Familia TD came down and rooted in the nation's capitol, as we "ran" our second consecutive Marine Corps Marathon (the 30th edition of same, and in honor of the occasion, attended by 30,000 entrants, its largest field by far) in a time of... 5 minutes faster than last year! During our visit, we were delighted to dine with Familia Offering.
This week-after-Fitzmas promises... a new Supreme Court nominee (as early as tomorrow). Let's just say that the choice will be telling. Will the President go for another loyalist, or will he feel obliged to cave to the religious right (whose leaders helped shoot down Harriet Miers, even as polls show that the rank and file of American religious conservatives actually liked her)... or will we even be able to tell?
Stick around...
Update: The Supreme Court nomination goes to.... Samuel Alito (pronounced by some as "Scalito"), now of Philadelphia's 3rd U.S. Circuit Court of Appeals, said to be someone who will make conservatives very happy indeed, and non-conservatives... less happy. The so-called Gang of 14 "no filibuster deal" may come back into play; Sen. Lindsay Graham (R-SC) suggests that he will not tolerate Alito being deemed "extraordinary circumstances" and might vote for "the nuclear option" if such is in the offing, although, like a certain Justice originally from Queens, New York, Alito is regarded as an ideological activist.
At 15 years on the federal bench and a former assistant solicitor general (I believe 18 arguments to the Supreme Court) and United States Attorney for New Jersey, the qualifying professional experience is unquestionably there; as noted, Alito is said to be "in the manner of Scalia" (certainly in the sense of being Italian, conservative and from the Northeast!). Elections, as I say occasionally, have consequences: the same party controls both the White House and the Senate, which means, within very narrowly defined limits (defined, evidently as "Harriet Miers"), that party can pretty much name who it likes to the Court.
I have no doubt we'll be learning more about Judge Alito in due course; I will say about Ms. Miers that Democrats lost a simultaneous opportunity to both chide the President for cronyism and to chide conservatives (especially so-called "religious conservative leaders") for being so savage in taking out one of their own. Well, no matter. The President has decided that instead of the Court having two women, it will have two (very, very conservative) Italian-American men.
CNN is reporting that I[rve] Lewis "Scooter" Libby will be indicted later today, Rove stays "under investigation" and that Special Prosecutor Patrick Fitzgerald will make some kind of public announcement at a press conference at 2:00 p.m. EDT today.
Talking dog senior legal analyst Mrs. TD had suggested that one possible strategy for Rove might be (rather than the childish name-calling he has already engaged in) to bait the prosecutor by daring him to indict... pointing out that any indictment would be based on nothing after years of investigation, slapped together at the last possible moment, and flimsy evidence.
Your talking dog felt this strategy might be problematic if Rove was singing like a canary to save his own behind, and knew he was not going to be indicted. If in fact the Special Prosecutor is going to ask to extend the grand jury and continue the investigation, with Mr. Rove one of its targets, we may well see this kind of change in strategy... in which case, advantage Mrs. TD. Indeed, expect the Republicans to start echoing the mantras of Democrats of five or six years ago, who, when commenting on the Whitewater investigation, noted the years and millions of dollars involved. (They'll find that this sort of mantra will play better than trying to belittle perjury or obstruction of justice charges, which the public, notwithstanding indications to the contrary, understands full well.)
Of course (although no Bill Clinton hagiographer, me) we must point out that no one on a federal government salary was indicted in Whitewater. If Scooter-- chief of staff to the vice-president of the United States-- is indicted, it will be "Plamegate Prosecutor 1, Whitewater Prosecutor nil" in the "nailing corrupt officials with indictments" department.
The day is young.
Pissed off at the Neanderthals who run the Kansas State Education apparatus, two leading national scientific and educational organizations have refused to grant the State of Kansas permission to use their copyright with respect to certain materials associated with the teaching of biology, a move expected to slow down, but not stop, Kansas' asinine decision to teach fairy tales right next to actual science as part of some revisionist "scientific heresy critical studies thing" to satisfy certain religio-fascist extremists.
Obviously, the Kansas State Board of Education has not yet been touched by His Noodly Appendage.
Well, some sign of progress in the universe against reactionary forces of darkness. I guess their answer to "why do you want to render the children of Kansas at a disadvantage against children from other states whose educational leaders don't have their heads up their ass?" is... well, science is for smart people, so what use would we have for it.
[Stop sugarcoating and tell us what you really think, TD...]
Harriet "Church Lady" Miers, the latest in government-by-crony nominations out of the Bush Administration, withdrew her nomination for Supreme Court Justice this morning. The bitter irony is that it's only a matter of time before Bush, et al. manages to blame obstructionist Democrats, who, of course (alas) had nothing to do with the attacks on Miers' nomination. Those concerned her lack of fire-breathing hard-ass right wing credentials (see "Bork, Robert", rumored to be a possible replacement candidate himself... would that be sweet, in its own perverse way?), her lack of constitutional (or other relevant) experience, her close ties to the White House requiring numerous recusals on important cases, and her general unimpressiveness... We all know the real reason Harriet's nomination went down... could it be... SATAN???
Alrightie then. Let the recriminations fly. The President will now have to satisfy the hard right, and will do so. Democrats failed to sense that Miers was going down anyway, as a President who had every reason to fear his own possible impeachment, depending on how the Plame-gate indictments and follow-on go down desperately needs hard-ass conservatives, and naturally, Democrats failed to tie Miers to Mike Brown and crony-politics, a winning theme for use in the '06 mid-terms.
So here we go. The Unseen Editor tells me that CNN reports "No Fitzmas today." Is Harriet just another of Karl's diversions against the inevitable? Could Harriet be the Grinch who stole Fitzmas? The day is young...
Well, in 1979, I was... 26 years younger than I am on this, the birthday that I share with fellow luminaries Jaclyn Smith (Charlie's Angels of Anaheim), Hillary Clinton (Chicago Cubs of Chappaqua) and on one of the two calendars in use at the time, Leon Trotsky (Reds of Moscow). It appears that my birthday won't have Fitzmas fall on it this year, I'm afraid. Well, tomorrow's another day.
1979. 1979. Something happened somewhere that year... Oh yes. Now I remember. It seems that Iran's new hard-ass hardline president is back to those rallying cries that got him elected in the first place in the election for Iranian figurehead president, calling for the destruction of Israel. (Hat tip to Bruce the Veep.)
Yes, President Mahmoud Ahmadinejad harkens back to those halcyon days of yesteryear when the Great Satan was, well us. While I'm sure we're still widely beloved in Iranian circles, in an unofficial way, of course, its probably never a bad time in Iranian political circles to talk about wiping the Jewish State off the map. Yes indeed, that Zionist entity that controls an area the size of New Jersey and 3 or 4 million Moslems is a dire threat to the world's nearly one billion Moslems... Well, what can we say?
Anyway, its somewhat ironic that among the (innumerable) motivations of those supporting (in every way possible) our entry into war against Iraq was a belief that doing so would somehow improve the lot if Israel (after all, Saddam did hurl scuds at Tel Aviv and Jerusalem back in GWI). Of course, Israeli officials will tell you that Hizbollah sponsoring Iran was always a more pressing existential threat... and good old President Ahmadinejad (just call him Mahmoud) is spouting off the crazy shit, just as (1) the Europeans may be getting antsy about Iran screwing around with its nuclear program, (2) on again off again Iranian ally (but mostly on) Syria is in some trouble over its apparent role in the assassination of the former Lebanese premier Rafik Hariri, (3) Israel seems to simultaneously following the platform of defeated Labour candidate Amram Mitzna (no-strings-attached withdrawal from Gaza, finish "the wall), and (4) Iraq's constitutional and political process seems destined to land it a Shiite dominated government which will, without doubt, be friendly to Iran...
A possibly toxic mix. Honestly, the only reason I have any hope at all that the Iranians won't complete their nuclear ambitions and attack Israel with such weapons and quite possibly ignite a world war is because, well, the mullahs in Iran are so damned... corrupt... there's just no point in being filthy rich on money you stole if you're going to die in a horrible conflagration... Ironic that its that element of human nature that may prove its saving grace... well, its all I got...
Amidst the horrors ravaging Florida (and previously Mexico and the Caribbean region) from Hurricane Wilma, for a time the strongest hurricane ever recorded in the Atlantic, we learn the sad news that civil rights pioneer and icon Rosa Parks has passed away at the age of 92.
It's been over fifty years since Ms. Parks set off a lengthy bus boycott in Montgomery, Alabama and a national protest over her refusal to yield her seat in the front of a city bus to a white passenger, helping to set in motion a chain of events that eventually broke up overt American apartheid. Ms. Parks herself later had to leave the South, moving to Michigan, where, among other things, she served as a staffer to Congressman John Conyers.
As I've noted here, while White Americans overwhelmingly believe there are no problems in terms of race relations in this country, Black Americans overwhelmingly disagree. Given the persistent disparities in income levels and poverty rates and other measures (including infant mortality rates among African Americans that, in some areas, rival those of Third World countries, or disparate rates of prosecution and incarceration as measured on a racial basis), one can see that, even with overt Jim Crow pretty much dead... we've a ways to go still.
Of direct interest, Joe Gandelman linked to this David Adesnik essay at OxBlog, which purports to ask 10 Democratic "activists" what their party stands for, and there was a surprising consensus: "to help the poor and disadvantaged". Adesnik proceeds to observe that this sort of message will never sell to the (selfish) middle class White people to whom it (supposedly) needs to be sold.
Well... no. The purpose of the Democratic Party IS... well, it HAD BETTER BE... to help the poor and disadvantaged... through promoting fairness and justice. Simple as that: you see, in this area, it happens to be the other party that, for a change, tells us what they don't want: they don't want a progressive taxation system, they don't want a decent living minimum wage, they don't want working men and women (White, Black, Asian, Latino, whomever...) to be guaranteed health coverage, vacation and other basic benefits, they don't want our government to ensure that business operates with safe working conditions or without despoiling the environment... they don't want to ensure that our government promotes economic opportunity for all instead of for those who already have it... And they're pretty emphatic about what they don't want. WE want fairness and justice; the other party... has other concerns. If that's a message that can't be sold to "the middle class", then the hell with everyone.; I'll bet it's a message that can be sold, though. Anyway...
Rosa Parks, R.I.P. You've helped take us further than it looked like we were going to get before you. As we continue the journey, we will remember your spirit, and hope that some day we may reach the point when it will be hard to believe that there was ever a period in this country's history when one's skin color determined where they got to sit and ride on a bus.
Well, not necessarily every talking dog will love the latest strategy coming from GOP Central: malign that picayune, hypertechnical prosecutor, belittle the nature of the crimes as hyper-technical inside-the-beltway stuff and continue to behave as if the population writ-large will let the usual bullshit machine spin treason as the most arcane of technicalities, as laid out by the somewhat complicit Grey Lady.
Well, well. Let's follow along with the Grey Lady's own complicitity in serving the propaganda goals of the Administration in lying about WMD's in the first place, we see the publicly played out little internal dance between managing editor Bill Keller and Judy Miller herself. (Indeed, the second most offensive thing Joe Wilson did-- the first being his appearance in the Tim Russert Softball Tournament-- was to publish an op-ed in the very same New York Times.)
It's all fascinatingly... unprofessional. The whole thing. I knew as of August of 2002 that there were no freaking WMDs in Iraq... I did... one completely out of the loop schnook who almost never leaves New York. And I knew that whether or not Saddam Hussein actually had really nasty super-weapons, the Bush Adminsitration had decided-- to a certainty-- that he didn't, or else it would never have allowed the hemming and hawing to go on so long while it played to maximize its outcome in the '02 midterms... couldn't have afforded to play that game if they believed Saddam actually had the really bad shit....
And I wasn't alone. Millions knew it. If nothing else, they knew to assume that if it came out of George W. Bush's mouth or those associated with him, it was to be assumed false from the get-go, either intentionally so or simply because his team was and remains the gang that can't shoot straight. And in this case, it turns out that thinking like that... was good enough.
Ah, but there was a tipping point in the national debate that finally convinced the Bushmen they had escape velocity to do what they intended... it may have been that awful vote that the feckless Tom Daschle allowed to happen (and voted for, along with most Democrats.) It may have been something else. And while some in the blogo-hobby-sphere would like to believe they had any influence (they did not... and still don't...), the "even-the-liberal"-New York Times had tremendously outsized influence. And instead of professional journalism from the Times, we got party-girl Judy Miller re-printing the Administration's press releases and the results of Ahmad Chalabi's rotisserie Stratego league, while neither she nor her paper bothered to perform even the most rudimentary efforts at corroboration. Too important to maintain the steady access to the propaganda mill, apparently.
The same New York Times who deliberately underreported the size of a protest I was at in February 2003, at under 100,000, and depicting an aerial shot of the crowd so enumerated based on its congregation on one of the city's avenues, conveniently not reporting that there were four times as many people present, or over 400,000 protestors... perhaps 5% of the population of the city in which Ground Zero resides, spending hours outside to protest the then coming war, on what was one of then the coldest days in years.
So while it's semi-enlightening to see The Times reporting on GOP methods to mitigate and ridicule the criminal charges arising from the self-serving treason of deliberately jeopardizing the lives of American covert operatives to intimidate possible truth-telling that might embarass the Administration... one must never forget that The Times itself bears its own wildly outsized share of responsibility for its own blithe assistance in enabling the President to commit this country to a war that, whatever else you can say about it, was sold to the American people because of the threat of nuclear and other very nasty weapons in the hands of Saddam Hussein, a threat eventually proven to be non-existent. (And the protest undercount still pisses me off to this day.) Because whatever "standards" the Times has to integrity, to professionalism, to basic God damned fact checking... seem to have failed it in this one iddy bitty case, anyway... failed us all, actually.
Our overdue return visit to our comrades at Pravda leads us right to this take on Syrian criticisms of the United Nations' report which places clear blame for the assassination of former Lebanese Prime Minister Rafik Hariri... that report, of course, prepared by a German examining magistrate, concludes that Syria was in it up to its eyeballs and those of Syrian President Bashir Assad's brother in law.
The Pravda piece also lets us know that Syria needed some help from Lebanese officials, up to and including, of course, the services responsible for guarding dignitaries like Mr. Hariri, who, evidently, had made himself a huge pain in the ass to Syria by being so damned outspoken about wanting Syria to withdraw its troop contingent from Lebanon (which, after massive protests following his death and anti-Syrian parties prevailed in parliamentary elections, eventually happened.)
The tzuras has not been wasted stateside, as our President, still reeling after the Summer of Cindy, Katrina and Valerie, welcomed a possible major international crisis to get his mind off of things that devastated his approval rating, and Bush called for Security Council action regarding the report.
How will this turn out? I have no idea; in some sense, "the market" had already assumed Hariri could not possibly have been taken out without Syrian help at a minimum, so we're not in too much of a different position. Obviously, even without its troops in place, Syria continues to wield some level of influence on its seaside neighbor.
Given how unstable Iraq is these days, I'm not sure a destabilization of Syria at the moment is the greatest of ideas... Then again, I'm not sure it's not... all we can be reasonably sure of is that however the Bush Administration approaches this, it will do so in its usual half-assed self-defeating manner...
Oy...
As Florida grips for possible damage to its populace from Hurricane Wilma (we're running out of letters...) what had been the strongest hurricane ever measured in the Atlantic... just giving an exclamation point to this year's disasters... its poor and elderly population should gear up for another kind of disaster, of the governmentally created kind: a massive medicaid "reform" that both proponents and detractors call "a radical change".
Near as I can tell, this measure, proposed and enacted in a state where the President's brother is governor, and since JEB Bush will almost certainly be the GOP nominee in 2008 (barring liberal fantasies of Cheney's resignation followed by Condi Rice named as veep followed by Bush's resignation... something about the Prez and Veep acting as accessories after the fact to treason...)... we can expect a similar program to be proposed on a national scale by President John Edward "JEB" Bush after he takes office in January 2009.
What this amounts to is the ability to shunt medicaid patients to private insurers, who can then set annual and life-time limits on treatment they (the insurer) will pay for... the precise opposite of social insurance. Estimates are 5% of the medicaid population should hit the annual limit each year; what happens to them is... a mystery (most likely they will become a "charity burden" on hospitals and health-care-related philanthropies... which, of course, will also be pressured by the increasing presence of profit-making insurers administering a government funded program). Anyone exceeding their annual cap should have considered that before getting sick, now shouldn't they?
But the State of Florida, which has no income tax, and thanks to repeal of that awful death tax on estates of multi-millionaires, has rapidly declining revenues from that source, has a huge incentive to cut costs, damn the consequences. This is precisely the same pressure that will be felt at the federal level, as soon as everyone realizes just how important a component of it is medicaid (around 10%, give or take, of the budget, as is, give or take, the medicare program).
This is what compassionate conservatism is all about, boys and girls. Prosperity with a purpose and all that.
After failing to secure the requisite diversion from Fitzgerald's laser-like focus with the Harriet Miers thing, with the insanely profligate Katrina recovery package, with the threatened veto of the torture ban, or with the "stunning success" we are having in Iraq after the process we rigged to ensure that the constitution would pass resulted in the constitution passing, Karl decided it was time to commence the Saddam Hussein show trials... a very (VERY) courageous presiding Judge Rizgar Mohammed Amin wisely adjourned said Saddam show trial for around six weeks to permit preparation of some kind of meaningful defense.
Well, who knows? Maybe, the Saddam trials will come to greatly resemble the
war crimes trial of Bush and Cheney Nuremberg trials, which began sixty years ago this week. Or maybe they will resemble the trial of Milosevic, that seems to be mired in procedural circles and has been going on for years with no end-- indeed no beginning-- in sight. Maybe the Iraqis will assert themselves (pay no attention to the men behind the curtains) and actually try to give this murderous bastard and his Baathist co-defendants something resembling a fair trial, despite the desires of the Bush Administration. For one thing, maybe the Iraqis will be smart enough to take the death penalty off the table; while our genius President would fail to see the (insanely stupid and unnecessarily gravely) negative consequences of an attempt to execute a former leader of a sovereign nation that we invaded without provocation... I suspect even Condi and Cheney and Rumsfeld might be able to see the problems with it, particularly given that the currently "sovereign" Iraqi government clearly remains an American ward and protectorate.
Or maybe they can't.
Who knows? To his credit, Arafat had the decency to just up and die (albeit under circumstances that might have been... controversial...) So, perhaps Saddam who, after all, is himself in his 60's and has a very bad back and I understand other health problems, might, you know, oblige us likewise, and save us all this trouble. Or perhaps someone will come up with something creative, like sentencing Saddam to banishment somewhere, or else, better yet, just decide to ignore him until he dies or something (the only fitting punishment, to be honest: having him wallow in obscurity for the rest of his days.)
Just another one of many, many loose ends we have left, as part of the very, very large mess to clean up that we have created in Iraq. As with all projects of the Bush Administration... look over there!
In Iraq, we're not exactly sure what choosey mothers chose, although peanut butter is probably not a staple there, even if its the sort of thing we distribute in our aid packages. We're also not sure what Iraqi voters chose in their constitutional balloting, though it looks like we can be sure that huge numbers of them-- over 10,000,000-- voted yesterday to express a preference one way or another. This is actually more people than voted in last winter's initial national parliamentary elections, and as such, is a sign that millions of Iraqi people are willing to brave the risk of going outside there to exercise democratic perogatives (and frankly, unequivocal good news, as with something serious on the line, it looks like millions, or at least lots, of Sunnis have voted.)
Another interesting question of which outcome is more important to Iraqi democracy: the passage of the constitution, which will ratify the backroom wrangling between Iranian influenced Shiite parties and Kurdish parties who may well be interested in simply breaking up Iraq, but nonetheless provide the United States the necessary cover to commence Operation Cut and Walk in time to be well drawn down by the all-important 2006 mid-term Congressional elections, or the defeat of the constitution, which will show that Sunnis actually might have a say in the legitimate ongoing development of the Iraqi state, i.e., there might well need to be some sort of "consensus" which will accelerate the national reconciliation necessary to reduce the ongoing insurgency and violence and chaos.
Early predictions are that two provinces will probably have at least 2/3 voting against the constitution, but it is unclear if a third province will meet that threshold. Nor is it particularly clear what will happen if the constitution is defeated.
My prediction is that whatever happens, Operation Cut and Walk commences as soon as practicable; we will... will... see American troop presence in Iraq down to under 70,000 by this time next year. Constitution, parliament, available Iraqi forces... or not.
With last minute preparations for tomorrow's vote to approve the hastily drawn, heavily compromised, and frankly, not very important Iraqi constituion... insurgents are blamed for managing to cause a blackout in Baghdad and vicinity.
In some sense... what else is new? Large parts of Iraq are used to very, very unreliable electricity, not to mention water, telecommunications, public services in general, and certainly, security. Amidst such an environment, one might thinnk it a tad premature, if not outright presumptuous, to think that a new constitution can be hammered out and ratified in a manner that will (1) give it any kind of legitimacy and (2) enable it to be part of a process that somehow resolves the insurgency and stabilizes Iraq, as opposed to, quite likely, either not changing anything at all from the current instability and violence, or worse, perhaps drawing or redrawing factional battle lines.
But what do I know? U.S. Ambassador to Iraq Zalmay Khalilzad tossed me out of his political science seminar back at Dear Old Alma Mater (TM) (nothing I said or did; the seminar was just overcrowded and another one opened up.)
Khalilzad seems to be orchestrating various back and forth last minute deals, including the current variation that even if the constitution is ratified, it may be freely changed by the new parliament to be elected around December, "so what's the big deal?"
Indeed. What's the big deal? The President's somewhat embarassing stage-managed video-conference with some gung ho troops hasn't stanched his political bleeding: Iraq is now old news. At 2 1/2 years and hundreds of billions of dollars in, and very, very close to 2,000 Americans dead, the American public is no longer willing to give the benefit of the doubt to this President, on Iraq, or much else.
To the extent that the ratification of the Iraqi constitution, and quite possibly, the installation of a new parliament in December or thereabouts, enables us to simply declare Iraq stable (reality notwithstanding) and begin a large-scale draw-down going into the 2006 mid-terms, well, by God that's what we're going to do. So, for that all important reason of domestic politics (pretty much the only reason we invaded Iraq in the first place, assuming there was a reason at all), we'll be commencing the drawdown... around Christmas. with the majority of our forces gone by around, say, next September-- regardless of the situation on the ground in Iraq.
Not to worry: I understand that the American Embassy in Baghdad is huge, and I understand, its roof can hold several helicopters at once.
News out of Pakistan continues to be grim. From Pakistan's Dawn, we get this current, clinical sounding assessment of aid being delivered to areas stricken by the recent earthquake centered in Pakistani-administered Kashmir, even as it acknowledges that there are areas too remote to have received any help yet.
It's interesting: a huge part of the problem in getting relief up there is that, aside from the remoteness of the area (in a branch of the same mountain group that includes the world's tallest peaks) is the general lack of infrastructure up there, a factor contributed to, in part, by the ongoing "dispute" over control over the province between India and Pakistan.
Having just completed Judaism's Day of Atonement (for 5766), a holiday which features a food/caffeine deprivation headache from a full-day's absolute food/water fast along with the collective prostration to the Almighty marking an actually quite beautiful and reverent holiday, I am immediately struck by one of the themes of Yom Kippur, which is, ostensibly, an attempt at sorrow for things that have caused estrangements between people (or peoples, I suppose), and a wish to do better in the coming year (God willing, as always). In other words, a quarrel of any nature requires at least two combatants; as time goes on, fault allocations become less important at some point than the energy spent on the quarrel. At least, so goes the theory... Anyway, cutting to the chase, this being a common inter-human fault, that of inter-personal estrangement for no seeming reason, as one of the "sins" warranting repentance, and reflection (on an empty stomach).
Fast forward to 2005, and let's look at what's happening... The year began, of course, with an ongoing American incursion in Iraq, which, say what you will about it, was undergoing before the year began. But what else happened? Its fascinating, really. If one were to name the three most troubling areas of separatist violence over disputed territory in the world, leaving out Israel/Palestine, one might well have chosen over these three: (1) Aceh province in Indonesia, where a separatist dispute between the locals and the Indonesia central government has been raging for years, (2) Sri Lanka, under decades of violence between Tamil separatists and the Sinhaliese majority, and (3) Kashmir province, disputed between India and Pakistan since the 1940's, and the subject of three major wars between the two. And what happened? January's tsunami killed hundreds of thousands in (1), and thousands upon thousands in (2), and October's earthquake killed at least tens of thousands in (3). Oh, btw, the universe unleased Hurricanes Katrina and Rita upon the nation responsible for the Iraq invasion.
Is the universe trying to tell us all something? And I don't mean in the Falwell/Robertson/Dobson, etc. sense of God showing us that he will smite us for our cultural laxness and sexual freedom... I mean that divisiveness is ultimately futile against a moving universe... not even the ground under your feet is something you can rely on... so why in God's name is it worth having decades long wars about? Can't we just figure out a way to share what we have? In some sense, the year isn't a total write-off: we've seen Israel hand back Gaza to the Palestinians, no strings attached-- something once perceived to be an impossibility (though the West Bank and Jerusalem remain problematic). We've seen the settlement of a humongous conflict in Southern Sudan (though Darfur is not resolved).
I don't know. Maybe there is hope for this world if we realize that its reality is that it is not static, the air, water and earth are in constant flux, and just maybe, we are all ultimately in a never-ending struggle with the universe, which only gets worse when we throw in a struggle with each other... Or maybe this is just my brain duly idled after a day of fasting... don't know... but maybe the universe is trying to tell us something...
The New York Police Department is looking at the possibility that an internationally known terrorist suspect (who?) has entered the United States as part of a plot to bomb the New York City subway system. This, of course, is a follow-on from purported intelligence picked up from a suspect in Iraq, who hinted at a plot here involving 19 (note the number, which, in my view, instantly added a "shades of Tom Ridge" element to the story) insurgent-terrorists infiltrating New York w ith a plot to blow up backpacks and baby carriages.
For its part, the NYPD has stepped up security measures, including bomb sniffing dogs and the like at key locations in the subway system. Query, of course, whether AQ is likely to attack a city supposedly prepared for it to do so? In some sense, if the AQ bastards manage to do something like that while everybody is watching, their ability to generate terror (the basis for their political leverage; note that it has long since achieved one of its principal political objectives, the ostensable U.S. withdrawal from Saudi Arabia proper; other aspects of the AQ legacy are everywhere...) would grow exponentially.
OTOH, OBL has simply altered his business plan, and now plots for the removal of all western powers from all Moslem nations. Given that his definition of Moslem nations would most certainly include Israel, and might even include, oh, Spain, and would certainly include any Islamic nation with Western leanings (like Morocco... or Indonesia... or Turkey... or without doubt Iraq, or...) this plan could take a while, and be very, very violent for a long, long time.
Of course, this plays into the hands of our own government, which has given us reason to be somewhat skeptical: a large-scale, never-ending "war for security" is a justification for just about everything from rampant abuse of executive power to rampant deficit spending; in my very, very cynical moments, I note that if OBL didn't exist, our current government would be sure to try to invent him (and no doubt relishes having him out there as a useful bogeyman.) Of course, re-casting all of this as a "global struggle" (for whatever it is) may actually have the virtue of being more accurate; but it is in no sense reassuring to me as I consider whether to take my small child into Manhattan on the New York City subway today, or stay home, lest it be today that hostilities in the global whatever it is resume here in the Western Front of the Global Struggle Against Violent Extremism.
Such is the world in which we live, on this day when (stateside, anyway) we celebrate Christopher Columbus, one of the great spearheads of everything good and bad about Western domination of large parts of the planet, who landed at (IIRC) San Salvador somewhere in the Bahamas around 512 or 513 years ago...
South Asia suffered a 7.6 magnitude earthquake epicentered around 60 miles north of Pakistan's capital Islamabad, with tens of thousands feared dead and many more injured. The quake was felt as far away as New Delhi, India and Kabul, Afghanistan, and seems to have done particular damage in the Hindu Kush Mountains region, around disputed Kashmir, particularly on the Pakistani side of the line of control (where at least one report suspects 30,000 dead alone). This is reported to be the largest quake in the area in over a century.
While the recriminations stateside will continue over Hurricane Katrina (whose death toll officially exceeds 1,000), other natural-disaster suffering continues, such as the well over 1,000 dead in Guatemalan mudslides after Hurricane Stan, in which it is feared that 1400 are dead.)
I point this out, of course, because... being a human being is a very risky proposition. If it's not the weather over you, it may be the ground under you that gives way. Certainly, some precautions are actually appropriate (early evacuation, decent earthquake-proof construction, or panicky announcements that Al Qaeda will attack your city's subway system some tiime today.) On that last one, the jury remains out as to whether our mayor overreacted given that the White House allegedly under-played the "credibility" of the stated threat, or whether there is some kind of (shades of Tom Ridge) game afoot, given (1) the President's sudden swoon in polls and his (14th? 23rd?) "big terrorism speech" the day of the annoucement, (2) Karl's grand jury appearance and possible indictment, and/or (3) Mayor Michael Bloomberg's adverse publicity from his failure to attend a debate in Harlem last week... who knows? Worse yet, if there is some kind of a tragedy on NYC's subways on the lightest travel day of the week (during a holiday weekend no less)... then the precautions will have proved to be more than well-warranted... Of course, I suspect that my chosing to drive up and back to and run in yesterday's Hartford Marathon, given the dangers associated with a couple-of-hour drive in a windy, driving rain each way and 5 or 6 hours of slog-jogging in said wind/rain conditions... was probably, as a statistical matter, far more hazardous a proposition than getting on the subway today...
Just saying. I learned myself after 9-11, that ostensibly it was just luck-- dumb freaking luck-- that sent someone to a high floor of the Trade Center, and hence, to their death-- or to a lower floor, or in my case, to a building across the street, where they could walk home with the story of their life. As I said above: precautions are criticial at changing the odds of safety, and frankly, there is no excuse for not taking reasonable precautions. It's just that there are no certainties of much of anything in our world, including and especially a certainty of security. There just isn't any such thing as certainty, no matter what "our leaders" tell us, or what we would like to believe.
At some point in the next few weeks, the United States Supreme Court is expected to announce whether or not it will accept review of a case called Salim Hamdan v. Donald Rumsfeld, a case in which the District of Columbia Circuit Court of Appeals held that Hamdan, a Yemeni national now detained at Guantanimo Bay Cuba, may not raise provisions of the Geneva Conventions on his own behalf, and may face military tribunals implemented by the President and the Department of Defense. On October 5, 2005, I had the privilege of “interviewing” Professor Neal Katyal of Georgetown University School of Law, the lead civilian attorney for Mr. Hamdan, by an e-mail exchange. The questions and answers follow.
The Talking Dog I always ask this question first (largely because in my own case, the answer was "in my 16th floor windowed office across the street from the World Trade Center"): where were you on September 11th?
Neal Katyal: First of all, let me thank you for this opportunity to speak with you. I am just returning from India, and am quite jet lagged, so I hope what I say makes some sense.
To answer your first question, I was literally moving from Washington, DC, to New Haven, Connecticut, that day. My first child had been born in DC on August 22, 2001, and I didn't get much sleep during the night of Sept. 10. My wife woke me up around 9am with the report of attack on the World Trade Center. The first words out of my mouth were "UBL." I did national security work for the Justice Department, and was very familiar with his handiwork. I spent the next several months being upset that more had not been done to contain the threat.
The Talking Dog In 2002, you published a Yale Law Journal article with Harvard's Laurence Tribe criticizing the military tribunal process as it was then proposed, noting such problems as separation of powers and vesting unbridled authority in one branch of government. Having been involved in the process now, on behalf of Salim Hamdan in the case under current consideration for review by the Supreme Court (with an announcement on the review expected shortly) and on behalf of Mr. Rasul and others, how would you say the military commission process as you observed it stacked up against your criticisms (if you like, were you pleasantly surprised, unpleasantly surprised, or have they gone off as expected, with your criticisms largely shown to be valid)?
Neal Katyal: I think the Article has held up well. What we pointed to in the Article (and in our separate testimony to the Senate Judiciary Committee) is that the President's Order establishing military commissions is not law, but an ad hoc set of procedures that change at whim. If we want to have military commission trials (which are completely unlike the terrific system of courts martial adopted by Congress), then legislative involvement is essential.
It's rare for me to get positive feedback on any law review article I write, but Senators Lindsey Graham, John McCain, and John Warner have done exactly that. They have repeatedly pointed out that legislation is needed. These three gentlemen have been true national heroes on this, returning us to the Founders' principles of divided government. In these military commissions, the President is acting as the person who writes the rules, defines the offenses, picks the prosecutors, picks the defense counsel, picks the judges, and picks the review (appellate) panel. In addition, he then has gone so far as to stage these trials at Guantanamo Bay with the hopes of avoiding federal court oversight altogether. This may be many things, but it is certainly not American.
The conflation of the legislative, executive, and judicial powers in the military commission is deeply worrying to me. You can open up the Federalist Papers and find these fears everywhere: Fed. 78 (Hamilton): "There is no liberty if the power of judging be not separated from the legislative and executive powers." Fed. 80 ("No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias"). And, of course, Federalist 84, which is perhaps most poignant on the point:
The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a a more dangerous engine of arbitrary government."
This tradition is even older than the Constitution itself, for the founders of our Republic identified, among their charges of tyranny against King George III in the Declaration of Independence, that "[h]e has affected to render the Military independent of and superior to the Civil Power"; "depriv[ed] us, in many Cases, of the benefits of trial by jury"; "made Judges de-pendent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences."
If you listen to debates on the hill, everyone - from the left and the right - emphasizes and understands this simple principle from our Founders. That was the entire point of the Yale Law Journal article - I feel vindicated, yes. The deep problem is that it is very hard for Senators McCain, Graham, and Warner to do anything - even after the D.C. Circuit decision in Hamdan -- because the President has threatened to veto any legislation on the subject. So the President is able to announce this sweeping set of powers, and then wield the veto pen as a sword to prevent any legislative modifications of his asserted powers. The founders' veto clause is exceptionally powerful - it requires a 2/3ds vote in each house to override a veto. So even if Senator McCain persuaded all of his 99 colleagues in the Senate to adopt a bill reigning in the military commissions, it would still not be a check on the President without a 2/3 vote in the House of Representatives. Ex ante, Congress understands this, and so most of them do not even try to regulate the legal war on terror. That is why, sadly, so much more has fell upon the courts. My great hope is that judicial involvement will ultimately produce legislative solutions to these vexing issues.
The Talking Dog I read in an interview with Lt. Commander Charlie Swift, Salim Hamdan's military lawyer, that he asked you to assist him in the representation of Mr. Hamdan; you were previously involved with legal actions involving some of the other Guantanamo Bay detainees. If I may ask, how did you get into the "unlawful combatant" representation business?
Neal Katyal: I'm not sure if I am in the "business." The President issued his military commission order on November 13, 2001. Lots of politicians on both sides of the aisle were upset, as were many conservative and liberal commentators. The next week, I was asked by the Senate Judiciary Committee to evaluate the legality of the Order, since I was known as a hawk on national security issues and terrorism at the Justice Department and I teach separation of powers law. But I'm not sure they got what they were looking for.
I remember coming into my constitutional law class a couple of days later saying that I had a surprise for them. My students always tease me because they think I find virtually nothing unconstitutional (in the sense that I believe that a federal judge should almost never declare federal government actions invalid because legislative processes tend to produce fair and balanced results). I came in and said "Hah, I found something that I think courts should strike down." And I explained why.
After all, these military commissions do not involve the authority to detain - which is a far more limited and defensible set of emergency presidential powers. Congress has authorized force against terrorists, and if government officials are empowered to shoot someone, they are entitled to detain them, too. The greater power includes the lesser; both are examples where courts should not easily second-guess a President who says that someone is a prospective threat to the nation and requires containment. But the power to try someone is altogether different. It involves a retrospective look back at guilt or innocence. That is something that requires Congressional legislation, and oversight by courts (which, after all, are well suited to examine questions of guilt).
What upsets me further was that the Government has tried to analogize the military commissions to the proud and wonderful tradition of courts martial in this country. Military officers of all ranks have been tremendously angered by this smear. The military commissions are nothing like today's courts martial; the overhaul of military justice in 1950 by Congress has changed everything. So while past military commissions were required to follow the procedural rules for courts martial, the ones today are not.
Now I realize that in today's law schools, there is a bias against military law as some backwater form of justice. Nothing could be further from the truth. But the civilians who created this military commission process in secret have fed this fire.
The Talking Dog In a previous interview I had with an attorney for another Guantanimo Bay detainee (Joshua Dratel, representing David Hicks), the attorney said that one of the aspects of the proceedings he found most unfair was that the evidence against his client consisted entirely of statements obtained from other detainees, some of them possible under coercive conditions, with little or no opportunity for cross-examination or confrontation. Judge Robertson's lower court decision granting Mr. Hamdan habeas corpus petition, or at least, holding that he could not be tried by the military tribunals, observed that the commissions fundamentally deprived the accused of the opportunity to confront the witnesses and evidence against him. I'm wondering if you can tell me what, if anything else, you find unfair about the proposed proceedings, and/or elaborate if what I have just mentioned is a problem of fairness?
Neal Katyal: I agree that the right to confrontation is a serious problem. The Justice Department has claimed that this right will be preserved in the military commissions, yet, as Howard Bashman's terrific blog "how appealing" reported a couple of days ago, the Presiding Officer of the military commissions has just said that there is no right to confrontation. Bad timing for the government.
The most basic problem, however, is that the procedures and rules change at whim, including rights of confrontation. It is impossible to plan for a trial when literally everything is up for grabs. That is why legislation is crucial if this experiment is to continue. One example: Last summer the Presiding Officer tried to declare himself the only person to decide the legal questions, instead of (as past military commissions) the entire military commission of all 5 members. We objected to that, because the President's November 13 Order says that the entire commission must be the judge of law. We won that motion before the head of the military commissions (the "appointing authority") who said the Presiding Officer's proposal would be illegal. So we, along with Josh Dratel, then briefed all the legal questions to the entire military commission, and many of them were orally argued before them. The members of the commission asked a number of skeptical questions to the prosecutor.
Well, just two weeks ago, the Defense Department removed those very members (besides the Presiding Officer), and made the Presiding Officer the sole judge of the legal questions. I have no idea how they can do that, given the Appointing Authority's determination that this very act is illegal - and after oral argument no less! But they did. More fundamentally, however, it underscores the problem with the entire scheme - it is a constant moving target. If we assert any rights at all, then they just change the system to game around them. In these circumstances, a trial can only cloud the serious legal flaws.
Here's another example: DOD initially appointed 5 people to serve on the military commission. Two of them had serious conflicts of interest that would predispose them against the defense. So we made a motion to remove them, and even the prosecutors agreed with our fear of bias. When the Appointing Authority agreed to remove the 2 members, he failed to appoint new members to replace them. Because it requires a 2/3 vote to convict, when there were 5 members, the prosecutors had to win 4 of 5 of them. When there are 3 members, the prosecutors need only win 2. So, the upshot of the decision to remove these members was to made the prosecutor's job easier, not harder. The very first thing we did at the November 2004 military commission hearing at Guantanamo was to ask for these biased two members back. If they weren't going to follow the rules and replace the members of the military commission with alternates, then we wanted even the tainted members, since they were at least votes we might have had a possibility of getting.
I realize some of this is technical, but the bottom line is that the military commissions at Guantanamo are nothing like criminal trials (either civilian or military) in our country. The Pentagon points to an Order saying that defendants have various procedural rights, but the very last lines of the Order says that these are not "rights" and that they can be taken away at any time. It is impossible to have a real trial under these circumstances. Every victory for us, such as the removal of tainted members, is turned against us by subsequent rule changes. I don't "blame" the Administration for doing this; it is the natural temptation when you hold all the cards to play them to your advantage and adjust them to new circumstances. And that predictable temptation is precisely why our Founders forbade that concentration of power in the Executive.
The Talking Dog I understand that you have had occasion to travel to Guanatanimo Bay; I take it you have met with Mr. Hamdan? Can you tell me-- again, without disclosing classified or privileged information of course-- if you (and Lt. Cmdr. Swift) were permitted to speak privately to him, or if your conversations were monitored, and what you can tell me about the conditions of Mr. Hamdan's confinement, including whether he contends he has been mistreated?
Neal Katyal: I have met him, privately, yes. I do not believe the conversations are monitored.
Mr. Hamdan was placed in solitary confinement for 10 months, from December 2003 to October 2004 (just three days before the district court argument in the case). They put him there, they claimed, because they were going to try him. As an amicus brief filed by Deborah Pearlstein of Human Rights first put it in Hamdan's case [available here] the CIA thinks that solitary confinement of just a few days can produce irreparable damage. Here, the confinement for 10 months was exceptionally debilitating.
I live in fear that Hamdan will be in no condition to press his case. That is why I filed the petition asking for Supreme Court review within three weeks of the D.C. Circuit's decision in Hamdan, instead of the 90 days permitted under Supreme Court rules. Sure, more time would have been desirable (and at least would have permitted a tiny bit of sleep for me during those weeks), but I fear for the worst if review doesn't take place soon.
Another thing that really bothers me is the timing of the solitary confinement. When they detained Hamdan, they told Swift that his military trial was imminent. They had been announcing that to the media for months. Well, nothing happened. Two months into Hamdan's detention, we filed a demand for speedy charges and trial. We received a legal opinion from the Appointing Authority saying that Hamdan, as an enemy combatant, has no rights to speedy trial. Once we had that legal opinion, a lawsuit was our only option. And, indeed, only after our lawsuit was filed and the Supreme Court decided the Rasul case did they ever file a charge against Hamdan. And now, it turns out, as one national newspaper is set to report in the next few days, there was an Inspector General investigation of these prosecutorial statements about military commission trials being imminent. The IG investigation evidently found the prosecutors were misrepresenting the ability to commence trials quickly. All the meanwhile, Hamdan was in solitary confinement to await that supposed trial.
The Talking Dog I understand that Judge Robertson ordered Mr. Hamdan reintegrated with other prisoners at Guantanamo Bay; has the government complied with that order (if you can tell me)?
Neal Katyal: Yes, but I believe they fully complied only after the Boston Globe did a story about their lack of compliance.
The Talking Dog Judge Robertson's lower court opinion made an extensive analysis of the "self-executing" aspect of the Third Geneva Convention of 1949, which would provide limitations on the right and ability of the United States to try Mr. Hamdan in the manner intended. In reading the D.C. Circuit's appellate decision overturning that, I did not see a discussion or mention of this question of the "self-executing" nature of the treaty. Am I correct that this omission is one of the main bases of your appeal?
Neal Katyal: Not completely. As Judge Robertson recognized, nothing in this case turns on whether the Geneva Conventions are "self-executing." Hamdan is being prosecuted under a statute that the government claims authorizes trial for violations of the laws of war. Under the two-hundred year old Charming Betsy canon of interpretation, statutes must be read consistently with international law. [This is detailed in an exceptional brief by Christopher Wright, Tim Simeone, and Ingrid Wuerth, to the DC Circuit, available here ].
Here, there is no doubt that Hamdan's trial does not meet Geneva Convention standards, which are the canonical documents as to what international law in this area is. Even statutes that do not mention international law, under Charming Betsy, have to be read this way; here the very statute the government points to explicitly references international law.
A different way of putting the point is as follows: The government is saying that it can use international law as a sword to prosecute Hamdan, but that Hamdan can't use it as a shield to protect himself. This cherry-picking of international law is forbidden. As the Supreme Court put it in a famous military commission case, Ex Parte Milligan, in 1866, ""If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?"
Finally, of course, there is the serious problem for the government that army regulations already implement the Geneva Convention and have done so for nearly 50 years, so self-execution of the treaty is beside the point.
The Talking Dog Before I turn further to the appeal itself, obviously, Chief Justice John Roberts was one of the three judges participating in the D.C. Circuit's decision; am I correct that, as far as you know, he will not be participating in the decision on whether to accept certiorari review to the Supreme Court, or other proceedings on the Supreme Court if there are any?
Neal Katyal: As I understand it, then-Judge Roberts told the Senate that he would not participate in any case at the Court in which he was involved as a lower court judge. As Justice Scalia recently pointed out, however, several Justices have reviewed their earlier judgments, including Oliver Wendell Holmes. The issue of recusals loomed large in the Supreme Court's last hearing on military commissions in 1942 in the Nazi Saboteur case, with Justice Murphy recused and several others who might have recused themselves. Yet the Court felt the need, for understandable reasons, to take the case despite the chance of an evenly divided Court. I certainly would have no objection to Chief Justice Roberts sitting in this case to break a tie (a tie is something I think unlikely in any event). I have said all along that this is a matter that requires the judgment of the highest Court of the land (and I went so far as to try to bypass the court of appeals for this reason), because only the Supreme Court can consider the boundaries of that 1942 case.
The Talking Dog Still on the subject of Chief Justice Roberts, were you aware (and I mean, aware at that time) that he was under consideration by the President for appointment to the Supreme Court at the time Mr. Hamdan's appeal was before him? When you became aware of that later, and, without disclosing any privileges, obviously, was a recusal motion considered... or even available? Again, same limitation about not disclosing privileges-- has "en banc" review to the entire D.C. Circuit been considered?
Neal Katyal: A Guantanamo detainee filed a recusal request with the D.C. Circuit. I filed an opposition to that, saying that intervention by the detainee is improper. I also stated in the brief that Judge Roberts was fully capable of assessing the ethical issues, if any, without briefing by self-interested parties. I have enormous respect for him [disclosure: he was my first boss in Washington, DC, when I worked at his law firm for a summer, and the only time I have ever written a letter in support of a judicial nominee to the Senate was for him, in support of his D.C. Circuit nomination].
The Talking Dog Again, on the subject of Chief Justice Roberts, and on the subject of the nominee for associate justice, Harriet Miers, do you believe that selecting a justice likely to support the President's policies in his handling of the war on terror, to wit, cases such as Mr. Hamdan's and the other Guantanimo Bay detainees, or stateside detainees such as Padilla or al-Mari, is one of the criteria the President is using or has used in making his nomination choices?
Neal Katyal: You would have to ask the White House.
The Talking Dog Turning back to the D.C. Circuit's decision overturning the granting of habeas relief, the first thing I note is that the Court contends that Mr. Hamdan signed an affidavit admitting that he was Osama bin Laden's personal driver. My understanding from other sources is that he contended he was one of many such drivers, someone in the OBL motor pool, if you will. Without going into what his role was, are you aware of whether or not the D.C. Circuit's finding that Hamdan signed such an affidavit stating he was OBL's personal driver, is accurate, i.e., did he sign such an affidavit, or are they stretching the facts here or misconstruing a statement Mr. Hamdan made?
Neal Katyal: The statement is in the record. I do think it has been stretched quite a bit by many. Hamdan was one of many civilian drivers, about as low-ranking as you can get, and drove people from farm to farm. He is the guy who is outside of the tent kicking stones waiting for people to wake up or finish talking. As I argued in Slate , the folks charged like Hamdan are not the kingpins the Administration used when they tried to sell military commissions on the Senate and the media in November, 2001. If we are going to have an end-run around civilian and military justice, we should bend the rules for a high-level target, not a civilian driver.
The Talking Dog My understanding is that after the Hamdi case last year, Mr. Hamdan was quickly hailed before a military tribunal that called itself a Combatant Status Review Tribunal. Am I correct that you contend that this did not comply with Geneva Convention requirements, and if I am correct on that, could you explain why it does not so comply (and am I right that this concerns the matter of "impartial arbiter")?
Neal Katyal: Yes, even the Government admitted in this case that the CSRT had 'zero effect.' Judge Green has detailed many of the problems with the CSRT in her exhaustive opinion. But the most important issue is this - a CSRT merely determines whether someone is an enemy combatant. Since most POWs ARE enemy combatants, an affirmative finding by a CSRT does nothing to show that someone can be stripped of POW status. If anything, such a finding would suggest the contrary.
The Talking Dog I have been taken aback a few times by the proposition-- found by the 4th Circuit in Jose Padilla's case and by the D.C. Circuit in the Hamdan case-- that the Use of Force Resolution passed by Congress in 2001 authorizing the President to use force necessary to thwart and/or capture those responsible for the September 11th attacks has now been likened to a declaration of war for purposes of establishing military jurisdiction to detain and try prisoners, for purposes of relying on the precedent of Quirin, but then is simultaneously not a declaration of war for the purpose of anyone captured (including citizens) relying on the the third 1949 Geneva Convention signed by both the U.S.A. and Afghanistan (because our war against Al Qaeda was somehow distinct from our war against the Afghan Taliban), which would require such prisoners to have impartial status hearings, and pending which, to be prisoners of war and subject to treaty protections as such... is my assessment of a sort of Alice in Wonderland quality to these rulings accurate?
Neal Katyal: As I said above, I think that the AUMF does authorize force, and, as part of force, does permit detention. But trial is an altogether different animal. This is the first military commission to take place in a loosely defined and perpetual conflict; the Supreme Court has only upheld them in declared wars or the civil war (the latter of which, under the laws of war, suffices to trigger the panoply of international huminatiarian law provisions). The removal of these constraints in this War on Terror is very troubling to me, particularly in an age when we are discussing modifications to posse comitatus for bird flu and the like. The Vice President has recently warned that this War on Terror will go on for decades. Some limits on the ability of the President to bypass courts and courts-martial is essential. Again, I'm known as a very strong academic defender of presidential prerogatives, but I think that those of us who believe in vibrant presidential power have the most to fear from these military commissions, because they caricature the unitary executive theory.
The Talking Dog Am I correct that the holding by the D.C. Circuit that the President himself is a competent authority to determine whether or not persons he designates as "unlawful combatants" is itself prohibited by the 1949 Geneva Convention (because the President, who did the capturing, is not an impartial arbiter) assuming of course that the convention is actually the law?
Neal Katyal: Yes. In fact the 1949 Convention was written precisely to make it impossible for political actors to suspend the convention as they saw fit. As Jess Bravin has written for the Wall Street Journal, in World War II the Japanese Emperor suspended 1929 Geneva Convention Protections for our captured pilots, and we eventually prosecuted the Japanese prosecutors for war crimes for their actions. We did not want politicians, who are always tempted for understandable reasons to strip defendant's protections, to be making these decisions. And the 1949 Convention, and in particular Article 85, was written to reverse the Supreme Court's decision in Yamashita.
That is why it should come as no surprise that my greatest supporters in this lawsuit have always been the men and women of the American military. Senator Lindsey Graham recently released a series of memos. In them, our nation's highest uniformed legal officers, the Judge Advocate Generals, explain the consequences of adopting these reckless interpretations of human rights treaties, which the Justice Department had claimed inapplicable to detainees. The first, and most important, thing they did was point out how our own troops lives would be put at risk by DOJ. As Marine General Kevin Sandkuhler put it, the Justice Department entity that drafted the policy "does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion."
The point here is simple: if America is seen as giving political actors like the President the ability to essentially suspend the Geneva Conventions through creative re-interpretation, there is nothing to stop other nations from doing the same to our troops when they are captured. That is why uniformed lawyers have been the chief obstacle to the reckless disregard of our international obligations since the attacks of September 11, and why judicial management of detainees at Guantanamo shouldn't be chalked up to "coddling terrorists." As Air Force General Jack Rives stated in the documents "consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations.[T]he DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces .[C]onsideration should be given to whether implementation of such techniques is likely to result in adverse impacts for DoD personnel who become POWs, including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners, generally."
The Talking Dog I was troubled by the D.C. Circuit's contention that, notwithstanding the lower court's holding that the Geneva Convention, at least as applicable to Hamdan, is self-executing and therefore, as having been duly ratified, the "supreme law of the land", or at least, equivalent to a federal statute which, as self-executing, would provide for a private enforcement remedy (and please tell me if I'm wrong about that)... was found by the D.C. Circuit to be, instead, enforceable only by the "interest and honor of the governments that are parties to it." Am I correct that this holding is, in effect, that the President has the right to unilaterally abrogate virtually any already ratified treaty that he and he alone believes "the interest and honor of the government" warrants abrogating, and no one has any standing to challenge this? Or am I reading too much into that?
Neal Katyal: I think you are essentially correct, as I stated above.
The Talking Dog I was also troubled by the D.C. Circuit's implicit finding that it was the President, rather than Congress, that could determine the scope of the conflict as he saw fit (in other words, the Congressional Use of Force declaration that permitted the President to use military force against Afghanistan could be declared an action against virtually any party the President found convenient, such as a separation between war against the Afghan Taliban and Al Qaeda, even though, as noted by Judge Robertson in the district court, the public understood it to be one unitary conflict.) Am I correct that this is one of the "separation of powers" concerns you raised in your Yale law review article, and have raised in your arguments on behalf of Mr. Hamdan?
Neal Katyal: Exactly.
The Talking Dog I understand that some amicus briefs-- and certainly Judge Robertson's opinion below-- addressed the concern that the United States' decision to treat certain prisoners captured in military actions in a manner contrary to our treaty obligations posed a danger to American military personnel captured by others. What is the Government's rationale for incurring this risk (if they have stated one), and have you gotten a sense of how this issue is playing among members of the military themselves? In other words, are military personnel concerned that (my words) arbitrary handling of prisoners at Guantanimo threatens their safety and fair treatment in the event of capture?
Neal Katyal: The brief filed by retired generals and admirals in the Supreme Court is very important. It explains how there is a present, real-world, risk to our troops should the Court let the decision below stand. I understand that there is always a "wait and see" impulse in high-level judicial decisionmaking. Here, "wait and see" has profound and dangerous consequences. Here is the first line of the Generals and Admirals' brief: "The Court should grant review because the decision of the court of appeals [in Hamdan] immediately and directly endangers American soldiers and undermines the laws of war." Now these are not squishy liberals; they are as high as you can get in the military legal pinnacle in this country.
Academics like Alexander Bickel, who advocated using prudential doctrines to keep the courts silent, also recognized the times when courts need to get involved. In particular, when our eternal values were at stake, the Supreme Court was the "institution of our government" best positioned to "be the pronouncer and guardian of such values." Chief among Bickel's values was "that government should serve not only what we conceive from time to time to be our immediate material needs but also certain enduring values. This in part is what is meant by government under law." That is why I believe the Supreme Court should hear this case now. As the Supreme Court itself put it in the 1866 military commission case, "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people..."
The Talking Dog Is there anything else you believe that people need to know about either Mr. Hamdan's case, about the other tribunals or detainees at Guantanimo, or the conduct of the war on terror in general? Are there any questions on these points that I should have asked you, and if so, what, and how would you answer them?
Neal Katyal: No, your questions were fantastic, and I very much appreciate the chance to discuss them with you.
The Talking Dog I would ask all our readers to join me in thanking Professor Katyal for being so generous with his time and with his thoughts.
Sunnis-- and UN officials-- are furious at a last-minute change in the Iraqi constitutional referendum process, which appears designed to virtually guarantee passage of the constitution, according to this Grey Lady piece. The change means that 2/3 of registered voters in at least three of Iraq's eighteen provinces must vote to reject the proposed constitution in order to defeat it, a change from 2/3 of votes cast. The difference is obvious, given that it is Sunnis in heavily Sunni provinces likely to vote no to defeat the constitution, and I'm guessing there are three Sunni dominated provinces.
Given that the heaviest violence is in Sunni areas, it's not a stretch to imagine that a pick-up of the insurgency might keep people from risking their lives to vote in what they perceive as a rigged process anyway, and voila! From the standpoint of the Bush Administration, which is doubtless orchestrating the change, or certainly taking no steps to stop it, it's "Poof! Instant legitimacy!" For the Sunnis (and some annoying UN officials), it might not look quite like that of course.
But then, little else we have done since we acquired Iraq has appeared to be legitimate in the eyes of many (if not most) Iraqis. Which leads to the obvious question: why start now?
We'll start with this take from the Grey Lady, offering the premise that with the ascendance of Chief Justice Roberts and the probable ascendance of Associate Justice Miers, Roe v. Wade may as well already be reversed... so its time to think ahead to chemical alternative means of abortion, which have the virtue of lining the coffers of major pharmaceutical companies (and hence, still reflecting actual American "moral values.") One such drug is misoprostol market by Pfizer as Cyotec, which, evidently, is already used extensively in Brazil, and by poor and immigrant women here, to induce abortion; it has a slightly higher "success" rate when used in conjunction with RU-486, the "morning after" pill. Alas, wealthier women will still have the option of regular surgical abortion, though presumably widely illegal, because most Americans continue to favor exceptions to an absolute ban on abortions for cases of "rape, incest, life of mother, and me." So... there you go.
Frankly, I would submit that Roberts and Miers (I'm going to assume confirmation, as Harry Reid has given her his blessing) are less likely to reverse Roe than you would think... if they did, the thought of white women doing perp walks for abortion will not fly politically; abortion would quickly become the kind of albatross for Republicans that it has been for Democrats. In short: don't look for corporatists Roberts and Miers to throw a bone to the religio-fascists on this. They probably won't.
And since we're on "moral values"... man, is this week just getting better, or what, as Tom DeLay gets a second Texas grand jury indictment, this for money laundering. DeLay complained incessantly about the first indictment, so Travis County DA Ronnie Earle gave him a new and improved indictment. Tom hasn't learned to be careful of what he asks for... nope, he hasn't...
That's the sort of thing a "moral values" proponent ought to know how to do...
It seems to be a Bush II Administration tradition: get yourself in charge of selecting a key position, and then pick yourself. Dick Cheney did it for the vice-president position, and now, White House Counsel Harriet Miers has done it for the opening on the Supreme Court. Ms. Miers has never served as a judge, and therefore, doesn't have that irritating paper trial. She has been a lawyer in Texas, bar association president, Dallas city council-person, has no (irritating) husband or kids, and... is a really, really good buddy of the President.
We'll find out, of course, that her political-ideological written record may be sufficiently stealthy so that she too can get through an entire confirmation process without having to commit herself to anything on any issue, before she takes her place as a probable ideological clone of the woman she is replacing, i.e., a probable hard-ass conservative who will probably not vote to overturn Roe v. Wade, which matters of course, to Democrats as nothing else does, even as the High Court will probably assist in the otherwise dismantling of all other constitutional protections as all power is shifted to the whim of the executive branch.
Ms. Miers was one of the first (the first?) woman partner at a major Texas law firm, first woman state bar president there, and, as noted above, a good buddy of the President... Now, her faithful and useful service to the Imperium will be duly rewarded with a sinecure that will doubtless outlast the Imperium...
This week's visit to our comrades at Beijing's People's Daily give us this rather alarming news about the Arctic polar ice cap: it might be gone in 55 years or so.
Scientists, conservative by nature, do not know the exact cause (perhaps they should ask the "intelligent designer?"), but can come up with no alternative than the likelihood of the effects of accumulation of greenhouse gases and global warming.
In essence, as noted by the People's Daily, the melting of the floating ice cap itself will not directly raise world sea levels, as the ice is already floating, but will (of course) be devastating to natural habitats of animals such as polar bears, seals, etc., and of course, will affect sea life... everywhere.
Of course, the loss of a lot of white ice replaced by open dark colored sea water will accelerate other global warming effects, which will doubtless help melt those annoying land-based glaciers in places like Greenland and Canada and so forth... that will raise sea-levels globally (estimated to currently rise, IIRC, at around an inch a year now.)
Anyway... just one more long term consequence of our collective actions that we can't be bothered to deal with (I suppose). Until, perhaps, our (financial) overlords in Beijing tell us to deal with them...
Of the 6 plus billion people in the world, a huge number will soon be threatened with instantly devastating-- and deadly-- illness, if fears of the avian fly mutating and migrating to humans in a human-to-human transmittable form this winter come to pass, according to this piece from our old friend Timothy Bancroft-Hinchey at Pravda. In the "great minds think alike" department, our friends over at the American Street are also focusing on this issue, which could easily kill tens of millions of people.
The bird flu out of Asia now-- which has killed an astounding 60 of the 120 people infected with it-- apparently resembles earlier deadly flus associated with the pandemics of 1957 and 1968 and the most horrifying of all Spanish flu of 1918-9, which killed over 20 million people, more than the First World War which immediately preceded it.
Mr. Bancroft-Hinchey intimates in his inimitable way ("It is typical of our world today that while hundreds of billions of dollars are spent on weapons systems such as Star Wars, to defend the United States against an attack from Mars or Pluto, the UN experts are already and increasingly speaking about an impending pandemic using words such as "catastrophic") that this potentially massive problem, which could kill millions of people, including millions of people in the United States, may be shortchanged against, shall we say, "other priorities".
And this would be... catastrophic.
As always, us liberals suggest "throwing money at everything". Yup. Whatever it takes to move as fast as possible against this possibly devastating virus-- research on the disease itself, on slaughtering animals infected or in danger of being infected, on developing a vaccine, on collateral public health measures... whatever... must be allocated and spent, damn everything else.
Otherwise, I understand that being holed up in one's house for around 3-4 months without going outside at all may -- may, but may not--
be enough to enable one to wait out the pandemic. As always, here's hoping our collective luck holds...
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