Author: danps

It wasn’t too long ago that the right loved to mention how they were the ones with ideas and all liberals had to offer was obstructionism.  During the Social Security debate in 2005 it seemed to reach its apogee.  Now that all they have to offer is their own obstructionism the crowing has tapered off quite a bit.  The ideas they are left with run the spectrum from being pro war to being pro torture (hat tip Glenn Greenwald).  They have no claim to fiscal discipline:  A Republican President and Congress inherited a budget surplus and turned it into a massive deficit.  They have no small-government credibility:  Spending exploded, pork barrel projects went through the roof and they created the biggest entitlement program since Medicare.  They have no respect for parliamentary norms and traditions:  The vote that made the prescription drug benefit a law was an appalling spectacle.  Conservatives approved of all of this.  They may have clucked a little here and there but for all intents and purposes they went along.  We saw during the immigration debate how forceful they can be when they want to.

In short things look bleak, and I’ll go out on a limb and say they’ll get worse before they get better.  They do control one thing though, and that is how quickly they’d like to hit bottom.  Their principles have become only so many collateralized debt obligations waiting to be written down.  They can either use the Goldman Sachs approach and write it all off immediately or they can use the Citigroup model and declare losses gradually and grudgingly.  All of the Congressional leadership and most of the current candidates for the Republican nomination represent the latter.  They are putting on a brave face, embracing the current policies and insisting the big problem has been implementation.  We’re right on the idea, they say, but the devil is in the details.  We just need to tweak it like this and everything will be fine; voters will come back to us.  Hogwash, I say.  The current brand has suffered a permanent loss of capital.  It needs to be rebuilt from the ground up, the sooner the better.  If they try to hang on they will see big losses in the 2008 election and no substantial gains for at least a couple thereafter.  It will be a long, cold, lonely season that will only end when they decisively repudiate this generation’s leadership and attempt to regain their majority by persuading a skeptical public with no reason to trust them.  Or they could just crash and burn right now and get on with it.

There is a big upside to a properly done Goldwater-type blowout next year and the best candidate for the job is Ron Paul.  I can’t imagine he’d win more than a handful of states in the general election; off the top of my head I’d say some mountain west states like Montana and Idaho would be pretty good bets but the rest of the country not so much.  The upside for this is instant rehabilitation of the Republican brand.  He alone in the field is vehemently against the current unconservative Republican agenda.  He voted against the Authorization for Use of Military Force and the Military Commissions Act of 2006.  He voted against the USA Patriot Act in 2001 and 2005.  During the period that Republicans were cheerfully selling their souls for George W. Bush’s political benefit Ron Paul was a lonely voice on the right trying to get his caucus to stick by its principles.  His willingness to do so looks better and better all the time.

Paul was far outside the mainstream of the party at the time and he still largely is.  But he also represents the only viable option in facing the voters.  Until the mainstream makes its way to him Republicans will be left with wholly unpalatable options.  They may try to paint the Democrats as “tax and spend” liberals, but voters have learned the hard way one virtue of tax and spend: At least you’re paying as you go.  Republicans offer “spend and don’t tax and let the next generation pay for it.”  They may cry over the evil of big-government Democrats, but given the levers of power they provided incompetent, intrusive and even bigger government.  Once again voters ruefully note how much better the Democratic version is in hindsight.  The current crop of Republicans are wedded to this train wreck and will continually lose until they can uncouple from it.  Ron Paul has the credibility to do that right now.

For more on pruning back executive power see The Pruning Shears.

Last week I wrote about the back and forth between Glenn Greenwald and Colonel Steven A. Boylan, spokesman for General David Petraeus.  Boylan disputed authorship of the initial email and the dispute took off from there.  At the time I posted there still seemed to be a lot up in the air over it, so I just referred to the “response” to Greenwald; I didn’t attribute it to Col. Boylan since that didn’t seem settled.

It’s now been over a week since Farhad Manjoo published what seems like the last word on the controversy.  It goes into considerable detail on how the email was almost certainly from Boylan or someone authorized to act on his behalf.  As far as I know Manjoo’s analysis hasn’t been disputed anywhere and since it appeared in the same outlet where the controversy began I think it’s safe to say all concerned parties are aware of it.  All of which leads to the following conclusion: Boylan wrote it, and in it played a childish word game to dispute political influence on the military from the White House.  His actions prove that that is precisely what is happening, and is the latest sign the military is in the midst of an attempt to compromise its integrity.  How it responds may shape how much trust America places in it in the future.

From a distance it looks like one side is led by Defense Secretary Robert Gates and CENTCOM head Admiral William Fallon.  The people in this camp believe in the traditional role of the military as a strictly nonpartisan operation and understand that its effectiveness is greatly diminished if that stops.  They understand the military implications of keeping Guantánamo Bay open, the folly of using our presence in Iraq to initiate a war in Iran, the cross purposes soldiers and mercenaries currently live under, and in general appreciate the real-world difficulties of our situation at the moment.  Those problems can’t be glossed over or ignored – even if they conflict with some (maybe dubious) larger narrative or grand design.  They need at least to be acknowledged.

The other side looks to be a Bush/Cheney/Petraeus operation that seems to prefer military action as something less than a last resort.  With the heightened climate of fear after 9/11 and the traditionally strong Republican leaning of the military it must have been irresistible for the administration to make use of it: some ominous sounds, get Congress to agree to a nearly blank check and have the military go along with gusto.  Now that antiwar candidates are getting almost three quarters of the military’s campaign contributions it’s probably safe to say at least a plurality and maybe a sizeable majority of service members disagree with the administration’s policy.  All of which means the struggle for the soul of the military pits a handful of politically minded officers at the top and their allies at the White House against the career (and to my mind more professional) officers who know they will stay in the military as politicians and their parties wax and wane.

There has been no shortage of people who have swallowed reservations about the administration until they could no longer do anything about it, so if the career officers do so as well it won’t be a huge shock, but it will be a huge setback for our government.  What does it say about control of the military that the President has sent political advisors to Iraq to help spin the war in the most favorable way to him?  What does it say that in advance of Petraeus’ September testimony the Pentagon set up a campaign-style war room to quickly respond to politically unfavorable reports?  Or that a Pentagon press secretary (presumably with a straight face) said “[i]t’s more like a library” and a “smarter way of doing business”?  What business are they trying to do smarter, and more importantly why more word games?

General Petraeus is clearly political and would like to follow in the footsteps of Washington, Grant and Eisenhower.  His future ambitions align nicely with the Administration’s current ones and he seems only too happy to use the military to assist in that.  Those generals who will be left behind to clean up the mess need to make some important decisions in the next year or so.  Under the Constitution the President commands the military in the field but Congress ultimately controls its use.  Do they agree with that or not; if called to testify before Congress will they do so as impartially as possible or will they look to give the administration political cover; and if they are pressured to mouth (or worse, act on) Bush’s talking points against their better judgment how do they intend to respond?  How about if it isn’t just against their better judgment but their understanding of their obligation to the country?  It looks from this far away as though that battle may already have been joined.  Here’s hoping they prevail.

For more on pruning back executive power see The Pruning Shears.

There appears to be an effort underway to turn the military into a wholly owned subsidiary of the President’s messaging machine.  If that is the case the military has to decide if it places the him above the Constitution.  First of two parts.

For more on pruning back executive power see The Pruning Shears.

(Note: There were WAY too many links to include every bit of the back and forth on this issue.  Between the original Greenwald post, your favorite search engine and news aggregator of choice you can track down more than you ever wanted to know.)

This week put a spotlight on what may be a troubling development in the military.  On Sunday Glenn Greenwald received an email claiming to be from Colonel Steven A. Boylan, spokesman for General David Petraeus.  The email was a response to an earlier piece about the politicization of the military, and took issue with a number of points.  It was a long response to a long post and each made multiple points so it wasn’t easy to keep track of all the charges and counter charges.  Here’s a brief look at one of them:

Greenwald:

Throughout this year, the U.S. military in Iraq has become staffed with pure Republican political hacks — including long-time Bush/Cheney P.R. hack Steve Schmidt[.]

Response:

The claims about Steve Schmidt being out here on the staff in Iraq are just flat wrong…he just isn’t here.

The source is Mike Allen’s claim that Schmidt “also went over to Iraq to look at the communications capabilities, and he came back with a number of recommendations about even some of the logistical things to help people get those stories out.”  If I’ve got it right from both then the problem starts with Greenwald’s unsupported claim that the military “has become staffed” with Schmidt and his allies.  “Has” is present tense and “staffed” means on the staff, so it’s correct to say “The claims about Steve Schmidt being out here on the staff in Iraq are just flat wrong…he just isn’t here.”  In fact there’s no indication Schmidt was on the staff at any point so it could have been an even more emphatic “Schmidt EVER being out here on the staff”.  It appears Greenwald got a little carried away and was caught red-handed – looks pretty bad, no?

Actually, no.

What matters is the spirit of what he said.  Ask yourself, what did he actually write, what is the mostly likely intent of it and how do you reconcile the difference?  Then do the same with the response.  The result should let you know how bad Greenwald and his correspondent deserve to look.  So, what was his initial point?  Was it to audit the military staff in Iraq?  Suggest operatives were on the military payroll and therefore defrauding the government?  Establish a formal connection between the political room in the White House and the communications office in Iraq?  Since the post’s headline describes a “growing link between the U.S. military and right-wing media” I think it’s fairly obvious none of that is the case.  The point is not who is on the staff but who is influencing the military.  Whether Schmidt received a dime from the Pentagon or wore a uniform is irrelevant.  The whole point is Schmidt’s influence, not his location in the chain of command.  Greenwald’s writing is faithful to Allen’s original assertion that Schmidt “went over…and he came back with a number of recommendations about even some of the logistical things to help people get those stories out.”  It should have been clarified in a correction but that wouldn’t have changed his thesis one bit.

As for the response?  “The claims about Steve Schmidt being out here on the staff in Iraq are just flat wrong…he just isn’t here.”  Writing “he just isn’t here” comes across as deceptive in light of the charge.  The fact that he isn’t here seems intended to lead the reader to believe he never was as well because it attempts to refute that “the U.S. military…is becoming rapidly politicized”.  That could only be (mostly – see below) true with respect to Schmidt if he had never been there, right?  The same is true of “out here on the staff”.  It leaves open the possibility that he had been “out here” at some point, just not “on the staff”.  Greenwald’s point is that Schmidt was part of a campaign to influence the military.  He may have been physically present for some period giving advice and helping to devise strategy, just not as a member of the staff.  He could well still be in frequent contact via email or phone helping to politicize the military.  He doesn’t need to be an ongoing physical presence or literally employed by them to have that effect.  The whole response seems carefully crafted to deceive the reader.

Having to go through this legalistic exercise is irritating but unfortunately necessary.  The challenge to Greenwald’s post has to be answered like this in order to continue the discussion and look at what may be an ominous development in the military’s understanding of itself.  The swirl of accusations this week served only to obscure that central point (and indeed that may have been its purpose).  Next week’s post will look at it.

The Democrats in Congress capitulated on the Iraq war in the spring and surrendered on FISA in the summer.  The upcoming permanent FISA reauthorization debate may be their last chance to show leadership.

For more on pruning back executive power see The Pruning Shears.

In the spring Harry “weak tea” Reid gave up on meaningful opposition to the Iraq war and allowed a fully funded, no strings attached bill to go to the President’s desk.  Bush demanded and Congress complied.  In the summer it happened again, this time with the FISA law.  Each was an embarrassing collapse by the Democratic leadership and each enraged the left wing of the party.  Now with fall upon us and the World Series in full swing (har) it’s a perfect time to discuss what may be strike three.  Each of the previous failures was enormously frustrating to progressives, and now that reauthorization is being discussed it seems like the temperature is near boiling.

The big danger is that people seem almost ready to believe the worst about them.  To this point their supporters seem to generally look at them like Casey Stengel did the 1962 Mets – “Can’t anyone here play this game?”  Congress pleaded insufficient votes with the defense budget and backroom skullduggery with the FISA bill; liberals seemed to reluctantly accept it.  In both cases their stated positions enjoyed solid public support.  We’re now at the point where Congressional leaders can no longer plead ignorance, abundant though that quality is among them.  Casual observers know the President likes to wait until the last minute and then storm in as though the redcoats are about to torch the White House.  Republicans like to use parliamentary procedures to alter legislation they can’t stop and kill legislation they can.  If Congress fails to effectively fight back now even the most sympathetic partisans will be left with just one possible conclusion:  This is how they want it.

Democrats are hanging by a thread with a base that’s already written off most of the rest of Washington.  They’ve given up on principled opposition from the Republicans, while the D.C. media is regarded as willing dupes of the right at worst and irrelevant at best.  For irrelevance you can’t beat last Sunday’s “This Week”.  From 20:45 to 36:50 you can hear over sixteen minutes of uninterrupted blather.  These are among the best-regarded analysts the beltway has to offer and they go on and on interminably with empty-headed electoral horserace chatter about primaries that are still months away.  They could have talked about the SCHIP veto, the FISA bill, the Iraq war, upcoming appropriations bills, mercenary crime, profiteering or any number of other current events.  Instead they left the impression that they know nothing of substance and would rather speculate endlessly about politics.  (Let the record show they take a swipe and the SCHIP veto on the way out.)  By far the preferred subject inside the hothouse is…the soap opera inside the hothouse.  That they do so for an audience for whom it is irrelevant and uninteresting doesn’t seem to occur to them.

With Bush’s approval rating flirting with the Mendoza Line liberals are almost desperate for any show of courage.  Last week Chris Dodd electrified them with his promise to put a hold on FISA reform.  They have finally seen what leadership from their side looks like and they are flocking to it.  Harry Reid, looking more and more like Uriah Heep every day, has indicated he will ignore the hold and bring it up for a vote anyway.  You will then have the spectacle of a Democrat filibustering his own party’s bill and we will have a showdown.  Either Reid will work with Republicans and get together enough votes to bring it to the floor, or enough Democrats will stand with Dodd and reject their ostensible leader.

It may not come to that; there may be a less dramatic resolution.  But the bottom line is there is an irreconcilable tension between the Democrats and their core supporters.  If Dodd backs down you may see more disappointment from them than there was after the 2000 or 2004 presidential elections.  They would probably pull back and not give their time, money or energy to anyone on the scene now.  Either they’d wait for a new champion within the party or look for a third party candidate.  If Dodd holds firm, support will swing solidly behind him and he will be a serious contender for the nomination.  If the party gets behind him as well look for a reenergized base to cheer them on.  If they make him go it alone they will be largely written off.  Either way things have come to a head.  One way or another by the end of the year things will look very different.

The latest wave of corporate malfeasance has arrived, but this time it’s about more than simple greed – and the response may be a whitewash instead of reform.  

For more on pruning back executive power see The Pruning Shears.

Starting in the late nineties there was quite a bit of turbulence in the business world.  There was the tech bubble bursting, multiple scandals in wide-ranging businesses and the occasional multibillion dollar meltdown of a hedge fund.  You were especially hard hit if you worked for Enron or lived in California but it wasn’t a good time for just about anyone in the market.  In the aftermath of the corporate scandals in particular there was pressure for reform and it came in the form of the Sarbanes-Oxley Act.  Many people lost money and some who were forced into common-stock rich 401(k) plans lost substantial portions of their retirement savings, but those most severe losses were relatively few in number (not that it makes you feel any better if you are one of them).  In aggregate it was bad but not catastrophic, and at least we got some reforms out of it.

We may now be looking at a much more significant scandal, but this time around it’s about more than simple greed – and instead of reform we’re looking at a whitewash.  The telecommunication companies have become gatekeepers to the information age.  We seem to be in the midst of a fundamental transition where almost all common communication – digital phone, email, voice over IP, cell phone, etc. – are provided by one of a handful of companies.  In theory the internet is wide open and we can make connections with just about anyone, but in practice it isn’t shaping up that way.  We already have suppression of political speech, a preemptive censorship clause in a license agreement and one company has even created a domestic surveillance menu for the government.  They are doing lots of lobbying behind the scenes, and the fact that it doesn’t always succeed is no comfort.  These companies are trying to lay the physical and intellectual groundwork for a system where the most common forms of speech go through them first and they have the peremptory right to shape it as they wish.  It is at least as big a scandal as anything that happened in the heyday of Adelphia and WorldCom.  These companies deserve to be as decisively repudiated as their predecessors, and the symbols of their influence similarly dismantled.

The Enron of this new corruption could well be AT&T, and its general counsel Wayne Watts the new Ken Lay.  This week he came up with not one but two outrageous rationalizations for his company’s criminal behavior.  After AT&T admitted to illegally turning over tens of thousands of phone records to federal authorities without a court order he said “[t]elecommunications carriers have a part to play in guarding against official abuses, but it is necessarily a modest one.”  The issue is not their role in guarding against official abuses but their role in breaking the law.  It’s very simple: If a federal agency wants some of their records it goes to court, obtains the warrant, presents it to AT&T and they in turn provide the records.  No warrant, no records.  There is no burden on AT&T adjudicate on the legality of the search, the merit of the warrant or in any other way guard against abuse, it is simply to obey the law.  I play the same “necessarily modest” role by not robbing liquor stores at gunpoint.

His second contribution is just as bad.  After DNI Mike McConnell invoked the state secrets privilege to prevent AT&T from providing more information on the extent of their cooperation with the Bush administration he wrote “[o]ur company essentially finds itself caught in the middle of an oversight dispute between the Congress and the executive relating to government surveillance activities.”  Actually, AT&T threw in its lot with the executive branch several years ago and is desperate to keep the illegal activity they pressed for quiet.  They are furiously lobbying to keep lawsuits against them from proceeding because (one can only imagine) they know that the best possible outcome is a tsunami of bad publicity no amount of warm and fuzzy commercials can counter, while the worst is that plus massive punitive damages.  The only thing they are in the middle of is a terrible quandary of their own making, and any cooperation with the legislative branch only promises to make it worse.  They are one hundred percent invested in the executive prevailing, and that is why they have made zero attempt to cooperate with Congress.  

AT&T may not be the worst of the Police State Telecoms, they just had the same spokesman make obviously false arguments this week.  All of them appear to be involved at some level, and in an ironic twist the closest thing to a hero among them may well be a white collar criminal straight out of the last era of scandal.  Regardless of their stories, though, they should be judged by their actions.  If they ought to have known better they deserve to be found guilty and no amount of self-serving protestations can justify it.

The most pressing issues of our day are ultimately our responsibility no matter how much we want it to be otherwise

[W]hen we’re not affirmatively endorsing and providing protection for [Bush’s extremism and lawbreaking], we’re choosing not to know about it, or simply allowing it to fester. And the more that happens, the less that behavior becomes the exclusive province of the Bush administration and the more it becomes our country’s defining behavior.
– Glenn Greenwald

When it comes to religion I’m in the “you only hear about the planes that crash” camp.  I think it’s been a source of strength, inspiration, comfort, wisdom and many other wonderful things to billions of people throughout history.  I don’t think the vast majority of religious people are credulous boobs or mortifiers of the flesh concerned only with the afterlife.  Religion on the whole has been a great thing for us but in the same way the news isn’t filled with reports of planes landing safely history only tends to record the crusades and inquisitions.

The religions I’m most familiar with – Judaism and Christianity – have what I suspect is a common element in all major religions, an emphasis on community.  In Jewish Passover services they remember how God “brought us out of Egypt“.  It isn’t God bringing “them” or “our ancestors” out of Egypt, but “us” – the community even down to the present day.  Christians read Jesus teach that “where two or three are gathered together in My name, I am there in the midst of them” – he specifies more than one.  I believe the sense of “we are all in this together” is one of the most powerful drawing points for religion.  (While I’m in the neighborhood let me say that I have absolutely no patience for the “I don’t need to go to a building to feel close to God” business.  You don’t go to feel close to God, you go to worship as part of a community.)

Nations also act collectively but in democracies there seems to be tensions against thinking that way.  Most particularly political parties put people into ideological camps and we break down further as individual voters.  America has a particular history of individualism as well so for us it may be even more pronounced.  Prayers seem to almost always be collective – it’s not the “My Father” – but even our most basic patriotic equivalents seem not to be (“I pledge allegiance”).

Unfortunately between our individualist impulses and the sharp divisions that began forming in 1994 we are now pointing fingers at each other over a great divide.  It’s possible that one of our most divisive presidents may unintentionally give us the gift of unity – in repudiating him.  The war he urged on us is horribly unsuccessful and unpopular, as is his SCHIP veto for a transparently unbelieved principle, and there’s a general uneasiness with his push for a blank check when the Surveil America Act expires in February.  No one on the right is making any kind of full-throated defense of anything he does at this point, though there is still the lunatic fringe that occasionally criticizes him for not being crazy enough (latest example: he isn’t sufficiently enthusiastic about executions).  Candidates won’t campaign with him and the best anyone seems willing to do is to look discreetly away.  There isn’t much mystery at this point how the polls will look in a little over a year if things don’t change.  Why not make a clean break now?

The left has a challenge of its own.  Not to put too fine a point on it, there seems to be a certain moral smugness settling in.  It’s as though Republican control of for six years and persistent obstructionism as a minority since then has absolved liberals from any blame.  Yes, many were against the war from the beginning, sounded the alarm as Bush’s nature slowly began to reveal itself, and in general took positions that have since been vindicated.  Congratulations, good for you, but in the end you too are party to the collective sin.  A teacher of mine once said “nothing happens to us that we do not create, promote or allow.”  Progressives need to find themselves in that formulation and internalize it, because what is happening isn’t being done by Republicans or the President, it’s being done by America.  There is no “they” doing it, it’s us.  We are torturing prisoners in Guantánamo and elsewhere, and we did so at Abu Ghraib.  We are killing people randomly in the streets of Baghdad.  Here at home we sat by as one of our cities reverted to a state of nature, and we are still sitting by as it languishes.  We – all of us – are responsible for these things and we share the blame.  Years from now people won’t care which branch or level of government is most culpable for what is happening now, only that all of us let it happen and should be ashamed.

This week produced a number of small but potentially significant challenges to the President.  It’s possible we’ll look back on it as the beginning of effective resistance to George Bush’s imperial theory of the executive.

For more on pruning back executive power see The Pruning Shears.

There have been a few different events this week that could foreshadow a different approach towards the President.  It looks like his aura of invincibility may have been chipped away in a number of important ways, and for the first time there may be reason to think an effective push against his imperial style has begun.

For starters there is Seymour Hersh’s latest installment in his series of essays on the Bush administration (short version: it’s roughly how Sam Houston characterized Jefferson Davis).  By publicizing the shift in strategy from justifying a big war over nuclear weapons (as in “we don’t want the smoking gun to be a mushroom cloud“) to smaller strikes against Revolutionary Guard targets Hersh shows the administration simply wants war.  As in Iraq, the goal is to once again find one reason everyone can agree on.  It’s a fairly damaging piece of reporting despite White House dismissals and might (might) lead to a stronger effort from Congress to prevent the President from starting another war.

Next is the AP report that “[a] program to employ spy satellites for certain domestic uses is on hold indefinitely” because “lawmakers demanded more information about its legal basis and what protections are in place to ensure the government is not peering into Americans’ homes.”  What’s interesting is that a Department of Homeland Security program is being delayed because of concerns from lawmakers.  DHS is an executive branch agency and in the past few years we’ve gotten used to the executive branch paying no heed to the legislative.  The article doesn’t (maybe can’t) go into more detail but it would be nice to know how legislators’ concerns prompted DHS to change course.  The bigger picture, though, is that the legislature objected and the executive backed down.  We haven’t seen too much of that lately.

Then there were the two signs of life from Congressional Democrats: Henry Waxman turning down a Republican request to postpone the Blackwater hearing and David Obey’s statement that he wouldn’t allow a military budget out of committee if it didn’t have a withdrawal deadline of January 2009.  Obey’s threat will be the much more important story if he actually follows through on it.  It’s the kind of political move that could force a confrontation with the President because it narrows the opposition to the House Appropriations Committee, perhaps just Obey himself.  Senate Republicans can’t filibuster it, Senate and most House Democrats can feign powerlessness (shouldn’t be a stretch) and it could turn into an Obey-Bush showdown.  I don’t know enough about Obey to make a prediction, but if he decides to go to the mat over it the Democrats’ weakness as a caucus would be completely out of play.

Waxman’s moving ahead with the Blackwater hearing is another first.  Congressional Republicans have provided political cover for George Bush by implementing a policy of delay and filibuster.  Since Bush doesn’t want to veto bills he has his allies prevent them from getting to his desk, and since he doesn’t want oversight he looks to delay investigations any way he can.  He has been largely successful in this and has had the full cooperation of the Congressional GOP.  Putting off an embarrassing hearing about the conduct of mercenaries in Iraq is of great interest to the White House but they were prevented from doing so this week.  And speaking of vetoes, he was forced this week to issue just the fourth of his presidency.  The fact that it (a) passed when he didn’t want it to (b) is very popular (c) couldn’t be vetoed under any principle he could credibly claim and (d) might go into law anyway is a remarkable set of circumstances.  Any one of them would have been hard to imagine a year ago and yet this week all came together in a single bill.  Moreover, afterwards Republican Charles Grassley of Iowa said: “The administration’s position … it was either ‘my way or the highway.’ Well, that’s not how the legislative process works. Now we’ve got to do what we can to try to override.”  It’s a stunning and rare intraparty rebuke of Bush as well as a welcome reminder of how our government is supposed to work.

Finally, some footnotes.  Former DOJ lawyer Jack Goldsmith testified before Congress about White House lawbreaking as part of its Citizen Surveillance Program, a federal judge threw out Bush’s executive order to let ex-Presidents hide their papers forever and there were new revelations about wide-ranging use of torture.  (The issues themselves aren’t footnotes, just the role they could play in changing momentum at the moment.)  Throw in a poll that spells out solid majority opinion against the war and you have an overview of a potentially historic week.  Right now it’s impossible to say how it will play out, but it’s just possible that it represents the moment newly-emboldened actors began a decisive push against an overreaching executive.

Michael B. Mukasey’s nomination for Attorney General has been met with nearly universal acclaim.  And I really mean universal – the standard bearers of conventional wisdom made approving noises, there were plenty of quotes from Democrats and Republicans and most surprisingly even the online community seemed largely approving.  From the left to the right there were notes of caution sounded but overall it seemed like one of the very few times there was widespread agreement.  It also deserves to be defeated, and here’s why.

First let’s go back to what seems like another time, back before George W. Bush assumed primary custody of the law.  Article II, Section 2 of the Constitution says “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”.  I don’t recall seeing a single mention of the Senate’s “Advice and Consent” role on the nomination, and it really is as though the President has been able to make everyone forget about what exactly the government is doing and how it should act.  Instead we had legislators, reporters and analysts speculating on different potential nominees like children gazing in wonder at so many gift wrapped Christmas presents.  There is no sense that the process wasn’t designed to work like that or that maybe more should be involved than just waiting breathlessly for Bush to unveil his choice.

There is no record (that I know of, anyway) of George Bush seeking the advice of the Senate, yet he is constitutionally obligated to do so.  His style in this as in much else is more authoritarian than democratic, because he makes his choice in the shadows and then tells the Senate its only role is to cast an up or down vote.  He doesn’t believe in meeting with Senators with a list of potential nominees or talking informally to them about what qualities they’d like to see or heaven forbid if they have any names they’d like to throw out there themselves.  At no point does he seek out the advice of the Senate and for that reason alone they should reject Mukasey.  In fact, for that reason alone they should reject anyone they have not advised on; if they don’t assert their authority it will continue to be denied them.

One of George Bush’s remarkable successes has been conditioning almost everyone to expect extreme right wing ideologues or their enablers in just about every position of importance.  It’s now common even on the left to read a sentiment along these lines:  He’s the President and he gets to pick whomever he wants; it likely will be someone far outside the mainstream but as long as s/he’s not entirely objectionable we should be grateful.  That was the initial reaction with Mukasey.  Unfortunately it glossed over some extremely serious objections that are only now starting to dribble out.  The worst is his belief he could determine whether or not a defendant had been tortured by looking at him in court.  If nothing else it brings up echoes of the Doctor By Video routine from Bill Frist (and is presumably as reliable).  At worst it conjures up images of someone who can be casually dismissive of human rights.

There are other problems as well.  For one “Mukasey said that he saw ‘significant problems’ with shutting down Guantánamo Bay and that he understood the need for the CIA to use some ‘enhanced’ interrogation techniques against Qaeda suspects”.  This is a polite way of saying he is ambivalent about habeas corpus but approves of torture.  He has also prevented evidence of intelligence agencies’ being compromised come to light at a trial he presided over.  This was not just a sucker punch to transparency – a little bit of scandal in 1995 may have prevented a whole lot of terrorism in 2001.  Mukasey represents a “consensus choice” in a post-advice world.  Finally there’s the issue of Senator Leahy’s largely forgotten pledge to sit on the nomination until the administration stops placing itself above the law.  Not following through on pledges like that are why the White House has paid no price for its uninterrupted contempt of Congress.

The Senate should reject Mukasey for three reasons, any one of which is sufficient.  They have not advised the President on this nominee, the nominee has an unacceptable record in defending the Constitution, and there is an existing legal tangle to unwind at the Justice Department that should take precedence.  They would perform a valuable service to their country by rejecting him.

For more on pruning back executive power see The Pruning Shears.

George Bush has successfully intimidated most everyone he’s had to work with.  It’s time for someone to stand up to him.
For more on pruning back executive power see The Pruning Shears.

This week Alan Greenspan joined the list of people who had serious reservations about what was happening in the Bush administration but waited until the moment passed and they were out of office to say so*.  There isn’t anything new about an insider leaving and coming out with splashy behind-the-scenes tales, but with the Bush administration it seems like a lot more than ordinary infighting.  The picture that’s emerged is of a group that won’t pursue legitimate issues that don’t fit into their worldview, relentlessly pursue illegitimate ones that do and casually lie to the public about both.  If all these people are right why didn’t they resign and go public when it could have had an effect?

The simple answer:  George Bush is a bully.  He’s nothing more than a garden variety schoolyard tough guy who struts around secure in the knowledge that everyone around him is cowed.  There is good news and bad news in this.  The good news is, when a bullying strategy breaks, it shatters.  It’s almost a proverb that once a bully finally takes a good clean punch on the nose he’ll drop like a house of cards.  The bad news is, no one in the schoolyard seems willing to take a swing.

The same is true for Congress.  Republicans are in the process of marching like lemmings over the cliff with him, except he’ll stand at the edge and watch since he’s run in his last election.  Their individual prospects are poor in many cases, fundraising is down, there is no enthusiasm in the base and they are looking at an even greater setback next year than they saw last year.  They could end up almost completely marginalized as a party, unable to stop or even slow down a supermajority Democratic congress sending bill after bill to a Democratic President.  They may be reduced to praying for luck and relying on Democrats’ historical fractiousness to provide any semblance of effective opposition.

Democrats have been equally feeble.  They swept into office with a mandate to end the war, they have the public solidly in their camp and their base is united, energized and screaming for change.  Their opposition is panic-stricken and strategically (and philosophically) spent, and they are poised to force Republicans to either abandon their leader or be annihilated in fourteen months.  Yet in this position of total advantage they shrink back – because they have been bullied.  They are afraid of that big kid who gets nose to nose when they fuss a little and says, “wanna fight over it?”  Everything is in their favor and yet they are paralyzed.

As for the Road To Hell Paving Crew, the most generous interpretation is that they were genuinely shocked by the naked ambition they saw behind the scenes and were slow to realize how comprehensive it was.  They appear to understand that loyalty is prized above all other qualities and a failure to show it will provoke a ferocious response.  The fact that so many swallowed their pride and went along shows how effective such a primitive tactic can be even at the top levels of government.  They may have initially thought it was possible to make a difference from within and left when they despaired of doing so.  Fair enough.  They may have been isolated and not realized how common their worries were, and had they known they may have been emboldened to speak out when it would have made a difference.  It can be frightening to go out on a limb all alone, and while being intimidated into silence isn’t noble it is understandable.  

The situation is much different now.  The President and his policies are deeply unpopular and he is a lame duck – it’s time for someone to stand up to him.  Republicans could do so privately or Democrats could do so publicly.  If he refuses to change they could render him politically impotent.  Once the first cracks appeared the collapse would be astonishingly fast.  Meanwhile the people in the administration regarded as “good guys” like Robert Gates and (just this week) Michael Mukasey don’t have the excuse their predecessors did.  Bush and Cheney call all the shots; everyone else either falls into line or gets steamrolled.  Anyone who doesn’t like it knows the prospects for changing it.  It has reached a point where mere association is dishonorable and no one should be allowed to pretend otherwise.  Here in the second half of 2007 just being in the tent with them is an implicit and unconditional endorsement.

One of the main results from this conspiracy of inaction has been potentially unprecedented executive aggrandizement.  And even though that’s an abstract concept, the heart of the issue is understood by every schoolboy: The remedy for bullying is simple courage.

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Note: In case you don’t have time to click through, the links (in order) point to David Kuo, John DiIulio, Paul O’Neill, Richard Clarke, Matthew Dowd, Colin Powell, Jay Garner, Paul Bremer, Greg Thielmann, Anthony Zinni, Rand Beers and David Kay.  See here if you still haven’t had enough. (Return to post.)

We are stuck in Iraq with no good options because Congress has lightly ceded its war-making powers to the executive

For more on pruning back executive power see The Pruning Shears.

The Constitution of the United States, Article I, Section 8:

The Congress shall have Power…
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Article II, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

So: Congress decides if we go to war, how large the armed forces should be, how much to fund them and how long to fund them for.  They say to the President, “we’re at war now.  Here’s an army and a navy.  You get this many people for this long.  Command them in battle until then.”  Congress makes all the policy decisions and the President’s role is simply to implement that policy with the tools they provide him.  The framers did so deliberately; they were in the process of overthrowing a tyrant and wanted to structure their new government in a way that specifically excluded the executive from war policy.  They correctly perceived that vesting such powers with a single individual is dangerous in any event and especially dangerous when the individual in question is a little…nutty.

Congress should have long ago reviewed the Authorization for Use of Military Force and decided if Iraq’s WMD programs, defiance of UN resolutions, or anything else in it were still operative (answer: “no”).  It could have been immediately replaced by a new one with new goals at no risk to soldiers; the only danger would be political.  Instead of revisiting the original (or some theoretical new) authorization this week we went through the looking glass and watched Congress ask David Petraeus and Ryan Crocker if it was acceptable to continue the war.

There is a small chance they will consult the Constitution before making their next move, and here’s what it would look like if they did.  They would tell the President that they are the ones setting policy, that the original reasons for the war no longer apply, revoke the authorization and tell the Pentagon to draw up a smart, timely redeployment schedule.  If he wished to continue the war he or his allies in Congress could draft a new authorization and debate it before the nation.  George Bush has been his usual brilliant political self by casting the debate in terms of eye-glazing military minutia.  Congress could immediately reframe the debate, seize the advantage on it and be faithful to their oaths with one swift move.  Their history doesn’t make that too likely, but it deserves to be said that the remedy exists and is in the Constitution.

One more point.  Congress has gotten into the lazy, cowardly and irresponsible habit of passing authorizations of force instead of declaring war.  Wikipedia has a section called “Controversy regarding U.S. declarations of war” on this page that goes over how we’ve sent soldiers into combat without declaring war, and the benefits of doing so.  The Iraq war shows the degree to which the hazards outweigh the benefits.  America spends more on its military than the rest of the world combined and the last fifty or so years have shown that Presidents find it almost intolerable to have such a magnificent force and not take it out for a spin every now and then.  After all, you don’t spend a lot of money on a sports car to drive it through school zones, right?  We need to acknowledge that enormous temptation by doing away with authorizations of force and going back to a literal reading of the Constitution.  That means, no soldiers in combat unless we declare war.  Ever.  If we had declared war on Iraq in 2002 instead of “authorizing force” (a nauseating and Orwellian euphemism) do you think we would still be at war now?  Once Saddam was hung and elections were held we would have concluded the war was over and been spared the seemingly endless drift and drain of an undefined, open ended commitment.

Actually, if Congress had to formally declare war before combat could begin we may have avoided it entirely.  I’m sure the war-first jackals would have howled with outrage and thrown the worst accusations all around and every bad development afterward pinned on not starting a war, so could we please take a mental snapshot right now and put it in a time capsule?  Perhaps it could be unearthed when their descendents are baying for the next one.  If we are faced with a truly grave threat a formal declaration of war would likely be a minor obstacle.  If it’s a war of choice being sold as a grave threat then ulterior motives are involved and perhaps someone will point out that incompetence, corruption and unintended consequences are more likely to determine the outcome than the finest plans and noblest intentions.