Grasping Reality with Both Hands

Can We Please Never Forget How Bad a President Bush Was?

Outsourced to Josh Micah Marshall:

Talking Points Memo | Us Too!: Frances Townsend, President Bush's counter-terrorism coordinator was just on CNN talking about closing Gitmo. And from how she tells it, there's really no difference. Obama wants to close it. But Bush did too. Only it 'didn't happen'.

We'll grab the video so you can see.

A Republic--If We Can Keep It. Happy Fourth of July

The Honorable Vaughan R. Walker:

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

The Justice Department... citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program. But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims.... He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

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

In Which We Rue the Confirmation of Roberts and Alito...

Hilzoy writes:

Obsidian Wings: Boumediene For Dummies: [T]he Supreme Court has ruled in Boumedienne et al v. Bush.... Boumediene and the other petitioners are detainees at Guantanamo. They want to know: do they have the right to file a writ of habeas corpus -- that is, to ask the government to justify their detention?

[T]he Constitution says (I.9): "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." That sounds pretty definitive: the Military Commissions Act contained no finding that the United States has been invaded, or is in the midst of a rebellion, nor is there any evidence that either condition obtains.... [H]ere are two questions the Court needs to answer: who has habeas rights? And where do they extend? The court's answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

As for the second question (where?), the Court looks at its own precedents, which concern such fascinating questions as: to what extent does the US Constitution extend to territories and possessions? It also looks at the British common law from before the Constitution was adopted, to see what the framers of the Constitution and those who adopted it might have understood "the" Privilege of the Writ of Habeas Corpus to involve. Did it extend, say, to people detained by the British in India, which was not then part of the British empire? What about Ireland and Scotland? And so on and so forth. The Court concludes that these cases do not settle the issue one way or another.

The government argues that people detained in Guantanamo do not have habeas rights, because the US government does not have legal sovereignty over Guantanamo.... Petitioners argue that the US nonetheless exercises complete control over Guantanamo, and so habeas rights should extend there. The Court sides with the petitioners, and its language is quite striking:

The Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

Or, in short: if we accept the government's argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that. This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important....

It's also worth noting that this decision was 5-4, with Roberts, Scalia, Thomas, and Alito in dissent. If Bush had been able to fill one more vacancy, and if he had (as he has in the past) chosen someone who shares the Cheney/Addington view of executive power, this decision would have come out differently. That is, to me, a terrifying thought. Because Publius' headline is accurate: with this decision, Court Reaffirms Existence Of Constitution. But had one vote changed, they would have given the Executive the power to avoid it at will.

Unexpected Benefits of Manhattan...

Unexpectedly early to a lunch in Greenwich Village:

View Larger Map

I halt the cab at the Flatiron Building

to see if can possibly finally meet a Nielsen Hayden or two in the flesh. And whom do I also find there sitting in a semi-lotus position but New York Times bestselling author Cory Doctorow of BoingBoing on tour for his brand-new (and excellent) book Little Brother, who proceeds to:

• give me his five-minute lecture on why he finds David Brin's The Transparent Society too optimistic,

• and then hands me a pre-sale copy of Jo Walton's Half a Crown for me to read on the plane back to San Francisco.

(I had expected to meet Doctorow at CFP on Thursday, but he was then in San Francisco signing books).

Now off to lunch with Nouriel Roubini at the Mercer Kitchen...

Looking at the Bottom Line

The Pro-Tourism Terminator speaks on gay marriage:

Think Progress: Schwarzenegger: Gay marriage may boost California’s economy.: Speaking in San Francisco yesterday, Gov. Arnold Schwarzenegger (R) said he hopes that the state Supreme Court’s recent ruling allowing gay marriage will lead more couples to come to the state to be wed:

You know, I’m wishing everyone good luck with their marriages and I hope that California’s economy is booming because everyone is going to come here and get married.

The San Francisco Convention and Visitors Bureau also expects a tourism boom this summer, and its website now “promotes a gay travel section” and “explains that same-sex couples are ‘officially allowed to marry in the state of California.’” Schwarzenegger has promised to oppose any amendments banning gay marriage.

The John Yoo Situation

Hoisted from Comments: Charley Carp writes:

Grasping Reality with Both Hands: Economist Brad DeLong's Fair, Balanced, and Reality-Based Semi-Daily Journal: Another vote for taking action. Prof. Yoo willfully mistated the law -- with respect to both Quirin (see n. 13) and Youngstown, at the least -- for the purpose of allowing criminals engaging in criminal conduct to claim reliance on advice of counsel. He's a mob lawyer, not fit to be considered scholar or gentleman.

A proper statement of the holding of Quirin on the point made would have shown that his entire analysis was contrary to the authority upon which he was basing it.

Obviously, Prof. Yoo might think (contrary to the views expressed by Justice Alito and Chief Jutice Roberts at their confirmation hearings) Youngstown wrongly decided. At an absolute minimum, though, he's obligated to say so and explain coherently when advising a client as to what the law provides.

This is, I think, a serious breach of legal ethics: It is a violation of the Code of Professional Responsibility to lie to your clients by omitting key Supreme Court cases from your memos. It does raise the question of whether John Yoo is incompetent at his university duties: budding lawyers need to learn what their professional ethical responsibilities are, and someone who does not understand them cannot teach them.

Michael Froomkin Watches the New York Times Water Its Brand...

Why oh why can't we have a better press corps?

Michael Froomkin writes::

Discourse.net: NYT Times Waters Its Brand: Shorter David Brooks: I have finally achieved my ambition of writing a column as tactical and mendacious as William Safire.

Scott Horton deconstructs the NYT's spinelessness when criticized by the Administration.

And this is our best newspaper.

Here's Scott Horton:

Scott Horton: I commented on a recent story authored by Gall and Worthington... “Time Runs Out for an Afghan Held by the U.S.,” concerning the death in Guantánamo detention of Abdul Razzaq Hekmati. This was an important article in several respects. First, it put a human face on one of the prisoners held in Guantánamo who was held unjustly.... Second... it pointed to the smoldering conflict between the Karzai Government and the United States over detention policy. Everyone who works this turf and deals with the Karzai Government’s representatives knows about this issue, but there seems to be a conspiracy of silence surrounding it.... I was pleased to see this finally work its way into the public record. But to my astonishment, today this “editor’s note” was posted under the article:

A front-page article on Tuesday described the problems of the tribunals at the American military base in Guantánamo, as seen through the failure to resolve the case of Abdul Razzaq Hekmati, an Afghan war hero who died there Dec. 30 after a five-year-long detention. The article quoted several Afghan officials who said they were prepared to offer evidence that he was falsely accused, but were never given a chance to do so. Andy Worthington... listed as its co-author, did some of the initial reporting but was not involved in all of it, and The Times verified the information he provided. That included the fact of Mr. Hekmati’s death, and the content of transcripts released by the Pentagon showing that the accusations against Mr. Hekmati had been made by unidentified sources and that the tribunal at Guantánamo had never called outside witnesses requested by detainees.

Mr. Worthington has written a book, “The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison,” in which he takes the position that Guantánamo is part of what he describes as a cruel and misguided response by the Bush Administration to the Sept. 11 attacks. He has also expressed strong criticism of Guantánamo in articles published elsewhere. The editors were not aware of Mr. Worthington’s outspoken position on Guantánamo. They should have described his contribution to the reporting instead of listing him as co-author, and noted that he had a point of view....

I have a pretty good guess what happened. A call came to the New York Times from a Bush Administration figure complaining bitterly about the article, and viciously attacking Worthington. Since the Bushie attack dogs rarely do anything halfway, I’d wager Worthington was tarred as some sort of barking leftist kook. And the Times editors... did what they usually do... cowardice... buy peace with the powers that be by assailing their own writer.

So we see a note in which Worthington’s views on Guantánamo are described as “outspoken” and the Times distances itself from them.

What’s really going on here? The Bush Administration has fed the media the most vitriolic propaganda about the Guantánamo camps for over six years. The detainees were labeled as “the worst of the worst” and the Chairman of the Joint Chiefs of Staff was quoted saying they were the kind of people “who would gnaw their way through cables to make a plane crash.” These claims were reported without contradiction or criticism. They were untrue and known to the government officers who uttered them to be untrue. In the Times view, however, Government officials are free to lie without contradiction.... The story that Gall and Worthington presented exposed a ... lie, and it produced a retaliation. The Times editors are not forthcoming enough to give an honest account of what happened; they are focused on accommodation with the Pentagon’s PR machine, and they are prepared to sacrifice good journalistic ethics to get it.

The still more preposterous aspect of the “note” is the suggestion that there is something “outspoken” in calling to close Guantánamo and labeling the facility what it is. The posture adopted in Worthington’s book is indeed very radical. Among the radicals who have embraced it are the American Bar Association, Pope Benedict XVI, the Archbishop of Canterbury, the Dalai Lama, Chancellor Angela Merkel, the English Lord Chancellor, Lord Falconer, and hundreds of other political and spiritual leaders around the world. Come to think of it, the list of radicals includes the editorial board of the New York Times.

This “note” is a badge of shame for the New York Times. It shows a paper whose editors operate to demonstrably lower standards than the journalists they employ. The editors promised that in the wake of the gross mistakes they made in the run-up to the Iraq War, they would reform and demonstrate a higher level resistance to efforts at undercover manipulation by the Government. On that promise, their integrity hangs. But they are failing in it.

It's Joe McCarthy's Birthday!

The archives of National Review: The gift that keeps on giving:

What Joe McCarthy was... can[not]... be judged by weighing in the balance the niceness of his discriminations or that tactical acuity of his actions.... His was not a common role. It comes to few men to play it--sometimes to a poet, sometimes to a politician sometimes to someone of no particular position.... Joe McCarthy, who bore witness against the denial of truth that is called moderation, and died for it: "He was a prophet"...

[Joe] McCarthy was in a business that permitted a certain latitude: it was politics, not physics. [Bozell and Buckley say that] "McCarthy's record is... not only much better than his critics allege, but, given his metier, extremely good." Thus he "should not be remembered as the man who didn't produce 57 Communist Party cards but as the man who brought public pressure to bear on the State Department to revise its practices and to eliminate from responsible positions flagrant security risks"...

We cannot avoid the fact that the United States is at war against international Communism, and that McCarthyism is a program of action against those in our land who help the enemy. McCarthyism is... nine parts social sanction to one part legal sanction. But that one part legal sanction is legitimate...

Honest Conservative Watch

Jim Fallows proposes three names:

James Fallows: [At] Cato.... John Mueller, of Ohio State. (His influential 2004 essay, "A False Sense of Insecurity," is here in a large PDF file.) And, oddly enough, AEI, which apparently harbors an actual conservative among its neo-cons and "surge" enthusiasts. This is Veronique de Rugy.... A recent entry in the honor roll: James Jay Carafano, a West Point graduate who works at Heritage. His new essay, concerning the potential terrorist threat from small airplanes, is the first I've seen that both acknowledges there is some threat and proposes reasonable, proportionate steps to deal with it...

Impeach George W. Bush Now

Scott Horton:

"Defending Enhanced Interrogation Techniques": Before there were “enhanced interrogation techniques,” there was verschärfte Vernehmung, (which means “enhanced interrogation techniques”) developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo’s interrogation rules and those approved by the Bush Administration. That’s right-—the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.

Today Andrew Sullivan takes a look at the criminal prosecutions that followed the war in which Gestapo officers who used enhanced interrogation techniques were prosecuted for war crimes as a result. What arguments did they advance? Well, Dick Cheney and Rudy Giuliani will be pleased to know that they haven’t missed any major points.

the ticking time-bomb exception, and the need for better intelligence about an insurgency-—the same defense as the GOP establishment has used for exactly the same techniques-—hypothermia, stress positions, sensory deprivation, etc.—-in the US and Iraq. The terms and specific methods used are the same for the Gestapo’s “verschärfte Vernehmung,” “Third Degree,” and Bush’s “enhanced interrogation.”

HEYDRICH told him that he reserved for himself the final approval of such measures in Germany and he would see to it that they were applied only in the most urgent cases.

Questions for Dick Armey

Former Republican Majority Leader Dick Armey is guestblogging over at Time's political weblog http://time-blog.com/swampland/. There are two questions I wish somebody would ask him.

(1) You are a committed shrink-the-state small-government Republican. Yet you carried a huge number of buckets of water for the Bushies in 2001 and 2002 as they expanded the federal government substantially while making no provision for funding the increased spending. You did this without pushing back at all--thus serving as a good soldier for policies that you thought were destructive and unpatriotic. Why?

(2) You are a committed civil libertarian. Yet you carried a huge number of buckets of water for the Bushies in 2001 and 2002 as threw a great many procedural protections of constitutional rights overboard. You did this without pushing back at all--serving as a good soldier for policies that you thought were destructive and unpatriotic. Why?

It would be a service to the public and to history if Armey's feet were to be held to the fire until he explains just what the hell he thought he was doing in 2001 and 2002. He certainly broke the hearts of people I know who believed in him.

When I met Armey in 2004, you see, he talked a very good game as a committed small-government fiscally-prudent libertarian conservative. And the small-government conservative plan at the start of 2001 was to (a) use the fact that Bush had run his campaign promising a big tax cut to pass a big tax cut, (b) use the procedural requirements of the Budget Enforcement Act to attach promises of future spending growth restraint to the tax cut, and then (c) actually enforce the spending caps adopted. All of these linkages are important: as Bill Niskanen argues these days (and as Jim Buchanan argued three decades ago) deficit-causing tax cuts are worse than useless as far as achieving small-government ends in the long run are concerned.

Yet Armey punted on this agenda at almost every opportunity during the 2001-2002 term in which he was Majority Leader. Consider:

• The--big--decision in 2001 and 2002 to abandon the procedural restraints of the 1991 Budget Enforcement Act--PAYGO and its cousins.
• The--big--decision to make the fiscal impact of the tax cut look smaller by "sunsetting" it after nine years.
• The leadership's direction that CBO lowball the assumed future discretionary spending growth rate in order to make the budget picture look rosier than it truly was http://nationaljournal.com/members/buzz/2001/budget/020601.htm
• The rejection of Greenspan's and O'Neill's advice to make the full implementation of the 2001 tax cuts contingent on successful spending restraint.
• The leadership's decision in 2001 to use Mitch Daniels's OMB numbers--biased and cooked--rather than CBO numbers during the tax debate.
• The leadership's decision in 2001 to ignore the spending growth cap it had passed in its own budget resolution.
• The leadership's acquiescence in OMB's delay of its 2001 mid-session review in order to avoid having to deal with bad budget news that would have forced either smaller tax cuts or more spending restraint during the summer.
• The leadership's decision in the summer-of-2001 to shift the budget goalposts from "not raising the national debt" (i.e., balancing the budget without counting the Social Security and Medicare surpluses as net revenue) to "balancing the budget" (i.e., counting the Social Security and Medicare surpluses as net revenue).
• The leadership's decision not to offer tax increases to fund the war against Osama bin Laden.
• The leadership's decision to use "emergency supplementals" for expected and foreseen spending--not for true surrise emergencies.
• The 2002 passing of a "stimulus" bill after Greenspan had called the end of the recession it was supposed to cure.
• The 2002 farm bill.
• The breaking of the House's version of the budget resolution spending caps when it came time to actually pass fiscal-2003 appropriations.
• In fact, the lack of any spending growth restraint at all in the fiscal 2003 appropriations.

I won't even speak of Armey's role in the Bush "security" agenda after 911.

Powell's Chief of Staff Advocates Impeaching Bush and Cheney

As far as I know this has never happened before: the right-hand aide of the highest-ranking cabinet member--the Secretary of State--calling for the impeachment of the president who appointed his boss:

Powell's Chief of Staff Proposes Impeachment | AfterDowningStreet.org: By David Swanson: On Thursday, May 10, 2007, Lawrence Wilkerson, speaking on National Public Radio, proposed impeaching President George W. Bush and Vice President Dick Cheney.... Wilkerson is a Retired Army Colonel, the former Chief of Staff at the State Department from 2002 to 2005 under then Secretary of State Colin Powell, a Vietnam War veteran, the former Acting Director of the Marine Corps War College at Quantico, and currently a teacher of national security at William and Mary College.

The program, On Point, was hosted by Tom Ashbrook, who focused the discussion on a need for greater public accountability for the Iraq War, but who maintained that the public was not outraged or interested. (Ashbrook should read some polls and invite on organizers of the impeachment movement.) Also on the program was Ken Adelman, who promoted the war and said it would be "a cakewalk". Adelman argued a case for not holding public officials accountable. Wilkerson said in early comments on the show: "This administration doesn't know how to effect accountability in my opinion." But he did not raise the possibility of impeachment until after a member of the audience had phoned in.

The first caller who was put on the air demanded an investigation of the lies that launched the war, and asked for accountability "all the way up." In response to Adelman's claims that history would hold people accountable, the caller said "I would love to have a job where, worst case scenario, my historical record is flawed." Ashbrook framed the question in terms of alleged limitations of the U.S. political system, and Wilkerson replied: "Well I do think that that's a reality of our system. However, let me back up just a minute and say that I really do think that our founding fathers, Hamilton, Washington, Monroe, Madison, would all be astounded that over the course of our short history as a country, 200 plus years, we haven't used that little two to three lines in Article II of the Constitution more frequently, the impeachment clause. I do believe that they would have thought had they been asked by you or whomever at the time of the Constitutional Convention in Philadelphia 'Do you think this will be exercised?' they would have said 'Of course it will, every generation they'll have to throw some bastard out'. That's a form of accountability too. It's ultimate accountability."

After an interruption, Wilkerson continued: "The language in that article, the language in those two or three lines about impeachment is nice and precise – it's high crimes and misdemeanors. You compare Bill Clinton's peccadilloes for which he was impeached to George Bush's high crimes and misdemeanors or Dick Cheney's high crimes and misdemeanors, and I think they pale in significance." Ashbrook asked for some examples of such high crimes and misdemeanors, and Wilkerson replied: "I think that the caller was right. I think we went into this war for specious reasons. I think we went into this war not too much unlike the way we went into the Spanish American War with the Hearst press essentially goading the American people and the leadership into war. That was a different time in a different culture, in a different America. We're in a very different place today and I think we essentially got goaded into the war through some of the same means."

Your One-Stop Source for Edward Coke, C.J. Liberties-of-Englishmen Blogging

"Underbelly" quotes a passage quoted by my great-great-grandfather Roland:

Underbelly: "Fell down all fower"--Woops!: Oops; earlier I recalled that Lord Coke made King James so angry that he “fell down on all fower,” but I couldn’t find the source. Once again, my friend Carlton comes to the rescue—sort of. Turns out it was Coke who fell down, not the King. And the phrase is “flat on all fower.” Apparently the King was pretty chuffed, though:

After which [i.e. after Coke C.J.’s remonstrance] his majestie fell into that high indignation as the like was never knowne in him, looking and speaking fiercely with bended fist, offering to strike him etc. which the Lord Coke perceiving fell flat on all fower; humbly beseeching his majestie to take compassion on him and to pardon him, if he thought zeale had gone beyond his duty and allegience. His Majesty not herewith contented, continued his indignation. Whereupon the Lord Treasurer, the Lord Cookes unckle by marriage, kneeled downe before his Majestie and prayed him to be favorable.

--As quoted in R.G. Usher, "James I and Sir Edward Cooke, "18 Eng. Hist. Rev. 664, 669 (1903), reprinted in William E. Conklin, In Defence of Fundamental Rights at 47 (1979) (Google book link)

Looks like it was I who fell down on this one, and here's hoping Speaker Pelosi stays upright.

And he writes further:

Underbelly: And Speaking of First Principles: When Nancy Pelosi goes to visit the president next week, she might want to haul along a copy of Prohibitions del Roy 12 Coke Rep. 63 (1608), the notes of Sir Edward Coke on a conference with King James I England

Note, upon Sunday the 10th of November, in this same Term [1607--ed.], the King, upon complaint made to him by Bancroft, the Archbishop of Canterbury, concerning Prohibitions, the King was informed, that when the question was made of what matters the Ecclesiastical Judges have Cognizance, … the King himself may decide it in his Royall person; and that the Judges are but the delegates of the King, and that the King may take what Causes he shall please to determine, from the determination of the Judges, and may determine them himself. And the Archbishop said, that this was clear in Divinity, that such Authority belongs to the King by the Word of God in the Scripture. To which it was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminall, as Treason, Felony, &c. or betwixt party and party, concerning his Inheritance, Chattels, or Goods, &c. but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England....

Then the King said, that he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges: To which it was answered by me, that true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects;... And that the Law was the Golden metwand and measure to try the Causes of the subjects; and which protected his Majesty in safety and peace: With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege.

H/T Carlton for the reference. I am still looking for the part where we are told the King got so mad he "fell down on all fower."

At Least They No Longer Hate Us for Our Freedom!

Andrew Sullivan writes:

The Daily Dish: Enemy of the People: Meet Professor Walter F. Murphy, emeritus of Princeton University. He's a former Marine, with five years of active service and 19 years in the reserve, and a legal critic of Roe vs Wade and supporter of the Alito confirmation. He's also on the Terrorist No-Fly List:

I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: "Have you been in any peace marches? We ban a lot of people from flying because of that." I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. "That'll do it," the man said."

Just a heads up about what these people are up to.

John C. Calhoun Writes that the Constitution as It Stands Does Not Protect Slavery

That satanic figure who is South Carolinian John C. Calhoun--in his Discourse, published after his death in 1851--argues that constitutional amendments are needed because the pre-Civil War constitution did not protect slavery:

John C. Calhoun: Political Writings: When the government of the United States was established, the two sections were nearly equal in [population and numbers of states], a fact which, doubtless, had much influence, in determining the convention to select them as the basis of its construction. Since then, their equality in reference to both, has been destroyed... the ordinance of 1787... excluding slavery from the North-Western Territory.... The South received no equivalent for this magnificent cession, except a pledge... to deliver up fugitive slaves... [that has] turned out... worthless....

In the mean time the spirit of fanaticism... was roused into action.... It aims, openly and directly, at destroying the existing relations between the races in the southern section; on which depend its peace, prosperity and safety. To effect this, exclusion from the territories is an important step; and, hence, the union between the abolitionists and the advocates of exclusion, to effect objects so intimately connected.

All this has brought about a state of things hostile to the continuance of the Union.... The equilibrium between the two sections has been permanently destroyed.... The nature of the disease is such, that nothing can reach it, short of some organic change — a change which shall so modify the constitution, as to give to the weaker section... a negative on the action of the government.... [E]xperience has prove... that... conflict is between the two great sections.... Had this been then as clearly perceived [in 1787] as it now is... [the framers] would have taken... precaution to guard against the... danger.... It is for us, who see and feel it, to do, what the framers of the constitution would have done, had they possessed the knowledge... which experience has given to us....

How the constitution could best be modified... might be effected through a reorganization of the executive department; so that its powers, instead of being vested, as they now are, in a single officer, should be vested in two — to be so elected, as that the two should be constituted the special organs and representatives of the respective sections, in the executive department of the government; and requiring each to approve all the acts of Congress.... It would thus effect... what was intended by the original provisions... in giving to one of the majorities [that of numbers of people] a decided preponderance in the electoral college — and to the other majority [that of numbers of states] a still more decided influence... in case the college failed to elect a President. It was intended to effect an equilibrium between the larger and smaller States in this department....

Indeed, it may be doubted, whether the framers of the constitution did not commit a great mistake, in constituting a single, instead of a plural executive.... [T]he two most distinguished constitutional governments of antiquity... had a dual executive... Sparta and... Rome....

Such is the disease — and such the character of the only remedy which can reach it. In conclusion, there remains to be considered, the practical question — Shall it be applied? Shall the only power which can apply it be invoked for the purpose?

The responsibility of answering this solemn question, rests on the States composing the stronger section.... [T]he States of the weaker section can do nothing... without the aid and co-operation of the States composing the stronger section.... On the latter, therefore, rests the responsibility of invoking the high [amending] power, which alone can apply the remedy — and, if they fail to do so, of all the consequences which may follow...

What Does It Mean When a Judge Cites Dred Scott?

Law Professor Jack Balkin makes a mistake in logic.

He writes:

Balkinization: This essay by Gregory J. Wallance in the National Law Journal criticizes the D.C. Circuit's opinion in Parker v. District of Columbia for citing Dred Scott v. Sanford. Wallance writes that "there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court." This seems hyperbolic to me. The fact that a certain type of argument appears in Dred Scott doesn't make it a bad argument...

But the fact that somebody cites Dred Scott for Argument X is a powerful sign that they couldn't find another court making Argument X to cite instead. And the fact that a certain type of argument appears rarely except in Dred Scott is a powerful sign that it is a bad argument.

Jeez. These law professors. Reminds me of Gene Volokh saying that he was "agnostic" about whether William Bennett had lost millions in Vegas:

The Volokh Conspiracy: Some casinos are estimating the total losses at over $8 million, but Bennett explicitly says otherwise; instead, he's saying that he's come out pretty close to even (whatever exactly that means), and thus (returning to the previous paragraph) that the supposed casino estimates are mistaken or highly incomplete. This has little to do with statistics -- it's a question of fact. Bennett may be lying, but only if you think the casino estimates are sound, something that the article certainly doesn't prove. That's why I'm not sure who's right.

For Volokh, the fact that people who gamble a lot and whom casinos pay to fly to Las Vegas to gamble are almost surely big losers is simply not a consideration his brain processes in assessing William Bennett's credibility. For Balkin, the fact that Silberman couldn't find precedent in a more credible opinion than Dred Scott is not a consideration his brain processes in assessing the quality of Silberman's argument.

This has to be a form of trained incapacity. Neither of these men are dumb. Yet both cannot, apparently, see the noses in front of their faces.

Note to Self: Justice McReynolds...

Time Magazine from the 1930s once again:

Alone -- Monday, Dec. 04, 1939: As usual, a soft buzzer sounded, the little page-boys scampered aside, the great red curtains parted, and the Justices of the U. S. Supreme Court stepped between them to their black-leather chairs behind the long mahogany bar. But this time there was a difference. At Chief Justice Charles Evans Hughes' left, a chair was draped in black; on his right sat one of the loneliest men in the world. No spectator on last week's decision-day could look at gaunt, craggy-faced James Clark McReynolds without a stir of sympathy.

On a hot August day in 1914, Woodrow Wilson appointed to the Court his Attorney General, hotheaded, hard-headed Mr. McReynolds of Tennessee. Legend has it that Woodrow Wilson regretted no appointment more than that one. And legend also gave Mr. Justice McReynolds a bad name: a man intolerably rude, antiSemitic, savagely sarcastic, incredibly reactionary, Puritanical, prejudiced.

Legend had little to say about his tenderness to his narrow circle of friends, his unfailing generosity, his clear legal perception, his unerring eye and ear for the false, the unessential. Least-recognized was his long-time alertness for the preservation of civil liberties.

Long before the New Deal, old Bachelor McReynolds had come an ogre to liberals. Invariably he voted with the conservative majority. On Feb. 18, 1935 he burst out in uncontrollable wrath at the Gold Clause decision, roared in dismayed rage: "The Constitution is gone!" One by one his colleagues retired or died. Still undenied by McReynolds was the remark attributed many times to him: "I'll never resign as long as that crippled _ _ is in the White House!"

For many years he had refused to speak at all to Justice Louis Dembitz Brandeis. Reportedly he fought the appointment of saintly Benjamin Cardozo to the court; urged Hoover not "to afflict the Court with another Jew."

A fortnight ago his one remaining mainstay, solid old Pierce Butler, died. In silence last week he heard Justice Owen Roberts read the majority decision reaffirming the civil liberties of the U.S. citizen, proclaim the right to pamphleteer without a police license. The decision presented no new point of Constitutional doctrine, but to many a thoughtful U. S. citizen came as a solemn reminder, in anxious days, that beneath the stated rights of citizenship lies a rock-founded base guaranteeing their preservation.

In his familiar attitude of somnolence old James McReynolds heard Justice Roberts announce the Court's decision, seven-to-one for freedom of the press. Scribbling swiftly, newsmen shoved into the pressroom tubes the line: "Justice McReynolds dissents," turned back to stare at the lonely old man nodding in his huge black chair.

Only one thing I don't get: a "long-time alertness for the preservation of civil liberties" combined with a willingness to say that you can't hand out pamphlets without getting a license from the police? Something doesn't compute. Either somebody was writing much too fast, or somebody is telling us that the positive-spin paragraph four is b---s---.

Abraham Lincoln's Birthday Blogging: "[T]he issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent..."

Abraham Lincoln's birthday blogging: from the last Lincoln-Douglas debate: "That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles.... The one is the common right of humanity and the other the... spirit that says, 'You work and toil and earn bread, and I'll eat it'":

I have stated upon former occasions, and I may as well state again, what I understand to be the real issue in this controversy between Judge Douglas and myself. On the point of my wanting to make war between the free and the slave States, there has been no issue between us. So, too, when he assumes that I am in favor of introducing a perfect social and political equality between the white and black races. These are false issues, upon which Judge Douglas has tried to force the controversy. There is no foundation in truth for the charge that I maintain either of these propositions.

The real issue in this controversy--the one pressing upon every mind--is the sentiment on the part of one class that looks upon the institution of slavery as a wrong, and of another class that does not look upon it as a wrong. The sentiment that contemplates the institution of slavery in this country as a wrong is the sentiment of the Republican party. It is the sentiment around which all their actions--all their arguments circle--from which all their propositions radiate. They look upon it as being a moral, social and political wrong; and while they contemplate it as such, they nevertheless have due regard for its actual existence among us, and the difficulties of getting rid of it in any satisfactory way and to all the constitutional obligations thrown about it. Yet having a due regard for these, they desire a policy in regard to it that looks to its not creating any more danger.

They insist that it should, as far as may be, be treated as a wrong, and one of the methods of treating it as a wrong is to make provision that it shall grow no larger. [Loud applause.] They also desire a policy that looks to a peaceful end of slavery at sometime, as being wrong. These are the views they entertain in regard to it as I understand them; and all their sentiments--all their arguments and propositions are brought within this range. I have said and I repeat it here, that if there be a man amongst us who does not think that the institution of slavery is wrong in any one of the aspects of which I have spoken, he is misplaced and ought not to be with us. And if there be a man amongst us who is so impatient of it as a wrong as to disregard its actual presence among us and the difficulty of getting rid of it suddenly in a satisfactory way, and to disregard the constitutional obligations thrown about it, that man is misplaced if he is on our platform. We disclaim sympathy with him in practical action. He is not placed properly with us.

On this subject of treating it as a wrong, and limiting its spread, let me say a word. Has any thing ever threatened the existence of this Union save and except this very institution of Slavery? What is it that we hold most dear amongst us? Our own liberty and prosperity. What has ever threatened our liberty and prosperity save and except this institution of Slavery? If this is true, how do you propose to improve the condition of things by enlarging Slavery--by spreading it out and making it bigger? You may have a wen or cancer upon your person and not be able to cut it out lest you bleed to death; but surely it is no way to cure it, to engraft it and spread it over your whole body. That is no proper way of treating what you regard a wrong. You see this peaceful way of dealing with it as a wrong--restricting the spread of it, and not allowing it to go into new countries where it has not already existed. That is the peaceful way, the old-fashioned way, the way in which the fathers themselves set us the example.

On the other hand, I have said there is a sentiment which treats it as not being wrong. That is the Democratic sentiment of this day. I do not mean to say that every man who stands within that range positively asserts that it is right. That class will include all who positively assert that it is right, and all who like Judge Douglas treat it as indifferent and do not say it is either right or wrong. These two classes of men fall within the general class of those who do not look upon it as a wrong.

And if there be among you any body who supposes that he, as a Democrat can consider himself "as much opposed to slavery as anybody," I would like to reason with him. You never treat it as a wrong. What other thing that you consider as a wrong, do you deal with as you deal with that? Perhaps you say it is wrong, but your leader never does, and you quarrel with any body who says it is wrong. Although you pretend to say so yourself you can find no fit place to deal with it as a wrong. You must not say any thing about it in the free States, because it is not here. You must not say any thing about it in the slave States, because it is there. You must not say any thing about it in the pulpit, because that is religion and has nothing to do with it. You must not say any thing about it in politics, because that will disturb the security of "my place." There is no place to talk about it as being a wrong, although you say yourself it is a wrong.

But finally you will screw yourself up to the belief that if the people of the slave States should adopt a system of gradual emancipation on the slavery question, you would be in favor of it. You would be in favor of it. You say that is getting it in the right place, and you would be glad to see it succeed. But you are deceiving yourself. You all know that Frank Blair and Gratz Brown, down there in St. Louis, undertook to introduce that system in Missouri. They fought as valiantly as they could for the system of gradual emancipation which you pretend you would be glad to see succeed. Now I will bring you to the test. After a hard fight they were beaten, and when the news came over here you threw up your hats and hurraed for Democracy. More than that, take all the argument made in favor of the system you have proposed, and it carefully excludes the idea that there is any thing wrong in the institution of slavery. The arguments to sustain that policy carefully excluded it.

Even here to-day you heard Judge Douglas quarrel with me because I uttered a wish that it might sometime come to an end. Although Henry Clay could say he wished every slave in the United States was in the country of his ancestors, I am denounced by those pretending to respect Henry Clay for uttering a wish that it might sometime, in some peaceful way, come to an end. The Democratic policy in regard to that institution will not tolerate the merest breath, the slightest hint, of the least degree of wrong about it. Try it by some of Judge Douglas's arguments. He says he "don't care whether it is voted up or voted down" in the Territories. I do not care myself in dealing with that expression, whether it is intended to be expressive of his individual sentiments on the subject, or only of the national policy he desires to have established. It is alike valuable for my purpose. Any man can say that who does not see any thing wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don't care whether a wrong is voted up or voted down. He may say he don't care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing.

He contends that whatever community wants slaves has a right to have them. So they have if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong. He says that upon the score of equality, slaves should be allowed to go in a new Territory, like other property. This is strictly logical if there is no difference between it and other property. If it and other property are equal, his argument is entirely logical. But if you insist that one is wrong and the other right, there is no use to institute a comparison between right and wrong. You may turn over every thing in the Democratic policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation, or the shape it takes in short maxim-like arguments--it every where carefully excludes the idea that there is any thing wrong in it.

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles--right and wrong--throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. The one is the common right of humanity and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, "You work and toil and earn bread, and I'll eat it."

No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle. I was glad to express my gratitude at Quincy, and I re-express it here to Judge Douglas--that he looks to no end of the institution of slavery. That will help the people to see where the struggle really is. It will hereafter place with us all men who really do wish the wrong may have an end. And whenever we can get rid of the fog which obscures the real question--when we can get Judge Douglas and his friends to avow a policy looking to its perpetuation--we can get out from among that class of men and bring them to the side of those who treat it as a wrong. Then there will soon be an end of it, and that end will be its "ultimate extinction."

Whenever the issue can be distinctly made, and all extraneous matter thrown out so that men can fairly see the real difference between the parties, this controversy will soon be settled, and it will be done peaceably too. There will be no war, no violence. It will be placed again where the wisest and best men of the world placed it. Brooks of South Carolina once declared that when this Constitution was framed, its framers did not look to the institution existing until this day. When he said this, I think he stated a fact that is fully borne out by the history of the times. But he also said they were better and wiser men than the men of these days; yet the men of these days had experience which they had not, and by the invention of the cotton-gin it became a necessity in this country that slavery should be perpetual.

I now say that, willingly or unwillingly, purposely or without purpose, Judge Douglas has been the most prominent instrument in changing the position of the institution of slavery which the fathers of the Government expected to come to an end ere this--and putting it upon Brooks's cotton-gin basis--placing it where he openly confesses he has no desire there shall ever be an end of it.

Gitmo

Andrew Samwick tells us to go read Neal Katyal

Vox Baby: Reading and Listening: I thought this econoblog was going to be the best thing I'd read all day. It's Brad DeLong and Arnold Kling having a pretty contentious and articulate debate about the legacy of the New Deal. Read the whole thing.But then, realizing that I would have to introduce Neal Katyal at his public lecture last evening, I started reading this article forthcoming in Vanity Fair. And maybe I haven't been keeping up with current events, but I found parts of it truly shocking. The public lecture was fantastic...

http://www.law.georgetown.edu/faculty/nkk/documents/gitmovanityfair.pdf

Letter from the Birmingham Jail

A historical document:

April 16, 1963

My Dear Fellow Clergymen:

While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statements in what I hope will be patient and reasonable terms.

I think I should indicate why I am here In Birmingham, since you have been influenced by the view which argues against "outsiders coming in." I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty-five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct-action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their "thus saith the Lord" far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco-Roman world, so am I. compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

You deplore the demonstrations taking place In Brimingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city's white power structure left the Negro community with no alternative.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self- purification; and direct action. We have gone through an these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro .leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good-faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham's economic community. In the course of the negotiations, certain promises were made by the merchants --- for example, to remove the stores humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttles worth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained.

As in so many past experiences, our hopes bad been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self-purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves : "Are you able to accept blows without retaliating?" "Are you able to endure the ordeal of jail?" We decided to schedule our direct-action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic with with-drawl program would be the by-product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham's mayoralty election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene "Bull" Connor, had piled up enough votes to be in the run-oat we decided again to postpone action until the day after the run-off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct-action program could be delayed no longer.

You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling, for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word "tension." I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.

The purpose of our direct-action program is to create a situation so crisis-packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved South land been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken .in Birmingham is untimely. Some have asked: "Why didn't you give the new city administration time to act?" The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor. will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant 'Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

We have waited .for more than 340 years for our constitutional and God- given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six- year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you no forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the Brat to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all"

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal .law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an "I- it" relationship for an "I-thou" relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to ace the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's anti religious laws.

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Councilor or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fan in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with an its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn't this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn't this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn't this like condemning Jesus because his unique God-consciousness and never-ceasing devotion to God's will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber.

I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: "An Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth." Such an attitude stems from a tragic misconception of time, from the strangely rational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co-workers with God, and without this 'hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to 6e solid rock of human dignity.

You speak of our activity in Birmingham as extreme. At fist I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the fact that stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self-respect and a sense of "somebodiness" that they have adjusted to segregation; and in part of a few middle class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best- known being Elijah Muhammad's Muslim movement. Nourished by the Negro's frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible "devil."

I have tried to stand between these two forces, saying that we need emulate neither the "do-nothingism" of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle.

If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as "rabble-rousers" and "outside agitators" those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black- nationalist ideologies a development that would inevitably lead to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or. unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent-up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides-and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: "Get rid of your discontent." Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist.

But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: "Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you." Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever-flowing stream." Was not Paul an extremist for the Christian gospel: "I bear in my body the marks of the Lord Jesus." Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self-evident, that an men are created equal ..." So the question is not whether we will be extremists, but what kind of extremists we viii be. We be extremists for hate or for love? Will we be extremist for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary's hill three men were crucified. We must never forget that all three were crucified for the same crime---the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jeans Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still too few in quantity, but they are big in quality. Some-such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle---have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach-infested jails, suffering the abuse and brutality of policemen who view them as "dirty nigger lovers." Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful "action" antidotes to combat the disease of segregation.

Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a non segregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative .critics who can always find. something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who 'has been sustained by its spiritual blessings and who will remain true to it as long as the cord of Rio shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leader era; an too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained-glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: "Follow this decree because integration is morally right and because the Negro is your brother." In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious. irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: "Those are social issues, with which the gospel has no real concern." And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, on Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South's beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious-education buildings. Over and over I have found myself asking: "What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Walleye gave a clarion call for defiance and .hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?"

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? l am in the rather unique position of being the son, the grandson and the great- grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being "disturbers of the peace" and "outside agitators"' But the Christians pressed on, in the conviction that they were "a colony of heaven," called to obey God rather than man. Small in number, they were big in commitment. They were too God intoxicated to be "astronomically intimidated." By their effort and example they brought an end to such ancient evils as infanticide. and gladiatorial contests.

Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Par from being disturbed by the presence of the church, the power structure of the average community is consoled by the church's silent and often even vocal sanction of things as they are.

But the judgment of God is upon the church as never before. If today's church does not recapture the sacrificial spirit of the early church, it vi lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust.

Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom, They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jai with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment.

I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham, ham and all over the nation, because the goal of America k freedom. Abused and scorned though we may be, our destiny is tied up with America's destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation-and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands.

Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping "order" and "preventing violence." I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if .you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department.

It is true that the police have exercised a .degree of discipline in handing the demonstrators. In this sense they have conducted themselves rather "nonviolently" in public. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: "The last temptation is the greatest treason: To do the right deed for the wrong reason."

I wish you had commended the Negro sit-inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face Jeering, and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy-two-year-old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: "My fleets is tired, but my soul is at rest." They viii be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience' sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo-Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.

Never before have I written so long a letter. I'm afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he k alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil rights leader but as a fellow clergyman and a Christian brother. Let us. all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear-drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of Peace and Brotherhood,

Martin Luther King, Jr.

Real American Heroes

Prometheus 6 directs us to:

http://online.wsj.com/public/article/SB116778896940865523-5hpFQPqD3pfmEjUmEftnGbgPZ5I_20080102.html?mod=rss_free "Clyburn Leads Southern Blacks' Ascent To Top Posts in Congress," By DAVID ROGERS: Rep. James Clyburn, a minister's son from South Carolina, takes his place tomorrow as the House Majority Whip -- the No. 3 Democratic post and highest ever held by an African-American from a Southern district. The 66-year-old Mr. Clyburn, who was 25 before the Voting Rights Act was enacted, symbolizes the rise of a set of Southern black lawmakers, shaped by the region and with a distinctive approach to politics separate from that of black leaders representing urban Northern districts.... Rep. Bennie Thompson, once a Mississippi alderman, becomes chairman of the Homeland Security Committee....

"We have come from a part of the country where it was legal for people to treat people differently because of their color," Mr. Thompson says. "In many instances you find a passion for making sure that our systems are fair and equitable. On the other hand you find a greater interest in community." Their often rural roots and the black educational and religious institutions that sustained them through segregation still influence their politics. "It's like the turtle on the fence post: he didn't get there by himself," says Rep. Sanford Bishop (D., Ga.) "I come from a district that believes in God, country, work, family and guns, and not necessarily in that order. For rural blacks, a shotgun was just another tool on the farm and a way to protect you from the Klan."...

Segregation's mark is clear in his protective reserve.... "I wasn't born this way," Mr. Clyburn says. "I taught myself to be as reserved as I am in order to survive." As a boy, Mr. Clyburn dreamed of being in politics, despite warnings from older blacks to keep his ambitions in check. The civil-rights movement thrust him forward in college, when he was arrested several times for demonstrations. In an early case, the late Rev. I. DeQuincey Newman, a mentor and South Carolina civil-rights activist, picked him to take the stand at the trial after Mr. Clyburn and other black students were arrested during an Orangeburg, S.C., demonstration.

It was common then for Southern newspapers to print the names of black student protesters on the front page, inviting retaliation against their families. Rev. Newman argued that in a white society the Clyburn family was safe from economic retribution: "Your daddy is a minister and he ain't preaching to no white people. Your mother is a beautician and she's fixing no white folks' hair. You're independent of the system. Nobody gets fired. So you're it." Mr. Clyburn says, "It was my parents. It was because of them I was picked out of the crowd. Wherever it is you are, you don't get there on your own."...

"Don't tell me things don't change," Mr. Lewis says. "Walk in my shoes; walk in Jim Clyburn's."

I know that as long as the Democratic Party has people like James Clyburn and John Lewis in it while the Republican Party has people like Newt Gringrich and Tom DeLay in it, I will be a Democrat.

This Week's Highlights of Spencer Ackerman Weekly

As I have said, my $60 for a two-year subscription to Spencer Ackerman Weekly has proven to be a very good investment:

You imagine that David Ignatius once had a mind, Spencer?

toohotfortnr: David Ignatius has lost his mind:

Bush's "state of denial," as Bob Woodward rightly called it, has officially ended. He actually spoke the words "We're not winning" last week in an interview with The Post, coupling it with the reverse: "We're not losing." But in truth, he cannot abide the possibility that Iraq will not end in victory. So a day after his "not winning" comment, he half took it back, saying: "I believe that we're going to win," and then adding oddly, as if to reassure himself: "I believe that -- and by the way, if I didn't think that, I wouldn't have our troops there. That's what you've got to know. We're going to succeed."

Wow, does it s--- when your material rebels against the frame you try to force it into.

Funny Ignatius-related story. In April of 2003, I went home to my mother's for Passover. Ignatius was in Iraq, and he needed to reach Kanan Makiya. He knew I had Kanan's number, so he rang me from Baghdad. Unfortunately, I was out cold, so my mother answered. "It's David Ignatius calling," he told my mom. "I'm very important." My mother was furious and woke me up. Now, I maintain to this day that the guy must have said "It's very important," since no one would ever call up a total stranger and announce his own inherent value, and after all, the guy was calling from 8,000 miles away. But still, my mother holds Ignatius in high contempt. (My father likes his spy novels.)

Spencer Ackerman on James Jesus Angleton:

Saw The Good Shepherd with Matt and Tom last night. They didn't really like it much; I did. DeNiro -- who for some reason named the Wild Bill character Sullivan instead of Donovan -- basically made Spookfellas. I see Kurt Loder contended that the film doesn't have a story so much as it presents a "corporate biography." That's not really right. The James Jesus Angleton character, Edward Wilson, takes us through the development of This Thing Of Ours and through his descent, we see what the dark side does to us as a country -- we become shortsighted, parochial, paranoid, craven, brutal. It's not unlike how Henry Hill took us through Goodfellas.

This is all underscored by a brief but hilarious scene with Joe Pesci in which Pesci, a vulgar, family-oriented mafioso, expresses fear and impotent hatred of Matt Damon's Wilson.

One quick thing about counterintelligence master James Jesus Angleton. (One of his handles was "the Good Shepherd.") If we're to view the Wilson character as Angleton, DeNiro presents a remarkably subtle and often sympathetic portrayal of Angleton. Wilson is presented as, at worst, moderately paranoid. Angleton believed Henry Kissinger was a Soviet agent. Wilson dips his toe into domestic spying. Angleton was the architect of a massive spying campaign targeting elements within the antiwar movement, which is what led to his downfall. In short, if Wilson really is Angleton, he starts off and ends up with way too much of a soul. Indeed, Angleton's excesses make Michael Ledeen's enthusiasm for the man appear all the more... eccentric, I believe, is the nice word.

Spencer Ackerman on Even the Neoconservative New Republic:P

Merry Christmas, I don't want to fight tonight:

Dear Jon [Chait],

A long time ago, we used to be friends. My best wishes go out to you, Robin, Joanna & Benjy for a happy and prosperous New Year. You remain one of the brightest lights of American liberalism, and for that, we owe you a debt of gratitude. Please believe me when I say I'm being sincere.

That said, I read your column with some dismay. The points you make about neoconservatism playing itself by its association with Bush on the Iraq war apply with greater force to, well, The New Republic. After all, the Standard et. al. had something to gain by the pact they made -- their emergence as the court philosophers of the administration. The magazine, and yourself, had no such investment. You, better and earlier than anyone else, pointed out that the central fact about Bush is that he's a liar. And yet, for a variety of reasons, you and the magazine bought the war.

Now, TNR's editorial position, which I shared at the time, was that there was a broader democratization project that the war advanced, and despite the demonstrated venality of Bush, the project was worth supporting. You didn't buy this, and much to your credit. Your arguments had to do instead with what you believed about Saddam Hussein, WMD and the world order. The trouble with this, as you would probably concede at this point, is that it reduced in late 2002 in significant ways to believing Bush. What I mean by that isn't simply a matter of accepting Bush's statements about WMD. I mean as well that one needed to buy -- or at least suspend disbelief about -- Bush's contentions about the jolly outcomes of removing Saddam. You point out in your column that the Standard and others had coherent reasons to disbelieve that the mission was feasible given the size of the military. But they went along, for the bargain described above. Why did you?

You might object that this is a matter of score-settling, pursued by a disgruntled ex-TNR employee who in any case went along with the war himself. Fine. But I don't mean it like that.... Decent and well-intentioned people can believe widely divergent things about the way Iraq will look after a U.S. withdrawal. However, I would ask that you consider whether your thinking about this question is implicated in the same self-suckering dynamic you identify in your column. Because you're too smart and too good for that...

Spencer Ackerman watches the U.S. arrest Iranians in Iraq:

An international incident in the making. Iranians detained by U.S. forces in Iraq, despite the wishes of the (sovereign!) Iraqi government. One "Western official" helpfully explains to the New York Times that the detentions are "based on information." It just gets better and better!

In the raids, the Americans also detained a number of Iraqis. Western and Iraqi officials said that following normal protocol, the two Iranian diplomats were turned over to the Iraqi government after being questioned. The Iraqis, in turn, released them to the Iranian Embassy. An Iraqi official said his government had strained to keep the affair out of the public eye to avoid scuttling the talks with Iran that were now under way....

All in the car were detained by the Americans. The mosque’s imam, Sheik Jalal al-deen al-Sageir, a member of Parliament from Mr. Hakim’s party, said the Iranians had come to pray during the last day of mourning for his mother, who recently died. He said that after the Iranians left, the Iranian Embassy phoned to say that they had not arrived as expected. “We were afraid they were kidnapped,” Sheik Sageir said.

But he said he was later informed that the diplomats, whom he said that he did not know well, were in the custody of Americans. “I had nothing to do with that,” Sheik Sageir said. “I don’t know why the Americans took them.”

The predawn raid on Mr. Hakim’s compound, on the east side of the Tigris, was perhaps the most startling part of the American operation. The arrests were made inside the house of Hadi al-Ameri, the chairman of the Iraqi Parliament’s security committee and leader of the Badr Organization, the armed wing of Mr. Hakim’s political party.

Another helpful U.S. official calls this a "clarifying moment" and explains that "It's our position that the Iraqis have to seize this opportunity to sort out with the Iranians just what kind of behavior they are going to tolerate." So, if we understand this correctly: We're going to force the Iraqi Shiites to deliberately insult Iran in order to compel a choice between us and them. We're going to do this at a time when we're trying to use Abdul Aziz al-Hakim as a wedge to gain Shiite support and marginalize Moqtada Sadr.

Now, if I'm Hakim, I seize this opportunity. I denounce the U.S. aggression, demand the release of all Iranian detainees, proclaim my desire for a new era of peaceful coexistence with Iran, etc. Maybe I even demand an American apology. Through the other side of my mouth I tell Washington not to worry; and that if they're for-reals about promoting me as an alternative to Moqtada, I need this to gain some street cred. And if any Sunnis are upset about my closeness with Iran -- well, fuck the Sunnis; they don't vote for us anyway.

But if Bush really wants to "clarify" that he has a willing Shiite vassal, then ignore the above paragraph. On the lounge chair next to the couch, Matt suggests, probably correctly, that the history of imperialism holds that this was probably a spur-of-the-moment decision by some low-level official with no coordination with Washington, and now it's all gone pear-shaped. I buy that for now. Now, Bush and Hakim might in fact be able to use this to their advantage, but it would require a degree of cleverness and prioritizing that's been altogether absent from the occupation so far. So expect the worst! It'll probably happen.

That Which We Are, We Are...

Diagnarfl links to me on the Bush Torture Bill, which provokes a... disturbing thought:

diagnarfl: The State of the Union: Brad DeLong says of the torture bill:

This is bad. Very bad. I can't underscore how bad this is. This is our Fugitive Slave Act, our Sedition Act, our Korematsu. This is a danger to our domestic liberties and a terrifying threat to our national security--for its impact on our international standing and on our alliances may be terrible indeed.

[..]

Daniel Webster will certainly walk tonight, for nobody today can say that the Republic is rock-bottomed and copper-sheathed. But she nevertheless does stand as she stood. Things have been just as bad, and things have been almost as bad in the memory of men yet living.

And then [Brad] talks about the events of the McCarthy era. Let's hope that the Edward R. Murrow's of today are hard at work against these latest crazed fear & hate mongers.

My thought: We are the Edward R. Murrows of today. It's up to us (for some broadly construed value of "us", of course).

---

Though much is taken, much abides
And though we are not now that strength
Which once moved heaven and earth
That which we are, we are...

"Neighbor, How Stands the Union?"

Ah. Today Daniel Froomkin boosts the journalistic reputation of Washington Post-Newsweek Interactive--which, as everybody in the Post newsroom hastens to assure me, is a very separate operation from the print Washington Post:

Dan Froomkin - Bush Rules - washingtonpost.com: Today's Senate vote on President Bush's detainee legislation, after House approval yesterday, marks a defining moment for this nation. How far from our historic and Constitutional values are we willing to stray? How mercilessly are we willing to treat those we suspect to be our enemies? How much raw, unchecked power are we willing to hand over to the executive?

The legislation before the Senate today would ban torture, but let Bush define it; would allow the president to imprison indefinitely anyone he decides falls under a wide-ranging new definition of unlawful combatant; would suspend the Great Writ of habeas corpus; would immunize retroactively those who may have engaged in torture. And that's just for starters.... The people have lost confidence in their president.... Bush remains deeply unpopular... mistrusted... out of touch....

But he's still got Congress wrapped around his little finger. Today's vote will show more clearly than ever before that... the Republicans who control Congress are in lock step behind the president, and the Democrats -- who could block him, if they chose to do so -- are too afraid to put up a real fight. The kind of emotionless, he-said-she-said news coverage, lacking analysis and obsessed with incremental developments and political posturing -- in short, much of modern political journalism -- just doesn't do this story justice....

This is bad. Very bad. I can't underscore how bad this is. This is our Fugitive Slave Act, our Sedition Act, our Korematsu. This is a danger to our domestic liberties and a terrifying threat to our national security--for its impact on our international standing and on our alliances may be terrible indeed.

The sixteen-year-old is reading about another Daniel: "The Devil and Daniel Webster" is assigned for his English class:

Steven Vincent Benet, "The Devil and Daniel Webster": It's a story they tell in the border country, where Massachusetts joins Vermont and New Hampshire. Yes, Dan'l Webster's dead--or, at least, they buried him. But every time there's a thunderstorm around Marshfield, they say you can hear his rolling voice in the hollows of the sky. And they say that if you go to his grave and speak loud and clear, "Dan'l Webster--Dan'l Webster!" the ground'll begin to shiver and the trees begin to shake. And after a while you'll hear a deep voice saying, "Neighbor, how stands the Union?" Then you better answer the Union stands as she stood, rock-bottomed and copper-sheathed, one and indivisible, or he's liable to rear right out of the ground...

Daniel Webster will certainly walk tonight, for nobody today can say that the Republic is rock-bottomed and copper-sheathed.

But she nevertheless does stand as she stood. Things have been just as bad, and things have been almost as bad in the memory of men yet living.

From Fred Friendly's memoir, Due to Circumstances Beyond Our Control, p. 59 ff:

The day after [Joe] McCarthy's reply [broadcast to Edward R. Murrow's attack on him], President Eisenhower held a news conference. After expressing doubt over [whether there had been] any delay over the production of the H-bomb [caused by Communist agents working for the U.S. government, as McCarthy had claimed], the President paid tribute to [Edward R.] Murrow, "my friend," which provided headlines for most afternoon papers that day.

As for the senator's broadcast, I don't believe that anybody [informed], including his own supporters, felt that he had made his case against Murrow, but as Gould of the New York Times observed: "When as much mud is thrown at an individual as Senator McCarthy threw at Mr. Murrow, it is futile to expect that all the debris can be wiped from the public mind.... [McCarthy] huffed and he puffed but Mr. Murrow's house wouldn't blow away..."

That house suffered more wind damage than we realized.... Frank Stanton... [said that] reaction to our two programs had been so negative... some broadcasters had told him that the Murrow "attack on McCarthy" might cost the company the network.... [A] public-opinion survey... CBS had commissioned from Elmo Roper... 59% of the adult population had either watched or heard about the program... 33% of those [who had watched or heard] believed either that McCarthy had proved Murrow was pro-Communist or had raised doubts about Murrow.

I told Stanton that if the poll had been five to one in McCarthy's favor... there would have been even more justification for having done the original telecast. Stanton... was most distressed; there was certainly no suggestion that McCarthy was justified, but he believed that such controversy and widespread doubts were harmful to the company's business relationships...

Even with Eisenhower's explicit but coded support, CBS executives still wished that Murrow had not made his anti-McCarthy broadcast. It would have been nice if Eisenhower had been more explicit and aggressive in his attempts to undermine McCarthy--but Eisenhower was never one to lead from the front where he might take a bullet; he was one to work night and day to get the people at the front the bullets they needed.

Enemies of Economics: Thomas Carlyle

Enemies of economics: Thomas Carlyle:

Carlyle, "Latter Day Pamphlets": I say, it is the everlasting privilege of the foolish to be governed by the wise; to be guided in the right path by those who know it better than they. This is the first "right of man;" compared with which all other rights are as nothing.... [I]n these sad times of doubt and cowardly sloth, [the wise man] has long everywhere been endeavoring to reduce [this duty to rule] to its minimum, and has in fact in most cases nearly escaped altogether. It is an ungoverned world; a world which we flatter ourselves will henceforth need no governing. On the dust of our heroic ancestors we too sit ballot-boxing, saying to one another, It is well, it is well!...

By multifarious devices we have been endeavoring to dispense with governing; and by very superficial speculations, of laissez-faire, supply-and-demand, &c. &c. to persuade ourselves that it is best so.... [I]t is thought Phantasm Captains, aided by ballot-boxes, are the true method, after all. They are much the pleasantest for the time being! And so no Dux or Duke of any sort, in any province of our affairs, now leads: the Duke's Bailiff leads, what little leading is required for getting in the rents; and the Duke merely rides in the state-coach. It is everywhere so....

Certainly the notion everywhere prevails among us too, and preaches itself abroad in every dialect, uncontradicted anywhere so far as I can hear, That the grand panacea for social woes is what we call "enfranchisement," "emancipation;" or, translated into practical language, the cutting asunder of human relations, wherever they are found grievous, as is like to be pretty universally the case at the rate we have been going for some generations past. Let us all be "free" of one another; we shall then be happy. Free, without bond or connection except that of cash-payment; fair day's wages for the fair day's work; bargained for by voluntary contract, and law of supply-and-demand: this is thought to be the true solution of all difficulties and injustices that have occurred between man and man.

To rectify the relation that exists between two men, is there no method, then, but that of ending it?... [H]uman beings used to be manifoldly related, one to another, and each to all; and there was no relation among human beings, just or unjust, that had not its grievances and difficulties, its necessities on both sides to bear and forbear. But... we have changed all that... "the voluntary principle" has come up, which will itself do the business for us.... Cut every human relation which has anywhere grown uneasy sheer asunder; reduce whatsoever was compulsory to voluntary, whatsoever was permanent among us to the condition of nomadic:--in other words, loosen by assiduous wedges in every joint, the whole fabric of social existence, stone from stone: till at last, all now being loose enough, it can, as we already see in most countries, be overset by sudden outburst of revolutionary rage; and, lying as mere mountains of anarchic rubbish, solicit you to sing Fraternity, &c., over it, and to rejoice in the new remarkable era of human progress we have arrived at...

---

[T]o these floods of Irish Beggars, Able-bodied Paupers, and nomadic Lackalls, now stagnating or roaming everywhere, drowning the face of the world (too truly) into an untenantable swamp and Stygian quagmire, has the Chief Governor of this country no word...?... Perhaps... the following...: Speech of the British Prime-Minister to the floods of Irish and other Beggars, the able-bodied Lackalls, nomadic or stationary, and the general assembly, outdoor and indoor, of the Pauper Populations of these Realms.

"Vagrant Lackalls, foolish most of you, criminal many of you, miserable all; the sight of you fills me with astonishment and despair. What to do with you I know not; long have I been meditating, and it is hard to tell. Here are some three millions of you, as I count.... The question, What to do with you? especially since the potato died, is like to break my heart!

"One thing, after much meditating, I have at last discovered.... Vagrant Lackalls, I at last perceive, all this that has been sung and spoken, for a long while, about enfranchisement, emancipation, freedom, suffrage, civil and religious liberty over the world, is little other than sad temporary jargon, brought upon us by a stern necessity,--but now ordered by a sterner to take itself away again a little. Sad temporary jargon, I say: made up of sense and nonsense,--sense in small quantities, and nonsense in very large... no better than fatal infinite nonsense eternally untrue. All men, I think, will soon have to quit this....

"All men will have to quit it, I believe. But to you, my indigent friends, the time for quitting it has palpably arrived! To talk of glorious self-government, of suffrages and hustings, and the fight of freedom and such like, is a vain thing in your case. By all human definitions and conceptions of the said fight of freedom, you for your part have lost it, and can fight no more. Glorious self-government is a glory not for you.... [Y]ou, by imperfect energy and redundant appetite, by doing too little work and drinking too much beer, you (I bid you observe) have proved that you cannot do it!... Know that, whoever may be 'sons of freedom,' you for your part are not and cannot be such. Not 'free' you, I think, whoever may be free. You palpably are fallen captive,--caitiff, as they once named it:--you do, silently but eloquently, demand, in the name of mercy itself, that some genuine command be taken of you....

"But as for you, my indigent incompetent friends, I have to repeat with sorrow, but with perfect clearness, what is plainly undeniable, and is even clamorous to get itself admitted, that you are of the nature of slaves.... Emancipation? You have been 'emancipated' with a vengeance! Foolish souls, I say the whole world cannot emancipate you. Fealty to ignorant Unruliness, to gluttonous sluggish Improvidence, to the Beer-pot and the Devil, who is there that can emancipate a man in that predicament? Not a whole Reform Bill, a whole French Revolution executed for his behoof alone: nothing but God the Maker can emancipate him, by making him anew....

"Plainly I let you know, and all the world and the worlds know, that I for my part mean it so. Not as glorious unfortunate sons of freedom, but as recognized captives, as unfortunate fallen brothers requiring that I should command you, and if need were, control and compel you, can there henceforth be a relation between us. Ask me not for Indian meal; you shall be compelled to earn it first.... Your want of wants, I say, is that you be commanded in this world, not being able to command yourselves. Know therefore that it shall be so with you.... [N]eedful permanency, soldier-like obedience, and the opportunity and the necessity of hard steady labor for your living, have begun.... He that prefers the glorious (or perhaps even the rebellious inglorious) 'career of freedom,' let him prove that he can travel there, and be the master of himself; and right good speed to him. He who has proved that he cannot travel there or be the master of himself,--let him, in the name of all the gods, become a servant, and accept the just rules of servitude!...

We are proud to have such enemies.

Note that this is not cherry-picked. Carlyle has much worse: his "Occasional Discourse on the Nigger Question," for example.

Pasting Feathers Together and Hoping for a Duck

John Holbo writes:

John Holbo: Like pasting feathers together and hoping for a duck: If you haven't, you should read this Intel-Dump post, "National Insecurity" http://www.intel-dump.com/archives/archive_2006_09_17-2006_09_23.shtml#1158687984. And then read all 154 comments. If every American voter had to read the whole thread (it's only, like, 30,000 words) I think the Democrats would get about 70% of the popular vote, showing most dramatic improvement in red states. Of course, we would still have no real plan for Iraq, sadly. But accountability starts at home.

The moral progress of the spectacularly ill-named Diogenes, through the thread, is worthy of special attention. He is the first commenter, leaping in with a brash accusation of partisan bias. When it is pointed out this thing he calls "a subsidiary of moveon.org" is a catalogue of facts, he fires back, guns blazing in all manner of directions. Gradually he is reduced to mounting a narrow but determined point defense: we need to be roughing up some terrorists. He's shining a lantern beam of, like, moral darkness, in the dead of factual night, looking for a bad man. Or, to put it a bit less unkindly, he is bound and determined to find some way to be bloody-mindeder than thou. The last stand of the moral clarity brigade. The fact that Diogenes in effect sidetracks serious discussion of Iraq and national security issues by loudly making the case for torture is a hideous illustration of just how wrong the frame of the national debate is, at the moment.

I'll just quote the thread's owner, in comments:

Some will wonder why I bother to respond to Dio instead of ignoring him as a troll? Because he is not a troll. He believes what he is saying, and 32% of US voters agree with him. They can't really say why they agree, or they rely on "documents" that even the White House won%'t push for fear of giving the Democrats another cudgel to beat them with -- in short, the administration knows that such talk is nonsense. But why do they still imply such nonsense? Because people WANT to believe that the president has a plan, they WANT to believe that our nation was not misled or lied to, they WANT to believe that our cause, for which we have sacrificed so much, is just and right. They WANT to believe that invading Iraq was the right thing to do.

The title of this post is taken from another commenter, who thusly characterizes the CPA. The torture debate, I guess, is what happens when "pasting feathers" turns nasty. We'll show that duck.

The first step for the Dems is becoming the party of speaking hard truths about what is going on NOW before they can hope to be the party of making plans about what should be done. (Plans they have no hope of implementing before 2008, after all. But telling the truth can start today.) Democrats will, of course, be maligned as traitors and defeatists and Bush-hating partisans -- a thousand Diogeneses, as if to make up for the duck, will tar and feather with terrible zeal. But I simply refuse to believe that telling hard truths and holding a couple yards of high moral ground -- about torture -- isn't a stance that can win the approval of a majority of the American people.

One of the great things about the internet is that one virtually meets so many people who make one proud to belong to their species. And then there are people like George W. Bush, Dick Cheney, and the 101st Fighting Keyboarders.

Proud to Be a Fellow-Citizen of Radley Balko's

Unfogged says "Radley Balko for Emperor!" Jim Henley has the extended version:

Radley Balko for Emperor: It looks very likely that Radley Balko has saved Cory Maye's life. I put it that way on purpose. In fact, it has taken dogged, pro bono legal work by Covington and Burling, the local efforts of the public defender and considerable generosity on the part of Radley's employer regarding how he's been spending his time the last few months. We should salute every one of those people. And to make Radley's employers especially happy, we should buy his book or at least download the PDF.

But all of those other people got involved because Radley Balko dragged this case into the public eye and kept it there. If there was ever a triumph of the fucking blogosphere moment, this is it. So much of what The BlogosphereTM crows about amounts to collecting scalps - hit pieces, gang stomps, ambushes. Getting people fired. Disgracing someone.

Here, instead, a guy who did not deserve to be killed but was going to be, will probably not be killed after all. His daughter will not be orphaned.

I'm very proud that Radley Balko is my friend.

Your cynical voice may be saying,"It's great that one black guy in the country interested enough rich white lawyers to get some eventual justice, but that's not a justice system worthy of the name." You'd be right. Based on his writing, I'm sure Radley would agree with you. The Maye case is a start. It needs to become the teachable moment about how far off track the criminal justice system in this country has gotten, and how much farther wrong it could go. Cory Maye got swamped by a perfect storm of liberty-destroying practices American law enforcement has adopted in the name of our wasteful, cruel and impossible "War on Drugs." Confidential informants, no-knock raids, police militarization. They all feature.

And it threatens to get worse. This week in "compromise" legislation the Senate gave the President authority to hide people away and torture them in the name of "fighting terrorism." Since 2001, every expanded "antiterrorism" power that Congress has granted to law enforcement has ended up being used by federal agencies against ordinary crime. Informal torture has been part of the drug war for a long time. Formal torture is coming as soon as some legislator figures pushing for it will let him appear "tough on crime," or as soon as some prosecutor decides it will help him get elected governor. Once the state can alternatively interrogate the Cory Mayes of the world into "confessing" to their crimes, there will be less of this fuss and bother about appeals.

For now, though, Cory Maye will, we think, live. It's a start.

Farthing, by Jo Walton

Farthing: A very good novel about the coming of fascism:

Making Light: Three days in Montreal: Posted by Patrick at 09:56 PM: We're back from the little convention Jo Walton threw to celebrate the publication of her latest novel Farthing, which is scarily good and disquietingly pertinent and you should all buy and read it right away.

The convention itself was as much fun as any small con I've ever been to, with a full program of panel discussions deftly engineered to keep conversation flowing at all hours. Jo is a woman with a talent for having interesting friends and getting them talking with one another. For me and Teresa, as for many of the several dozen attendees, the other star attraction was the city of Montreal. I'd been there once before, for a World Fantasy Con in a hotel on a boring downtown block, but on this visit I quickly realized I'd barely had an inkling of what an interesting place it is...

Max Sawicky on 911

Archived Weblog Entry - 09/11/2002: "9-11: A RADICAL RANT".

Michael Froomkin Thinks ABC/Disney Does the Impossible

Michael Froomkin says that ABC/Disney looks like it is about to do something I would have thought impossible in the United States of America: about to libel public figures:

Discourse.net: ABC's '9/11' Libel By Fiction Exposure: ABC's '9/11' Libel By Fiction Exposure

In all the ink, real and virtual, that's being spilled over ABC's fictionalization of the run-up to the 9/11 attacks, it seems to me that one aspect of ABC/Disney's position has been missed: if the public descriptions of the show are accurate, then the people who made it and those who plan to show it have some serious libel exposure.

To recap, just in case you are reading this blog from Pluto, ABC hired a bunch of right-wing hardcases who got the Republican chair of the 9/11 Commission to lend them his good name. Purporting to dramatize the findings of the 9/11 commission they instead produced the sort of mockumentary that Rush Limbaugh would love, and in fact does love.

The show includes scenes that are flat-out inventions designed to show that the Clinton administration refused clear shots at bin Laden (in fact, no such event took place) and was generally to blame for the 9/11 attacks. Missing from the show are key moments such as Bush ignoring written warnings that al Quaeda was planning to attack. Equally absent is the famous 'My Pet Goat' moment. And so on.

Publicity for the show has been a bit odd: ABC sent pre-release tapes to Limbaugh and to conservative bloggers, but not liberal ones. It also refused requests by Clinton and others in his administration for an advance look -- shocking disrespect for a former President.

The blogs are hard at work on this one. But nowhere have I seen mention of the libel claim that I think is looming.

Generally in the United States you can't libel a public figure. Plus, libel claims based on fiction are obviously much harder than claims based on assertions in supposed non-fiction. But neither of these bars is insurmountable. And on the facts as reported, they could be surmounted surprisingly easily.

As one New York court put it not so long ago, a claim of "libel by fiction" requires that "the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two." The novel Primary Colors didn't meet that test as it didn't use real names, nor were the physical description of any character like the plaintiff in that case. But the 9/11 show differs from Primary Colors in a very basic way: It uses actors portraying real people with their actual names involved in activities that are a blend of real things they did and of the partisan imagination. I suspect it wouldn't be hard to get a court to see the difference from Primary Colors-like facts. Furthermore, even if ABC were to run a big disclaimer with the episode, that wouldn't necessarily suffice.

It's even harder to make out a case of libel when the victim is a public figure. Basically, to win you have to show that the author of the libelous work demonstrated a "reckless disregard for the truth." Given the public nature of the warnings that various scenes are false, if in fact they are false then I think this part of the case should be pretty easy.

If I were at ABC or Disney I'd be having a serious talk with my lawyers right about now.

More Lies From the Bush...

Impeach George W. Bush. Impeach him now.

Spencer Ackerman writes:

The Plank: WHO APPROVED BUSH'S SPEECH?: So it's not just me who sees the lies in Bush's defense of torture yesterday. My colleague Andrew Sullivan does as well, and so does ex-Justice Department official Marty Lederman (via Laura Rozen). That raises the question: Who vetted Bush's speech?

"Everybody," says a National Security Council spokesperson. "It was vetted, vetted and more vetted at every level of government." Well, like who in particular? Steve Hadley? John Negroponte? Condoleezza Rice? "Negroponte ... I imagine the Secretary of State, but I'm not sure. The primary vetters were [in the intelligence community], of course, the [Director of National Intelligence, John Negroponte], Hayden. But this was vetted, vetted and vetted."

I'm told I'll have more reaction from the White House later, including (allegedly) an official statement, so I'll post that as soon as I have it....

BUSH LIES ABOUT RAMZI BIN AL SHIBH, ABU ZUBAYDAH AND TORTURE: Not that it should surprise anyone anymore, but yesterday's stomach-churning Bush speech defending torture contains this little number:

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used--I think you understand why--if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

Zubaydah was questioned using these procedures, and soon he began to provide information on key al Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September the 11th. For example, Zubaydah identified one of KSM's accomplices in the 9/11 attacks--a terrorist named Ramzi bin al Shibh. The information Zubaydah provided helped lead to the capture of bin al Shibh. And together these two terrorists provided information that helped in the planning and execution of the operation that captured Khalid Sheikh Mohammed.

First, according to Ron Suskind, Abu Zubaydah didn't clam up because he was "trained to resist interrogation," but because he has the mental capacity of a retarded child. Second, the idea that Abu Zubaydah's interrogation tipped off the U.S. to the existence of Ramzi bin Al Shibh is just an outright lie. A Nexis search for "Ramzi Binalshibh" between September 11, 2001 and March 1, 2002--the U.S. captured Abu Zubaydah in March 2002--turns up 26 hits for The Washington Post alone. Everyone involved in counterterrorism knew who bin Al Shibh was. Now-retired FBI Al Qaeda hunter Dennis Lormel told Congress who Ramzi bin Al Shibh was in February 2002. Abu Zubaydah getting waterboarded and spouting bin Al Shibh's name did not tell us anything we did not already know.

Of course, most Americans don't have access to Nexis. And most Americans don't remember--and can't be expected to remember--newspaper coverage of Al Qaeda for a seven-month stretch between the attacks and Abu Zubaydah's capture. Bush is exploiting that ignorance to tell the American people an outright lie in order to convince them that we need to torture people. As Bush once said in another context, if this is not evil, then evil has no meaning.

---

Why Oh Why Can't We Have a Better Press Corps?

While we are at it, consider that Slate does--presumably--pay its Lexis-Nexis bill, yet Slate's John Dickerson writes:

Bush tries once more to sell his security policies. By John Dickerson - Slate Magazine: I thought the details Bush offered today sounded fairly persuasive...

Memo to Jacob Weisberg: Slate will die unless you employ people who will use Google and Lexis-Nexis--not people who won't.

The above is wrong. I apologize. As a correspondent writes:

The whole point of [Dickerson's] saying Bush "sounded fairly persuasive" was to set up the next line which you cleverly omit: "But for him to ask us to simply trust him about anything at this point is a hard sell." The... piece... a political piece and not a policy piece... [focuses] on whether a speech that sounded splashy to voters and was staged for that purpose would have a poltiical impact.... [I]nstant analysis... plays its role... [the] line you've taken does not represent the weight or thrust of the piece.

I would question whether there should be stories that are "political... not policy" at all. But the point that Dickerson's sentence was setting up an opposition between how Bush *sounds* and whether we can afford to believe that he is not lying--that's a good one.

Impeach George W. Bush

As best as I can see, the balance of the probabilities is that George W. Bush spent this morning lying his head off. Is there any reason to believe him, rather than to believe Ron Suskind's sources?

George W. Bush today:

President Discusses Creation of Military Commissions to Try Suspected Terrorists: Home > News & Policies: Within months of September the 11th, 2001, we captured a man known as Abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country. Zubaydah was severely wounded during the firefight that brought him into custody -- and he survived only because of the medical care arranged by the CIA.

After he recovered, Zubaydah was defiant and evasive. He declared his hatred of America. During questioning, he at first disclosed what he thought was nominal information -- and then stopped all cooperation. Well, in fact, the "nominal" information he gave us turned out to be quite important. For example, Zubaydah disclosed Khalid Sheikh Mohammed -- or KSM -- was the mastermind behind the 9/11 attacks, and used the alias "Muktar." This was a vital piece of the puzzle that helped our intelligence community pursue KSM. Abu Zubaydah also provided information that helped stop a terrorist attack being planned for inside the United States -- an attack about which we had no previous information. Zubaydah told us that al Qaeda operatives were planning to launch an attack in the U.S., and provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained -- one while traveling to the United States.

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

Zubaydah was questioned using these procedures, and soon he began to provide information on key al Qaeda operatives...

Me, quoting Barton Gellman, quoting Ron Suskind, last June:

Brad DeLong's Semi-Daily Journal: Ron Suskind's New Book: Ron Suskind has a new book. Barton Gellman reviews it:

Ron Suskind's gripping narrative of what the White House has celebrated as one of the war's major victories: the capture of Abu Zubaydah.... Described as al-Qaeda's chief of operations... shipped to a secret prison abroad. Suskind shatters the official story line here. Abu Zubaydah, his captors discovered, turned out to be mentally ill... nothing like the pivotal figure they supposed him to be... appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like.

That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

How could this have happened? Why are we learning about it only now? Those questions form the spine of Suskind's impressively reported book....

[T]he intelligence and counterterrorism professionals whose point of view dominates this book... came to believe, Suskind reports, that "their jobs were not to help shape policy, but to affirm it." (Some of them nicknamed Cheney "Edgar," as in Edgar Bergen -- casting the president as the ventriloquist's dummy.)...

[T]he unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each... target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

Two points in Barton Gellman's review cannot be allowed to pass without comment. The first is his description of how Abu Zubaydah was treated:

...water-board[ing], which reproduces the agony of drowning.... threatened... with certain death... withheld medication... bombarded him with deafening noise and harsh lights, depriving him of sleep... he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty...

Yet Gellman cannot write the word "torture." The most he can bring himself to write is "harsh interrogation methods."

The second is Barton Gellman's question:

How could this have happened? Why are we learning about it only now?

I know that I am not learning about "this"--if the "this" is the Bush administration's inept, cruel, and immoral botching of the War on Terror--now, and I don't think Barton Gellman is learning about it now. He may be pretending to be learning about it now. But the big picture has been clear for years.

Impeach George W. Bush. Impeach him now.

I.F. Stone on Russia, America, and the American Press

Kate G. writes to recommend the new I.F. Stone biography by Myra McPherson, All Governments Lie--thus adding one more to the pile of books to be read. I have been slowly working my way through The Best of I.F. Stone.

I.F. Stone on the Soviet Union, in 1956:

I have to say what I really feel after seeing the Soviet Union and studying the statements of its leading officials. This is not a good society and it is not led by honest men.

No society is good in which men fear to think--much less speak--freely. I don't care how many tons of steel the Russians produce.... This society is a paradise only for a rather stupid type of Communist party member.... If you believe everything you read in the papers, lack imagination, and feel no need to think for yourself, you can be happy in the Soviet Union. Or you can shut yourself up in a scientific laboratory and work on your own scientific problems and close your eyes and ears to what is going on outside or maybe even to your unlucky colleague next door....

The London Daily Worker seemed like a bright, newsy, real newspaper after the Soviet press.... Whatever the shortcomings of the Western press, there is no comparison between it and the Soviet press....

[T]he present leaders of the Soviet Union are dishonest... with their own people.... If they want to make a clean break with the Stalinist past, they can best demonstrate it by telling their people what they are doing and why.... No one outside a very small circle at the top really knows why Beria was executed.... Only persons rendered permanently idiotic by complete submergence in party-line literature will take at face value the charge that he was a British or imperialist agent. This is how Stalin operated... first slander and then the firing squad were his answers. And everybody turned out to be a foreign agent!...

To blame the evils of Stalinism on Stalin is obviously inadequate.... Stalinism was the natural fruit of the whole spirit of the Communist movement. The wanton executions, the frame-ups, the unjust convictions and exiles--these would not have been possible except in a movement whose members had been taught not only to obey unquestionably but to hate.... This was the spirit the Communist movement bred. Stalin embodied that spirit. To change it one must do more than hang Stalin in effigy, or defame him in self-serving panic as Khrushchev is doing.

The more one studies Russian hisotry the more one sees how deep were the roots of Leninism in Russian radical thinking of the nineteenth century.... [S]ocialism in Russia is there to stay.... Russian industrialization, despite Russian solvenliness and that callous waste of men and manpower one feels in Russia, has advanced on giant boots, thanks to economic planning.... Khruschev... shows that [denunciations of the system] are not figments of hostile propaganda. ("Multiply all you have read abroad by ten," a Communist told me, "and you will get the dimensions of Khrushchev's revelations about Stalin")... How is a repetition of these terrible evils to be avoided. How indeed are they to be wholly eliminated? It is in seeknig the answer to these questions that I found Russia and its leaders most disappointing....

The speeches of the new leaders are wholly inadequate to the correction of the evils.... So long as there is only one party, and it has a monopoly of government and controls all expression, there cannot be freedom. Russia is strong enough, secure enough.... Their society is stable enough for stable politics. The kind of one-party rule which may have been necessary to achieve the Revolution has become a positive hindrance; this is the real lesson of the revelations about Stalin....

[T]he ferment that began with Stalin's death... events whose momentum [the oligarchs] may not be able to control... opened Russia's windows on the West... given us a chance to resume contact with this huge and wonderful segment of humanity....[W]e ought to strive to keep the windows open, and to help along the process which may someday carry Russia forward... to freer institutions. I believe not only her people but her rulers want peace; and I believe that given peace they will slowly liquidate Russia's terrible backwardness and unholy past.

But this process will not be helped by indulging in delusions, or by quickly forgiving and forgetting Stalinism.... [W]e will not help the russian people by letting this crowd of leaders soft-soap us.... Nor will we help ourselves, and our power to fight for a better world and a better society, by joining hands with the poor deluded house-broken Communist parties of the West. They remain Russian puppets; they will jump back through the hoops as soon as they get new orders. Their members cannot be freed from intellectual bondage until the parties themselves have disintegrated...

I.F. Stone on the United States, 1954:

If there is indeed a monstrous and diabolic conspiracy against world peace and stability, then isn't McCarthy right? If "subversives" are at work like termites... are they not likely to be found in the most unlikely places and under the most unlikely disguises?... To doubt the power of the devil... is... to incur suspicion of being oneself in league with the powers of evil. So all the fighters against McCarthyism are impelled to adopt its premises. This was true even of the [Adlai] Stevenson speech, but was strikingly so of [anti-McCarthy Senator] Flanders [R-VT]. The country is in a bad way when as feeble and hysterical a speech is hailed as an attack on McCarthyism. Flanders... spoke of Italy as "ready to fall into Communist hands," of Britain "nibbling at the drugged bait of trade profits." There are passages of sheer fantasy.... "In Latin America... there are sturdy strong points of freedom... [and] spreading infections of Communism. Whole countries are being taken over..." What "whole countries"? And what "sturdy strong points of freedom"?... Flanders told the Senate, "We will be left with no place to trade and no place to go except as we are permitted to trade and to go by the Communist masters of the world."

The center of gravity in American politics has been pushed so far right that such childish nightmares are welcomed as the expression of liberal statesmanship. Nixon becomes a middle-of-the-road spokesman.... Ther are some charges which must be laughed off or brushed off. They cannot be disproved. If a man charges that he saw Eisenhower riding a broomstick over the White House, he will never be convinced to the contrary by sworn evidence that the President was in bed reading a Western....

Nowhere in American politics is there evidence of any important figure (even Stevenson) prepared to talk in sober, mature, and realistic terms of the real problems which arise in a real world where national rivalrise, mass aspirations, and ideas clash as naturally as waves of the sea. The premises of free society and of liberalism find no one to voice them, yet McCarthyisms will not be ended until someone has the nerve to make this kind of fundamental attack on it...

And I.F. Stone on the American press corps, from 1963:

In the worst days of the witch hunt and the cold war, I felt like a guerilla warrior, swooping down in surprise attack.... The reporter assigned to specific beat... soon finds himself a captive.... There are many ways to punish a reporter who gets out of liine... the press office may neglect to notify him while his rivals get the story.... There are many ways to flatter... off-the-record dinners with high officials... service clubs. Reporters tend to be absorbed by the bureaucracies they cover.... Should a reporter resist the pressure, there are many ways to get rid of him. If his publisher is not particulary astute or independent, a little private talk, a hint that the reporter seems irresponsible--even a bit radical--"sometimes one could even mistake him for a Marxist"--will do the job....

But a reporter covering the whole capital... particulary if he is his own employer... is immune.... Washington is full of news.... One can always ask questions...

Judge Taylor and FISA

Gail Collins and the New York Times editorial page should be ashamed of themselves for printing an op-ed by Ann Althouse attacking Judge Taylor's ruling enforcing FISA,

J.D. Henderson writes at Intel Dump:

INTEL DUMP - More on ACLU v NSA: Today's NYT's carries an editorial about how bad Judge Taylor's opinion was. It reads in part:

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is "just a few pages of general ruminations ... much of it incomplete and some of it simply incorrect."

Sounds damning. Except... Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force? Really? Immensely difficult?

No. Immensely SIMPLE matters, not difficult.... [Bush] admits to violating FISA on the grounds he has the inherent authority to ignore laws he doesn't like explains why so many find the opinion poorly reasoned. Judge Taylor made short shrift of the administration's ridiculous argument, and that upset many people....

But they were not difficult matters. They were as simple as I have just laid out. The president admits breaking the law, but says he can do so because of two reasons: 1) inherent powers, and 2) the AUMF. Judge Taylor said no to both.... [S]he is chastised... because she did not find the question "immensely difficult."...

The editorial continues:

The potential for the president to abuse his power has nothing to do with kings and heredity.... [T]he president is not claiming he has powers outside of the Constitution.... He's making an aggressive argument about the scope of his power under the law.

Really? His claims of inherent executive power that trumps the 4th Amendment and a criminal statute passed by Congress do not have anything to do with kings?... Weren't the checks on the executive branch designed precisely because of the tyranny of kings? And if he isn't arguing that he is above the law, what do we make of the claim that he can ignore FISA (A LAW) because of his "inherent" powers as president? Isn't that a claim that he is above the law? Isn't that the very argument he is making?

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president.

No. Not really. I guess I should have hundreds of citations and pages of exhaustive analysis that support my radical idea that the president can not ignore laws because he doesn't like them. But I won't. Why? Because it is not a serious argument.... That does not mean that Judge Taylor ignored the argument, she just found it very simple to dispose of, and did so quickly....

The biggest fear of this administration must be that the Supreme Court finds the administration's argument just as easy to dispose of -- for then the claim of a simple misunderstanding of "immensely difficult" points of nuanced legalese becomes untenable. We would have instead just what Judge Taylor found: a simple law, a clear Constitutional command, and an obvious and blatant violation of both.

The author of the NTY editorial writes on her blog:

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality.

Perhaps because it was simply not difficult?...

The talk of poor reasoning or "difficult" legal issues is a smokescreen that attempts to make it seem reasonable that the president could have knowingly violated a criminal statute in violation of the Constitution -- in short, the pundits and the administration want to convince you that if the president did commit a felony (he did), well, it was a simple mistake due to the immensely complicated law.... [But that immensely complicated law was exceedingly simple. The law said get a warrant. The president said he did not have to follow that law. Judge Taylor said no way.

It didn't take a legal treatise to explain why Bush was wrong, and the arguments against this opinion are based on a flawed premise that this was a difficult decision that required heavy scholarly effort.

It did not....

This was a short and simple opinion on a very easy question, and to expect anything else means you think the president might have had a tenable position and the judge should have spent pages and pages analyzing his claims. He is not a king, and thus his arguments are quickly disposed of, as they were in Judge Taylor's opinion -- an opinion that was well-written despite what you hear from the critics.

"If You Really Want to Know What's Going on, I Recommend Sticking to the Blogs"

Wow. Orin Kerr says it: "If you really want to know what is going on, I recommend sticking to the blogs."

The Volokh Conspiracy - - FISA, the NSA, and the Specter Bill: In the last 24 hours, there have been some important developments concerning legislation to address the NSA domestic surveillance program. The White House and Senator Specter have agreed to a bill, although the MSM is doing a pretty bad job (at least so far) of reporting what is actually in it. If you really want to know what is going on, I recommend sticking to the blogs. I have posted a few things at my solo blog, including this recent post: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring. Balkinization has several very critical posts, including Jack's post Specter Gives Up The Game -- The Sham NSA Bill and Marty's The Specter Monstrosity. Over at Prawfsblawg, Steve Vladeck has a post entitled The Specter Bill, the TSP, and the FISA Court: Some Thoughts.

This is, I think, a watershed--we have climbed the mountain, and are now coming down on the reality-based side. It's not the best world, this world in which, as Matthew Yglesias put it:

The Social Security Debate Once Again: The New York Times just managed to completely misrepresent the Sununu plan. It's really just a more intense version of the Bush plan.... Still a bad ide... but not orders of magnitude more lunatic as Richard Stevenson described it. It would be nice to get accurate information from the newspapers and not need to rely on the blogosphere to find solid reporting.

But this is the world in which we live in: respected weblogs run by intelligent commentators with good track records and strong senses of honor are our best information sources these days.

What Is in the Specter Bill?

Orin Kerr reports:

OrinKerr.com: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring: I have read the Specter bill.... Section 9... is a "clarification" only if you assume the correctness of the President's more controversial claims to Article II authority. If you accept the more traditional understanding of the separation-of-powers... in... Hamdan v. Rumsfeld... this "clarification" is actually a major reorientation of the role of Congress in foreign intelligence monitoring away from the 1978 framework of FISA.

The key language is the new Section 801 of FISA:

Nothing in this Act [FISA] shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.

That strikes me as a pretty major change, given that the purpose of FISA in 1978 was to attempt to regulate that authority.... Similarly, the bill would amend Congress's current command that the Wiretap Act and FISA must provide the exclusive means of conducting monitoring.... Maybe I'm missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.

Congress can certainly do this, of course: Congress passed FISA, and it can repeal or water it down as well. And of course different people will have diffferent views on whether this is a good idea. But it does seem like this is a major shift in approach, and one that is probably more important in the long run than whether the NSA domestic surveillance progam is submitted to the FISA court for review.

Why Oh Why We Can't Have a Better Press Corps:

You know, I don't think there will be a Washington Post in twenty years. Too often what's true in the Post isn't news, and what's new in the Post isn't true:

Eschaton: The Media Is The Problem: Greenwald:

The reporters who write on these matters literally don't understand the issues they are reporting, even though the issues are not all that complicated. Notwithstanding the fact that [Specter's] this bill expressly removes all limits on the President's eavesdropping powers -- and returns the state of the law regarding presidential eavesdropping to the pre-FISA era, when there were no limits on presidential eavesdropping of any kind -- Charles Babington and Peter Baker told their readers in The Washington Post -- in an article hilariously entitled: "Bush Compromises On Spying Program" -- that "the deal represented a clear retreat by Bush" and that "the accord is a reversal of Bush's position that he would not submit his program to court review."

Anyone with a basic understanding of what FISA was and of the conflicts in play could read the Specter bill and see that the last thing it does is entail "compromises" on the part of the White House. Nobody who knows how to read could read that bill and think that. At this point, I believe they don't even read the bill. It's hard to see how they could read the bill and then write that article. Instead, it seems that they just call their standard sources on each side, go with the White House-Specter assessment that this is some grand "compromise" on the ground that it is a joint view of both warring sides, and then throw in a cursory ACLU quote somewhere at the end just to be able to say that they included some opposing views.

But the reporters who are writing about this - and I mean the ones writing in the pages of our country's most important newspapers - don't actually have any idea what they're talking about.

Babington is the same reporter who falsely told his readers on the front page of the Post in March that the Republican "compromise" bill from the Senate Intelligence Committee (offered in lieu of an actual investigation into the NSA program) entailed substantial Congressional oversight of the program, even though a quick reading of the actual bill would have revealed that it entailed no such oversight. Representatives from Sen. DeWine and Snowe's office apparently told him what great oversight their bill provided and so he printed as fact what he was told.

After bloggers pointed out this error, the Post, several days later, was forced to issue a correction (appended to the top of the original article). But the same thing that happened there is happening here - Republican Senators and White House representatives with a vested interest in how the story gets reported characterize the bill in a certain way, and then lazy, uninformed reporters like Babington uncritically regurgitate that version as fact in the newspaper.

As Matthew Yglesias said somewhere, those who want information will continue to get theirs from well-established webloggers with a good track record and a sense of honor, like http://balkin.blogspot.com/ and http://www.orinkerr.com/. The Post's management had better put some scientists to work testing how to make their product a more effective birdcage liner, because that's the only comparative advantage they have left.

To the Forestphone, Commissioner Gordon!

Henry Farrell writes:

Crooked Timber: A rather important political development in Italy. Marco Mancini, the second-in-command of SISMI, the Italian intelligence agency has been arrested, along with his former boss, General Gustavo Pignero, for his part in the extraordinary rendition/kidnapping of Abu Omar. The NYT also has a piece on this, but its focus is on the magistrates' decisions to issue arrest warrants for four Americans who were allegedly involved. It seems to me that the SISMI part of the story is the more important one. There's no prospect that the US is going to comply with warrants issued against its agents, but there is a real possibility of substantial political repercussions from the SISMI arrests...

I want to learn more, so I surf on over to the website of Robert Waldmann, and find that there is nothing yet. (Wald-mann = Forest-man.) Alas!

We Stand on the Shoulders of Giants

Frederick Douglas, 1852:

What to the American slave is your Fourth of July?: I answer, a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass-fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him mere bombast, fraud, deception, impiety, and hypocrisy--a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody, than are the people of these United States, at this very hour.

Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the every-day practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival....

Fellow-citizens, I will not enlarge further on your national inconsistencies. The existence of slavery in this country brands your republicanism as a sham, your humanity as a base pretense, and your Christianity as a lie. It destroys your moral power abroad; it corrupts your politicians at home. It saps the foundation of religion; it makes your name a hissing and a byword to a mocking earth. It is the antagonistic force in your government, the only thing that seriously disturbs and endangers your union. It fetters your progress; it is the enemy of improvement; the deadly foe of education; it fosters pride; it breeds insolence; it promotes vice....

Allow me to say, in conclusion, notwithstanding the dark picture I have this day presented, of the state of the nation, I do not despair of this country.... While drawing encouragement from the "Declaration of Independence," the great principles it contains and the genius of American Institutions, my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world and trot round in the same old path of its fathers without interference.... A change has now come over the affairs of mankind. Walled cities and empires have become unfashionable. The arm of commerce has borne away the gates of the strong city. Intelligence is penetrating the darkest corners of the globe.... Oceans no longer divide, but link nations together. From Boston to London is now a holiday excursion. Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic are distinctly heard on the other.... No abuse, no outrage whether in taste, sport or avarice, can now hide itself from the all-pervading light.

Don't Be So Stupid, Colin Powell

No, Mr. Powell. It's not Addington. It's Bush.

Jane Mayer in The New Yorker: On December 18th, Colin Powell, the former Secretary of State, joined other prominent Washington figures at FedEx Field, the Redskins' stadium, in a skybox belonging to the team's owner. The group began discussing news reports about the NSA%u2019s warrantless surveillance of Americans. According to someone who knows Powell, his comment about the article was terse. "It's Addington," he said, referring to Cheney Chief of Staff David Addington. "He doesn't care about the Constitution."

The cossacks work for the czar.

Impeach George W. Bush. Impeach him now.

Next to Our Liberties Most Dear...

The Washington Post covers the Bush administration's persecution of the Harrisonburg Kurds:

Kurdish Defendants Find Support in Town's Clasp: Four Kurdish refugees, among nearly 70 Iraqi Kurd families who settled in this town 100 miles southwest of Washington... were swept up in a federal government anti-terrorism net.... "These are men who were trying to do good things and who were good citizens and who were reaching out to needy people," said Michael Medley, an associate English professor at Harrisonburg's Eastern Mennonite University, who has helped drum up support for the defendants. "I just think local folks here, when they hear that, they get pretty upset."

Supporters, many of them strangers to the Kurds, have escorted them to churches to tell their side... collected donations... [demanded] that government officials drop the cases and "apologize for their actions."...

The government has not said that it thinks any of the four men have ties to terrorism. Still, in January, one of the Kurds, a poultry plant supervisor, was convicted in federal court of transferring money to northern Iraq without a business license, one of many cases in a crackdown after Sept. 11, 2001, on operations that authorities say can fund terrorism, drug trafficking and other crimes. Two more Harrisonburg Kurds have pleaded guilty to the same offense, and a fourth has been charged.

The four defendants, who do not deny that they transferred several hundred thousand dollars, say they were simply helping loved ones in a region ravaged by Saddam Hussein's persecution and now by war. All face up to five years in prison....

Rasheed Qambari, who was convicted in January, and his fellow defendants worked for U.S. or British-funded aid groups in Kurdistan, a region established as a haven for Iraqi opposition and the Kurdish minority after the 1991 Persian Gulf War. When Hussein's tanks rolled in five years later, the United States evacuated the four men and more than 6,000 other Kurds to Turkey and later to Guam, where they spent months undergoing security checks. In 1997, they were given tickets to freedom in the United States....

Many in Harrisonburg say the Kurds are good for the town, too: hardworking, well-educated family people who stay out of trouble.

"They are real Americans, you know?" said Mayor Larry Rogers, though he reserves judgment on the cases, adding, "we have bad seeds in all cultures."

Soon after they arrived, the refugees wanted to aid those left behind, and Qambari, Noroly, Rashid and Abdullah emerged as the mediums. They said they sent their own money and that of other Kurds to family or charities. The funds paid for utilities, medicine and food, they said. "Big families. No work," said Noroly, 40. "They need money."

But Kurdistan's banks were unequipped to handle international transfers. So Noroly and the other men said they resorted to depositing it in accounts in neighboring nations and having it carried across the border....

Before 2001, the section of the U.S. criminal code under which the men were charged applied to those who operated money-transmitting businesses and knew they were doing so illegally. Under the Patriot Act, operators no longer have to know they are transmitting money illegally.... In August 2004, agents raided several Kurdish homes in Harrisonburg. In October 2005, agents arrested the four men.

Through spokesmen, the U.S. attorney for the Western District of Virginia and the FBI, which led the investigations, declined to comment. But Dean Boyd, a spokesman for the U.S. Immigration and Customs Enforcement agency, said it does not matter whether unlicensed transmitters help criminals -- they are soft targets all the same....

Even as their fellow Kurds reel from the raids and arrests, and even as they face uncertain futures, the defendants say that message has resonated.

"We were thinking before, I have a brother here and a couple of cousins in another state," Abdullah said. "But now we see we are a big family here."

Newt Gingrich Is Shrill!

On TV last night, Newton Leroy Gingrich now joined the Order of the Shrill--those driven into shrill unholy madness by the malevolence, incompetence, disconnection from reality, and sheer mendacity of George W. Bush and his administration:

Gingrich on NSA:

COLMES: Then he said when it came out a little while ago that there was some wiretapping he said it only applies to international communications. And now we're finding something else. So it just seems we're not getting a consistent story here, are we?

GINGRICH: No. You're not.

COLMES: Why not?

GINGRICH: Look, I'm not -- Alan, I'm not going to defend the indefensible. The Bush administration has an obligation to level with the American people.

And I'm prepared to defend a very aggressive anti-terrorist campaign, and I'm prepared to defend the idea that the government ought to know who's making the calls, as long as that information is only used against terrorists, and as long as the Congress knows that it's underway.

But I don't think the way they've handled this can be defended by reasonable people. It is sloppy. It is contradictory, and frankly for normal Americans, it makes no sense to listen to these three totally different explanations.

Gingrich Fhtagn!! Gingrich Fhtagn!!! GINGRICH FHTAGN!!!

Impeach George W. Bush. Impeach Him Now.

Jane Harman doesn't seem to understand that a law already contains a provision that requires that people comply with it. Atrios comments:

Eschaton: Just on CNN, it appears Jane Harman may have finally woken from her slumber and her and other Dems have introduced legislation which would require the NSA to comply with FISA. Of course, FISA already requires them to comply with FISA so, you know, maybe if we super-double-mean-it the administration might listen.

I suppose it's a step, but... members of Congress [need] to come to terms with the fact that Bush and his administration have declared the right to violate any law they want to violate. They've said it very plainly. They haven't really tried to hide it. Why everyone pretends not to hear I do not understand.

The President's duty is to take care that the laws be faithfully executed. George W. Bush has not.

Impeach George W. Bush. Impeach Richard Cheney. Impeach them now.

Another Right-Wing Conservative Joins the Order of the Shrill

Welcome, right-wing judicial hero Judge J. Michael Luttig. We might carp a little on how long it took you to be driven into shrill unholy madness. But at least you know when you have been lied to and double-crossed. Now you clearly see the incompetence, mendacity, disconnection from reality, and malevolence of the George W. Bush administration.

We understand you already have your robe:

For Luttig, a Breakdown in Trust: On Nov. 22, U.S. Circuit Judge J. Michael Luttig was at work in his chambers here when he received a telephone call telling him to switch on the television. There, he saw Attorney General Alberto Gonzales announce that the government would file charges against Jose Padilla in a federal court -- treating the accused terrorist like a normal criminal suspect.

The judge was stunned. Two months earlier, he had written a landmark opinion saying the government could hold Padilla without charge in a military brig. The decision validated President Bush's claim that he could set aside Padilla's constitutional rights in the name of national security. The judge assumed the government had a compelling reason to consider the suspect an extraordinary threat. Now Gonzales wanted the courts to forget the whole case.

It didn't take long for the judge's anger to burst out into the open. The clash, which underscores the increasing skepticism among even some conservative jurists toward the Bush administration's sweeping theories of executive power, culminated yesterday in Judge Luttig's resignation. Read more in today's Page One article. -- Jess Bravin and J. Lynn Lunsford.

They Came for the Chicken Farmer

The New York Times finally gets it:

http://www.nytimes.com/2006/03/08/opinion/08wed1.html?_r=1&th=&oref=slogin&emc=th&pagewanted=print: This has been our nightmare since the Bush administration began stashing prisoners it did not want to account for in Guantánamo Bay: An ordinary man with a name something like a Taliban bigwig's is swept up in the dragnet and imprisoned without any hope of proving his innocence.

A case of mistaken identity's turning an innocent person into a prisoner-for-life was supposed to be impossible. President Bush told Americans to trust in his judgment after he arrogated the right to arrest anyone, anywhere in the world, and toss people into indefinite detention. Defense Secretary Donald Rumsfeld infamously proclaimed that the men at Guantánamo Bay were "the worst of the worst."

But it has long been evident that this was nonsense, and a lawsuit by The Associated Press has now demonstrated the truth in shameful detail. The suit compelled the release of records from hearings for some of the 760 or so men who have been imprisoned at Guantánamo Bay. (About 490 are still there.) Far too many show no signs of being a threat to American national security. Some, it appears, did nothing at all. And they have no way to get a fair hearing because Gitmo was created outside the law.

Take the case of Abdur Sayed Rahman, as recounted in Monday's Times. The transcripts quote Mr. Rahman as saying he was arrested in his Pakistani village in January 2002, flown to Afghanistan, accused of being the Taliban's deputy foreign minister and then thrown into a cell in Guantánamo Bay. "I am only a chicken farmer in Pakistan," he said, adding that the Taliban official was named Abdur Zahid Rahman.

Other cases included prisoners who owned a particular kind of cheap watch supposedly favored by Al Qaeda. An Afghan was accused of being the former Taliban governor of a province and subjected to a pretzel logic that would make Joseph Heller cringe. He said he was a different person entirely and asked the tribunal to contact the current governor and verify his story. The presiding officer refused, saying it was up to the prisoner to produce the evidence. The incarcerated Afghan then pointed out that he was being held virtually incommunicado in a United States prison in a remote corner of Cuba and not allowed to make calls. The presiding officer assured the prisoner that he would have plenty of time to write a letter — during the year of continued detention before his case might be reviewed again.

Some of the prisoners proudly proclaimed their allegiance to the Taliban or Al Qaeda. But far too many seemed to be innocents or lowly foot soldiers simply caught up in the whirlwind after 9/11.

Because Mr. Bush does not recognize that American law or international treaties apply to his decisions as commander in chief, these prisoners were initially not given hearings. The transcripts are from proceedings that were begun under a court order. They started years after the prisoners were originally captured — a clear violation of the Geneva Conventions. And they were conducted under rules that mock any notion of democratic justice.

Prisoners do not see the evidence against them and barely have access to legal counsel. Now, thanks to a horrible law sponsored by Senators Lindsey Graham, a Republican, and Carl Levin, a Democrat, they have virtually no right of appeal. The law even permits the use of evidence obtained by torture.

If the stories of the chicken farmer and the men with the wrong watches are new, the broad outlines of this disaster have long been visible. It is shocking in itself, and in the fact that average citizens have not risen up to demand that these abuses come to an end. The founding fathers knew that when you dispensed with the rule of law, the inevitable outcome was injustice. Now America is becoming the thing they sought to end.

Do We Need to Change the Fourth Amendment?

The Fourth Amendment currently reads:

FindLaw: U.S. Constitution: Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Looking ahead to a century of suitcase nukes, terrorist attacks, and non-state actors, do we need to amend the amendment? Should we perhaps change it to read:

FindLaw: U.S. Constitution: Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause or, in cases affecting the national security, reasonable suspicion, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Grownup Republican Watch: Richard Epstein

Richard Epstein appears--on FISA at least--to be a grownup Republican. Welcome:

WSJ.com - Executive Power on Steroids : I believe our first order of business should be to retool the Foreign Intelligence Surveillance Act (FISA) to meet the challenges of modern communications technology. Yet the key legal struggles over domestic spying go not to its wisdom, but to the thorny issue of whether the president has exceeded his constitutional powers in disregarding FISA. He has. The Constitution gives Congress the power to set policy; it gives to the president the right, and the duty, to execute it.

Speling

Paul Boutin writes:

Paul Boutin : Chinese Google filter only works if you can spell. google.cn image search for Tiananmen: Gate of Heavenly Peace. google.cn image search for Tianenmen, Tienanmen and Tiananman: Tanks, tanks, more tanks. Try it yourself: Compare the same image search on google.com and google.cn. Only the results for "tiananmen" are different.

Good for Senator Leahy

Good for Senator Leahy, who announces he will vote against the confirmation of Alito:

Leahy Says He'll Vote Against Alito: Senator Patrick J. Leahy of Vermont today became the first Democrat on the committee to declare his intention to vote against him. Mr. Leahy told an audience at the Georgetown Law School that he did not believe Judge Alito would provide the necessary checks and balances to an executive branch that might exceed its powers. "I cannot vote for this nomination," Mr. Leahy said. "I will not vote for this nomination." Mr. Leahy, the ranking Democrat on the committee, said he was disturbed by Judge Alito's responses during the committee hearings last week on the issues of privacy and conflicts between government and individuals. He also said he believed Judge Alito, who has spent his entire legal career working for the government, would be too deferential to what the senator called his "patrons." "At a time when the president is seizing unprecedented power, the Supreme Court needs to be a check and balance," he said. "I have no confidence that Judge Alito will provide that check and balance."

Indeed. The threshold question is: "Is Alito one of the five hundred or so people who would best improve the judgments of the Supreme Court?" I have heard lots of arguments that say he is not one of the five hundred. I have heard no arguments that he is.

I question why any Senator is even thinking of voting for him, or why any newspaper is supporting him.

A Riddle Inside a Mystery Wrapped in an Enigma...

So what led Andrea Mitchell to ask this question? And what made NBC disappear it from the transcript?

Eschaton : The Mystery of the Missing Question: So, on an NBC transcript of an interview by Andrea Mitchell of James Risen we had this exchange:

Mitchell: Do you have any information about reporters being swept up in this net?

Risen: No, I don't. It's not clear to me. That's one of the questions we'll have to look into the future. Were there abuses of this program or not? I don't know the answer to that

Mitchell: You don't have any information, for instance, that a very prominent journalist, Christiane Amanpour, might have been eavesdropped upon?

Risen: No, no I hadn't heard that.

The first Q&A is there, the second has been disappeared. Why

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And John Aravosis writes:

AMERICAblog: Because a great nation deserves the truth : What it means to John Kerry, Wesley Clark, and Bill Clinton if Bush wiretapped CNN's Christiane Amanpour by John in DC - 1/04/2006 03:23:00 PM: NBC's Andrea Mitchell - based on some information she clearly hasn't yet made public - is asking if Bush specifically wiretapped CNN's Christiane Amanpour. The fact that the question was asked so publicly and so specifically means that Mitchell knows something.

Why would Bush do this? Because, as I reported a few weeks ago, journalists have some of the best contacts out there and it's not unusual for journalists to talk to both sides of the story, or in this case, the good guys and the "evil doers." What a better, if not illegal, way to find the terrorists and their associates?

But before you say "yeah, go for it," consider the implications of tapping Christiane Amanpour's phones:

1. Such a wiretap would likely include her home, office, and cell phones, and email correspondence, at the very least.

2. That means anyone Christiane has conversed with in the past four years, at least by phone or email, could have had their conversation taped by the US government.

3. That also means that anyone who uses any of Christiane's telephones or computers (work or home) could also have had their conversation bugged.

4. This includes Christiane's husband, former Clinton administration senior official Jamie Rubin, who was spokesman for the State Department.

5. Jamie Rubin was also chief foreign policy adviser to General Wesley Clark's presidential campaign, and then worked as a senior national security adviser to John Kerry's presidential campaign.

6. Did Jamie Rubin ever use his home phone, his wife's work phone, his wife's cell phone, her home computer or her work computer to communicate with John Kerry or Wesley Clark? If so, those conversations would have been bugged if Bush was tapping Amanpour.

7. Did Jamie Rubin ever in the past four years communicate with any elected officials in Washington, DC - any Senators or members of the US House? Any senior members of the Democratic party?

8. Has Rubin spoken with Bill Clinton, his former boss, in the past 4 years?

Now you understand how potentially broad a violation of privacy the Bush doctrine on illegal domestic spying really is. Everyone who's anyone is a degree or two of separation away from a terrorist.