One is hard-pressed to see the logic in the Department of Homeland Security's decision to slash homeland security spending to... wait for it... New York and Washington (and to a lesser extent because it got so much to start with, New Orleans) so that more funds are available to "smaller cities" (to wit, places more likely to vote G.O.P.) Oh wait... the mid-terms are in November, D.C. doesn't yet have a House seat (and when it does, its going Democratic) and New York, while it has some Republican House members (including that kvetch Peter King), none are likely to be ousted...
In short... the Bush Administration's priority remains to use Homeland Security spending the way it uses all spending: as bribes for votes in toss-up districts and rewards for loyal members, who are, of course in "smaller cities", damn the odds of a terrorist strike in such places being non-existent compared to New York and Washington.
Another cynical play. Look for the Democrats to fail to pounce on this effectively (btw, if you see or hear the words "Chuck Schumer" btw, you know we've already lost it.) The issue is not the funding itself; the fact is, while it would be nice to have a fully funded homeland security apparatus, the reality is one of two possibilities: (1) we actually aren't going to be attacked again, and/or (2) if we are going to be attacked again, terrorists will somehow find a weak-spot in the system regardless of how much money is spent, as no system can ever be 100% effective against everything. But some level of reasonable precautions are appropriate, as New York remains a perennial possible terrorist target (while Peoria or Omaha simply do not, although they will get the money.)
No-- the issue is much, much broader: Republican recklessness with taxpayer money. The fact is, if money is to be taken away from New York and D.C.'s terrorist preparedness, then it should only because we are not spending the money at all, and not simply to shore up marginal Congressional districts.
Don't look for Chuck Schumer or Hillary Clinton or Nancy Pelosi or Harry Reid to frame the issue, though... just don't.
In an interesting response to the loathsome Rev. Fred Phelps of Kansas, who enjoys traveling around the country and disrputing funerals of fallen servicemen as his own special way of gay-bashing, the President signed a law restricting protests of military funerals today (Memorial Day).
At a knee-jerk level, one wonders why Mr. Phelps shouldn't just be picked up, right now, and shipped to the brig as an "unlawful combatant" as were Jose Padilla and Saleh Al-Mari... frankly, Phelps is probably doing more to undermine the morale of American troops and their families than all of the detainees held in the brig in Charleston, Guantanamo and the CIA ghost prisons combined, and given that the Supreme Court has said that all that the President needs to do is say anyone he feels like is an unlawful combatant, and it's sayonara... Obviously, as Phelps is a White man and a self-described Christian activist (as opposed to a Moslem, or even an Hispanic gang-banger converted to Islam), it would be impolitic to do this. No. no...
So, "the better way" to combat "the Reverend" Mr. Phelps is deemed to be a broader ban on protests at all military funerals. Certainly, Congress can impose reasonable "time place and manner restrictions" on speech at federal facilities, such as national cemetaries as in the bill... query whether it can go further and do so at all funerals, just because the decedent was in the military... I don't know. I personally suspect it exceeds Congress's power, which, believe it or not, is actually limited by the Constitution (and the President's power is even more limited... who knew?) I'm sure the Rev. Phelps (or perhaps the ACLU) will sue to test the law, and we'll find out that way.
Obviously, Mr. Phelps is a disgusting human being (and indeed, one questions if such a monster is even human.) The thing with free speech, though, is that, in order to protect "the good kind" of speech, we have to be willing to put up with "the bad kind"-- insults, distasteful stuff, hateful crap... yes... the kind of hateful crap that spews from God damned Fred Phelps.
It's shall we say ironic that on the day that we honor those who have fallen to protect our freedoms that we peel away one of the most basic of our freedoms.
And thus I arrive late in the all-important discussion of "net-neutrality," or, specifically, legislative resistance to an initiative from telecoms to impose additional tolls on the use of the internet for their own bottom lines at the expense of the rest of us; in this case, a New York Times piece by Adam Cohen lays the issues out succinctly and in easy to comprehend terms. Short answer: AT&T and other telecoms feel that they are not making enough money, even though people like you and me already pay for (1) a web hosting service, (2) an ISP provider, (3) high-speed internet access, and, when using dial up, (4) the phone call, because telecoms have come up with what amounts to a blackmail scheme from which they can profit, to wit, "You pay us more, or we'll slow down (and maybe even stop) transmission of your crappy (1) political, (2) non-profit, (3) personal, or (4) otherwise NOT WELL CAPITALIZED web-site, while speeding up those who can pay the internet-protection-money". Rarely is an issue that simple, but in this case, telecoms, who have profited handsomely from the increased internet traffic and the ability to dispense T-1's, DSLs and other high speed service-- like their patron saint, St. Tony of Soprano-- have spotted a big-time profit opportunity, and damn the rest of us.
So, I come late to this party... Those interested may want to join the efforts of Move-on.org who has a petition up on the subject; obviously, it's as if this measure were designed to screw groups like Move-On (you think?), though in a rare fit of solidarity, even the Christian Coalition has seen the problem here in being denied access to the internet unless protection money is paid (and when we say "protection", we are certainly not referring to your privacy, which the telecoms will hand over to the government faster than you can complete a local phone call.)
At this point, the first stage of the Internet Protection Racket Act of 2006 has gone down in a House Committee by a 12-3 vote, but that will not be the end of this measure. Note that when it comes to their first love because of the ability to deliver money and junkets and meals and drugs and whores other goodies (that would be well-capitalized corporate America) the Republican leadership is all too willing to sell out its second love (that would be religious conservatives, as emblemized by the Christian coalition), who merely deliver them votes. So... finally something that we can all agree on, eh?
Speaking of "better late than never", in "other hobby news", your talking dog
completed the Keybank Vermont City Marathon in Howard Dean's hometown, bringing up the rear of the field, plowing through an un-Vermont-like 83-plus degree day (and some sadistically "rolling hills") to do it. This one represents your talking dog's 13th finish of a marathon (and 7th different state, plus arguably D.C.). I also discovered that Burlington, VT is a much farther drive than I thought it was...
Anyway... enough about me... get out there and
An adage ignored at their extreme peril by Enron poobahs and defendants Kenneth "Kenny Boy" Lay and Jeffrey Skilling at their trial in Houston, where each was convicted on virtually all of the charges associated with their role in the spectacular collapse of Enron. The jurors felt that each did himself a disservice by taking the stand: Kenny Boy's childish outbursts showed that he was a control freak, not the kind of guy (like, say, someone else we know) who would just sit there obliviously content to just accept whatever he was told, while Skilling's detailed bean-counting knowledge on some points made it inconceivable to the jury that he was as in the dark on others as he suggested.
In short, these men were brought down by their own egos and hubris-- they thought that they could fool a jury when all of their cards were laid (as it were) right out on the table, as opposed to back when they were fooling Wall Street, investors, regulators, etc. when they could keep their cards close to their vest.
The usually affable good-old-boy Lay was rattled under prosecution questions, which meant that he was either (1) guilty as sin and an awful liar, or (2) far too stupid to have amassed the millions of well-timed dollars he did at the expense of... well, everyone else in the country. And the jury wasn't buying (2).
Most peculiar: an "obliviousness" defense can be proven one of two ways: (1) either the defendant (and others around the defendant) testifies as to his or her obliviousness, and the jury believes them, or (2) it's proven "circumstantially", preferably by pointing out that the government's witnesses can't possibly know the state of knowledge of other people, especially if they themselves didn't communicate that knowledge directly. In this case, (2) was the way to go, as (1) required an incredibly dangerous assumption that a dozen Texans, who doubtless knew people who were mortally screwed as a result of Enron's collapse, would accept the word of two of the worst corporate criminals (in raw financial terms) in the history of the world. But it looked like some egos got in the way... again... It's odd that someone like Kenny Boy-- in the end just a petulant child-- would be best buddies with... someone else we know... but I guess bid'ness is bid'ness...
Speaking of which, based on my limited knowledge of the timing of these things, I'm thinking Kenny Boy and Skilling will be able to stretch out post-trial motions and appeals by maybe a year, year and a half... in short, they'll both likely have to check into a Club Fed before the end of 2007, and as their pardons are pre-dated January 19, 2009 (at least Kenny Boy's is)... well, let's just say that I hope, for their sakes, that their prison's golf pro doesn't ruin their games, the way he has many another ex-executive's...
Thomas Wilner is a partner in the Washington, D.C. office of the law firm of Shearman & Sterling. Mr. Wilner represents twelve Kuwaiti nationals who are, or have been, detained by the United States military at Guantanamo Bay, Cuba. On May 15, 2006, I had the privilege of interviewing Mr. Wilner, by telephone. My interview notes, as corrected where appropriate by Mr. Wilner, are below.
The Talking Dog: In my own case, the answer was "across the street from the WTC"; the answers I get are always interesting... the first question is "Where were you on September 11th"?
Thomas Wilner: Everyone indeed has an interesting answer. In my case, on the night of September 10th, I was on an Aeromexico flight to Mexico City, and was then supposed to travel on to Culiacan on the West Coast of Mexico, a "vegetable capital", where I was to meet with a number of Mexican clients and U.S. Dept. of Commerce representatives. The flight was 11 hours late. Eventually, I got to Culiacan, and met my Mexican clients, who told me "the towers were blown up". On September 11th and 12th, I was in Culiacan with Mexican clients and Commerce officials, and we watched the 9-11 events on TV. There was a great deal of fellowship-- the Mexicans were appalled and sympathetic. At that time, of course, no planes were flying in the United States, so I got a flight to Tijuana, walked over the border into San Diego, and waited two days before I could get a flight down to Washington. My memories are about how sympathetic the Mexicans were...
The Talking Dog: Do you find it a tad ironic that the President will be talking about moving National Guard troops to that border tonight?
Thomas Wilner: Ironic indeed...
The Talking Dog: I understand that you were among the first (if not the first) attorney to bring a habeas corpus case on behalf of a Guantanamo detainee, in your case, twelve Kuwaiti nationals in a case called "Al-Odah v. United States". Can you tell me the current procedural status of that case... am I correct it is fully briefed and argued and awaiting decision by the D.C. Circuit Court of Appeals?
Thomas Wilner: At the end of February or March, 2002, the Rasul case was filed. By May 1st, Al-Odah was filed. The Center for Constitutional Rights filed Rasul, as a straight habeas corpus case. We styled our case somewhat differently, alleging different civil causes of action. Those were the original two cases that were decided by the Supreme Court. The Rasul guys are now out, except for David Hicks, who is one of the few guys charged before a military commission, and he is really now part of the Hamdan case challenging the validity of the military commission. In June of 2004, the Supreme Court ruled in our favor, finding that the federal courts had jurisdiction to hear complaints by detainees at Guantanamo. The first thing the government did after that decision was insist that the detainees were not entitled to lawyers, or that if they were, the lawyers could be eavesdropped on "for national security" purposes. Judge Kollar-Kotelly of the District Court in Washington, D.C. held that the detainees had an absolute right to unmonitored communications with their lawyers. The government then moved to dismiss the cases, arguing that, even if the detainees could go to court, they had no substantive rights that could be vindicated in court. By that time, thirteen cases had been filed. Judge Joyce Hens Green ruled in eleven of those cases, finding that the detainees had the constitutional right to due process and had been denied that right. Judge Richard Leon ruled in the two other cases and found the detainees had no rights. Those two decisions are now on appeal to the D.C. Circuit Court. Even Judge Green bought in, to some extent, to the argument that we had to show that detainees had some constitutional interest or constitutional rights as a precursor to get habeas relief. This is not the case: habeas simply compels the government to show a reasonable legal and factual basis for the detentions, and indeed, habeas pre-dates our Constitution. We believe we won on the merits at oral argument in September of 2005, and then the Government got Senator Graham to introduce and help pass what became the Graham Levin Amendment. The Court of Appeals sua sponte directed supplemental briefings on Graham Levin issues, which we have filed. These issues were also raised in Hamdan. Though we had asked the Court of Appeals to hold off on a decision until the Supreme Court decided Hamdan, as Hamdan would almost certainly be instructive, they wouldn't hold off. In any event, we first submitted a 15 page brief, then a 60 page brief. The appeal was then argued on March 22nd. The Court of Appeals case is fully submitted, and in the end, will likely be decided after Hamdan anyway (which should be decided by June).
The Talking Dog: Of your Kuwaiti national clients, I understand that a number have been released, and they have some legal issues pending back in Kuwait?
Thomas Wilner: Six have been released to Kuwait. Kuwait will not hold anyone more than a limited amount of time without charging them under their own laws. They can be prosecuted there more easily than here, but there still has to be some evidence worthy of prosecution. And they cannot be convicted without a fair trial. All are on bail, awaiting trial, and based on what we know, we would expect them all to be acquitted. By the way, there is no rhyme or reason as to why those six are released and the other six are still held. It's supposedly based on classified evidence, but again, there seems no rhyme or reason. For example, one still held at Guanatnamo, Abdullah Al Kandari, is a great guy, and a member of Kuwait's national volleyball team... he is held because supposedly an alias of his name appeared on a hard drive two years after he was detained! He has no alias... He was also accused of wearing a Casio watch which they say terrorists wore.... though such a watch was also worn by the military's own Muslim chaplain, Mr. Yee. And Omar Amin was alleged to be in Bosnia... well, he was in Bosnia, helping out as head of the Bosnian national relief agency. [Editing note: Since the interview, it appears that at least five Kuwaitis previously held at Guantanamo and released to Kuwait have been acquitted by a Kuwaiti court.]
The Talking Dog: I also understand that you were among the first (if not the first) attorney to travel to Guantanamo Bay to meet with your clients. Can you tell me your impressions-- or Guantanamo Bay, what you observed, and give me a brief impression of some of your clients (their names, something about them or their cases)? Am I correct that not one of them (1) was picked up by American forces "on the battlefield", or (2) has been charged with a war crime? How have they held up since you first met them?
Thomas Wilner: You are correct that none was picked up by the United States, or on a "battlefield" and none has been charged. Our best information is that all were turned over for bounties. My general impressions are laid out in the Los Angeles Times piece. The place is Kafkaesque. It is quite dry... it could be beautiful. The military escorts are very nice, very polite and friendly... It seems incongruous to have a place so evil, such an affront to American principles, to be introduced by such courteous soldiers, disguising just how evil it is.
The Talking Dog: I understand that there have been complaints that the discipline system at Guantanamo involves progressive removal of religious items for various infractions, ranging from prayer beads and prayer mats to pants (to prevent prayer while being in the immodest position of not being covered head to toe), though a Koran is left even with the most recalcitrant prisoners... Are you aware of these complaints, and do your clients have these complaints?
Thomas Wilner: The complaints I am aware of concern comfort items, not religious items per se, but things like blankets, toothbrushes, long pants...what I would call comfort items. I don't know about the allegations of religious items as such, certainly some detainees have complained that removal of pants is intended as punishment by interfering with prayer... Certainly, there have been reports associated with the abuse of the Koran... as far as I know, those incidents (that is, abuse of the Koran) have stopped. Though there have certainly been what I'll call "freewheeling interrogations", which may have involved this kind of thing...
The Talking Dog: I understand that in some cases, it has been alleged that detainees have been encouraged not to cooperate with their own attorneys, in particular when their attorneys are Jewish. Can you comment on this?
Thomas Wilner: That issue came up with me. Interestingly, it didn't get that much play. But my clients were told by interrogators not to trust their lawyer "because he's a Jew" ”. An interrogator told him "why would you trust him-- he's a Jew from a large Jewish law firm-- that represents the State of Israel--"
The Talking Dog: Hey, you just picked up another client!
Thomas Wilner: Anyway, this was printed by Nick Lewis in the Times... “Don’t trust him, he's a Jew,” but it didn't seem to get that much traction. But one of my clients, Fayez al Kandari, told a female interrogator, code named "Megan" "I don't care who or what he is-- there are good people in every religion." That was his answer, from the depths of Guantanamo.
The Talking Dog: Are any of your clients still on hunger strike? How many were on hunger strike, and what is their current status?
Thomas Wilner: None are still on hunger strike, as alluded to in the L.A. Times piece. I am going down next Sunday (May 21)... we go down regularly, around every month, as it’s the only way to see how our clients are doing. They have been forced off the hunger strike as I wrote in the L.A. Times, by the methods described, including force-feeding in the special chair.
The Talking Dog: Others have told me that at one time, the medical personnel were comparable to veterinarians, but they brought in serious professionals when the hunger strike began. Can you comment on that? Also, can you comment on the allegation that the hunger strike is alleged by the government to be a tactic per "the Manchester document"?
Thomas Wilner: Well, Fawzi (al Odah)'s impression was that they did indeed bring in better trained people later on in the hunger strike. He went on hunger strike last August... he lost a great deal of weight, and after some forced measures, he regained some. He does say, they changed the medical team at some point. He notes that he observed the chief doctor, when he was finally forced off the hunger strike, crying. As to the Government's calling the hunger strike an Al Qaeda tactic, were Gandhi's, or Bobby Sands' hunger strikes Al Qaeda tactics? This just gets too ridiculous for words at some point.
The Talking Dog: Let me turn to Fawzi al-Odah and the interview he gave to the BBC, via you, which is the only interview of a detainee while still at Guantanamo of which I am aware. I heard and read remarks critical of your role in that interview from a State Department spokesperson. I should point out that I heard an immediate reference to "the Manchester Document" indicating that all supposed Al Qaeda members are trained to complain about their detention conditions... I'd like you to comment on that, and if you can tell me if there have been any repercussions of that interview, such as a change in treatment to Al-Odah or your other clients, or if you have had other repercussions from the government of any kind?
Thomas Wilner: There have been no repercussions to Al Odah. I should point out that we have no knowledge of conditions down there until we get down there,; there is no access or other communication with the outside world, so we do try to go down once a month. As to me, there have been some consequences, as the government tried to prevent my access to my clients. At one time, the government refused to let me down after the interview, insisting that I somehow violated rules by doing it. Of course, the government has a system of reviewing notes, and if the information in them is not classified, the notes can be disclosed publicly. The government claimed I improperly brought something in-- to wit, the questions. But in this case, I simply added interview questions to my legal outline. So I did absolutely nothing wrong. The government backed down.
In any event, we negotiated, and the agreement now is that, before I conduct any such interview in the future, I notify the government so it has an opportunity to seek a court order trying to stop me from doing so.
The Talking Dog: Had anyone besides the BBC ever asked you to do anything like the Al-Odah interview? Do you know if the BBC asked other attorneys to do it, or if other news organizations did?
Thomas Wilner: As far as I know that's the first time anyone has done it. John Manel of BBC came up with the idea. As far as I know, no one else has done anything like it.
The Talking Dog: One thing that interests me about Guantanamo is how little it seems to interest other Americans in general, or the media here; by my limited observation, there is far more interest in it in the Middle East (where most of the detainees are from) and in Europe. In fact, with limited exceptions (Jane Mayer of the New Yorker, Charlie Savage of the Boston Globe, Murray Waas of National Journal, maybe NPR, the Washington Post and New York Times once in a while) there just isn't that much interest here. Do you agree with that assessment? To what extent do you believe the government's decision to "offshore" Guantanamo supposedly "beyond the reach of law" has affected that or contributed to it, or do you not think it matters where the detainees are venued? Are Americans just too self-absorbed and happy to think "the President is protecting me from bad people" to even care about any of this?
Thomas Wilner: When at some future time we look back at the history of Guantanamo, this will be just about the most interesting question. Why didn't it play? Why weren't more people interested? As you know, there was a great National Journal piece on Guantanamo. And the Seton Hall reports. But the U.S. public is continually told "these are dangerous people" and stops thinking about it. Two and a half, three years ago I talked to a social scientist at the University of Chicago about this, who concluded that overall psychological conditions are kind of like during the rise of Nazism... people are afraid, and don't know what to do.... They suspect some things are being done that aren’t right, but think maybe they’re necessary ... and they don’t want to know about it. For example, 60 Minutes was all set to produce a Guantanamo piece in 2002, but killed it as "too political". The late Peter Jennings did a great piece on Guantanamo in 2004... but they buried it at 10 pm on a Friday night...
On my own reflections, as a Jewish boy growing up in this country, we like to think that things like this don't happen, we have too many checks and balances. But all the checks let us down. As David Cole has said, the detainees at Guantanamo have no domestic constituency.
The Talking Dog: Let me ask you this on the psychology. By my observation in New York, where I live, and which, if God forbid we are attacked again, will be the most likely target, by and large we have come to realize that as dangerous as terrorism might be, our freedoms are more precious, and we have to keep things in perspective. Can you comment on that?
Thomas Wilner: Certainly, I have noticed a similar reaction in Washington. New York and Washington had the immediacy-- and there was certainly great fear for perhaps a year or so... remember the anthrax attacks here? And certainly, Washington, like New York, would be the likeliest of terrorist targets. But yes, I have seen a similar reaction.
This Administration has traded on fear and hysteria. And the Democratic party has been too afraid to stand up to that.
The Talking Dog: I've read descriptions of you as "an angry man" about the injustice of all this... Am I correct that this has been one of the most frustrating experiences of your legal career? Do you see any light at the end of the tunnel here, either from the outcome of the D.C. Circuit appeal(s), the Supreme Court's upcoming decision in Hamdan, the President's growing unpopularity, publicity over the Uighurs, general political pressure or any other cause?
Thomas Wilner: The Administration keeps arguing that "we are at war"... rather than deal with substance, it stonewalls. The Graham Levin Act essentially suspended habeas corpus and relieved the government of the need to justify its detentions in court... the Administration can't do it. It has no legal basis.
In time, the hysteria will die out, and then this can, we hope, ultimately be resolved.
The Talking Dog: Are there any questions I didn't ask you that I should have, or is there anything else either my readers or the American public need to know?
Thomas Wilner: Well, I think you did a hell of a job--
The Talking Dog: Me and Browny, I suppose...
Thomas Wilner: Yes... Browny did a hell of a job, too! In all seriousness, how can people look at how the government reacted after New Orleans was hit by Katrina, and think that this government is competent to handle something as complex and difficult as the war on terror?
As the Denbeauxs' Seton Hall report tells us, most people held at Guantanamo are not even accused of terrorism. While some complain of the security conditions Moussaoui will now be sent to-- 23 hour a day lockdown and all-- he was convicted! My clients haven't even been charged! And yet while two are at Camp 4 with some human interaction, the others are in isolation for all but a few minutes of exercise a week, deprived of human conduct... and they are not even CHARGED.
The Talking Dog: Mr. Wilner, I'm sure I join all of my readers in thanking you for that fascinating interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Jonathan Hafetz,
Joshua Denbeaux,
Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, and with former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer to be of interest.
Let this be a lesson: when a world miracle like modern-day South Africa wants to host something like the FIFA [soccer] World Cup... let it. At least, that's what I come away with reading this account of violence by good old neo-Nazis in Germany threatened against swarthy football fans. Didn't see this coming? Yeah, right. Soccer... the sport where the fans (especially European fans) occasionally kill each other, right? Not much more to be said.
Ironic, of course, as Germany has gone through decades of existential angst over its own horrifying past, and seemed to have eviscerated this sort of thing. Apparently, that angst didn't make its way to the old Communist Eastern part, which has been free now for over 15 years... free to be nostalgic for those halcyon days of yesteryear... you know... that 12 year long 1,000 year reich. Skinheads, neo-Nazis and others similarly situated (believed by the German government to number around 4,000) have threatened to attack foreign fans visiting Germany who aren't, you know, the right color. (Also planned is a rally in support of Iran's Holocaust denying, Israel threatening President Ahmandidjad, when Iran plays Angola... ) All charming. I'm sure the German government is just delighted that their long-awaited international spectacle may turn into an... international spectacle.
Even more ironic indeed given that the recent [American plant] story of Iran proposing a law that would make non-Moslems [read "Jews"] wear different colored [read "yellow"] armbands... like you know who used to... is complete and utter hogwash. (Though, when the airstrikes against Iran start... who'll remember that part?)
Sport. Bringing us together. The 1936, and 1972 Olympics, and now, evidently, this 2006 World Cup. Germany and sport. Some things never change, apparently. No matter how much we wish they would.
Maybe this will all work out without racist violence. God knows, I hope it does. But I'm not sure that's how you bet.
Thus sayeth the President.
He forgot to add, "trust me." Something that less than 30% of those polled now do.
And dropping.
The thing with Karl Rove is, the man never hides his big picture. Today's WaPo treats us to the inside of Bush's Brain for a brief look at November's "Operation Hold the House and Senate (TM)"...
For one thing, as we expected, the only things Republicans care about is winning elections. In some sense, that's their job... politicians try to do a good enough job so voters will reward them with reelection. But this crew couldn't care less about delivering a product or a service-- they just want to advertise endlessly with new sizzle and get the stupid rubes to keep pulling the levers. And you can't criticize their success at it: they've managed to win six House races in a row and the last two presidencies...
Anyway, this round presents special challenges (i.e. Junior is remarkably unpopular at 29% and falling). But the GOPers think they can pull it out again, through a combination of... wait for it... (1) tax cuts, (2) immigration and (3) national security. We'll ignore the deficit, service cuts and gross unfairness of the tax cuts... we'll just pretend that any economic good news is caused only by, say, cutting the estate tax. That's the ticket. As to immigration reform, I've talked about this mixed bag: bashing Mexicans hurts a once-potent GOP growth strategy of courting Latinos; obviously, Karl feels riling up rural and exurban Whites (especially White males) may outweigh this... Maybe. Maybe not. And national security speaks for itself... perhaps we'll see some more messages from OBL somewhere along the line? We'll ignore that Dubai ports thing. Never happened. I think we can be sure of that.
Karl knows he has an ace in the hole called gerrymandered districts in the case of the House, and in the case of the Senate, a good cycle (fewer contested Republican seats up than Democrats need to pick up). So even a radioactive president may not be enough to cost them control of either house of Congress. And that would be stunning in its own right... but it shouldn't be.
And then Karl can declare victory, and figure out who he's going to rat on next, to Fitz... Anyway, I for one, welcome our new insect overlords.
This week, we jump the shark on this segment for sure by going all corporate sell-out, with one Goofy, a/k/a George Geef a/k/a Dippy Dawg, the "good-natured" suburbanite "everyman" that Disney added to the canon along with an anthropomorphic effeminate rodent and a lisping bird (I realize that Warner Bros. also featured a lisping bird, but that bird, to his credit, is affirmatively mean-spirited, perennially pithhhhed off, and can't hide Mel Blanc's underlying New York accent... and let's not even go near Warner Bros. house rodent...).
Goofy is actually quintessentially "American" (as Karl Rove would define the term): he is "optimistic," he is "fun," he is easily satisfied with good-sounding explanations even if the reality of them is somewhat more complicated, he is "happy-go-lucky" (mostly because he is quite lucky to be alive, let alone apparently successful, given just how fundamentally incompetent he is at almost all aspects of being alive), and what was that one again.... oh yes: he is incompetent. Remind you'all of anyone else named George? Anyway...
Americans find this amusing... not in the sense that we laugh at the great Jackie Chan, for being apparently klutz-like while actually in fact being a brilliant acrobat, but because he so wonderfully reminds us of our self-satisfied selves. The Goofster... just doesn't bring much to the table, other than "a sunny disposition," and yet, that seems to be enough. Our system is so forgiving (at least if you're from the right breeding, and Goofy appears to be an Ohio Wirehaired Whitebread), that a basic command of our official language (query if you even need that?) and "the right attitude" would seem be enough to assure one a satisfying bourgeois lifestyle.
America: what a country.
The senate passed two interesting measures, yesterday, including one making English "the national language" (at least of official business) and a murkier, harder to describe amendment, seemingly at odds with it, proposed by Senator Ken Salazar (D-CO), making English the national unifyinig language and guaranteeing some multilingual services.
Funny... we've gotten along for over 200 years now, in English, without the need for the "in your face" aspect of "an official language" (the way, perhaps, that German is the official language of an EU member or two... and yes, I mean what you think I mean.) But I guess, a wedge issue is a wedge issue. The Iraq thing means the Iran thing isn't playing so well, the gay bashing marriage ban is out there, but just doesn't have the legs to undo a 29% approval rating... so...
I guess the beauty of the immigration thing is that there's no need to sugarcoat: there are nativist elements in the Republican Party who just feel there are too many Mexicans and other Latin Americans here (illegally or otherwise) and that this is an issue they can run with come Election Day.
I suppose we'll see how los elecciones turn out este novembre.
I was kind of wondering what the new initiative by Karl Rove the President on "immigration reform" was about... Ginning up a new wedge issue to hold Congress? Something to do with Mexican domestic politics? A sudden bout of concern for a real issue? And why do it at a time when approval ratings appeared to be plummetting, and the little support the President had left, to wit, among his own base, might be eroded by being "soft on Mexicans"?
This morning's New York Times gets right to it, of course: it's about the contracts. That's right: billions in contracts for a "virtual fence" (as opposed to an Israeli style fence fence, or perhaps to "supplement" it) involving lots of high tech gadgets that will cost a fortune, enabling much cash which can make its way into brown paper bags and numbered Swiss bank accounts to be generated. And the usual suspects (Lockheed Martin, Raytheon, Northrup Grumman... can Halliburton and Bechtel be far behind?) are lining up at the trough.
Why did anyone think it could be anything else? I must say, in all the May sunshine, it even had me confused for a while. With this gang, it's always "follow the money"... until the eventual rathole... which is always somewhere.
In the "if we remain a free and open society, the terrorists will have won" department, we give you...
Item the first: the release by the Pentagon after 4 1/2 years of surveillance tapes supposedly showing American Airlnes Flight 77 crashing into the Pentagon on September 11th (which, while nominally in response to Judicial Watch's Freedom of Information Act request, is actually a response to this cult classic Loose Change and other 9-11 conspiracy theories now making their way round the internets.)
Amazingly (o.k., not so amazingly... it's called "high gas prices, Katrina and a 29% approval rating") we seem to have turned the nation back to where it was during the Clinton Administration, when Fox's signature show was The X Files (as in "trust no one... especially the Manson Bush Family...") only to be replaced by the post 9-11 Twenty-Four (i.e. torture by the always trustworthy Government is always justified, as long as it's entertaining.)
Well, finally people are beginning to question the "official story" of 9-11. While I have some doubts about aspects of the conspiracy theories (e.g., I believe that an American Airlines plane actually did crash into the Pentagon, for example, and am quite certain that large airplanes crashed into the WTC, being across the street from it and all at the time), I must say that the 9-11 Report, for example, left one cold in the convenient details it omitted (such as the extensive role of the Saudis in providing aid, comfort and support, especially financial, to al Qaeda, or the fact that incompetence did not go around evenly... while the Clinton Administration's performance was less than perfect, the Bush Administration's performance was downright disastrous.)
So... people are finally starting to... ask questions. Hence, data that should have been released years ago is finally trickling out. Which brings us to...
Item the Second: The Pentagon also released the fullest list of Guantanamo detainees to date as part of its slow-as-molasses compliance with a court order in a suit brought by the Associated Press under the very same Freedom of Information Act. While much of this information (though not all) has been previously disclosed or at least surmised, the Pentagon keeps issuing slightly more comprehensive reports on this subject. As such, one certainly wonders if the latest report (around 18 pages) will be the last one.
Interestingly, really supposedly high level Qaeda players, like alleged 9-11 mastermind Marvin Bush Ron Jeremy Khalid Sheikh Mohammed aren't on this list, presumably because they are off being tortured at CIA ghost prisons, or perhaps because they have already been tortured to death, or perhaps because they may be out acting as intelligence assets... or maybe because they were never really captured in the first place? Who the *&^% knows? We'll have to pull more teeth to get those answers...
So... we have a Bush Administration that insists on telling us "it knows better" on just about everything (led by The Decider in Chief (TM)). A Pentagon maniacal about controlling information, from embedded journalists, to this week's long overdue disclosures... We seem to learn more details daily on the extent to which said apparatus which says its protecting us is, in fact, taxing us (well, the lower 99% of us, anyway) and using our tax money to spy on us... All at the same time it insists on knowing our activities, it is hellbent on not telling us about its own...
All seems kind of bass ackwards, no?
The President made a relatively rare prime-time speech and told us all about his plans to deploy 6,000 National Guard troops for border patrol duties, along with some other policy proposals associated with immigration, including the vaunted "path to citizenship" (a/k/a amnesty for illegal line jumpers), and a guest worker program.
Given the perverse way American electoral politics works, the man with the approval rating at 29% and dropping having selected an issue where his own position ("cheap, easily exploitable labor") may be at odds with his eponymous "base" (a/k/a "its bash Mexicans season") may actually help a few of his own party members hold on to their seats in November. Even though, on its face, it certainly looks like he's "alienating the base."
6,000 invisible Guard troops to assist guarding a porous 2,000 mile border seems in the same league as, oh, an occupation of a country of over 25,000,000 with around 120,000 or so troops... i.e., inadequate for the task at hand. It seems to be more of a politically expedient window dressing move that won't help stem the tide of the swarthy masses of cheap agricultural, construction and service workers... though, doubtless, should we have another Katrina type situation, its nice to know that, on top of Guard troops already deployed in Iraq and unavailable to us, more will be on the Southern border... and unavailable to us.
In a vacuum, to be honest, I probably can't quibble with these particular proposals; in a country where illegal workers represent somewhere between 5 to 10% of the workforce (more in some localities), obviously, this is an issue. But given the ongoing problems in Iraq (i.e. its mounting human and financial cost), the war on terror, the budget deficit, the trade deficit, the continued health-care... issues... of tens of millions of Americans, and numerous other priorities I could name... one must ask... is this really the biggest problem the country is facing, worthy of "spending that political capital," which, at 29% approval and dropping, seems a tad scarcer than it once was... I don't know... Maybe that potentially pending indictment is finally starting to rattle Karl...
And so this week's segment marks a return to Saturday talking dog blogging. We bring you a sort of cyborg talking dog monster, Dynomutt, who, in honor of Air Force General Michael Hayden, serves his master Blue Falcon (a/k/a millionaire Radley Crowne), pictured with Dynomutt above. You see how it all comes together for us-- the military of the militaristic rich "serving us".
But Dynomutt is less of a true talking dog in the guise of, say, Mr. Peabody or Underdog (i.e. freaks of nautre). Dynomutt is more of a technological creation out of control "supposedly for our benefit"... and most people are convinced that he is indeed a super-hero acting for our benefit, even while the fact of the matter is, he's in it for himself (and, of course, for the millionaires.).
The thing is, because he comes to us in the guise of a goofy Scooby-Doo knock-off, we think he's benign, with each fiasco Dynomutt causes, it only appears that we are in need of a super-hero even more, when, in fact, if he (and the big millionaire Bird-man) weren't there, chances are, things would have worked out fine on their own.
But there you are: Dynomutt is, of course, the talking dog genre gone perverse when injected by out of control technology and the political agenda of the rich. Again, I ask you... wouldn't things have worked out better without the damned meddling "super-heroes" in the first place?
The Bush Administration has been riding such a wave of good will as of late, that you have to ask yourself, what great stuff can it do next?
That, of course, would be today's revelation that, under the lead of, inter alia, Director of Central Intelligence designee General Michael Hayden, the National Security Agency obtained millions upon millions of telephone records from American citizens.
For his part, the President testily told the press corps (without stopping to take questions) that "this is just Al Qaeda... we're just investigating Al Qaeda..." Because, as we know, a group believed to consist of at most a few thousand people world-wide (or as few as 200) would involve the phone records of millions of Americans.
Or, to coin a phrase... bullshit.
This is called "a power grab." In the name of "combatting terrorism", the Bush Administration has pretty much already crossed several lines denominating the road to dictatorship... locking up citizens, legal residents and aliens alike without charge, counsel, or any legal recourse? Check. Eavesdropping on whomever it wants without warrant or other oversight? Check. Taking upon itself the right to ignore any Congressionally passed law "in the name of national security"? Check. So really, this is kind of old news, though the scale and the players involved (especially General Hayden) make this news, of course.
So? We had already assumed that the Government was reading our e-mails and listening to our phone calls; now we know it is reading our phone bills... best keep those telephone-sex calls to an explainable minimum folks, because that's what this is about (as if you hadn't figured that out either.)
The answer to whether our country would survive the post 9-11 world intact is pretty much being definitively answered in the negative... and al Qaeda has had remarkably little to do with any of it.
One might be inclined to read something into the unusually strong statements by Great Britain's Attorney General calling for the (apparently immediate) closure of the American extra-legal extra-constitutional gulag detention center at Guantanamo Bay, Cuba. Lord Goldsmith observed that Guantanamo had become a universal symbol of injustice-- a stark living source of cognitive dissonance from the usual American image as a beacon of freedom. For his part, George Bush's Pet Poodle U.K. Prime Minister Tony Blair usually notes that it might be "premature" to release "dangerous people" from Gitmo... Lord Goldsmith's statements were noteworthy for evading that usual weasel qualification. (Readers of this blog have long ago figured out that the dangerous people held at Gitmo have long since been released; most still held now were picked up by Pakistan or the Northern Alliance for the bounties, and are simply unfortunate schmucks in the wrong place at the wrong time. Only ten out of the almost 500 still detained are even charged with "war crimes", and most of those with the dubious "conspiracy to commit war crimes" with the lone alleged homicide having been committed by a 15-year old in combat.)
Well, well. As the President's approval ratings at 31% have now dipped to levels unseen before save by Presidents named Nixon, Carter... and someone named Bush... and given a probable slap from the Supreme Court next month when it hands down its decision in Hamdan, this might well be a time to try to cut its losses from Gitmo, as that "9-11 9-11 9-11" mojo seems to be wearing off... Perhaps the Administration will do what it did to the Uighurs recently, but on steroids... to wit, close all of Guantanamo Bay (perhaps building a small to medium size village in Albania capable of holding all of the detainees)... and then argue that "the whole thing is moot."
Or, perhaps as with everything else, the Bush Administration will simply ignore laws or court decisions it doesn't like (not to mention statements by furriner attorneys general), or otherwise figure out other games to continue "selling" its brazen lawlessness... Don't know. Contrary to the wishes of many Britons, Mr. Blair shows no signs of going anywhere. As such, if it's going to require pressure from him personally for the Bushmen to do anything about Gitmo, than we can safely view Lord Goldsmith's statements today as more "unhappy talk" of the kind that will be duly ignored by the White House.
Gitmo continues to be an albatross around the American Government's neck that desperately requires some kind of remedial action. There is no indication that the Bush Government, however, is even capable of noticing...
I've been somewhat remiss in not earlier mentioning the latest Bush Administration demonstration of why it feels that, seeing as its actions are unchecked by either Congress, the courts, or the voters, it can do what it wants... especially for the purpose of playing games with live cases in those occasional instances where the courts might just do something adverse to it, usually on the eve of some important court date. The latest fiasco, of course, involves a group of five ethnic Uighurs (Chinese Moslems from far west Xinxiang province, or Sinkiang back when I learned geography) who were, almost poetically, shipped off from those lemon chicken and rice pilaf dinners down at Guantanamo Bay to Albania the week before their appeal was to be heard by the D.C. Circuit Court in Washington (in an effort to have the court declare their cases "moot")... the latest wrinkle to their plight: China wants them back.
This is more serious than it sounds. The United States deliberately refused to grant the Uighurs admittance and asylum in the United States... Washington, D.C. is apparently home to a sizeable Uighur community, btw... Instead, games were played, deals made, and aspiring NATO member Albania stepped up. But Albania, for many years, was the principal European ally of... China (an odd, isolated little place-- a communist country, but unlike the sort of independent Tito's Yugoslavia, Albania was a communist satellite... but of Beijing). As such, Albania still maintains warm relations with Beijing... serious pressure might just be a problem... The United States (irony of ironies!) feels that China would likely torture these Uighurs as suspected terrorists... of course, they've been branded as terrorists by the United States in the first instance... but let's not go there. What Albania ultimately does is anybody's guess... unclear how many cards we still hold as far as Tirana is concerned.
Albania, of course, was famously the subject of the 1997 film Wag the Dog, about a fictional president diverting attention from a sex scandal by invading Albania, made all the more... interesting... when, in 1999, President Bill Clinton, with the ink barely dry on the senate's acquittal of him on impeachment charges arising from L'Affaire Lewinsky, undertook to invade heavily ethnically Albanian Kosovo (which at least borders Albania) to supposedly prevent genocide... and now, for good measure, we have President Bush the Younger deciding to use Albania as a dumping ground for his own unpleasantness, to wit, Gitmo detainees that even the highly flawed "Combatant Status Review Tribunals" could not determine to have any involvement with Al Qaeda, terrorist organizations or anything else and hence are not "enemy combatants".
It would be amusing... if it were the least bit amusing. Recall the games the government kept playing with U.S. citizen Jose Padilla, including denying him counsel until just before the Supreme Court first heard his case,
and then yanking him from military custody until just before the Supreme Court heard his case (and the Supreme Court, sadly, played along and accepted the "mootness" bullshit.) Or the government's on again, off again compliance with the Rasul case's requirement that Gitmo detainees have an entitlement as a basic matter to challenge the legality of their detentions... the entire premise of Gitmo being the government's original argument that it was beyond U.S. courts' jurisdiction, and later, the government argued (to an incrredulous Supreme Court... we think) that the Graham-Levin Amendment deprives the courts of jurisdiction even in already filed cases.
So here we go again. Ahead of a most embarassing court date (having to justify why we are continuing to imprison men that the military itself says pose no threat and are completely innocent of anything while still refusing to grant them asylum stateside)... the Bush Administration does what it does best: plays games to avoid unpleasantness.
The precedent has been set, of course, and thus far, the courts (especially the Supreme Court) have been willing to play along. I have suggested that we were effectively a dictatorship when the Supreme Court played a game of its own (based on venue) to avoid giving Jose Padilla the benefit of the law back in 2004... given the lengths the Bush Administration goes to avoid affording basic due process of law to whomever it feels like screwing, and the cooperation of the courts in this little song and dance... it looks like the invisible "suspend the Constitution when the President feels like it" clause is now firmly established. Our freedom from arbitrary government detention (and you are fools if you believe any of you are immune from this... due process of law is either for everyone, or it isn't...) is as basic as it gets, predating our own constitution by almost 600 years... Without that, all we can do is hope that the President really is a compassionate conservative... seeing as, we are now a government of men, and not of laws.
That spinning sound you hear is coming from our Founding Fathers' graves.
Less than a week after being sentenced to life imprisonment at the most unpleasant federal super-max in Florence, Colorado, convicted 9-11 plotter Zacarias Moussaoui filed a surprise motion seeking to vacate his guilty plea. The Federal Rules of Criminal Procedure Rule 11 would not permit a withdrawal of a guilty plea after sentencing, and Judge Leonie Brinkema immediately so held. Doubtless, Moussaoui will appeal to a most unsympathetic 4th Circuit Court of Appeals in Richmond.
Moussaoui now says "I was lying" when he previously swore out a lengthy affidavit as to his involvement in the 9-11 plot as part of his guilty plea... he has now determined that he can receive a "fair trial" in an American court, and now, of course, has decided that he wants one. The thing of it is, that's probably right factually... he probably was a side-show, too nuts even for Al Qaeda to make him an intimate of its main plot... but legally, his actions have taken on a life of their own.
My recollection is that, among other things, Judge Brinkema tried to order psychiatric evaluations of Moussaoui, who resisted them. Among other things, she had to determine if Moussaoui's earlier plea was actually voluntary (i.e., he wasn't too much of a nut-job to knowingly waive his rights... as alluded to here, that's an open question...)
Oddly enough, rules are rules: the defense counsel, Judge Brinkema and the jury (though not the prosecution) have played by the rules, and it is very hard to argue that the trial Moussaoui had was not "fair"... the complaint of those unhappy with the result is that it was too fair... that somehow we get to bend the rules for defendants we don't like (a thought process shared by too many Americans, btw, and an attitude that should rightly be considered a cancer on the national psyche.)
But under those fairly applied rules, Mr. Moussaoui has... waited too long. He's also preaching out of the wrong hymnal in any event: he'd have to allege some sort of mental incapacity back when he pleaded guilty... not that he "thinks he can get a fair trial now"... and even then, I doubt he'll belay that one-way ticket to Florence, CO and the John Gotti Suite. As Judge Brinkema told him-- he's used up his opportunities to pontificate in public. He can retire to his small, isolated cell, alone with his madness and his hatred, and die with a whimper some day.
While the rest of us can ponder why such a pathetic (and probably insane) bit-player from the sideshow was offered to us as the only legal prosecution resulting from 9-11, even as purported kingpins are being tortured interrogated somewhere, rather than brought before a proper and fair tribunal to face justice. As if we didn't know.
There is a reason the Onion (America's finest news source) has migrated to our sidebar: stories like this one, about Mexicans fleeing the United States to return to Mexico so they can obtain good American jobs there.
We'll compare and contrast op-eds this morning (and then tell you why both are right for the wrong reasons!) The first is by TNR's Jonathan Chait in the Los Angeles Times, concerning why Democrats are... misguided... to try to oust Senator Joe "Joementum" Lieberman. The second is by the Daily Kos's blogging sensation Markos Moulitsas writing in the Washington Post concerning why Hillary Clinton can't win.
Chait's basic premise and Moulitsas' (btw, it appears that letting Kos have an op-ed may be the beginnings of "pay-back" for the Ben Domenech fiasco... just sayin'...) are more or less opposite sides of the same coin. Chait fears that the "left-wing extremists" are trying to hijack the party by savaging poor Joe Lieberman, who's really a moderate, and except for his strong "pro-Empire" stance on the Iraq war, a pretty straightforward Dem. Moulitsas approaches Hillary from the same direction: Hillary is nobody's liberal, and, like Lieberman himself in the '04 election (along with Kerry and Gephardt) is a stodgy insider who is not liked by the "net-roots" (meaning Markos himself, and others who have been adept at raising money on the internet, purportedly from activists, but really from moderates; my own positions have gone from "center-right" to "left to hard left" in just over 6 or 7 years, all without my views moving!)
Interestingly, both are correct, but for exactly the wrong reasons: Dems should leave Joe-mentum alone, and Dems should desert Hillary like the political leper she is. But for different reasons.
Simple, practical reason for Joe-mentum: there is a finite amount of money and energy available for Congressional candidates in Connecticut; there are Republican House members in Connecticut who are takeable. If and when the Democratic challengers there had comfortable war-chests and comfortable leads, then I would say maybe we could afford the luxury of an internal urinating contest over Lieberman (who, quite frankly, is hardly any more conservative than Harry Reid, Joe Biden, or Hillary Clinton for that matter.) But, as usual, it looks to me that Dems are making the usual mistake of falling for celebrity and the "coolness" of the senate, and forgetting that the House is (1) more important and (2) more potentially takeable than the senate, at least in '06. Hence, prioritizing is essential. Millions of dollars and thousands of volunteer hours spent supporting Ned Lamont to take on Joe will not be available to Dem Congressional challengers Joe Courtney, Chris Murphy or Diane Farrell, all of whom are credible challengers; three House seats in Connecticut alone would represent a huge leg up toward taking back the just over a dozen seats needed to take control of the House. Short answer: "disciplining" Joe Lieberman is a luxury we can't afford.
As to Hillary, let me get right to it: I dislike her for the same reason I originally disliked George W. Bush. She brings little or nothing to the table save her very famous name. She has proven an adept politician at aggrandizing herself, but has virtually no legislative record benefitting her constituency (a/k/a my state), and has been, as Markos observes, anything but a "party leader". But the short answer to the problem with her presidential aspirations is simple math: what state that George W. Bush won against Al Gore (or for that matter, John Kerry) will-- or can-- Hillary Clinton win? Without pickups, she cannot be elected President. Period. Evan Bayh from Indiana or Mark Warner from Virginia, aside from not being national polarizing figures, at least put their own states into play. Al Gore himself could symbolize "national buyers' regret" especially in Florida. But Hillary Clinton? Can she pick up West Virginia, or Arkansas, or Florida, let alone Missouri or Ohio (or Indiana or Virginia)? Sorry... I just don't see it.
And there you have it. Both Chait and Kos grossly overstate the importance of the "net-roots" or the "hard-left" or whatever you call them. Kos, for example, has a notoriously piss-poor record of getting Congressional members elected, for example... which isn't to downplay what the 20-something guy has accomplished, which is amazing... I merely point out that we should face reality. The "net-roots" (save for the amazing Move-on.org) are just not ready for prime time. Yet. It's coming... but not yet.
The typical "lefty" now is someone like myself... whose views were not lefty at all when Bill Clinton was President. It's just in the current loyalist lunacy, even sanity is considered disloyal to the Empire (which I readily admit is a problem for Joe-mentum, who values his loyalty to the Emperor above almost all else.) Chait (surprise, suprise) has his head up his ass on this: there is no hard left with any significant presence in the Democratic Party. Russ Feingold or Barbara Boxer are simply functioning human beings-- more in tune to how most people feel-- rather than crazed Bolsheviks, as Chait intimates.
Anyway, we have to scan the entire playing field, win what we can win, and not waste energy where we can't. And there you have it.
On May 4, 2006, I had the privilege of interviewing (by e-mail exchange) Professor David Scheffer, Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law. Professor Scheffer served as the United States Ambassador for War Crimes Issues from 1997 to 2001 during the second term of President Bill Clinton. What follows are my questions and Professor Scheffer's answers.
The Talking Dog: My customary first question is "where were you on September 11, 2001"?
Professor David Scheffer: I was at a conference in Toluca, Mexico, organized by the Mexican human rights commission and various Mexican non-governmental organizations interested in exploring the International Criminal Court (ICC). At the time, Mexico was just beginning its debate and ratification process for the ICC and I was invited to address an audience of 2,000 interested students, NGO workers, and government officials. One hour before my address, I saw the attack on the World Trade Center on CNN and followed the story until my speech, which was mid-morning. We observed a moment of silence (still not knowing anything other than the fact of the attacks in New York and on the Pentagon) and I then delivered an address about how Mexico and the United States should work together constructively on the ICC. The special relationship forged between Presidents Bush and Fox was significant then and I tried to build upon it and suggest ways to advance the national interests of each country in tandem with constructive ties (even ratification) with the ICC. But I also knew at that moment that the Bush Administration would be far less inclined to be a good neighbor of the ICC because of the attacks and that the special relationship would be eclipsed by 9/11, and indeed it was so overtaken by the war on terror. I knew even then that the Bush Administration would want to act militarily and view international courts as obstacles rather than allies in the war on terror. So I wondered if what I had to say to this huge audience would make any difference.
After my address, I was ushered into a room packed with Mexican journalists who peppered me with questions about the terrorist attacks. (I was the only former American official at the conference.) I could only speculate it was terrorists and that they would have to be brought to justice. Due to the flight shutdown, the Mexican Government graciously arranged to drive me that afternoon all the way to the Texan border and I arrived in New Laredo at midnight. Along the way, when we stopped at diners and gas stations, Mexicans were glued to the television and approached me with their sympathies. That has always impressed me; although I was a total stranger to them they assumed I was an American and wanted to express their sympathy for and solidarity with us. CNN and other media had been reporting that the Texan border was closed, so I did not know what would happen on September 12th when I tried to cross the Rio Grande on the Laredo bridge. I was astonished when I arrived there…hundreds of Mexican day-workers were streaming across the bridge into Laredo, Texas, without any difficulty. I joined them and was the only one stopped at the border, with my U.S. passport closely scrutinized and luggage examined, while Mexican citizens streamed around me flashing their work cards. I called my contacts at CNN shortly thereafter and told them their reports were inaccurate—the border is open at Laredo. I then began a long journey home to Virginia, on a bus to San Antonio and then a rental car (the last available in San Antonio) which I drove all the way home with a stop at Duke Univ. Law School to teach my weekly class there (the faculty and students were somewhat surprised I had made it in time). I listened to talk radio across the deep South on the drive home and absorbed America’s reaction. I recall seeing only one American flag at full staff—in front of a gravestone merchant in southeast Texas.
Postcript: Mexico recently became the 100th State Party of the Rome Statute of the International Criminal Court following a long ratification process, which in significant part had begun that day, September 11, 2001, in Toluca.
The Talking Dog: I take it that I am correct that shortly after 9-11, and indeed since you left the Clinton Administration through the present, you have been sought out as an expert on international law and particularly the laws of war and law of war crimes? If you can tell me, has your advice been sought out by the Bush Administration, in any capacity? Have you consulted with your successor (Ambassador Prosper) about these international law issues? If the answer is no, do you have any general advice you would provide to President Bush, Secretaries Rice and Rumsfeld and other appropriate officials now, with respect to these international law issues and legal aspects of the handling of the "war on terror"?
David Scheffer: You are correct that the media, think tanks, universities, and law schools have sought me out as an expert on international law, including the law of war and international humanitarian law. The Bush Administration has only approached me on four occasions: 1) Then Ambassador at Large for War Crimes Issues, Pierre-Richard Prosper, my successor, called me in 2002 regarding his proposal to bring the work of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to a scheduled end, which was creating a firestorm at the time, particularly from the tribunals and European supporters of them and NGOs. He sought my advice on how to resolve the crisis, and it was a call I appreciated. 2) Then U.S. Permanent Representative to the United Nations, John Negroponte, called me in the summer of 2002 to learn my opinion of U.N. Security Council Resolution 1422, which had taken a strained interpretation of Article 16 of the Rome Statute of the ICC and excluded personnel of any non-party state to the Rome Statute engaged in any U.N.-authorized military operations from investigation by the ICC for at least one year. This had been sought with considerable effort by the USG in order to sustain its support in the Security Council for peacekeeping and peace operations. Again, I appreciated that call and gave Amb. Negroponte my frank opinion. 3) I was invited to the White House in November 2005 for a personal consultation with advisors very close to President Bush on the subject of Darfur and how to address that atrocity situation. I was afforded almost two hours of intensive consultation, at which I mapped out a laundry list of initiatives, and I deeply appreciated that opportunity. 4) I have been invited, and have attended, some closed war crimes meetings organized by the government and designed to bring academics together to examine the work of the international and hybrid criminal tribunals. Let me make the point here that I firmly believe war crimes work is and must be a non-partisan and bipartisan endeavor and I always sought to keep it that way while I was in office. So when I did get these calls, I was grateful to make whatever contribution I could.
My general advice to the Administration, which I’ve given publicly often, is that they are pursuing the war on terror with a distorted understanding of the law. They need to clearly distinguish between anti-terrorism law (both domestic and international) and the law of war. By categorizing international terrorists as combatants in a war on terror, they have elevated these individuals to warrior status with all the rights that combatants (even those without uniforms and operating apart from national armies) are entitled to under the law of war. Prior to 9/11, the United States had led two decades of negotiations to forge more than 10 international anti-terrorism conventions designed to pursue terrorists as terrorists, not warriors. U.S.C. Title 18 has anti-terrorism provisions also designed to prohibit terrorists from offering any justification whatsoever for violent acts, including against military or other government facilities. The bizarre and poorly planned situation whereby some terrorists are or have been on trial in federal courts while others are treated as combatants and are sequestered in secret prisons and Guantanamo Bay-- some being tried before special military commissions under the law of war, most being held indefinitely without trial, and others being interrogated in ways that will never permit trials due to the illegal means of acquiring information from them—shows massive confusion about and distortion of international law and U.S. federal law. The sooner the mess is cleaned up, the better.
The Talking Dog: I recall reading an interview you gave shortly after the commencement of the conflict in Afghanistan, in which you observed that members of the American military might have a potential legal problem if they had knowledge of mistreatment of Taliban prisoners by, for example, our allies in the Northern Alliance and with such knowledge, then did nothing to remedy it. Can you elaborate on why international law provides that result, can you tell me if, as some prisoners at Guantanamo have alleged, that they were mistreated in American custody while detained at Bagram Airbase and later at Guantanamo, American officials or members of the military might have potential legal problems if the allegations are borne out? Let me ask the same question on the subject of so-called extraordinary renditions; if it is borne out that American officials participated in executing policies whereby people were transported to third countries and tortured, those officials might bear exposure under international law?
David Scheffer: I believe I was referring to the command responsibility doctrine that is now well entrenched in international criminal law, namely, that commanding officers who knew or should have known that their forces were committing or about to commit atrocity crimes and failed to take all necessary and reasonable measures to prevent or stop the commission of such crimes or submit the violations to competent authorities for investigation and prosecution, should be held criminally responsible. (See, for example, Article 28 of the Rome Statute of the ICC.) The failure of U.S. military and civilian authorities to investigate up the chain of command (military and civilian) during the war on terror and the Iraq war has severely undermined our respect for the rule of law. The international criminal tribunals have established a hefty track record now of investigating and prosecuting civilian and military leaders charged with atrocity crimes. While they often find such leaders individually responsible for violations of atrocity law, and thus do not need to convict on command responsibility grounds, there has been much attention paid to the doctrine in the judgments. We do not have a lot of experience in U.S. law with the command responsibility doctrine as it applies to war crimes, but federal and military law offers avenues for such investigations and prosecutions. Under international law, American officials may be at signficant risk of exposure to investigation and possible prosecution (depending on whether jurisdictional requirements can be met).
The Talking Dog: Let me use that as my segue to discuss the article you recently wrote that appeared in the University of Pittsburgh's "Jurist" web site, discussing the Supreme Court case of Hamdan v. Rumsfeld. Your article states that the crime of "conspiracy to commit war crimes" is not recognized either under international law or under American military (including the Uniform Code of Military Justice, contained at Title 10 of the United States Code), or other civil or criminal law (including the terrorism crimes defined at Title 18 of the United States Code.) In the case of the lead party to that case, Salim Hamdan, my understanding is that it is alleged that he was Osama bin Laden's personal driver, auto mechanic and some time bodyguard, and as such, the government asserts that Mr. Hamdan may be found personally criminally liable for Bin Laden's acts and those of Bin Laden's Al Qaeda organization, without further proof of an overt criminal act by Mr. Hamdan in support of the "conspiracy". Am I correct that your contention is that, absent some further overt provable act by Hamdan to advance the "criminal enterprise," the charges do not state a proper basis to charge him under international or American law?
David Scheffer: The military commissions established at Guantanamo Bay can only investigate and prosecute violations of the law of war. That creates a problem when you are really dealing with alleged terrorists rather than combatant warriors. It may be that if Mr. Hamdan were prosecuted in a U.S. federal court, a charge of conspiracy to commit terrorist crimes under federal anti-terrorism law would be entirely appropriate. But the forum of the military commission prohibits such a charge in the indictment, unless Congress were to explicitly legislate (and it has not) a broadening of the military commission’s jurisdiction to include criminal violations beyond violations of the law of war. My essay in JURIST focused on showing that there is no credible charge in international law of a conspiracy to commit war crimes. Rather, a different charge, that of joint criminal enterprise or aiding and abetting, has become the operative means of making a charge related to participation in a group effort relating to war crimes. There are many reasons for this, and it might be viewed by some as a technicality. But it has been the focus of much litigation ever since Nuremberg and international courts are very familiar with the important distinctions. Again, this error reflects the Bush Administration’s confusion about pursuing a war on terror with overlapping applications of antiterrorism law and the law of war. It is a needless mess and one that could have been easily corrected years ago.
The Talking Dog: My understanding is that all ten of the detainees at Guantanamo who have been charged with crimes and subject to trial by military commissions have been charged with conspiracy, and seven of the ten (including Mr. Hamdan himself) are charged with only conspiracy. As far as you are concerned, would you reach the same conclusion as to all ten of these detainees with respect to the conspiracy to commit war crimes charge (to wit, that it is not recognized under international or American law)?
David Scheffer: Yes, for the reasons stated in the prior answer. The charge of conspiracy might be better pursued by transferring these cases to federal criminal court and prosecuting these individuals as terrorists, assuming they are in fact credible targets for terrorist charges (see below).
The Talking Dog: Let me turn to the three individuals (Hicks, Khadr and Zahir) who have been charged with crimes beyond conspiracy. We will not address issues unique to Khadr because of his juvenile status because he was 15 at the time of the alleged "war crime". Briefly, my understanding is that Hicks is charged with attempted murder and aiding the enemy for ostensibly guarding a Taliban tank position and possibly firing shots in combat, probably against the Northern Alliance; Khadr is charged with throwing a grenade and killing an American soldier and Afghan soldiers and injuring other soldiers during a combat situation, and Zahir is charged with throwing a grenade into a bus resulting in injuries to foreign journalists. My non-expert opinion is that these sound like events that are not atypical in combat situations rather than "war crimes"? Again, is there any reason, prima facie, why these individuals would not be entitled to "belligerent immunity" or privilege (in which case, their status should be straight prisoners of war)? Am I not correct that the Geneva Conventions require an "impartial arbiter" to make the first pass on that immunity or privilege status, and that the Combatant Status Review Tribunals set up after the Rasul case do not meet generally accepted standards of "impartial," as the "arbiter" is ostensibly the Bush Administration or the military itself?
David Scheffer: The situations of Hicks and Khadr would appear to be combat actions and difficult to squeeze into anti-terrorism law. Within the law of war, whether those charges would stand up as war crimes is very problematic, in my view. As for Zahir, I do not know the facts well enough to know under what circumstances he threw the grenade and whether the bus was in a combat situation. Assaulting civilians (foreign journalists) in this manner may indeed give rise to a war crimes charge depending on the circumstances. If the attack took place outside combat, it may give rise to a terrorism charge. But I do not know the facts in any depth on that case. Hicks and Khadr might well qualify for prisoner of war status and, even if they were to fail the Article 4 test under the Fourth Geneva Convention, they would not necessarily fall into any terrorist category for either detention or prosecution purposes. None of these individuals ever received an Article 5 review of their status under the Fourth Geneva Convention, and that is a critical problem that the Combatant Status Review Tribunals do not overcome, in my view, and that has been much discussed in the Hamdan case briefs and judgments. The Article 5 panel needs to be a “competent” tribunal, which typically would be drawn from the ranks of the victor. But “competent” should point to individual military officers sitting on the tribunal who have enough objectivity to make fair assessments of Article 4 status. In any event, that competent review by an Article 5 tribunal for the purpose of determining Article 4 status never occurred with respect to Afghanistan, Iraq since 2003, or Guantanamo Bay.
The Talking Dog: I read a panel discussion involving yourself and Professor Adam Roberts in which he suggested that the United States should invoke Article 75 of Protocol 1 of the Geneva Conventions (providing for "fundamental guarantees" for those detained under the laws of war) which I understand the United States has not ratified. Can you briefly explain whether you agree with Roberts' view, and in your opinion, would invocation of Article 75 solve problems of perceived unfairness with the proposed military commission (and indeed, larger) issues associated with Guantanamo?
David Scheffer: Yes, I agree with Professor Adam Roberts. U.S. officials long ago determined that Article 75 of Protocol I reflects customary international law, even though we have never ratified Protocol I (due to concerns about entirely different provisions). The purpose of Article 75, which the United States was deeply involved in drafting during the Protocol I negotiations, is to ensure that even if a captured individual is not a prisoner of war pursuant to Articles 4 and 5 of the Fourth Geneva Convention, there are fundamental guarantees that must be observed with respect to all detainees in situations covered by the 1949 Geneva Conventions. My amicus brief in the Padilla case discusses this in detail. See Brief of Law of War Experts as Amici Curiae in Support of Respondent, Donald Rumsfeld, Petitioner v. Jose Padilla and Donna R. Newman, as next frien d of Jose Padilla, Respondents, Supreme Court of the United States (No. 03-1027) (2004) (with Jeffrey K. Walker).
The Talking Dog: In your Jurist article, you criticize the Bush Administration's efforts to, as you call it, fit the square peg of terrorism in the round hole of war and war crimes. Now, my understanding of some of your suggestions of dealing with transnational terrorism include, possibly, having Congress expand military commission powers to incorporate power to hear cases under American antiterrorism statutes (included under Title 18 of the U.S. Code). You've suggested elsewhere, for example, that other aspects of American law, such as Title 10 (governing military law) should be updated to confirm with international norms, particularly those surrounding the International Criminal Court. What other suggestions would you have for how best to proceed, in a legal process sense, to combat terrorism?
David Scheffer: We also need to revise Title 18 of the U.S. Code to modernize our ability to fully investigate and prosecute genocide, crimes against humanity, and serious war crimes. It is not just terrorism, but the full panoply of what I call “atrocity crimes” (genocide, crimes against humanity, and serious war crimes) about which U.S. federal and military law is very antiquated. Other legal systems, particularly in Europe, have leaped way ahead of us in their capabilities to pursue these crimes.
Beyond that, though, I would do the following: 1) detain and prosecute international terrorists in US federal criminal courts (fully recognizing the difficulties but also the justness of that approach) or turn them over to credible foreign national courts for similar prosecution (depending on jurisdictional requirements); 2) build prisoner of war camps on U.S. territory and hold captured battlefield combatants (of the more classic character) as well as terrorists whom we do not want to prosecute but, in a concession to the “war on terror,” must deny freedom to for national security reasons, as prisoners of war (de jure or de facto) under the Fourth Geneva Convention. We can still interrogate such individuals but they will have legitimate rights they can exercise under the convention, and that is the price we pay for upholding the rule of law and protecting our own soldiers from abusive treatment if captured overseas; 3) close down any U.S.-authorized or operated foreign “secret” detention centers and thus bring to an end such outrageous conduct risking clear violations of international human rights law and international criminal law, either in terms of state responsibility or individual criminal responsibility.
The Talking Dog: I understand that during your service with the Clinton Administration, the United States executed "the Rome Statute," or signed on to the creation of the International Criminal Court. The I.C.C. was never submitted to the senate for ratification, and the Bush Administration has since withdrawn the United States' signature, and has obtained around 100 bilateral agreements with other nations not to turn over accused nations to the I.C.C. There is a round of renegotiations of the I.C.C. scheduled in 2009, at which one of the main subjects will likely be international anti-terrorism law and cooperation. Am I correct that you would agree that the United States' interests in shaping international law in this area would be better served if the United States participates in these negotiations?
David Scheffer: Yes. I have published a lot on all of this in various law review articles. The latest and rather brief article is The Future U.S. Relationship with the International Criminal Court, 18 Pace Int’l L.Rev. 801 (2006). Even the harshest critic of the ICC should see the benefit for U.S. national interests to engage as an observer in the negotiations in the Assembly of States Parties of the ICC regarding the crimes of aggression, terrorism, and drug-trafficking, which will be considered for incorporation as actionable crimes in the Rome Statute of the ICC at the 2009 Review Conference. As this law develops, the United States should be taking a leadership role, as we formerly did during the ICC talks, to influence the definitions of these crimes and how the ICC would have jurisdiction over them. Otherwise, we leave this law-building exercise wide open for other governments to control completely.
The Talking Dog: Do you believe that there are other relevant questions in these areas that I should have asked you but didn't, or if there is anything additional my readers and the American public need to know?
David Scheffer: In recent years U.S. officials have demonstrated a remarkable sense of fear about the rule of law and of being intimidated by international criminal law. This is an area the United States used to lead in and we have forfeited that leadership to others. We have also portrayed a nation that has used the pretext of the terrorist threat to pursue another agenda—that of walking away from or decreasing our support for international criminal courts and indeed trying to undermine the International Criminal Court. The first step we need to take, desperately, is to fully enforce our own federal and military law regarding atrocity crimes and pursue accountability. The world is watching, and the American public is losing its patience.
The Talking Dog: I join all of my readers in thanking you for taking the time to give us such a thorough and informative interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Jonathan Hafetz,
Joshua Denbeaux,
Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror") and with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), and with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, to be of interest.
A federal jury in Alexandria, Virginia declined to accede to the bloodlust of our Imperious Leader and refused to impose a death sentence on convicted 9-11 plotter Zaccarias Moussaoui.
As a result of this legally correct verdict, following a government prosecution rife with misconduct and a virtually impossible burden given FBI agent testimony that no matter what Moussaoui said, Bureau chieftains could not be convinced of the merits of a 9-11 plot, Moussaoui will be automatically sentenced to life in prison.
And there we have it. Frankly, I have no brief for Mr. Moussaoui who has, I believe sincerely, told us that he hates us and regrets that more of my fellow New Yorkers weren't killed on that horrible morning in September of 2001 across the street from where I sat, watching. But the rule of law is far more important, and the Government has been side-stepping the rule of law in its treatment of purported unlawful combatants of its own determination in derogation of all principles of our Constitution, statutes and treaty obligations, be they citizens, legal residents or foreigners alike, wherever apprehended. One hoped the Government would do better in the one criminal case supposedly related to the 9-11 events themselves... Instead, the Government still managed to take as many shortcuts with the law that its prosecutors thought they could get away with... pretty much, the defining mark of the Bush Administration in general.
Let's just say it's gratifying to see a judge and jury do their job the way the law actually intended. Judge Leonie Brinkema successfully managed to handle an impossible case with aplomb, and by following the law. As the jury was not unanimous in saying that Imperial bloodlust should be satisfied against Moussaoui, the Fourth Circuit Court of Appeals sitting in the former capital of the Confederate States of America will not have an opportunity to reverse Judge Brinkema (again).
And we needn't agonize for years more while a death sentence would have kicked around appellate courts. This chapter is over. And Mr. Moussaoui can spend the rest of his life in prison, alone with his hate, and his madness.
Neither rain, nor sleet, nor snow, nor 36% approval ratings, nor over 2,400 dead U.S. troops in Iraq, nor record high gasoline prices, nor most especially a record high federal budget deficit poised only to get worse can stop these Republicans from their appointed rounds of tax-cuts for America's most affluent, today, a $70 billion extension of 2003 tax cuts on dividends, capital gains, and other measures intended to be redistributive toward those most affluent, while affording minimal tax relief to anyone else, though of course, pressure to slash social spending will increase.
The GOP official statement is that it is believed that these regressive, non-stimulative asinine tax cuts will "stimulate the economy" which, of course, they haven't done yet... more likely, they will do little or nothing-- perhaps a few jobs may be credited against ballooning the already gigantic federal deficit to create them. The thought is that this will help the GOP's political fortunes. The reality is it will help the GOP's clients' actual fortunes-- which is all this is, and it all it ever was, about. And that's true even if it ends up costing them one or both Houses of Congress in November (as if!)
Don't look for Democrats to run on a very, very, VERY simple, and honest, promise: vote us in and we will restore the revenue lost from every single God damned insane tax cut since these m***er f****rs began running our country's finances into the ground... and if the economy tanks, then you can kiss our asses and vote us out. But God damn it, that's what we're going to do, and you can God damned grow up for a change and take responsible steps to let us get out of this freaking financial death-spiral in an orderly way, or you can let those shortsighted b*****ds merrily take us into an eventual Argentine style default followed by an Argentine style lifestyle adjustment for, oh, 98, 99% of the population (the part that doesn't hire lobbyists and bribe members of Congress, and hence, the part that doesn't matter.)
But don't look for any of that. Political courage remains in short supply all around. Alas, Colbert isn't a member of Congress.
Senator Joseph Biden (D-MBNA) joins with former Council on Foreign Relations chairman Leslie Gelb to write an op-ed in the Grey Lady to... wait for it... suggest that Iraq be divided administratively into its three religio-ethnic (Shiite, Sunni and Kurdish) regions.
Jebus. Never heard that before... except perhaps here... I, of course, make no claim to original thinking on this point... It has really been an issue since the British and French smashed Iraq together shortly after World War I out of ethnically mutually-hostile pieces of the defeated Ottoman Empire... Of course, this sort of internal break-up was the subject of Iraq's constitutional discussions now, for years, with the minority Sunnis not so keen on being shunted into a rump statelet conveniently gerry-mandered out of oil revenues... Somehow, a proposal I read recently by Steve Forbes of all people (free sign-up required) elegantly solves this, by dividing all Iraqi revenue among all Iraqi people in the model of Alaska's various programs to its state residents, regardless of region or ethnicity. Of course, that sort of thing would be creative, so... don't count on anything like it ever happening.
The best part of the Biden article is buried down the text: Colin Powell, it seems, believed that the American troop strength in Iraq selected by Rumsfeld (for domestic political reasons rather than military necessity reasons, of course) was inadequate, and apparently, was not reticent about saying it. For her part, his successor Dr. Incompetetentalleezza Rice tells us she has no memory of such conversations, and "a good Secretary of State knows his or her place."
Yeah. What Condi said. She would also wish everybody a Happy May Day, and say something like... workers of the world... just stop bitching and get back to work!
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