor of the entire Iraq adventure, the prisoner-abuse scandal should cause those in charge to reflect, reassess and admit responsibility and error. There has been some of that, but none from the guy at the top.
The media's speculation over whether Mr. Bush would apologize was somewhat overdone, but his reaction is telling. Even after others had apologized, and faced with the attention to his failure to do so, the best he could manage was a grudging reference to a private expression of regret to King Hussein, followed by a flag-waving speech:
I told him I was sorry for the humiliation suffered by the Iraqi prisoners, and the humiliation suffered by their families. I told him I was equally sorry that people who have been seeing those pictures didn't understand the true nature and heart of America.... I also made it clear to His Majesty that the troops we have in Iraq, who are there for security and peace and freedom, are the finest of the fine, fantastic United States citizens, who represent the very best qualities of America: courage, love of freedom, compassion, and decency.1
In recent days, America and the world have learned of shocking conduct in Iraqi prisons by a small number of American servicemen and women.... Such practices do not reflect our values....
***What took place in that Iraqi prison was the wrongdoing of a few....
... Our country has sent troops into Iraq to liberate that country, return sovereignty to the Iraqi people, and make America and the world more secure. In this cause, our troops perform a thousand acts of kindness, decency and courage every day....2
Mr. Bush claims to stand for "a culture of responsibility." The biographical sketch on the White House web site tells us that, as Governor of Texas, "President Bush... shaped public policy based on the principles of limited government, personal responsibility, strong families, and local control." The Bush approach to the Abu Ghraib scandal is saturated in hypocrisy; the advocate of responsibility does not take any, even though he is the cause of the problem.
His administration has instead created a culture of arrogance, extreme measures, indifference to fundamental rights, arbitrariness and contempt for rules. The war is illegitimate, justified neither by international law, the government's own National Security Strategy nor any rational concept of self-defense. It was sold through misrepresentations. If those in charge break rules, if honesty and principle mean nothing to them, how surprising can it be that others act the same way?
Among the misrepresentations were the assertion that Iraq was allied with al-Qaeda, and the repeated hint that it was implicated in 9-11. Based on these falsehoods, the administration claims that the occupation is vital to the war on terror. This invites troops to believe that every non-cooperative Iraqi, and certainly every Iraqi prisoner, is a terrorist, and therefore entitled to no mercy. If Senator Inhofe swallows that, guards at Abu Ghraib might.
More specifically, there have been numerous signals that there are no restrictions in the treatment of prisoners. The Justice Department detained thousands after 9-11 without charges and without rights, abused some of them and blew off criticism, even from its own inspector general. "Enemy combatants," even if citizens, have been denied access to a lawyer, visitations by family, and communication of any kind with the outside world; there is no independent or public evaluation of conditions or treatment and no limitation on the period of detention. They may be tried before military tribunals, which are not bound by either civilian or military rules of procedure. Suggestions that Geneva conventions apply to the prisoners at Guantánamo, that POW status should be accorded or at least considered, have been dismisses as "international hyperventilation."
Whenever the status of prisoners or the designation of "enemy combatants" has come before the courts, the administration has asserted the inherent and unrestricted right of the President to deal with such people free of interference by the judicial branch. This attempt to evade accountability is another signal to those below that there is no oversight, that there are no rules, no restrictions, that anything goes in this crusade.
The whole tone of the war on terrorism has been that of vigilante justice. Mr. Bush set it with his faux-cowboy pledge to bring in bin Laden dead or alive. In the 2003 State of the Union address, he told us that many suspected terrorists had been arrested. "And many others have met a different fate. Let's put it this way: They are no longer a problem to the United States and our friends and allies."3 If the President can flippantly refer to assassination and receive applause from Congress, surely a few Iraqis can be pushed around.
In addition to the refusal to acknowledge responsibility, the administration's hypocrisy is shown in its pretense that the reports from Abu Ghraib were the first indication of the application of questionable methods. Extreme interrogation practices were reported in The Washington Post on December 26, 2002, The Wall Street Journal on March 4, 2003, The Nation on March 31, 2003 and in the May, 2003 issue of Liberty.4 The military now acknowledges that "two Iraqi prisoners were killed by U.S. soldiers last year, and 20 other detainee deaths and assaults remain under criminal investigation in Iraq and Afghanistan, part of a total of 35 cases probed since December 2002...." 5
The use of those methods was no accident. Cofer Black, the head of the CIA Counterterrorist Center, referring to the treatment of suspected terrorists, told a Congressional committee "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off."6 The head of interrogation at Guantánamo, General Miller, was sent to Abu Ghraib in August, 2003; he recommended that detention operations must act as an "enabler for interrogation." 7 Recent news reports describe instructions for interrogation at Guantánamo which permit interrogators "to use physically and psychologically stressful methods during questioning" and similar guidelines for use on prisoners in Iraq "suspected of terrorism or of having knowledge of insurgency operations."8
We have a further insight via another article on the scandal by Seymour Hersh, to be published in the May 24 issue of The New Yorker, but posted on the internet Saturday. Hersh reports that the abuse at Abu Ghraib was the last in a chain of events. During operations in Afghanistan, suspected al-Qaeda targets were identified, but procedures required approval for strikes from too far up the command structure to react in time. Rumsfeld responded by authorizing
the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate 'high value' targets in the Bush Administration's war on terror. A special-access program, or sap - subject to the Defense Department's most stringent level of security - was set up, with an office in a secure area of the Pentagon.
The war in Iraq was going badly, and the Pentagon thought that the solution lay in improving its intelligence gathering, specifically by getting tough with Iraqi prisoners suspected of ties to the enemy. General Miller's application of Guantánamo methods moved in that direction. According to Hersh's sources, the next step was to bring the methods of the "sap" to Abu Ghraib. A central player was Undersecretary for Intelligence Stephen Cambone.
Cambone then made another crucial decision, the former intelligence official told me: not only would he bring the sap's rules into the prisons; he would bring some of the Army military-intelligence officers working inside the Iraqi prisons under the sap's auspices. "So here are fundamentally good soldiers - military-intelligence guys - being told that no rules apply...."
"The White House subcontracted this to the Pentagon, and the Pentagon subcontracted it to Cambone," he said. "This is Cambone's deal, but Rumsfeld and Myers approved the program.... The issue is that, since 9/11, we've changed the rules on how we deal with terrorism, and created conditions where the ends justify the means."
_________________
1. www.whitehouse.gov/news/releases, 5/6/04.
2. www.whitehouse.gov/news/releases, 5/8/04.
3. www.whitehouse.gov/news/releases, 1/28/03.
4. See my note of April 30, 2003.
5. The Washington Post, 5/5/04.
6. September, 2002; reported in The Washington Post, 12/26/02.
7. Article 15-6 Investigation of the 800th Military Police Brigade (Taguba report).
8. The Washington Post, 5/9/04; see op-ed by Kenneth Roth, The Washington Post, 5/13/04.
May 26, 2004
Last month, in a burst of candor, the Undersecretary of State for political affairs referred to the power to be acquired by the mysterious Iraqi government as "limited sovereignty." Everything said about the transfer confirms that its sovereignty will indeed be limited. However, candor is not regarded as a virtue by the Bush administration, especially on matters pertaining to Iraq. The official line is that full sovereignty will be bestowed upon the new government, a line reiterated by the President in his speech to the Army War College.1
Mr. Bush described five steps "in our plan to help Iraq achieve democracy and freedom," the first of which is that we will "hand over authority to a sovereign Iraqi government." That gigantic "embassy" which will replace the Coalition Provisional Authority will not assume the CPA's viceregal functions but instead will have "the same purpose as any other American embassy, to assure good relations with a sovereign nation." To make sure that we didn't miss the point, he told us three times that Iraq would have "full sovereignty."
This, of course, is nonsense. Mr. Bush managed to emphasize that by referring to sovereignty while describing an aspect of its absence:
After June 30th, American and other forces will still have important duties. American military forces in Iraq will operate under American command as a part of a multinational force authorized by the United Nations. Iraq's new sovereign government will still face enormous security challenges, and our forces will be there to help.
The President's peculiar view of full sovereignty may have to be revised; he wants a U.N. resolution blessing the transfer, but France, Germany, Russia, China and even Britain reportedly think that he'll have to let go of a bit more control, especially of armed forces.2
The President's speech has been described as the opening event in a campaign to persuade the voters that he knows what he's about. The speechwriters may need to retool; they didn't even convince the boss. He read the speech with little interest and less conviction, and no wonder. His text was in part more of the same tired arguments: "Iraq is now the central front in the war on terror." A "free and self-governing Iraq... will be a decisive blow to terrorism at the heart of its power, and a victory for the security of America and the civilized world." (It is interesting, although perhaps of no great significance, that while the President thinks that we are battling terrorists in Iraq, the State Department does not classify most of the bloodshed there as being the result of terrorism).3
The bulk of the speech was devoted to an extended discussion of the five steps which we are taking toward the creation of a democratic Iraq; the other four are "help establish security, continue rebuilding Iraq's infrastructure, encourage more international support, and move toward a national election that will bring forward new leaders empowered by the Iraqi people." Although offered as something new, his five steps really were just the same stay-the-course material as before, but presented in the form of a list, as though that gave them more substance. _________________
1. www.whitehouse.gov/news/releases, 5/24/04.
2. The Washington Post, 5/25/04.
3. Attacks directed at combatants, i.e."American and coalition forces on duty," are not classified as terrorist. See statement of Cofer Black, 4/29/04; www.state.gov/s/ct/rls/rm/2004/31973.htm
June 1, 2004
Al Gore's recent speech, in which he denounced the administration and called for the resignations of Rumsfeld, Wolfowitz, Feith, Cambone, Tenet and Rice, warmed the hearts of critics of the war impatient with Senator Kerry's refusal to do the same. However, some of the reaction to Mr. Gore's speech and one notable review of Mr. Kerry's stance tend to validate the Senator's strategy.
The house editorial in Sunday's Washington Post reviewed Mr. Kerry's position on national security which, in the Post's logic and perhaps his, includes Iraq. It commended him for avoiding "the near-hysterical rhetoric of former vice president Al Gore."
Instead, Mr. Kerry is in the process of setting out what looks like a sober and substantial alternative to Mr. Bush's foreign policy, one that correctly identifies the incumbent's greatest failings while accepting the basic imperatives of the war that was forced on the country on Sept. 11, 2001.
...Mr. Kerry focused much attention on the president's foremost weakness, his mismanagement of U.S. alliances.... Not only is the truth of that critique glaringly evident in Iraq and elsewhere, but Mr. Kerry is also right to suggest that repairing and reversing the damage probably will require a new president....
***
The emerging Kerry platform suggests that ultimately he would adopt many of the same goals as Mr. Bush.... There are, in fact, few responsible alternatives to the administration's course. Mr. Kerry's argument is that he has a better chance of making it work. It's not a bold offer to voters -- but it's probably the right one.
Others of Mr. Bush's supporters are dismayed by the mess in Iraq and have attacked his competence; Thomas Friedman contemplated the same remedy as The Post: "It is time to ask this question: Do we have any chance of succeeding at regime change in Iraq without regime change here at home?"1 Polls suggest that many voters may be reaching the same conclusion. This provides an opening to the cautious Kerry strategy.
However, that strategy is not without risks. An article in Sunday's Post 2 used an interview with Senator Kerry to describe his national-security platform, and concluded that it amounted to "competence over ideology." The reporter did not draw any parallels, but that formula encapsulates the danger in an I'll-manage-it-better approach: it was the slogan of the losing Dukakis campaign in 1988.
__________________
1. The New York Times, 5/13/04.
2. Glenn Kessler, "Kerry Says Security Comes First; Less Emphasis on Democracy Abroad.
On May 26, The New York Times ran an unsigned column admitting errors in reporting about WMD. The self-criticism, while earnest, was less than brutal; its description of the problem - "a number of instances of coverage that was not as rigorous as it should have been" - doesn't quite capture TheTimes' willingness to peddle the administration line. In addition, the column was carried on page A10, while many of the misleading stories appeared on page 1. Compared to the front-page mea culpa on Jayson Blair, in which the Times searched for things to admit, this was an oddly restrained confession. Daniel Okrent, The Times' ombudsman - or, in its terminology, "public editor" - offered his evaluation on Sunday. It didn't fare any better, appearing on p. 2 of section 4, "Week in Review."
(Perhaps we shouldn't make too much of the placement; TheTimes' concept of frontpage-worthiness is baffling. My note of January 16 discussed choices that seemed odd to me, but at least the stories were substantive; on Wednesday a profile of a Las Vegas stripper merited page one treatment.)
The editors concluded their review as follows:
We consider the story of Iraq's weapons, and of the pattern of misinformation, to be unfinished business. And we fully intend to continue aggressive reporting aimed at setting the record straight.
The editors' note to readers will have served its apparent function only if it launches a new round of examination and investigation. I don't mean further acts of contrition or garment-rending, but a series of aggressively reported stories detailing the misinformation, disinformation and suspect analysis that led virtually the entire world to believe Hussein had W.M.D. at his disposal.
USA Today offered a critical review of the editors' column, quoting David Paletz, a Duke University political science professor, on the impact of the errant articles:
The Times has a reputation for being skeptical and critical of those in power. Its reports may explain in part Democrats' docility in the run-up to the war. If the Times had been publishing more skeptical stories, some Democrats could have been emboldened to challenge the run-up.1
...On most matters, the press tends to go to the edge of where the mainstream of the opposition party is willing to set foot, something that can be seen clearly in the various Clinton-era scandals.....2
__________________
1. USAToday.com, 5/26/04.
2. www.tomdispatch.com, 4/1/04.
June 11, 2004
On January 7, 2002, I expressed the opinion that a column by William Safire1 and an article by Dana Milbank2 had gone too far in accusing the Bush administration of attempting to centralize control of government in the executive branch. I thought that some of the actions they described, such as the order authorizing military commissions, proceeded primarily from other impulses. I was mistaken. I still might stop short of Mr. Safire's claim that the commission order amounted to a "seizure of dictatorial power," but there is no doubt that the Bush administration intends to claim for the President something akin to royal prerogative.
We have seen this tendency in the arguments made in cases involving "enemy combatants." In its brief to the Supreme Court in Padilla, the government argued that "The Commander in Chief... has authority to seize and detain enemy combatants wherever found, including within the borders of the United States." 3 This means that the President can, by applying a label, detain any citizen, for as long as he wants, under such conditions as he chooses, without answering to anyone. When it was pointed out in the Hamdi petition to the Supreme Court that such powers are not constitutional, the government dismissed the argument as "Petitioners' purely legal challenges to Hamdi's wartime detention."4 Prerogative trumps law.
A window into the implications of prerogative writ was opened by the disclosure of the memo written by White House Counsel Alberto Gonzales to President Bush in January, 2002. It argued that the Geneva conventions should not be applied to the Taliban or al-Qaeda. One reason was that the interrogation techniques contemplated might otherwise land administration officials in the dock, facing charges of war crimes. How convenient to be able to declare one's self and one's aides immune from prosecution.
Now we have reports of an August, 2002 memo from the Justice Department and a March, 2003 study by Defense which argue that the President has the authority to approve torture. According to The Washington Post, which obtained the Justice Department memo, it stated that "torturing al Qaeda terrorists in captivity abroad 'may be justified' "5 and that "laws outlawing torture do not bind Bush because of his constitutional authority to conduct a military campaign."6
The Wall Street Journal, which obtained a draft of the Defense Department report, summarized its underlying theory: "The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued." As in prior cases, lawyers in uniform were more cautious than their politicized civilian counterparts. "A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture - to assert 'presidential power at its absolute apex,' the lawyer said."7
The documents redefine torture to permit methods otherwise prohibited and suggest defenses to charges of torture, including "necessity," i.e., we're at war, and following orders. The convenient definitions and the contemplation of brutal means exude a whiff of totalitarianism, and the Nürnberg defense has an eerie ring. (As an excellent column by Richard Cohen puts is, "parsing what is and what is not torture brings to mind regimes that, well, I would rather not bring to mind.") The excuse that national security justifies arrogation of power probably has parallels throughout history, but its most familiar antecedent is the Nixon administration. We learned then that "national security" was an argument not to be believed and an excuse not to be accepted, but memories are short.
The torture memos demonstrate several things, first that the Bush administration is stupid; as Senator Biden pointed out, one reason to reject torture is that, if we use it, we must expect the enemy to follow suit. We had learned earlier that the administration holds international law in contempt; the memos reveal that the laws of the United States fare no better. Worst, the Bush gang are not satisfied to use "national security" as an excuse for breaking the law; instead they have invented a theory under which that elastic concept places the President above and outside the law.
How many steps is it from there to ruling by decree? Maybe "seizure of dictatorial power" isn't too strong, after all.
__________________
1. The New York Times, 1/7/02.
2. The Washington Post, 11/20/01.
3. http://www.abanet.org/publiced/preview/briefs/april04.html#hamdi
4. http://www.abanet.org/publiced/preview/briefs/april04.html#rumsfeld
5. The Washington Post, 6/8/04.
6. The Washington Post, 6/9/04.
7. The Wall Street Journal, 6/7/04.
June 19, 2004
President Bush visited the other Washington this week, to stump for George Nethercutt in Spokane and to rally the troops at Fort Lewis. Mr. Bush's appearances became part of the exchange with the 9-11 commission over ties between Iraq and al-Qaeda.
Although the President has admitted that Iraq had no part in 9-11, he and Vice President Cheney have continued to imply that it did, with success; according to one poll, the percentage of the public believing that Iraq was directly involved was the same in March, 2004 as in February, 2003.1 An alternative claim, justifying both invasion and continued fighting, is the claim that there were close ties between Iraq and al-Qaeda; the poll shows that this belief has held up too.2 The alleged ties form the basis for an argument that Iraq was part of an amorphous entity, "terrorism," which attacked us.
The debate began on June 14 with a speech by the Vice President. It included a formula used, with variations, on several occasions, which runs together references to various terrorist groups: Saddam Hussein "was a patron of terrorism - paying $25,000 to the families of suicide bombers in Israel, and providing safe-haven and support for such terrorist groups as Abu Nidal and Palestinian Islamic Jihad. He had long established ties with al Qaeda."3 During a press conference the following day, the President adopted Mr. Cheney's formula and tried to provide support for the al Qaeda connection:
Q The Vice President... said yesterday that Saddam Hussein has long-established ties to al Qaeda. As you know, this is disputed within the U.S. intelligence community. Mr. President, would you add any qualifiers to that flat statement? And what do you think is the best evidence of it?
PRESIDENT BUSH: Zarqawi. Zarqawi is the best evidence of connection to al Qaeda affiliates and al Qaeda....
Saddam Hussein also had ties to terrorist organizations, as well. In other words, he was affiliated with terrorism -- Abu Nidal, the paying of families of suiciders to go kill innocent people.4
On June 16, the commission staff reported that it found contacts but no collaboration:
Bin Ladin also explored possible cooperation with Iraq during his time in Sudan, despite his opposition to Hussein's secular regime. Bin Ladin had in fact at one time sponsored anti-Saddam Islamists in Iraqi Kurdistan.... A senior Iraqi intelligence officer reportedly made three visits to Sudan, finally meeting Bin Ladin in 1994. Bin Ladin is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded. There have been reports that contacts between Iraq and al Qaeda also occurred after Bin Ladin had returned to Afghanistan, but they do not appear to have resulted in a collaborative relationship.... We have no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.... 5
In Spokane on the 17th, the President told the faithful, "I made a tough decision to defend the country, and we went to war in Afghanistan and Iraq." As to the latter, defend it against what? Leaving aside a litany of irrelevancies, here's his answer: "I saw a threat in Iraq.... And there's a reason why we saw threats. Saddam Hussein was a brutal dictator who... harbored terrorists, who provided safe haven for people like Zarqawi..."7 In the search for a connection between Saddam and Osama, Zarqawi is Mr. Bush's smoking gun. This requires showing a tie between al-Qaeda and Zarqawi and one between him and Saddam.
The consensus seems to be that, before the invasion, Zarqawi was a terrorist who had some vague relationship to al-Qaeda, but operated independently.
This February, in a statement to the Senate Armed Services Committee, CIA Director George J. Tenet described Zarqawi's network among other groups having "links"' to al Qaeda but with its own "autonomous leadership . . . own targets [and] they plan their own attacks." Although Zarqawi may have cooperated with al Qaeda in the past, U.S. officials say it is increasingly clear he had been operating independently of Osama bin Laden's organization." 8
This is our vision, and we have explained it. This is our path, and we have made it clear. If you agree with us on it, if you adopt it as a program and road, and if you are convinced of the idea of fighting the sects of apostasy, we will be your readied soldiers, working under your banner, complying with your orders, and indeed swearing fealty to you publicly and in the news media, vexing the infidels and gladdening those who preach the oneness of God.... If things appear otherwise to you, we are brothers, and the disagreement will not spoil [our] friendship. [This is] a cause [in which] we are cooperating for the good and supporting jihad.10
The other half of the equation, Zarqawi's alleged tie to Saddam Hussein, initially was premised on his possible presence before the war in an Ansar al-Islam camp in Iraq; however, that wouldn't establish a connection to Saddam, as the camp was in the Kurdish area, beyond Saddam's control. The other argument for a pre-war relationship was Zarqawi's having been treated in a Baghdad hospital in 2002. The two are run together in Mr. Bush's current rationale: "he was the fellow who was in Baghdad at times prior to our arrival. He was operating out of Iraq.... See, he was there before we came; he's there after we came." 11 That falls a bit short of making him an agent or ally of Saddam.
The Vice President now has taken exception to what he considered to be media distortion of the commission report. His response was partly a hint that he knows something they don't and partly his familiar assertion that if something can't be proved false, it must be true.12 The mindset was captured perfectly in a cartoon showing a figure saying, "I'm Rod Serling. Welcome to the Bush administration."13
Apparently we can look forward to repeated visits to The Twilight Zone between now and November. An "outside adviser to the White House" said the administration will continue to push the alleged Iraq - al-Qaeda connection.
"They feel it's important to their long-term credibility on the issue of the decision to go to war," the adviser said. "It's important because it's part of the overall view that Iraq is part of the war on terror. If you discount the relationship between Iraq and Al Qaeda, then you discount the proposition that it's part of the war on terror. If it's not part of the war on terror, then what is it - some cockeyed adventure on the part of George W. Bush?"14
__________________________
1. "Iraq was directly involved in carrying out the September 11th attacks:" 20% on each date. The PIPA/Knowledge Networks Poll, http://pipa.org/OnlineReports/Iraq/IraqReport4_22_04.pdf
2. "Iraq gave substantial support to al Qaeda, but was not involved in the September 11th attacks:" 36%/37%. Ibid.
3. Remarks by the Vice President at a Reception for the James Madison Institute, 6/14/04; www.whitehouse.gov/news/releases/2004/06/20040614-20.html
4. Remarks by President Bush and President Karzai of Afghanistan in a Press Availability, www.whitehouse.gov/news/releases/2004/06/20040615-4.html 6/15/04.
5. www.9-11commission.gov/hearings/hearing12/staff_statement_15.pdf
6. The Boston Globe, 6/16/04.
7. Remarks by the President at Nethercutt for Senate Reception, 6/17/04; www.whitehouse.gov/news/releases/2004/06/20040617-11.html
8. The Washington Post, 6/16/04.
9. See fn. 4.
11. Remarks by the President to the Military Personnel, Fort Lewis, Washington 6/1/04; www.whitehouse.gov/news/releases/2004/06/20040618-1.html
12. CNN.com, 6/18/04; National Public Radio, "All Things Considered," 6/18/04, including a clip from an interview of Mr. Cheney on CNBC.
13. Mike Luckovich, Atlanta Journal Constitution, on washingtonpost.com, 6/19/04.
14. The New York Times, 6/19/04.
June 25, 2004
I had just finished reading the Justice Department's August 1, 2002 memo, its tortured rationale for torture, when the news came that it was inoperative, or whatever the equivalent Bushism is. This exercise in tardily locking the barn door presumably will not fool anyone, or at least anyone not politically committed to being fooled.
The August 1 opinion generated a torrent of criticism. In response, the administration assured us that it never condoned or contemplated torture, which was a bit much to accept in the face of this 50-page apology for it, addressed to Alberto Gonzales, the President's counsel. Ashcroft refused to surrender the memo to Congress, which only made the leaked copy more damning. Now Justice has disavowed the memo, which will be replaced. Anonymous department officials described it as containing "overbroad and irrelevant advice" and said that "no one asked for much of the advice that was included in the memo."1 Its author, Jay Bybee, was a rogue lawyer in the Office of Legal Counsel, so out of control that he was fired - oh, wait, no - appointed to the Ninth Circuit.
One of the expressions of disapproval came from Mr. Gonzales, who assured us that the suggestion that torture might be acceptable is "contrary to the values of this president and this administration."2 I love the use of "this president," which suggests that, although other presidents may have approved of torture, we can count on George W. Bush to uphold high principle.
Now the administration has distributed a stack of additional documents, including some formerly stamped "secret," which it apparently thinks will show that its motives were pure. This latest burst of self-justifying release makes a mockery of the Administration's use of classification and its claims to confidentiality.
Of the new material, a memo of February 7, 2002 is most relevant to Mr. Bush's efforts to distance himself from the torture issue. Its subject is "Humane treatment of al Qaeda and Taliban detainees." It is signed by the President and addressed, among others, to the Secretaries of State and Defense, the CIA Director, the AG and the Chairman of the Joint Chiefs. It declares that the Geneva Conventions do not apply to al-Qaeda and therefore "al-Qaeda detainees" do not qualify as prisoners of war. It accepts the Justice Department's conclusion that the President may declare that Geneva doesn't apply to Afghanistan (because it was a "failed state"), but declines to invoke that power at present. Nevertheless, it decides that "Taliban detainess" are not POWs because they are "unlawful combatants." Although, in these cases, the Geneva conventions do not apply, the memo declares our strong support for them. It states that U.S. armed forces shall treat detainees humanely and, "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
Although the August, 2002 memo has been repudiated, the President's February directive is based on a Justice Department memo of January 22, 2002 by - surprise - Jay Bybee which, although it does not discuss torture, has some of the same characteristics as his later effort. It focuses on avoiding criminal liability, here under the War Crimes Act, finds ways around the Geneva Conventions and leaves the treatment of prisoners to presidential discretion.
Despite its title, the February 7 memo certainly did not prevent either discussion or employment of inhumane methods. It is doubtful that it was intended to. Its substantive provisions deny prisoners the benefits of POW status. The pious sentiments about Geneva and humane treatment have a wink-and-nod quality, something not to be taken seriously. The memo was written at least in part for PR purposes; the last paragraph directs the Secretary of State to "communicate my determinations ... to our allies, and other countries and international organizations cooperating in the war against terrorism...."
It will be interesting to see the revised version of the torture memo.
_____________________
1. The Associated Press on washingtonpost.com, 6/22/04.
2. Ibid.
June 26, 2004
Last Tuesday, the August, 2002 memo on torture was repudiated, disavowed and treated with shocked distaste by the White House and the Justice Department. Somehow it just sort of happened, all fifty pages of it. Well, no. The memo was addressed to Alberto Gonzales, the White House counsel who, it develops, was not exactly a surprised recipient. Today we learned that the memo was circulated, discussed and massaged by a host of players, including lawyers in Mr. Gonzales ' office, the National Security Council, Vice President Cheney's office, the Justice Department's criminal division and "the office of Attorney General John D. Ashcroft." David S. Addington, Vice President Cheney's counsel, asked that the memo include a clear statement of the president's authority.1 That section, which essentially states that the president can do whatever he damned well pleases, seems to embarrass them now, but it encapsulates their theory of government.
On Tuesday, no one seemed to know why the memo had been written. Now we are told that it was for the CIA, partly by way of after-the fact cover.2 Reliance on it will be suspended pending a rewrite. In the meantime, presumably all actions will be guided by the high principles of the administration which vowed to bring honor back to Washington.
___________________
1. Dana Priest, The Washington Post, 6/27/04.
2. David Johnston and James Risen, The New York Times, 6/27/04.
July 3, 2004
The New York Times saw the Supreme Court decisions in the detainees' cases as a "stinging rebuke" to the government,1 not without reason. Rasul v. Bush, finding jurisdiction to consider complaints by Guantánamo prisoners, is all of that. Hamdi v. Rumsfeld qualifies to the extent that eight of the Justices rejected the government's claim that the courts have little or no role in deciding the fate of enemy combatants. Its holding and its plurality opinion fall more appropriately into the category of moderate reproof. Still, they slow the administration's march toward rule by executive fiat and uphold a vital aspect of civil liberties, no small matter.2
In Hamdi, there was no consensus on the government's right to detain Yaser Hamdi - and, by extension, Jose Padilla - the eight Justices splitting three ways. The plurality opinion, by Justices O'Connor, Rehnquist, Kennedy and Breyer, holds that the government can imprison "enemy combatants" for the duration of the conflict, but that a citizen has a right to contest his designation as an enemy combatant and that some minimally fair proceeding for that purpose is necessary. Justice Scalia, joined by Justice Stevens, argued that the government has only two choices, to charge Hamdi criminally or to release him. Justice Souter, joined by Justice Ginsberg, reached essentially the same conclusion via a different route. Justice Thomas supported the government.
The split raised the possibility of no decision, which would have left the ruling of the Fourth Circuit in force, a result no one but Thomas wanted. For that reason, Souter and Ginsberg joined in the result of the plurality opinion, a remand for further proceedings. It is not clear what those proceedings will be.
The plurality opinion, written by the Court's self-appointed centrist, Justice O'Connor, may have been intended as a moderate position around which a majority could coalesce; certainly it is a compromise between the claims of the parties. That its defense of civil liberties will be limited is signalled by its opening phrase, "At this difficult time in our Nation's history...." It is a ponderous statement which struggles to find support for the unexeptionable principle that no citizen may be detained as an enemy combatant without having an opportunity to contest that label. Otherwise, it has little comfort either for Mr. Hamdi or for those who worry that our freedoms are at risk.
The first question addressed is "whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.' " Justice O'Connor notes that there is "some debate as to the proper scope of this term," and that the government has not offered a definition. A bolder judge might have ruled for the prisoner at that point; if the government can't even define the category of people it proposes to imprison, it should be sent on its way. However, instead Justice O'Connor finds that the government has alleged that Hamdi was "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan and that he "engaged in an armed conflict against the United States."3 Therefore the Court will decide only "whether the detention of citizens falling within that definition is authorized."
The government made two arguments as to its authority, that "the Executive possesses plenary authority to detain pursuant to Article II of the Constitution," and alternatively that Congress has authorized detention. The opinion passes the first argument and finds statutory authority, in the form of the Authorization for Use of Military Force (AUMF) adopted after 9-11, empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the terrorist attacks. The plurality accept the government's argument that detention of enemy combatants is implied in those war powers. Under Ex parte Quirin, Hamdi's American citizenship does not exempt him.
One of the most fundamental objections to the government's position is the possibility of indefinite detention. The discussion of that issue begins by stating it well:
Hamdi objects... that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as 'indefinite' while that war was being fought." ... We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention.... As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." ... If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.
Having decided that indefinite detention of enemy combatants is proper, the plurality turn to the question of determining that status. They easily reject the absurd argument that Hamdi's enemy-combatant status is undisputed. However, they are troubled by the government's claim that separation of powers forecloses any judicial review of the Executive's determination of that status or alternatively that the review must be minimal and deferential. They decide that they must balance such claims against Hamdi's due process rights.
The opinion first considers Hamdi's interests and concludes by reaffirming "the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law..." The reaffirmance is encouraging; the fact that it required a review of authorities, that it was not simply declared as an obvious and immutable principle, is not.
The opinion then turns to an appraisal of "the other side of the scale," the "core strategic matters of warmaking," which include "the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States." These matters must be left to the Executive.
This bit of dialectical reasoning leads us to the synthesis, or more accurately, the compromise - a compromise between fundamental due process and untrammeled executive power. As in current politics, the constitutional center has moved well to the right.
The statement of the solution sounds good: "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." However, it's all downhill from there. The plurality worry about the burdens which due process will impose on the government, and conclude that proceedings may have to be "tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." This seems to be directed toward the difficulty of proving enemy combatant status through the circumstances of capture. The government claims that Hamdi has admitted facts establishing his status, but if that turns out not to be true, proving that he was part of a hostile force and engaged in armed conflict might be a challenge. According to the government's brief, Hamdi surrendered to Northern Alliance forces, who might be difficult to identify and locate at this point.
Not to worry; the plurality hold that hearsay "may need to be accepted as the most reliable available evidence from the Government in such a proceeding." In fact, the plurality seems to have in mind a very low level of proof, as they cite the Mobbs declaration as the sort of evidence which could be accepted. Not only is that declaration hearsay, it does not identify its sources and it offers no basis for finding its conclusions to be reliable. It does not even state the criteria to be used in determining enemy combatant status.
In addition, the plurality hold that a presumption in favor of the government's position would be compatible with due process, even though shifting the burden to the prisoner would saddle him with war-related evidentiary disadvantages at least as daunting as those which they find so onerous to the government.
In requiring a neutral decision maker, the plurality reject the government's claim that separation of powers means the courts must defer to the executive. Here is where the opinion reaches its rhetorical high point:
...Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens....
I wonder whether Justices Scalia and Stevens have stood alone together before. They do so here, in an opinion by Justice Scalia which is in his usual dogmatic style but is, for him, rather restrained in tone. He argues that, unless habeas corpus has been suspended, the government must charge Hamdi with a crime or release him. However, he recognizes that the government does not allege an ordinary crime; it believes that Hamdi waged war against the United States. "The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime." Scalia's answer is no. Citizens accused of collaboration with the enemy traditionally have been charged with treason; the government's third way, based on the enemy-combatant label, cannot be accepted. Denying the President the power he seeks would be in keeping with the Founders' beliefs:
The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison).
However, Ex parte Quirin, relied on by the government and the plurality, is a problem for Justice Scalia. He doesn't suggest overruling it, although that would seem to be the logical outcome of his views. He describes it as "not this Court's finest hour," and suggests that it misinterprets Ex parte Milligan. However, he also tries to distinguish Quirin from the present case, and doesn't succeed. As long as Quirin stands, Justice Scalia's alternatives, indictment or release, aren't the only choices; the government can, as the plurality holds, treat a citizen as an enemy combatant.
Whether Justice Scalia's opinion holds together or not, it is a welcome statement in favor of civil liberties by one not often accused of oversolicitude toward them, and a repudiation of the position of an administration to which he is suspiciously close. Given his statement not long ago that rights might be ratcheted down to their constitutional minimums in wartime, the final paragraph of his opinion is remarkable:
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis--that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.
Justice Souter, joined by Justice Ginsberg, dissents in part, and ends up, in principle, about where Scalia does, but by a much shorter route. Souter would hold that the Non-Detention Act, 18 U. S. C. §4001(a), applies here. It provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," and he concludes that if "the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released."
In contending that the Non-Detention Act should be given a broad application, Justice Souter points out that the act is, in historical context, a Congressional repudiation of "arbitrary executive action." The principal aim of the legislation was to repeal an statute which, in effect, authorized concentration camps. However, rather than opting for mere repeal, Congress enacted the Non-Detention Act, specifying that imprisonment can only be pursuant to statute, not at the administration's discretion. Souter also makes a philosophical argument:
In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory.... A reasonable balance is more likely to be reached on the judgment of a different branch.... Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.
Next, he rejects the government's argument and the plurality's holding that AUMF (he calls it the Force Resolution) provides the statutory authorization required by the Non-Detention Act. His reasoning is straightforward: AUMF nowhere mentions detention. To the plurality, it is obvious that it is implied: detention of enemy combatants "is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Justice Souter rejects this in part because there is no reason to think Congress saw any need to add to the existing inventory of crimes with which a disloyal citizen might be charged.
Justice Souter's position is easier to defend than Justice Scalia's. The Non-Detention Act is a strong statement of policy against imprisonment without Congressional sanction. Reading into AUMF the power to detain citizens, while not irrational, is contrary to the strong policy of the Non-Detention Act, as well as to the constitutional principles which both judges cite.
Justice Souter considers the alternative argument that, once AUMF authorized war, the laws of war became applicable, and they include the detention of enemy combatants. He points out that the government's refusal to treat captured Taliban as prisoners of war calls into question "whether the United States is acting in accordance with the laws of war it claims as authority." Therefore its argument that it can rely on the laws of war must be rejected. This is a nice bit of irony. It also illustrates the problem which Quirin poses for the government and for the plurality. Under Quirin, enemy combatants are divided into lawful combatants, who must be treated as prisoners of war, and unlawful combatants, who may be tried for war crimes. The government refuses to make the choice; it wants to hold people like Hamdi indefinitely without charge, but refuses to treat them as POWs. Four members of the Supreme Court would not permit that; the other five, although they do not specifically address the issue, apparently would. Mr. Hamdi had better hope he can convince that neutral decision maker that he is not an enemy combatant.
As noted, Justices Souter and Ginsberg joined in the result of the plurality opinion, thus producing a remand. This opinion makes clear that they do not subscribe to the plurality's notions of a presumption in favor of the government or the use of a military tribunal. It remains to be seen what the lower courts will do.
____________________
1. House editorial, 6/29/04.
2. My comments on the Cour of Appeals panel decision and its denial of rehearing en banc are at 1/17/03 and
7/12/03.
3. The definition is taken from the government's brief, which in turn takes it from a DoD document, "Fact Sheet: Guantanamo Detainees," www.defenselink.mil/news/Feb2004/d20040220det.pdf
July 5, 2004
In his column today in The New York Times, William Safire reminds us that he was right, on November 15, 2001, about the assault on civil liberties represented by the Bush military-commission order. (He is coy, and quotes someone he calls a "soft-on-terror professional hysteric," among other colorful names, only revealing in the last paragraph that he is talking about himself.) He chides liberals for being too frightened or intimidated to join him at the time. He's entitled: he was right when it counted, when most liberals were silent, or worse.
In that last paragraph he admits that it's "uncool to say I told you so, but I have not had many chances to say it lately." Alas, that is a self-created problem: Mr. Safire was as wrong about the administration's policies regarding Iraq as he was right about military commissions. Oddly, he is less right about the latter now than in late 2001. Noting the administration-friendly parts of the O'Connor opinion in Hamdi, he says, "With military tribunals now tilted toward the prosecution, we should stop delaying and start prosecuting." Why he would he accept a suggestion - from a four-judge plurality - for a pro-prosecution tilt which is contrary to the principles he supposedly wishes to defend? He should read Justice Scalia's view on that: "an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a 'neutral' military officer rather than judge and jury."
So: on civil liberties, entirely right when it was unpopular, partially right when it's fashionable; on war, wrong front and back.
July 8, 2004
Rasul v. Bush provides a more emphatic message to the administration than Hamdi v. Rumsfeld: although three Justices supported the government's position in Rasul, a majority were able to agree on a rationale for rejecting it. That was all the more striking given that the rationale is something short of persuasive and was picked apart by the dissent. (Justice Kennedy couldn't subscribe to the majority opinion, but found another way to its result.) Moreover, this case, unlike Hamdi, does not involve American citizens and is therefore is less compelling, politically or constitutionally. Six members of the Court apparently think that the administration is too arrogant.
As in Hamdi, much remains to be filled in by the lower courts, and further Supreme Court review is likely. However, this decision establishes that the Guantánamo detainees will have access to the federal courts. That is, alone, a major development.
The questions debated by the majority and the dissenters have the flavor of scholastic philosophy: Were prior cases decided under the habeas corpus statute or under the Constitution? Did Decision B overrule, reinterpret or modify Decision A or confine it to its facts? Does avoiding an answer to a question establish that a court must eventually give one? How does the maxim, "the existence of unaddressed jurisdictional defects has no precedential effect" apply here? Is "jurisdiction" really jurisdiction or is it venue? Does the United States have "plenary and exclusive jurisdiction" over the base at Guantánamo? Is that legally equivalent to "sovereignty?" What was the status of The Cinque Ports? Did an English court at any time in history grant a writ of habeas corpus to a non-subject? The parties might be forgiven for wondering whether it is their case which is under discussion.
The division ostensibly is over the interpretation of Johnson v. Eisentrager 1 and an earlier case, Ahrens v. Clark, 2 on which, according to the majority, Eisentrager depends. Ahrens held that a District Court lacks jurisdiction to issue a writ of habeas corpus where the prisoner is located outside its district; presence of the custodian in the district is not enough. Eisentrager involved the fate of several German soldiers (or possibly, as they claimed, civilians) who were in China in the waning days of World War II, after Germany had surrendered but before Japan did. They were convicted by an American military commission of "violating laws of war, by. . . collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces." The Supreme Court held that they were not entitled to challenge their detention through a writ of habeas corpus; "the nonresident enemy alien, especially one who has remained in the service of the enemy," has no right of access to our courts. 3
Braden v. 30th Judicial Circuit Court of Kentucky held, contrary to Ahrens, that the "writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody"4 and declared that, because of statutory changes and subsequent decisions, Ahrens henceforth refers to venue, not jurisdiction. The majority in Rasul interpret this to undercut the holding in Eisentrager, even though that decision does not appear to rely on Ahrens. They do not identify the custodian in this case, but merely tell us that a court will have jurisdiction if it can subject the custodian to service of process. This too comes from Braden.
In any case, the conclusion is that, although the habeas corpus statute, 18 U.S.C. §2241-2243, does not cover a prisoner outside a federal judicial district, decisions after Eisentrager have "filled the statutory gap." And, since "the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship." Therefore, foreign nationals held prisoner at Guantánamo "are entitled to invoke the federal courts' authority under §2241."
Although the Court's opinion in places seems to have unlimited geographic reach, the intent probably is to limit it to Guantánamo, or at least to a locale with the same status, as shown by its statement of the issue in the case: "whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not 'ultimate sovereignty.' "
It is fair to say that Justice Scalia is not impressed by the majority's reasoning; he is joined by Justices Rehnquist and Thomas. Justice Scalia begins with the statute, which seems to contemplate territorial restrictions: "Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions;" a petition "addressed to the Supreme Court, a justice thereof or a circuit judge . . . shall state the reasons for not making application to the district court of the district in which the applicant is held." Guantánamo Bay is not located within the territorial limits of any federal court district. "One would think that is the end of this case."
The majority hold that "within their respective jurisdictions" has been interpreted away, but Justice Scalia maintains that such a result requires that Braden have modified Eisentrager, which he denies. Therefore he concludes that the Court, if it wishes to reach its result, must overrule Eisentrager, which it has not done.
However, Justice Scalia acknowledges that Ahrens "explicitly reserved 'the question of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights.' " In his view, Eisentrager definitively decided the question as to alien petitioners, but he admits that it reserved the question of extraterritorial jurisdiction over citizens: "With the citizen, we are now little concerned, except to set his case apart as untouched by this decision and to take measure of the difference between his status and that of all categories of aliens."5 Faced with this, Justice Scalia acknowledges that, by expansive construction of the statute, or by reference to the constitutional status of habeas corpus, the Court could reach the conclusion that a citizen located outside a federal district has a right to petition. He notes that the government, in the present case, does not challenge the extension of the habeas corpus statute to citizens abroad. However, in his view, "the possibility of one atextual exception thought to be required by the Constitution is no justification for abandoning the clear application of the text to a situation in which it raises no constitutional doubt." In other words, extraterritorial habeas corpus protection for non-citizens should not be read into the statute because its denial raises no constitutional issue.
Part of the debate has to do with the status of Guantánamo, which leads us far back into the history of habeas corpus. Is the relationship of the base at Guantánamo to the United States comparable to that between The Cinque Ports and the English crown? How about The County Palatinate of Durham? Justice Scalia finds all of the examples given by the majority inapposite. Further, he maintains, in all of the cases mentioned by the majority, the writ was extended only to subjects of the crown.
There isn't much doubt that extending habeas corpus to aliens wherever found would be a leap; the status of Guantánamo isn't entirely clear, so maybe even an extension only to that base would be a stretch. However, the authorities are sufficiently muddled that either result could be justified. Perhaps for that reason, Justice Scalia adds three pragmatic arguments against extension of the jurisdiction.
The first has to do with a supposed trap for the government: it had relied on Guantánamo's being outside the reach of the courts, and it is unfair to suddenly decide that there is jurisdiction. However, in the next paragraph, Scalia claims that the effect of the court's holding is to extend "the scope of the habeas statute to the four corners of the earth." If that is so, it doesn't matter whether the government had chosen Cuba or Kazakhstan for the location of its prison.
The second is that the decision creates "a monstrous scheme in time of war." To the extent that this assumes that the Court's holding will allow any prisoner of war to petition for habeas corpus, it raises a genuine issue. The ambiguity of the majority opinion leaves open such an interpretation, but Justice Scalia probably interprets the result too broadly.
The final argument is that the decision "confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today's strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts." It's a trifle disingenuous to cite Padilla, a decision issued the same day which applies the territorial-jurisdiction rule with pointless severity.
Because the majority took such a beating, Justice Kennedy wrote a concurring opinion which takes a different approach to Eisentrager. Rather than finding it modified by later decisions, he seems to read it as limited to its facts. He concludes that, in this case, federal court jurisdiction is "permitted." He reaches this result not by finding any prior authority for his conclusion nor by pointing to anything in the Constitution or the habeas corpus statue, but, so far as I can tell, by assuming that the result is proper unless there is something to be said against it. The "something" is the doctrine of separation of powers, which he finds to be the basis for the decision in Eisentrager.
In that case, Justice Kennedy concludes, the "petition was not within the proper realm of the judicial power. It concerned matters within the exclusive province of the Executive, or the Executive and Congress, to determine." He apparently thinks that Eisentrager contemplated a wider reach for habeas corpus in situations where no separation-of-powers issue arose: "A necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated." Exactly how he draws this conclusion is not clear to me.
In deciding whether separation of powers requires a denial here, he identifies two significant differences between the cases: first, Guantánamo "is in every practical respect a United States territory..." and second, the prisoners at Guantánamo "are being held indefinitely, and without benefit of any legal proceeding to determine their status." These factors distinguish Rasul from Eisentrager: there the prisoners were at a base less fully under American control; and they had been convicted of war crimes, whereas the Guantánamo detainees are simply held at the government's discretion, in legal limbo. At one point he refers to their imprisonment as "pretrial detention." I'm not sure that is their status, but it illustrates his view that the detainees are not ordinary prisoners of war, that the government simply has decided that it will keep them as long as it wishes, with no reference to any accepted international standard. That, I think, is why the administration lost this case.
______________________
1. 339 U.S. 763 (1950).
2. 335 U.S. 188 (1948).
3. Eisentrager, 339 U.S. at 776.
4. 410 U.S. 484, 495 (1973).
5. 339 U. S. at 769.
July 10, 2004
The government managed to win one of the enemy-combatant cases, Rumsfeld v. Padilla, although only on a procedural issue, by five to four, with a loss on the merits presumably to follow. The majority opinion was written by Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy and Thomas.
In May, 2002, a grand jury was convened in New York to investigate 9-11. A court in New York issued a material-witness warrant for Jose Padilla. On May 8, he was arrested in Chicago and taken to New York, where he was detained. His appointed counsel filed a motion to quash the warrant; a hearing was scheduled for June 11. On Sunday, June 9, the President declared Padilla an enemy combatant. In an ex parte hearing that day, the government withdrew its witness subpoena and disclosed the enemy-combatant order. The court vacated the witness warrant. Padilla was handed over to the Defense Department and transferred to a brig in South Carolina. Padilla's counsel had no notice of the hearing. The transfer was publicly announced on Monday June 10. On June 11, Padilla's counsel petitioned for a writ of habeas corpus. The District Court denied the request on the merits, although it held that it had jurisdiction. The Second Circuit agreed as to jurisdiction, and reversed on the merits, directing the District Court to issue the writ. The Supreme Court reversed in turn, holding that the petition was filed in the wrong district.
The majority's rationale is this: a writ of habeas corpus may be issued by a U.S. District Court only if it has jurisdiction over the custodian, which requires that the custodian be within the district. The custodian is the person having physical custody; in the case of formal detention by the government, that is the warden or other administrative head of the prison. Padilla is imprisoned in a naval brig in South Carolina. Ergo, the petition must be filed in South Carolina.
The majority opinion covers 22 pages, not because the holding is any more complicated than my summary, but because it takes that long to explain why none of the exceptions to those rules applies. The opinion projects some of the same sense of detachment from reality found in Rasul; however, here the tone is not so much one of abstraction as of artificiality.
Padilla contended that the Secretary of Defense is his custodian, not an illogical point of view given that the commandant of the brig isn't likely to decide whether Padilla arrives, stays or leaves. In addition, Padilla ended up in South Carolina because the President issued an order headed "To The Secretary of Defense" which said the following: "... you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant."1 That sounds like it makes Mr. Rumsfeld the custodian. Granted, the Secretary isn't going to keep Padilla in his basement, so another, more direct, custodian will become involved. Does that eliminate Mr. Rumsfeld? Apparently so; the majority hold that only the "immediate custodian" may be served with the writ. They purport to find that in the statute:
The writ, or order to show cause shall be directed to the person having custody of the person detained....
The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
In accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement--"core challenges"--the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.
Padilla's brief cited Braden v. 30th Judicial Circuit Court of Kentucky 3 and Strait v. Laird4 on the jurisdictional issue. In Braden, an inmate of an Alabama prison filed a petition in Kentucky. The petition concerned his potential confinement in that state pursuant to an order issued there. The Braden Court held that he was, in effect, "in custody" in Kentucky; the rule was satisfied because a custodian with prospective or virtual custody was in the district. In Strait, the petitioner was a reservist living in California who asked to be relieved of his active-duty commitment because he had become a conscientious objector. His records and his "nominal commanding officer" were in Indiana. The Strait Court found that the district court in California had jurisdiction to issue a writ: the commanding officer was "present" in California "through the officers in the hierarchy of the command who processed this serviceman's application for discharge." The majority distinguish both cases because "there was no immediate physical custodian with respect to the 'custody' being challenged."
Padilla also relied on Ex parte Endo,5 in which a Japanese-American interned in California during WW II filed a petition there. The District Court denied her petition. While an appeal was pending, the government moved her to Utah; therefore her new custodian was not in the court's district. The Supreme Court held that the District Court had acquired jurisdiction; the removal of the detainee did not cause it to lose jurisdiction because "a person in whose custody she is remains within the district." In other words, a government official other than the immediate custodian could respond to the writ. The majority in Padilla restate the holding slightly: "the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release." Either formulation seems to violate the immediate-custodian rule and support Padilla's argument. There is, however, a distinction: "Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf. Unlike the District Court in Endo, therefore, the Southern District never acquired jurisdiction over Padilla's petition." Therefore the critical fact in this case is that Padilla's lawyer filed the habeas petition after he was transferred.
The rule of the case is this: if the government, which through a witness warrant has declared a district to be a convenient forum, secretly and pursuant to an order of dubious constitutionality transfers the witness to another district, thereby simultaneously creating the need for habeas corpus and the jurisdictional issue, it may disregard a writ issued by a court in the original district.
What is the point of this decision? Do the majority hope that, by the time the petition wends its way through the Fourth Circuit, Hamdi will have been overruled? That would make no sense as to Justices Scalia, O'Connor and Kennedy, who are in the majority here but held against the government in Hamdi. Perhaps the result here is seen as necessary to support the dissent in Rasul. Again, that would not make sense as to O'Connor and Kennedy, who were not among the dissenters. Maybe the majority really believe that the territorial-jurisdiction rule is important enough to reaffirm it in a case in which its only apparent practical effect is to irrationally delay a decision on the merits.
Justice Kennedy, joined by Justice O'Connor, wrote a concurring opinion, which makes two points. First, it accepts the Government's reclassification and removal of Padilla as merely a tough break for him:
Both Padilla's change in location and his change of custodian reflected a change in the Government's rationale for detaining him. He ceased to be held under the authority of the criminal justice system. . . and began to be held under that of the military detention system. Rather than being designed to play games with forums, the Government's removal of Padilla reflected the change in the theory on which it was holding him. Whether that theory is a permissible one, of course, is a question the Court does not reach today.
In addition, the principle being served may not even be as important as the majority opinion indicates; Justice Kennedy's second point is that the Court needs to reconsider the nature of the immediate-custodian and territorial-jurisdiction rules. "These rules . . . are not jurisdictional in the sense of a limitation on subject-matter jurisdiction. . . . That much is clear from the many cases in which petitions have been heard on the merits despite their non-compliance with either one or both of the rules." Justice Kennedy offers an alternative interpretation: "In my view, the question of the proper location for a habeas petition is best understood as a question of personal jurisdiction or venue." He thinks that this is a better reading of Braden, and cites a recent Court of Appeals opinion6 as "suggesting that the territorial-jurisdiction rule is a venue rule, and the immediate- custodian rule is a personal jurisdiction rule." However, consideration of this can wait: "I would not decide today whether these habeas rules function more like rules of personal jurisdiction or rules of venue." This case doesn't present any novel problems and may be disposed of by the default rules, however classified:
For the purposes of this case, it is enough to note that, even under the most permissive interpretation of the habeas statute as a venue provision, the Southern District of New York was not the proper place for this petition. As the Court concludes, in the ordinary case of a single physical custody within the borders of the United States, where the objection has not been waived by the Government, the immediate-custodian and territorial-jurisdiction rules must apply.
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, wrote a dissenting opinion. He argues that the government should not be allowed to gain a procedural advantage by its secret maneuvers, and therefore the petition for the writ should be treated as if filed two days earlier, in effect making this an Endo case. More persuasively, Justice Stevens argues that Secretary Rumsfeld realistically is the custodian, that he is amenable to process, and that Justice Kennedy's venue theory is correct.
When this case is analyzed under . . . traditional venue principles, it is evident that the Southern District of New York, not South Carolina, is the more appropriate place to litigate respondent's petition. The Government sought a material witness warrant for respondent's detention in the Southern District, indicating that it would be convenient for its attorneys to litigate in that forum. As a result of the Government's initial forum selection, the District Judge and counsel in the Southern District were familiar with the legal and factual issues surrounding respondent's detention both before and after he was transferred to the Defense Department's custody. . . .
Here's my suggestion for a venue rule which I hope never will be needed again: in this sort of case, where the prisoner is being detained without a whiff of due process, venue will lie in the prisoner's home district, the district in which he was seized and the district of his detention: his choice. Justice demands no less.
____________________
1. Appendix A to Court of Appeals opinion, 352 F.3d 695 (2d Cir. 2003).
2. 114 U.S. 564 (1885).
3. 410 U.S. 484 (1973)
4. 406 U.S. 341 (1972).
5. 323 U.S. 283 (1944).
6. Moore v. Olson, 368 F. 3d 757, 759-60 (7th Cir. 2004).
July 20, 2004
Anthony Lewis wrote an article for July 15 issue of The New York Review of Books entitled "Making Torture Legal." One of his themes is the role of government lawyers in bringing this about.
Mr. Lewis first discusses the various prisoner-treatment memoranda: "The torture and death of prisoners, the end result of cool legal abstractions, have a powerful claim on our national conscience. . . . But equally disturbing, in its way, is the administration's constitutional argument that presidential power is unconstrained by law." Those memos, by John Yoo, Jay Bybee, Alberto Gonzales and the lawyers who advised Secretary Rumsfeld, all contributed to the rejection of restraints on the treatment of prisoners by way of an expansive theory of presidential power:
Any attempt by Congress to restrict "the President's plenary power over military operations (including the treatment of prisoners)" would be a "constitutionally dubious step."1
The "new paradigm" of the war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners . . . .2
A statute (18 U.S.C. §§ 2340, 2340A) which makes torture a crime doesn't prohibit acts which are merely "cruel, inhuman, or degrading." "Torture" only includes the infliction of pain at a "level that would ordinarily be associated with . . . death, organ failure or serious impairment of bodily functions. . . ."3
"Even if an interrogation method were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's power to conduct a military campaign. . . . Any effort to apply Section 2340A in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants . . . would be unconstitutional"4
"In order to respect the President's inherent constitutional authority to manage a military campaign, 18 U.S.C. § 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."5
These memos are, as Mr. Lewis says, shocking:
Reading through the memoranda written by Bush administration lawyers on how prisoners of the "war on terror" can be treated is a strange experience. The memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda....
However, more importantly, they gave advice no ethical lawyer can give to a public official: to evade, ignore or break the law, to adopt policies and practices universally condemned, and to justify all this by the arrogation of power and authority inimical to the continued existence of democracy and the rule of law. The mob lawyer looks like a paragon in comparison.
Mr. Lewis' next target is an op-ed piece written by Mr. Gonzales in defense of the military-tribunal order. In a way, it was no different than the arguments made in print or by interview by other administration spokespeople, notably Condoleezza Rice: offering the official and, at least by implication, informed and correct version of events. However, Mr. Gonzales, as a lawyer, was applying the imprimatur of his supposed expertise not only to a policy but to the exposition of a document which had sweeping legal implications. This imposed upon him an obligation to be sound in his analysis and to describe the issues fairly and accurately. He did not meet that standard, as Mr. Lewis pointed out at the time.6
Mr. Lewis criticizes an argument made by Solicitor General Olson in the Padilla case: because DoD had allowed a single, unsatisfactory meeting between Padilla and his lawyers, the issue of access to counsel was moot. I agree that such an argument should be rejected out of hand, but the Solicitor General made worse arguments. In Padilla, he argued for an expansive view of presidential power; in Hamdi, that became a matter of placing the President above the law. This amounts to public advocacy of the general theory, though not of the extreme applications, found in the memos. However, as a matter of professional ethics, his situation is different than the others'. He was assigned to argue the government's position in pending cases and did so mostly in a respectable fashion, in contrast to Mr. Gonzales' deliberate misstatements to the general public. Mr. Olson's arguments, however misguided or even illegitimate, were made in a judicial forum where they could be opposed, unlike those of the memo-writers, who were creating an imperium behind closed doors.
Mr. Lewis also referred to an instance of improper conduct which occurred after the Padilla case had been argued, but before the decision was announced:
. . . The deputy attorney general, James B. Comey Jr., released a lengthy document stating what the government said Padilla had done to help al-Qaeda. . . .
Comey's intervention was so crude that one wonders what he hoped to achieve by it. Could he conceivably have hoped to move members of the Supreme Court toward the government's position, in favor of the endless confinement of Padilla without trial? Whatever his reason, Comey's action was of a kind that used to be considered beyond the pale for government lawyers.
I wholeheartedly subscribe to Mr. Lewis' reaction to all of this:
For me, the twisting of the law by lawyers is especially troubling. I have spent my life believing that the safety of this difficult, diverse country lies to a significant extent in the good faith of lawyers - in their commitment to respect the rules. But the Bush lawyers have been brazen in their readiness to twist, dissemble, and invent in the cause of power.
___________________
1. John Yoo, Memorandum for William J. Haynes II, General Counsel, Department of Defense, January 9, 2002, p.11.
2. Alberto R. Gonzales, Memorandum for the President, January 25, 2002, p. 2.
3. Jay S. Bybee, Memorandum for Alberto R. Gonzales, Counsel to the President, August 1, 2002, pp. 1, 6.
4. Ibid, p. 31.
5. [Draft] Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, 6 March 2003, pp. 21, 24.
6. Column, The New York Times, 12/4/01.
July 25, 2004
News reports indicate that the Democratic Convention will minimize attacks on President Bush and emphasize Senator Kerry's positive attributes. It's tempting to think that this passes up a great opportunity, as there is so much of Bush to criticize. However, for two reasons, the proposed strategy is the right one. First, Kerry still is something of an unknown, and the time should be spent on giving people a reason to vote for him. The situation may not be as bad as "Boondocks" had it today: an undecided voter gives his opinion of Bush, starting with "he seems to like to lie a lot" and ending with "basically, life stinks and it's all Bush's fault," only to add, "I hear that Kerry might be a little wishy-washy on some issues, so right now I could go either way."1 However, the truth isn't far from that: the task is to sell Kerry.
In addition, accentuating the positive will be a welcome contrast. Bush has so little to say on his own behalf that his current ad tells us that leadership is important, but instead of demonstrating how Bush fulfills that requirement, attacks Kerry. The negative tone of his ads will pall eventually, and the fact that he couldn't find any examples of his leadership to talk about is obvious enough without Kerry's making an issue of it. It wouldn't hurt to point out that his ads usually misrepresent the facts, but a contrast in style needs to be maintained. Let George be the one without presidential character.
__________________
1. Aaron McGruder; Universal Press Syndicate via washingtonpost.com.
August 2, 2004
The P-I reported Saturday that the President had returned to the campaign trail the day before; his theme is that he has delivered "results" on education, health care, the economy and national security. The headline used the quotation marks, which is appropriate. Consider the economy.
In his radio address on Saturday,1 Mr. Bush said that "since last summer our economy has grown at a rate as fast as any in nearly twenty years." He chose "last summer" because the rate for the third quarter of 2003 was very high. Because of that, the average GDP increase for the three quarters ending March 31 was an impressive 5.37%. He has to stop there in order to make his twenty-year claim, because the trend is down; preliminary figures for the second quarter show a gain of only 3%.2 The stock market doesn't reflect much optimism, with the Dow off 2.8% in July, 3.01% for the year.
Mr. Bush also said, "Since last August, Americans have started work at more than 1.5 million new jobs..." His number is accurate, but again the beginning date is carefully chosen, as last September was the point at which jobs first showed steady gains. The net change from January 2001 through June, 2004 is minus 1,087,000,3 but never mind. Even within his chosen period, it is difficult to see an encouraging trend. The improvement peaked in April, with a gain of 353,000 jobs; June saw an increase of only 112,000.4
Any meaningful evaluation of the job numbers must take account of the fact that the work force is expanding. Estimates of the rate of growth have varied, but generally have indicted that something in the neighborhood of 130,000 to 140,000 new jobs must be created each month in order to keep up. Since last August we have added 151,200 jobs per month, running slightly ahead of demand based on those estimates. However, work force growth may be accelerating; one report shows an increase of 233,000 in May.5 Not surprisingly, the unemployment rate hasn't moved much; it was 6.1% in September, 5.6% in January, and 5.6% in June.6 Long-term unemployment continues to be the pattern. In June, 2003, 21.8% of the unemployed had been out of work for more than 26 weeks; last month it was 21.6%. The mean and median duration of unemployment were 19.6 and 11.7 weeks in June 2003; a year later they were 19.9 and 10.8.7
The President claimed that, of the new jobs, "many [are] in high-growth, high-paying industries." Perhaps proportion, like beauty, lies in the eye of the beholder; others see most new jobs paying less than those lost. In a speech on July 2, Mr. Bush said that real after-tax incomes were up 11 percent since December of 2000.8 I don't know what source he used, but I suspect that his number is an average which is skewed by the rising incomes of those at the top, who also got the big tax cuts. He more or less gave that away by adding a lame joke: "Real after-tax incomes -- that means that the amount of money in somebody's wallet is increasing. That's what we want to hear, isn't it; particularly is [sic] you're somebody who has got a wallet." Working people haven't shared in that gain. Real wages have fallen for six of the last seven months and are below the level of November 2001, the designated end of the recession.9
On Saturday, the President said that economic growth is causing estimates of deficits to shrink. The estimates indeed have been reduced. A report by the Office of Management and Budget now projects a deficit of $445 billion for fiscal 2004, down 76 billion from an estimate in February.10 However, the February number, $521 billion, was discounted at the time as an intentional exaggeration designed to allow the argument just made. Mr. Bush went on to claim that, "because of my policy of strengthening the economy while enforcing spending discipline in Washington, we remain on pace to reduce the deficit by half in the next five years." Where he finds evidence of spending discipline is a mystery; the OMB report notes that its estimate of spending has increased since February.
I've lost track of which deficit Mr. Bush plans to cut. He claimed in the State of the Union last January that his budget could "the deficit" in half over five years. At that point the only firm figure was the 2003 deficit of 375 billion. Did he plan to reduce the deficit to 187.5 billion? Or did he have in mind the fiscal 2004 deficit, which was estimated at 475 billion in the OMB report in July, 2003? Or was it the revised 2004 estimate of 521 billion issued in February? Or, on Saturday, was he "on pace" to cut the new 2004 forecast of 445 billion in half? Or does he mean that the deficit, as a percentage of GDP, will be halved? A chart in the OMB report suggests that.
It probably doesn't matter. None of the numbers has much credibility given the administration's lack of skill in forecasting, combined with its lack of candor. As an example, perhaps of the former, certainly of the latter, the deficit forecast by OMB for 2005 doesn't reflect the full cost of operations in Afghanistan and Iraq; the report notes that they "are expected to require additional funding." Estimating those amounts will be deferred until next year, by coincidence after the election.
______________________
1. www.whitehouse.gov/news/releases/2004/07/20040731.html
2. Department of Commerce; www.bea.doc.gov/bea/dn/gdpchg.xls
3. Department of Labor, Bureau of Labor Statistics (BLS); http://data.bls.gov/cgi-bin/surveymost?ce
4. BLS; http://data.bls.gov/servlet/SurveyOutputServlet?data_tool=latest_numbers&series_id=CES0000000001&output_view=net_1mth 8/22/04: Correction: March showed a gain of 353,000, April 324,000.
5. Economic Policy Institute (EPI), 6/4/04; www.epinet.org/content.cfm/webfeatures_econindicators_jobspict_20040604
6. BLS; http://data.bls.gov/servlet/SurveyOutputServlet?data_tool=latest_numbers&series_id=LNS14000000
7. BLS; ftp://ftp.bls.gov/pub/suppl/empsit.cpseea12.txt
8. www.whitehouse.gov/news/releases/2004/07/20040702-3.html
9. EPI, 7/16/04; www.epinet.org/content.cfm/webfeatures_ snapshots_07162004
10. OMB, Fiscal Year 2005, Mid-Session Review, 7/30/04; www.whitehouse.gov/omb/budget/fy2005/05msr.pdf
August 24, 2004
Returning from a vacation during which we were more isolated from the news than usual, we find the world little improved:
Only about 32,000 jobs were created in July, far below forecasts. This continued a downward trend from the peaks of March and April. June, originally reported at 112,000, has been revised to 78,000. The trade deficit reached a record $55.8 billion in June, which may result in a downward revision of the already-low estimate of 3% growth in GDP for the second quarter.
With recovery fragile and no obvious signs of inflation, the Fed's interest-rate increase seems ill-timed, but the speculation is that it will raise the rate again.
The attacks on Kerry's war record are ludicrous coming from people who support George Bush. Their success demonstrates that many Americans, especially many veterans, place rhetoric above deeds. The attacks, to all appearances, are unfair, but Kerry brought this on himself by running as a war hero, and as an unrepentant supporter of the invasion of Iraq.
One of the ironies of the controversy is that the Vietnam war, by earlier consensus a mistake, has been transformed into a noble enterprise by 9-11. This pseudo-patriotic fantasy drives the "Swift Boat Veterans for Truth," who are more upset by Kerry's criticism of the war than his medals. The greater irony is that Vietnam has been so transformed by support for the even less justifiable Iraq war.
The turnover of "sovereignty" to an Iraqi government did not change much. Fighting and general chaos continue; more American military personnel have been killed per day since June 28, the date of the turnover, than before.1
________________
1. 1.96 per day since 6/28; 1.82 to that date; http://icasualties.org/oif/
August 31, 2004
The Seattle papers reported last week that many voters have called or e-mailed the Secretary of State's office to complain about the new primary election ballot. Some of the complaints may relate to the ballot form, but most seem to reflect a belated realization that the system has changed. The blanket primary is no more; now each of us is limited, in the primary, to voting for the candidates of one party. In practice, this means selecting a Democratic, Republican or Libertarian ballot (or, in some counties, limiting oneself to the appropriate section of a combined ballot form). To many people across the country, this may not seem like news, but to Washingtonians it is a revolution. Not only have we had the blanket primary for as long as nearly anyone can remember,1 it has become synonymous in our minds with democracy, with the right to vote as we see fit.
A majority of the U.S. Supreme Court, its members no doubt having been raised in less enlightened jurisdictions, think otherwise, and in California Democratic Party v. Jones they struck down the blanket primary in that state. As the California statute was modeled on Washington's, the demise of our version was foreordained. The Ds, Rs and Ls combined here, as they had in California, to challenge the Washington system. They failed in District Court, but the Ninth Circuit bestowed upon them the blessings of Jones jurisprudence, and the Supremes, having no reason to disagree, denied cert.
The Legislature duly passed a bill establishing a non-blanket system, but rather than adopt the party-controlled system known as the Montana ballot, it opted for the Louisiana procedure of sending to the final election the two candidates receiving the most votes, regardless of party. However, concerned that the courts might find fault with that scheme, it included in the bill a provision that, if the Louisiana ballot were struck down, the Montana ballot would be used. Governor Locke vetoed the portion of the bill referring to Louisiana, leaving (presto!) Montana.
The Governor, who was annoyed at the parties for challenging the blanket primary, claimed to be fearful that the Louisiana ballot would not survive a court challenge. More likely, he was concerned that the lawsuit threatened by the parties would leave this year's election in chaos. The parties have graduated from changing the system by litigation to changing it by the mere threat.
The Washington State Grange, which had led the campaign for the blanket primary in the early thirties, sued to have the Governor's creative use of the veto set aside. Alas, the State Supreme Court ruled that completely changing the intent of a bill isn't a misuse of the partial-veto power accorded our governor. (We don't know why it so ruled, as no opinions have been filed, even though the decision was handed down on June 10.) The Secretary of State, a Republican whose preferences are, in order, the blanket primary and the Louisiana system, dutifully created a Montana ballot. He has been rewarded with the outraged e-mails.
There are two ironies here. We now have a ballot which probably is the third choice of most of the people, and the first choice only of the parties. In addition, the "parties," at least in the case of the Democrats and Republicans, are such ephemeral entities that it is ludicrous to refer to their rights. Defining the parties in California was difficult; here, where we do not register by party, it is impossible; they are, shall we say, without form and void. The opinions expressed in the litigation are those of the state chairmen and perhaps a few other officials. Certainly they do not reflect the views of the people; a 2001 poll reported that 79% of Washington voters favored the blanket primary.
I have difficulty understanding why the interests of a few functionaries rise to such constitutional heights that the people cannot decide how they will elect their representatives. Justice Scalia had a chance to explain that in his opinion in Jones. He didn't explain it to me, which means that one of us doesn't understand the Constitution and democratic theory. My natural modesty would assign the fault to me were it not for Bush v. Gore.
_______________
1. It became law in 1935, three years after my mother, who is 93, became eligible to vote.
September 2, 2004
I can't get any sense of where the presidential election is headed. Even before the convention, polls showed Bush gaining, but they indicated that his strength is his role in the war on terror, which is so illogical that it's difficult to credit.
Anecdotal evidence suggests a migration toward Kerry. A recent and moderately significant example is the decision of The Seattle Times to endorse Kerry: "Four years ago, this page endorsed George W. Bush for president. We cannot do so again - because of an ill-conceived war and its aftermath, undisciplined spending, a shrinkage of constitutional rights and an intrusive social agenda." Numerous ads feature people who voted for Bush four years ago but now support Kerry, including a former Air Force Chief of Staff. Much of the left seems to have come into the real world, ready to vote for, if not to admire, Kerry.
The GOP is drawing criticism from present or former stalwarts: The New York Times in the past few days has carried ads by moderates (a group including former governor and senator Dan Evans) and a conservative (Pat Buchanan), both accusing the party of losing its way and betraying former principles.
All of this may add up to nothing. We shall see.
September 10, 2004
The Congressional Budget Office now projects a record deficit of $422 billion for the fiscal year ending September 30, $46 billion more than the previous high, set last year. The CBO described its findings as follows: "The nation's fiscal outlook has not changed substantially since March.... The deficits estimated for fiscal years 2004 and 2005 have shrunk somewhat, but the deficits projected for later years have grown."1 Ever eager to spin, the Bush campaign declared that the new estimate is "a sign of the economic growth that is a result of President Bush's leadership on tax relief." In other words, because this year's deficit is a little less awful than previously expected, we're galloping down the road to prosperity.
This is stretching things a bit. After tax cuts which presumably had some stimulative effect, the recovery is anemic. GDP growth now is estimated to have been only 2.8% in the second quarter, the stock market is in the doldrums and job growth still is barely enough to cover additions to the work force. Recent Census figures show that the number of Americans in poverty rose again last year, those without health insurance reached a record number last year, and real median income is flat. 2
The tax cuts and the cost of our military adventures are major contributors to the deficit and the burgeoning debt. The CBO estimates that the ten-year deficit will total 2.3 trillion if we continue to spend at the current rate in Iraq and Afghanistan, 0.9 trillion if that ends this year. If the tax cuts expire, as now provided, in 2010, the total deficit through 2014 (assuming the wars go on) will be 2.3 trillion, but if the cuts are made permanent, it will be 4.5 trillion. (The President, in his radio address last Saturday again called for "making tax relief permanent.")3 So, over ten years, those two Bush policies would add 3.6 trillion to the debt, creating a massive burden for future generations, a serious threat to Social Security, a budget in thrall to huge interest payments, distortion of financial markets and weakening of national security.
Why has the Bush administration run huge deficits and advocated policies which will make them permanent? One theory, a retread from the Reagan days, is that the deficits are intentional, that the plan is to starve the government to death. However, even if we assume that nuts like Grover Norquist want to kill the entire beast, our imperialists obviously need part of it to be active and powerful, and that takes money; an empire cannot survive without a secure financial base for his empire, which current policies certainly will not provide.
A more imaginative theory is that Bush is an apocalyptic Christian who expects the second coming at any moment, so planning for an ordinary human future is irrelevant. It could explain his environmental policies: who needs forests or clean air if all is to be transformed? However, that seems a little much. This is not the first time that a nation has followed a self-destructive path, so we probably need not resort to eschatology for an explanation.
No doubt many forces are at work in fashioning the Bush policies. It seems to me that, along with greed and hubris, one of the more significant is simple stupidity. Many dismiss Mr. Bush as intellectually challenged, accurately I think. Usually that leads to speculation about the power behind the throne, which generally leads to Dick Cheney. However, Mr. Cheney seems to be every bit as dumb as the President. A recent article4 chronicles the Vice President's career in a way that suggests that his singular mismatch of talent and attitude have made him a millstone to every organization he has joined. However, like Mr. Bush, he has ever failed upward and, if current polls are to believed, both will once again succeed by failure.
_________________
1. The Budget and Economic Outlook: An Update (issued 9/04); www.cbo.gov/showdoc.cfm?index=1944&sequence=0.
2. Income, Poverty and Health Insurance Coverage in The United States, 2003 (issued 8/04); www.census.gov/prod/2004pubs/p60-226.pdf
3. www.whitehouse.gov/news/releases/2004/09/20040904.html
4. T.D. Allman, "The Curse of Dick Cheney" (posted Aug 25, 2004); www.rollingstone.com/politics/story?id=6450422
September 12, 2004
On Friday, Bill Moyers' NOW presented a review of the investigation by the 9-11 commission. In its quiet way, the program was a more devastating indictment of the Bush administration than Fahrenheit 9-11. The most effective segments were the excerpts from the testimony of Condoleezza Rice, in which she lamely attempted to excuse her failure, and the President's, to take terrorism warnings seriously. If a Democratic administration had so performed, there would have been calls for impeachment.
The Republican Convention presented President Bush to the people as a strong and decisive leader, ready and able to protect us from terrorists. I don't know whether he could have prevented 9-11, but his failure even to take the threat seriously and his attempts to thwart any investigation make his claim to be our protector both ludicrous and shameful.
Little has been done to improve domestic security since 9-11. Ports remain virtually unprotected. Baggage and cargo on airplanes still are inadequately screened. Railroads, chemical plants and nuclear power plants all remain vulnerable. The administration in effect admits this by trotting out a terrorism warning whenever public attention needs to be diverted from even more unwelcome news. Nuclear nonproliferation has been a low priority, ironically increasing the possibility of that mushroom cloud Rice warned about.
Although no connection between Saddam Hussein and 9-11 existed, our principal response to 9-11 was to invade Iraq, the results of which have been over one thousand American and countless Iraqi deaths, chaos, mounting debt, the alienation of allies and the inspiration of enemies.
Dick Cheney warns that a vote for the wrong person might put us at risk. Indeed; look at the record.
September 14, 2004
In a speech on Sunday, John Edwards challenged the Bush forces to stop claiming there was a connection between Saddam, al Qaeda and 9-11. Referring to a "Meet the Press" interview of Colin Powell, he said, "Today, Secretary of State Powell made clear that there is no connection between Saddam Hussein and the attacks on September the 11th. From this day forward, this administration should never suggest that there is." 1 A Bush campaign spokesman dismissed the charge. No doubt we will be reminded that the President once made a pro forma denial of a connection. ("We've had no evidence that Saddam Hussein was involved with the September 11th.")2
Senator Edwards' point is that the connection has been implied repeatedly, and recently. At a campaign appearance in Cincinnati,
Cheney recounted the invasion of Afghanistan in 2001, in which the United States punished the Taliban for harboring al-Qaida, which is blamed for the Sept. 11 attacks. Then he said, "In Iraq, we had a similar situation."
Saddam, he said, "provided safe harbor and sanctuary for terrorists for years," including al-Qaida.3
I have no indication that there was a direct connection between the terrorists who perpetrated these crimes against us on the 11th of September, 2001, and the Iraqi regime. We know that there had been connections and there had been exchanges between al-Qaeda and the Saddam Hussein regime and those have been pursued and looked at, but I have seen nothing that makes a direct connection between Saddam Hussein and that awful regime and what happened on 9/11.4
The problem is revealed by polls conducted by The Program on International Policy Attitudes (PIPA) and Knowledge Networks. In March the poll 5 disclosed that the administration's hints about Iraq had been swallowed, as intended. It found that 57% believed that there was a close connection between Iraq and al Qaeda and 60% believed that Iraq had WMD or "a major program for developing them." The exact numbers were as follows:
Iraq's relationship to al Qaeda
11% There was no connection at all.
29% A few al Qaeda individuals visited Iraq or had contact with Iraqi officials.
37% Iraq gave substantial support to al Qaeda, but was not involved in the September 11th attacks.
20% Iraq was directly involved in carrying out the September 11th attacks.Iraq and WMD
38% Had actual weapons of mass destruction.
22% Had no weapons of mass destruction but had a major program for developing them.
31% Had some limited activities that could be used to help develop weapons of mass destruction, but not an active program.
8% Did not have any activities related to weapons of mass destruction.
Given that neither of these beliefs has been borne out by long and costly investigations into the activities of the fallen regime, and given the assessments challenging these views by high-profile figures like David Kay..., Hans Blix..., or Richard Clarke..., it would seem that this might be a moment when these beliefs would begin to change.
To the extent that they have not changed, this raises the question of "why?"
The report showed a strong correlation between belief as to the al Qaeda connection and support for presidential candidates. Those who believed Iraq supported al Qaeda favored Bush 57%-39%. Conversely, those who did not so believe went for Kerry 68-28. As to WMD, Bush led only among those falling into the first category (actual WMD), 74-21; those falling into the remaining categories went for Kerry, in order, 56-39, 71-23 and 92-5. As to causal connection, the report, based on "multivariate regression analysis," concluded that "beliefs had at least some impact on voting intentions." (Out of curiosity, I looked at my college textbook on statistics to see what regression analysis might be. I was not enlightened. I can't believe that I passed that course; the book might as well have been in Chinese.)
The report commented that "a change in beliefs about prewar Iraq, or perceptions of what experts are saying, could have an impact on voting intentions." That brings us to the update to the study, published last month.8 I wish that I could say that it reveals that the scales have dropped from the public's eyes. Instead, it shows only minor shifts in belief.
Utilizing the same categories as above, the new results are as follows (March results in parentheses):
Iraq's relationship to al Qaeda
10% (11) There was no connection at all.
32% (29) A few al Qaeda individuals visited Iraq or had contact with Iraqi officials
35% (37) Iraq gave substantial support to al Qaeda, but was not involved
in the September 11th attacks.
15% (20) Iraq was directly involved in carrying out the September 11th attacks.Iraq and WMD
35% (38) Had actual weapons of mass destruction.
19% (22) Had no weapons of mass destruction but had a major program for developing them.
34% (31) Had some limited activities that could be used to help develop weapons of mass destruction, but not an active program.
10 (8) Did not have any activities related to weapons of mass destruction.
So true believers on al Qaeda are down from 57% to 50%, and on WMD, down from 60% to 54%.
A small shift away from Bush might be predicted. PIPA did not assess voter preference in the August study, but other polls do not indicate any such movement. The August report did include questions about attitudes toward Mr. Bush, which seem to indicate some erosion of approval:
When Americans are asked how they think "the way that President Bush has dealt with the situation in Iraq" will affect their vote in the upcoming election, a plurality of 44% say it will decrease the likelihood they will vote for President Bush (up from 41% in March), while 34% say it will increase the likelihood and 19% say it will have no effect on their vote...
... When asked whether they "think President Bush gave the country the most accurate information he had before going to war with Iraq, or "deliberately misled people to make the case for war," Americans are divided, with 48% saying he gave accurate information and 49% saying he deliberately misled the public....
... While 69% said the President went to war with Iraq based on incorrect assumptions, only 30% thought the president knew these assumptions were incorrect. However 59% believed "some key people in US intelligence agencies" knew this - up from 48% in November 2003.
Asked about the "assumptions about Iraq" on which the President relied in going to war, 27% now say they were correct, 69% incorrect; in November, 2003, the split was 40-55. A plurality (49-46) now think that going to war in Iraq was the wrong decision; previously a small majority had held the opposite opinion. The August poll added a question about use of resources in combatting terrorism. Fifty-two percent think that resources would have been better used in "pursuing al-Qaeda and stabilizing Afghanistan," 39% thought invading Iraq and overthrowing Saddam the better use.
One of the puzzles is the number of people who are unaware that various experts have rejected the al Qaeda and WMD connections. That has changed only slightly: "The newest findings indicate that awareness has grown that that [sic] most experts agree that Iraq did not have WMD before the war and that Iraq was not providing substantial support to al Qaeda; however, these are still not majority perceptions." If the experts' rejection of the Bush line could be brought home in some dramatic way, it might have a significant effect on the vote.
_____________________
1. The Seattle Post-Intelligencer, from Associated Press.
2. 9/17/03; www.whitehouse.gov/news/releases/2003/09/20030917-7.html
3. The Cincinnati Enquirer, 9/10/04; www.wcpo.com/news/2004/local/09/09/cheney_ap.html Also included in the P-I article, note 1.
4. www.msnbc.msn.com/id/5981265/
5. U.S. Public Beliefs on Iraq and the Presidential Election, www.pipa.org/OnlineReports/Iraq/IraqReport4_22_04.pdf
6. "Informed Comment," 4/25/04; www.juancole.com/2004_04_01_juancole_archive.html
7. "The Faith-Based Superpower," www.opendemocracy.net/columns/view-15.jsp
8. U.S. Public Beliefs and Attitudes about Iraq, www.pipa.org/OnlineReports/Iraq/Report08_20_04.pdf
September 17, 2004
I am not a fan of conspiracy theories. They tend to misinterpret events or exaggerate their importance and to find connections which may not exist, all in the service of fitting those events into a pattern. In a sense, this is a risk in every theory, a temptation inherent in the desire to bring analytic order out of observed chaos. However, conspiracy theorists often have somewhat too much imagination and too little logical rigor.
An example of this phenomenon is a book by David Ray Griffin, The New Pearl Harbor: Disturbing Questions about the Bush Administration and 9/11. My attention was directed to the book primarily by a review by Robert Baer in the September 27 issue of The Nation, although I had read an interview 1 of Dr. Griffin in April, shortly after the book was published. His plunge into conspiracy theory is the result of his rejection of the official accounts of 9-11. It leads him to present, sympathetically, accusations of official complicity in 9-11, ranging from false accounts after the fact (e.g., to cover up negligence) to White House involvement in planning the attacks.
Although The New Pearl Harbor2 is too eager to find the dark side, it reflects a skepticism about the accounts of 9-11 which is understandable, partly because the official explanations of some events are unsatisfactory, but more because it is difficult to imagine that the government could be so inept, and easy to believe that this administration is lying. Baer summarizes the attitude as follows:
Griffin is a thoughtful, well-informed theologian who before September 11 probably would not have gone anywhere near a conspiracy theory. But the catastrophic failures of that awful day are so implausible and the lies about Iraq so blatant, he feels he has no choice but to recycle some of the wilder conspiracy theories....
Dr. Griffin's account is in the form of a series of questions and a summary of theories advanced by others to answer those questions. He does not present those conspiracy theories as true, but only because he cannot verify all of the facts alleged: "It is for this reason that I claim only that these revisionists have presented a strong prima facie case for official complicity...." However, it is clear that he finds the conspiracy arguments persuasive: "If a significant portion of the evidence summarized here holds up, the conclusion that the attacks of 9/11 succeeded because of official complicity would become virtually inescapable."
The discrepancies which Griffin and others see fall into four principal categories. The first consists of physical anomalies: How could the steel-framed World Trade Center towers be brought down by airplanes crashing into them? What caused the collapse of WTC Building 7, which was not struck? If an airplane flew into the Pentagon, why do photographs show virtually no debris of the plane? The second deals with behavioral anomalies, primarily those of President Bush: for example, why did he tarry over "My Pet Goat" while the country was under attack? Thirdly, why was the government so unprepared for the attacks and so inept in its response as they developed? Finally, why did the administration oppose and obstruct investigations? These are fair and important question. However, concluding, as some of Griffin's sources do - and as he seems inclined to do - that 9-11 was a U.S. government plot is quite a leap. As Baer puts it, Griffin's "most shocking" accusation is that
the Bush Administration knew the attack was coming and either let it happen or abetted the plotters as a way of jolting the nation into accepting its policy of pre-emptive warfare and transforming the Middle East.
It's a monstrous proposition, which makes this a monstrous but in some ways important book. Someone, after all, should be asking in print why our foreign policy seems to have fallen into the hands of some malevolent band of Marx Brothers....
Although Dr. Griffin is prepared to believe an extreme theory, he maintains a sense of balance. After describing all of the problems with the official accounts, he candidly lays out the problems concerning the conspiracy theories. One of those problems is that, if there was a conspiracy, it was ineptly carried out, i.e., it left too many of the suspicious circumstances that lead him to speculate that it exists. He states the alternatives as he sees them:
... When all these rhetorical questions are taken together, it seems that we are faced not simply with a choice between an incompetence theory and a complicity theory. Rather, the choice seems to be between a theory involving subordinates who momentarily became incredibly incompetent, on the one hand, and a theory involving high-level officials who manifested incredible incompetence in creating a conspiracy, on the other....
However, no one, other than Bush & Co., can quarrel with his conclusion, which is that a more complete investigation is required. His book was published after the 9-11 commission was created but prior to its report, which addresses some of his concerns. However, that report, although a genuine contribution, is insufficient, for reasons inherent in the composition of the commission and the limitations imposed upon it.
_______________________
1. The Santa Barbara Independent,4/1/04, http://independent.com/news/news906.htm
2. The book has been posted on vancouver.indymedia.com. I am assuming that the version on the web is authentic, although it is full of typos, possibly the result of unedited scanning.
3. Elsewhere, he speculates that it could have landed at Reagan Airport, unnoticed, after which its passengers somehow disappeared.
September 28, 2004
The November ballot will contain one referendum and four initiatives. One of the latter is the latest from Tim Eyman, who is falling into the useful-idiot category. This time he is fronting for gambling interests by pushing an initiative, I-892, which would lower property taxes by substituting state revenue from licensing "electronic scratch-ticket" terminals.
The voters' pamphlet hasn't been published yet, but its contents are available on the Secretary of State's web site. The statement in support of the initiative is consistent with Eyman's record for clarity and veracity; it claims that Washington is the "seventh highest taxed state in the nation," citing The Tax Foundation. 1 That organization ranks us #7 in total tax burden because we pay more than average in federal taxes. The same source shows that Washington is 21st in state and local taxes, which is what the initiative is about. Eyman also states that property taxes were $1 billion in 1980 and $6.25 billion in 2003, and that the increase is "obscene." However, the increase is partly due to inflation (113.6% in that period) and to population growth (48.4%). In addition, his fiscal claims are exaggerated. He promises that his scheme will produce $400 million in annual revenue, but the Office of Financial Management estimates $252 million when the system is fully installed.2
Opponents of the initiative include Indian tribes whose gambling operations would face new competition and various people and organizations opposed to gambling, or at least to its extension, on principle. Eyman responds to the latter by claiming that the new terminals will not create new gamblers, but merely allow additional access to a finite market. Ironically, this supports another argument against the proposal. The Lottery Commission predicts a loss of revenue, from reduced sales of its products, of 15 to $30 million per year and the Gambling Commission forecasts a loss of up to $8.4 million per year to local governments from reduced play in the types of gambling they are allowed to tax.3 The amounts are speculative, but they further reduce the claimed $400 million benefit to the state from the scheme.
The referendum, R-55, a measure which passed the legislature by modest majorities, asks the voters to authorize charter schools. One of the initiatives, I-884, would increase the sales tax and earmark the additional revenue for education. The former poses a serious and structurally basic issue of educational policy. The latter primarily is a revenue measure and appears to raise no major policy issues. The statement against is simply a claim that we're already overtaxed. (Either it was written anonymously by Eyman or someone is copying his style; it refers to tax increases by "politicians" and repeats that "Washington is the 7th highest taxed state in the nation.") Both of the school-related measures reflect the decline of the public school system, which neither will reverse nor even materially affect.
Initiative I-297, originally presented to but not acted upon by the legislature, would, indirectly, ban further transfer of nuclear waste to Hanford until the existing mess is cleaned up. It addresses a real problem, but even the explanatory statement prepared by the AG's office is bafflingly complicated, and the measure, if passed, might be unenforceable.
The remaining initiative, I-872, would substitute a Louisiana ballot for the partisan primary used for the first time this month. The new primary is so unpopular that the initiative may well pass, but not on its merit. The dominant themes seem to be punishment of the parties for destroying the blanket primary and the notion that the Louisiana system resembles it.
The arguments for and against the initiative are mostly vague, but there is one from the opposition that could prove persuasive. Under the Louisiana system, no party is guaranteed a place on the final election ballot; the opposition obviously thinks that is bad. It tries to show just how awful it would be by arguing that, had the proposed system been in place in 1980, "the voters' ultimate choice, John Spellman, would never have appeared on the November ballot." This is a non sequitur. It is true that, because there was a spirited primary on the Democratic side between the conservative incumbent Dixy Lee Ray and the liberal challenger Jim McDermott, more people voted for each of them than for Spellman. McDermott won the Democratic primary but Spellman won the final. However, there is no reason to assume that the votes would have been distributed the same way had the Louisiana system been in place. In the existing system, the major parties are guaranteed a representative on the final ballot; if that changes, people may vote differently.
The opposition statement does not raise constitutional issues, but it is a virtual certainty that they will appear in a legal challenge to the initiative should it pass. The outcome is anyone's guess. There is a somewhat anomalous passage in California v. Jones which may indicate that the Louisiana primary would survive. After rejecting all of the state's arguments in support of the California blanket primary, the Court added another reason for holding against it: even if the state's interests were "compelling," its version of a blanket primary was not "a narrowly tailored means" of advancing them. Instead it could have opted for what the Court confusingly calls "a nonpartisan blanket primary," described as follows:
... Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot--which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election....
The structure of Washington's ballot may be unsettled for some time.
_____________________
1. http://www.taxfoundation.org/
2. Potential Fiscal Impacts of I-892, pp. 3-4; www.ofm.wa.gov/initiatives/2004/892/
3. Potential Fiscal Impacts of I-892, pp. 3-4.
October 4, 2004
Why do people support George Bush? That has baffled me since he appeared on the scene, and the debate Thursday did nothing to enlighten me. An additional level of mystery is added by a new poll by The Program on International Policy Attitudes (PIPA), which reports,
Majorities of Bush supporters incorrectly assumed that Bush favors including labor and environmental standards in trade agreements (84%), and the US being part of the Comprehensive Test Ban Treaty (69%), the International Criminal Court (66%), the treaty banning land mines (72%), and the Kyoto Treaty on global warming (51%). They were divided between those who knew that Bush favors building a new missile defense system now (44%) and those who incorrectly believe he wishes to do more research until its capabilities are proven (41%).
A majority of Bush supporters did get two of his positions right: "Bush favors increased defense spending (57%) and wants the US, not the UN, to take the stronger role in developing Iraq's new government (70%)."
Uncommitted voters also were wrong as to most of Bush's positions, but by smaller margins. Here's a composite table, showing perceptions of Bush's positions by his supporters and the uncommitted:
Pro-Bush.....Uncommitted
Think Bush is for (he's against):
84% .............69% labor & environmental standards in trade agreements
69% .............51% Comprehensive Test Ban Treaty
66% .............47%* International Criminal Court
72% .............50% treaty banning land mines
51% .............45%* Kyoto treaty on global warming
Think Bush is for (he is):
44%* ............35% building a new missile defense system now
57% ..............41% increased defense spending
70% ..............46%* US, rather than UN, to lead re Iraq's new government
* pluralities
Bush supporters were asked their own views on these issues, producing a stunning result: his supporters disagree with his position on every issue in this survey. As to five, they appear to have projected their preferences: they favor, and mistakenly believe he favors, labor and environmental standards, the test ban treaty, the ICC, the land mine treaty and Kyoto. However, at least a plurality understand that Bush disagrees with them on the remaining three: missile defense system now, increased defense spending, and US v. UN lead in Iraq. Here's a comparison of Bush supporters' views and their perceptions of his:
Supporters favor....Think Bush favors
93% .............................84% labor & environmental standards in trade agreements
68% .............................69% Comprehensive Test Ban Treaty
75% .............................66% International Criminal Court
66% .............................72% treaty banning land mines
54% .............................51% Kyoto treaty on global warming
33% .............................44%* building a new missile defense system now
40% .............................57% increased defense spending
44% .............................70% US, rather than UN, to lead re Iraq's new government
The five issues as to which Bush's positions are misperceived have had less publicity than the three where Bush's views are correctly understood, so as to them we may be seeing the result of wishful thinking unchallenged by information. Its tempting to suppose that the media are at fault in not making facts clear. However, reference to the results for Kerry may lead to a different conclusion. Tables corresponding to the previous two show this:
Pro-Kerry........Uncommitted
Think Kerry is for (he is):
90% ....................75% labor & environmental standards in trade agreements
77% .....................60% Comprehensive Test Ban Treaty
59% ....................49%* International Criminal Court
79% .....................57% treaty banning land mines
74% .....................54% Kyoto treaty on global warming
68% .....................46%* further research on missile system, no present deployment
43%* ...................39%* defense spending at present level
80% .....................71% UN, rather than US, to lead re Iraq's new government
* pluralities
Kerry supporters also were asked their own views on these issues:
Supporters favor.....Think Kerry favors
94% .............................90% labor & environmental standards in trade agreements
88% .............................77% Comprehensive Test Ban Treaty
74% .............................59% International Criminal Court
81% .............................79% treaty banning land mines
79% .............................74% Kyoto treaty on global warming
68% .............................68% further research on missile system, no present deployment
52% .............................43% defense spending at present level
85% .............................80% UN, rather than US, to lead re Iraq's new government
So, in contrast to the Bush survey, at least a plurality of Kerry's supporters and the uncommitted correctly understand his positions, and his supporters agree with all of them. Unless we assume wishful thinking which just happens to be correct as to Kerry, this indicates that the problem with the Bush results isn't the unavailability of correct information.
In responding to an earlier PIPA poll on different issues, Juan Cole and Todd Gitlin suggested that Bush supporters believe what they need to believe to validate their support. Perhaps uncommitted voters similarly need to think well of their president. That would fit part of the results. It doesn't explain why people who are way off on several of Bush's positions are right on others.
In any case, if this poll is reliable, support for Mr. Bush doesn't flow from sympathy for his positions on these issues.
____________________
1. Public Perceptions of the Foreign Policy Positions of the Presidential Candidates, 9/29/04; www.pipa.org/OnlineReports/Pres_Election_04/Report09_29_04.pdf
2. The tables in this note are my presentation of the text of the report. The report includes a table, in a different form, corresponding to the first and third here.
October 13, 2004
In Monday's column, Bob Herbert described the administration's reaction to bad news about employment and Iraq: "Reality. . . was shoved aside."1 How true; take the job situation first.
Ninety-six thousand jobs were added in September. That isn't good news, but the administration touts it as proof of the effectiveness of its economic policy, i.e., its mania for tax cuts. The spin for some time has emphasized the job growth since August, 2003, when the number ceased to be negative; President Bush and Secretary of Commerce Evans claimed in the past few days that over 1.9 million jobs have been created over that period.2 Assuming that they referred to seasonally adjusted nonfarm employment, which seems to be the usual measure, the gain is 1,778,000, according to the Bureau of Labor Statistics. Using its number, that's an average of 136,769 per month; using theirs, it's 146,154. Even assuming the latter, we barely kept up with population growth. Over the past four months, results have been worse: a total gain of 405,000, a monthly average of 101,250. The net change from January, 2001 is a loss of 821,000 jobs. 3
The denial of reality is greater as to Iraq. The Iraq Survey Group (ISG), under Charles Duelfer, has confirmed that there were no weapons of mass destruction and neither present capacity nor active programs to create them. The report 4 does say that Saddam had a desire to have WMD; the President seized on that as his newly revised, latest-in-a-series rationale for war. However, apparently aware that mere desire hardly amounts to a threat, he fantasized facts contrary to the report: Saddam Hussein had "the materials" and "the means" to produce WMD.5
In addition to its general findings that Iraq had no WMD capability, the report destroys two of the claims made by Secretary Powell before the Security Council in a performance which convinced many of the need for war. The first concerned chemical weapons. Referring to photos of a site in Iraq, taken in May, 2002, he said,
I'm going to show you a small part of a chemical complex called "Al Musayyib", a site that Iraq has used for at least three years to transship chemical weapons from production facilities out to the field. . . .
Here we see cargo vehicles are again at this transshipment point, and we can see that they are accompanied by a decontamination vehicle associated with biological or chemical weapons activity. What makes this picture significant is that we have a human source who has corroborated that movement of chemical weapons occurred at this site at that time. . . .6
The second claim related to biological weapons (BW). Secretary Powell told the Security Council that Iraq had "mobile production facilities," including trailers, "used to make biological agents." On May 20, 2003, President Bush pointed to them as proof of the existence of WMD; on February 1, 2004, even though serious doubts had been expressed, Vice President Cheney asserted that the trailers were conclusive evidence of WMD programs. The ISG report first disposes of the general question of a mobile BW program: "In spite of exhaustive investigation, ISG found no evidence that Iraq possessed, or was developing BW agent production systems mounted on road vehicles or railway wagons." As to the famous trailers,
ISG thoroughly examined two trailers captured in 2003, suspected of being mobile BW agent production units, and investigated the associated evidence. ISG judges that its Iraqi makers almost certainly designed and built the equipment exclusively for the generation of hydrogen. It is impractical to use the equipment for the production and weaponization of BW agent. ISG judges that it cannot therefore be part of any BW program.
The unhappy fact is that misstatement simply is an administration policy. During confirmation hearings, Porter Goss, nominated to become Director of Central Intelligence, "said he agreed that statements by Vice President Dick Cheney and Condoleezza Rice that linked Iraq to the Sept. 11 attacks; to Al Qaeda; and to an active nuclear weapons program appeared to have gone beyond what was spelled out in intelligence reports at the time."10 The exaggerations included the Rice theory of aluminum-tube usage, her statement that Iraq provided training to Al Qaeda in chemical weapons development and one of Mr. Cheney's favorites, that Mohammed Atta had met with an Iraqi official in Prague.
The misstatements show that the administration was committed to war regardless of justification. Its detachment from realty is shown by the fact that it rushed ahead heedless of consequences. The New York Times reported recently that two pre-war intelligence estimates "predicted that an American-led invasion of Iraq would increase support for political Islam and would result in a deeply divided Iraqi society prone to violent internal conflict." These were presented to the President in January, 2003.
One of the reports also warned of a possible insurgency against the new Iraqi government or American-led forces, saying that rogue elements from Saddam Hussein's government could work with existing terrorist groups or act independently to wage guerrilla warfare, the officials said. The assessments also said a war would increase sympathy across the Islamic world for some terrorist objectives, at least in the short run, the officials said.11
___________________
1. The New York Times, 10/11/04.
2. Bush, 10/9/04; www.whitehouse.gov/news/releases/2004/10/20041009.html
Evans, 10/8/04; www.commerce.gov/
3. All numbers except Bush's and Evans': Bureau of Labor Statistics; http://data.bls.gov/cgi-bin/surveymost?ce
4. www.washingtonpost.com/wp-srv/nation/nationalsecurity/wmd/100604_iraq_survey_group_Comp_Report_Key_Findings.pdf I am relying on the report summary, which covers sixteen pages. I have read only small portions of the 918-page full report.
5. "President Bush Discusses Iraq Report," 10/7/04; www.whitehouse.gov/news/releases/2004/10/20041007-6.html
6. 2/5/03; www.state.gov/secretary/rm/2003/17300.htm
7. Interview by Wolf Blitzer, CNN Late Edition, 9/8/02.
8. The Times, 10/3/04.
9. Associated Press, 10/3/04, reporting an interview on ABC's "This Week;" http://abcnews.go.com/Politics/wireStory?id=134387
10. The New York Times, 9/21/04.
11. The Times, 9/28/04.
October 17, 2004
In August we learned that the government had decided to release Yaser Hamdi, bringing the story of his imprisonment to an anticlimactic end, leaving unresolved many of the issues raised by the application of the enemy-combatant label to citizens.
Hamdi's release was described as "tremendously embarrassing to the government," which it is: despite the administration's attempt to spin the event, it is a retreat. On the other hand, the Supreme Court's decision, which presumably led to the change of position, was called "an important legal victory for the government because the Supreme Court ruled that the government still has the authority to detain U.S. citizens as enemy combatants, even if they can challenge the detentions."1 That also is true. The meeting point of those opposing views is the potential hearing on the challenge; the government apparently could not prove that Hamdi was an enemy combatant, even though the Court accepted its definition of that term and hardly was demanding as to the burden of proof.
Hamdi was expected to be released promptly and returned to his home in Saudi Arabia. However, the government attached list of conditions to the release, one of which was that he was not to leave that country for five years. The Saudi government balked and pointed out that it was being asked to enforce an agreement to which it is not a party and the premise of which is elusive. A Saudi representative asked, reasonably, "If he has not committed a crime ... why are the conditions in place?"2
Hamdi finally was sent home on October 11. Upon arriving at Riyadh, he complied with one of the conditions by renouncing his American citizenship. Presumably he has satisfied another, agreeing not to sue the U.S. for his illegal imprisonment. The State Department claimed that the release finally had taken place because Saudi Arabia had accepted the other conditions, and that the key to ending the delay was "making the Saudis feel comfortable with the terms of the deal, making them understand the arrangements and know what we were requiring of him." More likely Hamdi was sent home because the District Court for the Eastern District of Virginia, to which his case had been remanded, ordered that Hamdi be produced in court on October 12 unless he had been released and had arrived in Saudi Arabia by October 11.3
The Saudis may or may not impose the travel restrictions which made up most of the remaining conditions. They appeared to be primarily face-saving boilerplate to begin with.
___________________
1. Both quotes from The Washington Post, 9/23/04.
2. CNN.com, 9/29/04; also MSNBC.com (Associated Press), 9/30/04.
3. Order entered October 11; http://notablecases.vaed.uscourts.gov/2:02-cv-00439/docs/70250/0.pdf
October 20, 2004
I have reached the point in my life when I should be reading great novels, listening to classical music, traveling, and reminiscing with old friends. Instead I spend my waking hours worrying about the future of the republic, specifically whether the voters will, in a burst of thoughtlessness, deliver its future into the hands of a gang who are ideologically driven, frequently incompetent and routinely dishonest.
In a lecture two weeks ago, Brewster Denny, former Dean of the UW Graduate School of Public Affairs, referred to an observation of Jefferson's which is apt and ominous: "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." Jefferson expanded on the risk, and proposed a solution:
The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves; nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe.1
The media, which have been enablers of Bush's agenda, also have aided in burnishing his personal image. Currently they do this by reporting his campaign rallies as if they were real-world events. Mr. Bush is described and shown surrounded by admiring, enthusiastic people who cheer his every word. If these were honest public appearances, attended by ordinary people, that would be appropriate, but they are staged events before carefully screened audiences, and ought to be ignored. Instead the media reinforce the image that Mr. Bush is a man of the people, who adore him.
Such images are important; apart from them, the President's campaign material is limited. His supporters have had little to say about his record at any time during the campaign. Indeed his record is the last thing they want anyone to consider, so the strategy, apart from making carefully nonspecific claims that Bush will keep us safe, has been to attack Kerry.
An example of that approach was found on the op-ed page of Monday's New York Times. William Safire repeated the already tired accusation that the Senator did something rude in mentioning Mary Cheney's sexual orientation. For good measure, Mr. Safire attacked Senator Edwards for having done so during the vice-presidential debate. This feigned outrage is simply the latest diversion.
By contrast, Bob Herbert's column on the same page described the situation in Iraq, which raises actual issues: Should we have invaded? What, truthfully, is the present situation? What should be done to improve that situation and to work toward withdrawal of our troops? However, those are so tiresomely substantive; throwing mud is more fun.
Republican campaign ads in local races reflect that choice. Some of the worst have been directed at Dave Ross, the Democratic candidate for Congress from the 8th District. I had supposed that "socialized medicine" had become too laughable to be useful as an slur, but no; we received a flyer last week accusing Mr. Ross of advocating that awful system. To be sure we didn't miss the point, that this is unamerican, it included a picture of a Soviet officer. This week a TV ad accused Ross of waving a white flag in the war on terrorism; he wants - can you believe it? - to cut $100 billion from defense funding in the midst of that "war." Never mind that the spending he wants to cut, over time, is for the missile defense system which, even if it worked, would have nothing to do with defeating terrorism.
We might suppose that the possibility of losing the 8th for the first time has made the GOP come unhinged. However, the Senate race follows the same pattern: an attack ad implies that Senator Murray also is soft on terrorism. This obviously is the new soft-on-communism; Republicans really have only a very few ideas.
Actually, finding ideas among these accusations is being too generous. Despite their pretensions to the contrary, Republicans often still validate Lionel Trilling's appraisal in 1950: "the conservative impulse & the reactionary impulse do not, with some isolated & some ecclesiastical exceptions, express themselves in ideas but only in action or in irritable mental gestures which seek to resemble ideas."2
____________________
1. Entire quote from a letter to Colonel Charles Yancey, January 6, 1816; www.bartleby.com/73/492.html
2. The Liberal Imagination, p. ix.
October 23, 2004
The connection between religious belief and the Bush presidency has been the subject of much speculation. There are numerous anecdotal accounts of the effect of religious belief on President Bush's decisions, some of which, assuming that he actually is deciding anything, are scary.
The influence of religious belief on his popular support is equally intriguing. My impression is that his more outspoken religious followers have more political beliefs than religious ones and that neither bears much resemblance to Christian principles.1 They use a strangely truncated Bible, consisting of Pentateuch, selected warnings from the prophets and Revelation.
A recent article by Ron Suskind indicates that religion is indeed a factor both in Bush's decision-making process and in his political support. As to the former, Suskind quotes Bruce Bartlett: Bush "truly believes he's on a mission from God." Leaving aside whether that is an exaggeration or even a misreading, Bartlett's conclusion about its effect rings true: "Absolute faith like that overwhelms a need for analysis. The whole thing about faith is to believe things for which there is no empirical evidence. . . ." Disdain for empirical evidence does seem to lie at the heart of the administration's actions and its supporters' beliefs.
Suskind quotes an unidentified White House source who puts this view in imperial rather than religious terms:
The aide said that guys like me were ''in what we call the reality- based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality. . . . That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality . . . we'll act again, creating other new realities . . . "2
I had been reluctant, and I thought that PIPA's analysts had been reluctant, to conclude that Bush supporters simply lived in another world from the rest of us. However, the title of the current study is "The Separate Realities of Bush and Kerry Supporters," which says it all: Kerry supporters' views correspond to known facts, Bush supporters' views are at sharp variance form them.
As in the previous study, three results stand out: Bush supporters are mistaken about significant facts, such as WMD in Iraq or its connection with al Qaeda; they are mistaken as to what experts, such as David Kay and Charles Duelfer, and the 9-11 Commission have found; they attribute to Mr. Bush views which match their own but which he does not hold, such as support for Kyoto. By contrast, Kerry supporters have those facts straight.
These worlds intersect at two points. Majorities of both groups think that Bush is now claiming that Iraq had WMD just before the invasion, that he claimed before the war that there was a close connection between Iraq and al Qaeda, and that he is claiming now that there is clear evidence of that connection. Bush supporters agree with Kerry supporters that, if Iraq did not have WMD and was not providing support to al Qaeda, we should not have invaded. However, continuing the projection of their views, Bush supporters believe that he would not have gone to war under those facts; Kerry supporters know better.
There are ample signs that religious belief in some way inclines many people to opt for Bush's separate reality. However, we also are witnessing the successful efforts of a Ministry of Truth on a population which is frightened, patriotic, nationalistic and uninformed.
____________________
1. I omit here those who will vote for Bush because of abortion; that issue seems to me to be a special case.
2. The New York Times Magazine, 10/17/04.
3. October 21, 2004; http://pipa.org/OnlineReports/Pres_Election_04/Report10_21_04.pdf
October 29, 2004
One aspect of the separate-reality phenomenon is that there appear to be two George W. Bushes. The one I see bears no resemblance to the one described by many people.
One theory is that two Bushes have existed serially. Richard Cohen, in a recent column, spoke of the vanishing president. He found the one at the debates to be "wooden, ill at ease and downright spooky" and contrasted that Bush with "the funny, good-natured regular guy I once saw on the campaign trail - a man of surprisingly quick wit and just plain likability."1 If Mr. Bush has those characteristics in private or in some more informal setting, something happens when the camera is turned on to make him alternately baffled and smug, inane and shifty. However, the contrast Mr. Cohen sees is not primarily between the private and public man, but between the earlier and later. The Bush I've seen never has had the positive characteristics Mr. Cohen and others talk about, but certainly his televised appearances have been worse this year than before. He was weak, to say nothing of strange, in the debates, but he's been pretty bad even in his campaign appearances in front of carefully selected audiences of Stepford Republicans.
It's easy to see why his managers want newspaper photos or TV news reports to show him surrounded by the faithful. (The New York Times cooperated again on Wednesday with a page-one picture of Bush, in the midst of a crowd, holding a supporter's child.) If a TV clip shows Mr. Bush delivering his speech, it's not an inspiring sight. When he comes to a punch line, he leans forward on the lectern, turns a little to the right, smirks, and says something dumb, false or both.
The mannerisms are his, but the punch lines aren't. Each time Mr. Bush has been shown speaking since the debates, he's used a script. His inability to deliver a pep talk to a handpicked audience without having it written out for him gives credence to the story that he wore a receiver at the first debate. Now there are web sites featuring pictures supposedly showing suspicious bulges at all of the debates and on other occasions. As far-fetched as the story seems, his implausible explanation, that it's a badly tailored shirt, only encourages the speculation. However, his performance at the debates hardly indicates helpful off-stage prompting; as someone said, if he was wearing a wire, the guy on the other end must have been a Democrat.
Mr. Bush is getting half of the votes in the polls. Obviously a lot of people see a different man than I do.
_____________________
1. The Washington Post, 10/15/04.
October 31, 2004
One of the ironies of the presidential campaign is that, in several ways, Mr. Bush's failures have given him an advantage.
The first is that he has created problems which are insoluble in the short term, thereby making it next to impossible to propose a sensible alternative. Iraq obviously is the prime instance. Simply starting a war would lock in any successor to some degree, but bungling the war, creating a morass from which there is no short or easy way out, essentially commits the opponent to agreeing to stay the course. The same is true of the budget. By running massive deficits, the President has made it impossible for Mr. Kerry to propose any sensible program. He ends up copying Mr. Bush's implausible formula: a promise to cut the deficit in half in five years while adding benefits. The greater the failure, the more the incumbent co-opts the challenger.
Another instance also involves Iraq. Greg Thielmann was interviewed on NOW on Friday. After discussing the many distortions of intelligence involved in taking the country to war, he described one of the reasons that people, even now, accept obvious untruths, such as Iraq's involvement in 9-11: they have a desire to believe their president; the notion that he would knowingly or even negligently mislead us about the reasons for sending Americans to risk their lives is too awful to contemplate, so many accept the administration's distorted portrayal, back the war and think George Bush is a strong leader because the alternative is too shocking.
Then we have the October surprise. The former version of this scenario was that Osama bin Laden would be produced about now, perhaps having been caught earlier but saved for the final run to election day. Instead, bin Laden gave us the surprise unaided, in the form of a tape which rubs Mr. Bush's nose in 9-11:
It never occurred to us that the commander in chief of the American forces would leave 50,000 citizens in the two towers to face those horrors alone at a time when they most needed him because he thought listening to a child discussing her goat and its ramming was more important than the planes and their ramming of the skyscrapers. This gave us three times the time needed to carry out the operations, thanks be to God.1
The October surprise may yet help the President, if people rally around because of a reminder of the threat or punish bin Laden by voting for his target. It should, instead, be the end of Mr. Bush's claim to be our bulwark against terrorism, a reminder that 9-11 happened on his watch. Whether he can be faulted for that is beside the point: he has run as our protector and has no credential other than the supremely ironic one of having failed.
_____________________
1. The Washington Post, 10/30/04, translation by Reuters; www.washingtonpost.com/wp-dyn/articles/A10079-2004Oct29.html A slightly different translation appeared in The Seattle P-I, from Associated Press.
On November 8, a judge of the District Court for the District of Columbia ruled, in a case involving a Guantánamo detainee, that the military commissions created by President Bush three years ago can be used to try charges of war crimes only if it has been determined, by a competent tribunal, that the accused is not a prisoner of war. If he is entitled to POW status, or if that determination has not been made, he must be tried by court martial. In addition, any trial before a military commission, as now constituted, would be void because the rules allow the government to exclude the accused from sessions in which classified evidence is presented.1
The decision depends on the application of the Geneva Conventions, which establish the significance of POW status and the procedure necessary for determining it. It also involves interpretation of Quirin.2 Whether the District Court's analysis of these issues will persuade an appellate court is anyone's guess.
In addition to arguing against the application of the Geneva Conventions, the government attempted to finesse the POW issue. The first step was to establish that Hamdan was part of al Qaeda; for this the government pointed to the decision of a Combatant Status Review Tribunal (CSRT) that Hamdan was "either a member of or affiliated with Al Qaeda." From there, the argument proceeded to the President's blanket declaration that al Qaeda members aren't entitled to POW status. The Court rejected this, holding that the CSRT, a sham tribunal formed after the Supreme Court's decision in Rasul, was not established to address detainees' status under the Geneva Conventions, but rather to decide whether the prisoner is an "enemy combatant" and therefore subject to indefinite detention.
The interpretation of Quirin and the application of the Geneva Conventions may be subject to legitimate debate, but the basic ruling should surprise no one. Although the Department of Defense adopted rules which in many ways brought the President's original military-commission concept closer to legitimacy, exclusion from trial, in aid of using secret evidence, is too blatantly unfair to ignore.
Technically, the issue is raised by 10 U.S.C. § 836, part of the Uniform Code of Military Justice (UCMJ). That section authorizes the President to prescribe regulations for the conduct of military commissions, subject to two limitations. The first is that such regulations shall, "so far as [the President] considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts...." President Bush, in the order creating the commissions, declared, with no explanation, that those rules were "not practicable." The Court did not rest its decision on that part of the order.
The second limitation set out in § 836 is that the rules established by the President "may not be contrary to or inconsistent with this chapter," i.e., with the UCMJ. The District Court found that exclusion from trial conflicted with the UCMJ, which gives the accused the right to be present at all times, and in effect held that this was so fundamental a right, implicating the ability to provide an adequate defense, that the commission procedures were "contrary to and inconsistent with" the UCMJ.
Hamdan had been held in isolation from December, 2003 until just before the hearing. Apart from the harshness of the treatment, this also affected his ability to assist his lawyer. The issue was partially resolved by the government's releasing Hamdan from solitary but transferring him to a "pre-Commission detention wing" of the prison. The Court ordered that he be returned to the general prison population.
The Court also should have found the commission's rules for appeal invalid. They provide for an advisory panel of civilians, but leave final decision to the President or his designee, a poor substitute for judicial review, as required for courts martial. The Court listed but did not discuss numerous other differences. In the aggregate, they also seem inconsistent with the UCMJ, but it is not clear whether they were put in issue.
In a nice coincidence, Alberto Gonzales was nominated on November 10 to be the new Attorney General. Mr. Gonzales, who argued deceitfully in support of the military commission order in its original, far more unjust form,3 also was a major contributor to the concept of unlimited inherent presidential power, which led to the justification of torture. In addition to being in the midst of the discussions of bending the rules, Mr. Gonzales authored a memo of January 25, 20024 which advised the President that one of the advantages of declaring that the Geneva Conventions do not apply to al Qaeda and the Taliban is that it [s]ubstantially reduces the threat of . . . prosecution under the War Crimes Act . . . ."
The decision in Hamdan is a repudiation of Gonzales' legal philosophy, if sycophantic manipulation of the law can be so described, and of his prediction that the President could foreclose any reconsideration of the POW issue.
The Senate should refuse to consent to his nomination. That presumably is impossible given the Republican majority, but a vigorous opposition should be mounted. What better opportunity to demonstrate to the nation the sort of people who are running its government? Instead, early reaction, including comments by Senators Leahy and Biden, indicate that confirmation will follow with little difficulty. The Democrats apparently are anxious to demonstrate that Ralph Nader was right.
___________________
1. Hamdan v. Rumsfeld, DCDC case 04-1519; http://www.dcd.uscourts.gov/04-1519.pdf
2. Ex Parte Quirin, 317 U.S. 1 (1942).
3. See my note of December 4, 2001
4. http://wid.ap.org/documents/doj/gonzales.pdf
November 17, 2004
The Combatant Status Review Tribunal referred to in Hamdan v. Rumsfeld 1 has an interesting history. On June 28, Rasul v. Bush held that prisoners at Guantánamo are entitled to challenge their detention. Hamdi v. Rumsfeld, decided the same day, held that a citizen detained as an enemy combatant is entitled to a hearing to determine whether he is properly so classified, but that the hearing may be conducted by a military tribunal. The government has combined the two.
In Hamdi, the Court's concept of due process for an accused enemy combatant is forgiving in the extreme. The government may hold a person so labeled indefinitely. It need not define "enemy combatant" in any meaningful way. It must allow a prisoner to challenge his enemy-combatant status, but that may be before a military tribunal; the Court even hinted that the government might want to look at a certain Army regulation as a model. The tribunal may presume the government's contentions to be correct, and may rely on hearsay, including conclusory hearsay like the Mobbs declaration.
Even the Department of Defense was able to interpret this intelligence. If a military tribunal operating under government-friendly rules is acceptable for a citizen, it certainly must be adequate for aliens. On July 7, Paul Wolfowitz signed an order creating a Combatant Status Review Tribunal to determine whether prisoners at Guantánamo are enemy combatants. A "fact sheet" issued at the same time2 blends the two Court decisions and the regulation referred to in Hamdi, Army Regulation 190-8,3 into a rationale for the tribunals. Of course, Rasul contemplated habeas corpus review. The government satisfies the formalities by notifying each prisoners that "the United States Courts have jurisdiction to consider petitions brought by enemy combatants held at this facility that challenge the legality of their detention." The notice adds the warning that "the Combatant Status Review Tribunal will still review your status as an enemy combatant." Legal representation is not provided. No doubt the detainess all clearly understand their rights.
Rules for the Guantánamo tribunals were issued on July 29 which generally follow Regulation 190-8 as to procedure. However, 190-8 was designed for a different purpose. It makes no mention of "enemy combatants." It is based upon the Geneva Conventions, which the government refuses to apply. It is designed to determine whether detainess fall into certain categories, including prisoners of war, a classification the government refuses to recognize.
Guantánamo tribunals may receive classified evidence, which the prisoner may not see or hear. The prisoner is assigned a military "representative," but no lawyer. 4 Regulation 190-8 is similar on these points. It provides that proof shall be by a preponderance of the evidence.5 The Guantánamo rules give lip service to that concept but, taking the Court's suggestion, specify that the government's evidence shall be presumptively "genuine and accurate."6
This process is a sham. The government already has determined that each of the respondents is an enemy combatant;7 the commission's task is to rubber-stamp that, which it has done; of 104 decisions, 103 have found the prisoner to be an enemy combatant.8
That term, if used as defined in Quirin, would encompass legal combatants, who are required to be treated as prisoners of war, and illegal combatants, who would be subject to prosecution for war crimes. Reports to date indicate that few will be prosecuted, but, in denying POW status, the government implies that all of the detainees are war criminals. However, that may be nothing more than a PR exercise. There is speculation that the government needs to find the detainees to be enemy combatants in order to justify their detention. Many then would be released, but the government can pretend that it is being merciful. "One official said that approach would allow the military to assert that most of the detainees were not wrongfully imprisoned, but it would also provide a solution for the administration's desire not to hold such a large number for years."9 If so, the present hearings are a farce as well as a sham. The Supreme Court must be proud of its work.
______________________
1. See note of November 12.
2. "Combatant Status Review Tribunals"; www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf
3. "Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees"; www.cdi.org/news/law/190-8.pdf
4. "Combatant Status Review Tribunal Process" § F. (3), (8); C(3).(7/29/04); www.defenselink.mil/news/Jul2004/d20040730comb.pdf
5. Ibid, § 1-6e.(9), p. 3.
6. Ibid, § G. (11). See "Order Establishing Combatant Status Review Tribunal" § g.(12), www.defenselink.mil/news/Jul2004/d20040707review.pdf
7. Order Establishing Combatant Status Review Tribunal, § a; Combatant Status Review Process, § B.
8. The Los Angeles Times, 11/7/04; The New York Times, 11/8/04.
9. The New York Times, 11/8/04.
November 30, 2004
During his testimony to the Senate Banking Committee on February 12, Alan Greenspan said that Social Security benefits might have to be cut to bring the deficit under control. That seemed to be news. The Seattle Times treated it as such, in a front-page story the following day under a headline pointing to the Social Security issue. In The New York Times, the story rated page C3, and the only reference to Social Security was a passing mention in paragraph 11. There was no report on the main page of the online edition of The Washington Post; a search turned up an article referring to Social Security in paragraphs 15 and 16.
Apparently repetition is necessary to attract the attention of our national guardians. After Mr. Greenspan offered the same advice to the House Budget Committee on February 25, The NY Times and The Post managed to get the point and ran front-page stories.
President Bush has pretended that he will "protect" or "save" Social Security while asking for repeated, massive tax cuts. Greenspan, who is more honest if no more enlightened, said that making the tax cuts permanent is good policy, but we'll have to reduce Social Security benefits to pay for them. It seemed possible that the national media's awareness of the issue combined with Greenspan's candor might wake people up to what's afoot. In a column in The Post the day after the second hearing, E.J. Dionne speculated that "Greenspan did something no Democrat could do: He made Social Security an issue in the 2004 election." Mr. Dionne hoped that we would have a debate over our priorities: tax cuts for the rich or preservation of promised retirement benefits. Unfortunately, that did not happen and Bush continues to prattle about protecting Social Security while planning its demise.
Mr. Bush's plan is to allow individuals to invest part of their payroll taxes in private accounts. Because allowing the diversion of some of the payroll tax would reduce the cash flow into the system, and because the tax revenue is needed to pay benefits, preserving those benefits would cost a ton of money. Bush has refused to address that problem and generally has pretended that it doesn't exist. Now that he has his supposed mandate, he wants to move forward with privatization, so the problem must be faced - or maybe not. Because the budget already is in massive deficit, the government must borrow the money necessary to pay the cost of privatization, but the current speculation is that the cost will be relegated to an off-budget account so that it won't affect the official deficit.1 This is a nice bit of sleight of hand: the Social Security surplus lowers the deficit but these costs won't be allowed to increase it.
Where will that money come from? We already are running out of sources; will lenders, especially the foreign lenders on whom we are now so dependant, choose to fund our further descent toward national bankruptcy? Possibly recognizing that problem, some Republicans in Congress are hesitantly acknowledging that it won't be possible to borrow all of the cost, so benefits will be cut and/or taxes raised. No one has specified the tax to be increased, but the logical choice is the payroll tax. If that turns out to be the case, workers will have diverted part of their payroll tax to private investment, only to have the tax increased, possibly leaving them paying as much for less in future Social Security benefits. They will have added a private investment program, but they could have done that without our messing up Social Security.
It is a mystery to me why Alan Greenspan is treated with such deference and respect. His record in managing the monetary system is good but hardly perfect. His public pronouncements are described as Delphic, which is a kind way of saying that they are either evasive or muddled; neither is a recommendation for following his advice. He occupies a powerful, independent and unaccountable position, which imposes on him a duty of nonpartisan objectivity, but instead he has become an apologist for the Bush administration's obsession with cutting taxes. He even has followed the leader in altering his rationale to suit the circumstances.
But the principal reason that no one should again pay any attention to Mr. Greenspan is his complicity in what Paul Krugman has aptly termed The Greenspan/Bush Social Security Scam. Following the recommendations of a commission chaired by Mr. Greenspan, the regressive payroll tax was increased in the mid-eighties. Workers were told that the additional revenue would cover the increased cost of pensions when the baby boomers retired. As a result of the increase, the Social Security trust fund has built up a large surplus, which has masked the condition of the general fund and has made tax cuts easier to sell.
The surplus is "invested" in government bonds, which means that the Social Security reserve against those boomer pensions is only as meaningful as the willingness and ability of the government to repay its borrowings from the fund. The administration already has jeopardized that repayment by running up the deficit and debt through tax cuts; now it wants to set up private accounts, which will add to the debt and, gimmicks or not, to the deficit. For good measure, the administration wants additional tax cuts, which will add still more red ink.
Every addition to deficit and debt increases the likelihood that the government will default on its obligation to repay the Social Security trust fund, and that the benefit cuts being discussed are only the opening wedge. Those additional payroll taxes will not have secured future pensions; instead, they merely will have shifted the tax burden downward.
If the government were honest, its first priority would be ensuring enough revenue to repay its borrowings from the trust fund; then it could consider what adjustments might be needed to deal with any remaining shortfall. Instead it is overstating the future Social Security deficit (to frighten people into accepting its "cure"), ignoring the general-fund deficit, pretending that taking money from the fund adds to it and exempting the wealthy from their fair share of taxation.
George Bush is, ironically, telling the truth when he says that Social Security is in trouble. What he doesn't say is that he is the menace.
______________________
1. Richard W. Stevenson, "Bush's Plan Is Said to Require Vast Borrowing," The New York Times, 11/28/04.
In the course of analyzing their inability to win presidential elections, Democrats are re-examining both their message and their ability to communicate it successfully. It turns out that the administration has engaged in a similar exercise as to its failure to win hearts and minds in the Muslim world.
The results of that inquiry are contained in a document dated September, 2004 and entitled Report of the Defense Science Board Task Force on Strategic Communication. 1 The Report discusses the necessity of effectively communicating U.S. policy and principles, finds that the government has failed to do so, and offers suggestions, including detailed and ambitious organizational changes, to remedy that deficiency.
The Report is a difficult document to characterize or even summarize. It concludes that the image of America in the Muslim world is negative, and that we lack credibility. "Policies will not succeed unless they are communicated to global and domestic audiences in ways that are credible . . . ; messages should seek to reduce, not increase, perceptions of arrogance, opportunism, and double standards." "To be effective, strategic communicators must understand attitudes and cultures . . . To be persuasive, they must be credible." However, the Report can't quite make up its mind whether our policies are wrong or whether the problem is one of attitude, organization and method.
One criticism which might fall into either category is that certain ways of thinking became entrenched during the cold war and did not change after it ended. Indeed, the Report claims, a result of victory in that contest was that "the Cold War template was almost mythically anointed." Following 9/11, the government "reflexively inclined toward Cold War-style responses to the new threat, without a thought or a care as to whether these were the best responses to a very different strategic situation." The Report lists passage of The Patriot Act and creation of The Department of Homeland Security as instances of that reaction. The fixation on national enemies, leading to the invasion of Iraq, would be a better example, and elsewhere the Report does note that mindset: "We must think in terms of global networks, both government and non-government. If we continue to concentrate primarily on states ('getting it right' in Iraq, managing the next state conflict better), we will fail."
The cold-war paradigm also has led to misjudging the condition and aspirations of Muslim peoples: "There is no yearning-to-be-liberated-by-the-U.S. groundswell among Muslim societies - except to be liberated perhaps from what they see as apostate tyrannies that the U.S. so determinedly promotes and defends." [Italics in original] The last sentence emphasizes a point made elsewhere in the Report, that our support for repressive Muslim regimes is a strategic mistake. And there are others: "U.S. policies on Israeli-Palestinian issues and Iraq in 2003-2004 have damaged America's credibility and power to persuade."
These errors are summed up in statement which also clears away some of the rhetorical underbrush:
Muslims do not "hate our freedom," but rather, they hate our policies. The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the longstanding, even increasing support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan, and the Gulf states.
Thus when American public diplomacy talks about bringing democracy to Islamic societies, this is seen as no more than self-serving hypocrisy. . . .
Viewing our present situation in terms of a war on terrorism also is an echo of the cold war. The discussion here falls into jargon, as does much of the document.
The Global War on Terrorism replaced the Cold War as a national security meta narrative. Governments, media, and publics use the terrorism frame for cognitive, evaluative, and communication purposes. . . .
. . . But like the Cold War frame, the terrorism frame marginalizes other significant issues and problems. . . . The focus is more on capturing and killing terrorists than attitudinal, political, and economic forces that are the underlying source of threats and opportunities in national security.
The Report's attempt to expand on that theory is not a model of clarity. The global war of ideas is reduced to a struggle primarily within Islam, into which we must intervene. "Islam's crisis must be understood as a contest of ideas and engaged accordingly." "[T]he larger goals of U.S. strategy depend on separating the vast majority of non-violent Muslims from the radical-militant Islamist-Jihadists." It may be that we are to effect this separation by encouraging modernization; the Report states that "the United States today is seeking to convert a broad movement within Islamic civilization to accept the value structure of Western Modernity - an agenda hidden within the official rubric of a 'War on Terrorism.' " That doesn't sound approving, but buried in a long section on methodology are comments which indicate that we should, in fact, be encouraging adoption - or at least reinforcing any tendency to favor - Western values. Those are defined at one point as "personal control, choice and change, personal mobility, meritocracy, individual rights (and, particularly, women's rights)" but at another more hesitantly as "moderation" and "tolerance" [quotation marks in the original].
Although in one place the Report disavows any intention to impose "the American way of life," in another it proposes recruiting people from the private sector to "articulate American values." The Report refers to "the enemy," but it's not clear who that is; in one passage, al Qaeda is identified, but elsewhere it may be "radical Islam."
These inconsistencies, and differences in style, suggest authorship by committee. So does an ambivalent attitude toward current administration policy. Many of the comments are critical, but others follow the administration line. For example, the embedding of reporters is described as an exercise in "transparency" and it is claimed that embedding helped prevent Iraqi "disinformation" about civilian casualties that could have undermined support for the war.
The Report is a confused statement, the confusion perhaps traceable to differing agendas among the authors but also to the decision to state the issue in terms of a war of ideas. That was not an original formulation - the Report refers to the use of the phrase by Donald Rumsfeld and Condoleezza Rice - nor is it a productive one. The difficulty the authors have in defining the ideas we are fighting for is one problem, but whether the ideas are fuzzy or clear, an ideological foreign policy is dangerous and, ironically, is another carryover from the cold war.
______________
1. www.acq.osd.mil/dsb/reports/2004-09-Strategic_Communication.pdf
December 13, 2004
Apparently the official rationale for the invasion of Iraq still is more or less what it was in early 2003: Iraq's WMD, which might be passed to terrorists. The latest statement I could find on the White House web site is the President's brief response on October 7 to the Duelfer report. Mr. Bush acknowledged that "Iraq did not have the weapons that our intelligence believed were there." However, in his imaginative interpretation of the report, Saddam Hussein "retained the knowledge, the materials, the means, and the intent to produce weapons of mass destruction. And he could have passed that knowledge on to our terrorist enemies."
If the President ever is forced to drop the weapons rationale, and is stumped for an alternative excuse, he might be tempted to turn to Thomas Friedman for suggestions. Mr. Friedman was an early advocate of the liberation-and-beacon-of-democracy scenario, which Mr. Bush falls back on from time to time. However, death, destruction and chaos are making that a little tough to recite with a straight face, so Mr. Friedman has a new one.
His column of December 9 started off with a skeptical observation about the new intelligence structure. As he noted, another layer of bureaucracy isn't likely to lead to better work. He wants more people "on the ground" who speak the relevant languages, which probably is a good idea. Of course, given the President's ability to find in intelligence reports whatever he wishes to find, better information is irrelevant. However, that doesn’t matter; facts are equally unimportant to Mr. Friedman’s new theory.
He thinks that if, years ago, we had deployed those Arabic-speaking agents, they would have discovered "people of mass destruction" in Iraq. This clever formulation refers to the present-day violent insurgents who were, he tells us, created as such by the U.N. sanctions, operating on a society already damaged by the repressive Hussein regime, the war with Iran and the first Gulf War. Thus his conclusion: we should have invaded ten years ago, to prevent their becoming terrorists. The President should like this; call it the better-late-than-never theory.
According to Mr. Friedman, an earlier invasion would have prevented youngsters from growing up with bad attitudes, inclined to do - what? Participate in 9-11? Well, no. Their supposed turn to the dark side led them to attacking us when we finally did get around to invading. Here's a thought: maybe it's our presence in Iraq that's the problem, not the psychological effect of sanctions. It may not be only the damaged present generation that would resent a pack of Westerners blowing up their cities, killing their neighbors, maiming their children and, as a bonus, declaring that they must adopt our form of government; an invasion at an earlier time might have prompted a similar response. The methods of some of the insurgents - kidnaping, execution of innocent prisoners, suicide bombings which kill civilians - are barbaric, and the motivation of the insurgency may go beyond merely throwing the occupiers out, but the fact remains that all of this has come to pass in the wake of our invasion.
Mr. Friedman's cure looks a lot like a disease, but that would fit right in.
One of the ambiguities of the Report of the Defense Science Board Task Force on Strategic Communication 1 is its attitude toward disinformation. It notes that the Pentagon’s Office of Strategic Influence was closed amid allegations that it intended to place lies and disinformation in foreign media organizations but does not express any disapproval of its aims. The Report recommends that public diplomacy be coordinated with psychological operations (PSYOP) and open military information operations. Exactly what open means here is not clear to me, but the Report tells us that information operations is a term used by the Defense Department to include Computer Network Operations (Computer Network Attack and Defense), Electronic Warfare, Operational Security, Military Deception, and PSYOP. Coordinating them with public diplomacy, which the Report elsewhere declares must be credible, suggests that the credibility is to be apparent but not necessarily real, that information is to be just another weapon. An article in The New York Times on December 13 states that this is in fact the plan.
The Times article 1 describes a study conducted by the National Defense University which proposes creating an Orwellian director of central information. The director would have authority over messages "across all the government operations that deal with national security and foreign policy. Lip service is paid to separating military disinformation from accurate public information, but the potential for merging the two and managing the news is obvious, and is underscored by a comment by Lawrence DiRita, spokesman for the Pentagon, that military officers are the face of the United States abroad.
Of course, we don’t get accurate and honest information about national security now, so how much difference can it make?
__________________
1. See note of December 8.
2. Shanker & Schmitt, Hearts and Minds, 12/13/04.
December 18, 2004
"The White House seems to have slipped the bonds of simple denial and escaped into the disturbing realm of utter delusion." This pertinent observation was the opening of a recent column by Bob Herbert,1 prompted by the farce performed last Tuesday: presentation of The Presidential Medal of Freedom to three of the architects of the invasion and occupation of Iraq, an adventure which has little to do with freedom and is a disaster by any measure.
Mr. Herbert also illustrated the "disconnect between the White House's fantasyland and the world of war in Iraq" by juxtaposing two headlines from the front page of the December 10 New York Times: "It's Inauguration Time Again, and Access Still Has Its Price - $250,000 Buys Lunch With President and More" and "Armor Scarce for Heavy Trucks Transporting U.S. Cargo in Iraq."
He mentioned other indications of the administration's descent into fantasy, such as the nominations of Bernard Kerick and Alberto Gonzales. In the former, the New York - 9/11 image was so dazzling that common sense and careful vetting were forgotten. The latter is, of course, primarily an indication of the administration's lack of principle and contempt for the law and the Constitution. However, nominating someone so ethically unqualified while presenting itself as the protector of moral values does suggest detachment from reality.
Meanwhile, the news pages provided another instance of the Times' determination not to be accused of an unseemly degree of liberalism. In an article noting the retirement of Bill Moyers from PBS, David Carr led with this snide observation: " Bill Moyers, a preacher turned journalist . . . has veered back to the pulpit in announcing his retirement from 'Now With Bill Moyers' . . . ." 2 The "jeremiad" which so annoyed Mr. Carr was an advance copy of a report broadcast Friday during Mr. Moyers' last program; the subject was the capture of much of the media by the corporate-political right. "The gospel of Mr. Moyers - an unreconstructed progressive - warns against the danger of media consolidation, the growing links between conservative government and conservative media and the threat of information control by government." Yes, happily for the future of the Republic, it does. Apparently that is a point of view as surprising to Mr. Carr as it is unwelcome.
Carr offers quotes in praise and criticism of Moyers. Perhaps because of what he considers to be Moyers' "tendentiousness in choice of targets," he turns for negative comment to sources who fairly might be described in similar terms. One is conservative columnist, liberal-media scourge and family-values monitor L. Brent Bozell III, who is quoted as saying, "I think that if Bill Moyers is trying to go out as the Michael Moore of television, he ought to be congratulated, because he has succeeded. I think he has gone off the deep end." The other source is a column by Lowell Ponte, from which Carr extracts a description of Moyers as "sweater-wearing pundit who delivered socialist and neo-Marxist propaganda with a soft Texas accent."3 The rest of Ponte's column (which also quotes Bozell) is a mixture of personal attacks and complaints that Moyers, by interjecting his opinions, doesn't play by the rules of journalism. Considering the practices of the right-wing media, the latter is sufficiently ironic standing alone, and made more so by a comment on Moyers' final broadcast. One of his guests, Richard Viguerie, defended the conservative media's practice of offering opinion, not facts; in his view they shouldn't be bound by "liberal" rules of objectivity.
Perhaps with the departure of Bill Moyers, we will hear the last complaint about the liberal media; he was one of the few liberal voices remaining. Not likely, though; slogans are more important than facts.
_________________
1. The New York Times, 12/17/04.
2. "Moyers Leaves a Public Affairs Pulpit With Sermons to Spare," 12/17/04.
3. "Adieu to Bill Moyers," www.frontpagemag.com/Articles/ReadArticle.asp?ID=16309
December 31, 2004
Three items from the news sum up this interesting year. The administration, having been labeled insensitive and stingy in its reaction to the disaster in Southeast Asia, finally has pledged a larger sum in relief than will be spent on the inaugural festivities. The Republicans in the House propose to deal with Tom DeLay's ethical violations by changing the rules to remove any sting from such violations and replacing the chairman of the ethics committee. ABC News, as part of a report on the ethically problematic gifts received by Justice Thomas, sought comment from John Yoo, whose most notable contribution to the theory of government lies in the area of avoidance of moral standards and personal responsibility.
