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David Cameron’s No Poodle – He’s a New Breed

It was just like old times when British Prime Minister David Cameron came calling at the White House this month. Yes, the “Special Relationship” felt really special again just like back in the days when Tony Blair lined the U.K. up behind the Iraq War – when those French and Germans were having none of it – and made his reputation as “George Bush’s poodle.” For a couple of years in between, that sour old Gordon Brown was Prime Minister and obviously didn’t enjoy the sound of his master’s voice in Washington nearly so much. But now it seems that Barack Obama has his own pet at 10 Downing Street. Of course, Cameron’s Conservative, not Labour, so he’s an entirely different breed than Blair. But the Washington Post’s Dana Milbank seemed a bit off in characterizing Cameron as “serving as Obama’s guard dog.” Perhaps something more along the lines of a Yorkshire Terrier – Obama’s Yorkie.

It’s been a rough stretch for the president’s Afghanistan War policy: the Koran burnings; Afghan government soldiers and police killing NATO soldiers; American soldiers urinating on corpses; one soldier murdering sixteen civilians, Afghan President Karzai calling for the Americans to be confined to major bases. So when Cameron arrived and said of the war, “If you compare where we are today with where we’ve been two, three years ago, the situation is considerably improved,” it did suggest that the prime minister may have told his people not to brief him on the subject these past years. But oblivious support is better than no support at all and the White House loved it.

The prime minister also said “it would be hard to say that the al Qaida network is not effectively dismantled today.” Oh, wait a minute – wrong prime minister. That was Tony Blair talking – on February 6, 2003. But whatever the rationale of this war is supposed to be these days, David Cameron was here to say that he’s for it and that he and the president are “absolutely in lock-step” over the withdrawal process.

The real story here is, or ought to be, two leaders persisting in the pursuit of a ten year old war “increasingly unpopular on both sides of the Atlantic,” as the International Herald Tribune characterized the situation. An ABC News/Washington Post poll conducted earlier this month found Americans now consider the war “not worth fighting” by a 60-35 percent margin and 55 percent think “most Afghans oppose what the United States is trying to do in Afghanistan,” while only 30 percent believe they support it. Following the deaths of the 16 villagers, a Reuters/Ipsos poll found 61 percent of Americans supporting bringing the remaining U.S. troops home immediately, with only 17 percent against.

The war enjoys even less support in the United Kingdom, where an ITV1 News at Ten poll found 46 percent of respondents professing to have no idea why British troops were in Afghanistan, 55 percent thinking the threat of terrorism on British soil was increased by British forces remaining there, 57 percent not believing that the deaths of British soldiers in Afghanistan are justified by the cause they are fighting for and 73 percent considering the war “unwinnable.” 55 percent supported immediate withdrawal.

So, no surprise, Obama was thrilled with the Prime Minister’s visit, declaring that “in good times and in bad, [Cameron] is just the kind of partner that you want at your side. I trust him. He says what he does, and he does what he says. And I’ve seen his character.” Precisely the type of qualities you look for in man’s best friend.

To say that the two were joined at the hip during Cameron’s visit would be to employ too slight a metaphor. Joined at the brain is more like it: They went so far as to co-author an op ed for the Washington Post. So when Obama wrote about “imposing tough sanctions on the Iranian regime for failing to meet its international obligations” and warned that otherwise Iran would “face the consequences,” well, that was Cameron too. And when Obama failed to mention the corresponding U.S. obligations to reduce its nuclear arsenal – as U.S. presidents always do, it was also Cameron failing to mention U.K. obligations to reduce its own – as U.K. prime ministers always do.

What the bloody hell is a bison?

What the bloody hell is a bison?

Cameron separately told his American audience that “we take nothing off the table” when it comes to Iran, just the same as the president had said. So if any American were doubting the sanity of reserving the right to use nuclear weapons to ensure that Iran doesn’t acquire nuclear weapons, now you know that the Brits think just the same – at least the ones in power do. And, oh yeah, Cameron told us he thought Obama’s bombing of Libya was cool, too – and he said that on his own.

As a reward for being such a good political lap dog, Cameron not only got a hot dog and a basketball game from the president, but a state dinner at the White House – only the sixth of the Obama Administration. They even created a new dish in his honor – Bison Wellington, which, according to the menu, is “a perfect pairing of U.S. and U.K. cultures … a classic English dish given an American twist with the use of buffalo tenderloin.” News reports did not specify whether the prime minister ate from a bowl or at the table.

The Boogeyman Cometh

January 28, 2010 by Mark Wilson, Editor · 1 Comment 

Crisis and Command: A History of Executive Power from George Washington to George W. Bush is remarkable only for its author, John Yoo. Yoo famously worked for the Department of Justice from 2001 to 2003 and wrote memoranda providing legal justification and authority for the torture of captured terrorism suspects. Yoo is also slightly less famous for his opinion that the president, in his capacity as commander-in-chief of the military, somehow gains additional powers during wartime that cannot be checked by Congress. Sure, this opinion has no evidence to be found within the Constitution, but that hasn’t stopped Yoo from continuing to espouse this incorrect and dangerous view of near-total executive authority.

Yoo appeared last night at a meeting of The Commonwealth Club of California, a forum where political and social personalities can give speeches and answer questions (and promote their books). Outside the building were a bevy of protesters calling Yoo a torturer and demanding that he be fired from his job as a law professor at the University of California, Berkeley’s Boalt Hall School of Law.

Yoo’s hour-long speech and Q&A was interrupted about half a dozen times by protesters standing up and shouting at him that he was a torturer, that his victims will get their justice, that he’s a murderer, etc. The forum’s moderator, Stanford Law School professor Allen Weiner, insisted that we keep this civil and not resort to “self-indulgent theatrics.” I quite agreed with him, actually. Honestly, who did these people think they were talking to? If John Yoo thinks he’s responsible for torture, then he already knows it. If he doesn’t think he’s responsible, then the Harvard- and Yale-educated lawyer isn’t going to be persuaded by some people yelling at him. Plus, I paid $12 to listen to John Yoo try to justify his opinions about torture, not to listen to protesters scream.

Anyway, Yoo’s book. In a nutshell, it is about how presidents assuming authority during crisis situations isn’t anything new. Yoo’s philosophy is very deferential to the executive branch; in telling a story about George Washington and the Senate, he insinuated that the Senate was composed of egotistical demagogues who would rather give speeches than get anything done. While that may have been (and continues to be) true, it doesn’t justify seizing power from Congress all in the name of getting things done.

According to Yoo, “good” presidents “fully utilize the powers the Constitution grants them.” He then proceeded to talk not about how presidents used powers granted to them by the Constitution, but about how presidents have taken power in the absence of either Congress taking power first or Congress making a swift decision. This is one of the flaw’s in Yoo’s argument: the examples he gives are of presidents operating in an area of ambiguous power; far from utilizing powers granted to them by the Constitution, people like Washington, Lincoln, and Franklin Roosevelt took power that was not explicitly granted to them. He made reference to a president’s “commander in chief power,” apparently unaware that those powers do not grant a president carte blanche to do whatever he pleases all in the name of expediency.

He takes a dim view of Congress; Yoo would rather have a powerful executive that acts quickly instead of a deliberative body that takes a long time to make decisions. In this regard, he seems to be both a poor historian and a poor lawyer. Slowing down the decision-making process was the whole point of requiring decisions to go through two houses of Congress and a president. That is why Congress, and not the president, is granted sole authority to declare war; the authors of the Constitution wanted a declaration of war to be discussed before it happened, not signed at the whim of a single man. In Yoo’s perfect world, the opposite would be true.

Yoo seems to think there are three classifications of presidents:

  1. Good presidents seize power that is not theirs, and good outcomes result.
  2. Bad presidents do not seize power when they should, and bad outcomes result.
  3. Bad presidents seize power that is not theirs, and bad outcomes result.

Pretty much, the ends justify the means. James Buchanan was a bad president because he didn’t declare war on the South when he could have. Richard Nixon is a bad president because his use of extra-constitutional powers ended badly. But Abraham Lincoln comes out smelling like roses because his use of extra-constitutional powers ended up going well for the United States. Of course, this requires the question, how do we know that good outcomes will result when a president takes power that is not his to take? Yoo didn’t have an answer to that; I do. The answer is, “If the Constitution doesn’t permit you to do it, then you can’t do it.” It’s really quite simple. He chided James Madison for not declaring war on Britain in the War of 1812; Madison didn’t think he had that authority. Why would Yoo think that Madison did have that power? There is no place in the Constitution where the president is granted the authority to declare war; only Congress has that ability. And Madison would be in a position to know what the Constitution said; he wrote the thing, after all.

Yoo’s expansive view of presidential power is not only startling in itself, but it’s startling that it’s so poorly argued. Again, Yoo went to Harvard and Yale. You’d think he’d be better at this. And as a lawyer, you’d think he would care more about the actual language of the Constitution rather than what Yoo would like the Constitution to say. Frighteningly, he dismisses the notion of due processes for terrorism suspects, suggested that our only options are torture and “reading them their Miranda rights.” I expect such a pejorative statement about one of our civil liberties from Sarah Palin, who is untrained in the law and in understanding the Constitution in general, but hearing a Justice Department lawyer speak so scornfully of an important right makes me queasy. If he doesn’t want to enforce that right, then what other rights does he think don’t need to be enforced?

After the speech, Weiner asked Yoo a few questions, both of his own and those that were submitted by the audience. He first took Yoo to task for mentioning only those usurpations of authority that ended well, instead of the ones that ended badly. He cited examples of people who were imprisoned for “sedition,” that most famously ambiguous and jingoistic of charges, for speaking out against World War I. Yoo responded that he did, in fact, mention people like Franklin Roosevelt, who ordered the interment of Japanese Americans during World War II, or Andrew Jackson, who forcibly removed Indians from their own land. “The Constitution doesn’t protect against bad decisions,” he said. I submit that it does: in the form of the deliberation I mentioned above. By requiring that decisions go through several people before being made, the Constitution tries to minimize the damage caused by people making bad decisions.

Then came the torture talk. Yoo admitted that he is not above the law, and if the Obama administration wanted to pursue criminal charges against him, it would be free to do so. Of course, no administration will willfully prosecute former administration officials; that would invite a precedent that people in power do not want. He invoked the spectre of September 11, saying that the War on Terrorism is a different war that required different tactics.

And then he said something interesting. Yoo said that he was merely doing his job. His office was asked by the CIA to decide whether or not they would be able to do certain things to high-value terrorism suspects. Yoo was tasked with coming up for a legal framework for it. Now, it’s highly probable that Yoo merely told them what they wanted to hear, or that they wanted a cover-your-ass type of legal justification. But at the end of the day, Yoo merely provided legal advice to his client, the United States. It was up to the people in power to decide whether or not to implement that advice. Yoo is not the boogeyman that he has been made out to be. While his justification of torture is evil, there are more evil people than him; namely, the people who made the decision to put that advice to work. To see Yoo, he is ambivalent about the torture issue. And he is ambivalent because he doesn’t think he actually did anything wrong. In his mind, he was merely providing advice; the truly bad people were the people who implemented the policy when they could have not implemented it.

And he’s sort of right. While Weiner criticized his memos, saying that any first-year law student would recognize them not as legal memos but “advocacy briefs” that didn’t advise his client about the legal policy risks, at the end of the day Yoo is not the most responsible party here. He was asked for legal advice, and he provided it. Yes, the advice was poorly defended, and yes, it is morally reprehensible for implicitly authorizing torture, but ultimate responsibility rests with the people who took that advice: the president, vice president, attorney general, et al.

This requires the question: should John Yoo be prosecuted for torture, as the protesters wanted? Consider the scenario if Yoo were a lawyer in private practice, advising a client. He may be guilty of shoddy lawyering, but determining actual malice would be hard, given that he can bring a defense that he was giving advice and doing his job like he should have been. (And let’s not start making hyperbolic comparisons to the Nuremberg “I was just following orders” defense; those people materially killed people. As in, performed the action. Yoo, not so much.) At the end of the day, Yoo is nothing more than a sub-par lawyer trying to imprint upon the Constitution a broad interpretation of executive authority that just isn’t there. While he mentioned that the founders of the country abandoned the Articles of Confederation in favor of a stronger central government, he ignores the debates they had about still having a limited government; fresh from their experience under a king, they didn’t want to be ruled by a strong executive again. Hence Congress’ ability to declare war and not the president’s, for example. And let’s not forget that the buck stops with President George W. Bush and former Attorney General John Ashcroft, who both signed off on these memos. While Yoo may have given them advice, they are the ones who took it and implemented it.

Kennedy: Policy Over Politics

Over the last two weeks, I’ve heard countless arguments about what the death of Ted Kennedy means to everything from health care to bipartisanship to the legacy of the New Deal to overall themes of leadership and compromise in Washington. At least in the mainstream media, there has been little nuanced introspection and examination of the what his legislative accomplishments may teach us about the policy dilemmas of the current day. Rather, most commentary, like virtually everything else on the airwaves during the congressional recess, has been dominated by political opportunists and windbag journalists who know of little outside of the rules of thumb that they have been taught in their elite circles. As I think about all of this, I myself ponder what Ted Kennedy’s real legacy may be for the substantive policy debates in months and years ahead

Outside of the man, his family, and close friends, most of us cannot begin to know for sure what Ted Kennedy himself would think. Instead, let’s take a look at his life of policy work through our own unique lens. By understanding this legacy, we can better frame our own ideas about the current situation and what may be the way forward.

Policy Lessons: Liberal Lion or Man of Compromise?

Of course, like all of us, Ted Kennedy’s life was anything but perfect. From the privileged youngest son of Camelot and playboy philanderer to the elder statesman who became a champion of the working class, Ted Kennedy lived an interesting life indeed. Most of us probably know the beginning and end of this story, along with several chapters in-between. However, what I believe is most instructive are the policy and legislative lessons of the period post-1980, after Kennedy’s presidential ambitions were slammed shut for good.

It was during this latter stage of his career that Ted Kennedy became known for being able to reach across the aisle to get things done. During this era, Kennedy was largely responsible for more legislation than any other Senator could dream of. There are too many bills to mention, but a few significant ones that Kennedy played a major role in during this time include:

The Americans with Disabilities Act

The Family and Medical Leave Act

The State Children’s Healthcare Insurance Program

No Child Left Behind Act

I purposely have included No Child Left Behind on this list as it is a bill that is often not all that popular with the base of the so-called Liberal Lion. This bill in particular has led many right-wing commentators to argue that Ted Kennedy was all about a compromise akin to capitulation, as so many of his centrist Democratic colleagues unfortunately have been over the past three decades. However, nothing could be farther from the truth. While Ted Kennedy was perfectly willing to compromise the means, I have yet to find an instance in this period where he compromised the ends. In order to get more funding for education, yes, he was willing to agree to tougher standards for teachers and more accountability through testing.  (Yes, the Bush administration did not follow through on all of the promised funding, but funding did increase.) Sure, in order to get a path for citizenship for illegal immigrants, he was willing to negotiate other issues with John McCain and George W. Bush in the immigration bill on which President Bush jumped ship after a backlash from his own base. However, at the end of the day, while he often was willing to meet the other side half way, that is not the same thing as capitulating on the main reason/goal that brought him to the negotiation table in the first place. If your goal is to provide all Americans affordable insurance options, you can be willing to negotiate the means of getting there, but any man or woman of principle simply cannot be willing to negotiate away the end goal.

While Ted Kennedy’s legislative record does teach us that one can accomplish much by being willing to accept frameworks that could be expanded in the future, it tells us nothing of  agreement to self-aggrandizing political compromises that have no real policy implications to ever improve the lot of those who you aim to help. According to recent reports, this type of debate is currently going on between the policy and politics people in the Obama administration. I firmly believe that the lessons of Kennedy’s legislative experience squarely support the ideals of the policy camp and those who choose real substance over faux accomplishment and photo ops.

What’s the Matter with Such Principled Negotiation Today?

Part of the problem with going a bipartisan route to achieving such compromise on policy matters, including the processes and mechanisms of bills such as health care, is that lately it seems that virtually no Republicans share the same overall end goals to improve policy. Sure, we may all disagree on what policy improvement should look like, but in order to negotiate we must at the very least agree that our end goal is to actually improve policy and not to simply pump up our political agendas. If it was a given that 10 GOP Senators honestly agreed to the goals of a good health care bill that extended affordable coverage to 95% of Americans, then Ted Kennedy’s type of compromise would work. If such honest negotiation was taking place on both sides of the aisle, the Senate finance committee would have reached an agreement months ago instead of being nothing but a vehicle for delay meant to kill any real reform. Unfortunately, in the current debates, it seems that with the possible exception of the two Senators from Maine, there are no honest brokers on the GOP side of the aisle today. For believers in a healthy diverse intraparty political system, this is disappointing to say the least.

Given these current dynamics, anyone who falls for such a bipartisan negotiation trap in the current political environment is at best naive, at worst guilty of political malfeasance. It would be akin to negotiating with Strom Thurmond over civil rights or Jefferson Davis over slavery. In times when there is no loyal opposition that is serious about policy improvements, bipartisanship is nothing but smoke and mirrors. Thankfully during many legislative battles of the past, such as the civil rights battles of the 1950s and 1960s, there were supporters of change on both sides of the aisle and bipartisan compromise was not only possible, but the only way forward. Unlike today, during this time period both parties had national support that crossed both geographical and ideological lines.  When ideology and worldviews cross cut party identification on certain issues, those issues are ripe for bipartisan compromise. Otherwise bipartisanship means nothing.  Unfortunately the only real substantive policy negotiation that can occur today is between members of the same political party. This much has been obvious for a long time to anyone who has had their eyes open.

Bottom Line

When it comes to health care and other pending issues such as global climate change legislation, President Obama and Democrats in Congress need to choose policy over politics and hold out  the hope that doing the right thing for those who elected them will win out at the ballot box at the end of the day. It can’t be the other way around.  A real leader can do more with a four year window than a series of weak leaders could ever hope to accomplish in decades of impotent rule. It’s time for real leadership and adherence to ideals that would make Ted Kennedy proud.

Any views expressed here do not necessarily represent the views of any organizations that the author is in any way affiliated with.

Welcome to the Wilderness: Where Will the GOP Go From Here?

June 2, 2009 by Kevin Van Dyke · 1 Comment 

As I watched Newt Gingrich on Meet the Press recently, I began to think about the current state of the Republican Party. Now, a Republican I am not. However, I do believe in a healthy multiparty system, and with the current death spiral of the Republican Party, we are drifting more and more away from that.

Of course, all parties often find themselves in the political wilderness from time to time. In many parliamentary systems, such as the UK, virtually all power shifts from one party to another every 5-15 years. In the US, with multiple branches of government and rules such as the filibuster, which theoretically are designed to protect the minority from the tyranny of the majority, such wilderness periods are usually not as absolute. The closest thing the US has seen in the past century was perhaps the period from 1933 to 1939, when the Democrats controlled the Presidency and supermajorities of both Houses. But even then, the Supreme Court was not fully in line, hence FDR’s disastrous attempt to expand the size of the court.  Other time periods in the “liberal consensus” period of 1933-1969 saw much division within the majority party (largely along North-South lines), which gave a great deal of power to the minority party on many issues, such as civil rights.

Therefore, the current Republican wilderness period isn’t as common as we might think. However, at the same time, it is a great time for the party to define itself going forward without the pressure of actually governing. Going forward, there are several different paths the Republican Party could take. Let’s take a look at some of them:

1. The Establishment Direction

Current Leaders: Newt Gingrich, Mitch McConnell, John Boehner, and Dick Cheney

Potential 2012 Candidates: Newt Gingrich, Rick Perry, and Jeb Bush

Newt Gingrich

Newt Gingrich

This option generally embraces the past and takes the position that what worked in the 1990s will work now, full stop. It simply plugs in tired arguments of the past into the present and expects that they will produce the exact same results, no matter how different circumstances may be today. This option embraces the fact that Republican values are important, and that the party cannot compromise on its core values. This “love us, or leave us” strategy places a renewed emphasis on national security, fear, and wedge issues.  However, unlike some of the options outlined below, this option is very inside baseball. It’s Washington insiders, roaring 1990s, all over again.  According to the latest CNN Research poll, each of the leaders of this strategy have approval ratings in the 30s according recent opinion polls, but yet enjoy the support of a large majority of members of the shrinking Republican party. As more and more Republicans leave the party, the greater percentage of those left that will be in support of this strategy.

2. Establishment with a Twist

Current Leaders: Mitt Romney and Eric Cantor

Potential 2012 Candidates: Mitt Romney, Lindsay Graham, Kay Bailey Hutchinson, and Tim Pawlenty

Mitt Romney

Mitt Romney

This faction of the Republican party is in some ways perceived as “moderate,” but yet in other ways very conformist and in sync with the establishment listed above. However, unlike members of the establishment, people like Mitt Romney and Lindsay Graham are actually somewhat likable individuals that don’t seem like retreads from a past era. However, when you look beyond a few policy exceptions, most in this group fall in line with the group above. However, this path realizes the importance of aesthetics and is willing to compromise on a few tangential issues in order to actually win. While there is nothing necessarily fundamentally different about this group that could necessarily shift the dynamics away from the Republican Party becoming limited to a regional force in the long run, right now this option may be the best bet for the short term survival of the party that doesn’t compromise some on some of its core ideals of the past several decades.

3. Movement Conservatives

Current Leaders:  Sarah Palin and Rush Limbaugh

Potential 2012 Candidates:  Sarah Palin and Tom Tancredo

Sarah Palin

Sarah Palin

This path is top-down populism if there ever was such a thing. Four plus decades after the Southern strategy began its outreach to social conservatives throughout the country, the “movement” they created has come close to completely taking over the Grand Old Party of Abraham Lincoln. What started with Richard Nixon and Ronald Reagan’s pawns, first achieved electoral victory within its new home in 1988 when Pat Robertson finished a strong second in the Iowa caucuses, solidly ahead of sitting Vice President George H. W. Bush.  Twenty years later, for the first time, the movement had one of its own nominated to be Vice President of the United States. Don’t expect the movement to stop there. The movement has all the momentum within the party and will not be satisfied until one of its own is the Presidential nominee, no matter what that might mean for the overall party’s general election chances. Although his name may never appear on a ballot, Rush Limbaugh is without a doubt the current leader of this faction of the Republican Party.

4. A New Populism

Current Leader: Mike Huckabee
Potential 2012 Candidate: Mike Huckabee

Mike Huckabee

Mike Huckabee

This option is intriguing because it has the potential to contract and/or expand the reach of the Republican Party in the long run.  Like the movement, it is populist in nature. However, unlike the movement, it seems to have the potential for real bottom-up populism. With an emphasis on social values, religion, and cultural issues, this option in many ways continues the trend of making the GOP a regional party of the South. However, at the same time, this option is also anti-establishment in a way that the movement is not. Also, this path is not necessarily in line step by step on foreign policy and economic issues with the three factions outlined above. Mike Huckabee flirted with economic equity arguments in 2008, but never went quite far enough to establish a real break here. In the long run, a real break with Republican core stances on certain issues, such as tax policy or immigration, with a reemphasis on cultural issues, could be an intriguing strategy for the GOP.  This strategy could finally open the GOP tent to many African American and Latino voters, who tend to be more socially conservative. While this may sound drastic, such a realignment would not necessarily be anything new in American politics. American history suggests that fundamental political realignments may occur every three to four decades. If you consider 2006-2010 a realignment period (some scholars argue that a realignment normally includes three consecutive elections with the same dynamic trend, although there is generally a critical election) that has finally ended the political equilibrium that has existed since 1968 or 1980 or 1994 (depending on when you define end of the Fifth Party System), then it is still unclear exactly what equilibrium may exist by the middle part of next decade. In fact, some scholars argue that we are currently in the middle of a disalignment, and the exact composition of the Sixth Party System is yet to be set in stone. (Admittedly, with Republican actions in recent years and the rise of Obama, this sort of realignment is probably not realistic for at least a decade or more.)

5. Rockefeller Revisited

Current Leaders: Colin Powell, Jim Huntsman, Charlie Crist, Olympia Snowe, Susan Collins, and Tom Ridge

Potential 2012 Candidate:  Tom Ridge

Tom Ridge

Tom Ridge

This is the old, moderate, and even sometimes liberal Republican party. And it also could be the new Republican Party that emerges out a possible realignment period. At least in the short term (2012), this looks like the only faction that could actually stand a chance at winning a general election at the presidential level. However, although more popular overall, this faction no longer has many votes within the Republican Party itself. As moderate Republicans have become independents or Democrats in recent years, the Party has essentially purged itself of many of these sane voices. For example, while Republican Colin Powell has a 70% approval rating in the latest CNN poll of all voters, only 64% of Republicans approve of him. When a greater combined percentage of Democrats and independents approve of a Republican than Republicans, chances for a like-minded moderate winning a Republican primary are slim to none. Smartly, Obama and many Democrats know that this is the only faction of Republicans that could beat them in the short term and have strategically moved to the center on several key peripheral (in their mind) issues to ensure that most of those who switched party affiliation in the past 4 to 8 years will remain Democrats or independents throughout the Obama years. This virtually eliminates the GOP’s best hope for 2012, nominating a moderate voice. Further, the best and brightest potential presidential candidate for the GOP out of this moderate wing, Utah governor Jim Huntsman, was recently appointed by Obama to be Ambassador to China.  With Hillary and Huntsman on board, Obama has continued to marginalize those who he sees as political threats. It’s no coincidence that David Plouffe, Obama’s 2008 campaign manager and presumed reelection captain, said publicly 10 days before the appointment that Huntsman was his greatest worry for 2012.

Who Will Win Out?

As the Republicans continue their internal fight out of the wilderness, everyone will speculate about who will emerge out of this power vacuum. While a month, let alone a year, is an eternity in politics, if I were to guess right now, I would predict the following:

The Three Headed Monster of Gingrich-Cheney-Limbaugh will continue to dominate the conversation through the 2010 elections. At that time, as the Republicans gear up for 2012, Newt Gingrich, Mitt Romney, Sarah Palin, and Mike Huckabee will all emerge as serious presidential contenders. Notice how I did not mention any of the moderate Rockefeller Republicans in that list. Right now, I simply don’t see anyone emerging. Possibly Tom Ridge, but I wouldn’t bet on it. While I think Romney would be the most competitive general election candidate out of the four names listed above, I still think all four would lose pretty handily. Huckabee may be the best hope for some sort of outside-the-box, realignment election. Gingrich is the worst for the short term and the long term, but next to Romney, may have the best shot at the nomination. However, by 2014 or 2016, I believe that either the movement or Huckabee wing will emerge. In many aspects, both of these options represent a complete destruction of the Republican status quo and establishment. The movement was meant to elect Republicans, not to actually run the party from within. The Southern strategy will have finally come full circle.

So what happens if and when the movement does finally completely take over the party? The movement could then continue down the death spiral to irrelevance, leading to a possible reemergence of a moderate wing of the GOP or a formidable new second party to fill that vacuum (assuming the Dems don’t totally co-opt the center, which may lead to a leftist party).  Finally, although unlikely, a unification of populist elements under the guise of cultural conservatism, racial tolerance, economic equity, and/or freer migration of people is another intriguing possibility for a potential new period in American political history.

And you wonder why they call it the wilderness….

What’s at Stake in Cairo: A Conversation with Former Presidential Speechwriter, Troy Senik

On June 4, a very popular President Obama will deliver a much-anticipated speech to the Arab world in one of Islam’s most culturally and historically rich epicenters — Cairo — a location that is at the same time symbolic and strategic. Symbolic in that, despite its less than perfect record on human rights protection, Egypt has long been seen by American diplomats as a potential bellwether reform state in the Middle East. Whether through Anwar El Sadat’s bold overtures toward peace with Israel in the 1980s (that led to his brutal assassination) or Hosni Mubarak’s early 21st century assurances of democratization — however hollow — Egypt has expressed at least passing interest in leading the Arab world into modernity. This fact has not been lost on those who believe a lasting Middle Eastern peace will only result from a systemic and attitudinal sea change that is sparked by open-minded Arab leaders. Strategically, setting the stage for Obama’s speech in Egypt’s capital city also serves the purpose of inviting the least vitriol from our friends and enemies; though it goes without saying, of course, that the diplomatic anthill of Arab politics would’ve burdened any choice with at least some scrutiny.

As complicated as the mere choice of venue can be for a politically- and emotionally-charged speech, consider also the debate raging on our own soil currently over the administration’s near-total embrace (astutely noted by Charles Krauthammer) of Bush-era detainee and citizen surveillance policies. Despite Obama’s euphoric relationship with large swaths of the American public throughout the campaign and into his first 100 days as Commander-in-Chief, the cold, hard facts of a post-9/11 security reality have put the administration at odds with the very people who regarded the man as saint and savior less than six months ago. Throw in a growing concern with our Israeli allies over the Likud party’s unwillingness to move toward a two-state solution and one can undoubtedly bet that our domestic and diplomatic tensions are being taken in and poured over with deliberant intent by the Arab audience Obama means to engage, and influence, in early June.

With so much at stake for the administration and U.S. foreign policy, generally, the task of penning the Cairo speech is most certainly a daunting one. And, though no one doubts the speech will be given with the president’s usual degree of bold eloquence, the process of defining the message and the words that will carry it is often one that involves an incalculable mixture of research, meditation and sheer epiphany.

Former Bush speechwriter, Tony Senik

Former Bush speechwriter, Troy Senik

Troy Senik, former presidential speechwriter for George W. Bush and current contributor to Real Clear Politics and the Center for Individual Freedom, knows this dynamic very well. Following is a conversation between Mr. Senik and myself, where he discusses presidential speechwriting, what’s at stake in Cairo, and how – while most of us were sliding comfortably into bed for the evening, during his tenure in the Bush administration – he was just hitting his stride, pouring himself another steaming cup of coffee as he walked the hallowed halls of the White House with a legal pad.

RB: Ben Rhodes, foreign policy speechwriter for President Obama, has outlined the upcoming speech in Cairo as a next step in the process of building positive relationships and dialogue with the Muslim World. He has referred to Obama’s overture to Iran in January as the start of that process. However, many of Obama’s critics are wary of missing an opportunity not to meet the frequent human rights missteps and looming security threats of most Arab governments head-on. Do you see his upcoming speech as a chance to facilitate more engagement with the Arab world, or to deliver a tough message on nuclear non-proliferation and human rights protection?

TS: It will probably be a little bit of both. One of the dangers of White House speechwriting is that every speech goes through what’s called the “staffing process.” That means that all of the relevant folks in the Executive Office of the President and the bureaucracy get their hands on the speech and try to insert their own points of view and their own policy agendas. I’m sure there will be talk about non-proliferation, but it will probably be just that: talk. President Obama has waved his finger at regimes like North Korea and Iran already, and they’ve cheerfully ignored him because they’re confident that there’s no penalty for ignoring him.

As for human rights and democracy promotion, it will be interesting to see if he takes that message abroad. Those were both big parts of the Bush Administration: the “Freedom Agenda” and the Bush Doctrine, respectively. But, Obama has basically kept quiet on both of those issues thus far in his presidency.

I think the upshot is that the Administration desperately wants to convey the message that America is not at war with the entire Arab world. That’s a noble goal, but it’s also something that we’ve been trying since 9/11. I don’t think it necessarily makes the president look weak, but I think it does make him look like he doesn’t have much of an idea of how to deal with the Arab street beyond giving a speech.

Cairo, Egypt

Cairo, Egypt

RB: The choice of Cairo has been panned by some in the West because of Mubarak’s backsliding on human rights protection in recent years, and by the Arab world, due to Cairo’s pseudo-alliance with Israel, in which Egyptian police have safeguarded the tunnels into Gaza, among other reasons. How important is choosing the location in giving a speech of this magnitude?

TS: It’s important. Egypt may not be an ideal choice, but it’s the Obama Administration’s least worst option. Obama promised a speech in the Muslim world. He can’t do Saudi Arabia, because it’s a cradle of radicalism, a state that we support primarily because of our need for its petroleum, and a totally atavistic society. He could go to Indonesia, which has the world’s largest Muslim population, but it looks incoherent to give a speech in Southeast Asia when everyone knows your real audience is the Middle East. Jordan is not an option because their relationship with the U.S. has historically been close enough that it would look like Obama was looking for a sycophantic venue. Turkey has been too politically aligned with Israel and would lead to the speech being rejected out of hand by Arabs. So, Egypt certainly has stains, but if you’re looking to reach out to the Arab world, all of your options are states with pretty pockmarked records.

RB:And, obviously, Israel would have been a security nightmare, in addition to presenting a situation closely paralleling the Jordanian dynamic you mentioned.

TS: Right. And going to Israel to talk about the Islamic world would be suicidal. It would be the best possible way for Obama to simultaneously alienate the world’s Jewish and Muslim populations.

RB: Which brings up the issue of how far Obama is willing to go to obtain the first fruits of a peace accord with the Muslim world. The build-up to Netanyahu’s recent visit to Washington was primed with shots across the bow from Obama and the Israeli PM, both seemingly frustrated with the other’s perceived next steps in the realm of Arab diplomacy. Obama, and Bush before him, in addition to countless scholars and former diplomats, have advocated a two-state solution. Does Obama have enough political leverage, at home and abroad, to alienate (even if slightly) Israel to achieve better relationships in the Arab world?

TS: Well, that question really gets to the heart of one of the biggest fallacies in the world of diplomacy, which I know for a fact is embraced by a huge swath of the people working in the State Department. The idea is that you make the Arab world like us more by sticking it to Israel. And I think that’s absolutely untrue.

Can Obama put some sunlight between himself and Israel? Sure. But will the Arab states like us as a result? No. They’ll be happy that they’ll have marginally less difficulty in trying to eradicate Israel, but they won’t be carrying American flags through the street anytime soon — at least not unlit ones. The reality is that all the Arab governments really want from us is to keep buying their oil, stop defending Israel, and stay out of their part of the world. So, the only way you can make them happy is by being a supplicant for their cartel, turning your back on the only long-standing democracy in the region, and pretending that Islamic extremism, terrorism, and their routine violations of human rights aren’t a problem. And by any rational standard, that is way too high of a price to pay.

RB: Does the debate over Guantanamo, in which Obama swears to reengage American detainee policy with jurisprudence and constitutional reverence, contribute to how Obama’s speech will be received in Cairo?

TS: Probably more on the domestic side than the international side. The foreign audience might be mindful of the fact that he’s ending up much closer to the Bush Administration’s policies on some war measures than was initially expected, but they know that Obama is a different kind of guy at his core than President Bush was.

On the domestic side, however, it may actually be a problem. With Guantanamo, the interrogation memos, the Pentagon photos, etc., Obama has reached his first real impasse with the public. This week, people started realizing that the administration has no plan for how to close Guantanamo and what to do with the people being detained there. And when you talk about putting these people on American soil, and you learn that 1 out of every 7 we’ve released in the past have gone back on the battlefield, you realize that this isn’t the law school hypothetical that everyone’s been treating it as for the past few years. So I think the public’s had their first widespread dose of skepticism towards Obama, and if he goes to Egypt and gives a speech that looks overly deferential to people who don’t like us, it’s going to compound that concern, especially since that’s starting to look like a pattern for him.

An inflection point in Obama's foreign policy agenda?

An inflection point in President Obama's foreign policy agenda?

RB: Right. And, this comes at a time when he’s enjoying 64% approval ratings on national security – an undoubtedly pleasing fact to Democrats who’ve struggled against Republicans in this area for years, though just as likely a campaign-resilient and unsustainable number.

Your point also brings to mind a recent piece by Jacob Weisburg at Slate, “What we’ve learned so far about President Obama,” in which the author “continues to suspect him of harboring deeper convictions.” He references reversals on torture and “Don’t ask, Don’t tell.” In light of this possibility, that Obama hasn’t quite found his footing in the Oval Office with regards to where political philosophy and the real-world meet, is this speech pre-mature, or is it absolutely necessary given Iran and North Korea’s recent belligerency, in addition to the constant tension elsewhere in the Arab World with Western ideals?

TS: I suspect that in the long view it’s simply irrelevant. Obama is fond of talking about “game changers.” This isn’t one. He’ll go and give the speech and capture the media cycle for a day or two, but that will be it. Unless he has some unanticipated “Let them come to Berlin” or “tear down this wall” moment, it will probably be forgettable. And I see no indication that there’s anything that bold brewing in the White House. So in the end, this probably gets him nowhere.

RB: Referencing his overture to the Iranian people, again, who were celebrating Nowruz — the Persian New Year — during his address in January (a fact he used to link our shared humanity with the Iranian people), would the impact of the Cairo speech be any more or less significant by speaking to the citizens of Arab nations versus the leaders?

TS: It would be much more significant if Obama chose to speak to the Arab people instead of their governments. There is a long tradition of American presidents speaking directly to the populations of nations with whom we have strong disagreements because the American view has traditionally — and rightly — been that we oppose governments, not peoples. That being said, I don’t think Obama will do that for two reasons. One, something that dramatic would indicate that we think of the entire Arab world as essentially hostile dictatorships. Two, you have to be very careful about stirring up the populations in those countries, because in some cases, mass movements would actually yield even worse regimes than the current one (that’s certainly the case with the Muslim Brotherhood in Egypt).

Also, an important note about the New Year message to the Iranians. While it was addressed directly to the people, it made clear reference to the “Islamic Republic of Iran.” That is Obama’s way of legitimizing the current government there and telegraphing that the U.S. is not seeking regime change. And that’s about as dispiriting a sign as you can get if you’re an Iranian citizen who hopes to live in a freer society.

RB: Do you think he missed an opportunity in the January address?

TS: Yes, but that error was fathered by the policy. The mistake was saying you’re going to basically endorse a dictatorship. Sometimes, reasonable constraints may force you to tolerate a dictatorship, but you never endorse one.

RB: Earlier, you mentioned the complex nature of vetting a presidential speech, especially when it comes to speeches of this magnitude – the “staffing process.” Before a speech gets to this point, though, what were the first steps you took when preparing a speech for President Bush?

TS: You would get a description of the speech and the goals a few weeks in advance, then have the research team gather background material. Depending on the magnitude of the speech, you’d then usually get some guidance from senior staff or the president himself. From there, you’d try to hammer out an outline and/or a rough draft, which for me often consisted of walking the halls of the White House at 11 PM with a cup of coffee and a legal pad. In the Bush White House, the writers would then edit the first draft and send it into the staffing process.

RB: Was Bush the kind of president that poured over every word and turn of phrase, or was he concerned less with specifics and more that his central thesis be present?

TS: President Bush was relentlessly focused on the logic of his remarks. Sometimes that would translate into a focus on minutiae, sometimes it wouldn’t. But often times how much he dove into the details of a speech would be determined by how passionate he was about the topic. The most important thing was that he could see a coherent structure and feel like every point logically flowed into the next one. Like his father, I think he was a little distrustful of high-flying rhetoric. He certainly wouldn’t have attempted a lot of the fireworks that Obama does.

RB: It isn’t surprising that Bush differs in this respect from Obama. David Axelrod, senior advisor to the president, was quoted in a recent Politico piece as saying, “Everyone here sort of lives with the reality that the president is the best speechwriter in the group,” a sentiment also captured in Weisburg’s piece, noting Obama’s penchant for wanting to run the business of the Oval with a high degree of personal oversight.

TS: Yes, and that has to be intimidating. Given Obama’s talents as a writer and a speaker, I’m sure he’s much more intimately involved with the process than most presidents.

RB: What’s the most that Obama, and his speechwriting team, should expect out of a speech to the Muslim world that comes while the U.S. wages two wars in the Middle East? What would you like to see him say?

TS: They are probably expecting some softening in the Arab world’s attitude towards the U.S., but I’m deeply skeptical of that. Speeches can change the hearts of the people, but they almost never change the interests of governments.

I’d like to see him come out strong in favor of universal values instead of doing a multicultural soft-shoe. I’d like to hear him say that peaceful and benevolent religion is an incalculable gift in every corner of the world that it inhabits, just as radicalism is a scourge that must be defeated no matter where and why it takes root. If the nations of the Middle East really crave the international legitimacy they always talk about, they have to be willing to play by the rules of civilized nations and stop using their past and their real and imagined grievances as excuses for violence and tyranny.

Pakistan: Caught in the Crossfire, Part 2

This is the second of my two part series dealing with Pakistan through the eyes of  Naveed, a lecturer at an Islamabad University. Please see Part 1 for more context.

After being enlightened about Pakistan’s history and foreign interference, I was desperate to find out his views about the insurgency in his native tribal areas. We were out in the open air, and Naveed was in a calm mood.

“So you asked me about the insurgency in the North-West Frontier Province of Pakistan?,” he uttered after taking a deep breath. As I nodded, he said: “To understand the present insurgency, you have to go back to the British Empire era when Pashtun tribal areas had their own tribal administrators called ‘Walis’.”


“The British did little to interfere in our lives and gave us the freedom to have our own code which we call the ‘jirga’ (assembly of tribal elders) that defines laws, regulations, and policies. Soon after the independence, we joined Pakistan on certain preconditions. One of them was to have our own jirga system,” Naveed said, adding that Pakistani courts and law enforcement have no jurisdiction over the tribal areas known as Federally Administered Tribal Areas (FATA).


Federally Administrated Tribal Areas (FATA)

FATA is an interesting region of Pakistan. It covers an area of 27,220 sq. km and has an estimated population of 3.5 million. Pashtuns comprise the overwhelming majority of the population with a few ethnic Hazaras, Sikhs, and Punjabis living alongside. The literacy rate is hardly 10%, well below the national average of 40%. It is an underdeveloped area with few metalled roads and limited gas and electricity supply. The locals do not pay tax to the state. With only seven percent of the land area cultivatable, people make a livelihood by smuggling custom-free goods from Afghanistan, operating car theft rackets, drug trafficking, and selling locally produced illegal small and heavy arms.

The Pakistani government seldom intervenes in the tribal affairs. A government appointed political agent called “Malik” represents the federation with few executive powers. FATA is however represented in the National Assembly in Islamabad. Unelected tribal elders represented the region until the system was changed in 1997 to introduce mandatory elections. However, little has changed as the elections are contested on tribal rather than on political lines. Therefore, although there are now elections, most individuals vote solely along tribal lines. This is in contrast to the rest of the country where political parties cut across tribal identities.

“This whole region is in a limbo. It is part of Pakistan, but at the same time it is not. Confused aren’t you?” a sarcastic Naveed remarked at my puzzled face. “Thanks to our tribal elders’ wishes, the government never incorporated us into mainstream Pakistan. There always remained a divide between the settled and tribal areas that local leaders as well as Islamabad exploited for their own gains. We are the Pakistani version of America’s Wild West,” he joked in his patent ironic tone.

The dynamics of this tribal society are now unraveling. Due to the fact that this region never became part of the mainstream Pakistani society, the allegiance of the people is toward their tribes or clans rather than to their country. The idea of a shared cultural identity has remained confined to the boundaries of the tribal regions spread across Pakistan and Afghanistan. Therefore, although they are counted as part of the Pakistani population and their areas are shown on the map as part of federal Pakistan, the state has failed to win the Pashtun hearts and minds in order to fully include them in the wider Pakistani cultural society.

“The people in the province, especially in the tribal areas, felt the isolation. Politicians, time and again, made promises to bring them into the mainstream and grant a comprehensive political and judicial system. From Bhutto to his daughter Benazir and from General Zia-ul-Haq to his stalwart Nawaz Sharif, everyone made promises. Empty promises. Things hardly changed on the ground,” Naveed remarked. “Does a promise remain a promise if unfulfilled?,” he argued while referring to an Urdu proverb with a similar connotation.


The outbreak of a guerrilla war in Afghanistan is a turning point in the history of Pakistan. In 1980, Pakistani military dictator General Zia-ul-Haq setup an alliance with the United States to send fighters across the border to aid the Afghan resistance against the Soviet-backed government in Kabul. The joint Pakistani-US investment of arms and fighters radically altered the course of war in Afghanistan, drawing Soviet troops into a long, bloody conflict that ultimately left them defeated and contributed to the disintegration of the USSR.

But the Pakistan-US alliance also brought a host of problems to the region, especially Pakistan. The tribal areas, acting as a launching pad for anti-Soviet fighters known as the “mujahideen,” became a den of illegal arms, drugs, and smuggling. Millions of people from Afghanistan sought refuge in Pakistan, straining the already limited resources of their hosts. The impoverished refugees from Afghanistan, at times, clashed with more modern and well-off Pakistanis due to cultural, religious, and lifestyle differences. People still resent the military government of General Zia over his handling of the Afghan crisis.

The area that was touched most by the conflict was the Northwest Frontier Province (NWFP) of Pakistan. Naveed described the post-war situation. “The mujahideen returned to their homes. The government had no rehabilitation plan for them. Frustration rose tremendously and their warfare experience gave them the confidence to lift their arms and fight for their rights.” He added that veterans of the Afghan war returned to Pakistan along with their comrades from the Middle East, Central Asia, and North Africa.

the Northwest Frontier Provence (NWFP)

the Northwest Frontier Province (NWFP)

“Most of the non-Afghan fighters were exiles from their home countries who could no longer return to their states. Many of their home governments feared a rebellion from their ranks and labeled them as unwanted elements. The only people who welcomed them were the Pashtuns as we have an ancient code of hospitality and generosity for someone who asks for protection and refuge,” Naveed explained, pride for his culture and traditions evident in his tone.

While the USSR left Afghanistan humiliated and defeated, the US reveled with joy. Afghanistan was abandoned, as the US interest was limited to the defeat of its nuclear rival rather than rebuilding of the nation. Former mujahideen turned their guns on each other and a full-scale civil war ensued. Thousands of people died during the conflict from 1992-1996. The only forces that stopped the civil war were the Taliban, who drove the warring former mujahideen factions from power and seized control of 90% of the country.


“The former mujahideen who returned from Afghanistan demanded a judicial system based on Islamic law and Pashtun culture and traditions. This was their own version of Shariah. It was a simple demand that was raised to deal with the complex law and order situation in their region,” the young academic described, adding that the local people were very enthusiastic about such demands. “Everybody including the former mujahideen wanted it. The government, instead of principally agreeing to their demand and holding a referendum to decide the issue, sent troops and tanks to the region. People did not get what they really wanted,” he remarked with bitterness replacing his usually soft tone.

In 1994, a bloody conflict erupted in the Malakand division of NWFP province. Veterans of the Afghan war formed a militia called “Tehrik Nifaz Shariat Muhammadi” (Movement for the Imposition of Muhammad’s Shariah law) and started an armed uprising in the region. Government buildings in the region were attacked and occupied in November 1994. The Islamabad government led by the late Benazir Bhutto, initially signing a peace agreement with the militants, backed off under international pressure and waged a military operation. The TNSM militants were flushed out to the hills, and calm was restored. However, the situation on the ground remained the same, and no general judicial system reforms were introduced to speed up the delivery of justice. The demand for a time saving and cost-effective judicial system in the national courts remained unheard, further infuriating the masses.

Hundreds of people lost their lives in the bloody conflict between the TNSM militants and Pakistani armed forces from November 1994 until early 1996. Thousands of people also left their homes in the region due to the conflict.

“The government’s short-sighted and half-baked measures exacerbated the situation. It waged an armed operation against the group but forged an alliance with the leadership. The head of TNSM, Maulana Sufi Muhammad, was captured by the army, but was released without any charges. I do not understand the logic of a military operation that ends up with the signing of a peace deal and distribution of sweets,” the 26 year-old said while mentioning the local practice of distributing sweets on the eve of a festive ceremony. “They sit side-by-side adorning each other with garlands while people mourn over their losses and bury their dead. Is this justice?”

According to a statement issued on May 3, 2001 by the then-NWFP provincial governor Owais Ghani, criminals and assorted illegal arms, timber, and drugs mafias provided financial support to the TNSM and flourished under their rule. TNSM strictly denies the allegations. The Shariah movement returned to the political scene in the region with a vengeance soon after the 9/11 attacks in the USA. While the then-US President George W. Bush was envisioning plans to invade Afghanistan and topple the Taliban government in Kabul, the former mujahideen in Pakistan were renewing their vows for a jihad and promising a new war against the USA along the same lines of struggle against the USSR.

Soon after the US forces invaded Afghanistan on October 7, 2001, TNSM was the first pro-Taliban group to send its forces to fight alongside the Taliban. Thousands of fighters crossed into Afghanistan along with their leader Maulana Sufi Muhammad. The TNSM fighters returned to their bases after Taliban retreated from urban Afghanistan to their rural strongholds to initiate a guerrilla war against the occupying US and NATO forces. Leaders of TNSM were arrested by Islamabad after their return in 2002 and imprisoned on charges of incitement of violence and violation of state laws. President General Pervez Musharraf outlawed the organization in 2002.

Naveed stopped all of a sudden in the middle of the conversation. Something was clearly bugging him as his face turned red. “The cat and mouse game between TNSM and Pakistani military continued. The Pakistani government enjoyed the support of Washington while TNSM were bolstered by the inclusion of al-Qaeda elements in its ranks. The government signed a peace deal on one day and initiated an armed operation against the opposite side the very next day,” Naveed uttered angrily.

His outburst continued: “Nothing changed on the ground except that the situation got out of control and the militants got bolder with their tactics. Pakistani military attacked militant positions on the ground. They also hit their hideouts from the air with the help of Cobra gunship helicopters given by the US.”

“As if this was not enough to wreak havoc, the US drones unleashed hell from the skies, allegedly killing hundreds of innocent civilians. Thousands of people have been caught in the crossfire with no place to run and nowhere to hide. I’ve seen the carnage myself. Was this all for peace?”

Stocky-built Naveed came to an abrupt halt. His voice was shaky, and he didn’t want to continue anymore. Having lived for more than a year with him I never saw Naveed so silent before. He silenced himself. The aggression was in his hands, but he unclenched his fists and stood still. What else can he do?

The Swat District (yellow) within the larger NWFP (green). FATA (blue) also shown.

The Swat District (yellow) within the larger NWFP (green). FATA (blue) also shown.

As we were having this chat on a rainy spring evening, thousands of internally displaced refugees in Swat valley in northwest Pakistan were lying in the open without any shelter. There is an acute shortage of food in the refugee camps, I’m told. But one thing is very certain. There is no shortage of ammunition on either side.

The radical Islamists impose their style of governance in the name of religion and carry out their harsh sentences against poor and powerless people. In the opinion of many in Pakistan, the Islamabad government with the aid of the US government bombs and maims its own people by using tanks and fighter planes. The poor and powerless people, suppressed by the militants and oppressed by the government, run to save their lives. Where is the democratic promise of liberty, fraternity, and equality? Why don’t I see the Islamic spirit of forgiveness, compassion, and justice? Perhaps, both the sides are interested in furthering their agenda and exploiting their subjects in the name of their ideologies.

You Can Indefinitely Detain Some of the People Some of the Time

May 26, 2009 by Mark Wilson, Editor · Leave a Comment 

One of the larger problems in my life is that, whenever I want to write about a civil liberties issue, Glenn Greenwald has already beaten me to it. And written it better than I could have. Greenwald is a former civil liberties attorney and number one defender of The Constitution. He is not a Democratic apologist. He heavily criticized President Bush. And he is now heavily criticizing President Obama. In Greenwald’s opinion, suggesting that enforcing our laws is “radical” or “extreme” or “left-wing” is disgusting. When did enforcing the law become a partisan issue? He also writes about the media and how he believes that the media are beholden to the political class in a horrible, symbiotic relationship that ensures that the Fourth Estate will never actually hold our leaders accountable for anything.

And I agree with him on all of it. Absolutely all of it. Darn him! Darn him to heck!

For example, Glenn and I were furious this last week when Sen. Harry Reid kept using a verb that could just as easily have been crafted by Karl Rove. The verb was “release,” as in, “Terrorists from Guantanamo Bay will be released into the U.S.” Many pundits, and even Obama himself, used the verb “release” to describe what the government will do to detainees in Guantanamo Bay now that the administration has re-iterated its desire to close the prison there. “Release” evokes images of terrorists approaching the shore on boats and then merrily skipping off, free of shackles and permitted to wander throughout the country, blowing up whatever they please.

Let it be known: terrorists will not be released into anything. They will be shackled, they will be monitored, they will be in our custody and under guard as they are transported from Cuba to the mainland. And once on the mainland, they will continue to be monitored and under guard as they are moved to whatever prison they will occupy next. Those who believe that terrorists will be “released” in the United States are either negligently ignorant, willfully stupid, or maliciously misrepresentative. One guess as to which one describes Harry Reid.

Prior to September 11, 2001, we believed in something called “due process.” It’s a Fifth Amendment guarantee:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis mine.]

The Supreme Court has ruled before that, since the Constitution uses the word “person” and not “citizen”; and since it would have been very easy to use the word citizen, but person was used instead; and since the author of the Bill of Rights, James Madison, was a lawyer by trade and a very smart man and probably not prone to misusing words; that it therefore follows that the Bill of Rights was intended to apply not only to U.S. citizens, but anyone in the United States. This is affirmed in the Fourteenth Amendment, which prohibits a state to “deny to any person within its jurisdiction the equal protection of the laws.” Again, note the use of the word person where citizen could have been used, but wasn’t.

In 1993, the World Trade Center was bombed by a group of terrorists led by Omar Abdel-Rahman, better known as The Blind Sheik. The bomb damaged a parking garage and did kill some people, but it didn’t come close to bringing the building down. Abdel-Rahman and three other accomplices were indicted by civilian prosecutors, accused of breaking publicly-accessible laws, tried in open court inside the United States, under the guidelines of the Constitution and the rules of U.S. civil procedure, and sentenced to U.S. civilian prisons. After 1993, the nation was not less safe because Abdel-Rahman and his accomplices were being imprisoned inside the United States. Abdel-Rahman is housed at the federal Supermax prison in Florence, Colorado.

In 1995, Timothy McVeigh and his accomplice Terry Nichols parked a rental truck containing a homemade fertilizer bomb in front of the Alfred P. Murrah Federal Building in Oklahoma City. The bomb exploded, killing 168 people, injuring 800 others, and destroying the building. Nichols and McVeigh were indicted, again by civilian prosecutors, accused of breaking publicly-accessible (that is, not secret) laws, tried in open court, and sentenced to U.S. civilian prisons. McVeigh was given the death penalty. The nation is not less safe because Terry Nichols is housed inside the United States.

I think you get the point. Eric Rudolph, the 1996 Atlanta Olympics bomber; Wadih el-Hage, accused of involvement in the 1998 U.S. embassy bombings; Ted Kaczynski, the Unabomber; Richard Reid, the “shoe bomber”; Jose Padilla, the “dirty bomber.” All of these people are being held inside the United States right now, and no one — no one! — is arguing that the United States is less safe because of it. To suggest that allowing Dangerous Criminals inside our borders is silly; there are already more dangerous criminals here!

It’s also worth noting that, with the exception of Reid and Padilla, all of the above criminals were convicted using the 200-year-old, civilian due process proscribed by the Constitution. Reid and Padilla were held incommunicado in U.S. navy brigs. The government eventually dropped its terrorism charge against Padilla, who was alleged to be making a “dirty bomb” (a traditional bomb filled with radioactive material; it would not cause a nuclear explosion, but it would spread radiation). Since the government didn’t have enough evidence to prosecute the terrorism charge, the charge was dropped. Padilla, nevertheless, was sentenced because even though terrorism is a crime, all the things that terrorists do are already illegal, anyway! Blowing up a building is no more illegal because it was done with a political agenda in mind.

The assertion that Terrorists need to be tried in a special, extra-Constitutional way, held without charge, subjected to torture, and perhaps never afforded a trial is ludicrous. In the paragraphs above, we have ample evidence proving that trying terrorists in civilian courts, using civilian rules, does work. The United States is not less safe. And furthermore, housing convicted terrorists in civilian prisons does work. And furthermore, charging them and trying them does work. For people like Vice President Cheney to suggest that using due process makes us less safe just goes to show us how out of his mind the man is. He would probably be happier living in Iran, where the executive has unlimited power to imprison people for made-up reasons, or no reason at all. Here in the United States, we do not convict people merely on the confidential say-so of the executive branch; that’s the way dictatorships (you know, those countries that we purport to be fighting against — unless your name is “Saudi Arabia”) behave. Here in the United States, it is up to the executive to prove that the accused is guilty. Guilt is never assumed — unless, apparently, you committed a terrorism-related crime after September 11, 2001. Or you were linked to terrorism, no matter how specious the link or how questionable the evidence. Or you associated with terrorists, even if you didn’t know they were terrorists. Or you were planning on committing a terrorism-related crime, even if “terror” wasn’t your goal. Or, as Obama articulated yesterday, the government is afraid you might commit terrorist crimes in the future. Yes, the possibility of future law-breaking is now grounds not only for detaining someone, but for never giving them a trial or even a preliminary hearing to prove that they did what they were accused of doing. As long as the government says “Terrorist,” an individual’s guilt is implicit and that person will never, ever be released. (More likely, as Greenwald observed, you will be imprisoned indefinitely if the government can’t guarantee that it will win a trial. Do show trials sound like the hallmark of a vibrant democracy or a repressive despotism?)

Obama’s plan is definitely a step in the right direction, but it’s not nearly enough. In order to restore the rule of law to this out-of-control country, he must admit that there is no situation in which a person should be held indefinitely; habeas corpus is a right guaranteed to anyone in U.S. custody, and the U.S. Supreme Court has affirmed as much. Obama apologists have used exactly the same rhetoric President Bush used to support Obama’s case; namely, “we are at war.” And these prisoners are prisoners of war; therefore, they do not have the right to contest their detention, and they may be detained until the end of the conflict. Seeing as how we’re waging a war on an abstract idea, it’s hard to see exactly when (or if) this war will be over.

Are we now in the business of imprisoning people indefinitely? What does that say about us as a nation? What will historians say fifty years from now? Today, we regard the internment of Japanese-Americans during World War II as deplorable and appalling, but at the time, it made sense to our political leaders. We have the ability to stop lawlessness right now instead of musing, decades later, about the mistakes we made, and saying, “We’re so sorry. We’ll do better next time.” Unfortunately, every time “next time” comes up, we fail again (we began failing as early as the John Adams administration, with the passage of the Alien and Sedition Acts). Obama offers the promise of actually living up to our ideals as a country. Rather than fumble to attempt to explain and excuse his actions, we must ask, “Is what he is doing right? Is it legal?” And, as Glenn Greenwald wonders, “What would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?”

Please do read Glenn’s article. It is a thorough, lucid, and amazing analysis of Obama’s position on these detainees, with some very tough questions and conclusions that must necessarily follow from that position. I do not believe they are questions that Obama and his supporters want to ask, because they lead to the very same places formerly occupied by previous administrations. At the end of the day, Obama & Co. are saying, “Yes, it is okay to detain some people indefinitely, without the government ever having to prove that they committed a crime.” Not only is that assertion illegal, it’s un-American, and if we continue down that road, it makes this country not only less safe, but less worth defending.

If Republicans Won’t Play Along on Health Care, Who Cares?

April 27, 2009 by Mark Wilson, Editor · 2 Comments 

The Republicans bluffed and lost in February when they complained that the stimulus bill wasn’t “bi-partisan” enough. Okay, so House and Senate Democrats acquiesced to some of their demands, including tax cuts for businesses and removing provisions for “family planning” (the euphemism that refers to things like abortion and contraception). The Republicans responded to these concessions by voting against the bill.

Not a single House or Senate Republican voted in favor of the stimulus bill. They apparently believed that this would demonstrate to the American people their opposition to wasteful spending and fiscal irresponsibility. Trouble is, the American people didn’t much care what the Republicans thought; they’re in the midst of a financial crisis, where hundreds of thousands of jobs are being lost each month. Hell, yes, they want a stimulus!

Republicans were using a two-pronged approach to sway the public: (1) tax cuts are superior to government spending when it comes to stimulating the economy; and (2) the government is spending way too much. I won’t go into the merits of the arguments here, but suffice it to say that those were the counter-arguments to the Democratic spending bill (yes, “stimulus” = “spending.” Recall President Obama’s statement: “What do you think a stimulus bill is?”).

The public doesn’t much care for tax cuts when those tax cuts would benefit only the top earners in the country. Now, what does look like a good idea is investment in public works projects that have been long-neglected by Reaganites who believe that the government shouldn’t spend any money on anything that isn’t national defense.

Those four paragraphs were a flashback.

Interior — White House, Present Day.

President Obama is meeting with GOP leaders, reminding them that when they clamored for “bi-partisanship,” they abandoned it just as much as they accused Democrats of abandoning it. Between 2003 and 2009, Republicans were used to getting their way every time. Sure, Democrats have controlled Congress since 2007, but for some reason, Democrats spent those two years perfecting the fine arts of cowering and acquiescing. Whenever Republicans talked about “bi-partisanship,” they meant, “Give us everything we want or we’ll call you names. We’ll say you’re soft on terrorism. We’ll say you’re engaging in pork-barrel spending. And if that doesn’t work, then we’ll call you socialists and say that you hate America and want the terrorists to win. So you’d better give us all the things we demand, and if you ever try to put your own agenda forward, we’ll slap you down so hard you’d think Mike Tyson had taken Trent Lott’s seat.”

Well, the tables have certainly turned. And I’m pleased that Obama is prepared to shut Republicans out if they refuse to play ball. Hypocrisy? Not at all. I believe in universal health care. I think it’s absolutely necessary and I think it’s nothing but good. If Democrats are willing to embrace it and make it law, then I support them. When Republicans tried to stop SCHIP, I disagreed with them. It’s a matter of not only agreement and disagreement, but also of what’s good for this country. Quite honestly, the Republicans are not interested in governance. They’re interested in stalling until 2010. They want the wheels of government to grind to a halt so that they can then go back to their constituents in November, 2010 and say, “Look at what the Democrats have done for you! Nothing, that’s what! Aren’t you sorry that you voted them into office?”

And therein lies the fundamental difference: Democrats, including President Obama, are interested in doing something constructive. I will frequently disagree with the methods they use, but I largely agree with their philosophy that the government is going to need to spend money to improve the country. I agree that the wealthy should pay for the impoverished. And I agree that health care should be our right not only as citizens, but as human beings. I think the Democrats’ approach is superior to the Republicans’ approach, and that is why I believe that if Republicans are unwilling to reach an actual compromise with the Democrats, then they should be left behind. It is not the Democrats who should have to bend to appease the Republicans; the Democrats won, their ideas are better, and if the Republicans don’t want to go along with them, then it’s their own funeral. Congress doesn’t even need the Republicans.

I’m not the only one who believes this. The American people would rather the Democrats get on with their agenda instead of watering it down to please Republicans whose sanction they don’t need and whose contempt they will get in return for their efforts. In the New York Times/CBS poll referenced above, 56% of those surveyed said that they thought Democrats should stick to their policies, but 79% thought that it was Republicans who should be bi-partisan. That says a lot: not only do Americans want Democrats to do whatever it is Democrats want to do, but they simultaneously think that Republicans should do whatever it is the Democrats want to do.

Health care reform is way too important for Democrats to be chicken about. The last significant health care reform we had in this country was the prescription drug bill from 2005, which funneled a lot of money directly from the government into the hands of prescription drug companies. Sure, the bill could have included a provision for the government to use its significant bargaining power to get better deals on drugs — but then, that would hurt the drug companies’ revenue, wouldn’t it? At approximately the same time, Congress passed a bankruptcy bill that offered terrific terms for banks, credit card companies, and the very wealthy, but left middle- and low-income people in the dark.

The relationship between bankruptcy and health care is quite close; President Bush declared, in 2005, that we needed the bankruptcy bill so as to stop people from gaming the system and trying to get the rest of us to pay off their debts. To listen to him, you’d think Americans were going bankrupt after buying too many Faberge eggs. At the time he said that, though, fully half of bankruptcies in American were being caused not by frivolous over-spending, but by health-care spending. People were — and still are! — spending themselves into tremendous debt in order to stay healthy and alive. And since our health care system discourages regular check-ups, people are guaranteed to see a doctor only when the condition is serious, which means that it will cost more money to fix than it would have if a doctor had caught the condition earlier, during a regular check-up.

It shouldn’t be surprising that Republicans see health care as a political issue instead of a humanitarian one. In 1993, Bill Kristol wrote that Republicans couldn’t afford to let the Clinton health care plan survive; if it did, then the Republicans would be finished. Let me re-iterate that: to Bill Kristol, it was more important that heath care get defeated so the Democrats wouldn’t win re-election in 1994 than it was for people to have universal access to health care.

That’s what we’re up against. And that’s why I support the Democrats. And if Republicans don’t want to join, who cares? Let them explain to their constituents in 2010 about how they didn’t want those same constituents to have universal health care, all so that the free market could survive.

They Grow Up So Fast

April 22, 2009 by Mark Wilson, Editor · Leave a Comment 

The Supreme Court heard oral arguments yesterday in a case that was bizarre if only for the fact that it had to reach the Supreme Court at all. The case is apropos due to the recently-reported trend of what the media are calling “sexting”: the phenomenon of teenagers sending nude or semi-nude photographs of themselves to each other. It is another front in the War on Sexuality that parents and politicians have been fighting for years. The crux of the argument is this: teenagers should not be having sex, despite the fact that they’re probably in the sexual prime of their lives. It’s like trying to hold back the Colorado River with a wooden, beaver-made dam. It’s not that teenagers didn’t have sex in the past; certainly they did, but it just wasn’t discussed. Sexuality, for everyone — adults included — was something to be ashamed of. We’re just more open about it now. And that’s not a bad thing.

Earth to parents, teachers, and politicians: teenagers will have sex. They are having sex, probably right now. They are programmed to have sex. You can’t stop them. The most you can do is give them the information they need to make good decisions. If you deny them that information, you’re not preventing them from having sex; you’re just denying them information and ensuring that they will probably make bad decisions, instead.

Moving on.

Yesterday’s case involved 13-year-old Savana Redding, who was strip-searched because the principal heard a rumor (”an uncorroborated tip from the culpable eighth-grader,” says the Ninth Circuit Court of Appeals) that she might have brought prescription-strength ibuprofen to school. The school has a zero-tolerance policy for any drugs, whether outright illegal, prescription, or over-the-counter.

Let’s put aside for right now the tired arguments about how zero-tolerance policies don’t work, create criminals out of otherwise law-abiding citizens, and provide no room for human beings to make mistakes of varying degrees.

Let’s also put aside the fact that ibuprofen is not a narcotic and is not to be found on any of the five schedules of the Controlled Substances Act. The only reasons a kid would try to abuse ibuprofen are: (1) she’s really in a lot of pain; or, (2) she’s an idiot. Not only will ibuprofen not alter your mind in any way, taking too much of it will give you tremendous pain and cause stomach bleeding. I’d love to think that Safford Middle School was only looking out for the best interests of its students in preventing an overdose on prescription-strength ibuprofen, but sadly, I don’t really think that’s the case. I think what’s far more likely is an overzealous administrator cracking down on anything and everything that appears to be “drugs.”

In case the summary of this case isn’t disturbing enough and you’d rather have the play-by-play, just read the “Background” section of the Ninth Circuit Court’s opinion. For one, Savana didn’t refuse the search because she said that she felt as though she would be in more trouble if she didn’t comply. If this isn’t the very reason for the Fourth Amendment’s prohibition against “unreasonable search and seizure” — namely, the threat of punishment for people who don’t agree to warrantless searches — then I don’t know what is.

If Savana were an adult an not in school, her constitutional rights would clearly have been violated, the authorities would be in a world of legal hurt, and we wouldn’t be having this discussion. Not to mention that the uncorroborated testimony of a suspect would not have been sufficient evidence for a search even in the Real World. (By the way, the girl who was caught with the ibuprofen, the girl who fingered Savana as the supplier, was not punished.)

But since Savana is in school, and the doctrine of in loco parentis is in play, she suddenly has greatly reduced constitutional rights. Civil Liberties Lite, specially designed for children. Naturally, the principal could have obtained permission from the girl’s parents to perform such a search. For some unfathomable reason, he didn’t, apparently unaware, in his quest to save children from themselves, of the kinds of torts he could be exposing (no pun intended) the school district to. One man’s “reasonable search” is another man’s “assault and battery.”

For a great analysis, check out Slate’s evaluation of the oral arguments, which includes this wonderful sentence about the cognitive dissonance between “school districts all around the country finding naked photos of teens and immediately calling in the police for possession of kiddie porn. Yet schools see nothing wrong with stripping these same kids naked to search for drugs. Evidently teenage nakedness is only a problem when the children choose to be naked.” (Please read this transcript of the oral arguments.)

Then again, should we be surprised the depths to which our police powers are going? And isn’t it surprising that we shouldn’t be surprised? Though I hate to harp on the damage that the George W. Bush administration has done to this country, it’s harping that must be done because the damage is real, significant, and pervasive. The average American’s expectation of privacy has gone down in this Post-9/11 World. Intrusive, unlawful searches are now expected and have become normalized as we are told that these are necessary trades for a gain in security. It would be one thing if there were empirical data indicating that, say, a 10% decrease in liberty causes a 10% or greater increase in security. At least then we could have a debate (even though it still wouldn’t be ethical to trade in that liberty). But as it is now, we have no data indicating that an increase in surveillance cameras yields a decrease in crime, or that warrantless wiretapping is more effective than lawful wiretapping, or that unreasonable strip searches of 13-year-olds yield drug possession convictions. (Well, actually, we have some anecdotal evidence for the last one: Savana had no drugs on her person. One wonders if the principal contemplated a body-cavity search.)

Sorry for the rant. Back to my original thesis: teenagers occupy a nebulous zone between children and adults. Biologically, they are “adults,” even though mentally they are not quite adults, or at the very least, lack the experience of adults. Yet, what qualifies one as an “adult”? There are plenty of adults — cf. global financial crisis — who act like children, and yet we afford them the right of adults, not of children. It was quite brave for the court to admit, in Tinker v. Des Moines, that humans who are defined as children are as capable of profound thought and understanding as humans who are defined as adults, and in so recognizing, that the speech of those so-called children ought to be just as protected as the speech of so-called adults. Unfortunately, the court has continued to shoot itself in the foot over the years, eroding the rights of schoolchildren because, hey, they’re just kids! What do they know?!

We routinely ask teenagers to take on adult responsibilities — President Obama has emphasized volunteering, for example — and yet we fail to consider that they have adult minds, adult thought processes, and adult opinions. Show me a teenager who has made a bad decision and I’ll show you an adult who has made an equally bad decision — or possibly a worse one, since adults are afforded more rights and thus the capability to screw up more in degree than a teenager can. (A teenager sure can’t get a mortgage that he knows he can’t pay for!)

Nevertheless, the brains of humans in the midst of puberty are chemically different from the brains of children or full adults, and it is for this reason that teenagers do a lot of stupid things. But sometimes, teenagers do great things that are on par with the great things that adults do. There’s no reason to assume the worst when it comes to teenagers, as the assistant principal at Safford Middle School did.

I’ve Seen This Movie Before

April 17, 2009 by Mark Wilson, Editor · 2 Comments 

I had the most amazing dream last night. Thankfully, Jimmy Kimmel in a diaper wasn’t in this one. Instead, I saw Barack Obama giving a speech about government openness and accountability. He talked about the closure of the U.S. terrorist prison in Guantanamo Bay; he talked about ending extraordinary rendition of U.S. terrorism suspects to other countries where they would be tortured; he talked about ending the use of extra-legal means to spy on Americans under color of law, and he talked about an absolute ban on the use of torture.

Didn't I vote for change?

Didn't I vote for change?

Recent events have confirmed that this is only a dream. The candidate of alleged change has instead agreed with George W. Bush on almost every torture and secrecy issue. He ordered the closure of Guantanamo Bay. But, in a brilliant feat of misdirection, none of us ever saw that his Justice Department was working tirelessly to ensure that the same civil liberties that were held to apply to Guantanamo detainees would never apply to detainees held at, for example, Bagram Air Base in Afghanistan.

A Lawless Prison By Any Other Name

Sure, Boumediene v. Bush clearly established that, at a minimum, prisoners in the United States’ Guantanamo Bay facility are entitled to habeas corpus, the 793-year-old doctrine that if a person is to be held in jail, he must be charged with a crime. The Bush administration thought that it had sent 600-some detainees of the War on Terr’ into a “legal black hole” (the Justice Department’s words) where US law did not apply, and therefore, people could be kept there indefinitely without being charged with a crime, without the right to challenge their detention, and without the government having to prove that they were terrorists.

Then the Bush administration relented, wrote the Military Commissions Act, and decided that was good enough. The Act explicitly stripped detainees of their habeas rights and said that the government would create military commissions to evaluate whether or not each detainee should continue to be held. The Supreme Court didn’t like that, either, saying that the MCA process was fundamentally flawed, and furthermore, it was not within Congress’ power to take habeas rights away from anyone.

As soon as he came into office, Obama put a halt to the Military Commissions Act tribunals, recognizing that they were fundamentally flawed. He also said he would close the prison in Guantanamo Bay. While those are both laudable, his next action is, once again, right out of How to Suspend the Constitution Without Really Trying, David Addington’s best-selling Richard P. Cheney thriller. Detainees of the War on Terr’ would instead be moved to Bagram Air Base in Afghanistan. The argument is that, since Afghanistan is still an active war zone, it would be ludicrous to give prisoners there any habeas rights, since they would be prisoners of war. Then again, that was the rationale used to scoop up hundreds of people on the “battlefield” in Afghanistan in 2001 and send them to Cuba.

Wiretapping? What Wiretapping?

A few weeks ago, the Obama Justice Department moved to dismiss a case in federal court involving illegal wiretapping. In spite of his January memoranda committing the Executive Branch to transparency and accountability, Obama’s reasoning vis-a-vis wiretapping remains unchanged from the Bush years; that is, opacity in the extreme, no accountability (i.e., you can knowingly and maliciously break the law, but you won’t be prosecuted for it), and a firm commitment to using the state secrets privilege to cover up illegal government activity.

Earlier this month, the Obama administration filed a petition to have the entire warrantless wiretapping case dismissed under a never-before-seen doctrine of “sovereign immunity” that comes from the USA PATRIOT Act. It’s not the sovereign immunity itself that is at issue (sovereign immunity is a very old legal doctrine which holds that the sovereign — in this case, the government — is immune from criminal prosecution in some instances). It’s that sovereign immunity has never before been used a a defense in these wiretapping cases. To the Obama administration’s credit, it has interpreted into being a sovereign immunity claim based on the fact that Congress had not explicitly waived sovereign immunity when it came to these cases. Therefore, argues the Justice Department, the courts must err on the side of the sovereign. This is, of course, in addition to the standard-issue “state secrets” defense, which consists of, “In order for you to have a case, you need to prove you’ve been harmed. In order for you to prove you’ve been harmed, you need access to classified information. Because giving you that information would compromise national security, we’re not going to give it to you. Since you don’t have that evidence to prove your case, you have no case. So let’s dismiss the case.”

Let’s Talk Torture

Yesterday, after years of legal battles led by the American Civil Liberties Union, the Obama administration released four memoranda from the Bush years in which the Office of Legal Counsel — the legal-advice arm of the White House — declared that, yes, “enhanced interrogation techniques” like water-boarding were perfectly legal. In making these documents public, however, Obama added the caveat that CIA employees who engaged in these techniques, which are correctly and properly called torture, will not be prosecuted.

I am of two minds on this particular issue. On the one hand, we have the Nuremberg Defense, used by various strata of Nazi soldiers in the post-World War II Nuremberg trials. The defense amounted to, “I was just following orders,” the implication being that very low-level soldiers who did the actual dirty work of killing 6 million Jews (and millions of others of various non-Nazi-approved races, nationalities, ethnicities, and sexual orientations) were faced with the choice of either doing what they were told, despite their orders being obviously morally and legally wrong, or standing up to their superiors and facing court marshall or death themselves. The outcome of the trials was Nuremberg Principle IV, which states, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” This principle was incorporated into the Uniform Code of Military Justice, and now U.S. military personnel may refuse to follow an order that they believe violates the law, with the law including the U.S. Constitution and any treaties to which the U.S. may be a party (including the Geneva Conventions, which explicitly forbid the use of torture).

Then again, these CIA operatives were assured that what they were ordered to do was legal. They were assured by the president — who is their boss — that it was okay to do what they were doing. It’s not an issue of questionable legality; they were told — by lawyers, who are alleged to be experts in the field of law — that it was okay to water-board suspects, deprive them of sleep, and occasionally hit them. Must they then be faulted for their lack of follow-up? Are they expected to then second-guess White House lawyers? The issue is murky. Definitely the people at the top who were responsible for crafting these policies — Bush himself, Vice President Cheney, David Addington, John Yoo, and Alberto Gonzales — must be prosecuted. But what about the people in the field? As Glenn Greenwald observes, the law compels the Justice Department to prosecute everyone who took part in torture. There was a moral choice: CIA operatives could have made the choice not to engage in torture. And if it risked their careers, so be it. They were not themselves ever threatened with death or torture; the loss of one’s job is not morally equivalent to torturing another human being.

It’s certainly true that President Obama has done a number of laudable things in his four months in office. But he can still do better, and all of us need to push him away from the trope of “centrism” (which, in U.S. political discourse in 2009, means “being conservative”). And if he does have a legitimate national security concern, he should let us know. He doesn’t have to go into the gory details, but it would be nice to know why he’s suddenly changed his mind. After eight years of “Trust me, I know what I’m doing,” I voted for a government that doesn’t demand faith from its people.

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