Pruning Shears

Considering how much attention mass media has spent on electoral politics it has missed the elephant in the room (pardon the pun): The extreme peril of the Republican Party. Almost all coverage is now on the Democratic primary, and the least likely (and most dramatic) scenarios are getting the most focus. But here is what seems most likely: The candidates fight it out, a winner emerges in the next month or so and emotions peak. Everyone takes the summer off, spends some time at the beach with a good book, and returns at the end of August tanned, rested and ready to crank up an energetic election campaign. Meanwhile, each contested state gets two industrial strength Democratic voter registration machines rolling through, extends the Democratic monopoly of the news cycle and sharpens the campaigning skills of the eventual nominee.

For Republicans, that is the bad news. The worse news is that the math this time around is horrible, and the early indications are dismal (via). They have 29 House members retiring this year, and it didn’t get that high by accident. Losing as an incumbent has to be one of the worst events for a politician; it is a rejection and a humiliation - it is the voters saying “we tried you out and found you wanting.” It also usually comes with about a ten year setback. You don’t just bounce to some more prestigious office, you either take some time off or seek refuge in an appointed position. Then you slowly begin your rehabilitation. Many Republicans think now is a good time to take a powder, and by doing so they could be viable next time. It looks similarly bad (annoying trendy word for this election: optics) in the Senate. Republicans are defending 23 seats to the Democrats’ 12; even if the GOP was wildly popular it would simply have to cover more territory.

I’ve saved the worst for last. The preceding can be seen as nothing more than the vagaries of the horse race, the calendar and random chance. Fortunes wax and wane, and sometimes parties succeed just because. It is like the stock market, which moves sometimes in response to specific data and sometimes for reasons that are too complex to understand. (I will have unyielding admiration for the first newscaster who has the honesty and courage to say “Stocks closed higher today. God alone knows why.”) Republicans can talk their way out of a situation like that. It is their great misfortune that it is also accompanied by the total collapse of their principles.

Republicans held all the levers of power in Washington for six years. They turned budget surpluses into huge deficits, which put pressure on the dollar. The financial industry’s house of cards got blown down and the Federal Reserve cut rates to head off a recession. That put even more pressure on the dollar. Its value sank against other currencies, and investors have taken refuge in commodities, driving those prices up. Republicans’ aggressive, swaggering foreign policy has shot uncertainty through the market, driving (dollar denominated) oil to record highs. Simply put, their policies have put us in a position where we can’t deficit spend, can’t lower prices, can’t cut rates and can’t do much to restore value to our currency. Even simpler, every time you fill up your tank or buy a loaf of bread you pay the Bush Tax.

Tom Delay was described admiringly as “The Hammer” for his ability to get Republicans to approve these policies. It was a fun party while it lasted but the bill has come due. We have structural problems that won’t go away easily or quickly, and voters have reasonably concluded which party bears the most blame. Even after they lost Congress last year they marched in lockstep behind the President as he continued a massively unpopular war. I have been very critical of the Democrats at times for not standing up to bullying from the White House, but the GOP has been far worse. They have pledged fealty to leaders dedicated to profligacy, incompetence and secrecy. They have unstintingly supported the administration’s grotesque streak of sadism (see this week’s illustration(via)), and declared themselves to be Republican before American. None of these issues will be eclipsed by manufactured talking points or trivial narratives. The effects of their governance are plainly and painfully before the country’s eyes on (literally) a daily basis, and that is not going away before November. A handful of conservatives such as Andrew Sullivan recognized the new direction and forcefully rejected it (some recent examples), and they will be the intellectual inheritors when the time comes to rebuild. The party is in the process of self-immolation, and those who stepped away in disgust have no obligation to commit Sati.

Congress can be a frustratingly opaque body, and trying to figure out causes and effects can be largely futile. Analyzing a simple proposition like “Congress has failed to adequately check executive power expansion since 2001” quickly becomes incredibly complex (rest in peace Edward Lorenz). Also, much of its work is done behind closed doors, which is probably for the best. If politicians were constantly on display before the public we would reach toxic levels of grandstanding almost immediately and government would grind to a halt (though in light of our recent experience that might be a benefit). The unknowable line between discretion and deception seems to get crossed fairly regularly, though, and those who come out ahead from working in the shadows are eager to blur it as much as possible. One of the great journalistic self-indictments of our times - right up there with “I have neither the time nor legal background to figure out who’s right” - is this:

This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.

I won’t presume to speak for your sex life, dear reader, but I think it’s safe to say you probably have not benefited from politics or real estate being practiced with the lights off. More to the point, media elites view politics as a dark art. They prefer for a small group to work in private and emerge from behind the curtain with a finished product. Their proximity and access to those magicians then turns them into information gatekeepers for the masses and confers enormous power on them. From their perspective, what’s not to like?

In short, the politicians don’t want too much transparency and neither do the journalists who cover them. Even if that were not true Congress would still be nearly impossible to get a read on at times because there are 535 members of it, each with its own personality, staff, motivations, alliances and exigencies. A threat from John Conyers could be the opening salvo in an all-out war or it could be toothless whining over the latest peremptory dismissal from the executive branch.

All of which makes it hard to read the House Judiciary Committee’s (HJC) recent motion in civil court. It calls for White House Chief of Staff Josh Bolten and former Counsel Harriet Miers to testify about the firing of nine assistant US attorneys under the previous attorney general. The HJC is trying to work its way through a conundrum and around an obstruction. The conundrum is this: Ordinarily a criminal contempt charge would be brought, but it would be referred to the Justice Department. So Justice would be charged with investigating its own politicization. The obstruction of course is the White House and its desire to run out the clock. Theoretically events could unfold like this: Delaying tactics keep everything unresolved until after the election. Bolton and Miers argue the subpoenas have expired and would have to be issued again by a new Congress. The new Congress lets it die by neglect (if Republican) or as a magnanimous bipartisan gesture designed to foster happy feelings (if Democratic). Lots of noise is made about turning the page and not wanting to litigate the past, making a fresh start and so on. The new President lets it drop - which happily lets the highly unusual firings start to settle in as precedent - and we all move on.

We could see another outcome, though. Congress has been reluctant to take this to court for fear of repudiation, but what if it concludes that at worst a judgment against it would just formalize a loss of authority already brazenly asserted by the executive branch? In other words, what if Congress decides it has very little to lose? What if Republicans see another blowout loss approaching and conclude a strong assertion of authority against a deeply unpopular lame duck Republican President is one of the few ways to set up any kind of leverage against a Democratic President (possibly one with a strong majority in both houses)?

There are intriguing possibilities hanging in the air with the HJC’s lawsuit. Congress has seemed willing to passively accept the recent encroachments and at times seems almost eager to work against its own self-interest. Its unfathomable complexity as a body makes it hard to confidently predict what comes next, and history suggests it will remain largely supine. There are some tantalizing hints around the edges, though, and if something breaks it may do so with a speed that will surprise even close observers.

(Updated with today’s NYT CIA article)

I generally try to get my Thursday posts in the 750-800 word range.  I want Pruning Shears to have original content; going shorter than that would be getting closer to link aggregation, and there are already a lot of sites doing that, probably all of them better than I could. Going longer would likely try reader’s patience.  I think 3,500 word meditations are better suited for reading in a magazine while sitting on your couch (or in worst case scenarios are indulgent epics crying out for some ruthless editing).  There are virtually no space limits for posting online, but there are definite limits to what folks will keep reading.  If my own experience is any indication you’ll lose a lot of your audience by about the third “page down”.  Basically, I try to make the posts long enough to be worth spending some time with but not so long that you feel imposed on.  With all that said, here is one point I cut from Thursday’s post for space reasons.

The report on administration’s propaganda effort noted the following:

Kenneth Allard, a former NBC military analyst who has taught information warfare at the National Defense University, said the campaign amounted to a sophisticated information operation. “This was a coherent, active policy,” he said.

Let the record show the administration achieved this distinction at least once.

Phillippe Sands’ upcoming book looks like it will cover a lot of ground.  The torture regime was systematic and directed from the top:

Sands reveals that Alberto Gonzales, David Addington, and Secretary of Defense Donald Rumsfeld’s lawyer Jim Haynes traveled to Guantanamo in 2002, witnessed an interrogation, and sent approval back to Washington.

I’m sure there will be more details along those lines.  Surprising but not surprising.  UPDATE: The former Attorney General’s department has also told Congress intelligence agents can use torture even when it is prohibited by international law.  I know a lot of those on the right scorn the concept of international law and consider agreements under it to be an abridgement of our sovereignty, but America does have a tradition of “a decent respect for the opinions of mankind”.  This is just the latest case where conservatives need to remind me what exactly they are trying to conserve.  (Remember, the Constitution is not a suicide pact.)

Pruning Shears started with the goal of getting the candidates to discuss executive power in the 2008 election.  In just over six months that goal will be obsolete and I’ve been thinking of possible directions beyond that.  I don’t expect any of the candidates to be worse than the current President but I think they may all try to neglect the issue once in office.  Agitating for a roll back of recently-asserted claims might not involve the same level of activity as an ongoing expansion does, however.  What are some related areas?  Right now it looks like transparency might be a big one:

“What worries us is that time is passing – there are only 8 ½ more months until this administration leaves office and if nothing is done soon not only could the e-mails disappear for good, but the federal records that are commingled with the presidential records could get swept away and become inaccessible for the next 12 years.” 

Keeping access to the documents of this administration and the next one could be the best way to make sure the executive power grabs get exposed and stay exposed.  If you have any other new directions you’d like to suggest please let me know.

The war in Iraq refuses to be dismissed. Its ongoing cost in blood and treasure will be at or near the top of our concerns for as long as it lasts. It stays there no matter how much political elites want us to look elsewhere or media elites want to keep from highlighting the painful, ongoing slog. I believe the vast majority of us grieves a little each time we hear the day’s price. If it is nothing more than a dry recitation of the latest handful of dead in the latest attack, if the report is stuck at the end of a segment or broadcast, if it is treated with the same numerical curiosity as a minor fluctuation of the stock market - it still casts a long shadow with us. We understand that they died by our command, and we feel the weight of the morality that decision has had and continues to have. The “chickenhawk” epithet has some validity in the following sense: Those who advocate forcefully for war without having participated in one up close may be fairly questioned on whether they regard the inevitable horrors (intended and otherwise) too lightly. I believe the lack of such experience among our civilian leaders - and indeed their affirmative action to avoid it - has led them to run the armed services with a shocking lack of empathy or humanity. Those of us with no pride on the line or vanity at stake are justified in questioning its continuation with each new piece of tragic news.

When America goes to war it expands the power of the executive almost by its very nature, and our leaders have been eager to take advantage. In wartime all eyes turn to the President; s/he can use the attention as a powerful platform. Presidents are more likely to make extraordinary claims (our most celebrated President suspended habeas corpus during the Civil War) and citizens are more likely to tolerate them out of a sense of patriotism and national emergency. Our current President has used commander in chief as a title, not a role, and seems to regard himself as a kind of modern proconsul. In the best of times a domineering head of the military can cow his ostensible coequals. This is even truer in a time of war, more so still when there is a failure of courage and leadership among those charged with checking abuses. We have lived through both these past six years, and one key part of the administration’s campaign of intimidation was an orchestrated effort to fill the media with partisans posing as objective analysts.

David Barstow described the effort in the New York Times on Sunday. It was well beyond the usual stuff; every White House tries to shape opinion and get its surrogates talking up the latest spin. His report raises new questions. For example, is there any generally accepted practice for how closely retired military officers may be to the Pentagon when they lobby for its favored policies? How trustworthy is a recently retired general in analyzing the plans and performance of officers of long and fond acquaintance? There is a waiting period between leaving Congress and starting work as a paid lobbyist - is there any similar requirement for the military? Is it acceptable for them to pursue military and intelligence contracts immediately upon leaving? How does the administration justify using taxpayer funds to pay for its sympathizers to travel back and forth to Iraq? Barstow mentions “three Pentagon-sponsored trips to Iraq” for one supporter, and in a follow up Q & A article noted that

when a group of analysts were taken to Iraq in 2003, they were flown each morning on military transport planes from their hotel in Kuwait to Baghdad, and then back to Kuwait at day’s end. They traveled around Iraq in heavily guarded convoys. In recent years, the Pentagon has paid the commercial airfare of some analysts who participated in trips to Iraq.

Forget about custom or the appearance of impropriety, is it even legal for us to be paying for executive branch cheerleaders to go back and forth to Iraq?

Could anyone ask some of these questions of the candidates? Will they take a position on the revolving door between the Pentagon and the defense industry? How about publicly funded junkets for favored partisans? Are there any war-related claims of power that trouble them? If they take a position will it include a promise of concrete action or will it just be feel-good blather that has wiggle room for continuing the status quo? These may seem like just so many abstract ideas but they have had real world consequences. Continuing national support for the war deserves to be based on a clear understanding of these new revelations. The soldiers who suffer and die in our name, and their loved ones, deserve at least that much honesty.

Philippe Sands’ Vanity Fair article has provided lots of detail on how we became a state sponsor of torture.  The decision making process at the top comes across as appallingly mundane, which seems consistent with other implementations of institutionalized evil.  The most vivid anecdotes are from farther down the chain of command, such as the following from Lieutenant Colonel Diane Beaver:

The first year of Fox TV’s dramatic series 24 came to a conclusion in spring 2002, and the second year of the series began that fall. An inescapable message of the program is that torture works. “We saw it on cable,” Beaver recalled. “People had already seen the first series. It was hugely popular.” Jack Bauer had many friends at Guantánamo, Beaver added. “He gave people lots of ideas.” The brainstorming meetings inspired animated discussion. “Who has the glassy eyes?,” Beaver asked herself as she surveyed the men around the room, 30 or more of them. She was invariably the only woman present—as she saw it, keeping control of the boys. The younger men would get particularly agitated, excited even. “You could almost see their dicks getting hard as they got new ideas,” Beaver recalled, a wan smile flickering on her face. “And I said to myself, You know what? I don’t have a dick to get hard—I can stay detached.”

Which makes this a good time to remind ourselves that the right wing scoffed at the idea of a TV show inspiring torture.  Another of the handmaidens.  It also is a good opportunity to revisit CIA director Michael Hayden’s contention that “torture” is a legal term and using it clouds the debate.  No - the play, pause and explain strategy clouds the debate.  There is no ambiguity except that which you try to bring to the subject.  And please don’t forget the Pentagon may try to time the torture tribunals for political benefit.  Just in case you thought it was all about protecting us.

Michael Chertoff checked in  from his home planet to let us know fingerprints aren’t personal data because we leave them around everywhere.  I believe we need a Manhattan Project type program to develop sufficiently powerful levels of sarcasm to properly characterize the clowns that are in charge these days.

Finally, Marie Gottschalk quotes Winston Churchill: “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.”   Is it possible our continuing use of the death penalty and “law and order three strikes and lock them up forever” attitude are indicative of a kind of collective callousness and vengeance-mindedness that lets us also quietly accept a systematic torture regime?

Last week a remarkable truth emerged - we need to have a torture debate. On Friday the President admitted that we are now a state sponsor of torture and an amazing thing happened: Nothing. TV news coverage was dominated by the Democratic primary, and if news outlets acknowledged it at all it was in a summary or somewhere in the back pages. I am on record with my deep revulsion for torture, but a critical mass of our upper political and media levels does not consider it worthy of sustained focus. Maybe if we change the terms of the debate we can make it more visible.

I understand some possible objections: Engaging it at all dignifies the pro-torture position, and doing so in a talk show back-and-forth format trivializes it. On the other hand, we do not have much to show for our current approach. Maybe we would have more if we discussed torture warrants, as Alan Dershowitz proposed shortly after 9/11. What if judges could legally authorize torture? It would create a formal paper trail and regulate the process. Applicants would probably be very reluctant to come forward and judges equally reluctant to grant them (I assume most people would not want their names attached to it). Further, it puts accountability into the system. No one wanted to contemplate such a gruesome bureaucracy at the time but now maybe we should. What we have right now is the worst of all possible worlds - we torture, the President denies it, everyone knows it is happening but no one wants to know the details. Torture warrants would document them. Maybe we could also address the following: Those in favor of torture refer to only using it for ticking time bomb scenarios. But we already have tortured, and where were the ticking time bombs? You may rest assured such an event would have been extremely well publicized.

I believe the fundamental motivation behind systemic torture is not defending us against a threat to our nation’s very existence but the macabre fantasies and fevered dreams of evil men. Human nature dictates that vast new powers with no oversight get abused, but even if we somehow reformed that part of our nature it would not prevent sadistic leaders from creating unconscionable horrors when presented with a frightened populace in a time of uncertainty. Proponents must either postulate such results as part of their position or admit they would prefer not to seriously address torture. Maybe then they would go to the sidelines with their intellectual cousin Alberto Gonzales, whom Rosa Brooks memorably described as “the handmaiden of torture”. The apologists have been allowed to tread lightly for too long. Maybe torture warrants would force them to either engage for real or give up.

We could also mention some of the unintended consequences. At the moment it looks like the President will go to the Olympics’ opening ceremony despite calls for him to boycott it to protest the occupation of Tibet. Given his native affection for strongmen he likely doesn’t see any problem, except maybe that the abuses have been so obvious they have attracted a great deal of attention (i.e. the problem lies not in the concept but in the execution). But imagine for a moment that he was deeply troubled by it. Before his first statement of concern had finished translating the leaders in China would rightly ask how we can criticize them in light of our own human rights abuses. We simply have no moral credibility in that area any more.

Or consider the theocrats who rule Iran. It is especially galling to see their news agencies crowing over how lousy we are on the issue. If Iraq is any guide we can soon expect the cheerleaders for an Iran war to conflate opposing armed conflict with support of their rulers. Allow me to beat them to the putsch: It is possible to both be extremely critical of them and not want war with them. And some of us find it shameful to see them looking down on us for our wretched treatment of some of those in our care.

If we could get the pro-torture side to engage any of this we could begin having a real debate and public awareness would be raised. At the moment those of us who believe a civilized nation does not torture under any circumstances are largely talking amongst ourselves. We have failed to get our message across to a wider audience. Waiting for its self-evident hideousness to drive the discussion doesn’t appear to be working. Approaching it from some slightly different angles might change that, and it is something we should at least consider.

Our President made it official on Friday:  America is a state sponsor of torture.

According to its web site the recently-created National Applications Office (NAO) has its roots in the Civil Applications Committee, an agency created in 1974 that “facilitated requests by civil agencies to make use of space-based imaging and remote sensing capabilities for purposes such as monitoring volcanic activity, environmental and geological changes, hurricanes, and floods.” Presumably that is how it was used; if it had been directed against citizens or for political advantage we would have found out before too long. Either the results of the abuse would have led back to it or someone would have spilled the beans somehow. Humans’ marvelous imperfection makes it all but impossible to sustain a long-term and far-reaching secret (which is also why I nearly automatically reject conspiracy theories). Of course, our native impulse to get as much as we can made it almost inevitable that someone would eventually try.

Enter the Department of Homeland Security. It describes the NAO (via the NAO site) as “the executive agent to facilitate the use of intelligence community technological assets for civil, homeland security and law enforcement purposes within the United States” and wants to use those satellites to do so. By now the executive branch doesn’t get the benefit of the doubt on any information gathering process. In fact it has earned the opposite - the presumption of bad faith. In fairness we should take that approach towards any exercise of government power because that kind of skepticism is what gets safeguards, documentation and transparency built in. On the other hand, it’s one thing to put them in place as a hedge against the worst case scenario and another to see the worst case scenario routinely play out before your eyes.

When the NAO was created last summer it was applauded on the right with a remarkable display of anti-reasoning: “Government officials refuse to talk about specific capabilities, but the performance of the satellites that the NAO will help coordinate are closer to those that power Google Earth than to anything imagined by the script writers of 24. Moreover, the administration has promised to employ safeguards that will protect basic civil liberties.” While this looks positively enlightened compared to the authoritarians’ recent attempts to rationalize torture it is still not very credible. The editors say, we don’t know what the new powers are, but they aren’t too extensive. What about the first half of the sentence qualifies them to make the claim in the second? Their defense kicks off with a sentence that contradicts itself, and if you cannot extend your logic past the first clause you might want to work on it a little more. And on what evidence can anyone seriously claim a promise to “employ safeguards that will protect basic civil liberties” will be kept? Everything we know from the last seven years suggests the opposite.

The NAO web site is not very helpful either. As of this writing its most recent update is August 15th of last year and it is filled with Newspeak phrases such as saying it provides “robust access to needed remote sensing information to appropriate customers”. At the bottom is a section titled “Protecting Civil Liberties and Privacy” that provides absolutely zero detail on either. Given that the new powers the President wants to claim will likely be abused there is every reason to ask some questions, including: What will the collection consist of? Will it be yet another indiscriminate data sweep? If not, under what circumstances will it be turned on? Will a warrant be required? Will there be any kind of regular review or oversight to see if it is being abused? Leaving aside the expansion and abuse of power, why are our existing intelligence capabilities unable to safeguard us? (Keep in mind we had all the intelligence we needed to prevent 9/11, we just didn’t process it correctly.) What is an example of the kind of intelligence you would expect this to uncover?

Fortunately these questions can still be asked since NAO is not yet up and running. On the other hand it has begun advertising to fill its newly created positions so we don’t have all the time in the world. While it is encouraging that Reps. Bennie Thompson, Jane Harman and Christopher Carney have begun asking questions we should not expect the administration to be responsive. We saw when the Protect America Act expired that public pressure, Congressional pushback and a bit of good fortune can foil attempts to frighten us into giving away our rights (the PAA battle is still not over, of course [LATE UPDATE: It looks promising though (via)]). I sincerely hope we are ready to bring the first of those to bear once again as the President attempts to force through this latest infringement.

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.

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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 damag