Author: Marty Aussenberg

Marty Aussenberg is a columnist for the weekly Memphis Flyer, in which an earlier version of this piece appeared. He is a former SEC enforcement official (back when its reputation was still intact), and is currently an attorney in Memphis, Tennessee.

Something very rare occurred in Washington, D.C. this past week, and it passed substantially under the radar because of the media‛s obsession du jour which, this time, was leaks by geeks. No, I don‛t mean Republicans decided to stop screwing the American public—hey, I said very rare, not inconceivable.

What I mean is that a federal official, one of very few (other than presidents) who can be constitutionally removed from office only by impeachment, was, in fact, removed from office by impeachment. This was the first time that‛s happened in over twenty years, and in the entire history of the republic, going back to 1789, only the eighth, and was a very significant milestone for our constitutional system proving, as sunshine patriots love to say, that our system works. The problem they overlook in saying that is that, in this respect, our system doesn‛t work nearly often enough.

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The official who was removed was a federal judge, G. Thomas Porteous, Jr., who, until last week, was a judge in the Eastern District of Louisiana. He was found guilty of a laundry list of offenses. Federal district judges (not magistrate, bankruptcy or administrative law judges), you see, are given lifetime tenure, or at least for as long as they exhibit “good behavior,” and, like presidents, can only be removed from office by the impeachment process, meaning presentment of articles of impeachment by the House of Representatives, and trial on those charges by the U.S. Senate, for “high crimes and misdemeanors.” You remember that phrase, don‛t you? In a president‛s case it means getting a BJ in the Oval Office, while for everyone else it apparently means the equivalent of murdering Mother Teresa in front of thirty bishops.

To put the rarity of this event even further in context, there are 2.6 million federal civilian employees, including district judges, in the federal government (and that doesn‛t count an additional 3 million military employees), and of that huge number, the only 875 who are given life tenure are—you guessed it—federal judges, from the district/trial level all the way up to the Supreme Court. That means that of the thousands of federal judges who have served in that capacity in the last 220 years (one web site reckons the number as being in the 3,000 range, though I think it‛s closer to twice that, given the average tenure of a federal judge), only eight have been removed from that office because of their conduct or behavior. In addition to those eight, there have been 13 who have been impeached by the House, but weren‛t removed by the Senate.

An impeachment rate of .04%, and a removal rate of .02%, is an amazing statistic, if you think about it, especially considering the high standards federal judges are expected to maintain, and the many temptations to stray from the straight and narrow their powerful position offers them (temptations the now Mr. Porteous obviously couldn‛t resist). It beats the law of averages by a long shot. Popes would probably have a higher impeachment rate, if they could be impeached. Have so few federal judges been impeached and/or removed because, as a group, they have maintained such a high standard of integrity, or is it because the bar for their removal has been set so impossibly high?

The founding fathers made federal judges lifetime appointees supposedly to remove them from the influences of politics and public pressure, and yet we‛ve learned that being appointed by the leader of one of the two major political parties and confirmed in a frequently brutal political process (did I hear someone say “Borked?”) by the Senate, and having your salary (which, unlike other federal employees, is constitutionally prohibited from being reduced) be set and adjusted by that same body, doesn‛t exactly assure immunity to political influence. If nothing else did so, the Supreme Court‛s decision in Bush v. Gore taught us that. Indeed, studies of the federal judiciary have concluded that the party affiliation of the president who appoints them is often predictive of how federal judges will decide particular cases, something most followers of decisions by the federal judiciary in controversial cases have always known. Justices Roberts, Scalia, Thomas and Alito have proven that too, haven‛t they?

In general, judges at the trial level, both state and federal (state more so than federal, given the more common kinds of cases the state court system handles), have more sheer, raw power over our day-to-day lives than virtually any other public official. A neophyte police officer may be the most powerful official of all, since s/he can, even if only temporarily, impair your freedom of movement, and has the ability to kill people, legally. But, s/he can‛t cause all of your money or property to be seized, as a judge can, sentence you to be removed from society for vast lengths of time, or even have you snuffed. What goes along with power in our society, though, or at least is supposed to, is accountability. There are, of course, notable exceptions (George Bush and Dick Cheney, for authorizing torture, immediately come to mind), and it is generally recognized that the ultimate accountability for screwing up at one‛s place of work is the loss of their job. For many governmental officials this happens at the ballot box, and for others in the ordinary course of their employment. But not so for federal judges.

Impeachment, as it turns out, is not the only source of accountability for these judges, at least not in principle. There is, in fact, a disciplinary protocol for them that is short of that seldom-seen procedure. Under a fairly recent federal statute, complaints may be made to the chief judge of the federal circuit in which the allegedly offending judge sits. Ask John Q. Public, though, what a federal circuit is and your answer is more likely to be an electrical device than a judicial subdivision. The rest of the process is somewhat obscure and convoluted. The rules governing the procedure to file a complaint–good luck finding them–can vary from circuit to circuit, and many would be difficult for the average aggrieved layman to follow even if s/he could find them. They involve such byzantine-sounding administrative bodies as judicial councils, special committees, and something called the Judicial Conference.

Arcane as this federal judicial disciplinary process is, three features of it come shining through: first, unlike state courts and most other professions or occupations, federal judges are self-policing (except, of course, for impeachment); second, the disciplinary process, from start to finish, is hidden from public view; and third, precious few of the complaints that are filed ever result in any discipline, and if they do, thanks to the secrecy of the proceedings, almost no one ever hears about it. More than one legal commentator has bemoaned the inadequacy of judicial discipline at the federal level.

Don‛t get me wrong: I have the utmost respect for the federal judiciary, and have had the privilege of practicing before many distinguished federal jurists all over the country, including one of the most famous in his day, “Maximum John” Sirica, who took on President Nixon in a well-known episode of the Watergate drama. I‛m grateful for the federal judicial system. It is one of the most comprehensive, well-developed, readily-available sources of jurisprudence we have in this country, and believe me, as someone who‛s spent many an hour in law libraries leafing through dusty tomes trying to find good, albeit occasionally ancient, state law, I appreciate that aspect of the federal system. Its judges, appointed and confirmed as they are by a rigorous, even if sometimes too political, process (but one that, still and all, is far preferable to the election of judges by a more-often-than-not totally uninformed electorate), represent some of the finest examples of their discipline. They are not, however, infallible.

The story is told about the figure in a black robe, carrying a gavel, who breaks into the front of an interminable line at the pearly gates. One standee in the line asks another, “who was that guy,” to which the reply is, “oh, that‛s God; he likes to pretend he‛s a federal judge once in awhile.” Ask any lawyer who has practiced regularly in federal court, and they‛ll tell you they‛ve seen federal judges behave badly, just as judges in any venue are capable of doing, so it is a matter of concern to many that mere mortals who are given so much power, but particularly for so long, are held to so little in the way of accountability.

The wisdom of lifetime appointments for federal judges has come under increasing attack in our politically divisive environment, with diatribes, both from the right and the left, about “judicial activism,” “legislating from the bench,” and the like, which is frequently the reaction from whichever side of the political spectrum takes more umbrage at a ruling. I don‛t favor tinkering with the Constitution, for any reason, so I wouldn‛t want to see lifetime tenure eliminated. I wouldn‛t mind it, though, if in the next 220 years impeachment of federal judges wasn‛t quite as rare as it‛s been in the last 220.

Marty Aussenberg (f/k/a “Gadfly”), previously a columnist for the alternative newsweekly, The Memphis Flyer, is a lawyer in Memphis, Tennessee. He was, at one time, an attorney in the enforcement division of the SEC in Washington, D.C., when its good reputation was still intact.

I live in a city that has a history many outsiders like to rub its nose in. I admit, the assassination of an icon of the civil rights movement is not something you want your city to be known for (though Dallas and LA seem to have escaped equivalently perpetual scorn for their arguably equivalent assassinations). Which, of course, is why I prefer to say I live where Elvis lived rather than where Dr. King died (though I‛m never quite sure which historical episode some outsiders consider more shame-worthy).

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Memphis does, indeed, have a shameful history when it comes to race relations, and not just because of the King assassination. Let’s just say that part of the reason it can hold its head up, insofar as race relations are concerned, is that at least it’s not Mississippi. It has also suffered from continued strains in those relations, even after the events of the 60’s, the most recent manifestation of which was the political campaign for a congressional seat marked by an overt appeal to race by one of the candidates, the black former four-term mayor of the city, whose campaign was based almost entirely on his assertion that he was entitled to be elected because, unlike the incumbent he sought to unseat, he was black. Sadly, this was not unlike the kind of race-baiting the campaign for the same seat saw just two years earlier. But more about that later.

More recently, the city council had to shelve a proposed ordinance that would have outlawed discrimination against city workers on the basis of their sexual preference. Sadly, the ordinance was opposed by, of all people, a coalition that included black ministers, presumably demonstrating that discrimination is apparently easier to inflict than it is to suffer.

In addition to racial issues, the city, part of the buckle of the Bible belt, is also reputed to have more churches per capita than virtually any other city its size in the country. Though I can’t confirm that as factual, I can say that when I first moved here I noticed the number of Yellow Pages listing churches exceeded the number listing lawyers, which, I must admit, as both a lawyer and a fallen Jew, I had really mixed feelings about. Some of those churches have been, shall we say, less than tolerant of some of their brethren.

One example is the megachurch which refused to allow a team to play in its softball league (hey, it’s gotta do something with its ten softball fields, doesn’t it?) because one of the team’s members was openly gay. Not surprisingly, that church’s pastor was one of the ones who opposed the city’s proposed anti-discrimination ordinance.

So, with all of that said, by way of overly lengthy prologue, it came as something of a surprise to many when, amidst all the brouhaha about the mosque (actually, a cultural center) being built in the shadow of Ground Zero, violence against a mosque being built in a neighboring Tennessee town (a truly hilarious take on which can be found here), and most notoriously, the upcoming planned burning of Qurans (which–praise whatever deity you choose–has apparently (I’ll believe it when I see it) been canceled) by what can only be described as a deeply disturbed preacher in Florida, the bright, shining example of tolerance and understanding of Muslims would come from, of all places, Memphis.

I refer to the hospitality and, yes, love extended by a Memphis church to its Muslim neighbors who are in the process of building a community center across the street from the church. The Christian church has welcomed its neighbors in a variety of ways, including allowing the Muslims to use the church’s facilities for worship services while their facility is being built. The story of the Heartsong Christian Church and its Muslim neighbors has gotten some, but not nearly enough, play in the national media.

The point of this isn’t that beauty can’t exist simultaneously with ugliness. Cactus flowers are the best proof of that in nature. Nor is it that enlightenment can’t spring from ignorance. Hey, Arianna Huffington used to be a conservative. Rather, it is that no place is destined to be doomed by its historical DNA to repeat its mistakes. The story of the bond between Christians and Moslems in, of all places, Memphis, Tennessee, is heartwarming, and serves as a dramatic counterpoint to some of the vile behavior and rhetoric targeted at Muslims we have been treated to recently, including by some otherwise progressive voices.

Now, about that attempted throwback to earlier times by one of the candidates for a congressional seat whose campaign was based almost exclusively on an appeal to race. He lost the election, by an overwhelming margin (80% to 20%) to the white incumbent (who also happens to be a Jew), amazingly enough in a district that is 60% black (and probably 99.9% Christian).

See what I mean about not being doomed to repeat mistakes?

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Marty Aussenberg (f/k/a “Gadfly”), previously a columnist for the alternative newsweekly, The Memphis Flyer, is a lawyer in Memphis, Tennessee. He was, at one time, an attorney in the enforcement division of the SEC in Washington, D.C., at a time when its good reputation was still intact.

Update [2010-8-20 0:51:7 by Marty Aussenberg]: I hate it when someone “borrows” my ideas. But, speaking of jurors, it turns out it wasn’t just a single holdout who caused the jury to hang, at least not on all 23 of the unresolved charges. There were, apparently,differences of opinion by more than just one juror about some of the other counts as well. And finally, if you haven’t seen Jon Stewart’s take on the Blago trial outcome, it’s worth a look. Suffice it to say, the spoof logo that accompanies the piece is “Law and Order: Time Wasters Unit.”

Now, back to the show:

Back when Rod Blagojevich’s troubles first surfaced (January, 2009), I wrote an article that appeared in The Memphis Flyer about the legend “Blago” had become.

Here’s what I wrote:

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The governor of Illinois, Rod Blagojevich, is becoming a folk hero. Have you noticed? Among other things, he has succeeded in sticking his thumb in the collective eye of the politicians, not just in Illinois, but in D.C. as well. While those politicians run around in apoplectic circles, trying to figure out how to clip Blago’s wings, he outflanks and outmaneuvers them at every turn. Resign from office—up yours (and watch as the Illinois Supreme Court refuses to remove him). Refrain from appointing a replacement for Barrack Obama’s Senate seat—fahgitaboutit (and watch as the Senate’s Democrats are forced to seat Blago’s appointment). Impeachment—a mere technicality, a political hatchet job. After all, we know how bogus Bill Clinton’s impeachment was (not to mention that he survived it quite nicely, thank you).

There’s no telling how much longer Blago will survive the withering pressure he’s under, both politically and criminally, but in the meantime we can all watch his exploits and marvel at his chutzpah.

Well, now that Blago has managed to doge another bullet (actually, more like an IED), even if only for as long as it takes his inquisitor, Patrick Fitzgerald, time to reload for the next round of this battle (i.e., retrial), the Blago legend continues. Fitzgerald failed to deliver what everyone hoped for in this high profile prosecution, just as he did in the infamous Plamegate matter. Oh sure, he managed to convince the jury the Elvis wannabe lied to the FBI, but that was a small consolation, just as the conviction of Scooter Libby (and only Scooter Libby) for perjury and obstruction of justice was a poor substitute for nailing the real culprits in that whole debacle.

Trust me: I was a federal investigator for several years, and took dozens of statements in my career, and if I had taken the testimony of Mother Teresa herself, and turned my microscope up high enough, I assure you I could have found something she said that would set her up for a charge of lying to a federal officer (18 U.S.C Sec. 1001–also known as the Martha Stewart mistake).

Much is being made of the post-trial interview of jurors, in which they’ve said that there was one holdout who prevented a unanimous verdict on the remainder of the 24 counts that were brought against our “hero.” Lest anyone assume this means the one holdout was obviously wrong because she resisted what must have been the withering, righteous, pressure of her fellow jurors to fall in line, I remind them of the epic film about jury deliberations, “12 Angry Men” (a must-see), the premise of which was how important to our system of justice the unanimity of a jury verdict is, and how one holdout in a jury of twelve can, sometimes, be the linchpin in that system of justice.

I make no claim to hero-worship when it comes to “Dondi” (does anyone else see the similarity to the cartoon character) Blagojevich, but it continues to trouble me that the bedrock principle of “innocent until proven guilty” is so cavalierly ignored in our society. In the case of Blago, there weren’t many who believed he should really be given his day in court; hang him first, then give him a fair trial seemed to be the prevailing attitude.

As if to prove that point, despite the fact that, for all intents and purposes, he beat the rap (even if only temporarily) on 23 of the 24 counts that were brought against him, the headlines on many of the stories that announced the verdict touted the one finding of guilt, rather than the 23 the jury, in essence, gave him a pass on. Our justice system is far from perfect. If you don’t believe that, ask any one of the nearly 250-some people who were ultimately exonerated of wrongful convictions, but, like Winston Churchill said about democracy, that system is better than the all the rest.

I don’t know whether Blago was guilty or innocent of any of the charges that were brought against him; only a jury can decide that, and unless you heard every word of testimony and saw every scrap of evidence that jury did, you cannot second guess their decision. And you certainly can’t base your opinion on what the media have told you about the trial, or the events leading up to it. I think it’s fair to say much of the media (and especially the ones in Chicago) were part of the lynch mob mentality that surrounded Blago, and continue to do so.

I do know this, though: if the justice department can’t do any better than prosecuting what they claim are the equivalent of “crimes of the century” (in this case, crimes that Fitzgerald said “would make Lincoln turn over in his grave”), only to be left with the weak broth of lying to federal investigators, they need to go back to the prosecutorial drawing board.

Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. He was an SEC enforcement official back in the day when its reputation was still intact.

Have you heard? Al and Tipper Gore are separating, after 40 years of marital bliss. Judging from all the hubub in the media over this story, you’d think the earth had somehow deviated from its orbit. How could two people who were married to each other for so long possibly call it quits? What does this say about the institution of marriage, and will the earth ever return to its position vis a vis the sun? I have my own theory about this parting of the ways, and it’s based, in part, on a sad episode in the Gores’ history. And while part of it, I admit, is tongue in cheek (albeit plausible) speculation, the fact is, for the Gores, just as for so many others, the past can be prologue.

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I, for one, was totally unsurprised by the announcement of the Gores’ separation. The only thing that did surprise me is that it took as long as it did, because I suspect this was brewing for some time–25 years, to be exact. I trace the etiology of this earth-shattering breakup to the events surrounding Tipper (that name, alone, should be grounds for divorce), and her self-appointed crusade on behalf of America’s children, and their need to be protected from audio recordings of a sexual or violent nature. No, I’m not talking about censorship as it was practiced by such arbiters of taste as my own adopted home town’s notorious Lloyd Binford . I’m talking about the organization formed by Mrs. Gore in 1985, with the support of several other senators’ wives (including Strom Thurmond’s), known as the Parents’ Music Resource Center (“PMRC”).

The objective of the PMRC was to (and I’m cutting to the chase here) censor the content of the lyrics on music recordings. Oh sure, they called it record “labeling,” but everyone recognized it for what it was. As a result of Mrs. Gore, and her cohorts’, efforts, a hearing was held before a Senate committee in which witnesses, including “Tipper”(I don’t know why this tune pops into my head every time I hear or see that name) appeared before the members of that committee to testify about the evils of unregulated music lyrics, in an effort to get the government to support, ultimately, censoring those lyrics.

The hearing is noteworthy for, among other reasons, the appearances of Frank Zappa and Dee Snider (not to mention John Denver), noted musicians of their time, who eloquently opposed the efforts of Mrs. Gore and her taste police. And, guess which senator just happened to be on the committee that held that hearing? If you guessed Al Gore, shame on you for your cynicism, but congratulations for your perspicacity. That’s right, “Tipper” got her husband to convene a hearing on her pet project, who then participated actively in that hearing, including by asking the witnesses (not the least of whom was his own wife) questions about the PMRC’s campaign. It’s bad enough this paragon of Democratic principles could even entertain the prospect of censorship, of any kind, but it’s even worse that he didn’t recognize how utterly inappropriate it was to entertain those prospects in his official capacity, in a public forum where his wife was advocating them.

That always struck a discordant note for me, since all of the ethical standards I’m aware of require someone with a personal relationship to the parties (or witnesses) in a proceeding to disqualify (or recuse) themselves from that proceeding. But I guess that standard was unknown to then-Senator Gore (even though it was highlighted for him by Zappa in his testimony), or didn’t matter to him in the ethics-free zone known as the U.S. Senate, since he jumped right into the agenda of his wife’s proposed version of Hollywood’s notorious Hays Code with both feet. I wondered, at the time, why a U.S. Senator would commit such a blatantly improper act, and then I figured out what mattered to him more than ethics. That’s right; I deduced that Senator Gore bargained away his integrity for a roll in the hay.

And, how did that happen? Well, since I’ve obtained access to a clandestinely recorded episode in the Gore’s bedroom from that time, the true story can now be told, and it goes like this: scene, Al and Tipper Gore’s bedroom, at bedtime; actors: Al and Tipper Gore. As the scene opens, the couple is in bed. Al is feeling a bit “frisky” (his term), and so rolls over towards Tipper’s side of the bed, and uses his usual signal for sex, “Tipper, let’s have sex” (Al is too square to use one of the many colloquialisms for that), to which Tipper responds (phonetically): “Wha, Ayel, honeh, ah don’t rahtly know whetha ahm exactleh in the mood foah thayat toonaht; but, yew know, thayer’s this thang ahm wantin’ youah li’l ole Senate to do, sugah pah, ayand ah thought yew maht be able to hep me with thayat bah holdin’ some o’ them li’l ole hearins y’all hayave from tahm to tahm.”

By this point, of course, Al is in a lather (Tipper’s Southern drawl always had that effect on him), and is starting to provide, shall we say, palpable evidence of another reason he’s frequently referred to as “wooden” (a big issue if his reputation is to be believed), so he says, “sure honey, whatever you want. Now, about that sex.” At this point, of course, I can’t tell you what happens because you may need to be protected from any description of sexual activities, but let’s just say both parties to this “tit for tat” (so to speak) conversation ended up being satisfied with its outcome.

Even Frank Zappa realized what the lubricant for the hearing was. He has been quoted as saying , in response to the question of how this subject merited a Senate hearing, “A couple of blow-jobs here and there and Bingo – you get a hearing.” Not to digress, but speaking of Frank and Tipper, he provided a priceless defense of his position, and indictment of hers, on CNN’s “Crossfire” , at one point telling his conservative protagonist on the show, a columnist for the Washington Times, to “kiss my ass.” Oh, Frank, how we miss you.

I lost any remnant of respect for Al Gore I may have had as a result of that incident (and it didn’t make me feel any warmer or fuzzier about Tipper either), and was one of the reasons I could never, after that, entertain the idea of voting for him for any public office (much less the presidency), and so it doesn’t pain me in the least to see this “power couple” split up.
If my scenario is right, and if it repeated itself (hey, if it worked once…), maybe he grew tired of that kind of manipulation, and decided he had reached his tipping point withTipper.

So, goodbye, Al and Tipper, and now let’s resume orbiting around the sun, shall we (even if, according to Al, we’re getting alarmingly warmer by doing so).

Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer.

Have you heard? Al and Tipper Gore are separating, after 40 years of marital bliss. Judging from all the hubub in the media over this story, you’d think the earth had somehow deviated from its orbit. How could two people who were married to each other for so long possibly call it quits? What does this say about the institution of marriage, and will the earth ever return to its position vis a vis the sun? I have my own theory about this parting of the ways, and it’s based, in part, on a sad episode in the Gores’ history. And while part of it, I admit, is tongue in cheek (albeit plausible) speculation, the fact is, for the Gores, just as for so many others, the past can be prologue.

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I, for one, was totally unsurprised by the announcement of the Gores’ separation. The only thing that did surprise me is that it took as long as it did, because I suspect this was brewing for some time–25 years, to be exact. I trace the etiology of this earth-shattering breakup to the events surrounding Tipper (that name, alone, should be grounds for divorce), and her self-appointed crusade on behalf of America’s children, and their need to be protected from audio recordings of a sexual or violent nature. No, I’m not talking about censorship as it was practiced by such arbiters of taste as my own adopted home town’s notorious Lloyd Binford . I’m talking about the organization formed by Mrs. Gore in 1985, with the support of several other senators’ wives (including Strom Thurmond’s), known as the Parents’ Music Resource Center (“PMRC”).

The objective of the PMRC was to (and I’m cutting to the chase here) censor the content of the lyrics on music recordings. Oh sure, they called it record “labeling,” but everyone recognized it for what it was. As a result of Mrs. Gore, and her cohorts’, efforts, a hearing was held before a Senate committee in which witnesses, including “Tipper”(I don’t know why this tune pops into my head every time I hear or see that name) appeared before the members of that committee to testify about the evils of unregulated music lyrics, in an effort to get the government to support, ultimately, censoring those lyrics.

The hearing is noteworthy for, among other reasons, the appearances of Frank Zappa and Dee Snider (not to mention John Denver), noted musicians of their time, who eloquently opposed the efforts of Mrs. Gore and her taste police. And, guess which senator just happened to be on the committee that held that hearing? If you guessed Al Gore, shame on you for your cynicism, but congratulations for your perspicacity. That’s right, “Tipper” got her husband to convene a hearing on her pet project, who then participated actively in that hearing, including by asking the witnesses (not the least of whom was his own wife) questions about the PMRC’s campaign. It’s bad enough this paragon of Democratic principles could even entertain the prospect of censorship, of any kind, but it’s even worse that he didn’t recognize how utterly inappropriate it was to entertain those prospects in his official capacity, in a public forum where his wife was advocating them.

That always struck a discordant note for me, since all of the ethical standards I’m aware of require someone with a personal relationship to the parties (or witnesses) in a proceeding to disqualify (or recuse) themselves from that proceeding. But I guess that standard was unknown to then-Senator Gore (even though it was highlighted for him by Zappa in his testimony), or didn’t matter to him in the ethics-free zone known as the U.S. Senate, since he jumped right into the agenda of his wife’s proposed version of Hollywood’s notorious Hays Code with both feet. I wondered, at the time, why a U.S. Senator would commit such a blatantly improper act, and then I figured out what mattered to him more than ethics. That’s right; I deduced that Senator Gore bargained away his integrity for a roll in the hay.

And, how did that happen? Well, since I’ve obtained access to a clandestinely recorded episode in the Gore’s bedroom from that time, the true story can now be told, and it goes like this: scene, Al and Tipper Gore’s bedroom, at bedtime; actors: Al and Tipper Gore. As the scene opens, the couple is in bed. Al is feeling a bit “frisky” (his term), and so rolls over towards Tipper’s side of the bed, and uses his usual signal for sex, “Tipper, let’s have sex” (Al is too square to use one of the many colloquialisms for that), to which Tipper responds (phonetically): “Wha, Ayel, honeh, ah don’t rahtly know whetha ahm exactleh in the mood foah thayat toonaht; but, yew know, thayer’s this thang ahm wantin’ youah li’l ole Senate to do, sugah pah, ayand ah thought yew maht be able to hep me with thayat bah holdin’ some o’ them li’l ole hearins y’all hayave from tahm to tahm.”

By this point, of course, Al is in a lather (Tipper’s Southern drawl always had that effect on him), and is starting to provide, shall we say, palpable evidence of another reason he’s frequently referred to as “wooden” (a big issue if his reputation is to be believed), so he says, “sure honey, whatever you want. Now, about that sex.” At this point, of course, I can’t tell you what happens because you may need to be protected from any description of sexual activities, but let’s just say both parties to this “tit for tat” (so to speak) conversation ended up being satisfied with its outcome.

Even Frank Zappa realized what the lubricant for the hearing was. He has been quoted as saying , in response to the question of how this subject merited a Senate hearing, “A couple of blow-jobs here and there and Bingo – you get a hearing.” Not to digress, but speaking of Frank and Tipper, he provided a priceless defense of his position, and indictment of hers, on CNN’s “Crossfire” , at one point telling his conservative protagonist on the show, a columnist for the Washington Times, to “kiss my ass.” Oh, Frank, how we miss you.

I lost any remnant of respect for Al Gore I may have had as a result of that incident (and it didn’t make me feel any warmer or fuzzier about Tipper either), and was one of the reasons I could never, after that, entertain the idea of voting for him for any public office (much less the presidency), and so it doesn’t pain me in the least to see this “power couple” split up.
I suspect that Al got tired of the kind of sexual extortion his wife had so adeptly mastered all those years ago, and probably continued to practice in the interim (why relinquish a weapon that works, right?), and decided he had reached his tipping point with Tipper.

So, goodbye, Al and Tipper, and now let’s resume orbiting around the sun, shall we (even if, according to Al, we’re getting alarmingly warmer by doing so).

Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer, in which an earlier version of this piece appeared. He is a former SEC enforcement official (yes, that SEC), currently in private law practice in Memphis, Tennessee.

OK, I admit it: just like that girl who sang about it during the presidential campaign, I’ve got a crush on Obama.  I mean that in a manly way, of course, a “man crush”, as it’s called. The kind the “Governator” obviously has when he calls Obama “beautiful”.

Like, if I ever got to meet him, I’d give him a fist “bump”, or a man hug, or maybe even a full body hug (the kind he seems to favor), but with the accompanying, de rigeur, taps on the back, signifying “I’m not gay” (not that there would be  anything wrong with that).

OK, enough of trying to establish my macho, hetero cred (and revealing my insecurities in the process).

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My point is, I like our new president (even though I didn’t vote for him—and, no, I didn’t vote for  “McLame” either, since I refuse to be a slave to the two-party monopoly, and I knew Obama wasn’t going to carry my home state anyway). Two of the things I like best about him (other than his intellect and fluency in the English language—two more features that distinguish him from his predecessor) are his warmth and humanity. What a refreshing change from the cold, imperious elitist (phony Texas twang to the contrary notwithstanding) we had to put up with before Obama came along to demonstrate that it isn’t a sign of weakness for a president to make us believe he’s “one of us.”

That said, I think he’s taking this availability thing too far. OK, so he had to fulfill a promise to appear on ESPN to discuss his bracket picks in the upcoming NCAA tournament (even if he did dis both my adopted hometown school, Memphis, and my alma mater, Pitt, in the process), but going to the Wizards-Bulls round ball game last week, and exchanging high-fives with one of the Wizards’ rowdy fans, was just too much for me.  And, as if that wasn’t bad enough, he actually appeared on “The Tonight Show,” yukking it up with Jay Leno, the first time in history a sitting president has done that.  What can we look forward to next week, Mr. President, an appearance on “American Idol” maybe (which he’d win, hands down, since, for many, he fulfills that show’s title, literally)?

Don’t get me wrong. I’m all for a president who considers himself a “man of the people.” Some of our best, not to mention most effective and popular, presidents have succeeded in projecting that image. JFK, as a family man, or Bill Clinton playing the sax, for example. The common touch isn’t necessarily a bad thing in a president. But, let’s face it: the President of the United States isn’t one of us, not really. That’s not to say he’s better than us (and some, as we now know, have been a lot worse, that is if you consider criminality to be a bad thing in a president), just different.  Oh sure, he puts his pants on one leg at a time, like the rest of us. But he, and particularly this one, also has to have some super-human traits, not only to be the president but to have survived the process of getting to that office, against all odds, to begin with.

I’m not saying I want our presidents to think of themselves in monarchical, or even dictatorial, terms. No, we’ve put up with that for the past eight years, and look where it’s gotten us. I’m just saying it’s perfectly OK, and maybe even useful, for a president to have a certain air of detachment, and to separate himself from the hoi polloi. It’s part of the tool kit of governing. We’re fortunate to have a president who, unlike his predecessor, is willing to accept responsibility for his actions, and even (horrors!) to admit his mistakes. Fallibility is a human trait, and its admission not a sign of weakness. It does not, however, have to be accompanied by mixing it up with us common folk, or, as Obama did at the Bulls game, trash talking with other fans.

Obama doesn’t have to adopt a fortress mentality, holing up in his White House burrow only to pop out, like a groundhog, on designated occasions. But he also doesn’t need to act like the only thing that changed when he moved from Hyde Park to 1600 Pennsylvania Avenue was his address. I admit, one of my trepidations about Obama’s ubiquity in public is the increased risk to the security of a man towards whom many in this country harbor angry, hostile, maybe even violent, feelings. Frankly, it scared the proverbial wadooee out of me when he and Michelle popped out of the “tank” (as the new presidential limousine is now referred to) to walk part of the parade route on inauguration day.

So, Mr. President, please know that you’ve convinced us you’re one of us, but please stop acting like you’ve got to be seen doing the things we do, going to the places we go, or even acting the way we act, to preserve that image. It’s perfectly OK with us for you to be, and act, presidential, even if you have to be a bit less visible in public to do so.

Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer, where this article is cross-posted, is a lawyer in Memphis, Tennessee.

While the Democratically-controlled Congress has dithered for many months over the question of whether or not George Bush and Dick Cheney should be impeached, preferring to avoid the issue in favor of electoral politics, and despite the increasing popularity of such action, another probability has reared its ugly head, namely that our feckless leader has lapsed into a state of dementia more suited to commitment (the kind where the men in the “little white coats” arrive) than to impeachment. I refer specifically to Bush’s statement, in a recent interview, that he has abandoned playing golf out of respect for the casualties of the Iraq war and their families.

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Who can forget the last time Bush juxtaposed golf with the war in Iraq/on terrorism. Apparently, stung by the criticism that ridiculous moment generated, the golfer-in-chief has decided the way to show (or at least to say) he’s learned his lesson (i.e., that golf and war don’t mix) is to abandon one of those activities. Many have suggested he’s chosen the wrong one.

Now, aside from the fact that the president’s explanation of the impetus for his show of solidarity turns out to be false because the media captured him playing golf long after the event he said precipitated his abandonment of the game (imagine that: this president lying about something), the president’s assertion that, of all the ways he has assiduously avoided to show his “solidarity” with the thousands of casualties he is responsible for (e.g., attending their funerals, giving them adequate body and vehicle armor, providing them post-service health care, etc.), the fact that giving up a game is the way he decided to do it shows (as if we needed additional evidence) his utter disconnection from reality. One of the hallmarks of insanity, I hasten to point out, is the disconnection from reality.

When we look at all the other things the President chose not to forego out of respect for the families of the dead and grievously wounded his policies are responsible for victimizing, it becomes immediately evident just how disingenuous his giving up golf as a token of his concern really is. It certainly hasn’t prevented him from taking his notorious , month-long vacations in Crawford, Texas, from riding one of his $5,000 mountain bikes regularly, from going to bed at the same hour most elementary school students do or even from sleeping quite well when he does. It didn’t stop him from fishing in Kennebunkport or from throwing a lavish wedding for his daughter complete with all the de rigeur accoutrements. Do you suppose Jenna saved a piece of that cake for any of the wounded service people at Walter Reed? No simple, low-key ceremony for the service-eligible First Daughter while her contemporaries are fighting and dying in Iraq. No sirree.

Now, as an inveterate golfer myself, the President’s sacrifice made me consider, even if just for a moment, whether I should join him (in “solidarity”) in abandoning my favorite pastime to honor our troops. After all, other than writing a few scathing commentaries about the folly of this war, and the uselessness of our soldiers’ sacrifice, what have I done to honor those troops? I haven’t even put a “Support the Troops” magnet on the back of my car (though I did, for a short while, have a bumper sticker that portrayed Bush behind bars—wishful thinking on my part). So, I decided to see whether the troops themselves would find such a gesture to be symbolic of my respect, as the President obviously thinks it is of his.

That’s when I discovered that not only do the troops not begrudge folks who play golf, there is actually an active golfing culture going on in the midst of war-torn Iraq, and that golf has become a major rehabilitative activity stateside for injured Iraq veterans. A brief stopover at our President’s favorite web site, The Google, called up innumerable YouTube and other videos showing American soldiers in Iraq enjoying what can only be described as jury-rigged golf courses, driving ranges, miniature golf layouts, putting greens and the like. Some examples are here, here , and here.

Not only that, but there is actually an organization stateside dedicated to using golf to rehabilitate injured Iraq veterans. The Salute Military Golf Association is a goin’ and blowin’ outfit that, in addition to sponsoring numerous events for injured vets, has been featured in several major media reports, like this one, and has even been taken up as a cause by the Professional Golfers Association which donates the time of many of its high-dollar pros to teach these vets how to hit a golf ball without the benefit of one or more of their limbs. Somehow, this organization sees golf as not only not disrespectful of the sacrifice made by these veterans, but as a way of honoring it. Go figure.

So, I wondered, how dare these veterans dishonor the lives and memories of their fallen comrades by engaging in this frivolous game? Don’t they know their Commander-In-Chief has declared golf a desecration of everything they stand for? What do they know that their Big Kahuna doesn’t? Maybe it’s that they can’t go fishing, or ride bikes (much less the $5,000 variety) in areas where IED’s may be buried, or go to bed at 9:30 at night in cushy beds made up with 500-count Egyptian cotton sheets. Or, maybe it’s that they realize that the way to honor their fallen brethren isn’t with vapid, token, meaningless gestures like their feckless leader disingenuously offered. Or maybe it’s just that, despite the fact that many of them may have lost golf balls playing that disrespectful game, either in Iraq or back home, at least they haven’t lost their marbles.

Gadfly is Marty Aussenberg, a columnist for the alternative weekly Memphis Flyer. Marty is an attorney in private practice in Memphis, Tennessee.

I don’t understand the scandal that’s arisen over the destruction by the CIA of the tapes it made of interrogations. I mean, isn’t this SOP for the Bush administration, and, indeed, its Republican forebears? Isn’t that what the Bushies did with millions of e-mails that disappeared from the White House’s servers, as well as with (and about) billions of dollars in Iraq that have disappeared into the ether (a/k/a Halliburton). And, isn’t that the way Papa Bush (and Reagan before him) handled the coverup of the Iran-Contra scandal?

It’s obvious what happened here. The CIA (and others for whom it was apparently acting as a proxy) was faced with the choice of the least of several evils: risk having the tapes come out, with the resulting blowback from the Muslim world the likes of which hasn’t been seen since Abu Ghraib, or destroy the evidence and throw yourself on the mercy of the courts (and the public) by saying (as the director of the CIA has) “hey, there was nothing illegal in the tapes,” or, “we did it to protect our agents,” or some other such nonsense. Risk having anyone who participated in “enhanced interrogation” (read: torture) prosecuted, both domestically and as a war criminal (with the tapes being “Exhibit A”), versus risk pissing off a few senators, congressmen and federal judges about the destruction of evidence (read: obstruction of justice). The choice seems pretty obvious, if you’re a Bush acolyte.

More after the jump

Remember what happened when the images of Abu Ghraib were released to the public? The Bushies weren’t going to let that happen again. So, this was obviously a cost/benefit analysis that was performed by the CIA, probably with the complicity of the Pentagon (which authorized “enhanced interrogation”), and arguably with the knowledge of the White House (now that it’s come out that the President’s counsel, Harriet Miers, knew about the tapes), and the determination was made that the consequences of destroying the tapes were far less damaging than the consequences of having them come out.

If Republicans learned any of the lessons of Watergate, it was that (a) that tapes can easily be destroyed, erased or altered (e.g., the Rosemary Woods 18½ minute gap), and (b) that if you don’t destroy, erase or alter tapes, they can be used to impeach and/or prosecute you (e.g., the Butterfield taping system in the Nixon White House). The conventional wisdom about the Watergate tapes, which eventually did Nixon in, was that if he had destroyed them before they came to light, he might have been able to withstand (or avoid altogether) impeachment, since they were the most damning evidence of his criminality. So, why not destroy evidence of war crimes?

Part of the cost/benefit analysis done in reaching the decision to destroy the tapes was the likelihood that, just as happened with Abu Ghraib, only the low-level flunkies would ever be held accountable for their destruction, and for the mayhem they recorded. We’re already seeing that, with the finger being pointed at a single, now-retired CIA official. The Republicans have learned how easy it is to hoodwink the public, not to mention the Congress and the judicial system, into believing that anything they or their minions do, is only the responsibility of the dupes who’ve done it, not anyone who was responsible for the policy that allowed it to happen. That’s how everyone in the chain of command at Abu Ghraib avoided their accountability moment.

In the case of these tapes, can there be any doubt that the the folks who authorized the “enhanced interrogation techniques,” including Rumsfeld, his deputy, Steve Cambone, David Addington (now Cheney’s consigliere), Alberto Gonzales and, last but not least, John Yoo, would have been at risk for criminal prosecution if the graphic result of their authorization had ever come to light? And since no one has admitted to waterboarding (except for the accusations of its victims), and there is no independent evidence of its having been practiced, the people responsible for implementing the policy that allowed it look like they might skate.

And, of course, despite the flurry of demands by members of Congress that the tapes’ destruction be investigated, Congress won’t do anything, at least not anything meaningful. Oh sure, there will be some “show hearings,” but nothing will come of them because Congress (read: the Democrats) is a paper tiger. Hasn’t it proved that by its failure, despite a lot of table-thumping, to hold in contempt any of the witnesses who’ve evaded its subpoenas, something it clearly has the power to do. It’s never done its own investigation of how or why we invaded Iraq (we’re still waiting–for two years now—for the Senate Intelligence Committee to release the second part of its report on that issue), Abu Ghraib, the many remaining unanswered questions about 9/11, or the entire Katrina debacle, has it? It still hasn’t found out who was responsible for the billions of dollars that went astray in Iraq, and it still hasn’t begun to hold Bush and Cheney accountable for all the things (illegal wiretapping, rendition, etc.) we already know they did that warrant accountability (read: impeachment).

And getting the Justice Department to investigate the tapes’ destruction would be another example of asking the fox to investigate a break-in at the hen house. The new attorney general, Michael Mukasey, judging from his confirmation hearings, in addition to having an obvious dilemma about whether or not waterboarding (which is apparently shown on the destroyed tapes) is torture, was actively involved, as a judge, with aspects of the detention of suspected terrorists whose lawyers were either denied access to the tapes or told they didn’t exist. And, most importantly, the techniques which are undoubtedly demonstrated on the tapes were facilitated by the justice department itself. Remember, it was people like John Yoo, and (now, circuit court judge) Jay Bybee who, when they were part of DOJ’s Office of Legal Counsel, issued opinions that sanctioned torture. That is the legal authority the new CIA director, Michael Hayden, was relying on when he told his employees, just before the story of the tapes’ destruction broke in the New York Times, that the techniques recorded in the tapes were “legal.”

So, the Congress obviously isn’t going to (or at least, not effectively) investigate the tapes’ destruction, and the justice department can’t investigate it (or shouldn’t, on conflict of interest grounds). So who does that leave to investigate it. A Special Counsel, maybe, like Patrick Fitzgerald, who couldn’t even nail the obvious malefactors in the Plamegate scandal, settling for the minor (relative to the treason that was committed) charges that were brought against Scooter Libby? And, of course, Congress has little stomach left for Special Counsels. The Democrats remember all too clearly the excesses of Ken Starr, and the Republicans are still fuming from what they consider the excesses of Patrick Fitzgerald. No, I doubt a special counsel will be appointed.

The only thing that will happen as a result of the destruction of the tapes will be sanctions imposed by the courts where terrorist prosecutions are pending against the government’s lawyers for lying about the existence of the tapes. And it is possible that one of those sanctions may end up being the dismissal of one or more of those prosecutions. Big deal. Other than that, I expect no one will be prosecuted for what is an obvious obstruction of justice (except maybe the poor schnook, Rodriguez). Nor will they be prosecuted for authorizing the techniques that were apparently graphically displayed on the destroyed tapes. Hey (to paraphrase), no foul, no harm.

So, while the guy they’re pointing the finger at for authorizing the destruction may go down for the count, if the past is prologue, we can expect this most recent example of Republican cover ups to be covered up, once again.

Update [2007-12-9 5:2:8 by gadfly]: The Washington Post reportsthat members of Congress (including Nancy Pelosi) were briefed about waterboarding as far back as 2002, and not only didn’t object to it, but encouraged it. If this is true, it represents yet another reason Congress will do nothing meaningful about the recent revelation about the destruction of tapes that may reveal waterboarding.

Gadfly is Marty Aussenberg, a columnist for the alternative weekly Memphis Flyer, where this story was originally posted. Marty is an attorney in private practice in Memphis, Tennessee.

I sat, dumbfounded, as I watched a demonstration, en masse, in Pakistan against the oppressive rule by that country’s strongman (and our “ally”), Pervez Musharraf, by a group of outraged citizens. Who were they? Not members of the typically rebellious masses (i.e., college students, factory workers, union members, political dissidents, etc.), but a group of LAWYERS!

How could this be, I wondered. Lawyers (a status I proudly claim) are usually part of the cosseted elite, beneficiaries of the status quo, recipients of the government’s favors, and cogs in the wheels of justice, government and societal processes in general. More often than not they go along to get along as part of the power structure. They are usually well paid, respected (stereotype-driven prejudice to the contrary notwithstanding) and comfortable members of the elite. Yet here they were, raucously demonstrating, throwing rocks at (and being beaten by) the police, and vociferously protesting the policies of their government. Right on, brothers! Lawyers just don‛t do this, I thought. It‛s contrary to their delicate constitutions, and their self interest.

Sadly, American lawyers have frequently been more a part of the problem in the decimation of the rule of law in this country than part of the solution, and I’m willing to take my share of the responsibility for that failing.

More after the jump

As it turns out, the Pakistani lawyers were righteously indignant about Musharraf’s “emergency” measures, dictatorially imposed on the country, including the suspension of the country’s constitution, cancellation of elections, the arrest and detention of the country‛s chief justice, the closure of privately-owned broadcast media and the replacement of many of the country’s high court’s judges with ones more to the dictator’s liking.

Wow, I thought; this sounds vaguely reminiscent of what’s happening right here, in the good ole US of A. Bush has all but suspended the constitution (i.e., eliminating habeas corpus, warrantlessly eavesdropping on American citizens, engaging in torture and stacking the Supreme Court—and the inferior courts—with his right-wing ideological kinsmen). But, not surprisingly, he doesn’t see the parallels. Indeed, in a moment of supreme irony, Bush’s press secretary said (in reference to Musharraf’s actions) that it was not reasonable to restrict constitutional freedoms in the name of fighting terrorism.

Bush has relied on compliant (if not complicit) lawyers in the Justice Department (headed, until recently, by the ultimate toady, Alberto Gonzales), to tell him what he wants to hear when it comes to bending or breaking various laws and the constitution. And now it appears we will be treated to another Bush lawyer/sycophant at the helm of that department, Michael Mukasey, who, among his other shortcomings” refused to say that a favored torture tactic, water boarding, is unconstitutional.

Nonetheless, can you imagine lawyers in this country taking to the streets to protest our very own version of a strongman’s infringements of constitutional and human rights? I know I can’t. And yet, no one is in a better position to protest our dictator’s policies, or has more at stake, than this country’s legal establishment.

Musharaf has obviously taken a page from Shakespeare in dealing with Pakistan’s lawyers. It is a favorite weapon of lawyer-bashers to quote the Bard’s phrase, paraphrasing, that “the first thing we should do is kill all the lawyers.” I’ve heard this line many times, once even from a now-deceased federal judge who uttered it, astonishingly enough, in the courthouse elevator as several lawyers got on to ride to the courtroom floor. I reminded him, as politely as I could, that in addition to being a judge, he was also a lawyer and would probably go with the rest of us (indeed, probably before us) if his prescription were to be followed.

But, the quote from Shakespeare is never cited in the context the Bard wrote it. In fact, Dick the Butcher, a character in Henry VI, utters the remark as part of a plot by another character in the play, Jack Cade, a rabble rouser and pretender to the throne of England, to take down the government. Eliminating lawyers, according to Dick, was a necessary part of a successful revolt. Dick and Pervez obviously share the same philosophy.

In this country, far from protesting the abuses of law and the constitution practiced by the current administration, lawyers have shamelessly capitulated to, if not facilitated, the excesses of the Bush administration. Whether it was John Yoo, the Justice Department lawyer (who John Ashcroft referred to as “Dr. Yes” for his willingness to tell the White House what it wanted to hear), who opined that whatever the president wanted to do in a time of war (including torture) was permissible, whether or not it was prohibited by statute or the constitution, or Scooter Libby (remember him?) who outed a covert CIA agent in the service of his own “Dick the Butcher,” or now Mr. Mukasey, who appears ready to immunize from prosecution for war crimes the agents of our government who may have engaged in torture, and their superiors (up to and including Bush) who authorized it, American lawyers (with some notable exceptions) have been stunningly, deafeningly silent in the face of the Bush administration’s abuses.

And lawyers like Arlen Specter, Chuck Schumer and Lindsay Graham (who also happen to be U.S. senators), have, by approving Mukasey’s nomination, even as they professed outrage at his unwillingness to declare water boarding torture, have ignominiously shamed their profession by carrying the administration‛s water on that nomination.

American lawyers, who should have known better, have stood by and watched (and, in some cases, facilitated) Bush nominate candidates for the Supreme Court who swore, under oath, that they would honor the principle of “stare decisis” (precedent), and then proceeded, in several cases, to violate that oath and decimate long-standing precedents. Chuck Schumer, in particular, apparently doesn’t believe in the old “fool me once…fool me twice” when it comes to the lesson of Bush’s nominees. They stood by in 2000 when the Supreme Court issued its opinion in Bush vs. Gore, one of the most political decisions in its 200 plus year existence (with the possible exception of its Dred Scott, pro-slavery opinion) which robbed the winner of that election of his rightful victory. Can anyone doubt that, in virtually any other country in the world, there would have been mass protests against this theft?

So, I stand with my Pakistani brothers in law, in spirit if not in body, and say, “I support your cause, because it is just.” But call me a hypocrite, because I just don’t think I’ll be throwing any rocks (at least not literally), manning any barricades, or suffering any police beatings over here protesting “Pervez” Bush’s violations of the constitution or the rule of law over here, anytime soon. When all is said and done, I’m afraid I’m just another proud, and chicken-hearted, member of the establishment.

Gadfly is Marty Aussenberg, a columnist for the alternative weekly Memphis Flyer, where this story was originally posted. Marty is an attorney in private practice in Memphis, Tennessee.

Let‛s proceed from the assumption that there are winners and losers in wars (although a case can certainly be made that wars are frequently lose-lose propositions). Let‛s further proceed from the assumption that every war is fought for a purpose, and that (and I admit, this is a big one) the primary purpose of fighting a war is not to enrich the people who inevitably get rich from it (in the case of Iraq, the Blackwaters, Halliburtons, General Dynamics and Exxon Mobils of the world). For a somewhat more contrarian thesis, read my piece entitled “Should We Support the Troops?”

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Given these assumptions, it is reasonable to assess the success of a war by measuring it against its stated objectives. In Iraq, the objective (supposedly) is not only to provide security and a stable, democratic government in Iraq, but to prevail in what this administration likes to call the “war on terror.” And, since Iraq has been characterized by this administration as the “central front” in that war, and since one of the stated purposes of fighting on that “central front” is to “fight them over there so we won’t have to fight them over here,” it is certainly valid to measure the success of all those purposes and objectives against the results that have been achieved.

There is little question that the war in Iraq has, at least thus far, failed to achieve the objectives the administration has set out for it. Remember that, as a condition for implementing the “surge,” there were “benchmarks” established that were supposed to be achieved. Well, in September, the General Accountability Office issued its report saying that the majority of the benchmarks had not been achieved. And, it is generally acknowledged that the overarching objective of the war in Iraq, namely political reconciliation, hasn’t been achieved, and, based on statements made recently by Iraqi officials
never will be.

But, there are other “metrics” by which the success of “war on teror” may be measured. One of them must be the answer to the following question: is the U.S. being made safer from terrorist attack by fighting in Iraq? If the “fight them there…fight them here” slogan is to have any meaning, surely this is the sine qua non of the validity of that meme.

Astonishingly, though, not even the folks who are fighting the war, either on the battle front or on the intelligence front, can answer that question. Who can forget General Petraeus’ startling admission, during his recent testimony before Congress, that he didn‛t know whether the war was making us safer. Here is the man who is responsible for fighting this war, who is watching the troops under his command be killed and maimed on a daily basis, and he can‛t even tell us whether their sacrifice is worth it. This is un-freaking believable!

Perhaps even more revealing was the recent interview conducted by NBC‛s Iraq correspondent, Richard Engel, with the director of the National Counterterrorism Center, Admiral Scott Redd. This recently-created agency is supposed to be leading the fight, according to its “mission statement,” to “combat the terrorist threat to the U.S. and its interests.” When asked directly by Engel, “are we safer today,” and after a long, uncomfortable pause (not unlike the one Petraeus exhibited in response to the same question), Redd replies: “tactically, probably not; strategically, we‛ll wait and see.”

What the hell does that mean? Wait for what—3,800 more American combat deaths? See what—al Quaeda continue to use the war as a recruiting tool? Well, Admiral Redd won‛t get to wait or see anything (at least not at the NCTC): two days after he gave that interview, he abruptly announced his resignation from the NCTC. Just another example of where speaking truth to power gets you with this administration.One thing is for certain: if the “rah, rah” Bush boys can’t answer the question in the affirmative, the answer is undoubtedly in the negative.

A recent report issued by the American Security Project doesn’t waffle in answering, with a resounding “no,” the question asked in the title to this article. ASP is a self-described “non-profit, bi-partisan public policy research and education initiative dedicated to fostering knowledge and understanding of a range of national security and foreign policy issues” (a/k/a think tank) whose board of directors includes Gary Hart, John Kerry, George Mitchell, Richard Armitage and General Anthony Zinni, all ouspoken (if not partisan) critics of the war in Iraq. The report answers the question in cold, statistical fashion. Using ten objective criteria for determining the results of the “war on terror,” the report concludes, not surprisingly, that we are losing that war.

From a “massive and dramatic increase in Islamist terrorism since 2003” to “Al Qaeda‛s [expansion of] its reach globally,” to the increasing perception in the Muslim world of the U.S. as an “aggressive, hostile and destabilizing force,” the report paints a dismal picture of the effect of the war in Iraq on the “war on terror.”

The report‛s quantification of terrorist attacks is startling. It finds that the number of such attacks, worldwide, has increased exponentially. It does not suggest that just because the U.S. hasn‛t been attacked it is therefore safer, and doesn‛t need to worry about terrorism elsewhere in the world, because those aren‛t “American interests,” a position espoused, either ignorantly or dishonestly, by the Vice President‛s wife in a recent interview with Jon Stewart on “The Daily Show.” As the NCTC‛s mission statement acknowledges, even our intelligence community recognizes that our “interests” go beyond our borders. And, of course, there is now the depressing fact that the war in Iraq has resulted in the death of more Americans than were killed on September 11th, which even by Cruella de Cheney’s standard, is an American “interest.”

The mantra of the Vietnam era, equally applicable to the current one, was most poignantly revealed in a song by the group known as “Country Joe and the Fish.” The chorus of their song, “I Feel Like I‛m Fixin‛ To Die,” included the question “And it‛s one, two, three, what are we fighting for…” My question is: Joe, where are you now that we need you?