Life Under Cheney's Rationale For Torture

If Cheney's rationale for torture made sense.

Is the Bush Administration Engaging in Large Scale Fishing Expedition?

The debate over Bush's domestic spying program has sparked this interesting question. Is the Bush Administration fishing for information that they could not possibly get a warrant for? The evidence seems to be pointing in that direction as Josh Marshall recently noted, in 2003 the FISA Court issued its first denied warrant in its history and denied 4 during that year. The next year, in 2004 there were 0 denied requests again, just like every year previously. So once the Bush Administration started getting their requests denied they began the secret spying program without FISA approval because they knew that they couldn't obtain a warrant for those searches. That tells me that they started coming to the extremely deferencial FISA Court with requests that would never be taken seriously by any Court. Requests for warrants on people who they had no probable cause whatsoever to believe were involved with anything. In other words, a fishing expedition, they are intercepting such a huge volume of communications that they couldn't possibly hope to obtain a warrant.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

Interesting, But Wrong

I feel the need to respond to a comment I noticed here recently on my post about the Diane Rehm Show. The poster brought to my attention a 1982 New York Times article about a Federal Appeals Court having upheld domestic wiretapping. The article fails to bear a legitimate comparison to what is happening now. The FISA law provides that the NSA can seek warrants from a FISA Court for precisely the kinds of investigations that the Bush Administration authorized here. The difference is that the Bush Administration is bypassing the FISA Court and keeping it entirely secret that an individual was ever wiretapped. The 1982 ruling, therefore, upheld the legitimacy of the FISA Courts, as without knowledge of having been wiretapped the plaintiff could never have filed suit. Upholding the legitimacy of the FISA Courts seems like a decision of questionable merit to me, but that is a totally different issue than we are discussing today. Now, unlike in 1982, nobody is informed the these wiretaps ever took place and the Administration has not sought any warrant from the FISA Court, even though such warrants can be issued up to 72 hours after the wiretap was conducted. So, while the commenter brings up an interesting point, the comparison between the NYT article cited and the current situation falls desperately short.

Judge Puts Stiff Penalty on Striking Transit Workers

A New York judge ruled today that the transit strike was illegal and fined the union $1 million per day that they remained out on strike. The rationale being that it was illegal for public workers in New York to go out on strike. Sounds like your typical anti-worker ruling, workers have an inherent right to organize into unions, and the only tool that unions have to force improved conditions, wages, or benefits is the threat of a strike. Once that threat is removed unions have no power, nothing to force employers to the bargaining table. I would even contend that the New York law is unconstitutional as it violates the 1st and 14th amendments of the Constituion. Banning strikes violates the 1st amendment right to freedom of assembly and forcing people to work violates the liberty clause of the 14th amendment. The Judge said the following, "This is a very, very sad day in the history of labor relations for New York City," indeed it is, it is the day the judge refused to have the guts to back up the right to organize and to use the one tool that unions have at their disposal to force bargaining agreements against an unjust and unconstitutional law. Michael Bloomberg added in more bashing of workers.

An angry Michael Bloomberg, mayor of New York City, appeared at a press conference on Tuesday afternoon and called the union strike "selfish and illegal."

He said the strikers had "thuggishly turned their backs on New York City and disgraced the noble concept of public service." Bloomberg threatened "severe consequences" for the strikers, who he said were breaking the law.

Nice attitude Bloomberg, as though no one else bears any responsibility for the strike, perhaps Mr. Bloomberg, the city of New York should have worked out an agreement with the transit workers before they felt they had to use their one weapon and walk out. Who's a thug Mr. Bloomberg? I see a thug running the city who refused to talk to the union and prevent a strike that it sounds like has been a horrible inconvenience and burden on the citizens of New York.

NYT Held Wiretap Story Before Election

The Los Angeles Times today reports that the New York Times had the wiretap story before the 2004 elections and did not publish.

The New York Times first debated publishing a story about secret eavesdropping on Americans as early as last fall, before the 2004 presidential election.

But the newspaper held the story for more than a year and only revealed the secret wiretaps last Friday, when it became apparent a book by one of its reporters was about to break the news, according to journalists familiar with the paper's internal discussions.
...
"The publication was not timed to the Iraqi election, the Patriot Act debate, Jim's forthcoming book or any other event," Keller said in a statement. "We published the story when we did because after much hard work it was fully reported, checked and ready, and because, after listening respectfully to the administration's objections, we were convinced there was no good reason not to publish it."
...
The initial Times statements did not say that the paper's internal debate began before the Nov. 2, 2004, presidential election — in which Iraq and national security questions loomed large — or make any reference to Risen's book, due out Jan. 16.

But two journalists, who declined to be identified, said that editors at the paper were actively considering running the story about the wiretaps before Bush's November showdown with Democratic Sen. John F. Kerry of Massachusetts.
...
"When they realized that it was going to appear in the book anyway, that is when they went ahead and agreed to publish the story," said one of the journalists. "That's not to say that was their entire consideration, but it was a very important one of them."

The list of things the New York Times knew before the election that they didn't bother to print mounts, as we know that at least some of their reporters knew where the Valerie Plame leak came from. Salon.com puts it well when they say:

But still. When voters went to the polls in November, the New York Times knew -- but didn't tell its readers -- that the Bush administration had been lying about Scooter Libby's role in the outing of Valerie Plame. It now appears that the New York Times also knew -- but didn't tell its readers -- that the Bush administration had been spying on American citizens in violation of an act of Congress. The Times isn't alone in keeping secrets from its readers: Reporters at the Washington Post and Time magazine also knew about White House involvement in Plame's outing, for example, but chose to let Scott McClellan's denials stand through Election Day in favor of protecting their sources.

Would any of it have made a difference in November? We'll never know because journalists decided to keep the news to themselves until long after the voting was over. In the statement he released Friday, Keller said it's not the Times' "place" to "pass judgment on the legal or civil liberties questions" raised by Bush's secret spying plan. But it is the Times' place -- it is a journalist's responsibility -- to report the news, especially when that news involves the possibility that crimes were committed by the highest officials in our nation's government.

Conservatives Tear Bush to Shreads Over Domestic Spying on NPR

This morning's Diane Rehm Show featuring Bruce Fein-Republican Counsel during the Reagan Administration, David Keene of the American Conservative Union, and Norman Ornstein of the American Enterprise Institute was brutal to Bush on the domestic spying policy. One of the guests (can't recall which) said "Bush is now claiming more authority as Commander in Chief than King George did in 1776."

Hillarious Web Site

Make Bush say what you want. Great fun, watch others or create your own.

Gonzalez Lied in Confirmation Hearings

Bush's wiretaps of American citizens without warrants are a violation of Federal Law, and yet in response to questions about Presidential "Commander in Chief Authority" Gonzalez specifically said the Administration had not authorized any actions against Federal Law.

During his confirmation hearings for Attorney General in January 2005, Sen. Russ Feingold asked Gonzales about this precise issue:

SEN. FEINGOLD: I — Judge Gonzales, let me ask a broader question. I’m asking you whether in general the president has the constitutional authority, does he at least in theory have the authority to authorize violations of the criminal law under duly enacted statutes simply because he’s commander in chief? Does he — does he have that power?

After trying to dodge the question for a time, Gonzales issued this denial:

MR. GONZALES: Senator, this president is not — I — it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.

The Myth of Guiliani the Moderate

I don't care if he's pro-choice, the man is an authoritarian leader whose solution to everything is to reduce civil liberties. Giuliani once threatened the closing of the Metropolitan Museum of Art because he was offended by the use of some nude works, his policies to crack down on crime in New York City essentially came down to the essential idea of arresting people for every minor offense, similar to the test policy in Washington DC that lead to the Hedgepeth case which came to light when John Roberts was the nominee for the Supreme Court. This article in the New York Times by Mr. Giuliani is indicative of how out of touch and unconcerned for civil liberties Mr. Guiliani is. For starters his entire contention is based upon a lie.

The central provisions of the Patriot Act allow law enforcement and the intelligence community to share information. This might seem elementary, but for years law enforcement had been stymied by a legal wall that prevented agencies from sharing information. For four years now, inter-agency collaboration, made possible by the Patriot Act, has played an important role in preventing another day like Sept. 11. The act's provisions helped make possible the investigations in Lackawanna, N.Y., and Portland, Ore., in which 12 people were ultimately convicted for attempts to aid Al Qaeda and the Taliban.
...
So what happened in Washington? The House voted on Wednesday to renew the act; it stalled in the Senate. If the Senate fails to approve the extension, the government will be forced to revert in many ways to our pre-Sept. 11 methods. Sixteen provisions of the Patriot Act are set to expire on Dec. 31, including the key information-sharing ones.

Yes, those are central provisions of the act, but the problem with this contention is that none of those provisions are in the now expiring sunset bill that was filibustered yesterday.

It is simply false to claim, as some of its critics do, that this bill does not respond to concerns about civil liberties. The four-year extension of the Patriot Act, as passed by the House, would not only reauthorize the expiring provisions - allowing our Joint Terrorism Task Force, National Counterterrorism Center and Terrorist Screening Center to continue their work uninterrupted - it would also make a number of common-sense clarifications and add dozens of additional civil liberties safeguards.

Concerns have been raised about the so-called library records provision; the bill adds safeguards. The same is true for roving wiretaps, "sneak and peek" searches and access to counsel and courts, as well as many others concerns raised by groups like the American Library Association and the American Civil Liberties Union.

Nobody is saying that these provisions have been entirely unchanged, some safeguards have been added to the bill, the argument is that they are not sufficient safeguards. Giuliani is so desperate to defend the indefensible that he has to litter his article with half truths in order to seem coherent. He makes many of the same contentions that Sununu rebuked Sean Hannity for last night.

The Supreme Court Should Accept the Padilla Appeal

SCOTUSblog has a recent post about the government's brief urging the High Court not to hear the Padilla case. However, the legal maneuvering by the Bush Administration should give the Court little choice, there is a consistent pattern at work here of changinging one key cercumstance and dodging the Supreme Court preventing a definitive ruling on this important matter. We need a precedent, the Bush Administration cannot be allowed to ontinue this Court dodging.

The Bush Administration late Friday afternoon urged the Supreme Court to deny review of the challenge by Jose Padilla to his designation as an "enemy combatant" in the war on terrorism, arguing that the case is now moot. "The predicate for this habeas action...no longer exists" because Padilla has now been charged with crime in civilian court, and ordered released from military custody, the brief contended. (The text of the government's 30-page brief can be found at the link provided in the post just below. The attempt by Padilla's lawyers to keep the case alive through action in the Fourth Circuit is discussed in the post further below.)

If this were the case in terms of matter of law, it seems clear that the Supreme Court would have little choice but to deny review, for the issue that they have been asked to take up is no longer a circumstance, but as SCOTUSBlog noted previously, this is not the case.

For the time being, however, Padilla is both an "enemy combatant" and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: "A senior attorney at the Solicitor General's Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him."

On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would "supersede" his earlier order designating Padilla an "enemy combatant" and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla's custodian. In fact, another of Padilla's lawyers, Michael P. O'Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order "does not remove the designation of 'enemy combatant' that the President placed upon Mr. Padilla..." And O'Connell said that "the government continues to assert the authority to return Mr. Padilla to military custody."

O'Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: "Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed" until the Supreme Court acts on Padilla's appeal to the Justices.

The legal uncertainty, of course, is pervasive, and remains quite confusing.

It looks to me like a civilian Court ruling favorable to Mr. Padilla will prompt the Bush Administration to once again place him under military custody as an enemy combatant. The charges against him are not the same as the grounds argued by the Bush Administration for his detention previously demonstrating that the whole thing was bogus, not to say that he may not be involved with Al-Qaeda, but there is not way to know and the Bush Administration has now charged him with something totally unrelated to the argument they made for continuing to detain him. The Supreme Court must take this case in order to establish a definitive ruling against the enemy combatant determination for Amerian citizens on American soil. Without that ruling it looks apparent that a civilian exoneration of Padilla will prompt the Administration to detain him once more as an enemy combatant. The Bush Administration played this game before by moving Padilla's place of detention then arguing that Padilla's lawyers filed suit in the wrong district court, the Supreme Court cannot allow themselves to be fooled like that again.

---UPDATE---This case should henceforth be referred to as "Legal Dodgeball"
---UPDATE2---Cross Posted at DailyKos.

Abramoff Buys Favorable Articles As Well

In addition to buying off members of Congress for their votes, Abramoff appears to have paid off writers in exchange for the writing of articles favorable to his clients.

Mr. Abramoff, who built a powerful lobbying business largely through his affluent Indian tribe clients in the late 1990's, paid Mr. Bandow during those years to advance the causes of such clients as the Commonwealth of the Northern Mariana Islands and the Mississippi Band of Choctaw Indians.

In one column in 2001, Mr. Bandow extolled the free-market system that had allowed the Marianas to thrive, saying that fighting terrorism was no excuse for "economic meddling" - the same position that Mr. Abramoff was being paid to advance.

The federal government "should respect the commonwealth's independent policies, which have allowed the islands to rise above the poverty evident elsewhere throughout Micronesia," Mr. Bandow wrote.

In an earlier column, in 1997, Mr. Bandow defended the gambling enterprise of the Choctaws. "There's certainly no evidence that Indian gambling operations harm the local community," he wrote.

We can see now for all the cries of "freedom" that we see coming from CATO that one form of freedom they obviously don't believe in is freedom of the press, for no press is free when it can be purchased.

Sununu Makes Hannity Look Silly

I just saw John Sununu (R-NH) on Hannity and Colmes talking about the PATRIOT ACT vote, and until now never thought I would see a Republican stand up to Sean Hannity like that. When Hannity tried to claim that it was essential to law enforcement that it be reauthorized as is Sununu said "No, its not essential to law enforcement that we not have judicial review of these cases, you're misstating the facts." Then Hannity tried to play the game of telling him he wasn't properly towing the party line to which Sununu said "This isn't about numbers, lets debate the merits of this." Hannity then responded "This is about numbers you're one of only three Republicans to oppose this." Very revealing statement by Hannity there, demonstrating very clearly that he doesn't give a shit about the merits of proposals, Sean Hannity doesn't care about what is good policy. This brings to light quite effectively that Hannity is a Republican before he's an American.

New York Times Pushed Around By Bush

Salon.com has an interesting little scoop today. The New York Times sat on the secret spying story for a year before printing it today at the request of the White House.

As we noted earlier today, the New York Times is out with a story in which it says the Bush administration has been monitoring -- without warrants -- telephone calls and e-mail messages originated in the United States. What we didn't mention, and should have, is this snippet from the piece: "The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting."

Our question: When did the White House make its request, and what does "a year" mean? The Times is awfully light on details here, leaving itself open for speculation from the left as to whether the Times sat on the story through last year's presidential election. At the same time, the right is free to speculate about the Times' decision to run the story now, just as the Senate was about to take up and -- as it turns out -- vote down the reauthorization of the PATRIOT Act.
...
"A year ago, when this information first became known to Times reporters, the administration argued strongly that writing about this eavesdropping program would give terrorists clues about the vulnerability of their communications and would deprive the government of an effective tool for the protection of the country's security. Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions. As we have done before in rare instances when faced with a convincing national security argument, we agreed not to publish at that time.

Its a legitimate question, did the Times withhold this story during the Presidential election? In other news from Salon, Bush tells reporters what the top story of the day is.

When Bush tried to sidestep questions today about the New York Times' report on his secret spying program, PBS's Jim Lehrer protested that the story is on "the front page of the New York Times, the Washington Post, every newspaper in America today, and it's ... it's the main story of the day." Bush cut him off and said: "It's not the main story of the day ... The main story of the day is the Iraqi election."

The President who thinks he determines what the news of the day is. I guess that's what happens when you elect someone who doesn't read the paper.

Cloture on PATRIOT ACT Fails

52 in favor of invoking cloture, 47 against. No vote will take place on this bill at least for the time being. Haven't seen any indication of when the Senate leadership will seek another cloture vote, but this is a major victory. Crapo (R-ID) and Smith (R-OR) vote in favor of cloture, demonstrates a couple of things. Crapo doesn't really care about civil liberties even though he says he does. And Smith isn't moderate even though he says he is. Anyone who supports the PATRIOT ACT at this point is nothing more than a tool for the Bush Administration, we've all seen now both that the PATRIOT ACT grants Federal law enforcement more power than is reasonable, and that the Bush Administration cannot be trusted with it.

Why Do Republicans Hate Courts?

Senator Lindsey Graham has inserted an amendment to the defense spending authorization bill to take the meat out of McCain's amendment. The White House threatened veto with McCain's amendment, and now says that they won't with Graham's. Why's Graham's Ameendment so important? Because it removes judicial review from the equation giving the President unilateral authority to determine what is and is not "cruel, inhuman, and degrading treatment."

But he won't have to, thanks to a recent amendment by Sen. Lindsay Graham (R., S.C.). This one bars Guantánamo detainees from going to federal court to enforce the rights that McCain would declare sacrosanct.

A shabby compromise is in the making. Bush removes his veto threat - as long as Graham's amendment remains in the bill - to transform McCain's principles into a hypocritical gesture: Listen up, world, we are against torture at Guantánamo - as long as nobody can complain about it.

To deflect critics, Graham has created an exception to allow Guantánamo inmates their day in court once they are finally convicted of a crime by a military tribunal. But this exception creates more perverse incentives. If a detainee has been victimized, the best way to cover it up is to hold him indefinitely as an "enemy combatant" and never send him before a military tribunal. That way, he will never get access to a federal court.
...
Despite the high stakes, Graham did not even give Congress a fair chance to consider the matter. He made an end run around the Senate Judiciary Committee, chaired by Sen. Arlen Specter (R., Pa.), and persuaded the Senate to accept his court-stripping rider as a floor amendment. Specter eloquently protested, but he was outvoted in the rush to push the matter into a conference committee.

The Senate leadership plans to continue its rush tactics this week. It will ask the Senate to rubber-stamp the final conference bill before it begins its Christmas recess. But Specter should stand firm against a cynical compromise that will defang McCain's anti-torture initiative. Given the grave issues raised by the Graham amendment, a filibuster is entirely appropriate to give the judiciary committee a chance to expose the Graham amendment to sober second thought. It would be tragic if McCain's admirable proposal becomes an occasion for yet another assault on the fundamental principles of the American Constitution.

This is just one more case of a right wing war on judicial review and the courts, it is far more than just rhetoric that assails judges for what they term "judicial activism" the Republican Party today seems fundamentally opposed to the legal rights of prisoners. Jon Kyle sponsors a bill to severely limit federal judicial review in death penalty cases. Its as though "judicial activism" is the root of all evil and that the definition of "judicial activism" is any decision that upholds the rights of the accused. The Republican Party today is against the essential concept of due process of law, that is the only reasonable conclusion that can be drawn from this string of bills stripping the rights of those accused of crimes and detainees.

Leahy Says the Votes are there for a Filibuster of the PATRIOT ACT

Senator Patrick Leahy stated today that Russell Feingold's filibuster of the PATRIOTIC has 40 votes to prevent cloture. Including Sen. Wyden (D-OR) and Sen. Craig (R-ID), makes me proud to be from Oregon and Idaho.

Now add more than two dozen senators to Feingold's side, including the leaders of his party and some of the chamber's most conservative Republicans, and the balance of power shifts.

The new Senate arithmetic that emerged this week is enough to place the renewal of major portions of the law in doubt. It was enough to inspire Senate Republican leaders to consider a backup plan in case Feingold's filibuster threat succeeded. Enough to prompt
President Bush to dispatch Attorney General Alberto Gonzales to Capitol Hill twice in two days to lobby on the accord's behalf.

No luck so far, said the chief Senate sponsor.

"We've got a battle on our hands," Judiciary Committee Chairman Arlen Specter, R-Pa., told reporters after Gonzales had departed Wednesday.

Bush weighed in personally Thursday, urging opponents of the renewal to abandon the filibuster threats.

"That is a bad decision for the security of the United States," the president said. "I call upon the Senate to end the filibuster and to pass this important legislation so that we have the tools necessary to defend the country in a time of war."

Moments later, the senior Democrat on the issue, Sen. Patrick Leahy (news, bio, voting record), D-Vt., told reporters that more than 40 votes exist to sustain a filibuster in a test vote Friday. White House allies said they would rather see the law's 16 temporary provisions expire entirely than give opponents another three months or more to keep whittling away at them.
...
Chief among their concerns are the National Security Letters that the FBI can use to compel the release of such private records as financial, computer and library transactions. The bill for the first time explicitly says the third-party recipients of NSLs — banks, Internet service providers and libraries — can hire lawyers and challenge the letters in court.

Feingold and his allies want more reports from the Justice Department on how NSLs and other tools in terror investigations are used. They also want to set limits on how long law enforcement officials can continue to use NSLs in terror investigations.
...
Whatever happens with the renewal, the mere debate is a boost for Feingold and any presidential aspirations he may nurture after next year's midterm elections — a development that carries some irony.

"People don't go to the well of the Senate and become the only senator to vote against something called the 'USA Patriot Act' five weeks after 9/11 because they're trying to get ready to run for president," Feingold said.

But four years later, during visits to the presidential proving grounds of New Hampshire and Iowa, Feingold says there's evidence his position has resonated with more than just the Democratic base.

Persistance pays off, Feingold was the only one with the guts to oppose this the first time arround, and now many more see that he was right. I would like to focus briefly on Sen. Larry Craig's membership in this coalition. His is a demonstration that even in the reddest of the Red States, Idaho, opposition to the PATRIOT ACT is a popular position. Craig supported the PATRIOT until one of the people who originally opposed it (Rep. Butch Otter R-ID 1st) convinced him of how bad this law is. Craig has been outspoken in his opposition since that time. It'll be interesting to see who is in this coalition of 40 that Leahy refers to. Thank you Sen. Feingold for making an issue out of this, it will never be forgotten.

My Head is Going to Explode

This from CNN, Zarqawi caught! Zarqawi let go! I need to remove myself from news for the day, I've had about as much as I can take.

I Think We've Entered Wonderland

I no longer know what is real and what's not. A DailyKos diary has alerted me of this interesting development. Apparently the "War on Christmas" has now been taken up by the house of Representatives. Voting today 401-22 to pass a sense of the House Resolution that "the symbols of Christmas should be protected." Gutsy votes by the 22, I hope they are all in safe seats, and I think them for having guts, but this is rediculous, regardless of how one votes on this peice of crap, the House has no business even taking up this non-issue. Rep. John Dingell of Michigan sums up this bill in poetry, I cannot possibly beat this, so I'll let Rep. Dingell's words be the last on this post.

"Madam Speaker, I have a little poem.

'Twas the week before Christmas and all through the House,
no bills were passed `bout which Fox News could grouse.
Tax cuts for the wealthy were passed with great cheer,
so vacations in St. Barts soon should be near.

Katrina kids were all nestled snug in motel beds,
while visions of school and home danced in their heads.
In Iraq, our soldiers need supplies and a plan,
and nuclear weapons are being built in Iran.

Gas prices shot up, consumer confidence fell.
Americans feared we were in a fast track to ..... well.
Wait, we need a distraction, something divisive and wily,
a fabrication straight from the mouth of O'Reilly.

We will pretend Christmas is under attack,
hold a vote to save it, then pat ourselves on the back.
Silent Night, First Noel, Away in the Manger,
Wake up Congress, they're in no danger.

This time of year, we see Christmas everywhere we go,
From churches to homes to schools and, yes, even Costco.
What we have is an attempt to divide and destroy
when this is the season to unite us with joy.

At Christmastime, we're taught to unite.
We don't need a made-up reason to fight.
So on O'Reilly, on Hannity, on Coulter and those right-wing blogs.
You should sit back and relax, have a few egg nogs.

'Tis the holiday season; enjoy it a pinch.
With all our real problems, do we really need another Grinch?
So to my friends and my colleagues, I say with delight,
a Merry Christmas to all, and to Bill O'Reilly, happy holidays.
Ho, ho, ho. Merry Christmas."

Ok, WTF?

There can no longer be any doubt that the famous purple finger is nothing more than a silly, stupid, PR game to create symbolism for the WH to use as "evidence" of Iraq's "growing democracy". I present to you the following picture courtesy of Reuters.



Wait, wait, it turns out, that she is an Iraqi-expatriot residing in Canada and is voting not in Iraq, but in Dearborn Michigan. Now when this whole "purple finger" stuff started in Afghanistan I thought, "well, ok, they have to resort to primative means to keep track of who has voted. I would think they could come up with something better than that, but you gotta do what you gotta do. But now, we know for a fact that in Dearborn Michigan they have a better way to keep track of who has voted than to dip fingers in purple ink. This is nothing more than a cheap symbolism, and I resent it.

UPDATE---That photographer is pretty lazy too if he feels like he can't go to Iraq to get a picture of Iraqis voting and has to go to Dearborn Michigan instead.

Bob Novak Says Bush Knows Leakers Identity

Todays Washington Post reports that Bob Novak said in a speech yesterday that Bush knows who leaked Valerie Plame's identity to him and that it is the same person who leaked the information to Bob Woodward.

Syndicated columnist Robert D. Novak, who has repeatedly declined to discuss his role in disclosing the identity of CIA operative Valerie Plame, said in a speech this week that he is certain President Bush knows who his mystery administration source is.

Novak said Tuesday that the public and press should be asking the president about the official rather than pressing journalists who received the information.

Novak also suggested that the administration official who gave him the information is the same person who mentioned Plame and her CIA role to Washington Post Assistant Managing Editor Bob Woodward in the summer of 2003.

"I'm confident the president knows who the source is," Novak told a luncheon audience at the John Locke Foundation in Raleigh, N.C., on Tuesday, according to an account published yesterday in the Raleigh News & Observer. "I'd be amazed if he doesn't."

"So I say, don't bug me. Don't bug Bob Woodward. Bug the president as to whether he should reveal who the source is," Novak said.

A major question here, is Novak just speculating that there is no way the President doesn't know, as I might speculate about such matters? Or does Novak actually know something in this regard. I never thought I would find myself agreeing with Novak, but his point about bugging the President is very true. Fitzgerald would likely never have had to subpoena journalists if the Administration was being straightforward about the leak instead of actively obstructing. The President and VP both refused to testify under oath, and Libby as we know is under indictment for obstructing the investigation. We should be bugging the President about this, Novak is absolutely right about this, but he's wrong about something else. Because of the fact that the Administration refuses to be straightforward with the American people we are forced to bug reporters and hacks like Novak who might have information. The obstruction by the Administration needs to end, but until it does, we're forced to inconvenience Bob Novak. Sorry Bob.

This tells me something else, that it is now a certainty (whereas it was just well informed speculation before) that Libby while a leaker was not the one who leaked Plame's identity to Novak or Woodward. The entire implication of this speech (at least the part noted by the Post) is that Bush knows who the leaker is and has not been either forthcoming with information or taken action against the leaker. Republicans celebrated when Rove didn't get indicted the first time arround. It is abundantly clear that this is far from over.

Bush Did Not Take Responsibility

Responsibility, first of all, is an odd word. I'm going to ignore its meaning in this post and focus on the absurdity of this analysis provided to us by that bastion of the SCLM CNN.

"It is true that much of the intelligence turned out to be wrong," Bush said during his fourth and final speech before Thursday's vote for Iraq's parliament. "As president I am responsible for the decision to go into Iraq. And I'm also responsible for fixing what went wrong by reforming our intelligence capabilities. And we're doing just that."

"My decision to remove Saddam Hussein was the right decision," the president said. "Saddam was a threat and the American people, and the world is better off because he is no longer in power."

Actually, this article has little content beyond Bush's own words and direct quotes from some detractors. But the headline "Bush Takes Responsibility for Invasion Intelligence" and the lead "On the eve of Iraq's historic election, President Bush took responsibility Wednesday for 'wrong' intelligence that led to the war, but he said removing Saddam Hussein was still necessary" comprise very disturbing coverage of the speech. Nothing in this article indicates that Mr. Bush is "taking responsibility" for anything. Did he ever claim that it wasn't his decision to go to war? Of course not. He had at a time maintained that the intelligence was correct, but hasn't used that one for a long time. Furthermore, he continues to maintain that the decision to go to war was the right one. So really this is nothing new. He maintains that he based his decision to go to war on faulty intelligence that everybody shared, that's not taking responsibility and its nothing new. I don't expect Bush to take responsibility, he's not going to ever say that his Administration "fixed the intelligence arround the policy" as the Downing Street Memos put it. Its not plausible to expect him to do that, for to do that would be to essentially admit that he lied, which would deal the final blow to his Presidency making him a total lame duck. Come on CNN, let's not give the man credit for "taking responsibility" when he quite clearly didn't.

On Uncontested Districts and Cronyism

Salon.com has a good article entitled "Rise of the New Black Leaders" going through the history of black uncontested districts and the cronyism that followed. Just as inner city blacks have become frustrated with cronyism and in large part stopped voting for political machines simply because they are black, perhaps now is the time that urban Americans will become frustrated with that trend within the Republican Party.

In fact, Barbara Lee, who replaced Dellums as Oakland's congressional representative in 1998, thinks that the very middle-class values growing among California's black professionals may be critical to a Democratic resurgence in 2006. All the worst qualities of the old black urban machines -- cronyism, incompetence, gerrymandering -- are the hallmarks of George W. Bush's presidency and his supporters in the House of Representatives.

Just as a black middle class is turning its back on such politics locally, so the American middle class is wondering how long the country can tolerate such ineptitude, arrogance and fiscal irresponsibility. If leaders like Lee can link middle-class desires for good government with the basic aspirations of the urban poor, the great gulf between Reagan Democrats and the identity politics of the civil rights era may finally be resolved.

"The shock and outrage at what we saw in the wake of Hurricane Katrina was widely felt, and is strong evidence that people believe that we all have a stake in the kind of society we live in," Lee told Salon. "Coalition politics is about expanding opportunity, fostering prosperity, and valuing diversity. And that is a message that the majority of Americans believe in."

Such analysis is exactly why so many Democratic leaders have pinned their hopes for resurgence on Sen. Barack Obama of Illinois. In the last two years, the senator has emerged from the South Side of Chicago as an old-fashioned Truman Democrat, a foreign-policy hawk whose liberal domestic politics are focused on protecting and rebuilding the middle class. When he speaks of his vision for America, he doesn't dwell on the country's history of racism or exploitation, and he doesn't flog his personal journey as an African-American. Instead, he speaks of possibility and American exceptionalism.

Standing at the crossroads of history, Obama said during his stirring speech at last year's Democratic National Convention, "I believe we can give our middle class relief and provide working families with a road to opportunity. I believe we can provide jobs to the jobless, homes to the homeless, and reclaim young people in cities across America from violence and despair."

As the Republican leadership mortgages the country's future on debt, cronyism and religious divisiveness, Barack Obama may well become America's first truly national black politician.

What I see here on top of the changing culture in gerrymandered black districts, is a new ability to frame issues in a way that gives people a clear vision of the kinds of policies that are going to be pursued. The networks didn't carry Obama's DNC keynote address, perhaps this combined with Kerry's own inability to create any similar narrative lead to the confusion voters had with where Democrats stood on issues in 2004. Too many people didn't see Obama's inspiring and well framed DNC keynote address. Barbara Lee brings it back to essential core values, "expanding opportunity, fostering prosperity, and valuing diversity."

No, I don't think that's Such a Good Idea Nic

Nicholas Kristof has an interesting article about what strikes me as a bad idea in today's New York Times.

Now comes one of the craziest -- and appealing -- ideas in the biological world: reintroducing species to the Americas. Eventually, this could allow Americans to go on camera safaris in this country and see scenes that humans haven't witnessed on this continent since about 11,000 B.C.

The genesis for this idea is the growing realization that Native Americans were not the fine ecological stewards we imagine. In the Americas, hunters began using effective spears about 13,000 years ago, and in only about four centuries nearly three-quarters of the large animal species had disappeared. Something like that also happened in Australia.

Ok Nic, you're right, Native Americans I'm sure did contribute to the extinction of many species of animals in North America, but you're talking about an ecology that hasn't existed for 13,000 years. Don't you think that some adaptations might have occurred since then?

So in a commentary in Nature in August, a handful of scientists led by Josh Donlan of Cornell University suggested a 'Pleistocene re-wilding'' -- the introduction of species from elsewhere that would closely resemble those in the ecosystem of the Pleistocene era, from about 1.65 million years ago until about 10,000 years ago.

The proposal provoked gasps of horror, some from Americans who did not wish to look out their back window and see a cheetah devour a camel -- or, worse, their child. There's been such a furor about reintroducing wolves in Yellowstone that I doubt this column will go over well with Montana and Wyoming ranchers.

But the idea is not for a Jurassic Park. Things would start slowly with less threatening creatures like the Bolson tortoise, which can weigh 100 pounds. It is now found only in Mexico but was once common in the U.S.

The next step would be to find a 200,000-acre ranch in the Southwest that saw an economic opportunity in working with scientists to recreate a Pleistocene ecosystem and then charging tourists to come and gawk. And, yes, such a game reserve would have a strong perimeter fence.

Something similar is being tried in Siberia. As the journal Science recounted in May, biologists in the Russian region of Yakutia are trying to create a Pleistocene Park by reintroducing species similar to the ones that humans killed off there long ago.

No no no no, this is a stupid idea. You already acknowledge backlash from ranchers for the reintroduction of wolves into Yellowstone and Idaho, in some cases reintroduction is a good idea, but it has turned many people who are otherwise very concerned with environmental issues against environmentalists. When you start reintroducing something that as far as most Americans are concerned was never even here you're asking for trouble.

This proposal could also be a boon for environmentalism. At a time when environmentalism defines itself largely by what it is against, re-wilding provides a positive vision. What could be bolder than giving our children the first glimpse in 13,000 years of an America as it was before humans introduced high technology like spears?

Didn't you hear me? It wont be a boon to environmentalism. Ok, so you didn't hear me, but still, not going to boost environmentalism. But you are right about one thing. Environmentalists do need to be for something instead of against something. This is why a major push needs to be made to move the United States away from dirty fuel (coal, oil...), and towards clean renewable energy like wind and solar. So, interesting article, interesting thought. But if anyone seriously considers this I might scream, things change in 13,000 ecologically this aint the same country it was then, you might just end up with a lot of prey incapable of avoiding predators causing animals that are a part of the North American ecosystem to be driven to extinction by animals that haven't been for a very long time. Like Jurassic Park, stupid idea, but again like Jurassic Park, an intriguing thought.

Fighting the Culture Wars in the Cinemas

This battle over The Lion, the Witch, and the Wardrobe is silly. The Chronicles of Narnia have a broad appeal based on the fact that they are good stories, all this nonsense about their Christian message is rediculous, and as Jessica Seigel put it in todays New York Times, destroys the movie for everyone else.

The 7-year-old who sat next to me during a recent showing said, "This is really scary." It was scary when the White Witch kills the lion Aslan, who dies to save the loathsome Edmund before rising to help him and his siblings vanquish evil. But adults reducing the story to one note - their own - are even scarier. One side dismisses the hidden Jesus figure as silly or trivial, while the other insists the lion is Jesus in a story meant to proselytize. They're both wrong.

As a child, I never knew that Aslan was "Jesus." And that's a good thing. My mother recently remarked that if she'd known the stories were Christian, she wouldn't have given me the books - which are among my dearest childhood memories.
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Yes, it's allegory land, a place that strings symbols together to create levels of meaning, which a determined scholar has actually quantified as ranging from two to seven layers. (No word on why not eight.) Allegory, the oldest narrative technique, often involves talking animals, from Aesop's fox with the grapes to Dr. Seuss's Yertle the Turtle, supposedly a Hitler figure.

Does that twist the Seuss tale into a political treatise on fascism? No, it adds another level for adults, it teaches morals (even the meekest can unseat the powerful, etc.), and it's fun - when plain little Mack burps, he shakes the bad king Yertle from his throne built on turtles.

But which layer is more important - the surface or beneath? Deep thinkers specialize in hidden meanings (building demand, of course, for their interpretive expertise). An Oxford English professor, Lewis himself explored the depths in his scholarly books. But he also defended the literal, lamenting in his essay "On Stories" how modern criticism denigrates the pleasures of a good yarn - and that was 50 years ago.

While critics today call it "fallacy" to interpret a work by citing the author's intentions, Lewis left a road map for us marked with special instructions for not annoying children. In his essay "Sometimes Fairy Stories May Say Best What's to Be Said," he denounced as "moonshine" the idea that he wrote the Narnia chronicles to proselytize the young. The lion Aslan, he wrote, bounded into his imagination from his experience as a Christian, coming to him naturally as should all good writing.

"Let the pictures tell you their own moral," he advised in "On Three Ways of Writing for Children." "If they don't show you a moral, don't put one in."

In keeping with that advice, the Narnia chronicles don't beat you on the head - nor does the faithful movie adaptation. If everyone stays on his own level - the surface for adventurers, and the depths for believers - we can all enjoy, so long as the advertisers stay out of the way.

Absolutely right, the political drumbeat over christian interpretations of Narnia simply put, "ruins a good yarn." This post is directed as much as anyone else at my parents who anounced that they would boycott the movie because the Christian right has made it their "movie of the year." Now I'm not telling anyone whether or not to see the movie, but make that decision based on something better than who endorses it, if the movie looks like it will be good then see it, if it doesn't then don't see it.

As long as I'm talking about movies I will tell you something you should see if you haven't already Lord of War is truly excellent, its not yet out on DVD, but when it is if you haven't seen it, rent it. A sleeper, but truly excellent.

Eugene McCarthy Has Died

Just thought you might miss this if I didn't point it out, Eugene McCarthy has died.

Budget Cuts Held Up Over ANWR Drilling

As I said yesterday, the Republican Party is clearly not cutting the budget to pay for New Orleans reconstruction as they claim. They cut taxes in order to create an excuse to cut programs that are very benefitial to millions of Americans. Programs ranging from food stamps, to student loans, to MediCare. It appears that for the moment they have outsmarted themselves by grouping two of their top priorities together, the budget cuts and Arctic Drilling.

"The Senate won't take anything that doesn't have some sort of program for ANWR in it, and the House right now won't take anything that does," said House Energy and Commerce Committee Chairman Joe Barton, R-Texas.
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Even though a majority in both the House and Senate support drilling in the refuge, filibuster threats by drilling opponents in the Senate have always blocked efforts to pass it as part of broader energy legislation. The filibuster threat means it effectively takes 60 votes in the 100-member Senate to pass ANWR drilling under normal rules.

o clear that hurdle this year, Senate advocates of drilling, led by Sen. Ted Stevens, R-Alaska, and Energy Committee Chairman Pete Domenici, R-N.M., put the issue in the budget measure, which cannot be filibustered.

Thank you Stevens and Domenichi for trying so hard to avoid a filibuster on your beloved Arctic drilling that you have at least for the time being holding up some of the most viscious budget cuts imaginable. I hope they don't compromise on this, as long as Senate pro-drilling Republicans refuse to compromise neither the radical budget cuts or the harmful and useless ANWR drilling will pass. Please keep these together, the country is much better for this packaging. I'm all for anything that keeps this budget cut package from passing.

House Passes Reauthorization of 2001 Tax Cuts

UPDATE-5:06Armando calls it Christmas for Cronies.
The House reauthorized $95 billion of Bush's tax cuts yesterday. And the New York Times wonders at what happened to the "maverick Republicans" of fiscal responsibility. Here's a hint, they never existed.

Voting 234 to 197, almost purely along party lines, the House approved $56 billion in tax cuts over five years, one day after it passed other tax cuts totaling $39 billion over five years. The biggest provision would extend President Bush's 2001 tax cut for stock dividends and capital gains for two years at a cost of $20 billion.

That was welcome news for a president whose tax plans looked all but dead a few weeks ago. All the maverick Republican conservatives in House, who had pushed party leaders to pass $51 billion in spending cuts, voted enthusiastically for tax cuts costing nearly twice as much.
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"The choice is clear, tax relief that goes to people making a million bucks or more and cutting student loans, cutting food support for people who need it and cutting child support," Representative Sander M. Levin, Democrat of Michigan, said.

This is not hard to comprehend, its hypocritical, but not hard to comprehend. The rush to cut spending after Hurricane Katrina was not about being able to pay for reconstruction, it was about finding an excuse to cut necessary and popular programs that Republicans have been wanting to take an ax to for a long time. Programs that benefit the very people who were hit the hardest by the hurricane. If it was about being able to afford the reconstruction of Nawleans, they would be passing some tax increases, or at the very least letting these tax cuts expire.

The rash of spending that followed Hurricane Katrina two months ago has emboldened conservatives to push for cuts far beyond what Congress could agree to in a budget blueprint in the spring.

"Listen, we're broke. Let's face it," said Rep. John A. Boehner (R-Ohio), chairman of the House Education and the Workforce Committee, which will try today to complete legislation saving $18.1 billion over five years from pension protection and student loan programs.

The Republicans are not the party of fiscal responsibility. Their goal is to destroy the social safety net, they do this by cutting taxes to create a budget crisis so that they can then use the budget crisis as an excuse to cut programs. There aren't "maverick Republicans" concerned with out of control deficits, there are typical Republicans who want to eliminate MediCare, MedicAid, student loans, and much much more. This is just a raw defense of billionaires, there is no other way to rationalize it.

Bob Herbert Deals Pro-War Crowd a Blow

Yesterday Bob Herbert had an excellent collumn revealing just how much of a fantasy world proponents of "staying the course" in Iraq are living in.

Opponents of a swift withdrawal speak of potential consequences that are dire in the extreme: the eruption of a wider civil war with ever more horrendous Iraqi casualties; the transformation of Iraq into a safe haven and even more of a training ground for anti-American terrorists; the involvement of neighboring countries like Iran, Syria and Turkey in a spreading conflict that could destabilize the entire Middle East.

Vice President Dick Cheney told troops at Fort Drum, N.Y., on Tuesday that in the event of a swift withdrawal of American troops, Iraq ''would return to the rule of tyrants, become a massive source of instability in the Middle East and be a staging area for ever greater attacks against America and other civilized nations.''
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If the hawks are right, if all of this is so -- and if this war is, indeed, still winnable -- then the Bush administration has an obligation to level with the American people, explaining clearly what will be required in terms of casualties, financial costs and other sacrifices, and telling the truth about the shabby, amateurish state of the Iraqi security forces.

As it stands now, the United States is incapable of defeating the insurgency with the forces it has in Iraq. So it is beyond preposterous to think that Iraq can be pacified in a year or 18 months or two years by a fledgling, underequipped Iraqi Army and a hapless police force riddled with brutal, partisan militias.

What's more, the U.S. military itself is in danger of cracking under the strain of this endless Iraq ordeal. Troops are being sent into the war zone for their third and fourth tours, which is hideously unfair. The more times you roll the dice, the more likely snake eyes will pop up.
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The combination of troop shortages, declining public support for the war and the Republicans' anxiety over next year's elections all but ensures some substantial reduction in U.S. forces in Iraq over the next eight to 12 months.
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If this war is worth fighting, it's worth fighting right. And that means mobilizing not just the handful of troops who have borne the burden of this wretched conflict, but the entire nation. Taxes would have to be raised, the military expanded, the forces in Iraq bolstered and a counterinsurgency strategy developed that would have some chance of actually defeating the enemy.

To do that would require implementing a draft. It's easy to make the case for war when the fighting will be done by other people's children.

If this war is as important as the hawks insist it is, the burden should be shared by all of us. The youngsters sacrificed on the altar of Iraq should be drawn from the widest possible swath of the general population.

If most Americans are unwilling to send their children to fight in Iraq, it must mean that most Americans do not feel that winning the war is absolutely essential.
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The public initially supported this war because the administration was very effective at promoting the canard that Iraq was somehow linked to Al Qaeda and involved in the Sept. 11 attacks.

Now the hawks must once again bear the burden of persuasion. They must persuade the public that the U.S. should continue indefinitely fighting this war, which has embedded us in such a hellish predicament and taken such a horrendous toll.

If it's not worth fighting, then we should be preparing an orderly exit now.

Herbert is absolutely right, if the consequences of leaving Iraq are as dire as people like Cheney insist they are, we should be taking action that can give us a reasonable chance of making Iraq into a stable country. That means increasing troop levels dramatically, which means a draft. That means not cutting taxes for the wealthy (as the House recently did). If the stakes are as high as they claim then they need to be taking a case for expansion to the American people. They wont do that because they know the American people will reject that expansion, Bush, Cheney, and their supporters are unwilling to make that case, its time to just get out. I don't want a draft, nobody wants a draft, and if we're unwilling to committ to an expansion of this war we cannot afford to stay in it.

Alito and Executive Power

Dahlia Lithwick over at Slate makes the argument about Bush's High Court nominees that I have been making for some time. That the President is trying to stack the Court with judges who defer to executive power. Lithwick takes the argument where I have thus far been unwilling to go. I think its likely that she is right, but the evidence in the case of Alito is scant, which is precisely what is so scary.

My fear is that we are all snoozing through an elaborate plan to pack the court for the Bush administration's war on terror. What if all the obsessive talk about whether candidates are for or against overturning Roe v. Wade is a strategic head feint? What if I am right, and Samuel Alito is confirmed to the Supreme Court without ever substantively answering a question about torture, enemy detentions, the rights of foreigners, or civil liberties during wartime?
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This president—for reasons that hardly warrant repeating here—doesn't really want to be remembered as the guy responsible for the court that overturned Roe. (Although he certainly wants us to think he wants to be remembered as that guy.) No, Roe is not what keeps George W. Bush awake nights. What he wants to be remembered for is winning the war on terror. He wants to be seen as the president who carried the great torch of democracy into the world's darkest corners. And he believes—of this I am certain—that the courts are standing in his way.

I have written before that the arc of his Supreme Court nominations can best be explained by his desire to pack the courts for all of the Hamdan, Hamdi, and Padilla cases to be heard by the courts for years to come. Think about it: Roberts, Miers, and Alito each have a long track record of endorsing executive power. Each seems highly likely to strongly support the president's claims to virtually limitless executive authority in wartime. The Bush administration saw that claim repudiated by a margin of 8-1 in Hamdi. And the president won't let that happen again.

It won't. How do I know? In his 15 years on the federal bench, Judge Samuel Alito has yet to rule on a case substantively involving the war on terror. But Alito's votes in pending and future war on terror cases can be fairly accurately predicted. They lurk in dark alleys, near his decisions about criminal rights, immigration cases, and government power. Alito's record in none of those areas bodes well for people who worry about the Bush administration's push for unchecked war powers.

Robert Gordon has written in Slate, for instance, that in his survey of the criminal and Fourth Amendment cases Alito heard as an appeals court judge, he adopted the position most supportive of the government every time. Justice Antonin Scalia is a conservative who has crafted a healthy jurisprudence of doubt about limitless government powers. Alito, on the other hand, is a former prosecutor who has seemingly never met a search, seizure, warrant, or arrest he couldn't love.

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Which brings us to Alito's record on the rights of immigrants and foreigners. His views on this score were illuminated last week by documents released from his 16-month tenure as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel. In one memo, Alito signed off on an FBI plan to collect fingerprint cards of Iranian and Afghan refugees living in Canada. He suggested that the program was constitutional because these refugees were nonresident immigrants of another country, thus freeing the FBI from abiding by court decisions that barred the agency from spreading "stigmatizing'' information about U.S. citizens. Alito simply feels that nonresident immigrants of other countries have no due process rights under the Constitution. The Washington Post last week quoted Martin Redish, a constitutional law professor at Northwestern University Law School, arguing that Alito's logic would likely support the Bush administration's current policy of CIA interrogations in secret European prisons as well.

Despite the Bush administration's urgings to deny review, the Supreme Court recently agreed to hear the next big war on terror case, Hamdan v. Rumsfeld. Justice Sandra Day O'Connor, author of perhaps the most famous words in the post 9/11 struggle between the courts and the executive—"[a] state of war is not a blank check for the president"—will not be on the court to decide it. Samuel Alito, who has made a judicial career out of writing, signing, and endorsing blank checks—will.

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The courts, and specifically the Supreme Court, have been willing to push back against the executive's relentless power grab, albeit by a sometimes narrow margin. If Judge Alito is unwilling or unable to talk about his positions in this area of law, we should assume, based on his record, that he would rubber-stamp the administration's citizen detention, habeas corpus, and torture policies. If that is the case—and his confirmation becomes a referendum on the acceptability of such policies—he would, and should, fail to be confirmed by a large bipartisan majority.

I was advocating the position Lithwick pushes here adamently prior to the Alito nomination, and I think it is likely still true. But this time Bush has picked someone with no record in that matter. It was obvious with Miers and Roberts, but Alito is a tougher bird to figure out. While I think Lithwick is probably correct, I'm not certain to what degree the evidence she cites for Alito applies. I'm less convinced this one isn't actually about equality or business interests, but the questions of Presidential power should not be dropped. Getting to the bottom of that question is of utmost importance.

Kitzhaber Eying a Run

Todays Oregonian discusses the possibility of a Kitzhaber candidacy for Governor of Oregon.

Former Gov. John Kitzhaber moved one step closer to a comeback bid Friday, saying he is seriously considering a run for an unprecedented third term as Oregon governor.

Kitzhaber said he told current Gov. Ted Kulongoski he may enter the Democratic primary and will make a final decision shortly after the first of the year.
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"The impact Kitzhaber has just talking about running is immense," said James Moore, a political analyst and professor at Pacific University. "It makes it very clear that people are hungry for someone other than Kulongoski to run, but that person has to be a major player."

Moore said no Democrats can really make a move in the primary until the former governor makes up his mind. "It's basically waiting for Kitzhaber."

If you recall, the Oregonian has played with this thought in the past, I blogged about it back in September. But this article seems more like Kitzhaber actually considering a run, and less like the Oregonian having a fun time speculating. MyDD discusses the political implications of a Kitzhaber candidacy.

In recent elections, Oregon's Democrats have had significant momentum, first forcing a 15-15 tie in the state Senate following the 2002 elections and then gaining control of that chamber, as well as narrowing the Republican lead in the state House, following the 2004 elections. But an all out war between Kulongoski and Kitzhaber, which seems likely should the former Governor enter the race, could stall that momentum as limited resources are expended in a drawn out primary and a schism is created between the two camps. All of the sudden, Republicans, who had been ostracized for their radical positions (primarily on social issues), would have a golden opportunity to reclaim power in the state.

Now it is true that a number of pieces would have to fall into place in order for the Republicans to make full use of this moment. These include avoiding the type of divisive primary that could afflict the Democrats. But even by giving the Republicans a glimmer of hope, the Democrats might be handing the GOP the catalyst necessary for them to get their act together. Specifically for this reason, I am becoming increasingly concerned about the Dems' ability to hold onto Oregon's governorship next fall.

Hopefully this doesn't mean that the football game between the Beavers and the Ducks will not be the only Civil War in Oregon. I heard Kitzhaber speak at the University of Idaho a couple of years back, and was very impressed with him. I like Kulongoski as well however, and to lose the Governorship because Democrats decided to self destruct over a viscious battle would be a real shame. I really do not want to feel like I have to add either Kulongoski or Kitzhaber to my candidates list. Given all that, I think I would prefer not to see a Kitzhaber run for the governorship. But if he did, I would most certainly support him.

Holy Cow We've been Hoodwinked Batman

As we all know, Padilla was charged with "provided material support to terrorists" last week. But it turns out, SCOTUSBlog reports, that Padilla is still an emeny combatant. Cute legal trick, charge him so everyone thinks that they've decided to allow him due process. But it turns out that they now claim that they can charge him with a crime, but continue to hold him as an enemy combatant so that it doesn't matter if they win their case against him or not.

For the time being, however, Padilla is both an "enemy combatant" and a criminal case defendant. One of the attorneys handling his Supreme Court appeal, Jonathan M. Freiman of New Haven, Conn., said on Friday: "A senior attorney at the Solicitor General's Office informed me, on the very day the indictment was unsealed [Nov. 22], that it was possible that Padilla would again be detained as an enemy combatant if he was found innocent of the criminal charges against him."

On Nov. 22, the government released a Nov. 20 order by President Bush to the Pentagon to release Padilla from military custody, saying that this would "supersede" his earlier order designating Padilla an "enemy combatant" and ordering his detention by the military. But that new order does not say explicitly that anything is being changed except Padilla's custodian. In fact, another of Padilla's lawyers, Michael P. O'Connell of Charleston, S.C., said in a court filing there Nov. 28 that the new presidential order "does not remove the designation of 'enemy combatant' that the President placed upon Mr. Padilla..." And O'Connell said that "the government continues to assert the authority to return Mr. Padilla to military custody."

O'Connell, who is handling the Padilla case that remains in federal court in Charleston, said in his filing: "Given the fast-moving developments and the current uncertainty that surrounds them, I respectfully request that these proceedings be stayed" until the Supreme Court acts on Padilla's appeal to the Justices.

The legal uncertainty, of course, is pervasive, and remains quite confusing.
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The scary recital matched the picture the government has been publicly displaying of Padilla for the past couple of years. In a celebrated press conference on June 1, 2004, then-Deputy Attorney General James Comey revealed the apartment blowsup plot in telling the public "the sobering story of Jose Padilla." That account, he said, "will allow the American people to understand the threat he posed and also understand that the president's decision [to name him a combatant and detain him]." Besides the plans to blow up apartment buildings, Comey recalled the by-then familiar government asertion that Padilla had planned to release a radioactive bomb in the U.S.

The Comey revelations, of course, made their way into the government's arguments that led the Fourth Circuit to uphold Padilla's designation.

But that picture of Padilla's actions is markedly different from the picture that emerges in the new criminal indictment. The Justice Department laid that indictment before the Fourth Circuit as part of its filings seeking approval of his transfer from military to civilian custody for trial on the indictment. The Circuit Court no doubt saw the differences between the two. And that, apparently, is what led the Fourth Circuit to raise the possibility that it would vacate its ruling in favor of the presidential authority used against Padilla -- a precedent the government very much wants left on the books.

According to the indictment, Padilla played only a decidedly minor role in the activity of a "North American support cell" for terrorism. The indictment charges that he was recruited by that cell to participate in violent acts overseas, "and traveled overseas for that purpose." There are 11 counts in the indictment, which names Padilla along with four others. But Padilla is charged in only three of the counts -- conspiracy to commit murder and other violence "in a foreign country," conspiracy to "provide material support for terrorists," and providing "material support for terrorists." There is no mention of the facts about the apartment blowup or the radioactive bomb (apparently because the government got some of that evidence from interrogating Padilla, and some from Al Qaeda operatives it does not want summoned as witnesses.)

The Fourth Circuit, in its order Nov. 30 calling for new briefs on whether to vacate its Sept. 9 ruling, cited the "different facts that were alleged...and held by this court to justify" his detention, "and the alleged facts on which Padilla has now been indicted."

The final of those newly summoned briefs is due Dec. 16 -- the next key date, too, in the Supreme Court proceedings.

Plainly, the process has much further to go, with the outcome shrouded in more doubt than at any time since Padilla was named an "enemy combatant" on June 9, 2002.

This was always freaky and scary, but this is downright wierd. Charging him here apparently only to cause confusion and delay Court proceedings, this is outrageous. Give the man his due process. It's obvious Bush really was sincere when he referred to the 2004 election as "the accountability moment."