DOJ To Face Defeats In Supreme Court

Ken AshfordWar on Terrorism/TortureLeave a Comment

This Newsweek article lays it on the line: it looks like Bush and the DOJ are about to get bitch-slapped by the U.S. Supreme Court, and they know it.

The overall administration argument of the Padilla case, as well as the GITMO cases, is that "we are in a time of war, and because of that, we — as a matter of law — can suspend (or outright ignore) the law". This theme has been fortified by the "torture memo" of much recent discussion.

The problem with ignoring the constitutional protections of the accused (whether they be foreign or domestic) is rather obvious — they simply have no means to show their innocence, a cornerstone (I submit) of our country. Interestingly, the Newsweek article suggests that, at least in Padilla’s case, this danger has come to pass. Put simply, it’s not clear that Padilla actually committed a crime or, at the very least, not the crimes for which he was originally imprisoned.

The Padilla and GITMO controversy reminds me of a scene from "The West Wing". The cast members — White House Press Secretary C.J. Craig, Communications Director Toby Ziegler, Deputy Communications Director Sam Seaborne, and Deputy Chief of Staff Josh Lyman — were having a midnight beer on the stoop of Josh’s Georgetown apartment. The subplot of the episode dealt with radical extremist groups here in the United States (a few members of the hate groups had fired shots at the fictional President several episodes earlier, and wounded Josh). These White House staffers were discussing the inability of the Justice Department (among others) to simply eradicate these hate groups from the face of the planet.

Josh sipped from his beer and mused. "Here we are, sitting outside with open beers in violation of like a hundred city ordinances. And those hate groups get to go around free. What can you say about a country that protects the rights of those who want to overthrow it?"

Toby thought for a moment and answered: "God bless America". And everyone took a sip in agreement.

In that moment, Aaron Sorkin (the show’s writer and creator) captured the essence of what makes our country unique and special. It’s not our flag, or our military, or the fact that we have the largest GNP. It’s the principles we embody — a country so morally correct (in theory, anyway) that it goes to great lengths to afford rights to everybody — including those people who want to destroy it. Isn’t that cool?!?

Torture Training

Ken AshfordWar on Terrorism/TortureLeave a Comment

From the NY Times

LOUISVILLE, Ky., June 8 — Reversing itself, the Army said Tuesday that a G.I. was discharged partly because of a head injury he suffered while posing as an uncooperative detainee during a training exercise at Guantánamo Bay, Cuba.

The Army had previously said Specialist Sean Baker’s medical discharge in April was unrelated to the injury he received last year at the detention center, where the United States holds suspected terrorists.

Mr. Baker, 37, a former member of the 438th Military Police Company, said he played the role of an uncooperative prisoner and was beaten so badly by four American soldiers that he suffered a traumatic brain injury and seizures. He said the soldiers only stopped beating him when they realized he might be American.

That’s how bad and widespread out torture tactics are — we’re doing it to ourselves.

The Torture Memo – A First Stab

Ken AshfordWar on Terrorism/TortureLeave a Comment

I’ll throw my hat into the legal analysis ring, although you can (or will) find good analyses here and here as well.

UPDATE: A very fine first draft critique by University of Miami law professor Michael Froomkin can be found here. I say "very fine" because it mirrors my comments, plus a few more . . . and is better written then my hastily-crafted analysis below (as one would it expect it to be).

The Torture Memo can be found (in PDF format) here. What follows are some random thoughts as I pour over the memo in my not-so-copious free time:

Page 4: The memo states that the position of the United States viz the Geneva Convention. Specifically, the terms of the Convention do not apply to al Qaida detainees (because they are not a contracting party to the Convention), nor to the Taliban detainees (because they do no qualify as prisoners of war under Article 4 of the convention).

Oddly, two footnotes relating to these sentences have been blacked out. I wonder what they would have said.

And, even though it has been oft-debated, this point is worth mentioning again: Take a gander at Article 4 — the whole thing — and tell me why Taliban detainees don’t fit in at least ONE of those categories.

Page 6: The memo states that the U.S. is bound only by its understanding of what the Geneva Convention meant at the time it ratified it. Specifically, at the time of ratification, the U.S. thought the phrase "degrading treatment" was vague and ambiguous, but considered itself bound only to the extent that the treatment of prisoners violated the 5th, 8th and 14th Amendment.

That means, in a nutshell, that we agreed that we would not violate our own Constitution (particularly the part about "cruel and unusual punishment") with respect to prisoners under the Geneva Convention. Good to know.

Page 6 again:

In particular, the Department of Justice has opined that "under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a "controlling" Executive act that would immediately and completely override any customary international law"

In context, it is clear that "customary international law" does not mean the Geneva Conventions or treaties. But it begs the question: what is "customary international law" . . . at least for the purposes of this memo?

Page 7: Here’s where some fun begins.

Moving away from international law, the memo focuses on federal criminal law, specifically 18 USC 2340. That law pertains to acts of torture which "occur outside the United States". Under that statute, according to the memo, Guantanamo Bay Naval Station (GTMO) is NOT outside the United States jurisdiction (and it gives all kinds of reasons why, citing to internal DOJ opinions, the Patriot Act, etc.), and therefore — according to the memo — 18 USC 2340 does not apply.

Wait. back up. Gitmo is within U.S. jurisdiction? That’s odd, because this is what the DOJ argued in front of the Supreme Court a couple of months ago:

The Guantanamo detainees . . . are being held outside the sovereign territory of the United States. It is "undisputed" that Guantanamo is not part of the sovereign United States. – United States Brief

Bald-faced contradictions aside, the memo at least acknowledges (on page 8) that 18 USC 2340 would apply — in theory — to detainees in, say, Afghanistan.

Page 8: So how can one commit torture to detainees in Afghanistan and get around 18 USC 2340? Here’s the defense (according to the memo): The statute requires "specific intent". What this means, in non-legal terms, is that to violate that law, the wrongdoer must have in mind the specific illegal act. For example, if a prison guard strapped electrodes to a prisoner’s privates in order to cause bodily injury, that’s illegal. But if he did the exact same thing in order to extract information, that’s okay. See, it’s the purpose BEHIND the torture someone that makes the difference (so says the memo).

The memo also argues (at pages 11-13) that "good faith" may be a defense to the torture crime. So, for example, if the torturer believed in good faith that his torture would not result in serious/prolonged, physical/mental, pain/suffering, then he has a valid defense. Put another way, if Rush Limbaugh was doing the torture, he could get acquitted because he doesn’t see it as, you know, "torture". Whereas, someone who actually KNOWS better and understands the consequences of his torturing . . . would be guilty. Go figure.

Page 20: This is where the memo really goes off the rails.

In a section entitled "Commander-in-Chief Authority", the memo quotes an 1874 Supreme Court case, saying that it is "the President alone who is constitutionally invested with the entire charge of hostile operations". From that quote, the memo continues:

In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas

Now where does THAT notion come from? It is true, I agree, that the president is constitutionally in charge of all wartime operations. That does NOT suggest — in ANY way — that he is above the law (as the latter quote indicates). Being in charge does not mean one gets to act outside the boundaries of law — it just means that one is in charge within the boundaries of law.

The memo then discusses how the Supreme Court has adopted a canon of statutory construction "in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available". This is true, but I admit to total confusion as to why this sentence was included. Is the author suggesting that the President has been given the power (by the Supreme Court) to avoid "constitutional difficulties"? If so, this is a frightening interpretation. When the Supreme Court adopts a canon of statutory construction, it does so for itself merely for the purpose of going about its business. Courts can apply the "avoidance canon" — not Presidents.

Still, the memo chilling concludes in this section (at page 21) that 18 USC 2340 "does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority".

Let’s reflect on that logic for a moment. The President wears many hats, and is the chief authority in many realms, not just in wartime. For example, the Constitution states that the President "shall take Care that the Laws be faithfully executed" (Article II, Section 3), thus making him the Chief Law Enforcement Officer in the land. Can he, by virtue of that position and power choose to make (or ignore) whatever laws he wishes? No. Then why does he have such power in his Commander-in-Chief authority?

While we are in Constitution-land, what can be said of Article I, Section 8, Clause 18, which gives Congress to "make all laws which shall be necessary and proper for carrying into execution the . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"? Doesn’t that fly in the face of the notion that the Commander-in-Chief authority gives the President carte blanche to circumvent laws?

And besides, as even non-lawyers know, no president is above the law. The Supreme Court said it in U.S. v. Nixon, and the attempt to create a "Commander-in-Chief" exception simply has no legal basis.

Page 22: The torture memo invokes Hamilton and Federalist No. 23., saying that national security was top priority for the Constitution’s framers. It then states that "the text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of United States in situations of grave and unforeseen emergencies".

Really? The Constitution says that? Where? Apparently it is the Commander-in-Chief Clause.

Mmmmm. Let’s go back to the Federalist Papers — this time to No. 69, because that’s what discusses the constitutional authority of the Commander-in-Chief. This was also written by Hamilton, by the way:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

Regulating our armies is a job for the legislature. Gee, what a concept. And they have done so, with 18 USC 2340, a law which the torture memo says the president (as C-I-C) can ignore.

Page 27: The Torture Memo gets into possible defenses that a "government defendant" could use if he were to be charged with violation of a criminal torture statute. This particular section states that he could use the "right of self-defense" defense. I won’t go into the whole law of self-defense, but this makes an interesting read, especially when it talks about "imminent" threats. Draw your own parallels.

Okay. I’m spent. Maybe more on this later. Maybe not.

Why W Isn’t Reagan – Part II

Ken AshfordBush & Co.Leave a Comment

"[Reagan] had decades of experience in public life. He was president of his union, he campaigned for presidential candidates, he served two terms as governor of California — and that was not a ceremonial office as it is in Texas. And he had already run for president, against Ford in ’76, nearly unseating the sitting president in his own party. He knew where he was coming from, he had spent years thinking and speaking about his views. He didn’t have to ask Dick Cheney what he thought.

"Sure, [Reagan] wasn’t a technocrat like Clinton. But [he] was a man — that’s the difference between him and Bush. To paraphrase Jack Palance, [he] crapped bigger ones than George Bush."

"The big elephant sitting in the corner is that George W. Bush is simply unqualified for the job… What’s his accomplishment? That he’s no longer an obnoxious drunk?"

– Ronald Reagan, Jr. in a 2003 Salon interview.

Why Is Everyone Calling This Woman A Nazi Bitch?

Ken AshfordRepublicansLeave a Comment


Her name is Mary L. Walker. You can read about her here. [UPDATE: No, you can’t. They took her down a coupla days after I posted this. But you can read the same interview here] She’s the General Counsel of the U.S. Air Force. A woman devoted to God, she offers such advice:

To live your life in that context while depending on God for whatever the outcome takes faith and courage. Making moral decisions in the workplace where it is easy to go along and get along takes courage. It takes moral strength and courage to say, "I’m not going to do this because I don’t think it’s the right thing to do." I don’t believe I would have the courage to live that way if I was not personally connected to the God of the universe.

Sounds innocent enough. So, I ask again, why is everyone calling her a Nazi bitch?

Because she also wrote a confidential (now leaked) Pentagon memo give legal rationales by which US personnel could use torture in contravention of various international treaties and US laws. Not "compliance" with treaties and laws, but contravention.

The story was broken by the Wall Street Journal (subscription required, but reprinted here), which says:

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

Come again? The authority to set aside laws is inherent in the president? Didn’t he, you know, take an oath to uphold the laws? Did we become some sort of dictatorship when I wasn’t paying attention?

Anyway, this women is getting the wrath she richly deserves – from both Christian fundamentalists and the left.

(Hat tip: Billmon)

More W and Reagan Comparisons

Ken AshfordBush & Co.Leave a Comment

This time, a stupid one from James K. Glassman at Tech Central Station. Let’s pick it apart, shall we?

First, like Reagan, the current president adopted a simple, straightforward program and is resolutely pursuing it: 1) cutting taxes, 2) bringing the fight against terrorism directly to the enemy, 3) building democracy in parts of the world where it has been suppressed, and 4) advocating compassionate, conservative policies in health care, the environment and education.

Substitute "communism" for "terrorism" in the in the second part of the program, and you have — at least for numbers one through three — the same goals pursued by Reagan.

First of all Jimbo, this President is advocating compassionate, conservative policies in health care, the environment and education? Mmmmm. I guess he’s "advocating" them (from time to time) — but he’s not doing it. And this is what really separates Bush from Reagan — Reagan, for all his flaws, wasn’t an empty mouthpiece who "advocated" something and then ignored it (or did the opposite).

Second, like Reagan, the current president is determined to see his program through — despite the opposition of the media, academia, the bureaucracy, Europe and, unfortunately, parts of the business community as well.

What does that mean? ALL Presidents face opposition. This is a meaningless similarity. It’s kind of like saying, "Secondly, like Reagan, the current President works in Washington, D.C."

Third, like Reagan, the current president has an optimistic view of America. As Reagan said in his second inaugural, "There are no limits to growth and human progress, when men and women are free to follow their dreams." Bush, also, sees this nation and its people as a force for good in the world with a glorious future — again, in contrast to Europeans and European wannabes on the East and West Coasts.

Ignoring the ridiculous swipe (and BTW, isn’t Georgia and South Carolina on the East Coast?), one has to wonder what Jimbo thinks an "optimistic view" is, and how Clinton (or Bush the Elder for that matter) lacked such a view. Again, every President likes to paint rosy scenarios — the difference with Bush Jr is that he thinks optimism is ALL that is required.

Case-in-point: What was the post-war planning for Iraq? The "optimistic" notion that Iraqis would throw flowers at our feet — that was the extent of it. Even Reagan (or at least his advisors) understood the complexities of global situations.

It is interesting to note that Glassman’s article appears on the Bush-Cheney website under the headline "Reagan’s Legacy in Good Hands". Puh-lease. And remember how Democrats were criticized for supposedly turning Paul Wellstone’s memorial into a political rally? Hello?!? The problem here is, of course, even by conservative standards, Bush 43 — the Worst Communicator — is no Ronald Reagan. Not by a long shot.

Why W Isn’t Reagan

Ken AshfordBush & Co.Leave a Comment

Nick Confessore at Tapped as an excellent post on the subject of "Reagan’s Other Legacy". In it, he refers to an article by New Republic contributor Jonathan Chait (posted at the Reagan legacy website). The Chait article is prescient, being dated before 9/11 — indeed, being dated before George W. Bush was "elected". He summarizes the Reagan mystique in this way:

The Reagan presidency lives on in conservative mythology as a bygone utopia peopled by titans against whom the mortals of today must be measured. As conservative writer David Frum observed in his 1994 lament, Dead Right, "Post-Bush conservatives look back on the accomplishments of the early Reagan years the way seventh-century Romans must have looked at their aqueducts: to think that we once built all this!" When conservatives debate the Reagan legacy, it is not to dispute its merits but to lay competing claims to its mantle. Witness this year’s intraconservative debate over expanding trade with China. Proponents of permanent normal trading relations pointed to Reagan’s support for free trade; opponents invoked his anti-communism. Had someone dug up a forgotten diary entry laying out Reagan’s position for such a future contingency, it might have settled the argument then and there. The premise underlying such debates was explicated by Reagan hagiographer Dinesh D’Souza, who wrote that "the right simply needs to approach public policy questions by asking: What would Reagan have done?"

And therein lies the problem. Once it is agreed that all wisdom resides in the canon of Reagan, then the hard work of debate and self-examination and incorporating new facts is no longer necessary. On economics, defense, and morality, the Republican Party has refused to adapt itself to a patently changed political landscape for fear of acknowledging that the old ideas–the Reagan ideas–no longer work. And those who have tried to adapt have been cast out as heretics–anti-Reagan and therefore anti-conservative or even anti-Republican. When Ronald Reagan was actually president, Republicans prided themselves on being "the party of ideas." Now, as their hero fades into the twilight, his memory sits at the heart of a deep intellectual ossification.

And then predicts what this would mean for the younger Bush:

The mortals of the present can never live up to the icons of the past. In George W., the Reaganites appear to have everything they have always wanted: a popular conservative poised to end the political exile into which his father thrust them. But at some point W.’s ideology will smack up against the hard reality of today’s very different world, and either his popularity or his conservatism will give way. At that point the true believers will discover ideological deviations and conclude bitterly that the younger Bush is his father’s son after all. And then, the verity of their doctrine reaffirmed, they will begin once more their search for the true heir to Ronald Reagan.

This has proven to be true. Bush’s poll numbers have been in steady decline . . .


. . . but for three huge crises which have shot up his approval. As for that, Confessore has the right analysis:

These crises have obscured the inevitable clash between Bush’s ideology and his popularity, and of course Bush has also tried hard to camoflage many of his most purely conservative proposals in a way Reagan never bothered to.

Indeed. Even for conservatives, Bush (like his father) isn’t Reagan.

Ronald Reagan

Ken AshfordRepublicansLeave a Comment

It seems fitting to say a few words in honor of "The Great Communicator" at the time of his passing. It seems more fitting that I not be the one to give such a eulogy. Ronald Reagan had skills as a politician which were undeniable. And his message was welcome to many. But not to me, and it would hypocritical of me to say otherwise.

What strikes me as amusing is how the so-called "liberal" media is turning his passing into an outright love-fest. They seemed capable of noting, in Nixon’s passing, of taking stock of some of the negative aspects of that man’s presidency. Not so with Reagan. He seems to get a pass. Turn on the T.V. and you will hear, for example, how Reagan passed the biggest tax cut in American history. Which is true, but do they also mention that the biggest tax cut was followed by the biggest tax increase in American history, thanks also to Reagan?

Perhaps it is too soon to be thinking about legacies — the man only died two days ago — but it seems that the first draft of history is being written inaccurately.  One has to wonder what effect, if any, this will have on Bush’s numbers. Will he benefit from the reflected glory of Reagan, or will voters compare and contrast . . . and find Bush wanting? Time will tell.

UPDATE: Or maybe not. Apparently, the Reagan sheen might not reflect on Bush as much as conservatives hope. From yesterday’s New York Times:

Some Republicans said the images of a forceful Mr. Reagan giving dramatic speeches on television provided a less-than-welcome contrast with Mr. Bush’s own appearances these days, and that it was not in Mr. Bush’s interest to encourage such comparisons. That concern was illustrated on Sunday, one Republican said, by televised images of Mr. Reagan’s riveting speech in Normandy commemorating D-Day in 1984, followed by Mr. Bush’s address at a similar ceremony on Sunday.

"Reagan showed what high stature that a president can have — and my fear is that Bush will look diminished by comparison," said one Republican sympathetic to Mr. Bush, who did not want to be quoted by name criticizing the president.

Another senior Republican expressed concern that by identifying too closely with Mr. Reagan, Mr. Bush risked running a campaign that looked to the past, which this adviser described as a recipe for a loss.

Several Republicans added that Mr. Bush’s hopes of enlisting Mrs. Reagan might be complicated by the differences between Mrs. Reagan and Mr. Bush on the issue of embryonic stem-cell research. Mrs. Reagan has been vocal in arguing that the research might help others suffering from Alzheimer’s disease, which doctors diagnosed in Mr. Reagan after he left office, while Mr. Bush’s policy restricts public financing for this kind of research to existing cell lines.

Mmmmmmm . . .

Way To Go, Kid!

Ken AshfordRandom MusingsLeave a Comment

Frankly, I think anyone who can spell "autochthonous" deserves far more than $18,000. He deserves a Congressional Medal of Honor or something.

And now I am stuck trying to think of any other English word which has "-chth-" in it (in a row, of course). Anyone?

Bush Campaign Enlisting Help Of Churches

Ken AshfordBush & Co., Election 2004, GodstuffLeave a Comment

As reported here:

The Bush campaign is seeking to enlist thousands of religious congregations around the country in distributing campaign information and registering voters, according to an e-mail message sent to many members of the clergy and others in Pennsylvania.

Liberal groups charged that the effort invited violations of the separation of church and state and jeopardized the tax-exempt status of churches that cooperated. Some socially conservative church leaders also said they would advise pastors against participating in such a partisan effort.

But Steve Schmidt, a spokesman for the Bush administration, said "people of faith have as much right to participate in the political process as any other community" and that the e-mail message was about "building the most sophisticated grass-roots presidential campaign in the country’s history."

As far as I can tell, this does not violate any constitutional notions of "separation of church and state" — the Bush-Cheney ’04 campaign is not, technically, "the state".

However, any church that joins or endorses the Bush campaign will lose their tax-exempt status, as this IRS news release make very clear. One has to wonder if the Bush campaign people know that . . . or care.

A Tale Of Two Headlines

Ken AshfordHistory, Iraq1 Comment

Veterans Dismiss Comparisons with Iraq – MSNBC, June 2, 2004; 7:48 a.m. E.T.

. . . Yet, as a handful of U.S. veterans from the Normandy invasion explained, there are few parallels between the two undertakings.

As far as they are concerned, World War II represented a unique era because of the very real, palpable, and all-encompassing threat posed by Hitler’s Nazi regime.

Bush Likens War Against Terrorism to WWII – Associated Press, June 2, 2004; 2:45 p.m. E.T.

"Our goal, the goal of this generation, is the same," Bush said Wednesday, after referring to World War II. "We will secure our nation and defend the peace through the forward march of freedom."

Thus goes the Republican attempt to cast the War in Iraq as something noble. Jeez. Not even the vets are buying . . .


Ken AshfordBush & Co., Corporate Greed, IraqLeave a Comment

Cheney has stated that he has had no role or influence in the government’s award of no-competitive-bid contracts to Halliburton.

As Time and CNN are reporting, a March 5, 2003 e-mail puts those comments into question. The email is "an internal Pentagon e-mail from an Army Corps of Engineers official to another Pentagon employee". As the story says:

The e-mail — dated March 5, 2003 — says Douglas Feith, undersecretary of defense for policy, approved the arrangement to award the contract to the oil-services company. According to an e-mail excerpt in Time, the contract was "contingent on informing WH [White House] tomorrow. We anticipate no issues since action has been coordinated w[ith] VP’s office."

. The contract was awarded 3 days later. Time reports the e-mail also says Feith got the "authority to execute RIO," or Restore Iraqi Oil, from his supervisor, Paul Wolfowitz.

Now, all that’s bad enough, but listen to the excuses.

[A] senior official told CNN the e-mail was a typical "heads-up" memo from one government agency to another that "a decision has been made, we’re about to announce this contract, and as a courtesy we are alerting the White House of a public announcement. This is a standard practice."

The "coordinated action" referred to, the senior administration official said, was "that of publicly announcing the contract decision that has already been made."

So the decision to award the contract to Halliburton had "already been made"? Okay, but then why does the email itself say that the contract was "contingent about informing WH [White House] tomorrow"?

The lame excuse-making goes on:

The heads-up would have been given because of Cheney’s previous involvement in the company as chief executive officer, and the anticipated controversy over the noncompetitive bid, the official said.

But the email itself says "We anticipate no issues since action has been coordinated w[ith] VP’s office."

So let me get this straight – – The e-mail was a heads-up that there might be controversy over the Halliburton non-competitive bid contract, yet the email itself says that there would be "no issues . . ."?

Seriously . . . WTF?!?