Every adult in America probably remembers 9/11 in the immediate sense - the first time hearing the news, seeing the images, the confusion, uncertainty and fear of that day - but it seems like our memory of the period immediately after is hazy. For a month or two we were traumatized as a nation and had trouble understanding what had happened, and what should come next. By the end of 2001 the drumbeat for war had begun and it is possible that fixing our attention on how best to attack Iraq served as a psychological crutch by giving us something to focus on. This is not a professional opinion, just an observation based on what I went through and saw others going through. (And it is emphatically not an attempt to rationalize the Iraq war.) One extremely unfortunate byproduct of that period is the USA PATRIOT Act (UPA); two recent events are the latest examples why.
The UPA floor debate in the House gives a good reminder of what the original intent was. James Sensenbrenner broadly described it as “landmark legislation [which] will provide law enforcement and intelligence agencies additional tools that are needed to address the threat of terrorism and to find and prosecute terrorist criminals.” Michael Oxley chimed in with this:
I rise in support of the legislation, particularly the provisions in title III which would represent the most comprehensive anti-money laundering legislation which the House has considered in more than a decade. The legislation gives the administration important new tools with which to wage a global financial war on terrorism, and to starve Osama bin Laden and others like him of the funding needed to commit their acts of evil….With this legislation, we take a critical step toward smoking terrorists and other criminal organizations out of the offshore financial bunkers that for too long have offered them safe haven.
Look at the stated targets: Terrorist criminals, terrorists and other criminal organizations, Osama bin Laden and others like him. Even well afterward Orrin Hatch declared “Congress enacted the USA Patriot Act, in part…to increase consultation and coordination efforts between intelligence and federal law enforcement officers to investigate and protect against foreign terrorist threats.” Who could possibly object? Robert Scott of Virginia, for one: “First of all, this has limited to do with terrorism. This bill is general search warrant and wiretap law. It is not just limited to terrorism. Had it been limited to terrorism, this bill could have passed 3 or 4 weeks ago without much discussion, but we are talking about wiretapping law.” But we weren’t pausing to consider such esoteric concerns then.
Subsequent events have shown why Rep. Scott was precisely right. Eliot Spitzer was caught because of the suspicious activity reporting rule in the UPA that was aimed at money laundering and terrorist financing. Then there is the Briana Waters case. Waters is accused of “domestic terrorism”, a new category of crime created by the UPA. She was recently convicted of participating in arson at the Center of Urban Horticulture on the University of Washington campus. The building was torched in the middle of the night and sustained $2.5 million in damage.
Please be very clear on the following: My concern here is not with the details of either case nor the guilt or innocence of the accused. All I want to point out is the fact that provisions of the UPA are already being used outside of their initial scope. When Congress was all too briefly (via) considering this bill we were told over and over it was all about the Osama bin Ladens of the world. We were assured the government would use its new powers with restraint in solemn acknowledgement of the gravity of the threat. That simply was pure bunk. The abuses began almost immediately (via) and have continued to the present. There is no reason to expect it to stop. Authorities test the limits of new powers for the same reason a three year old tests the limits of parents’ patience: To see how much they can get away with. When the new powers are accompanied by minimal oversight or a cowed and timid populace the abuses will be much more frequent and severe. These latest abuses of government power give us reason to step back and reflect on what we are doing to ourselves, and it certainly should be at the front of our minds now that Mike McConnell and Michael Mukasey are telling (via) us over and over how desperately they need (via) additional new powers to fight the terrorists.
There’s been a question rattling around my brain for a while now: Where have the Second Amendment champions been the last few years? Those in favor of liberal gun ownership laws usually speak about it in abstract terms, most commonly harmony with the land and guarantees of liberty. The first argument hasn’t been seriously challenged, but what are their thoughts these days about checks against a tyrannical government? Shouldn’t the burgeoning surveillance state be anathema to them? Isn’t this the kind of issue they should be up in arms (har) about? I would have thought the massive increases in spying and indiscriminate data sweeps would be an unsupportable infringement of their liberty.
The least charitable explanation is that they don’t really believe all the high-flown language they spout - they really just like making big noises and blowing stuff up. I don’t buy it, though. There are people like that in the world but not enough to sustain a movement. It could be they don’t really bother unless a physical intrusion is imminent. If ATF agents are rolling towards your house it’s time to man the barricades, but if the FBI is quietly vacuuming up every email and phone call it isn’t such a big deal. That seems possible, but I suspect if they are concerned enough to consider gun control an intolerable intrusion by the government they are also emphatically opposed to anything else that smacks of it. Maybe they figure they’ve got their hands full with firearms rights and can’t spare the effort elsewhere. But that just leaves me with the nagging feeling that they know something really bad is happening and on balance are OK with it. What causes a group to assent to a situation that goes against its core beliefs? The only explanation that adds up is tribal loyalty.
It may be officially neutral on politics but firearms groups like the NRA have been largely associated with Republicans and the right wing for a long time (I know there are exceptions - I wrote “largely” not “entirely”). Political affiliation is a tribal membership, and those ties create a sense of identification that resides at a very basic level. We typically think of tribal conflict as something that only happens in remote and undeveloped areas, but believing that blinds us to the fundamental ways we align with different groups. And for the record I do not consider myself immune to it. I think it explains a great deal of the contemporary political landscape. In the case above it explains why a group might generally ignore a development that strikes at the very heart of one of its central concerns. Loyalty to the tribe dictates a decorous silence until the presidency goes to a more palatable opponent. We tend to dismiss such light treatment of ideals as hardball politics, but more accurately it’s loyalty to the tribe.
M.J. Rosenberg wrote of Charles Krauthammer this week “[h]e believes that Israel must triumph in every situation because it is innately right while the Arabs are innately wrong”, which is as nice a summary of tribal thinking as you will find. James Carville compares Bill Richardson to Judas, Merrill McPeak compares Bill Clinton to Joseph McCarthy - these are coming from people in “camps” with clearly drawn boundaries, and they glare suspiciously out from them. I don’t think it’s enough to say politics ain’t beanbag and this is how the game is played. It isn’t just semantics - describing it as, say, overheated rhetoric instead of tribalism is extremely significant. For one, it tends to minimize the intent of it and disguise the motivation behind it. More importantly it keeps us from confronting how it drives our own actions, or from acknowledging when it prompts us to dismiss principles we claim to cherish.
Maybe I have been oblivious to it all my life, but it seems that the razor-thin and contested election in 2000 and terrorist attack the following year either created or revealed tribal identities that had gone unnoticed for a long time. Many retreated into territories defined by politics and religion. In this historic primary season it has happened again, now along racial and gender lines. It isn’t absolute by any means, just much more clearly marked. All of it is driven by group identification, and in that sense it comes from a level too low to be reached by persuasion. It may be dressed up in formal clothes, sober tones, a big vocabulary and impressive rationalizations, but much of the time what passes for dialog seems to come from some of our most primitive instincts.
Attorney General Michael Mukasey had an “informal meeting” in his office Friday wherein he candidly told them the scope of the threat from terrorism is far, far greater than he ever imagined. This says more about his crippling lack of imagination than it does about the scope of the threat. I’ve been opposed to him from the start because the circumstances around his nomination didn’t add up, but I’m still surprised at what a disaster he is. It’s as though the administration has some kind of re-education camp where even those with distinguished records get brainwashed into toeing the authoritarian line.
Mukasey also said (via) that “[t]he Senate passed a workable, bipartisan bill that contains some compromises. The House passed a bill that was neither bipartisan nor workable.” Apparently part of the re-education involves defining compromise as giving the President exactly what he wants. And what exactly was the deal with this informal meeting that it gets varied reports from multiple news organizations? It doesn’t sound like he corralled a random reporter for a quick talk when he had a few spare moments in his schedule. It sounds more like a press conference without all the pesky questions.
All of this is in addition to Mukasey’s Paradox (via) as described by Jonathan Turley where “lawyers could not be charged criminally because the president ordered them to commit the act — and that the president could not be charged criminally because lawyers told him he could do it.” This naturally “will result in administration officials being effectively beyond the reach of the law”. Mukasey is a disaster, pure and simple. He may be worse than his predecessor because the expectations going in were higher but he has performed just as poorly.
Finally, a note on the site. I’ve got it moved to pruningshears.us so please update your links. I think it’s much easier to remember and I’m glad to have it parked at a top-level domain. I’ve also changed the colors and site icons, and added some social bookmarking buttons. I hope you notice and enjoy the differences.
The President has one thing in common with his predecessors: He claims to not care about his legacy. Most seem to say that at one point or another; in this case “[w]e are still arguing about the record of the first president…I’m sure they will take their time when it comes to judging my record.” It is one of the more benign lies he has told, maybe because it only reveals his comprehensive inability to understand history. There is no harm in that kind of ignorance, though it has grave implications when it comes from your leader. Of course, I would love to know what exactly he thinks we are still arguing about with Washington. Does anyone think he was a terrible President? His farewell address is universally regarded as a gift to the country, especially its call to avoid foreign entanglements. Leaving office after two terms and helping an orderly transfer of power to a successor was a move of great courage considering the former general could have strangled the republic in its crib if he had wanted. What are we arguing about again? And of course even if it were true he neglects to consider more recent Presidents like Harding and Hoover whom everyone pretty well agrees were terrible. Not too many arguments there. Contemporaneous opinion about Presidents tends to hold up, which makes someone like Truman a very rare exception. In other words, don’t expect your stock to change too much.
Of course, he clearly does care about his legacy. I’m no fan of his so maybe the following is unfair but here’s a quick review: No Child Left Behind (mixed results, likely to lapse); tax cuts (likely to lapse); surpluses into deficits; Hurricane Katrina (botched response, no follow through); 9/11 (failed to unite nation with sense of shared purpose and sacrifice; told us instead to keep shopping); the economy (bad and getting worse). The only potentially bright spot is Medicare Part D. In foreign relations he started the Afghanistan war well but has handled it poorly since; alienated allies; was a credulous boob with strongmen (Putin, Musharraf); aggrandized enemies (Iran and North Korea, though the latter has greatly improved); and astounded the world by actually making the Israeli-Palestinian conflict worse. And of course Iraq.
All the problems above are stubborn in some way. In the time left there simply isn’t a lot of room to change them fundamentally. He can nibble at them now and maybe change course a bit but by and large he won’t be able to turn those battleships around. Executive power is another matter. He has made extraordinary claims and the question now is, what will future Presidents do about it? He may fairly echo Ben Franklin when the next one asks him “what have you left me?”: “A unitary executive, if you can keep it.” Will the next one claim executive privilege to cover up any politically uncomfortable truth, or make extensive use of signing statements to justify not following the law, or inflate relatively modest tools like Status of Forces Agreements into robust ones like treaties? The candidates aren’t saying at the moment, but unless they explicitly disavow them (as John McCain has on signing statements) we should expect them to happily do so.
Much more interesting is the gray area between executive power and lawbreaking. This year the President’s top legislative priority started out as getting the Protect America Act made permanent. That seems to be off the table, so he scaled it back to just telecomm immunity. As others have noted the priority now is clearly to not let what he has been doing ever see the light of day, but even his allies acknowledge “his political capital is waning”. The lawsuits against the telecom companies will likely have explosive revelations about what the President ordered them to do. The great problem for him is that his activities are not the subject of the suits, but potential evidence against others. Once discovery begins it all comes out. At that point the damage is done - the political backlash will likely be immense and immediate. The verdict doesn’t matter, only the airing of secrets. The same is true for additional details on our torture regime, the retrial of Joseph Nacchio and the activities of the CIA that seem to require wider and wider insurance coverage. Revelations in these and other areas promise to continue to emerge long after he leaves office and he surely considers that a mortal threat to his legacy. He wants to put them beyond the reach of inquiry before he leaves, and that may consume more of his energy than anything else. If he could take every shovel full dug out for his library and dump it on these inconvenient secrets he surely would.
One of Congress’ many recent failures is that it has allowed the 2002 Authorization for Use of Military Force (AUMF) to expand to meet the President’s every new demand on Iraq. Since the Constitution empowers Congress with declaring war it is perfectly valid to say any use of soldiers in war without one is illegal, yet as a body it doesn’t seem to care. This is a tangential issue since we haven’t had a formal declaration of war since World War II, but the willingness of Congress to allow war without its explicit approval should at least be mentioned.
The drawback of the half-a-war approach is most obvious now. The AUMF is now being invoked to justify a treaty disguised as a Status of Forces Agreement (SOFA) and it puts Congress in a bind. Of course it is probably as likely that House and Senate leaders are only too happy to let someone else call the shots in Iraq - it looks like it will end up being the biggest foreign policy blunder in our nation’s history; no one wants to volunteer to take a piece of it. Embrace it and you have to explain how we continue to turn the mother of all corners and when it will be done. Right now there is not the faintest hint of a policy for Iraq, no vision of what the mission even is at this point. Embracing the war means embracing the man who dictates the plan, and he has none.
Still, if Congress was theoretically interested in getting involved and challenging him on the latest fruits of his seat-of-the-pants strategy there are options. For one it could begin publicly floating drafts of treaties as trial balloons. It would get the word out to Iraq that the body in charge of signing treaties may be willing to collaborate on a document that might lead to a finished product. None of it would be legally binding and the President could disregard it but it might not be easy. We see the same situation in reverse when he presents his “budget” to Congress every year. Someone always says it is dead on arrival and in fact the President has no authority to write the budget or even modify it. His only choices are sign it or veto it.
On the other hand, it still influences the process: It sets parameters for debate by getting major points out in the open. If the President’s budget calls for a 25% increase in military spending he probably doesn’t expect a 25% increase, but a Congress considering a 5% increase might up it to 7%. It also signals what the President will and won’t sign. He could take a hard line and veto anything not entirely to his liking but Americans tend to get cranky when government shuts down on big issues. In other words, Congress could begin to force the President’s hand just by getting some ideas out there.
It could also nibble at the SOFA if it wanted. GlobalSecurity.org describes the three kinds as “administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status [if they called it technical and administrative they might get more peoples’ attention - Dan]; a ‘mini’ status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement.” Congress could demand that it be classified as one of those three and maybe push for the first (most limited) version. The President would then have to come out in favor of the full-blown version, which would make him look ever more intent on keeping us dug in there. Even with the full-blown version Congress could then say the military had to live up to it and transition to “day-to-day business, such as entry and exit of forces, entry and exit of personal belongings (i.e. automobiles), labor, claims and contractors, and susceptibility to income and sales taxes.” In other words, pull back within the country itself. SOFAs are clearly not meant for ongoing combat operations and Congress could get the word out early and often. In doing so they could seize the advantage in the debate.
Once again I realize this is all somewhat academic since there is no evidence Congress would like to take the lead on Iraq. Still, it could begin reclaiming its rightful authority in foreign policy even at this late date. It could begin pulling the President back towards a more traditional executive role and start undoing some of the damage that’s been done. There is no reason to expect it will, but the tools are still there, gathering dust.