I’m pleased to not use the title “This Week in Tyranny” because of the Supreme Court’s ruling this week striking down (barely) the administration’s attempt to create a legal and judicial netherworld in places we control but aren’t technically ours. It is an almost palpable relief to see our highest court stand up so emphatically for the Constitution. Instead of issuing a dissent Antonin Scalia therew a temper tantrum; perhaps we should change his nickname from Nino to Niño.
Lame duck periods have historically been very quiet. Eisenhower’s negotiations with the Soviet Union were derailed by the U2 incident, and while he signed the Civil Rights Act of 1960 he didn’t champion it. Johnson was too unpopular to get anything big done by the time he term-limited himself. Reagan limped to the finish in the wake of Iran-Contra and Clinton in the wake of impeachment. Probably all shared some feeling of simple courtesy toward their successors as well - don’t dump some big new program or policy on the President-elect. Clear the decks as much as possible; leave the next one a clean slate. Our current President is having none of that.
The most recent sign came with Leila Fadel’s McClatchy report on Monday that begins “Iraqi lawmakers say the United States is demanding 58 bases as part of a proposed ‘status of forces’ agreement [SOFA] that will allow U.S. troops to remain in the country indefinitely.” I have written previously about how Congress could lead on this. It is the branch that ratifies treaties and it is clear that a SOFA is very limited. Establishing a long term military presence that nearly doubles our current number of bases and essentially formalizes our role as an occupying power stretches its intent past the breaking point. It puts us into “looks like a duck” territory.
Another issue that refuses to go away is FISA reform. From the debate over the Protect America Act, to its passage, the excitement over its expiration and the attempt to get some kind of permanent version passed there has been a remarkable amount of lying, deception, and what can only be charitably called sloppy reporting. Of the last, the most recent came from Eric Lichtblau this week - and was quickly, comprehensively and hilariously taken apart by Glenn Greenwald. By all indications the finished product would be a major piece of legislation. The biggest sticking point has been retroactive immunity for the telecom industry. Right now lawsuits over their cooperation with government surveillance are in process, and potentially the most explosive part will not be verdicts or even testimony but discovery. At that point we will start to see just how indiscriminate and invasive the spying has been, and the public will likely be furious. Shutting them down now is a major decision and deserves a public discussion. Other aspects of FISA reform are extremely important as well. At this late date the President should not push for something to get hustled through. We are on America’s clock now, not his.
Then there is Iran. James Fallows has some history of the saber rattling along with some recent rumors. For one example, last year then-CENTCOM commander William Fallon reportedly said an attack “will not happen on my watch…There are several of us trying to put the crazies back in the box.” (That kind of outlook in the current administration is a good way to give your job title a “then-” prefix.) Still, Fallows’ new warning is important. There have been rumblings of a surgical strike and a limited campaign, but if we have learned anything in Iraq it is that the law of unintended consequences can easily turn quick strikes into massive blowback. (This is the charitable explanation - less charitably, the consequences were intended all along, or consequences of either type were never considered.) If it is a bad idea to change horses midstream then isn’t it even worse to enter the stream knowing you will have to change?
Here is an early test of Barack Obama. John McCain is on board with all the major current policies so there is no reason to expect he would object. But if Obama objects he has options. He could announce on the campaign trail that effective immediately he will repudiate any SOFA negotiated by the President unless he first gives it his blessing. (The “politics stops at the waters edge” policy was suspended on May 15th, and don’t fool yourself - he was referring to Obama (via) until the criticism started.) Obama could take to the floor and lead a filibuster of any radical FISA overhaul. He could forcefully come out against strikes against Iran and promise impeachment hearings for any military action not authorized by Congress. He could short-circuit just about any grand design at this point; if push comes to shove will he?
There are already comparisons made between the high crimes and misdemeanors that got Bill Clinton impeached and the ones that will likely go unpunished with his successor. If the trend is that the former did something bad and the latter did something catastrophic then consider: The final act Bill Clinton is most remembered for as President is his pardon of Mark Rich.
The tribunals established by the Military Commissions Act are turning out to be as messy in practice as they looked on paper. Five of the accused appeared in court and according to Reuters
[t]he judge, Marine Col. Ralph Kohlmann, tried to persuade the men to accept their military lawyers, but all refused.
Aziz Ali said he had barely been allowed to meet with his lawyer anyway and described him as “a signboard” hung up so the government could say, ‘Hey, we give these people lawyers.’”
“All this is just a stage play,” he said.
Khalid Sheikh Mohammed was one of them. He is an accused 9/11 mastermind and most likely the kind of scumbag it would be awesome to see rotting in jail for the rest of his life. Here were his thoughts about the kangaroo court:
“They mistranslated my words and put many words in my mouth,” he said in broken English learned as an engineering student in North Carolina.
He called the trial “an inquisition” and added, “All of this has been taken under torturing. You know that very well.”
Ladies and gentlemen, there in a nutshell is the problem with extra-judicial proceedings and torture: Even if they arrive at a proper decision and are justified (according to your morality) their irregularity taints all outcomes. Everything about them is suspect to the civilized world. They will not ever be considered legitimate, and they actually reduce the likelihood that the Khalid Sheikh Mohammeds of the world will come to ultimate justice. Instead we are turning them into martyrs.
I’ve previously complimented John McCain for positive indications on executive power. All bets are off now, though. He basically reversed his previous positions. God bless Charlie Savage for getting him on the record in the first place and Glenn Greenwald for emphatically noting its significance.
Twenty former U.S. attorneys, both Republicans and Democrats, urged a federal judge Thursday to intervene in a constitutional battle over whether two White House officials should be forced to testify before Congress about the firings of nine U.S. attorneys.
I hope this has an effect, but I am not optimistic. Even if it helps persuade the judge I don’t see the President allowing the testimony. And yes, even if a federal judge rules against him it will not happen without his permission.
Scott McClellan’s book has started some extremely interesting conversations. His allegations are not especially important by themselves, mainly because it is easy to suspect ulterior motives. A number of critics have noted he has no natural allies in Washington and could not expect a soft landing at a lobbying firm or think tank; the only way for him to cash in is with blockbuster sales. Another reason could be self-justification, which may well be one of the few high growth areas created by the current administration. The broad contours of this Presidency are clearly visible now, and even the most blinkered partisans know the judgment of history will be extraordinarily harsh. As an amusing consequence there is already a budding industry of entertaining attempts to show how successful it has been (or will be). For example, Ross Douthat floated a trial balloon suggesting that if Iraq is not a complete hellhole thirty years from now the conventional wisdom will be to credit the forty third President. It was almost immediately swatted down and then essentially retracted (via). All I can add to the discussion is to refer you to John Maynard Keynes.
In any event, McClellan is not a very persuasive messenger. His argument that being caught up in the “permanent campaign” attitude in the White House does not hold up very well considering that he will not now admit to any wrongdoing. Dan Froomkin pointed back to a very ugly press briefing where McClellan defended an administration claim of authority to torture. When pressed he implied those opposed to it were against the administration “doing all [they] can to protect the American people”. Those are not the words of a stooge or a useful idiot, they are the words of an enthusiastic and dutiful propagandist. He now writes how senior officials “allowed me, even encouraged me, to repeat a lie”. He claims they used him to launder their untruth, and he was nothing more than the ventriloquist’s dummy through which their disguised voices passed. He himself had no agency; all he could do is uncritically repeat the breezy assurances he was given.
His unconvincing rationalizations point to an important truth, though. And that truth is, fear dominates our nation’s capitol. Press coverage has noted his reversal on criticism in hindsight. As press secretary he said of Richard Clarke’s book, “[i]f he had such grave concerns, why didn’t he come out with them sooner?” Now people are asking the same of him, and his answers do not have the ring of truth. He was no unwitting dupe - he knew the concerted effort to push certain parts of the case for war, ignore inconvenient aspects of it and present dramatic claims from dubious sources like Chalabi and Curveball amounted to a propaganda campaign designed to deceive the American people. His knowingly restricting his scope does not absolve him of what he did out of (at best) pure ignorance. No, he knew what he was doing, and he kept on doing it for a very different reason. Thankfully some have started to notice.
The administration has successfully intimidated the most important parts of the Washington D.C. establishment. Those who work in the chain of command in the executive branch know that if they do not follow the party line they will be dismissed. Those who are uncomfortable being apparatchiks eventually leave, but they know speaking out will provoke a fierce response (as McClellan is now finding out). The Democrats control Congress but have shown no willingness to force a showdown over any of the administration’s broad claims of authority, and with all due respect to Marcy Wheeler I don’t see Henry Waxman gearing up for a game of Constitutional hardball. Even though they could forcefully push back against an unpopular lame duck President, they are afraid to.
Major media outlets spiked stories critical of the White House and admitted a reluctance to even try because “it’s live, it’s very intense, it’s frightening to stand up there”. Knight Ridder (now McClatchy) was an admirable exception to the trend and is the only outlet to credibly argue it was not ruled by timidity. And last week we saw the latest example of what happens when someone resigns and speaks out. Within the administration, throughout the executive and legislative branches, in the press - the word is out. Speak up and your job, reputation and employment prospects may be ruined. There is no bubble, no Constitutional roadblock, no lack of solid evidence. There is just pure, unvarnished fear.