Not sure what to make of this WaPo account of Democrats' bizarre and sudden emergence of a backbone with respect to an otherwise pretty good nominee, Michael Mukasey, the President's choice for the next attorney general. When he was on the bench here in New York, Mukasey was regarded as a very good judge, who by and large, kept his politics to himself; even in Padilla, he figured out a way to repudiate the Bush Administration's position finding that Jose Padilla had a right to counsel and a right to some kind of hearing, even if he didn't quite find that the Constitution said, you know, what it says (the Second Circuit Court of Appeals corrected him on this, and the Supreme Court held that venue statutes are always the most important Constitutional consideration when embarrassment of the Bush Administration might result otherwise).
The latest flap concerns whether or not Judge Mukasey believes that waterboarding (a practice we inherited from the Spanish Inquisition-- so you know it's good) is "torture" under American law; Mukasey is equivocal in his response, calling it personally repugnant, but not necessarily illegal-- the kind of answer he has to give if he doesn't want the President to withdraw his nomination!
Here's what I don't get: why the backbone now over an otherwise pretty good nominee (and a great one by Bush standards!) for a caretaker position that evaporates in 447 days? Where was this newfound backbone for John Fucking Roberts, or for Sam Fucking Alito, who, unlike Mukasey, will serve in an infinitely more important law interpreting role, and serve in it for the rest of their lives, which might well be decades and decades? Or for that matter, then, why is impeachment still off the table? Again-- it was nice to see the Dems get together to block nominees like John Bolton (or more accurately, try to block them). But... who cares? For God's sake, Gonzales signed the torture memos themselves, and they confirmed him without much of a fight!
Where is the substance? I appreciate the vehemence of opposition to the President's position on S-Chip, but the Constitution permits the President to veto a funding bill-- even a popular one. The Constitution does not
permit the President to thumb his nose at laws he doesn't like, such as our statutory and treaty bans on torture, or bans on warrantless eavesdropping of Americans, or disappearing people without charge or trial, or otherwise unilaterally imposing a "suspend the Constitution clause when I feel like it" provision that isn't in the Constitution, and ignoring the Bill of Rights, the habeas corpus suspension clause, the treason clause and any other inconvenient provision...
Imagine if either candidate Gore or candidate Bush had suggested that in the event of a national crisis (9-11 hadn't happened yet, but "some crisis" could clearly be suggested), that their solution would be to sign executive orders permitting American personnel to engage in torture... the press would have excoriated either as insane-- even the Republican (I know, I don't really believe they would ever really excoriate a Republican on anything, no matter how insane, but you get the idea).
And yet, here we are. 9-11 changed everything, it seems. Including our national tolerance for insanity. The rot starts at the top: if Democrats are unable or unwilling to take on Bush and Cheney directly-- starting with impeachment with the express intention of prosecuting them for grave breaches of Geneva Conventions-- as high crimes as it gets-- then they should lay the f*** off of minor mandarins like "Attorney General", and just get out of Judge Mukasey's way.
Just saying.
It's our old friend, Super Ahmad Chalabi, traveling around Iraq with his new friend Super Dave Osborne Petraeus, promising that The SurgeTM will result in new and improved governmental services, like electricity, water, security, etc.
One suspects the Iraqis are on to this bulls***, but are willing to tell the press what it seems to want to hear-- that they are willing to say they will put up even with a double-dealer like Super Ahmad, if he can deliver the goods (which they know he can't).
The question is just how stupid the American people are believed to be, if the solution to our woes in Iraq is to go back to the guy who was the most effective at feeding us the bulls*** that sold this war in the first place... don't answer that.
Fellow NYC attorney/blogger Glenn Greenwald gives us this downright bizarre account of an e-mail exchange he had with General David Petraeus's aide and spokesman Col. Steven Boylan.
The point of it appears to be a brilliant misdirection on the part of the Colonel, to wit, raising numerous attacks at Greenwald while never directly taking on Greenwald's point, to wit, that Petraeus, at least, appears to be a monstrously partisan whore of the first order (I'm impugning his partisanship, not his sexual mores... the Senate may feel free to issue a resolution of their disapproval of me, if they can find the time...) Elements of the Army (and our military at large)-- supposed to be non-partisan in any conception of a free, democratic republic-- have taken to deliberately leak things and give exclusive interviews to right wing extremists, such as right wing bloggers, Fox "News", the Weekly Standard, etc., et al.
While Col. Boylan (who adds to the mirth and merriment by apparently later denying it was even him... while using the same e-mail and IP address for the denial that the original email used...!) choses to apparently attack specific aspects of Greenwald's comment, again, not addressing the main thrust, i.e., that certain general officers and the military at large are engaging in selective leaks and limited "exclusive interviews" only to loyalists willing to carry their story line.
I have always admired Glenn's cojones. Glenn openly dared use his vaunted position at Salon and his humongous readership to call Petraeus on his partisan interviews, and asked to interview him, openly. (Full disclosure: I have asked the military to have spokespersons speak to me re: GTMO and GWOT related issues, and gotten no response by and large, though a couple of individuals, to their credit, have at least acknowledged me and politely declined... ) Naturally, that is one of the only issues taken on by Col. Boylan (or Bizarro Boylan): suggesting that "a journalist" like Emasculated "Liberal" Alan Colmes would be a less challenging assignment for Gen. Petraeus and/or Col. Boylan than would Greenwald (notwithstanding that Glenn probably has a larger audience!)
Coming at the same time that the Grey Lady's Sunday magazine is reporting thatit looks like the power of Evangelical Christian "values" voters has been grossly overstated (and indeed falling apart)... and more and more disarray is developing amidst the Religious-RightWing Axis... one wonders if there is a method to all the madness... or if, as it is looking more and more apparent... it's just madness... turns out, they're missing Karl after all.
It's happy 60th to our next President, my state's senator, Mrs. Hillary Clinton. (I thought it was her 59th; I forgot the year that the sun went dark, the rivers ran blood, the locusts invaded, etc.). My birthday wish for Mrs. C is that she silence her critics by pointing out that, unfortunately, all the pictures of her having sex with Janet Reno over Vince Foster's body in the cabin of the black helicopter were accidentally burned up by Bill while he wasn't inhaling.
As to my own birthday wishes (I turn 45 today), besides peace on Earth, and for a speedy recovery to at least two TD loved ones who are under the weather,
I wish all of you would take the action set forth here, for Candace's client Mr. Al-Ghizzawi, now the subject of an international Amnesty International all points alert.
That is all.
Angela Campbell is a partner at the law firm of Dickey & Campbell in Des Moines, Iowa, and previously served as an attorney with the Office of the Federal Defender in Iowa. Ms. Campbell represented four Afghan nationals previously detained at Guantanamo Bay, Cuba, one of whom was released approximately two weeks ago. On October 12, 2007, I had the privilege of speaking with Ms. Campbell by telephone. My interview notes, as corrected by Ms. Campbell, are below.
The Talking Dog Where were you on 11 September 2001?
Angela Campbell: At the time that the planes crashed, I was in a Boston College Law School Class for Section 1983 prisoners rights. I lived about 6 blocks from where some of the 9-11 terrorists did in Chestnut Hill, Mass.; my brother was in Brooklyn, and watched the towers fall from there. I recall Boston shutting down on 9-11-- no cars, and no airplanes except fighter jets. It is ironic, as it turns out, that at that moment, I was in a class on prisoners rights issues!
The Talking Dog Please identify your clients by name, nationality, and their current location (e.g., "released to Afghanistan", etc.). Please tell me something briefly about your clients, or any impressions they have made upon you, impressions theire family made on you, and, to the extent possible, can you tell me what it is our government accuses them of doing? Please tell me your personal impressions of the people and environment you have encountered at Guantanamo Bay. Also, please tell me your impressions of the people and environment you encountered when you traveled to Afghanistan, and anything else of note about that trip.
Angela Campbell: I represented four clients, all from Afghanistan. I have only met one, as the others were released before I had clearance to meet them at Guantanamo. The only one I have met is Muhilbullah. He was released just two weeks ago, and I assumed has been transferred to Pul-e-Charkhi prison north of Kabul; there are two sections of it, one is run by Afghanistan (from which a number of prisoners were recently executed) and one is operated by the United States. I assume he has been sent to the American side.
The other three prisoners were Sharbat Khan, Ehsan Ulah and Abib Sarajaddin. All three's whereabouts are unknown, though I was notified of their release. They would not know me. Muhibullah says he knew Sarajuddin; other than him, none even knew they had a lawyer, I am guessing that all three were probably released in Afghanistan, as their releases pre-date Pul-e-Charkhi prison.
As to Muhibullah, he was young, he was 19 at the time of his arrest. Other than one Pakistani on a bus, he had never met a non-Afghan before his capture. Before me, he had never met an American not an interrogator, a guard or a soldier. He warmed up to me quickly, telling me that he didn't think I should be involved-- I was too young and shouldn't put myself at risk by representing him-- as it was "too late for him"... he was more concerned for my safety... ultimately, of course, I did not do what he said.
I travelled with three other lawyers to Afghanistan, and a journalist from Harpers... the same trip as Tina Foster. I invited a local t.v. station to go with us back to Afghanistan in December. At this point, we need to know that for Afghans, anyway, those released from Guantanamo are not released- but transferred to another prison run by the United States, albeit a much scarier place for U.S. lawyers to visit... Pul-e-Charkhi is scary, and indeed, it appears that it was chosen precisely to be less accessible to lawyers.
Last time we met with a number of Afghan government officials in the Karzai government. During my time in Afghanistan, I was quite limited in what I could do as a federal public defender, and, given the limitations imposed by my job, stayed in Kabul. Still, everyone there was very nice, and very helpful. While I was warned that as a woman I would have problems in dealing with the prisoners' families, I didn't encounter that at all! They had no problems speaking to me, or trusting me with your relatives' representation. If there is anyone who can distinguish between the actions of citiziens of a country and its government, it's the people oif Afghanistan! They understood that regardless of what the U.S. government did, it did not by any means mean that the people of the United States were behind it. Wherever I went in Kabul-- the hotels, the restaurants, and so forth, the people were great. (I do immigration law, and a number of people asked me how they could come here... the people of Afghanistan certainly don't dislike this country-- they want to come here!) So I was warmly welcomed, if not treated like a movie star.
Besides Tina and myself, the other lawyers were Michael Smith then of Dechert Price and Scott Tilsen a federal defender then from Minnesota (I understand he's since transferred to Kansas).
The Talking Dog Please tell me the status of where your client(s's) legal proceedings ended up, i.e., district court habeas, circuit court Detainee Treatment Act petition, Supreme Court review, etc. as appropriate. Did these proceedings have any significant impact on your other work as a federal defender (and more recently, private practice attorney)?
Angela Campbell: None have legal proceedings still going. All of the first three released were released prior to the Military Commissions Act and its purported barring of habeas, and Muhabillah had filed a habeas petition, and although I was notified that he was supposed to be subject to another Combatant Status Review Tribuna (CSRT), he was scheduled to be released shortly thereafter. Some lawyers felt that a DTA petition might delay their release; I did not file one, as the goal was to get him out as fast as possible. I don't believe it mattered-- who is held and who is released appears to be entirely random, and in any event, unrelated to legal proceedings brought here.
It certainly didn't detract from my other duties; I was the only one in Iowa assigned to this repreesentatnion. I spent work time on it, and it was duly accommodated into my schedule, but I carried the same caseload as any other federal public defender in the office.
The Talking Dog Can talk about some of the recent developments in this area, i,e, (1) Senator Leany's efforts to modify the Military Commissions Act by expressly restoring the right of habeas corpus, (2) the Supreme Court's acceptance of Al-Odah and Boumediene, (3) the Supreme Court "original" habeas petitions brought by George Clark of Baker and McKenzie and, near and dear to my heart, by Candace Gorman, (4) the recent D.C. Circuit decision in Bismullah all but telling the government to reconvene a bunch of do-over CSRTs, and (5) the stunning reversal by the made-up "military commissions appeal" panel that reversed the dismissal of the Khadr and Hamdan cases (and of course the Supreme Court's declining to hear Mr. Hamdan's new petition for review to block those new and improved commisions)...?
Angela Campbell: There are a lot of legal developments and arguments that need to be made, mostly regarding habeas corpus and whether it can be suspended... even though we know the answer-- Article I of the Constitution SAYS we can't suspend it! The Military Commissions Act needs to be overturned oce and for all-- it just needs to happen. In my opinion, that and the Detainee Treatment Act just need to be tossed, period.
None of the cases you're talking about, Bismullah, Hamdan, etc. will result in getting actual guys out of actual custody. We have somehow gone backwards in the law. For a court to decide we can't suspend habeas corpus is nice, but it is outrageous! It doesn't get us anywhere. Prior to George W. Bush it was self-evident that you couldn't do this! And while these legal machinations are playing out, we still have men in custody-- who have been for years-- quite possibly being tortured.
The legal hurdles being erected all involve time and effort to overcome-- we must battle to get back to the legal position that was accepted without question ten years ago. Frankly, it is depressing that we even have to talk about this!
The other problem with these cases is... where will they get us? To get the government to start over? For guys it has already held for six years? Bismullah is particularly troubling-- the D.C. Circuit has told us that lawyers for the defense are entitled to have access to the prosecution's evidence? When did this become AN ISSUE? It is mind-boggling... someone can be charged-- and indeed punished up to and including the death pealty-- without their lawyers having access to, let alone the ability to confront-- the evidence against them? This is ridiculous.
So yes-- these cases are necessary to litigate. But they avoid serious major issues. Such as the complete departure from the rule of law by the United States probably to the point of war crimes committed by its officials, up to and including the President.
The Talking Dog Do you have any you comment on the media coverage (both American and international) of American detention matters, and anything else you believe relevant to these matters?
Angela Campbell: Media coverage is essential to what needs to ultimately happen. In criminal cases in general, we want to avoid the media; we don't want our clients accused of crimes in the media, where their presence will not likely help. With these casese, it is the complete reverse. I'd like everyone of these cases in the news all the time-- all proceedings. I want the press to go interview everyone at GTMO, continuously. Why? Because basically, they will find that there is nothing there. Nothing. In an ordinary criminal case, there is probable cause for an indictment.. at Guantanamo, there is NOTHING. If we could get the coverage we need, a lot would happen.
I myself had gotten some pretty good coverage here in the mid-west. I'm the only one in Iowa; I don't know of anyone in Nebraska; Minnesota has someone. The t.v. stations here will talk to me, gladly.
We also do not necessarily have the same ethnic and religious diversity as other parts of the country, for example. I often run into problems as close as my own family, insofar as people just don't have experience with a Muslim community. This is a hurdle-- but overall, everything seems favorable to what i am doing. If there are negative responses, they don't call me!
I would like the media involved as much as possible in these cases... for one thing, I could show everyone that there is no evidence at all against my client-- not only no classified evidence (everything in my case has been unclassified)... there is nothing at all. People need to see that this is the quality of evidence used to hold people for years-- i.e., nothing at all.
The Talking Dog Can you comment on the various recent apparent assaults (rhetorical and otherwise) on attorneys who have been representing GTMO detainees, and did it effect you in any way?
Angela Campbell: Every time guys like Cully Stimson open their mouth, it helps us. Or Gonzales, Cheney., Bush... everything they say, helps us. They have nothing against most of the GTMO detainees- nothing. So if you have nothing damaging to say about the clients, say it about the lawyers!
As far as allegations of torture that recently came out, I remind people that this is just what I have been telling them has been going on for years. Now the New York Times tells us what we have known.
At this point, I believe we need to have everyone do the same things-- get all of the GTMO lawyers on board taking unified stands-- they can't stop all of us. It is unfortunate that they rely on people to follow their policies who are often 19, 20 year old kids, who don't feel they are in a position to disobey their blatantly illegal orders. But they can...
The Talking Dog Can you comment further on the recent revelations in the New York Times regarding new and improved torture memos from (my former employer) the United States Dept. of Justice, and the unsurprising and credulity-defying White House recantation that "we don't torture"? To the extent you can discuss this (and let me know if you cannot), can you tell me whether and to what extent your clients contend that they have been abused, mistreated or tortured in American custody, including with respect to receiving inadequate medical care?
Angela Campbell: As noted, my comment is "We told you!" How many times? The torture is not the independent acts of rogue interrogators. It is affirmative policy, from the highest reaches of our government. How much evidence do we need of this?
As to my individual client, I have some accounts of mistreatment. When I first met him, we talked for two days. He told me he had little to say about the circumstances of his arerst-- he was unconcious! I spent the first day trying to get him to tell me if he was mistreated- he kept changing the subject saying "I haven't been tortured". Buyt you recognize things-- you ask him about acts he witnessed. But he was fast enough to tell me that "As soon as I tell you, you will write it down, they will know I told you, and they'll bar you from coming back. And there is nothing you-- or anyone can do".
So he told me incidents that happened to others. Such as a prisoner who kept a sugar packet from a meal instead of returning it. What happened? They IRFed him (meaning 5 or 6 military guys came and beat him up). They ripped open his jaw, and he coudln't eat for weeks, and he withered, while my client watched. Or descriptions of treatment when he got there-- the only food given was an orange and a few beans all day; anyone who ate the orange rind was either beaten up, or placed in a freezing room with loud noise and prevented from sleeping.
While in an ordinary prison, they'd look at you funny if you brought a meal for the prisoners, at GTMO, you could... in one case, the guards let me bring him a curry dish... he said "I'm sure its good, but I can't taste food anymore."
The medical care is another issue. He came into American custody because his house was hit in a night air strike; his father took him to the AMericans, forgetting that it was not so good to have worked with the Americans and the Mujahadeen against the Soviets before... because the Americans effectively changed sides against the Mujahadeen! In any event, his father handed him to the U.S. military, saying there were no local doctors, and the military said we can help him. Next contact he receives is a letter from GTMO. he has no idea how long he was in the hospital, but the hosptial left shrapnel in his leg; he has a knee injury from it, and he survived, but he can't walk well and the shrapnel is still in his system. So, no... short answer, is he is not getting medical care.
The Talking Dog Do you see any exit strategy, either in a macro for the whole of American detention policy, just for Guantanamo, and what do you see it as (whether legal, political, or something else)?
Angela Campbell: I've given up on Congress. They talk a good game, and then they go ahead and give power and grants of immunity for the most outrageous illegal and unConstitutional abuses! It is simply not wirthwhile even talking to members of Congress.
A new President would be great-- it doesn't even matter which party... it can't be worse.
What do I hope? That a new Administration at least doesn't blanket this one with pardons, so that some officials in our government can be prosecuted for their role in this. The international community won't or can't-- we need to self-regulate, particularly if we want to maintain our status as a super-power, we will need to behave better as a nation, and demonstrate that we respect the rule of law. Indeed, who even cares where you start? Alberto Gonzales? He would at least have a day in court that he insists on denying to everyone else. He can hire his own lawyers... why don't we start by applying the rules to all.
What I ACTUALLY see happening is... little to nothing. I will say that the tide is slowly, slowly turning. One of my biggest surprises is when my own Mom from Nebraska called me, saying in the '04 election she'd vote for Bush... again! I told her to look at the capital punishment cases in Texas... all she needed to see Bush was not a good guy... she voted for him anyway! Thgen, about two years ago, she called me. and said "I don't think he's a good guy!" If she can come round to that, I think the country is turning its tide, albeit too slowly.
The Talking Dog Is there anything else on these subjects that I should have asked you but didn't, or anything else my readers and the public need to know about these subjects?
Angela Campbell: Your readers are probably more up on this than most people. What the public at large needs to know is that it is not about Guantanamo, or Cuba. Closing that base, by itself, fixes nothing. This won't end. These issues of outrageous executive excess and utter unchecked lawless exertion of power is so much deeper. Guantanamo is not the real problem, though we understand the sentiments of those who say "let's close Guantanamo". On the whole, we need to go back to being a law abiding nation, which doesn't just disappear people in far-flung corners of the world.
The Talking Dog I join all my readers in thanking Ms. Campbell for that eye-opening interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, 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, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, and with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, to be of interest.
From our friends at Make them Accountable, we get a pair of charming stories: (1) from LA Times, this account on how the FBI is quietly trying to re-make cases against Ron Jeremy Khalid Sheikh Mohammed and the 14 other "high value" detainees at GTMO, because the CIA and military f***ed up their interrogations with torture and other things that can't be used in court; and (2) from WaPo, this account of why the GTMO military commissions prosecutor (Col. Moe Davis) abruptly resigned, to wit, the government was pushing the "sexier" cases ahead of the more solid ones so as to make a political splash to time with election cycles.
What else is new? Certainly, it was understood that no matter what the Military Commissions Act said, no one seriously expected a case to be built solely on the interrogation results of Khalid Sheikh Mohammed and others-- indeed, KSM's rantings were clearly the product of coercion at best, or a compeltely irrational mind at worst. More solid evidence was clearly required. And it seemed, Col. Davis realized that this was not the "best foot forward" kind of case to put on (better put on a 15 year old kid who threw a grenade, but whose own government in Ottawa at least, abandoned him.) So there we go.
BTW...the Military Commissions Act of 2006 is far, far more insidious than anyone can imagine. Yes, to be sure it immunizes officials (up to the Commander in Chief, of course) for their role in violating international and American law associated with torture (and all bounds of human decency), to be sure, and it permits some evidence obtained "coercively" (i.e. by torture) at military trials, but it also allows the President to use the military at home in the event of any emergency the President declares, even over the objection of the local state governor, and it codifies the President's power asserted in Padilla, to wit, the ability to unilaterally nullify the entire Bill of Rights, and on mere contention of terrorism involvement (the most minor contribution can do), lock up any legal resident, or citizen, without judicial recourse, forever.
Oh well. We all stood by and let it happen; remember when Chuck Schumer and the gang stood by and let McCain do all the debating on this, and then when, symbolically, the "secret evidence" part was excised, everyone got all kissy? Somehow, it seems, the Democrats were and are every bit as comfortable as the Republicans with the rest of the national security state apparatus they have put in place... I suppose we can hope that the Supreme Court tells us we have a Bill of Rights after all.
Anyway, all of this is entirely consistent with the unitary executive and the unified theory of governance, i.e., all the world's a stage, and show trials make for excellent theater, particularly when timed to coincide with elections... this has been: "All the law's a stage (the defendants merely players)". Now, back to your regularly scheduled programming.
John McKay, the former United States Attorney for the Western District of Washington, himself fired at the behest of Karl Rove Alberto Gonzales, says that he believes that the Justice Department's Office of Inspector General will recommend that former A.G. Alberto Gonzales (hey, that's also A.G. isn't it... tres freaky, n'est-ce pas?) be prosecuted for lying under oath, to the I.G., to Congress... to whomever!
McKay, a rock-ribbed Republican himself, appointed by George W. Bush to be U.S. Attorney in Seattle, believes that after his own summoning to Washington to testify before the I.G. for around 8 hours, that the I.G. will recommend charges for, inter alia, lying about the political motives for firing him (for not being "aggressive enough" in investigating an election pursuant to which Washington State elected a Democrat as its governor (she won by around 100 votes), and he apparently investigated the killing of an Asst. U.S. Atty., whom the gun lobby didn't like much, a little "too aggressively".)
All I can say is that we can all just hope that the I.G. moves this thing along, so that if the Gonz does have to face any actual justice, we can be sure that the (coolest) President (ever!) has sufficient time to issue him an appropriate pardon. (Gonzy has been such a good team player for so long that it would just be so unfair to single him out.) [We'd better not tell that awful Nancy Pelosi that pursuant to the terms of the Constitution, the pardon power might not apply in the event there is an impeachment pending... but, I'm hard-pressed to see what difference it would make if we DO tell her... it would be so partisan to try to do anything mean to the President for looking out for his friends...]
WaPo gives us this description of a village inside the Palestinian West Bank that has been cut off from its primary (and apparently only) source of business activity, Israeli Jews, by the over 400 mile long security wall being thrown up by Israel to separate itself from Palestinian Arabs who, prior to the wall, had been much more effective at blowing themselves and Israeli civilians up inside of Israel proper.
The description of the village of Mas-Ha (presumably no relation to Hamas) and the now severed Highway 505 read almost like some post-apocalyptic fiction... but they're not. Israel, benefitting tremendously from globalization and integration with European trade and the rest of the world, keeps growing economically. The Palestinians, cut-off by a combination of sanctions against Hamas and Israeli policies, like the wall, grow ever more miserably economically (and presumably every other way). Palestinians used to serve as a very effective low-wage underclass within Israel proper; now, they are often being replaced by South and East Asians far less likely to blow themselves up in cafes and buses.
The thing is... the Palestinians just are not going anywhere. Indeed, some of the traditional places they might go (Jordan and Syria, for example) are now inundated with Iraqi refugees at the moment (part of that new Middle East our government has so efficiently been bringing about).
And there you have it. I have long believed that Israel's settlement policy, and its insistence on politically expedient isolation and collective punishment of Palestinians, is utter insanity: the Palestinians are still there, and their hatred isn't really abating. (We won't mention the net cost to Israel of having to provide security and infrastructure to its settlements, let alone the human cost to those they displace.) Not addressing the problems (or putting it behind a wall, while not conducting broader negotiations for an ultiimate disposition, including final borders and disposition of Jerusalem) will not make these problems any better. While the "demographic bomb" may (or may not) be greatly exaggerated (it appears that the number of Palestinians in the occupied territories, and hence, their birth-rates, were greatly exaggerated by Palestinian authorities), there are still millions of Palestinian Arabs living under Israeli control... who don't want to be. They can either be marshalled into a viable independent state, which will have to warmly, or at least coldly, co-exist with Israel... or they can be left where they are-- a perennially festering problem that never goes away-- no matter how high "the wall" is built, undermining Israel's moral standing, and of course, its security.
Israel has been occupying these areas for 40 years, now, and its Arab neighbors haven't been able to get along with it (except for cold peace with Jordan and Egypt) for nearly 60; I am not suggesting that there are any easy answers-- which is why the continued putting off of dealing with this isn't helping things (other than short-term political fortunes, of course). The British and Irish have been at each other's throat in Northern Ireland for longer than that, and only in the last decade or so has reconciliation appeared even possible. We don't even have to talk about other trouble-spots like the Basques in Spain, or the Chechens in Russia. And all but the last one involve first world countries.
Where was I going? Oh yes... Iraq... a country with none of the "advantages" of the other unresolved ethnic or ethnic/religious clashes mentioned... where we continue to have the arrogance to believe that we can come in with a glut of clusterbombs and mercenaries (and a surfeit of regular boots on the ground) and magically turn a slap-dash ethnic mish-mash that was held together only by brutal Arab irridentist strongmen into a peaceful pro-Western democracy. Or do we? Well, our elected dictators still say they believe it, and that's really all that matters, is it not?
On to Iran!!!
Sentencing themselves to political death (in service of the all-important insurance industry), the House Republicans voted to sustain the President's veto of a bill expanding the popular "S-CHIP" health insurance program for children, with a veto override failing by just 13 votes. Congratulations to the Republicans, having generated record deficits through massive tax cuts in favor of those who can most afford to pay taxes, to have had the fiscal discipline to try to restore some semblance of budget sanity on the backs of children, and their health!
Way to go! This seems to confirm my view that the GOP is almost giddy in their efforts toward conceding the next election to Hillary; it seems that they also want to make sure she has a fillibuster proof margin in the Senate, and such a wide working margin in the House, that if a GOP president is ever elected again, that he (it will be a he) will have a Democratic super-majority capable of overriding any veto, and by 2012, a Democratic Senate with enough votes to override a veto and convict on an impeachment. Not to worry, as Hillary will probably be there for two terms, possibly succeeded by her Secretary of State (Al Gore).
It seems without Karl Rove on the payroll, the Republican media machine seems to be falling apart almost as fast as the party itself; Eric Boehlert (interviewed on this blog here) gives us this take on the simultaneous meltdown of right-wing-noise-and-hate-machine stalwarts O'Reilly, Limbaugh, Coulter and Malkin, coinciding with the melt-down of the party writ-large.
Who knows? Cheap shots of attaching riders to bills to paint Democrats as "soft on defense" or "soft on terror" just won't mean quite as much as cutting off the kids' medical insurance, which, if taken to its logical extreme, will result in the bankruptcy if not utter penury of millions of working Americans. And enough Americans will finally come to realize that appeals to hyperbolized fear or good old racism moral values just don't cut it when one political party is trying to destroy their families... and the other party, for all of its shortcomings... is not.
Who knows where this will go? If I were Hillary, though... well, let's just say that it's never too early to start getting fitted for that inaugural gown pants-suit.
Stephen Truitt and Charles Carpenter are attorneys at the Washington, DC office of the firm of Pepper Hamilton (Mr. Truitt is now retired), and are counsel to three detainees at Guantanamo Bay, Cuba (one of whom was recently released). On October 9, 2007, I had the privilege of interviewing Mr. Truitt and Mr. Carpenter by telephone. What follows are my interview notes, corrected as appropriate by Messrs. Truitt and Carpenter.
The Talking Dog: Where were you on 11 September 2001?
Stephen Truitt: I was in or near our law firm's office, which is near the Treasury Building, around 200 yards from the White House, which was believed to have been a target. From the top floor of our office building, you have a good view of the Pentagon. There was also a view of the beginnings of a major traffic jam. I got to the roof to see things burning at the Pentagon. The skies were eerily empty, and were that way for weeks (rather than the usual plane landing at Reagan National every 30 seconds or so). And then the traffic jam ensued that reminded me only of the day Martin Luther King was assassinated, by comparison. I came to work on a motorcycle, and could get back to where I was going the same way-- often by going on sidewalks. The government simultaneously announced that bridges would be closed, but then told everyone to leave work, a particular problem for people who needed to cross into Virginia, not a small number in Washington.
Charles Carpenter: I was also in the office, and at one point in the morning, when the fourth plane was still believed at large (though it had by then crashed), a public address announcement told us to go to a shelter in the 4th level subbasement. We didn't think this was a good idea, and a small group of us went on foot. While we considered rumors of the metro closed, a colleague who had lived in Tokyo during the sarin attacks by the Aum Shinrikyo cult there suggested we not take the subway under these circumstances. We walked several miles to a colleague's house, and eventually, drove home from there.
The Talking Dog: Please identify your clients by name, nationality, and their current location (e.g., "Guantanamo Bay, Camp 6", "released to Saudi Arabia", etc.)
Stephen Truitt: We had one client who discharged us, Al Oteibi from the Kingdom of Saudi Arabia, who was released about a month ago. Next is Abdullah from Yemen, who is in Camp 6, GTMO. The third is Maher el Falesteny, which means "from Palestine", who has lived in Jordan and elsewhere, though he has no nationality or papers (and hence no country to say it will take him right now); he has been "cleared for release" since February as representing "no threat" to the United States or its allies. We are still wondering where he will go, given that he has never had nationality papers in his life. He presents a challenge to find a place for him, as he'd likely be at risk if he went to some of the likeliest places he might be sent. We have hoped to find a place for him in Serbia, perhaps, which has a Muslim population, and where we have connections with a local lawyer versed in Serbian asylum law and the United Nations High Commission on Refugees practices.
A little something about Abdullah--he is a small man, he listens well, like most of the prisoners he is quite religious, and surprisingly, laughs a fair amount despite the grave cruelties of his detention. While he believes lawyers are good to meet (perhaps to break up the monotony of his detention) he believes that his ultimate release will come not through us, but from Allah.
Charles Carpenter: He allows us to entertain our delusions that we can help him. He respectfully listens to our discussion of the evolution of the law, and he asks intelligent questions. He smiles, and allows us to play out what he believes is a game. The proof of the efficacy of our legal strategy is in the pudding -- he is still imprisoned, as are other prisoners who have "won" cases in the US legal system.
Stephen Truitt: And Al Falesteny in his mid-40's; he has a full beard, and is very intense. He is extremely bright... I remember one incident he relayed where he had been asked to take a lie detector test, but after suggesting he'd only agree if he was asked ten questions to which only he knew the truth or falsity of so he could test the reliability of the lie detector, the interrogators backed down.
Charles Carpenter: As to the Saudi client who discharged us, he made it clear that it was "nothing personal"-- I spoke to him recently, and he reiterated what he had said a year before, that he wanted no affirmative involvement in his captivity whatsoever, even participating in the American legal system which he believed acted to legitimate his illegitimate detention; I suppose you could say this is the equivalent of going limp or standing mute. He simply did not want to participate affirmatively in his own captivity. Perhaps one cannot argue with his approach, as he has been sent home before our other clients. As far as we know he is still in captivity in Saudi Arabia, but part of the rehabilitation program they have there, which includes, I understand, visits with family members.
The Talking Dog: Please tell me the current status of your client(s's) legal proceedings, i.e., district court habeas, circuit court DTA, Supreme Court review, etc. as appropriate.
Stephen Truitt: There are a lot of legal proceedings... it seems that like a hydra, when one head is cut off, three more appear!
As to Al Oteibi, he has a habeas case pending in district court before Judge Roberts (in which he technically represents himself), and no DTA petition. The government appealed from a 30-day order (that is, an order requiring 30 days notice before the prisoner is rendered, or transferred out of Guantanamo -- a number of prisoners have these orders, depending on which judge they have, and the government has appealed from all of them). Al Otaibi and Abdullah are on the same petition. El Falesteny has a habeas corpus case in district court before Judge Walton, and took an appeal of the denial of a request that we be notified before transfer. The appeal has not been acted on. We also filed a DTA petition in the circuit court for him; we have a scheduling order, and a motion for summary disposition/reversal was denied without prejudice, but remaining issues are presented for briefing.
As to Abdullah, we have a habeas petition pending in district court, and a DTA petition pending in the Circuit. As I mentioned, we have Judge Roberts for Abdullah and Judge Walton for Al Falesteny.
We have an order from Roberts barring desctruction of any evidence to do with the prisoners (Abdullah and El Falesteny) and we served it on the directors of the FBI, CIA and others. Our position is that they could be in contempt, if they don't preserve evidence.
We also have a pending motion for summary reversal in Abdullah's Circuit Court DTA proceeding, not yet acted upon. That is interesting, as it relates to the Yemen-United States treaty whereby Yemeni citizens are to be treated in accordance with international law (as under Asakura v. Seattle, such promises are enforceable). The CSRT process, of course, is grossly and grotesquely out of compliance with international law. Our position is that the CSRT process is, thereby void as violative of the Treaty, and hence, Abdullah must be let go. This is a related idea (there the treaty used was the Geneva Conventions) that was used in the dismissal of the cases against Khadr and Hamdan by the military commissions-- they were not designated "illegal combatants"- the term in the Military Commissions Act-- only "enemy combatants"... and hence, the commissions can't try them! The government's hastily assembled military commission appeals panel decided that this was true, the CSRTs are indeed inadequate and indeed labeled only "enemy combatants", but, the commissions themselves have jurisdiction to determine whether or not the defendants are illegal combatants itself!
This is not so bad, for it provides the defendants with far more rights than under the CSRTs than they have now... but the court said that illegal combatants were not yet determined by any CSRTs, because the CSRTs have never been asked to determine that status! Hence, EVERYONE at GTMO is held illegally. They can only be prisoners of war, or civilians, but NOT illegal combatants! Accordingly, anyone so held there who is Yemeni, such as Abdullah, is entitled to the full panoply of rights under the treaty (i.e. the Geneva Conventions) and hence, reversal is required in Abdullah's case! Even under U.S. law, he can only be a P.O.W., or a civilian-- there is nothing else under the scheme set forth by the Geneva Conventions.
Charles Carpenter: By the way: Abdullah was not captured on a battlefield-- he was arrested in Pakistan, in a city, by Pakistani police, and handed over to the CIA for "enhanced interrogation". We have raised these points in the litigation.
The Talking Dog: Have any of your clients ever been identified as subject to the military commissions? Have you observed any rhyme or reason vis a vis who gets released (besides what I have seen described as "the lucky passport", and who remains incarcerated?
Stephen Truitt: None of our clients have been designated for the military commissions. The rhyme or reason for why some are released and not others is entirely political. The first released were nationals of our allies, the Brits. Then the Afghans. For El Falestini, no one is pounding on the door saying "return him to us", and hence, he languishes.
Charles Carpenter: There have been only two roads out of Guantanamo-- one as you noted is the "lucky passport" of being from the right country, and the other is having a "lucky procedure", or being released on the eve of embarrassing court proceedings, such as Mamdouh Habib or the Uighurs. There may be more out there, and as court proceedings press on, there may end up being yet more "lucky procedure" releases.
Stephen Truitt: As to the big picture, in terms of reconvening the CSRT's, that may be in the cards after the Bismullah case. The gloss on Bismullah by the D.C. Circuit is that if the military can't reconstruct the CSRT record, we'll just have to say "you lose, start over". This is not so good for the Detainee Treatment Act cases, but the DTA cases may be the future... The Supreme Court is looking closely at Bismullah and the likely massive remands for new CSRTs-- which help establish that these DTA review cases are certainly not the equivalent of habeas corpus as advertised by the Government-- they are just an utter mess.
Charles Carpenter: The Founders intended the core legal action of habeas corpus was not suspendible, and the Supreme Court will likely tell us just that.
Stephen Truitt: Given the Congressional attempts to modify the commissions that just amounted to codifying and rubber stamping what the Administration had done, clearly our best hope is the Supreme Court, and not Congress. Congress has stalled in efforts to repeal the Military Commissions Act's purported suspension of habeas corpus because everyone is waiting for Al-Odah and Boumediene, where for the first time since 1947, the Supreme Court granted certiorari on a petition for rehearing. The Supreme Court may force "on the merits" decisions on the habeas cases, and determine once and for all that under the CSRT proceedings and their bobtail Circuit Court review, is not an equivalent proceeding to habeas, and ergo, there is a suspension, which is improper. Will they go so far as to overrule Eisentrager? This is unknown, though it is likely the Court will go as far as it did in Rasul, finding that at Guantanamo the habeas corpus statute and the Constitution still apply. I'm betting on a clear victory out of these cases. There are a couple of original habeas actions at the Supreme Court, which will likely be held together with the outcomes in Boumediene and Al-Odah.
The Talking Dog: While much of the American media pretends that GTMO doesn't exist, a number of amazing developments are going forward on the legal and political fronts, and I'm wondering if you can talk about them, or others you believe relevant, specifically (1) Congressional efforts to modify the Military Commissions Act by expressly restoring the right of habeas corpus, (2) the Supreme Court's acceptance of Al-Odah and Boumediene, (3) the Supreme Court "original" habeas petitions brought by George Clark of Baker and McKenzie and, near and dear to my heart, by Candace Gorman, (4) the recent D.C. Circuit decision in Bismullah all but telling the government to reconvene a bunch of do-over CSRTs, and (5) the stunning reversal by the made-up "military commissions appeal" panel that reversed the dismissal of the Khadr and Hamdan cases (and of course the Supreme Court's declining to hear Mr. Hamdan's new petition for review to block those new and improved commisions)...? ... ready, set... Go!
Charles Carpenter: I think the courts in general, except for the D.C. Circuit, have looked at these issues and realized that the government is way, way out in front of where it should be on the law. This is why we are seeing some stunning reversals, reminiscent, for example, of the stunning reversal of large numbers of the public on their feelings toward the Iraq war.
Stephen Truitt: Thematic of the abuse of executive power, seems to be that the attacks on the World Trade Center Tower brought out a recessive gene in our system, that being that the executive can do what it wants, unfettered, based on its "inherent" or "implied" authority We last saw this with Nixon, who believed that if he wanted to, he could break into Daniel Elsburg's psychiatrist's office without a warrant, because the 4th Amendment doesn't apply if the President says its about national security. This was the same view the Bush Administration took with respect to the fake courts it created b y executive fiat, a view that was struck down by Hamdan. It failed the Youngstown test... the Constitution or Congress's statutes cannot be bypassed by the President simply by calling it national security, and this also applies to wiretapping, or torture... torture is particularly obnoxious because, of course, the government keeps altering its definitions to muddy the waters of existing defintions. The UN Commission on Human Rights finds these definition games particularly alarming, as it makes prosecuting people involved in torture much harder. The case of United States vs. United States District Court involved a domestic rebellion in Michigan, where the Supreme Court held 8-0 that warrantless survellance was invalid.. the statute permitted wiretaps, but not without warrants... The David Addingtons of the world will push anything right now, until they are slapped down. And the Supreme Court has slapped them down before, and will likely do so again.
As to your specific queries, on attempts to reverse the habeas provision of the MCA, while we expect little from Congress, it is really stalled pending the Supreme Court's Al-Odah and Boumediene review (which will likely find that prisoners have habeas rights, CSRT process as augmented by DTA/MCA is not an adequate substitute, and thus the MCA is a proscibed suspension). I believe the original habeas proceedings will also be held in abeyance pending the outcome of the Al-Odah and Boumediene decisions-- the last time an original writ was allowed was in 1920 or so. As to the D.C. Circuit in Bismullah last week, the panel's decision will make it more likely that all the CSRTs will need to be redone, if the CSRT regime survives the Supreme court's decision in Al-Odah and Boumediene, which I doubt it will; indeed, the Supreme Court will no doubt be horrified at this outcome further miring the proceedings, so that it helps Al Odah and Boumediene at the Supreme Court, but makes a lot of trouble below. As to the military commissions appeal panel, their decisions both affirmed and reversed the dismissal by the commission below. The important part affirmed was that an Enemy Combatant (EC) determination is not an equivalent to an Illegal Combatant (IC) finding. The part reversed requires that the Military Commission undertake to make the predicate IC finding before proceeding to a criminal trial. This puts that question before a forum with much more procedural rights that the CSRT which is a bad joke-- which is probably good for the accused. The significance is that not one CSRT found IC status, and ergo, under the Geneva Conventions this means the prisoners are either POWs or civilians with still greater rights, until otherwise determined by a proper tribunal, which has not yet happened. Equally important in the Appellate decision is the application of Common Article 3 of the Geneva Conventions (of 1949) to determine that the CSRT procedure was flawed. The appellate court did not mention the provisions of the MCA which made resort to the Geneva Convention verboten in deciding the matter! Another important point of the Khadr appellate decision is that it leaves open the argument that the CSRT which "punished" but was not a proper tribunal under Common Article 3, is hence outright void, a point which we have argued in El Falesteny and Abdullah. Likewise important was its reasoning that it is not enough to be associated with Al Qaeda or whatever, material support or action is required. This echoes the 4th Circuit's holding in Al-Marri and the Supreme Court's in Hamdi. Finally, as to Hamdan's current Supreme Court appeal and denial, this is irrelevant and was a stretch by Hamdan, as only rarely are petitions before judgment allowed. The last time I recall was Dames & Moore v. Regan, so his case will slog through the circuit (like everyone else's).
The Talking Dog: While I'm kind of on that hobby horse, can you comment on the media coverage (both American and international) of American detention matters, and anything else you believe relevant to these matters? Can you include blog coverage†in your†discussion, if you wish, and how significant do you believe blogs are to the overall coverage of these issues?
Charles Carpenter: The prisoners are certainly interested in media coverage, such as "are their hunger strikes getting covered?" Certainly, Anna Nicole Smith and O.J. Simpson are more important to our media. The media likes soap operas more than Guantanamo. On the other hand, at this point, everyone seems to have a general understanding about Guantanamo and the issues; I don't find ignorance on this, wherever I go , I find people generally well informed and generally appalled . The media coverage may not be as broad as we would like, but it is there. (I was recently at the Montana Bar annual meeting, and spoke briefly in favor of the bar resolution condemning the Administration's departures from the rule of law, and calling for the closure of the prison. The resolution passed, but more to your point, the resolution was reported in local news media and everyone I talked to before and after the vote was fairly well engaged. These were lawyers, judges, state legislators, to be sure, but even the young woman working at the ice cream stand, on overhearing us discuss it, had an opinion.)
Stephen Truitt: There is also a pernicious journalistic engine at work; after we explained that Anna Nicole's baby got more coverage than hunger strikes, on our next visit, one of the detainees wanted to know what happened with Anna Nicole's baby! On the torture question and to the extent that the media overplays the "ticking time bomb" torture scenario, the House of Lords recently held that evidence obtained by torture is always inadmissible in the UK, even when obtained without the connivance or knowledge of the government, and has been illegal to 1628; the Law Lords noted that references to the ticking time bomb torture scenario in the real world principally occur at seminars in moral philosophy!
Charles Carpenter: People seem to get, in my experience, just how unimportant most of the prisoners are. Just look at the Commissions: At Nuremberg I, we tried Bormann, Goering and Donitz-- the real leaders. At Nuremberg II, we try Hamdan and Khadr-- a motor pool driver and a teenager who threw a grenade!
As to blogs, there is certainly an effect. Josh Marshall has been driving a great deal of the conversation of late, so certainly, there is an effect. Andrew Sullivan has followed detainee issues, and I think he is fairly widely read. They don't have an effect on George W. Bush, but then, nothing has an effect on him.
Stephen Truitt: Also, the media follows a lot of things driven by blogs-- there are reporters reading this! As to the overall picture, there are a number of programs out there that we still know nothing about... indeed, this may be why Alberto Gonzales testified that he wasn't sure which intelligence gathering program he was being asked about! Of course, people forced to testify may have to disclose deep secrets... then the question is whether they lie under oath, which, like John Ehrlichman, would land them in jail. Some feel duty bound to perjure themselves.
The Talking Dog: Can you comment on the various recent apparent assaults on attorneys who have been representing GTMO detainees, starting with Cully Stimson's well-calculated railings and continuing with efforts to limit attorney visits to the latest "underwear" accusations leveled at Clive Stafford Smith? Do you believe that any of this is intended to intimidate you (leading question!), and do you believe it has intimidated any of the lawyers working in this area, and has it effected your own practice?
Stephen Truitt: I don't think that its had much effect on my practice. Our clients care about their own business, and that's about it. One of the lawyers involved in this was asked to go to Texas to meet with a prospective client who was doubtless supportive of the Administration-- he was in the Marine Corps, and a former helicopter pilot in Viet Nam. The lawyer's colleagues thought that representing GTMO defendants might queer the deal. Well, when the pilot met the lawyer, he slapped the lawyer on the back, and said "someone has to represent these guys." In short, I don't regard this sort of thing as a serious threat.
There is a continuing feeling by the government that the lawyers are "interfering" in interrogations. But as Ted Olsen told the Supreme Court in the Rasul case, what it amounts to is that the government can't torture if lawyers keep going down, and hence, the prisoners shouuld be denied habeas corpus!
Charles Carpenter: We see the guys there every few months. We would soon find out if they were being tortured.
Stephen Truitt: The government's latest thrust is that the lawyers are unreliable, sneaky, and violate their protective orders. Certainly, the government distrusts the lawyers and does everything it can to interfere with our doing our jobs. If there is any doubt as to a lawyer's status, for example, it can take 6 months to clear it up.
Charles Carpenter: We haven't had any particular trouble in this area. Steve and I personally don't try to take a lot of things in, such as large piles of paper. This is easier for us than some of our colleagues, because we only have the two clients. Both of whom seem to like and trust us -- this makes our jobs easier, and limits the opportunities for the government to interfere.
Stephen Truitt: One recent example of troubling interference is what happened after Judge Urbina dismissed a group of cases after the Circuit's decision in Boumediene. The government took the position that the underlying protective order-- allowing attorney visits-- disappeared, and a more draconian order from the Court of Appeals had to be signed. The provisions went backwards and amounted to the government interfering in the lawyer client relationship... so Judge Urbina voided his dismissal order, and said that he found it small-minded on the part of the government to interfere with access to counsel.
The Talking Dog: Can you comment on the recent and perhaps stunning revelations in the New York Times regarding new and improved torture memos from (my former employer) the United States Dept. of Justice regarding new and improved torture memos from (my former employer) the United States Dept. of Justice? To the extent you can discuss this (and let me know if you cannot), can you tell me whether and to what extent your clients contend that they have been abused, mistreated or tortured in American custody, including with respect to receiving inadequate medical care?
Stephen Truitt: The new disclosures of torture memos demonstrate the same motives the Administration has always had: to muddy the water in this area to make it harder to prosecute for torture by blurring the very definitions of torture. Alberto Gonzales wrote memos deliberately taking into account that a future prosecutor (not him!) may take our torture statutes seriously... so the Administration cynically concluded that it could best avoid this by saying the Geneva Conventions don't apply! Other legal parsings amounting to how many angels dancing on the head of a pin such as torture that causes pain but not a fear of death are intended to exploit the “specific intent” requirement imposed by Screws v. U.S. on prosecutions under somewhat vague criminal laws. There the court added to a civil rights statute in a criminal context a requirement that a sheriff beating up a prisoner could only violate the plaintiff's civil rights if he specifically intended to deprive him of civil rights, and not just maim him! All this seeks to get around the total ban on torture, expressly outlawed under English (and hence, American) law since 1628.
In some sense, the idea is to put a gloss on arguably vague statutes that aren't so vague, but bar cruel, inhuman and depraved conduct. That has been most of the game-- to keep stripping down the ability to prosecute torture by moving the definitions around.
Charles Carpenter: And there is a significant faction in our government who simply believes torture works, and some way must be found to allow it. Their game is to find means to legally immunize it.
The Talking Dog: We are now six years and change past 9-11, and some or most of the men at Guantanamo will soon†have been there for six years, and certainly, in American custody in some for another for that time. Do you see any exit strategy, either in a macro for the whole of American detention policy, just for Guantanamo, or perhaps, with respect to your individual clients, and what do you see it as (whether legal, political, or something else)?
Stephen Truitt: Kind of like General Petraeus's narrow strategy for winning against the insurgents in Iraq, our narrow strategy is to cause as much trouble as possible to cause the liberty of our clients, though we don't know if the United States is any safer! We are moving towards open hearing. As Joe Margulies has said, the government will simply not back down until the moment we can hear the words "call your first witness."
Charles Carpenter: The government, when it is ultimately forced to, may have 40, 50 or 60 proceedings, but not over 300. At some point, it will be heading for the exits. The Saudis are going back in batches. The Yemenis could be taking more, and the pressure on them to do so will increase.
Our government should want to have the GTMO population down to around half its current level by the time it loses Boumediene in the Supreme Court, and then half again, by the time it has to implement the remedy. The government does NOT want 100 pending lawsuits with full blown discovery and everything else that will entail.
Stephen Truitt: An interesting development is the possibility that all prisoners would be freed; this is what the government has done in comparable cases (albeit small scale, such as Hamdi, or Habib)... but the government seemed surprised by the result in Hamdan... as General Washington said to General Braddock... "Beware of surprise!"
The Talking Dog: Is there anything else on these subjects that I should have asked you but didn't, or anything else my readers and the public need to know about these subjects?
Stephen Truitt: This is a very old story. Torture, abuse of habeas corpus, suspension of statutes (like Bush's signing statements)... goes back to the English revolution in the 1600's, and led directly to the habeas corpus acts of 1640 and 1679, the latter of which was entitled in part "An Act to Prevent Detention Across the Seas". Then, the Earl of Clarendon had private jails on Jersey and Guernsey, and at the request of the king, and would imprison people there supposedly beyond law... the whole thing was an atttempt to outrun the habeas writ, and then, as now, the attempt will ultimately FAIL, as will unlawful wiretaps, official kidnappings, and torture, just as the President's fake courts were struck down in Hamdan.
Charles Carpenter: This has been an interesting and rewarding engagement, and I wouldn't miss it for anything, and look forward to what we hope will be its favorable outcome, and the restoration of the rule of law.
The Talking Dog: I join all my readers in thanking Mr. Truitt and Mr. Carpenter for that thorough and 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 Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, 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, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA's extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, and with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, to be of interest.
Notwithstanding that the Academy of Motion Picture Arts and Sciences liked him enough to award him an Oscar, and now, the Norwegian committee charged with the prize has awarded former Vice-President Al Gore the Nobel Peace Prize for his work in publicizing the dangers of climate change, the American press corps will still tell us that Gore is stiff, wooden and boring, sighs too much, and of course (wait for it...) he's fat. Let's face it... notwithstanding that he is a happily married man (and a decent man) who would never dream of such a thing, with an Oscar and a Nobel Peace Prize in his pocket... is there any doubt that this man could get laid anywhere he wants, anywhere in the world? Well, almost anywhere, I suppose, as the Washington press corps would still tell us of his made-up inadequacies (inadequacies they made up, of course, because (1) they don't like him, (2) their corporate masters don't like him and (3) Mr. Scaife doesn't like him.)
And while he could be getting laid anywhere, is there anyone (who isn't mentally defective, such as a huge portion of the American electorate) who wouldn't rather have a beer with this guy than, say, the current idiot who infests our White House (who purportedly doesn't even drink!!! Hah, press corps? You'd "rather have a beer with" a MAN WHO DOESN'T DRINK? WTF kind of fun is THAT??? Hah, press corps?)
In just two weeks time, our next President turns 59 (and I turn 45); in just 466 days, she will be sworn in as our 44th President. While she is less liberal than her husband, I can live with that, as unlike him, she is not a pathological liar; I have come to the conclusion that she is perfectly "likeable"... she is just presented to us through a prism of a press corps that doesn't like her for the same reasons it doesn't like Al Gore... i.e., she is a Democrat who is not a pathological liar. Eric Boehlert gives us great examples of what we are all up against in this department.
While I understand that Mrs. C. and the former Vice President aren't on the best of terms, as Al Gore rightly resents Bill and Hill's affirmative interference with his Presidential run in 2000 in order to smooth Hill's way in now... and Al might have liked to run now (and may endorse Edwards or Obama... Al... wait!) let me just say, in the best Ally McBeal sense, "bygones". As Gore moves into ever greater realms of greatness, let me just say that President Hillary Clinton could do worse, and certainly no better, than nominating Al Gore to be her Secretary of State, with a special mandate to reconciile the harm done to our international standing that has been these last seven or eight years, and to forge world wide consensus to solve the climate change crisis, and then, down the road, in 2016 perhaps, maybe then Al Gore can take us toward consolidating the "Clinton legacy" for real (or more likely, forging "the Gore legacy") as President himself.
Just saying.
This is more or less the conclusion reached by the Supreme Court of the United States in denying review of lower courts' refusals to hear a case against the CIA brought by the ACLU on behalf of Khalid al-Masri, a German national mistakenly abducted and tortured for months by the CIA as part of its charming "extraordinary rendition" program, on the basis of the United States' assertion of "state secrets".
Ben Wizner, the ACLU attorney speaking to the press, notes that the "state secret" involved is, of course, hardly "a secret" at all, to wit, that the United States kidnaps and tortures people for no reason. (Well, there IS a reason: Dick Cheney and David Addington believe that it is absolutely necessary to show all them swarthy furriners-- especially them A-rabs-- that the US of A means bid'ness, and that the occasional furriner like al-Masri has to be tortured and then released to tell the tale).
Al-Masri has had to check into a German mental health facility, because apparently, being kidnapped and tortured by the CIA and friends for nearly a year for no reason other than being a Muslim male with the wrong name seems to bother him. What a wimp! Then again, he lives in an entire country of wimps-- a country with a decent public health system and national single-payer medical coverage, something us self-reliant and studly Americans wouldn't dream of (and ain't no rotten 12-year old kid's gonna tells us otherwise).
The traditional celebration of European success through superior fire-power and lack of native germ resistance Columbus Day, of which this would be the 515th anniversary, believed to be the day that Columbus's mini-armada landed in the Bahamas, took place on the 12th of October, before our last liberal President (Nixon) started to make every holiday save the three confined to their calendar days (1 January, 4 July and 25 December) a Monday holiday (as a liberal, Nixon liked the idea of giving the workers some contiguous time off, which stimulated tourism to boot!). I spent part of my own Columbus Day weekend completing the allegedly fast (but in fact rather challenging... for me, anyway) Steamtown Marathon in PA yesterday, adding PA to CO, NY, VA, VT, CT, NJ, DE and NC, and leaving me a mere 41 to go... the same day things were warmer in Chicago, where tragedy struck during its marathon, and hit our nation's capital as there was a fatality in the "Army Ten-Miler," in which at least one TD friend was entered. I can't even recall the last marathon I ran where the temp. didn't hit at least the mid-70's, and for most, temps went well into the 80's... those still insistent on denying global warming may consider all of this just something else to deny... but I digress...
Thematic of this Columbus Day/European agression thing is this first-hand journalistic account sent to us from Bruce the Veep (who else?), documenting the current genocide now transpiring in the entirely-forgotten Central African Republic, a conflict so bad, that many in the C.A.R. are fleeing to neighboring Darfur for safety. And what is fueling such a horror in quite literally the middle of nowhere (and the geographic center of the African continent)? Why, European aggressors, in this case, the French military, still fresh from France's role in facilitating last decade's horrors in Rwanda, are keeping the world (or at least, former French colonies) safe for resource exploitation by French industrial concerns. If a few locals get in the way, by say, demanding compensation for their troubles... well, let's see... paying millions of people fair compensation... or, buying a few attack helicopters (that can also prop out that sector of our industry while we're at it...)? Hey-- give me a hard one!
The French, while they are and should be singled out here for their particular brutality and for how effectively they are keeping their severe infliction of misery on millions of the world's most vulnerable people a complete secret, are hardly alone in just making sure that resources their own industry needs-- such as C.A.R.'s uranium for their nuclear power plants-- are readily available. (Others are also in desperate need for resources in other troublesome places, such as the Chinese, who buy lotsa oil from Burma and Sudan (home of Darfur), though the Chinese often seem to behave less nastily toward these places than Westerers might!), and of course, the United States and our "vital, strategic interests" in the oil-rich Middle East; see, "Iraq").
People have always been, and will go on, killing each other for resources, whether food or water, or farmland, or minerals, or oil, or whatever else is in short-supply somewhere, some time. This is not going to change anytime soon. While I am certainly making some kind of a point that the troubling hypocrisy about Western nations railing about human rights abuses by others, while themselves helping to slaughter civilians, propping up dictators, supporting or engaging in torture, etc. the broader point concerns (1) secrecy and (2) cost.
Until I read the Johann Hari account of the Central African Republic, I hadn't even thought about that place since the time I read it changed from the "Central African Empire" back to the Central African Republic, probably decades ago. While with over 200 countries in the world, most will not resonate much at any given moment, I do at least try to be informed. But I had no idea what was raging there... just as most Americans have no idea that the death toll in the Congo's civil war dwarfs most other current conflicts (including Darfur) for example. And while European complicity in the Rwandan genocide was suspected, Mr. Hari's piece provides more evidence that foreign involvement-- particularly from France-- was deeper than previously thought. The secrecy in which this has been conducted is remarkable; then again, the United States is currently blessed with a government hellbent on secrecy itself. Was it Max Weber who said "secrecy is its own justification?" Just understand that if the government-- any government-- was up to anything good, it would want us to know about it. Big time.
The other area of concern is cost. Using military might to ensure access is arguably cheaper than paying full and fair value. Or is it? Over 20% of our government budget-- and indeed, 5, 6, 7% of the American GDP goes to defense spending (more if one throws in "homeland security"). Yes, I understand that a significant portion of our economy goes to foreign trade (particularly oil and the inventory of Walmart), and its probably more than our defense outlay in gross terms. But the question, forgetting the incalculable moral cost, is whether these resources--which have limited or no value to the locals if they are stuck in the ground--would not be available anyway, through the magic of the free market, albeit without Western interention?
Many intelligent people have pointed out that the Middle Easterners themselves, for example, have every incentive to keep their oil flowing to the West... Saudi sand just doesn't get the same price as Saudi oil. In no small part, our government insists that our military is needed to "maintain stability" in those locations in order to justify itself. In other words: the Cold War is over. Russia, while not exactly our friend, is no longer overtly hostile. China can barely project its force beyond its own borders, let alone towards us. The Europeans and Japanese are by and large close allies. Everyone else left is a rather minor irritant, certainly when compared to our foes of the past. Ah, but if the threat posed by Middle Easterners who occasionally manage to launch a terrorist attack here is wildly overblown, coupled with an insistence on expensive military hardware being deployed to the region to "control" this problem (and to "protect our vital, strategic interests in the region"), well... who can argue with spending great amounts of money "to protect ourselves"?
And that's just it: we have taken this all for granted-- not merely the question of whether we need a massive combat presence in Iraq, but whether we still need a giant blue water navy or a giant air force, both of which work best projecting force somewhere else. (Our army, which can arguably used for domestic defense if Canada or Mexico proved hostile or anyone else were capable of getting here and threatening us at that level, is actually pretty small by historical standards, and most definitely smaller than we require for our current military operations). Would oil be that much more expensive if our military weren't heavily engaged in the Middle East? Would it be more expensive than the cost of keeping our military there?
Do I have an answer? I think the internet parlance response is "heh". I'm really more trying to throw out the question, which I'll phrase this way... Is our current insistence on "maintaining stability" in the Middle East through military means (I'll confine it there) cost-effective (and for this, feel free to include the moral costs, and the human costs, of those killed, crippled or otherwise victimized, on all sides) compared to the possible alternatives.
Discuss.
Thus is the logic of the current round of Presidential denials that the United States of torturers America... engages in torture (after a whole new round of secret torture memos was just unearthed) [h/t to Candace.]. Because waterboarding, or starving people, or subjecting them to freezing temperatures or loud noises or sleep deprivation or all of this at the same time while holding them in solitary confinement for years, or anything else that everyone else in the world universally regards as torture... isn't torture, because a conscienceless political whore with a law degree says it isn't, so it isn't. This logic is flawless, actually. (I would note this at Steven G. Bradbury's sentencing, when I sent him to prison for life for being beyond redemption or remorse for his role in advancing crimes against humanity, but hey, I'm not likely to get that chance, now, am I?)
Hey, look: I think the veto of the S-CHIP children's health program expansion (only the fourth veto of the Bush II Presidency, btw) was stupid and mean-spiritedly cruel, if not actually vicious, but there's really nothing structural about what particular level of funding we provide for a social program, even one as popular and desirable as health insurance for uninsured children. The fact is, Bush did it in the political open (even if he did it behind closed doors), and his party will have to pay the political price for it-- which might be severe-- or perhaps he will have correctly estimated the political price. Who knows?
The thing with the torture is that it IS structural-- it tells us that we have a government that is not willing to be bound by law, indeed, not even willing to be bound by understood norms of human decency. And it is doing all of this in the shadows. Ultimately, for this government, the only limits will be political- what it feels it can get away with. And torture, of course, debases us a society-- moving us in league with those societies better known for torture than those for not doing it... no names, please.
Torture is simply outrageous, and never justified, period, ever, end of story. (Even if the ticking-time-bomb fantasy had ever happened in the history of the world (and it has not), as Jim Henley has noted, it is as equally likely that the person being tortured screaming he knows nothing... actually knows nothing-- and will call out the details of a non-existent plot sending his interrogators on a wild-goose chase, resulting in their failing to uncover the actual plot, and L.A. gets nuked.) That our "leaders" are crazy, stupid, or downright evil enough to think otherwise is a testament to the unfitness of not only themselves, but of their so-called opposition for not calling them on it, our so-called free press for not calling both of them on it, and frankly, on the rest of us, for not taking to the streets in outrage.
But we've become inured to all of this-- downright comfortable. All I can say is... may God have mercy on all of us ( the kind of compassion that we have now made it very clear we can't spare for any "other" who we find irritating at any particular moment these days.) And yes... it's that bad.
Larry Sabato is the founder and director of the Center for Politics at the University of Virginia. Professor Sabato has appeared on national television and radio programs including 60 Minutes, Today, Hardball, and Nightline. A Rhodes scholar, he received his doctorate in politics from Oxford, and has been at UVA since 1978. In 2002, the University of Virginia gave him its highest honor, the Thomas Jefferson Award. Professor Sabato has written numerous articles and twenty books, most recently "A More Perfect Constitution: 23 Proposals to Revitalize our Constitution and Make America a Fairer Country". On October 3, 2007, I had the privilege of interviewing Professor Sabato by e-mail exchange.
The Talking Dog: My customary first question is "where were you on September 11, 2001"?
Larry Sabato: I was in my office preparing for my very first politics seminar of the new semester. It was one of the only classes I have ever canceled in my 29 years of college teaching.
The Talking Dog: Following on the 9-11 theme, let me jump right in with one of the key structural suggestions you make in your book, i.e., limiting the President's war making powers and requiring regular Congressional action to permit the continuation of such war making... Your book, of course, notes the natural tension between a deliberation oriented legislature and an action oriented executive in war powers... That said, do you have any doubt that in the national post 9-11 shock, helped by a surprisingly lazy media and weak willed opposition party-- do you have any doubt that the last 4 or 5 years re: our now widely-regarded-as-disastrous invasion of Iraq would not have gone down almost exactly the same way, even with the suggestions you make on war powers limitation (for example, Congress would have to face the same issue of "political courage" to continue such a war that the current one faces on funding votes right now... even under the current Constitution, Congress can stop paying for the war and end it that way)? In other words, would you not agree that while structure is important, ultimately, enough people can fall down on the job so that even the soundest structure can collapse?
Larry Sabato: Some have suggested that the better way to end a war like Vietnam or Iraq is simply to have Congress stop the funding of it. But both Vietnam and Iraq prove why this is very difficult to achieve. It becomes a question of “supporting the troops” rather than “supporting the war.” So many Congressmen and Senators who have doubts about a particular war nonetheless continue to vote for the appropriations, lest they be accused of not supplying troops with the best equipment, protection, etc. It was precisely this set of experiences that caused me to come up with a completely new and creative solution.
For those who haven’t read the book, A More Perfect Constitution: 23 Proposals to Revitalize our Constitution and Make America a Fairer Country, or seen the website, the short version is this: both the Vietnam and Iraq conflicts have illustrated a modern imbalance in the constitutional power to wage war. Once Congress consented to these wars, presidents were able to continue them for many years--long after popular support had drastically declined. A possible change is to limit the president’s war-making authority by creating a provision that requires Congress to vote affirmatively every six months to continue American military involvement. Debate in both houses would be limited so that the vote could not be delayed. If either house of Congress voted to end a war, the president would have one year to withdraw all combat troops.
By no means do I intend this as the end of the discussion. Each of my proposals is intended to be the beginning of the debate. There may well be better ways to accomplish the goals I am suggestions than with the proposal that I have outlined. I hope people will go to the website and make their own suggestions. You don’t rush into amending a constitution or holding a constitutional convention; it is a generational process, and indeed, it will be here, if anything actually happens. By the way, while I certainly support change myself, I will be pleased if this book does nothing more than encourage many thousands of Americans to go to their Constitution, read it, and think about it.
The Talking Dog: You note that among the most popular of the constitutional reform proposals you make is the elimination of lifetime tenure for the federal judiciary to be replaced with 15 year terms (presumably per level... i.e., one can serve as a circuit court judge for up to 15 years, and then a Supreme Court judge for up to 15 years) with a maximum retirement age. Let me ask you this... to what extent two particular cases-- Roe v. Wade, and Bush v. Gore-- have led to the popularity of this view? Given that the stakes of matters entrusted to the courts keep rising in our ever more litigious society-- how would you respond to my suggestion (made perhaps because I'm a lawyer), that of all your changes proposed, this court reform proposal alone may be the most critical-- as well as the most popular and probably least disruptive of the other branches?
Larry Sabato: Since you are a lawyer, you have clearly picked up on the support that this proposal has been gathering in the legal community. I actually wrote this independently several years ago, but since my first, similar proposals have been published by quite a number of others. I welcome this, obviously. I do agree with you that it could be quite a popular suggestion, and not terribly disruptive for either the executive or the legislature. I hope that people will take a look at the book to see the extended arguments that I make in support of these changes in the courts. A whole series of controversial decisions, including the two you have mentioned, have contributed to the public view of the Supreme Court and the inferior courts as being “super-legislative.” This is not a healthy development for the courts or for the country.
The Talking Dog: Two other critical reforms you discuss, besides expansion of the House, is the elimination of partisan gerrymandering for House seats (and I would suggest extending that and the Baker v. Carr one man one vote rule to prevent partisan gerrymandering for state legislative seats as well while we're at it), and a universal voter registration default (i.e., one would have to take affirmative steps not to be registered, and a generally available i.d. or other regular means to vote would be there and so forth). One thing you do not discuss strikes me as critical given, for example, Ohio's and Florida's moving along just this week to enact "voter fraud" rules that few doubt are designed to deter Democratic-leaning Blacks and low income minority members from voting, and that is a generalized federalized regiment for voting, counting and recounting procedures, at least for federal elections. How come you haven't proposed an amendment to unify voting requirements (including voting machine regulations, for example) throughout the 50-states (and over 4,000 voting municipal systems counted by GWU's Spencer Overton, for example) at least in general terms such as "Congress shall enact provisions for nationally uniform qualifications and verifications for voting, and methods of voting in national elections shall be transparent and verifiable (i.e. no "black box" electronic machines, recount provisions, etc.) Do you think such an amendment would be a good idea (I happen think it is second most critical, btw-- with ending partisan gerrymandering, of course--, only to ending lifetime judicial tenure)? Further, wouldn't this help ease one of the b ig problems with direct popular election of the President? Or, as you see it, does this present a problem as one party (we know who) would so strongly oppose this as to threaten the whole reform agenda?
Larry Sabato: Again, I want to encourage people to go to the website, www.amoreperfectconstitution.com, and make what we call “the 24th proposal” following on the 23 that I have made in the book. It may well be that people are ready for a detailed election methodology amendment to the Constitution, so that people can once again have confidence in the results of our elections. The Constitution should be a living, evolving document, just as the Founders and Framers intended. They could not have foreseen mass democracy, or the kind of situation that arose in 2000. They would have expected us to correct problems either with legislation or by means of a Constitutional amendment. We tried legislation and some do not believe it is adequate. If we have a constitutional convention, the delegates will decide whether this subject is important enough to include in new constitution, and then 38 states will have to agree that it is important enough, too.
We also need to remember, as you note, will have to end up being bi-partisan. Otherwise there is no chance that anything will improve in the end. Each change will be voted on separately at the convention and in the 50 states’ legislatures. But since a mere 13 states can stop any new constitutional reform, it is obvious that if the “Blue” Democratic states are opposed or the “Red” Republican states are opposed to a particular item, it will go down to defeat. Only reasonable compromises that stress structure and avoid ideology have a real opportunity to be added to the Constitution.
The Talking Dog: Just as reforming the courts is the most popular, reforming the Senate appears the least popular. Given your rather modest tinkerings (an expansion by 36--2 senators each to the 10 most populous states, 1 to the next 15 and one for D.C., plus a seat for each ex-President and Vice-President-- Wyoming would still be 35X or so overrepresented to Calif., compared to over 70X now!), would it not be better-- particularly given the Article V problem, as well as the unpopularity-- to just leave the Senate's structure alone, but perhaps to take away some of its unique privileges-- like giving the (more representative!) House co-equal treaty and appointment approval powers?
Larry Sabato: You raise a very good point. My changes do not eliminate the federalism in the Senate. That is, smaller states will still have disproportionate power, just not the over-leaning power that they have in enabling the small states with 17 percent of the population to govern all of the other states with 83 percent of the population. I think my proposal is a fair compromise, but again, your suggestion is a reasonable alternative that ought to be discussed in a constitutional convention. The call to convention would merely list the subjects to be discusses, and it would not precisely describe the reforms that might be adopted.
The Talking Dog: You are, of course, famous for your political "crystal ball", a web site (and other media) you publish from the University of Virginia, and I understand you are sometimes referred to as the most quoted professor in America for your political horse-race handicapping skills. On the subject of "crystal ball" prognostication, I understand you have criticized Dick Morris because you surmised that his predictions are frequently in error; Dick Morris, of course, was the very first interview subject on this blog. Let me ask you a forced and leading question... you are, of course, non-partisan (regardless of being credited or blamed vis a vis statements attributed to Senator Allen!)... Mr. Morris is frequently paid by campaigns as an advisor (albeit campaigns from both parties)... do you believe that such a role undermines his ability to be an accurate-- whether or not a fair-- prognosticator, and do you believe it would und ermine the ability of anyone to be a professional political handicapper-- i.e., are "independent" pollsters or consultants more reliable-- by your empirical or anecdotal observation-- than partisan ones?
Larry Sabato: Dick Morris is a very bright fellow and I certainly wish him well in his personal and professional life. But obviously, if one takes money from a political party, then one should expect reasonably that an accusation of bias will follow. I stay out of political campaigns except as an observer and commentator and I never, ever take money from partisan sources. Of course, I am an academic and this would be expected under normal circumstances anyway.
The Talking Dog: What kind of anecdotal reactions have you gotten to the universal national service (civilian or military) proposal for all Americans 18-26... anything beyond the polling, and where does your famous "crystal ball" anticipate that this particular aspect of the debate will go?
Larry Sabato: The universal national service proposal has already generated a major debate in many schools and colleges that use the Center for Politics’ Youth Leadership Initiative. Young people have very strong opinions of it---some in favor and some opposed. Older Americans are also divided, but less intensely. I am hopeful that over time, idealistic young people might be willing to consider this extension of John F. Kennedy’s Peace Corps. I make an extended case for national service in the book, and I probably enjoyed writing that chapter more than any other.
The Talking Dog: How would your crystal ball handicap the possibility of all, or at least some, of your suggestions resulting in an actual Constitutional Convention within the next, say 15 to 20 years? How about an actual enactment of at least one Constitutional Amendment (whether or not one you have proposed)?
Larry Sabato: As I say repeatedly in the book, any consideration of a constitutional convention is generational. It would take many years for this debate and discussion to play out. It’s entirely possible that a convention will not be held, but that individual constitutional amendments will be proposed and passed under the regular method most frequently used in American history. That is perfectly acceptable to me. As an educator, I am simply trying to help people focus on possible problems that exist in a text primarily written 220 years ago. Much of it has held up beautifully, but other parts are completely antiquated and any fair individual would admit as much.
The Talking Dog: One issue in the Bush Administration is that high officials seem literally above the law; Scooter Libby is a classic case-- the President's arguable abuse of the pardon power is frequently problematic (Ford and Nixon, Clinton's pardon of Marc Rich, etc.) I personally would also make the Attorney General a Constitutionally independent non-renewable ten year term position, nominated by the President, confirmed by both Houses-- to remove some of the political mischief we have seen in that unique office. I would also require any pardon to at least be confirmed by one House of Congress-- or better yet-- to at least permit Congress the opportunity to veto it by majority vote, for example, within a reasonable time after the pardon (Gerald Ford would have thanked me for this, and might have been reelected in 1976!). Again, is your sense that constitutional proposals like this just wouldn't fly politically... or is this somehow structurally unsound as a suggestion on my part?
Larry Sabato: I have long argued that the Attorney General, and all of the U.S. Attorneys, should be independent from individual presidents, and the individuals chosen should be picked for their competency in the law. I like your proposals to have them nominated by the president and confirmed by both houses of Congress. This could be accomplished by law as well as constitutional amendment.
The Talking Dog: In the past you have been very critical of the media (notwithstanding that you are arguably now part of it, at least, with your web-site which has spawned at least one "Not Larry" website of which I'm aware!), and you frequently appear on it, at least insofar as the media is now one of the elitist entities competing at the trough with other elitist entities rather than a "representative of the people" as it would portray itself... do you see any means available to lock in civics education (such as, say, mandating quarterly "state of the unions" or some regular direct "education function" by a President that more people would have to pay attention to, so that fewer people, for example, think that Judge Wapner-- formerly of the People's Court), or Judge Judy were the Chief Justice of the Supreme Court, or more people knew about basic aspects of governance? And what would you think of either eliminating (my preference) broadcast polit ical ads, or at least Constitutionally embedding some kind of fairness doctrine and campaign finance limitations (or, perhaps, providing free "franked mail" to challengers as well as incumbents)?
Larry Sabato: I am delighted that you are thinking creatively about civic education. I will simply tell you that this is my prime objective for the remaining years of my professional career, and it was my purpose in founding the U.Va. Center for Politics. I hope that your readers will go to our website and see all of the programs that we have to strengthen civic education in the high schools, colleges and communities in all 50 states. I also have some proposals on campaign finance in the book. I especially like the idea of providing franked mail for challengers, and I have included that material in a series of published over the last couple of decades. You can see how much influence I have, since none of it has come to pass! Of course, the incumbents would have to agree to provide franked mail to challengers. Good luck!
The Talking Dog: Is there anything else that you believe I should have asked you but didn't, or is there anything else on the general subject raised in "A More Perfect Constitution" that you believe my readers and the public should be aware of?
Larry Sabato: The Constitution's brilliance and originality have inspired millions around the globe to seek a better society where they live. Much of the Constitution's superstructure needs no fundamental fix, including the separation of powers into three branches, the system of checks and balances (with a few exceptions), and the Bill of Rights. The fault is not with these basics, and it's important to stress one fundamental truth from the outset: the framers of the Constitution did not fail us. Our forefathers designed the best possible system that could be achieved at that moment in time.
Bit by bit, in response to student critiques as well as my own--and the public's--growing doubts, I began to construct an alternate universe for parts of the American system. The ideas comprising this universe are at the heart of this new book. By no means are my proposed reforms a repudiation of the founders' principles. I believe that Washington, Madison and Jefferson would be the first to insist that the words in the Constitution are not the final word, and they would encourage us to start thinking about constructive changes in the constitutional framework. At the very least, we'll be better off for having thought carefully about the Constitution!
The Talking Dog: I join all my readers in thanking Professor Sabato for that thought provoking interview. Interested readers should take a look at "A More Perfect Constitution".
What else can you say about the sudden resurgence of the once anemic Hillary fundraising machine, which has caught up with solid debate performances and not-ready-for-primetime party opponents... giving Hillary a lead in quarterly fundraising and a 33% poll lead over Obama.
The Scaife-Wallace-Murdoch media machine (and, btw, Murdoch personally seems to like former Walmart board member Hillary Clinton) now has its knives out for Hillary (hence the perverse obsession with her clothing and cleavage). OTOH, it also looks like a lot of their steam is gone-- they might well be willing to concede 2008. Why else would they mau mau their best candidate as crazy and out of touch with their values (despite his voting record), and then, when their second best candidate emerges, insist that his veneer of Mormonism somehow disqualifies him, thus leaving it to an anemic good old boy TV DA and my fair city's deranged and sadistic former mayor?
And there we have it. My fellow 10-26'er Hillary looks like she's going to move back into the White House. My alleged college classmate Barack has not fared as well as hoped, fumbling a bit in the debates (making intelligent statements about meeting troublesome foreign leaders, for example) and now, missing key votes in the Senate, lest he be pigeonholed as standing for anything. And John Edwards just isn't catching on either; he's a relatively young man who would be well served seeking other office, such as governor or Congressman from North Carolina, if not recapturing his senate seat.
So Hillary it will likely be. Without McCain as a factor, she is no danger whatsoever of not getting my vote (even if I suspect she is somewhere to the right of Mitt Romney, the only Republican left with a real shot at beating her, and unlike her husband, for whom I did not vote before, and would not now). The rap on her is that a lot of people just don't like her; frankly, I actually kind of like her, myself, as a person. She is sincerely intelligent, and has something in mind for what she wants to get done. My thing is that I'm annoyed by her "centrist" and frankly sometimes downright right-wing policies, and her endless triangulating of positions, reminding one of her husband, the guy who IMHO should best be remembered as the man who cost us Congress. But there you have it. (Hey look: none of the other candidates spoke out against Gitmo or the treatment of Padilla now, did they?)
With John Kerry, it took me a little while to reach the point of holding my nose and saying I support him. Hillary is a tad easier to do that with. Obviously, she can implode and create an opening for someone, but that's not how you bet, right now. Until further notice, she appears to be the heir apparent.
And for good measure, every little girl in American can now grow up dreaming that they could marry be elected the President of the United States.
And that alone is a pretty big thing.
My friend Candace (she's interviewed here) reports that the Supreme Court of the United States has accepted her original petition for habeas corpus on behalf of her client Abdul Hamid Al-Ghizzawi; the petition itself may be found here. Candace was nice enough to let me make some editorial suggestions with respect to this petition, some of which actually made it in there; hence, I take more than a rooting interest in this particular case.
We've been in legal never-never land for so long that it's often hard to remember those naiive days when many of us actually believed that the President didn't have the ability to lock any of us up solely at his whim, potentially forever... in short, that we were a country ruled by law rather than by men. But 9-11 changed everything, including, evidently, our tolerance for dictatorship.
This is the front-line in the war for this country's soul, boys and girls, not to mention what kind of a country we hand over to our children. The national regret we will feel some 20 or 30 years from now (as was the case with respect to Japanese internment) just ain't gonna do it... this is up to us... right here, and right now; while I'm optimistic that the Supreme Court will do the right thing for Mr. Al-Ghizzawi, the thing is... Candace's client is deathly ill, and we can only hope that this man, whom the government's own "combatant status review tribunal" once cleared of any involvement in terrorism or action against the United States whatsoever, only to receive a "do-over" tribunal (and he would have had another and another, until eventually the correct answer of guilty was reached)... held in abysmal conditions for five years, deliberately not treated for life threatening liver disease by the military... manages to live to see his rights vindicated.
It's not much, but it's all we got...
Update: Candace reports that the government has been ordered to respond to the petition on 31 October... stay tuned...
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