The Talking Dog

January 31, 2006, The State of the Union is... small-ball

The President delivered a respectfully long 50-minute or so State of the Union speech tonight. I commend the Loquacious Pup who directed me to stop listening to it so that she could better hear the Proud Family Movie. She may be but a small child... but she has her priorities in better order than I do.

The parts I did listen to were... uninteresting. I noted the usual pandering to St. Laura Bush nee Welch... btw... you did all know she once killed a man, right? [standing ovation.] Anyway, I listened to the war president rattle off nonsense about a commission to study social security, Medicare, etc., 70,000 new science teachers (perhaps they can double as police officers, to replace some of the 100,000 new police officers that Bill Clinton ordered up at a prior SOTU, some of whom have doubtless been deployed as reservists to Iraq), funding to campaign donors in the nuclear and coal industries, and more tax cuts [standing ovation.]

The President did give a hearty welcome to both John Roberts and Sam Alito, who, we should note, was promptly greeted by the states of Georgia, Indiana, Ohio, South Dakota and Tennessee which have proposed legislation banning all abortion (except where a mother's life is in immediate jeopardy.) (Via Rorschach of No Capital.)

But for the inarticulateness of the delivery, one might think that new Bush family member Bill Clinton was delivering the speech; as noted on MYDD's Breaking Blue, one wonders when we will hear about school uniforms and v-chips?

None of this matters of course: the President is simply going through a rote constitutional duty, and is eager to get off stage as fast as possible, lest he mangle our language some more. What really matters is the unbridled and unchecked expansion of executive power we don't see... an expansion helped immeasurably by Democratic senators who somehow saw some "principle" in voting against the confirmation of Sam Alito at a time the vote meant nothing, but refusing to support a fillibuster that might have kept him off the Court.

Our Republic has survived a lot of threats in its 2 1/3 centuries. With a great deal of dumb luck, it will survive the Bush Administration. The $64 trillion question, of course... is that how you bet?

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January 30, 2006, Cause for Optimism All Around

In the clearest demonstration possible that they are not obstructionists, Senate Democrats, in a pathetic excuse for the first fillibuster of a Supreme Court nominee led by that pathetic excuse for a senator and presidential candidate John F. Kerry (D-Davos) failed in their efforts to prevent debate from closing by a vote of 72-25, all but assuring that Justice Sam "Rubber-Stamp-for-the-Executive" Alito can march in with the Supreme Court at tomorrow's State of the Union. On the sunny side of the ledger, (1) John Kerry's days as a purported national leader should wane rapidly and (2) if the Republicans complain of obstructionism from these Democrats, they can truly be accused of being the girliest of Girly-Men.

And business was good. The oil bid'ness anyway, with Exxon Mobil posting an American bu$ine$$ record $36 billion profit last year... yes, that's over $3 billion a month on revenues of nearly $400 billion (more than the GDP of Indonesia, the world's fourth most populous country and an OPEC member!)

At least, those few of us who save now know where to put our money... I say that, because Americans' savings rate is now at its lowest level since 1933. Technically, Americans as a nation borrowed more than they saved, meaning "negative savings" was the order for only the third time ever, the other two times being in the mega-Depression years 1932 and 1933... I'm sure the President will mention this in tomorrow's State of the Union address... won't he?

Perhaps Americans don't see the need for long term savings, given Prime Minister Tony Blair's dire warnings about global warming. Naysayers! Don't they understand that anything approaching environmental responsibility will damage our economy-- and for God's sake, we can't afford to damage an economy where no one saves anything!!!

No, no... Strong economy. Strong people. Strong nation. Strong leader. Ein folk! Ein reich...

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January 30, 2006, Connect the dots

Regular readers here know of my keen interest in all things Gitmo, these days. So it will come as no surprise that I find this piece in the Washington Post documenting the "mysterious" case of former Guantanamo Bay detainee and now resident of Morocco Abdallah Tabarak to be of above-average interest. It seems that after around three years at Gitmo, Tabarak was released by American authorities to Morocco in 2004.

What our Government contended Mr. Tabarak did (as a basis for holding him) was that, aside from serving as one of OBL's personal bodyguards, Mr. Tabarak helped facilitate OBL's escape by sacrificing himself: Tabarak supposedly took OBL's personal satellite phone (which American forces purportedly honed in on thinking OBL himself was heading from Tora Bora toward the Pakistani border) while, in fact, OBL himself (less one satellite phone and one bodyguard) went in the opposite direction with entourage and dialysis machine, and American forces chasing a satellite phone, rather than chasing him.

That sure sounds like a serious, big-time A.Q. operative to me, hardly someone we should have just let go. Except that we did. And I find that quite troubling, especially when we learn that we are holding others (the government insists possibly for life) merely for "being present at Tora Bora", or for being in OBL's motor pool, or for no reason at all except being from the same country that Mohammed Atta lived in.

Except, of course, that unlike the other schmucks still being warehoused and, in many cases, abused if not outright tortured at Gitmo... Tabarak's own government demanded him back. Hence, political expedience trumped anything else we had going (intelligence gathering, releasing a dangerous man, etc.) Gotta have your priorities straight.

That is our system of "justice", or whatever it is we call it, "at work". It seems consistent with everything else the Bush Administration is doing: if it works (such as having law enforcement units hunt down terrorists and thwart terrorism in a manner consistent with complying with the law and protectimg actual civil and constitutional rights of American citizens, or having Medicaid provide prescription drugs to needy seniors, or having an emergency management agency that is capable of managing actual emergencies), then break it... and if (or more accurately, when) the Administration fails at something, use this as a further justification for yet more unchecked power...

But for the immense human suffering, torture, death and/or disfigurement for thousands upon thousands of human beings... this might all be hilarious.

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January 28, 2006, Gung Hei Fat Choi

You know its not just going to be a good year... it's... the Year of the Dog [talking or otherwise]! That means, boys and girls, that the next twelve lunar months at least will be a welcome respite from those dismal political times we've had, and the economic treadmill that many have been on; we're coming off of the year of the Cock, and before that, the year of the Chimp (no wonder you know who won in 2004; it was his year!) So long dreary times... hello year of the dog!

Not even the seeming inability of my favorite political party TM to mount a fillibuster of a Supreme Court Justice committed to the destruction of our party and all it stands for, assuming that it stands for, oh, civil or constitutional rights of any kind (though hope springs eternal--call your senator...) is going to stop this year... Year 4704 is going to be f*** ing great... just like the last year of the dog, 4692... when we had the... Republican... Revolution... as Emily Litella used to say... never mind.

And so... proving once again that Brooklyn is, in fact, the center of the universe, Mrs. TD, the Loquacious Pup and I attended the family party for the lunar new year over at the Brooklyn Museum of Art. LP logged much time under the dancing dragon... or was it a lion... Anyway, the BMA, which not only would be the premier museum of any other city besides this one (or possibly Paris, Florence, London or St. Petersburg), but, save those others... would probably be the premier museum of any other country. And its collection of non-European art (notably Egyptian art, art of the Americas and Asian art) are, frankly, second to none, anywhere, and its European art is pretty damned kick ass... But on Chinese New Year, when its Asian art is on feature... it just... blows one away...

The perfect way to ring in the year... of the dog. The Dog is in the house. Woof.

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January 25, 2006, TD Blog Interview with Joshua Colangelo Bryan

On January 18, 2006, I had the privilege of speaking with Joshua Colangelo Bryan, an attorney with the New York office of the law firm of Dorsey and Whitney, and counsel to three currently detained inmates of the American detention facility at Camp Delta, Guantanamo Bay, Cuba, Juma Al Dossari, Salah Abdul Rasool Al Blooshi and Essa Al Murbati, all nationals of Bahrain. Three of Mr. Colangelo Bryan's clients have previously been released from American custody at Guantanamo Bay. The remaining three are in less than ideal condition; Al-Dossari attempted suicide during a meeting with Mr. Colangelo-Bryan (as alluded to in my interview with Baher Azmy) and Al Murbati is involved in the hunger strike by a number of detainees. The following are my interview notes as reviewed and, as necessary, corrected by Mr. Colangelo Bryan.

The Talking Dog: As is my custom, I start with this question. Where were you on September 11, 2001?

Joshua Colangelo Bryan: I was in Gracanica, Kosovo, working for the United Nations Mission to Kosovo. I learned of the events of September 11th later in the day, at the office in Pristina, where other people pointed it out, and I saw it on television, probably on CNN.

The Talking Dog: Are you from the New York area?

Joshua Colangelo Bryan: Born and raised in Manhattan... the events of 9-11 were very personal to me.

The Talking Dog: Do you know where your clients were, and to the extent not classified or privileged, can you tell me?

Joshua Colangelo Bryan: A couple of my clients were in Bahrain. A couple were in the Pakistan/Afghanistan border area, working with refugees there from the Afghan civil war; they had been there a couple of months as of September 11th.

The Talking Dog: How did you-- and your law firm-- come to represent the Bahrainian detainees specifically?

Joshua Colangelo Bryan: After the Rasul case, the Center for Constitutional Rights asked Dorsey & Whitney if it would take on a case for the Guantanamo Bay detainees. At that time, a number of the families of detainees were seeking representation. One of those groups was from Bahrain. I personally had a couple of years working with and applying international human rights law and international criminal law in the Balkans, which was useful experience.

The Talking Dog: I recently read of an effort spearheaded by you to obtain representation for previously unrepresented Bahraini (and perhaps other) detainees before enactment of the Graham-Levin-Kyl Amendment. Were those efforts successful? Do you know, as of the time the President signed the bill into law, how many detainees did not have active cases, and would, under Senator Levin's reckoning at least, be completely without a habeas corpus remedy?

Joshua Colangelo Bryan: There are no unrepresented Bahrainians [at Guantanamo]. There were six Bahraini detainees at Guantanamo Bay, three of whom have been transferred home to Bahrain. Before Graham Levin passed, the Center for Constitutional Rights brought an action on behalf of all unidentified detainees for whom no action was pending, so all detainees now have a pending action.

The Talking Dog: I've read a number of accounts of your client Juma Al-Dossari making a suicide attempt during a conference he had with you; in brief, if you could tell me how it has effected later meetings you have had with Mr. Al-Dossari (extra precautions, for example, or anything else that comes to mind)?

Joshua Colangelo Bryan: I met with Juma three weeks after the suicide attempt. The meeting was in the naval hospital at Guantanamo. The military did not want to bring him to Camp Echo [where attorney client meetings are held] after the prior incident.

The Talking Dog: I've recently read that Mr. Al-Dossari tried to tear open a wound in his right arm (which, for whatever reason, the Government has decided is not a suicide attempt) and transferred to the Naval Hospital at Guantanamo Bay. You had filed court papers with Judge Reggie Walton, and I understand Judge Walton ordered the Government to produce an Affidavit as to the conditions of Mr. Al-Dossari's confinement. Did the Government submit it, have you seen it, and has anything changed? Can you tell me what the difference is between Delta Camp One, Delta Camp Five, and just how many separate "camps" there are within the X-Ray, Delta and other apparatus there, and what you understand the differences are? What is the condition (as far as you know) of your other clients still held? Are your clients participating in the hunger strike?

Joshua Colangelo Bryan: Yes, I later learned that Juma tried to open the wound in his right open. The Government has characterized it as a suicide attempt. I have not met him since that event. The Government did send me a letter advising of this, but otherwise, the government provides no information whatsoever as to the condition of detainees. In this case, they sent a two sentence letter stating that Juma reopened the wound. The Government was ordered to produce an affidavit with the details of Juma’s conditions of confinement by Judge Walton. They have produced an affidavit, but at its essence it is hopelessly vague, without solid representations as to the extent, for example, of the isolation or solitary confinement at Camp One, which we believe is certainly a contributing factor to Juma’s deteriorating condition. As to the “layout” of detention facilities at Guantanamo Bay, Camp Delta consists of Camps 1,2,3 and 4, Camp 5 is an entirely separate prison, and Camp 6 is a “long term” facility still under construction. Camp 4 is the most “liberal” facility, where there are, for example, more exercise privileges allowed, for prisoners who are perceived as lower security risks. I’m not aware of any distinctions between Camps 1 through 3. Camp 5 is a maximum security facility with individual cells where the prisoners can’t see out; this is where Al-Dossari had been held for over 1 ½ years. One of my clients– Al-Blooshi– is in Camp 4, as a “low security risk.” The allegations against him are weaker than against many prisoners who have been released. Al-Murbati is now in the detainee hospital, on a hunger strike. I did not meet him the last time I went to Guantanamo for, I was told, logistical reasons. Hopefully, I will see him the next time I go down.

The Talking Dog: I understand that at various times, the government releases some kind of letter or statement to you as the condition of Mr. Al-Dossari and your other clients; in discussions with your clients (again, to the extent not privileged or classified), is the government's descriptions accurate, or inaccurate, in the view of your client, and to the extent you have otherwise been able to confirm on your own?

Joshua Colangelo Bryan: No explanation is ever given by the Government; the 2-sentence letter on Juma opening his wound was a rare exception.

The Talking Dog: Am I correct that some of your clients have been released (at the behest and request of the Bahrainian government) but three (Juma Al Dossari, Salah Abdul Rasool Al Blooshi and Essa Al Murbati) are still detained at Guantanamo Bay?

Joshua Colangelo Bryan: Again, no explanation is ever given as to why prisoners are held, or prisoners are released. We have urged the Bahraini government to demand that its citizens be returned to Bahrain, and certainly we have been trying to generate publicity to encourage the Bahrainian government to do just that.

The Talking Dog: Judge Joyce Hens Green ruled around a year ago that the entire Guantanamo detention process was illegal, for among other reasons, violating the third Geneva Convention. Naturally, the government appealed that ruling. I understand that the Geneva Convention aspect was addressed by the D.C. Circuit in the Hamdan case, and the Supreme Court has, for the moment, accepted review in Hamdan. What is the status of remaining issues associated with the appeal of Judge Green's decision, and specifically, how it relates to your clients, and I take it this is all held up by Graham Levin?

Joshua Colangelo Bryan: An appeal is still pending in the D.C. Circuit. It has been fully argued and briefed for months. The Graham Levin issue has created another subject for further briefing. By its own terms, Graham Levin does not apply to these cases, which have been pending for years. Even if, as the Government argues, it did, it would be unconstitutional for violating the suspension clause. Likely, if the Hamdan case addresses the Graham Levin issues, they will have bearing on our case.

The Talking Dog: I understand that Mr. Al-Dossari recently released a detailed testimony of his abuse, both in custody in Afghanistan and later in Cuba, that you provided to Amnesty International. I take it that even this statement had to be vetted by the United States government (for secret codes, I suppose!) before you could release it, correct? I understand the same applies to your own notes; I understand that in one case at least, the government lost your notes in transit from Cuba to Virginia; was a suit filed or other action taken over that? Mr. Al-Dossari's testimonial is pretty graphic [including allegations of a number of beatings, application of electric shocks, starvation, sleep deprivation and other abuses]. Can you characterize any other abuse that you're aware of that he did not document?

Joshua Colangelo Bryan: I fought quite a bit to have that statement cleared, and ultimately, despite Government opposition, it was cleared in large measure. Some portions of some pages have been redacted as classified. Juma did not write this in front of me. It is a 20 page, single spaced handwritten document. He was allowed to keep it and give it to me. Interestingly, prisoners have been permitted to keep “attorney client” communication documents, though materials have been taken if shown to another prisoner on the theory that they are no longer privileged; so much for the joint defense privilege. The government did indeed lose my notes. What happened was some motion practice that appears to have somehow gotten lost between Judge Green and Judge Walton demanding that the Government reimburse us for the costs of another trip to Guantanamo– around $5,000– including transportation, translators and so forth– for what amounts to its own error. There is no resolution on that motion. As to additional details, Juma obviously didn’t discuss details we have learned from governmental personnel about the conditions of his confinement, as he doesn’t know what we have discovered in that manner.

The Talking Dog: I understand that the only evidence the government purports to have by way of "a charge" against Mr. Al-Dossari is that he was "present at Tora Bora". Has the government ever expanded or provided more detail for its statement of charges-- whether in classified form or public form? Are you aware of any further charges against him? I understand that there were reports out of the Buffalo Evening News a number of years ago that Mr. Al-Dossari was a reputed Al Qaeda recruiter who may have approached the defendants in the "Lackawanna Six" case. Has the government made any reference to that as far as a basis to detain Mr. Al-Dossari? Has any effort been made to obtain evidence from Mr. Al-Dossari with respect to that Lackawanna Six case, or any other legal action?

Joshua Colangelo Bryan: The Combatant Status Review Tribunal (CSRT) expressly found that there was no evidence to support this Lackawanna Six connection, and it was expressly not a basis for his continued detention. An interview with at least one of the Lackawanna Six in prison revealed that that defendant had never so much as met Mr. Al-Dossari. I understand that he was also questioned at Guantanamo about this.

The Talking Dog: Do you know what the charges or allegations of the Government are with respect to your other clients still detained? What are they? What were the charges against the clients who were released? Was there any rationale, rhyme or reason or explanation given for why some were released, and some still held?

Joshua Colangelo Bryan: Again, other than the limited (if any) explanations given by the CSRT, there is absolutely no explanation ever given of why anyone is detained, or why anyone is released.

The Talking Dog: Do you know who Abdullah Mesud is (leading a guerrilla movement in Pakistan)? Are you aware of allegations that Mahmoud Habib trained AQ in hand to hand combat? Any explanation for why he gets released, and your other clients get released, but Al-Dossari, Al-Blooshi and Al-Murbati are not? Do you think this is a fundamental problem with the arbitrariness of the whole process? Any way we can convince the public that it is the arbitrariness- and not the release- that is the problem?

Joshua Colangelo Bryan: Well, how does one reconcile the detention of my clients on the thinnest of accusations, while releasing an Australian who allegedly trained Al Qaeda terrorists including the 9-11 hijackers in martial arts and hand to hand combat–

The Talking Dog: You’re referring to Mahmoud Habib... who was released just ahead of proceedings in an action complaining of his side trip to Egypt for “extraordinary rendition” where he alleges he was tortured...

Joshua Colangelo Bryan: Exactly... Or a number of British prisoners who were released because Tony Blair insisted that it was politically necessary for him that they be released, a similar situation that has occurred with other European governments. By contrast, very few prisoners from Arab countries have been released. I am familiar with Abdullah Mesud in passing and from reading about him– but the fact that he is released, and my clients continue to be held just shows that there is no rhyme or reason to the system that has been set up.

The Talking Dog: Anything else that I should have asked you, or that my readers, the American public, the Bahraini public, or anyone else needs to know about your representations, or anything else?

Joshua Colangelo Bryan: We should all know that by our military’s own admissions, there are innocent men at Guantanamo Bay, and they have been horrifically abused. Not only is this legally and ethically disastrous, it is bad strategically, and ultimately, politically counterproductive.

The Talking Dog: I’m sure I join all of my readers in saying thank you for that most informative interview.

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January 24, 2006, We DID Bring American Style Governance to Iraq

Ah, those heady days I recall during my very short stay with our nation's GAO, the non-partisan investigative arm of Congress, then standing for "General Accounting Office" (now "Government Accountability Office.") The agency mission was, of course, to combat "waste, fraud and abuse".

The mission of the Bush Administration in general, and the former Coalition Provisional Authority operating under Viceroy L. Paul "Jerry" Bremer and a cast of people pulled from the Heritage Foundation job bulletin board in particular, seems to be to make sure that the GAO, and agencies like it, such as the Pentagon's inspector general among others, have lots of work to do... and according to this from the Grey Lady... man, do they have work to do.

I'll just leave it this way: I am shocked... SHOCKED I tell you, to find out that there appears to have been a great deal of waste, fraud and abuse in the administration of American reconstruction contracts in Iraq.

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January 23, 2006, Something else we couldn't anticipate...

WaPo reports that the White House had "eerily prescient" detailed knowledge about the likely effects of Hurricane Katrina two days before it made landfall in the New Orleans area... a rather extensive presentation, including graphic models of breached levees, arrived in the White House situation room.

Of course, the President was over 1,000 miles from the White House situation room trying to avoid seeing Cindy Sheehan at his full-time hobby ranch in Crawford, Texas at the time... or he might have gotten a look at his own government's hurricane and damage projections in time to, perhaps, have the federal government actually do something... to prepare for the hurricane, believed to be America's worst natural disaster since the San Francisco earthquake of 1906.

It's just water over the levee at this point...

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January 23, 2006, More cognitive dissonance...

On this 33rd anniversary of the Supreme Court's landmark Roe v. Wade decision, we'll start with the President, unsurprisingly, talking up his "pro-life" street creds to an anti-abortion group rallying at the nation's Capitol building (and rallying for the confirmation of Judge Samuel Alito to replace Sandra Day O'Connor as an associate justice on the Supreme Court.) Part of the "compassionate conservatism" message that the President campaigned on (twice) was a happy return to the days of back-alley abortions all across America, so, as a "truth in advertising" matter, it's really hard to fault him on this one.

Which, then, leads us to this truly bizarre "wtf" poll result showing overwhelming support (51% for and only 30% against) for the nomination of Samuel Alito by the public, with only 34% believing he would vote to overturn Roe v. Wade, despite the fact that he is on record as saying he would, or of course, as if Roe really matters all that much when judges (like Sam Alito himself) have shown us that abortion rights can die by a thousand cuts in other ways. The same poll shows that only 38% believe that a Democratic fillibuster would be justified (evidently, the same percentage of Democratic senators that believe that!) This is rather staggering: it reminds me of something Julia often reminds me of: at the time that former Democratic Speaker of the House Tom Foley of Washington State lost his seat (not his speakership, his seat in Congress) to Republican George Nethercutt, something like 80% of the people in that district believed that Nethercutt would automatically become Speaker of the House...

You try not to state the obvious, but the American people prove over and over again that they are just incredibly ill-informed; it's as if the whole "Harriet Miers might not vote to overturn Roe and thus we must dump her in favor of a true believer" events of last fall simply didn't happen.

I guess CSI Miami must have been on, or something... Here in George W. Bush's America, an uneducated electorate remains our best customer. Thus, when the President goes around the country talking up illegal surveillance ("cause, see, Al Qaeda is placin' phone calls to Amurka, see"... I guess he can call it his "listening tour") the fact is, most people will assume that the Government complied with all applicable laws. Because the President told us it did. (Or, he told us that they were stupid laws that he really didn't have to follow, anyway.)

Either way, look for the President's poll numbers to get off the shnide (is that how you spell it?) and head for the mid-40's by next weekend. Because an uneducated electorate is our best customer.

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January 22, 2006, More Scapegoats of the Empire

The military continued its perfect streak of not charging a single commissioned officer for abuse at Abu Ghraib with the conviction (for manslaughter and dereliction of duty in connection with the death of an Iraqi general from suffocation while in custody) of Chief Warrant Officer Lewis Welshofer, Jr. The incident, as you will recall, took place during the height of the Abu Ghraib abuses at some point in 2003 or 2004; the general in question, Maj. Gen. Abed Hamed Mowhoush, was wrapped in a blanket and jumped on by a number of interrogators, until he suffocated and died.

Once again, we are asked to believe that an extreme high value target, like an Iraqi general, was left entirely to the discretion of a single rogue non-commissioned officer, without any input or control or orders in such a manner as to merit disciplinary action against so much as a single lieutenant, captain, major, colonel, general... or defense secretary.

It would seem that the line we are being fed is that we have a tight, disciplined officer corps presiding over rank and file NCOs who are running amok; if this is the explanation, then... no wonder we aren't making more progress in the conduct of the Global Struggle to Expand Executive Power Beyond Anything Ever Intended by the Constitution... our soldiers are too busy exceeding their orders and abusing the locals to get the job done.

Naturally, that this is an insult of the most outrageous kind against our men and women in uniform will be lost on... just about everyone.

From the Government that told you your patriotic duty in a time of "national sacrifice" when we are "at war" was to "go shopping", we give you this... today's installment of "Scapegoats of the Empire." Good luck to military recruiters trying to fill the ranks in a military where those with the authority to give orders are immune from responsibility for them. You'll need it.

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January 20, 2006, Bizarro News Day

We'll start with the not-quite-dead Al Qaeda number two man Ayman Al-ZarqawiZawahiri, fresh from not getting killed in an American drone assault on a house in Pakistan that did kill 18 people including women and children... who released an audio tape of himself reciting poetry. Evidently, the tape was just an undated demo; it failed to make reference to recent A.Q. success stories, or the NFL playoffs... hence, there is no way to know when it was made, but I personally think OBL is fading physically, and can only be brought out for important situations; AAZ will likely be your day-to-day go-to Qaeda guy. Start learning his name.

A gay activist group has set their sites as high as it can get: they mean to infiltrate the White House Easter Egg roll.

In that New York City Transit deal after the strike that I didn't think was too good (though many thought otherwise).... was rejected by the rank and file of transit workers themselves, by an absurd vote of 11,234 to 11,227. Perhaps Ken Blackwell or Katherine Harris could conduct a recount for us?

And here's a bizarre claim for presidential clemency from... the father of American Taliban John Walker Lindh. Good luck there.

What's next? George W. Bush announcing that he will welcome a Congressional inquiry into whether he has abused his executive powers in conducting the War on Terror TM?

Well, enjoy the day. Only exactly three more years of George W. Bush as President. Unless, of course, he decides that it's within his "inherent authority as Commander in Chief" to stay on, of course. He's protecting us, isn't he?

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January 19, 2006, The Grim Freeper

Would be none other than our long-lost bogeyman, Osama Bin Laden himself, who released an audiotape aired on Al Jazeera that sounded an awful lot like it was written in anticipation of filling in blanks for the upcoming State of the Union address... indeed, it certainly looks like OBL has been reading the comments on Free Republic, Little Green Footballs, or the White House web site...

I'm not going to dignify the bastard by quoting from him; I will say that he always appears at moments very convenient for the Bush Administration, last time, right before... the November 2004 election. Now, of course, seems an odd time. Could it be Alito? That makes little sense... with DINO-sellouts Ben Nelson for sure and most likely Mary Landrieu and some others... and the rest of the Democratic gang that can't shoot straight caving faster than George W. Bush can fall off of a bicycle, Alito is as good as in. (BTW: a filibuster is a no brainer: (1) if it succeeds, Alito is out, and Bush has to go back and pick less of a maniac; (2) if the filibuster fails, we'd still have Alito, but we'll have him anyway, and the Democrats get a freebie, as an unpopular President's selection of an ideological extremist has to be rammed through using a procedural abuse... the perfect thing to run on in the fall... not to worry... Peter Daou's "triangle" is broken on the left, and the party leadership is still like the guy being executed by firing squad who won't demand a blindfold "because he doesn't want to cause trouble"... needless to say, no one is listening to me, even if anyone was actually reading me.)

Anyway, while the Democratic Party can't get it straight to fight for the one thing we thought it could agree on (defense of abortion rights at all cost)... and can't capitalize in the kind of ready-made corruption scandal that helped cost the Dems Congress in 1994... the Republicans have their secret weapon back in play: OBL himself.

We knew something was up with the killing of 18 people in Pakistan by the United States under the guise of an attack on A.Q. No. 2 Ayman Al-Zawahiri (murder... or negligent homicide...? You decide...) Of course, this is precisely the scenario under which the 101st Fighting Keyboarders so effectively managed to Blame Clinton First TM for the whole OBL/A.Q. phenomenon, i.e., the unsuccessful (at killing OBL himself, though it did kill dozens of A.Q. players) missile strike on Afghanistan in response to the 1998 Africa embassy bombings. You see, the problem was that Clinton had to warn Pakistan that missiles were going over its airspace; Pakistan, evidently, in turn, warned someone in Afghanistan, who let OBL know the good news... There is no reason whatsoever not to believe that exactly the same scenario played out here: Bush had A.Q.'s top organizer-- the planner of 9-11 himself-- but presumably had to warn Pakistan of a Predator Drone drifting over Pakistan... who in turn warned... you know who... So... if you want to Blame Cliinton First TM... guess what? You have to Blame Bush II Too TM. You have to. Same scenario. Same result.

But why now? Just to have cute sound bites for the State of the Union seems a ridiculous reason for bringing out as potent a (domestic) propaganda tool as OBL himself. No, no. Something serious is in the offing. The poobahs musts have felt that the Abramoff thing was starting to get serious legs (even with the Dems, naturally, fucking that up with a disjointed counter-proposal... for this they have a counter-proposal!)...

So obviously, heavier measures needed to offset the cumulation of Katrina (still fresh), K-Street Korruption, Killing (our troops in Iraq, that is), Krawling up the private lives of Americans via illegal surveillance and Karl (who, I'm guessing, may be under indictment before the month is out... or not...)... so... what do we need to re-set the news cycle, and reenergize the base, and stir up those happy fearful feelings among "Sekurity Moms" (we do indeed have to fear fear itself... the GOP is counting on it)...

Exactly: Kaeda! Or, in this case, a 6'6" Arab with Kidney problems. His timing remains... propitious. Almost as if he were koordinating it with Karl. No, no... that sort of thing would never happen...

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January 18, 2006, Spare the Flag, Just Burn All it Stands For

In a move that I'm sure you will find shocking... just shocking... for the second time this month, the (non-partisan) Congressional Research Service tells us that the Bush Administration's domestic spying program ("Operation Big Brother") violates yet another law, in this case a 1947 amendment to the National Security Act requiring notification of this sort of thing to all members of both the House and Senate Intelligence Committees, rather than simply to the Committee Chairs and Ranking Members, and the party leaders in each House (unless this was a "covert" operation, which, evidently, it was not.) This is on top of the FISA (Foreign Intelligence Surveillance Act) violations already noted by the CRS. Confirmation of the gross illegality of the Administration Acts came in the form of a denial of them and repudiation of those who dare question Dear Leader, by White House spokesman Scott McLellan.

Moving right along, we find that a human rights organization, in this case, Human Rights Watch, has concluded that... get this... based on statements of governmental officials, it seems that... well, I can't believe this either, but... it seems that under the Bush Administration, the United States of America has been abusing its terror suspects in its custody. Confirmation of the contents of the report came in the form of a denial by Scott McLellan, White House spokesman. (Of course, readers of this very blog can get their fill of first hand accounts of the abuse of terror suspects by our government, and... stick around, they'll be more coming...)

Meanwhile, the Supreme Court dodged a tricky one by sending a case involving New Hampshire's parental notification laws for abortion back to the lower court, finding that the lower courts did not have to toss out the whole statute. The problem with this, of course, is that the statute was written precisely in a such a way as to be an "all or nothing"... I'm sure that future Justice Alito will not stand for this sort of thing! In a temporary state of sanity, the High Court did uphold the State of Oregon's law permitting doctor assisted suicide, finding that the Attorney General of the United States is not a roving commission to invalidate state laws that will offend the Taliban wing of the Republican Party.

And Democrats in Congress issued their version of a proposal to combat governmental corruption; to coin a phrase, good luck on that. I fear that much of America has adopted the attitude of my home borough of Brooklyn (we don't tolerate corruption; we demand it, especially if it's by Bible-thumping Republicans.)

Oh my. Anyway, the joy of hearing about the spying on citizens, the tortures, the illegal detentions... is that none of these things are actually effective. What had been effective once, law enforcement actions, have been mocked and in many cases neutered in favor of the-infinitely-less-effective-at-everything- except-blowing-up-shit-Defense-Department acting as if its enemy is the American people (which, of course, in a dictatorship, it would very well be.) And yet, when it is pointed out just how ineffective the Bush Administration is at wielding power, it offers this as an explanation of why it need still more power...

This is all very tiresome. Let's hope the ineffective Democrats get some traction on this corruption thing, and clean House. And Senate. As unappetizing a prospect as "divided government" may be for many, it may be the only hope for the continued viability of our Constitution, at this point.

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January 17, 2006, F***ing Ay!

This is the text of the speech former Vice-President and rightful President, the Sainted Al Gore delivered yesterday, in Washington, to a group dedicated to the preservation of what's left of our constitution.

Freed up from the idiocies of having to control every facial expression and bodily tick, lest it appear mocked on Saturday Night Live and late night talk shows and then lied about on CNN and in the so-called liberal New York Times and Washington Post... Gore can simply speak his mind.

And he seems to be the only Democrat simply willing to get right to the point, and say it like it is (no, not some horses*** about plantations in a desperate need to veer left with only two years to go until the all-important Iowa caucuses)... and "like it is" is that we are perilously close to reaching the point of no-return to a police state... the essence of tyranny is a government not accountable to laws, or to checks and balances, or to anything else... the kind of government that the Bush II Administration insists that the nebulous war it has unilaterally declared against anyone they decide they are at war with gives them unlimited authority...
authority that no President in over 200 years has remotely claimed.

The Administration's response is the usual fear-mongering that has greeted every assault on it of any kind for well over four years now, since it first asserted that the American Reichstadt Fire somehow permits the President to shred the Bill of Rights, to invade our privacy, to arbitrarily lock up citizens and non-citizens alike, to subject said people to torture, to ignore laws he doesn't like, to label critics as traitors, to reveal the identity of covert agents to our enemies for crass political gain... or some swarthy terrorist screaming "Alihu Akbar!" might... no... will kill your children...

Enough of this already. Thank God Al Gore no longer gives a rat's ass about the knee-jerk (fear-mongering) response he will (naturally) get. Somebody who perhaps someone will listen to... is saying what needs to be said. Or perhaps no one is listening. It still needs to be said.

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January 16, 2006, Happy King Day

I understand that today's holiday is designed to honor the late Dr. Martin Luther King, Jr., a hero of the Civil Rights movement.

However, I think its been just too long since we honored our own king... the one we elected twice now, thereby giving him "political capital" which he could spend. On that note, I give you this lengthy report (warning: PDF) on government secrecy in the Bush Administration prepared by the Government Accountability Office (GAO, one of my former employers).

And here is a fascinating set of essays called "Patriot Debates" discussing various aspects of governmental surveillance associated with the USA Patriot Act, but not inconsistent with a broader debate that we should be having right about now.

One of the peculiarly galling things about the Bush II (and for that matter, the Bush I... and Reagan... and Nixon...) methods of governance was the obsession with secrecy. In a purportedly free society, there is just no abiding this: our government is subserviant to the people, or vice versa. By operating sub rosa, our government is signalling which one it believes is the applicable model (and warrantless surveillance against citizens, unilateral abrogation of treaty obligations when its convenient, locking up citizens at whim...) you get the picture. All are galling... but its most galling of all when a government purports to have "accountability moments" by electoral validation, but then does everything in its power to minimize the information available to the electorate that supposedly validates its ascendance...

All hail the King. Long live the King.

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January 15, 2006, Map of the Playground - Eastasian P.O.V.

From our comrades at Beijing's People's Daily we give you this succinct, to-the-point, completely lacking in irony discussion of the competing values of security against terrorism and protection of civil liberties that the American Congress is now confronted with. China, of course, need not tell us that it is, to put it politely, an "authoritarian" country that doesn't trouble itself with these things, but China's house organ gently reminds us that civil liberties were the founding principle of our republic... so perhaps this sort of debate will be more agonizing (or God damned well should be) than, well, than the way it has been going... pronouncements by a bully on one side, and cowed acceptance (by and large) by the so-called opposition party out of fear of being perceived as "soft on terror".

This article gives us a discussion of increaseing cooperation vis a vis resource sharing (or at least agreements not to compete) between the two largest nations on Earth, India and China. Frankly, this is the sort of news we should welcome as human beings, as confrontation between these two nations could be devastating to everyone else. OTOH, as Americans, we now won't have to deal with two competitors acting a gainst each other that we can divide and conquer, but with the two acting in concert, making them a most formidable competitor as we battle (hopefully a metaphor) for the world's scarce resources. Still... another trend not necessarily widely reported... here...

And, in Axis of EvilTM news, we see that China, along with Russia, the USA and the EU troika (UK, France, Germany) will be meeting in London to discuss Iran and its non-compliance with international nuclear agreements as it tries to build an atomic bomb. The article, of course, is loaded with diplomatic double-speak... China and Russia are a tad less worried about Iran's development of nuclear weapons, as the terrorists likely to be provided them are much more likely to target, say, Israel, the United States or Europe than... China and Russia (tell that to the Chechens, Pooty...)

But that's what things look like from Beijing. The "obvious" response won't go anywhere, of course. Just as I once suggested buying Russia's defense exports so that Iran couldn't, since Iran purports to want to develop future energy alternatives to oil and gas, why not invest in cutting edge solar and wind programs in Iran? I mean, call their bluff-- and do it in the form of an aid program... we could make a similar deal with North Korea... if its about the megawatts and not about the bomb, they should go along with this, right?

Of course... don't expect anything "creative" in the foreign policy sphere or anything else as long as the current American government is in place... see above.

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January 15, 2006, Map of the playground (Eurasian P.O.V.)

From our comrades at Pravda, we'll start with this view of George W. Bush's favorite sleepaway camp from our old pal Timothy Bancroft-Hinchey that likens Guantanamo Bay to Treblinka, Bergen-Belsen and that sort of thing. That's not exactly fair: our Cuba based camp hasn't actually killed anyone (that we know of) and its scale is much smaller. Otherwise, of course, the whole problem with Bancroft-Hinchey's comparison is that it's not all that preposterous: we will not look back at what we've done at Gitmo (or Abu Ghraib or elsewhere) as our finest hour...

This Pravda piece on the "imminent default and collapse of the dollar" is fascinating for a number of reasons. The "lead" part of the piece, of course, is its least significant: Congress will, as it always does, increase the debt ceiling and prevent the "technical default." However, there are other gems in there that are not widely reported in the American press that may well prove ominous... far more ominous. For one, note that because the numbers will be so miserable, the Federal Reserve measure of "M3 Aggregate" increases in the money supply will no longer be reported starting in March... in other words, an element by which world markets and other governments measure the "real value" of the United States dollar will no longer be available. Now just why might that be? The other item just dropped in there is that (a) Iran is planning on converting the use of the dollar in its foreign trade (i.e. oil sale) operations into euros; in other words, even though it doesn't officially directly trade with the United States in oil, other countries rely on credit denominated in dollars-- so this will, of course, increase use of the euro and decrease use of the dollar, with an effect on overall dollar credit standing (complicated, but the last country to try this was... Saddam's Iraq... the "new Iraq" is back to dollars... think about that...) and (b) China is ominously moving to increase its reserve currency holdings in euros. In other words, we are borrowing faster than we can print up i.o.u.'s to do it, we are making accounting for the effects of that borrowing far less transparent, and our foreign trading partners (or at least their trading partners) appear to have figured all this out. Or... I picked a bad week to give up drinking...

And finally, Pravda gives us this detailed scientific discussion of... talking dogs.

Das vidanya.

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January 14, 2006, Wack-A-Mullah

One wonders just how important it is to the Bushmen that Sam Alito be confirmed... it must be damned important, because the Bush Administration has done something it refused to do even to the run-up to the all-important 2002 mid-terms or 2004 presidential election: violate Pakistani airspace to attack a purported Al Qaeda target there, in order to generate a diversion ahead of the senate deliberations (and possible delay by senate Democrats) of the Alito confirmation vote.

Given the Bush Administration's general competence at everything else, it should come as no surprise that the intended target, Al Qaeda "Number Two" Ayman Al-Zawahiri was not among the 18 dead (which included several children.)

Nope, no surprise at all. You see, its possible that there may be technical problems with OBL himself (though I still think we'll see that OBL special broadcast around mid-October in time for the Congressional midterms-- as I alluded to at this week's American Street piece)... in any event... Al-Zarqawi Al-Zawahiri may be necessary as a bogeyman should something "unfortunate" happen to OBL himself (or more importantly, to that tape he has prepared for release in October; I understand that just to be safe, they have recorded 30 different versions, to correspond as to which team will win the World Series... I understand that OBL got a big kick about wearing the red "W" cap of the Washington Nationals team...)

The last thing we need at this point is to show the American voters that A.Q. and its leaders are actually vulnerable, and probably weren't all that formidable in the first place, and you know, maybe got lucky or something on 9-11... and just isn't the kind of threat warranting, you know, unilateral dismemberment of the Bill of Rights and our system of Constitutional checks and balances... naaaaa....

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January 13, 2006, Triskaidekaphobia

On this Friday 13th, the German Chancellor Angela Merkel met with the President in Washington, and the two joined in... tough talk to Iran. At least from the Times report just cited, little mention was made of much vaunted German opposition to the continued operation of the detentions at Guantanamo Bay, Cuba, nor any mention at all of German resident and Gitmo prisoner Murat Kurnaz, with whom you are all familiar by now.

It's unclear what's going to happen with respect to Iran. Unlike Iraq's Osirak facility which Israel attacked and destroyed some 25 years ago, Iran's nuclear development facilities are, presumably, hardened and spread out. A simple air strike won't do it.

And the American military is kind of tied up now, next door, so a serious military response seems most unlikely. And sanctions against Iran will just punish the Iranian people, rather than Iranian leadership (where have we seen all this before?) and hence are not promising as all that effective, without a credible military threat (from... guess who?) And at the end of the day, Iran will likely have managed to acquire nuclear weapons... and Iran, unlike Iraq, has a long and storied history of providing weapons and support to the world's most troublesome terrorist groups.

Just to make sure we're all in the same place on our scorecards: Germany has (1) condemned our operation of detention facilities at Guantanamo Bay, (2) refused to lift a finger to help its own resident there because of racist German laws (never saw them before) that deny citizenship to immigrant Turkish people even if born and living in Germany, but (3) Germany had no compunction whatsoever about interrogating said German resident at Guantamo for its own intelligence purposes. The United States has (1) suspended habeas corpus (for those of you who haven't figured that out, that's pretty big), (2) spied on its own people to a degree we'll probably never know, though we're reasonably sure its at least thousands of people, contrary to applicable constitutional and legal prohibitions on said spying, (3) invaded a country that posed no threat to us and had not attacked us because.... we are afraid of nasty weapons, such as and especially nuclear weapons... falling into the hands of terrorists.

I picked another bad week to give up sniffing glue.

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January 12, 2006, "Ripper Takes the Fifth"

The title duly stolen from this by digby refers,of course, to an interesting break in the abuse trial of two dog handlers associated with good old Abu Ghraib prison in Iraq. It seems that the former commanding officer responsible for the area including Abu Ghraib, and earlier, of the good old Guantanamo Bay detention and interrogation operation, General Geoffrey "Jack D. Ripper" Miller took the fifth (actually invoking article 31 of the Uniform Code of Military Justice) to decline to incriminate himself; this took place conveniently after Colonel Thomas Pappas of former-commander-of-Abu-Ghraib fame accepted a plea deal with military prosecutors.

This is all fascinating. As readers of my recent posts (particularly this one) are aware, there's been some abuse alleged about Gitmo... like General Ripper Miller wantin' interrogators to get tougher, so we could get more "results", assuming one considers coerced confessions and/or incriminations to be "results" which the good general clearly did; he took this brand of action with him, of course, to Abu Ghraib...

Curioser and curioser. We'll see, of course, if anyone above the rank of Sergeant Major has to answer for any abuse whatsoever carried out by the military in the War on TerrorTM, whether in Iraq, Guantanamo Bay or anywhere else. But why should the military be different from the rest of our government in that regard?

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January 11, 2006, Shorter Samuel Alito, Jr.

You could read this long description of today's testimony in the Washington Post, or you can have this Shorter Sam Alito: "You all can kiss my ass before I tell you anything that might be construed as remotely committal on how I'll rule on an abortion case (like you don't know how I'll rule already), and I see that none of you dipshits (especially you Biden) seem the least bit interested in the fact that I never met a government abuse I didn't like."

Or you could read this from the Rude Pundit (please don't read the second paragraph while consuming any liquids.)

Bonus: It was so nice to see Lindsey Graham demanding civility (especially when Mrs. Alito decided to have a crying fit)... particularly given the senator's sensitivity to the human condition in general as shown by his recent bill denying habeas corpus to detainees that has proudly brought America to the forefront of Western Law, proudly reversing that awful thing King John signed back at Runnymede in 1215... come to think of it... Sam Alito doesn't like it much, either.


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January 9, 2006, TD Blog Interview with Baher Azmy

TD Blog Interview with Baher Azmy

On January 4, 2006, I had the privilege of speaking, by telephone, with Baher Azmy, Professor of Law at Seton Hall University Law School in Newark, New Jersey. Professor Azmy is the principal American attorney for Murat Kurnaz, one of approximately 500 detainees still held by the United States government at Camp Delta, Guanatamo Bay, Cuba. Kurnaz is a Turkish national (by virtue of his parents' nationality) and was born, raised and living in Germany at the time of his apprehension in late 2001 by Pakistani officials, and his subsequent transfer to American custody at Kandahar, Afghanistan, and then to Guantanamo Bay.

Later this week, German Chancellor Angela Merkel will be meeting with the President in Washington. Mr. Kurnaz’s case may be on her agenda; she has already called for the closure of the Guantanamo Bay detention facility.
What follows are my interview notes, as corrected where appropriate by Professor Azmy.

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?

Baher Azmy: I was in Brooklyn helping a friend of mine run for City Council out of the Park Slope area; there was a primary election that day. I was handing out leaflets near a polling place, when someone said "I have to get to the World Trade Center- my Dad works there." Since I didn't know what was going on, I didn't know why she said that. She said "Didn't you hear? A plane hit the World Trade Center. Another woman passing by just called out "a second plane just hit the World Trade Center". We walked about a block away to get an unobstructed view of downtown Manhattan, and we saw the smoldering towers... At that time we went to the home of a mutual friend of the candidate's, and watched on her television- as she didn't have cable, we watched Channel 2 (WCBS-TV the local CBS affiliate) as it was the only station with reception [all other New York Stations broadcast from the World Trade Center tower at the time, while WCBS used the Empire State Building] . We learned of other missing planes, and felt totally besieged and under attack. I stayed until around 5:00. My sister worked downtown. We were waiting phone calls from various people to make sure they were alright. When the subways started running again, I remember taking the Q train over the Manhattan Bridge, past a view of the smoldering rubble. I was deeply affected by the events of that day.

The Talking Dog: I understand that you were the first detainee's attorney to be permitted to visit a client at Guantanamo Bay. If I may ask, how did you come to represent Mr. Kurnaz?

Baher Azmy: I was actually the third attorney to visit Guantanamo Bay. I visited from October 9th through 13th in 2004. As to how I came to represent Murat... in 2004, after the Rasul case, which involved a group of Kuwaitis represented by a firm in D.C. and a public interest group in New York, and in which the Supreme Court found that federal courts had the power to review the legality of the detentions, a number of other people were activated, and authorized to represent detainees. Europeans with contacts in the human rights community were very active, and many of the families of European detainees asked the lawyers handling the Rasul case to refer them to counsel. Rabiyah Kornoz-- Murat Kurnaz's mother-- got a German lawyer (Bernhard Docke), who in turn, approached the Gibbons, Del Deo firm in Newark, New Jersey, who in turn, approached me, which is how I got involved. We filed a habeas corpus petition on behalf of Murat as "next friend" in the name of his mother, as of course, we were not permitted at that time to meet Murat to obtain his signature on the petition. I obtained a security clearance, which we were told would be an expedited process. I feared there might be a delay as I am a dual citizenship with the United States and Egypt, but fortunately, it did not take that long to obtain my clearance.

The Talking Dog: And-- to the extent not classified-- can you tell us what you physically observed at Guantanamo Bay, Camp X-Ray, Camp Delta, Camp Echo and anything else you've observed; my only knowledge of the physical layout of the place was from the movie "A Few Good Men"....

Baher Azmy: I have been to Guantanamo Bay three times, and am supposed to go again shortly. The topography in general is not what I'd expect in the Caribbean: it is hilly, and craggy, and dry. It is the strangest place on Earth, as far as I'm concerned. It was stranger still because of the intensive anxiety I felt when I first visited. I had a Marine escort and a DOD civilian escort (they have since discontinued the non-military escort). A bay separates the leeward part of the base-- where we stay, along with journalists and other lawyers and foreign guest workers-- from the windward side, where the military personnel reside, and the detention camps are located. One takes a ferry to the windward side, and is then taken to the camps. For me it was an anxious moment when I first met my client. At that time, I was escorted by a Marine Gunnery Sergeant Santana, who was a chatty, affable fellow, who wouldn't stop talking, actually.

Lawyers were permitted to meet with clients in Camp Echo-- which has cottages that resemble summer camp bungalows on the outside, inside are cells, and tables and chairs for meeting; prisoners were shackled to the floor. The rooms are private, though there is a video monitor. We were told that no sound recording or monitoring was undertaken, but I have no way of knowing whether there was or not, one way or another. I have seen some better prison meeting areas for lawyers and client-prisoners, some worse.

The prisoners are housed at Camp Delta-- which I have not been permitted to observe. My understanding from Murat is that Camp X-Ray-- where prisoners were first detained, has the outdoor "pens", Camp Delta is more or less indoors, the "cages" inside are small mesh cage areas, with a prison toilet and built in beds-- people are constantly moved to avoid building up attachments or relationships among prisoners.

The Talking Dog: Is Mr. Kurnaz participating in the hunger strike that is currently going on among detainees at Guantanamo Bay?

Baher Azmy: My understanding is that he is not participating in the current hunger strike. The problem is that there is no real way to know this, absent literally going down there and talking to him myself.

The Talking Dog: Have you requested Mr. Kurnaz’s medical report, and if so, have you been provided with it?

Baher Azmy: I have indeed made direct requests for it, which have not been granted. I have subsequently made a Freedom of Information Law request for it, which is still pending.

The Talking Dog: I understand that some aspects of Mr. Kurnaz’s classified file were declassified...

Baher Azmy: Yes, a good deal of this was discussed in the Washington Post article on his case. The Washington Post had made its own requests, but ultimately, I got his files declassified. Learning this was a key development. In the classified files was the only evidence linking Murat to terrorism– supposedly, his friend was suspected as a suicide bomber in an Istanbul bombing. Of course, that friend is still alive. And the bombing took place well after Murat was in custody. Judge Green discussed this in her decision (the unclassified part) as a violation of basic due process, to find Murat responsible for the crimes of others, indeed, crimes that hadn’t even been committed at the time of his apprehension!

The other supposed link to terrorism was that Kurnaz was traveling with a group called Jamiyat al Tablighi, a Moslem missionary group. I have researched this group– it is a peaceful missionary group– attractive to many young Moslems– that teaches the fundamentals of the Koran and how to pray...

The Talking Dog: I understand that he was traveling from madrassah to madrassah...

Baher Azmy: Madrassah is, of course, a loaded term these days. He was with a missionary group, and there is no evidence– never has been– that it has any involvement with terrorism– that it was anything other than a group of religious missionaries.

Murat traveled with this group in Pakistan. He was picked up at a bus stop, in a bus full of Pakistani men, a Western looking person sitting in the bus shortly after 9-11 was singled out. He was questioned by Pakistani local police, when they established he was not a journalist, they turned him over the federal police, who turned him over to the Americans. Our supposition is that the Pakistani government was then under great pressure from the United States to produce “results”, which in this case, meant arresting people.

The Talking Dog: What you can tell me about the conditions of Mr. Kurnaz's confinement, as you were permitted to observe them, or as he described them? We understand that her he contends he has been mistreated-- can you elaborate on what he experienced? You've described Guantanamo Bay, at least as you are quoted in a New Yorker article, as "a great big experiment". Can you elaborate on that? Have there been conditions of confinement directed by the federal judiciary, and has the government complied with those conditions (if you can tell me)?

Baher Azmy: The conditions of Murat's detention are as he described them to me, as I have not been permitted to observe anything beyond the bungalow in Camp Echo. The description of conditions is twofold, between the Afghan (Kandahar) piece, where his treatment was brutal and episodic and chaotic by angry MPs shortly after 9-11, and his later Guantanamo piece, where the treatment has been systematic and organized. At Kandahar, Murat (and others) were left outside in shorts, and just a blanket-- despite December in Afghanistan being brutally cold. While in American custody in Afghanistan, Murat was waterboarded-- his head dumped in a large ovular tub of water t simulate drowning. Murat is funny-- still has his sense of humor despite being deeply depressed about his situation overall. When I suggested a few seconds as the length of his submersion, he said "no, that's what I'd do with my brothers when I played with them... this was longer!" Also at Kandahar, electrodes were attached to his feet, he was told by a soldier "this should warm you up" as they ran electricity through it. At one point, a soldier loaded a magazine into a rifle, and put the rifle into his mouth, screaming at him "I'll kill you ". He was hung by his hands over his head, and placed in a shipping container at one point for a few days without food. In Afghanistan, Murat was suspected of an association of Mohammed Atta, who was from Hamburg, Germany, while Murat is from Bremen, Germany. That justification for holding Murat is now gone, of course. Also at Afghanistan, Murat believes he witnessed a detainee being beaten to death.

In Guantanamo, the conditions of detention have been more systematic and planned. There has been constant sleep deprivation, noise generated such as loud music and other noise, constant interrogations; he has been short shackled for hours and forced to go to the bathroom on himself... he has been taunted sexually by female interrogators. One woman put her hand in his shirt; Murat headbutted her, at which point, other interrogators rushed in the cell and beat him, and shackled his hands behind his back for 20 hours. He was deprived of food, at one point, for 11 days. At one point, he was on a hunger strike, and he and others were force fed through feeding tubes.
I have said I viewed Guantanamo Bay as a great big experiment in interrogation methods. For one thing, as to the sexual humiliation, I was very skeptical, until the afternoon after I first heard it, the stories of the use of the menstrual blood on detainees came out in the press. My understanding is that these events occurred before the Abu Ghraib abuses became public.

My understanding of the interrogations is that they were being directed from very high. Very high officials were concerned with the lack of effectiveness of the Guantanamo Bay interrogations, and various methods were tested to determine if they would yield information. Every detail of food and bathroom activity is meticulously recorded and charted, and then cross-checked and compared for success rates. This explains some of the weird aspects of the interrogations-- outright experimenting with methods intended to break down the prisoners in various ways-- and then reporting the effects and if the interrogation methods are effective.

The Talking Dog: Are you aware of whether conditions of confinement have been the subject of any judicial orders?

Baher Azmy: I am not aware of specific instructions as to conditions of confinement from the federal judiciary. There have been motions for better conditions in various courts, but these have not been ruled upon. There was a successful set of motions on behalf of Saudi detainees by a law firm in Washington, DC, that demanded that their lawyers get weekly medical records-- they could document the ineffectiveness of the medical treatment their clients were receiving. In one case, a prisoner named Al-Dosari tried to kill himself while his lawyer was present.

Interestingly, in at least one case, in responding to a motion for better conditions for a prisoner who had no human contact, the Government insisted that he does gets contact– regular contact– and can even play checkers--

The Talking Dog: And he gets served lemon chicken--

Baher Azmy: Right. Lemon chicken and rice pilaf. And he can play checkers and have regular contact... with his interrogators!

The Talking Dog: In the United States, other than acknowledging the existence of the Guantanamo Bay facility and a general notion that it holds dangerous men, the plight of the detainees barely gets public notice. Is Mr. Kurnaz a significant cause celebre in either Germany, Turkey or anywhere else, as far as you know?

Baher Azmy: This is a very significant case in Germany, particularly after the allegations surfaced concerning the extraordinary rendition of Khaled Al-Masri. It was all over the German press at that point, as it was when it was learned that German officials had visited Murat at Guantanamo Bay in early 2003 and mid-2004, not to help him, but to interrogate him. They came down with a laptop and pictures to show him people they suspected, such as an Imam who he knows, and other “suspicious” people. This was a key event in Germany– Germany had refused to help him diplomatically because he is not a German citizen under German law– he is a Turkish citizen. There was overt outrage when it was learned that Germany refused to lift a finger to help him, and of course, decried Guantanamo Bay and American detention policy in general, and yet used the occasion for its own intelligence.

As to Turkey, we have had indirect contacts with Turkey- at one point, it was rumored that Murat was going to be released to Turkey, but those rumors proved false. The Turkish people are not interested in Murat; they have taken at best a pro forma interest, effectively, no interest. So Murat is in a diplomatic Bermuda triangle, as neither Germany nor Turkey have done much of anything on his behalf,

At this point, the question for Germany becomes whether this is worth having a major foreign policy fight over– if this is one of the top ten issues on the German-American agenda.

The Talking Dog: The Supreme Court recently accepted review in the Hamdan case. Am I correct that its decision in that case is essentially the ballgame, as far as the ultimate vindication of Mr. Kurnaz's legal rights? Are you participating in that case, or seeking consolidation with Mr. Kurnaz's case? What is the status of appeals in Mr. Kurnaz's own case (i.e. was it subsumed as part of the D.C. Circuit's ruling in Hamdan?)

Behar Azmy: The Hamdan case only effects this case insofar as the issue of whether the Geneva Conventions apply. But is the subject of a separate appeal... an appeal in which we appeared to be prevailing on the basis of the Habeas Corpus Act. Everything else on this case has been held up by the Graham-Levin Amendment...

The Talking Dog: What do you think the effect of the recent Graham-Levin-Kyl Amendment essentially stripping federal courts of habeas corpus jurisdiction over detainees going to be on either the situation of Mr. Kurnaz, or the other Guantanamo Bay detainees? Do you have any further comment on that? Am I correct that even if Congress deems it appropriate to deprive a party of jurisdiction to bring an action under the Constitution in a federal court, such an action might well lie in a state court (or the District of Columbia Superior Court), especially given Article I, Section 9 of the Constitution' (The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it)? What would be the effect on pending cases, such as Mr. Kurnaz's? Surely, the war on terror cannot be construed as 'rebellion or invasion" when not even the Civil War did... could it?

Behar Azmy: That’s an interesting theory... Obviously, our first line of defense will be that the Graham-Levin Amendments were not intended to– and cannot constitutionally– apply to already filed and active cases, such as Mr. Kurnaz’s. We will also argue other constitutional problems with the statute...

The Talking Dog: On the subject of the current nominee for associate justice, Judge Samuel Alito, who I understand is your colleague on the Seton Hall Law School faculty, 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. Kurnaz's and the other Guantanamo 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? Without disclosing confidences of any kind, do you have any insight on how a Justice Alito would view such cases?

Behar Azmy: I have no particular “intimate read”, and have certainly never discussed any of this with him. In my view– based on my reading of his writings and other things that are in the public domain– that he would likely be very solicitous of the Administration, particularly in its conduct of the War on Terror. Recently, I learned that he signed a statement to the effect that the executive should have every right and ability to chart the course of legislation (and interpret it) as the legislative branch itself...

In my view, the Administration is concerned with issues like abortion on the margins, especially compared to the advancement of its executive power. My reading of the record is that that is the kind of justice the Administration wants and that is why they named him.

On a personal level, I understand he is very popular among the students, and is regarded as very amiable personally.

The Talking Dog: My understanding is that after the Hamdi case last year, Mr. Kurnaz was 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")? Also– we touched on this above– but I understand that significant portions of Mr. Kurnaz's files have become declassified, and this was referred to in the lower court opinion by Judge Joyce Hens Green. Can you elaborate on this-- including if you would, Judge Green's assessment of the evidence both against and in favor of the continued detention of Mr. Kurnaz? Are you now aware of the full basis for Kurnaz’s detention as asserted by the Government, classified or not?

Behar Azmy: Yes, the Combatant Status Review Tribunal was not an impartial arbiter. Three military personnel who in effect have already made their determination that Murat was guilty decided that he was an “unlawful combatant” and would continue to be held. I understand that in some cases– particularly the Uygurs [from Western China] and one Russian have been found to be “no longer enemy combatants” (implying that they once were), though they are still being held. Everyone else has been found to be an enemy combatant.

As to the other part of your question, yes, I now know the whole basis for Murat’s detention.

There was a classified file– and Judge Green referred to it– noting that only one piece of paper in it alleged that Murat was “clearly a member of Al Qaeda”. She found that the document had no detail, a nd was totally conclusory, and conflicted with the assessments of military intelligence personnel that there was no basis to conclude that Murat had any connection to Al Qaeda. Parts of the file have now since been reclassified, though to the extent that the Washington Post has published details, those exist, are public, and I can talk about those details.

The Talking Dog: I've asked this question before of others-- and I'd like your reaction. 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 Authorization for Use of Military 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 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?

Behar Azmy: Yes, there’s most definitely an Alice in Wonderland quality to it. One can also explain things in terms of cynical opportunism and motives... one side simply picks and choses what works for it at a given moment in a given situation, and asserts that... Such as assertions of “we keep the Geneva Conventions in mind”, though we won’t actually apply them or enforce them against ourselves when we don’t want to.

The Talking Dog: What are you as an attorney–besides filing and pursuing the appropriate action ain any forum that will hear it, I suppose– and what are we as citizens-- supposed to do– knowing that the United States government has been holding, interrogating, and (by his account) torturing, Murat Kurnaz, an almost certainly innocent man that the military's own files demonstrate poses no threat and has no connection to Al Qaeda, terrorism or any action against the United States?

Baher Azmy: Again, one asks cynically how it is possible that we can hold someone under these circumstances... is our government that venal an institution? Of course, once you avoid the rule of law, there is no confidence that the people kept should be, or that the people released should be, and hence, the results become totally arbitrary... there are no thresholds. Detainees alleged to have done far worse things than Murat have been released, while other detainees comparably innocent to Murat continue to be held, indefinitely... One has a sense of historical inevitability... we will look back on this whole thing with shame and disappointment and mendacity... Yes, certainly, from my perspective, you fight in every forum you can, pursue every legal remedy seeming available... But one finds it personally frustrating and depressing. Its professionally frustrating, knowing that you are always on your heals...not just me, but all involved in these representations,,, find it deeply depressing. We are facing institutional darkness, incompetence and disingenuousness for no good reason. Frankly, we have leveraged our Constitution so that we can hold Murat.

The Talking Dog Is there anything else you believe that people need to know about either Mr. Kurnaz's case, about the other tribunals or detainees at Guantanamo, 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?

Behar Azmy: Well Graham Levin is a whole long fight. It leads to its own source of frustration and depression... frankly, it leads to infuriation and wonderment at this Administration’s knowledge and willingness to make brazen use of power. Take the case of Padilla– to avoid Supreme Court review, they move him out of military custody. In Murat’s case– I was in a courtroom– we were going to prevail on the basis of the Habeas Corpus Act– basic protections to test the evidence against Murat in a federal court...

The Government knew it would lose– the Supreme Court in the Rasul case expressed little sympathy for the Government’s position...

So we have a savvy and strong adversary with no compunction against changing the rules when it suits it. And that is exactly what it has done... this process is a moving target, like Charlie Brown and the football that Lucy always moves before he kicks it... just as the Government is about to lose in this area, it changes the rules with Graham, Levin... that’s just this occasion. Its not merely a moving target– one player– the Government– gets to move the target.

There has, at least, been some interest in Murat– any number of articles on him, including a whole series in the New York Times called “One Man’s Odyssey.”

The Talking Dog I join all my readers in thanking Professor Azmy for that eye opening discussion, and for being so generous with his time.

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January 8, 2006, Ex-Hitler Youth Member Denounces "Culture of Death"

This kind of self-writing headline is the recurring (and unique) problem with having elected the former Cardinal Joseph Ratzinger as Pope Benedict XVI, particularly when he gives off-the-cuff speeches denouncing a vaguely described "culture of death" (which his predecessor usually equated with abortion and birth control, and of course, used the power of his office to, inter alia, rail against the distribution of condoms to AIDS ravaged Africa).

Whatever. As a non-Catholic, my standing to criticize the Church is limited (though the choice of someone who served in Die Hitlerjugend will not be something I'll likely fail to mention when discussing this Pope, particularly when he purports to make moral pronouncements... of any kind...)

The prior Pope, for example, consistently railed against our current President... both when he was a lethal-injection-happy Governor presiding over more executions than any Governor in American history, and later as he was launching military adventures that didn't pass any test for "just war" (other than the "I can politically get away with it" test, the only test, btw, Bush uses for anything.)

For whatever reason, I haven't heard those kind of broader moral pronouncements from this Pope-- only his "small-ball" railing at sexual liberation and "moral relativism" (whatever that is). One must have their priorities, I suppose...

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January 7, 2006, Best Blonde Joke Ever

This joke is almost as good as the talking dog joke. (Via Anacronyms.) The infinite variety of "how do you keep an idiot in suspense?" jokes never cease to amuse me...

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January 7, 2006, Shorter People's Daily

Sayeth Beijing's CPC House Organ: Bush says America is a secure, prosperous beacon of democracy and hope, but in reality America is rapidly becoming an economic failure and a police state that is hemorrhaging capital and exporting chaos.

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January 7, 2006, It's a gas, gas, gas...

While we were wacthing sundry things like the domestic horror of the loss of a dozen miners in West Virginia, the ongoing horrors in Iraq and a possible death-vigil for Israeli PM Sharon... Russia and Ukraine were having a conflict over the provision by Russia of natural gas to Ukraine (Russia supplies around a third of natural gas used by the former Soviet Republic). At one point, the Russians dramatically televised the act of their gas monopoly ("Gazprom") turning off the valves sending gas into Ukraine.

Well, it appears, via our comrades at Pravda, that a compromise has been reached. Ukraine will pay the market price for Russian natural gas (around $230 per 1,000 cu. mtrs.) This was, of course, the price that Ukraine which had been paying around $50 per 1,000 c.m., refused to pay, resulting in the crisis. Ah, but I said Russian gas; for Kazakh and Uzbek and other gas acquired from Gazprom's non-Russian monopolies, Ukraine will only pay $95. In addition, the transfer fee paid to Ukraine to move gas across it into the rest of Europe will be increased. The deal also applies to former SSR Moldova.

So what's going on here? Gas prices-- in an inexact lockstep with oil prices-- have soared. Russian revenue is up, up, up. Russia has been getting far more for its gas on the open market, and far less for it from former Soviet Republics. So... Russia wants to increase revenues from them. So far, so good. Except some former Soviet Republics are more equal than others. Byelorusse, for example, which has an authoritarian government with very warm relations with Moscow, will continue to get very favorable treatment in its gas purchases. Ukraine, the site of the recent "Orange Revolution" which installed less pro-Moscow and more pro-Western Victor Yuschenko... less so.

In other words, Putin's Russia intends to use its economic might (in this case, energy, the mightiest might it has) to advance its political interests. It should come as no surprise that Russia is willing to do this; it would be more surprising if they were not. But as it looks like Russia is poised to be the world's big swing oil producer, this is just something we have to keep in mind. Particularly as we continue to weaken our own economic might with our record government deficits (we won't even talk about our trade deficits).

An ongoing cautionary tale. If Ukraine-- one of the poorest countries in Europe-- had any alternatives to Russian gas, besides a radical cut-back in economic activity or having large portions of their population freeze to death-- then I'm sure it would have hung tougher in all this. The United States, by contrast, still has lots of options, other than consuming as much energy as fast as possible, which seems to be our only strategy.

Perhaps if and when we elect a grown-up more concerned with the nation's power than with accumulating his own personal power (including power tools), we can come to the national realization that being a powerful nation means more than only being able to project force in the Third and Fourth Worlds.

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January 5, 2006, TD Blog Interview with Andrew Patel

On September 9th, the United States Court of Appeals issued a decision in the case of Jose Padilla v. C.T. Hanft, reversing the granting of habeas corpus by United States District Court Judge Henry Floyd of South Carolina, in the ongoing saga of what I have opined more than once as the most important legal case of our lifetimes. Mr. Padilla (prounounced as Pa- dill-a), as you will recall, was arrested in 2002, and Attorney General Ashcroft triumphantly announced (from Moscow no less, missing the irony of his doing so, from there) that the Government had captured Mr. Padilla and thereby thwarted a purported "dirty bomb" plot against the United States by Al Qaeda. The President declared Mr. Padilla an enemy combatant, placed him in the custody of the military, and he was placed in detention in a brig in South Carolina, without charge, trial, or (until just before the Supreme Court agreed to take review of an earlier habeas corpus petition brought in New York, after nearly two years in confinement) access to his own counsel. Brooklyn born Mr. Padilla thus remains the first and only American picked up on American soil and held as a purported "enemy combatant".

On September 20, 2005, I had the privilege of speaking, by telephone, with Andrew Patel, one of the attorneys who is representing Mr. Padilla. (My earlier interview with Donna Newman, co-counsel for Mr. Padilla) is here . Since this interview, the Government has elected to charge Mr. Padilla in an indictment in the Southern District of Florida. As recently as yesterday, the Supreme Court has permitted Mr. Padilla's transfer to civilian custody, but it has not yet determined whether it will accept review of the Fourth Circuit's decision against him.

What follows are my interview notes, as corrected where appropriate by Mr. Patel. [In some cases, I have also edited questions and/or answers to reflect events that have transpired since the interview.]

The Talking Dog: I always ask this question first. Where were you on the morning of September 11, 2001?

Andrew Patel: Do you know the answer?

The Talking Dog: I do know your day started at or near your office building, across the street from my own, in Lower Manhattan.

Andrew Patel: Well, I came to work that day. I was directed through the lobby of my office building, but was not permitted to go upstairs. I arrived just seconds after the second plane hit. I was directed to go outside, where I stood shoulder to shoulder with others from my office suite, as we just stood and watched the World Trade Center from around a block away on Broadway, and waited for the helicopters to arrive. I didn't see the building fall. I felt something-- a brown cloud of dust, which I later learned moved at around 140 m.p.h. in all directions as the tower fell. I got two steps, and the lights literally went out. If you put your hand in front of your face, you literally could not see it. I lifted my hand to feel for my glasses, and they were still there. I ended up in front of your building. I couldn't see. I couldn't breathe. I was pelted with a wind of ash and whatever else was there, and ended up inside your building, which, even though it has revolving doors, somehow I got into without going through revolving doors.

I found an air event pumping breathable air inside. It wasn't much better than the air outside. I don't know how to say this, but the sun came back out at some point, and eventually I ventured outside. Before then, clustered around this air vent were literally people from every ethnic group in New York City.

When I walked outside finally, people were just astounding. I eventually walked all the way up to Grand Central Station, while I was literally covered in grey stuff. People walked along with me, and asked if everything was o.k. Around Bleecker Street, someone grabbed me by the shoulder and took me to a rest room to wash my face. It turned out I had chemical burns in my eyes from the ash, and I was told by eye doctor, from compressed wall board and plaster pulverized by the collapsed towers, and the lye contained in it became a kind of acid. Fortunately, there was no permanent damage to my eyes. In part, because the woman who grabbed me was able to locate eye drops that I used.

It turns out that woman is Barbara Olshansky, who is an attorney (and someone you may want to talk to) who herself represents a number of Guantanamo detainnes. Some months later, at a meeting, having not seen her since 9-11, she came up and hugged me. We met in those rather unique circumstances, and still work together...

The other thing that was extraordinary was how calm and cooperative most New Yorkers were; for example, people just got out of the way of access points to hospitals and police stations because they would be needed for the emergency.

The Talking Dog: Have you ever pointed out that fact to any of the courts to whom you have argued on behalf of Mr. Padilla, including and especially the Fourth Circuit Court of Appeals? I ask that because I find it curious that the courts in New York, where the judges themselves were a few hundred yards from the World Trade Center that morning, have, to some extent, treated Mr. Padilla's case somewhat differently from judges in other parts of the country, who were not.

Andrew Patel: I have not pointed that out to any court in which I have represented Mr. Padilla. I do note that to many people, events that they witness on television are more frightening to them than real events that people actually experience.

The Talking Dog: Do you think the composition of the Supreme Court will matter much on the outcome? Put another way, do you see any reason why Chief Justice Roberts, who participated in the Hamdan decision, would vote any differently on the appeal of Padilla (assuming the Court accepts review) as the late Chief Justice Rehnquist?

Andrew Patel: That's a very good question, and probably not answerable. When you change the composition of the justices on the court, and who argues what among the justices themselves, certainly people's positions may change. The question requires a lot of reading tea leaves.

If there are no dramatic shifts, and everyone on the Court holds similarly to how they did in prior cases, the composition of the Court should make no difference, and I certainly hope it wouldn't. The position we're asking- in liberal versus conservative terms- is about as conservative as it gets. We are asking the Court to follow what the Constitution actually says: unless habeas corpus has been suspended by Congress, a defendant accused of a crime by the government gets a trial by jury. One need look no further to Justice Scalia's dissent in the Hamdi case.

One of the Constitution's goals is to set forth that the President has specific and limited powers. If you change the balance in times of crisis, without proper authority to do so, you really have, as Judge Parker held in the Second Circuit (New York) court's decision on the earlier habeas corpus petition, a sea change in the Constitution.

The Talking Dog: Do you think that Judge Luttig's consideration as a possible nominee to the Supreme Court had any role in the Padilla decision?

Andrew Patel: I don't know. I would certainly like to think that it did not.

The Talking Dog: Are you aware of contentions that Judge Roberts was under consideration for the Supreme Court at the time he was involved in the Hamdan case, and some are contending it is improper?

Andrew Patel: I am aware that legal scholars have pointed out that there may be issues associated with Judge Roberts' participation in the Hamdan case under those circumstances, but not much more specifically than that.

The Talking Dog: Your co-counsel Ms. Newman suggested that the government continued to press the Padilla case because it does not have an "exit strategy". Do you have any thoughts on that? Do you believe that the President's political needs, particularly the need to keep the fear of terrorism at the forefront of the national psyche, is driving this case?

Andrew Patel: I agree with Donna's assessment that the Government does not have an exit strategy, certainly not one that they have hinted at the existence of. I tend to think that the reason they've pressed this hard is not so much to keep terrorism in front of the public. Indeed, this case is a poor vehicle for that. There are members of the Administration with a vision of the office of the President somewhat different from what the Constitution envisioned, which is to say, a chief executive which much more limited powers than the vast powers envisioned by the current Administration.

The Talking Dog: Let's turn to some of the specifics of the 4th Circuit ruling. As a preliminary matter, I note that the Court accepts the premise that Padilla took up arms against the United States and was returning to the United States with the intent to blow up apartment buildings (the "dirty bomb" accusation apparently gone), because it was stipulated as part of the summary judgment motion on the habeas corpus petition...

Andrew Patel: Stop right there. You're not the first person to ask this question, by the way. But the facts identified by the 4th circuit were not stipulated. In fact, we challenged most of the government's alleged facts in our motion papers. The only stipulation of facts we ever entered concerned the circumstances of Mr. Padilla's arrest, and no facts before that time.

The Talking Dog: Well, procedurally, let me see if I have this right. You moved for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, the party opposing the motion gets the benefit of all favorable inferences, and the court is to assume the truth of allegations that it can get evidence in support of... admissible evidence, I suppose...

Andrew Patel: Exactly. We challenged the extensive hearsay basis of the Government's case, and the Government just did not get to first base on its hearsay allegations. The parties did not stipulate to the facts that the 4th Circuit identifies. Read in the best light, the court may have been inartful in calling the facts "stipulated", when what they should have said was "reading the facts in the best light in favor of the opposing party as required by Rule 56".

The Talking Dog: Am I correct that as the Circuit Court reversed and thereby threw out a summary judgment motion, it hasn't thrown out the case. Technically, the case goes back to the District Court in South Carolina for a trial on these fact issues and further proceedings, correct? Isn't that one of your options?

Andrew Patel: That's right. That's one of the options here, though, we will likely be seeking Supreme Court review.

The Talking Dog: In reading the decision, I was struck with the premise that the term "enemy", which I always understood to mean a distinct nation state or group of nation states, has been morphed now into what amounts to a private criminal enterprise, "Al Qaeda", as if we could have "a war" against private institutions (rather than a police or law enforcement action against the individuals respond). The metaphor seems to have eaten the reality. My questions are
(A) Are you aware of any precedent for arguing that private actors can have legally meaningful "wars" declared on them by the United States (I'm thinking of perhaps the Barbary Pirates, although even there I’m wondering if there was a state actor or two involved from the shores of Tripoli... Or for that matter, Pancho Villa who we chased to the halls of Montezuma...) And
(B) Have you argued that the Al Qaeda terrorist actions are, albeit large scale, nonetheless still private criminal activity, and unlike the basis of the Quirin case, NOT A WAR AT ALL, which is a distinction from that line of cases...?

Andrew Patel: Yes. We argued that fairly extensively in the earlier proceeding in New York. We did not stress that so much in the current proceeding, because we concluded it was unnecessary for the court to get bogged down in the "is this a war" question to decide this particular case. The military law scholars do conclude that it is possible for someone who is not a state to be treated as a combatant in limited conditions under the law of war, conditions not applicable here by a long shot. What I find particularly interesting is that the 4th Circuit based their decision entirely on statutory interpretation. It made no other discussion of suspension of the writ of habeas corpus, or of the Non-Detention Act, or of the law of war. None of that is there.

The Talking Dog: The 4th Circuit relied extremely heavily on the cases of Hamdi vs. Rumsfeld, relating, of course, to another unlawful combatant associated with the "War on Terror", albeit a citizen seized on or near an Afghan battlefield, and Ex parte Quirin, which deals with German saboteurs captured on or near Long Island as I recall during World War II. Both of those cases seem to indicate that the Supreme Court tacitly approved, as a general matter, of the President's ability to hold enemy combatants during the pendency of hostilities. I realize you have done it over and over, but for rhetorical purposes, how would you, for the benefit of laymen, distinguish those cases in a nut shell (realizing that things that can be put in a nutshell probably belong there)?

Andrew Patel: Well, in Quirin, there were two sets of German saboteurs, one landed in Long Island and the other in Florida, eventually arrested in New York and Chicago...

The Talking Dog: Just like Jose Padilla! So the two situations are therefore identical!

Andrew Patel: Well, going back to your question, let me address Hamdi first. There, the Court went out of its way to explicitly state that it was deciding a very narrow question: the authority of the President to detain someone captured on a foreign battlefield-- a foreign battlefield, which Chicago is not... even if it were a battlefield.

In Quirin, the issue is whether the President could capture and detain enemy soldiers for trial by the military, rather than for detention, forever, as in the Padilla case. Detention is not a lesser included element of trial. In a trial, someone must actually prove something, either the prosecution proving guilt or at least the defense proving innocence, and affording some manner of rights to the accused in doing so. Detaining someone forever is a very different matter. So the real issue in Quirin is different-- military jurisdiction. Not a question of who was going to HOLD them, but a question of who was going to try them, and on the facts of Quirin, the military had jurisdiction. On the facts there-- which unlike here WERE stipulated, the saboteurs landed, and wore uniforms at the time of their landing or thereabouts, thereby asserting their military status. In uniform, a soldier in the field under the laws of war has belligerant immunity, and cannot be prosecuted as a civilian criminal for that conduct. If a soldier in uniform is captured, then he or she becomes a prisoner of war. If a soldier violates the laws of war, interestingly, they are prosecuted in civilian courts, as opposed to a service-related offense, which is subject of a court-martial.

In Quirin, the prisoners' uniformed status at one time, and then, their later actions, gave the military the authority to try them. Padilla never asserted military status. There is absolutely no basis under Quirin for military authority over him.

The Talking Dog: Let me ask you, as an aside, if you have any objection to Padilla being afforded the hearing as to whether he is properly held as an unlawful combatant as created by the Supreme Court in Hamdi, or if you have a problem with that hearing?

Andrew Patel: We won't talk about judicial activism in creating such a hearing... The problem with the Hamdi hearing is that no one knows what it is. No one knows if it complies with due process under American civil law-- or the law of civilized nations. The Constitution provides for punishment after a trial. The Hamdi hearing is not a remedy that has ever been used before. There really is no way to assess this, and it is certainly not what the Constitution set forth.

The Talking Dog: Turning to the first of four points in the 4th CIrcuit decision as I read them (the four being the Court purportedly addressing your arguments) (1) the President's authority to detain captured combatants at all, when they are U.S. citizens, (2) the detention is improper because criminal prosecution is available, (3) Congress authorized the President to detain anyone, including citizens, in a resolution passed shortly after September 11th, and (4) that the case of Ex parte Milligan precludes this detention, because that case from the Civil War precludes the President from detaining any citizen for trial by the military while civilian courts were open.
As to the first one of these, the President's authority, I am wondering about footnote 4 to the Circuit's opinion ["Padilla also argues that the locus of capture should be legally relevant to the scope of the AUMF's [Congressional Authorization for the Use of Military Force] authorization because there is a higher probability of an erroneous determination that one is an enemy combatant when the seizure occurs on American soil. It is far from clear that this is actually the case. In any event, Padilla's argument confuses the scope of the President's power to detain enemy combatants under the AUMF witht he process for establishing that a detainee is in fact an enemy combatant, Hamdi itself provides process to guard against the erroneous detention of non-enemy combatants. 124 S.Ct. at 2648-52] . In other words, I'm wondering how you respond to the Court's finding that the Hamdi case says its ok for the President to detain a possible enemy combatant under these circumstances and he can challenge the detention at a Hamdi hearing (whatever that is) so what's the big deal?

Andrew Patel: The Constitution contains something called "the treason clause". Taking up arms against this country requires a heightened burden of proof on the part of the accuser, not a lower one. Our Founding Fathers were very wary of treason and its potential for abuse. Indeed, the only crime defined in the Constitution is treason, which is termed (I'm paraphrasing) making war or giving comfort to the enemy. In short, the constitution requires a higher standard of proof to prove what Mr. Padilla is accused of, i.e. treason. The Fourth Circuit is simply deciding that by calling the conduct something besides treason, that the Government can evade the requirements of the Constitution.

We know that a uniformed combatant would become a prisoner of war, and a saboteur not in uniform would be charged as a civilian.

Somehow, goes the Fourth Circuit's and the Government's thinking, the criminal justice system is inept and powerless to deal with the likes of a Mr. Padilla. Of course, we have a very robust criminal justice process- indeed, it was civilian law enforcement officers who captured and detained Mr. Padilla in the first instance-- the military had nothing to do with capturing him!

The Talking Dog: A similar point was made by Josh Dratel, when I interviewed him: far from being worthy of mockery, it was the law enforcement process that led to some of our best, if not only, knowledge of Al Qaeda and its operations.

Andrew Patel: Indeed, the Southern District of New York had a number of terrorism cases, even predating Al Qaeda, There were law enforcement people with lots and lots of knowledge of Al Qaeda. Of course, I later learned that a lot of law enforcement units with tremendous expertise in this area were not kept intact. Having been involved in earlier terrorism related trials, let me just say that this astounded me.

The Talking Dog: Turning back to the 4th Circuit's holding, as to the second one of these points in the 4th Circuit's holding, given that formal criminal prosecution was available to the Quirin detainees, I'm wondering how you respond to that part of its holding... in other words, the government chose a military trial (preceded by detention) of the defendants there, even though the civilian courts were available? What do you say to that?

Andrew Patel: Padilla never formally took up arms or went into uniform. The Supreme Court held that on those facts and those facts alone-- the taking up of arms and wearing of uniform-- the Quirin defendants fell within military jurisdiction. There has been no lack of criticism of the Quirin decision. Indeed, in his dissent in Hamdi, Justice Scalia said that Quirin was not the Court's best day.

Historically, no one would argue with a straight face that the military trials of President Lincoln's alleged assassins were properly or lawfully conducted, or even legal at all.

Quirin is not on all that much greater footing.

In historical context, the late Chief Justice Rehnquist wrote a book on civil liberty in a time of war... "All the Laws but One", referring to Lincoln's decision to suspend habeas corpus during the Civil War. In Rehnquist's book, he observed that the record of the Court is just horrible when the country finds itself in just dire straights. The Court has often handed the executive branch far broader authority than it needs, in these circumstances. As things return to a normal state, the Court then states "we didn't really mean it..." (and we wouldn't do that again...")

In deciding our case specifically, the Court was not making wonderful habeas law. But there are times when we as a nation need some time. My client is a United States citizen, sitting in a jail indefinitely, unsure of the day he will see a courtroom, let alone the light of day. It is hard to be patient under such circumstances.

The Talking Dog: As to the third point (relying on Congress's Use of Force Resolution) I tend to think that the Court was on thinner ice... Congress cannot, by statute, fiat, resolution or otherwise override the Bill of Rights (or so we all foolishly thought). Rather than a "clear statement" from Congress, I am wondering if the critical distinction and issue on this wasn’t actually the fact that for Quirin to attach as meaningful precedent, an actual, formal declaration of war against a specific enemy nation, rather than a vague pronouncement of "force necessary" to prevent future attacks, was required... In other words, this gets back to my original point... are we not, essentially, stretching the holdings beyond the breaking point by having a court declare what amounts to, whether called it or not, a law enforcement action by the military, against a private, by definition non-state criminal group, elevated to a war, and then elevating a rather vague declaration by Congress to prosecute that law enforcement action? Would you find "Orwellian" to be an apt description for what the Court is holding here?

Andrew Patel: Obviously, every nation has a right to act in its own self-defense. As to our sending troops to Afghanistan, there is no serious scholarly debate that the action against the Taliban and Al Qaeda there was not an act of national self-defense. And Congress authorized that action.
Morphing that specific authorization into an undefined blanket authorization for an unlimited international war against terrorism, and then using Quirin to validate extra-judicial detention, shows us the danger of straying from the plan. The Constitution is that plan-- the outline of our government. When we stray from it, we do not serve anyone well.

The Talking Dog: I think the final point is by far the most troubling aspect of the Court's decision (at least to me). The 4th circuit attempts to distinguish the Milligan case by contending that the detainee there, Mr. Milligan, was associated with "a secret society" somehow distinct from the Confederate Army, which was "the actual combatants". Of course, one might argue that, in this case, the "combatants" were the arguably illegitimate Taliban government, which we have toppled, and by analogy, the Al Qaeda criminal organization was the equivalent of a CIVILIAN "secret society" as in Milligan. Again, I wonder if you find that to be at all a meaningful distinction, and how you would argue that it is not a meaningful distinction (other than in terms of Orwellian verbiage, perhaps)?

Andrew Patel: I found the plurality opinion in Hamdi by Justice O'Connor and the Court's willingness to overlook the Milligan case to be... troubling. Milligan is a magnificent piece of work. The Fourth Circuit's decision is continuing the earlier harm we talked about-- that is a sad day.

Milligan talked about the basic rights we have to the process of law.
We look forward to the day our client is INDICTED... we ASPIRE to a federal indictment, and have argued that. As a defense attorney, of course, we usually try to avoid that (or at least, minimize its impact once it happens).

Whenever you have a court make constitutional rights optional, it weakens all of us. If a criminal prosecution is just a matter of presidential discretion, then where do you draw the line? For example, does the freedom to practice a religion an elective? Can the President tell all business that you must display a crucifix in your store, because he has determined it necessary?

Once you go down this uncharted path, you do not know where it will end. We need to get off of it, now. It may be seemingly convenient to give the President these kind of powers, but does it really make us any safer? Does this make sure that the rights of liberty and freedom that American people have died for are protected? Frankly, we denigrate the memory of those who died to preserve our freedom by doing this.

The Talking Dog: I believe I recently heard Judge (now Chief Justice) Roberts say at his confirmation hearing, when asked about his decision in Hamdan, I believe, that "the Constitution is not a suicide pact", and words to the effect of in this time of war and national crisis, we must give the President extraordinary powers to combat the current unique and extraordinary threat that we face. How would you respond to that kind of sentiment?

Andrew Patel: Well, my response to such a sentiment is "shame on you". Someone with that sentiment does not believe in the strength and vitality of our constitutional process. The Constitution is itself a magnificent plan, and it has been so rarely amended (and even one of those amendments was reversed by another amendment!) The people who wrote the Constitution were well aware of what it meant to have the nation's existence threatened.

They did envision extraordinary circumstances-- but they limited the power only to Congress-- Congress and not the President-- to suspend habeas corpus-- and only- ONLY-- in the event of invasion or insurrection. The framers of the Constitution fought and died for the process. They did not put an "extraordinary powers in the President" rule in the Constitution. We should not so quickly make short work of the Founding Fathers, who knew what they were doing.

There are ironies here. Many are willing to quickly give up freedoms. It is ironic that it was almost 200 years to the day before 9-11 since a foreign enemy soldier had set foot in this country proper. It was not surprising that there was a panic reaction. I think we need to take a step back. We can, as a people, deal with this. We are more than the sum of our fears. A difficult situation is no reason to re-write the very basis of how we deal with crises.

Terrorism is a term now thrown around very loosely. Those dealing with it a long time, such as myself in my criminal defense legal practice, understand it. Terrorism is not mass destruction. It is political crime. It is crime designed to achieve political change. The motivation for it is political in nature.

Looked at that way, if we do end up changing the way we live our lives and run our laws because of the terrorists, have they not achieved their goals?

The Talking Dog: Is there anything else you think my readers should be aware of with respect to Mr. Padilla's case, or anything else you have learned in the course of this representation that you think we should know?

Andrew Patel: There is some good news. Members of the United States military are extraordinary and honorable people and we should be proud that they have chosen to defend us with their lives and taken an oath to do so. One of the eye opening things for me personally has been becoming familiar with military law and working with our own military. I have come to have tremendous respect for the servicemen and service women with whom I have worked. They have taken an oath to defend the entire Constitution, not just Article 2 (that gives power to the Executive Branch). And they are prepared to make the ultimate sacrifice, and we are very fortunate that we have men and women like that. This is not what you'd necessarily expect from someone whose client is held by the military. It is no small significance that the loudest opponents of the torture memoranda were the Judge Advocate Generals (the military lawyers).

The Talking Dog: Mr. Patel, I enjoyed that immensely, and I have no doubt my readers will enjoy reading it. You have been most generous with your time, and I thank you.

My interview with co-counsel for Mr. Padilla Donna Newman is here, my interview of attorney for "Australian Taliban" and Guantanamo Bay detainee David Hicks Joshua Dratel is here and my interview with attorney for alleged OBL's driver and Guantanamo Bay detainee Salim Hamdan (in whose case the Supreme Court has just granted review) Neal Katyal, is here.

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January 5, 2006, When there just are no rules...

One gets cases such as the "up or down vote on whether we are a dictatorship" a/k/a Padilla v. Hanft, or whether an American citizen picked up in the United States can be held at the sole whim of the President.

The Supreme Court granted the government's request to move Mr. Padilla from military to civilian custody, hinting as this LaLa Times piece suggests, that the Government's cynical move of indicting Padilla after refusing to do so for years somehow "moots" the case.

We'll see...

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January 4, 2006, Oy vay s'mir...

Not good news out of the Middle East: Israeli PM Ariel Sharon has suffered a cerebral hemorrhage, and is fighting for his life at an Israeli hospital. Deputy Prime Minister Ehud Olmert has assumed the duties of acting Prime Minister.

It doesn't look good. Certainly, Sharon's political life is probably over. Hopefully, he'll recover from this, though the condition he is in sounds grave.

The Unseen Editor forwards these items that some in Gaza fired shots in the air in celebration or are otherwise gleeful... perhaps these are "isolated extremists..." and then again, maybe Hamas isn't the frontrunner in upcoming Palestinian legislative elections...

This is a blow to Israel, and a blow to the world at large. Sharon's unilateral pullout from Gaza took cojones, as did his withdrawal from the Likud Party he helped found to proceed with the peace process. Well... we'll hope for the best.

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January 2, 2006, We monitor our own comments... too...

Suggested in comments to the last post, Gary Farber has been on a tear on the issue of the recent revelations concerning the machinations of Our Government 's efforts to protect us from swarthy jihadist bogeymen (largely of its creation) with respect to its evidently iimproved technical abilities to monitor virtually every communication that can be monitored... this is just his latest installment.

Scary s*&^. And given the lethal combination of (1) a corrupt to the core ruling party in control of all branches of government; (2) a complicit press, (3) a moribund opposition party, (4) gerrymandered districts, (5) less than transparent voting machines and (6) an apathetic electorate... I'm not sure we can do much about it...

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January 1, 2006, The President sends his New Year Greetings

In San Antonio, Texas, at a photo-op with wounded troops from the Iraq campaign (who otherwise don't officially exist) the President staunchly defended the recently disclosed practice of wire-tapping, eavesdropping, listening in and otherwise God knows what associated with domestic telephone calls. Unsurprisingly, the President insisted that it was only international calls to the United States from known Al Qaeda operatives, and that "real Americans" had nothin' to worry about, unless they were gettin' qollect calls from Qaeda!

This would be somewhat reassuring to crusty gadflies (like m'self) who are coming to mistrust this Government's stated desire to heed, protect, or even acknowledge the existence of our basic liberties-- something about holding American citizens for years and years in camera (and ex cathedra) without due process of law might just do that-- if there were some means of verifying the President's assurances (which right now, there is not).

That said, given the incredibly relaxed procedures associated with... (before clicking -- a warning about the link-- its to the Justice Department, which, like the rest of the Government, presumably has illegally inserted "cookies" to monitor the web activities of everyone unwary enough to surf in...) of course, if you're reading this blog, you've probably been monitored so long that the Government is running out of bandwidth to track you!-- FISA (the Foreign Intelligence Surveillance Act)-- which even permits nunc pro tunc warrant applications for after-the-fact sanitizing of wiretaps and the like if "exigent circumstances" didn't permit a pre-wiretap warrant application... one wonders why the need to evade FISA? The judges on the secret court responsible for issuing warrants almost never turn down the Government's requests (as far as we know)... and surely, if there were an issue about it, surely the Government could... as noted... do the surveillance, interception or whatever, and argue about its legality later in a higher court, as there is an appeals process for denied warrant requests. Frankly, no one would fault a Government taking every step possible to both protect us and try to ensure that Constitutional protections are maintained...

Certainly, a Government committed to its multiple duties of protecting us from our foreign enemies and protecting us from its own overreaching would have no problem doing that... Releasing the details of its warrant requests to a highly secretive court, all of whose judges have super, ultra-top secret security clearances, hardly "tips off the enemy" now does it?

Unless, of course, the enemy isn't Al Qaeda at all, but much closer to home...
No, no... that's just crazy talk. One of my New Year's resolutions is not to take out my tin-foil hat until at least February...

What can we say? This President models himself after (warning: the White House web site-- see above re: cookies...) St. Ronald of Santa Barbara. Well, St. Ron famously told us the terms of his dealings with the Evil Empire TM in the course of his negotiations over arms control: Trust, but verify. As unsatisfactory as it is, I would nonetheless accept the conclusions of an independent investigation by the courts set up for that purpose under FISA, or possibly by something allegedly non-partisan like the Senate Intelligence Committee... if the Government cooperated, for a change, and could demonstrate to the satisfaction of anyone outside the Bush Administration (and the paid right wing punditocracy and blogosphere) that, in fact, the eavesdropping program really was narrowly tailored toward A.Q., and not John Q. Public, or, say, political enemies...

I assume that the usual pattern will apply: staunch denials by the White House (and support by the paid right wing punditocracy and blogosphere) followed by defections in the Congressional delegation realizing that they are up for reelection and the President isn't, followed by some level of some kind of half-assed highly partisan investigation, concluding that while some mistakes were made, nothing serious was done, and the American people can know that we have gone (as of today anyway) 1572 working days without a major terrorist incident on American soil...

Happy New Year, everybody!

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