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January 1, 2006 - Rough Weather Ahead

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Wednesday morning, December 28th, Bob Patterson, the Just Above Sunset correspondent who writes the World's Laziest Journalist and Book Wrangler columns each week, sent a quick email - "Check out the top stories on Smirking Chimp this morning - it's beginning to sound like a lynch mob."

It did, but with a name like "Smirking Chimp" you would expect impeachment was in the air there. That's not a very respectful way to refer to the president, and the site is what could be called an aggregator - they provide links to and text from comments all over the web and in the newspapers and magazines, all critical of the administration, relying on the Fair Use Doctrine to keep them out of copyright trouble. They recently reposted two of Bob's columns, without asking permission, but who would protest? They drive traffic to Just Above Sunset. No problem. But they are a bit one-sided. You don't get a lot of careful analysis there. You get rants, some clever, many angry, and few with much depth. It's a bit of an echo chamber.

What seemed to catch Bob's eye was Wednesday's collection, with things like Chris Floyd in Empire Burlesque offering Clowntime Is Over: The Last Stand Of The American Republic, James Ridgeway in Village Voice offering Bush Impeachment Not Out Of The Question, Claudia Long in The Great Divide offering Big Brother on Steroids, Ruth Conniff in The Progressive with Impeachment Buzz, Reg Henry in the Pittsburgh Post-Gazette with It's Good to be King George, and one cited everywhere, Thomas G. Donlan in Barron's, of all places, saying The pursuit of terrorism does not authorize the president to make up new laws. That was odd. But there was the expected too - Katrina vanden Heuvel, editor of The Nation, with The I-word is Gaining Ground, and Bill Gallagher with King George Dismisses Constitution, Tramples on Rights of all Americans. And Jerry Mazza offered Patience, Mr. Bush? How About Impeachment, Now?

That's the lynch mob.

Well, last week the New York Times revealed the president had ordered the National Security Agency to wiretap the foreign calls of American citizens without seeking court permission, as required by the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978. He said he had, in effect, broken the law, and wasn't going to stop. He was keeping us safe, and anyway, the law didn't apply to him for a number of reasons.

Some see that as dangerous. Others see that as necessary - sometimes you need an "above any law" somewhat dictatorial leader to keep us all alive.

And of course there's the other lynch mob. At the media aggregator Crooks and Liars you can watch a clip from Fox News here - Brit Hume filling in for Neil Cavuto asking John Podhoretz if the New York Times should be charged with treason. There's a lot of that on the other side.

But we have, as Jonathan Schell, argues here, reached a watershed in the evolution of all that has been happening. Regarding President Bush, he says this –


Previously when it was caught engaging in disgraceful, illegal or merely mistaken or incompetent behavior, he would simply deny it. "We have found the weapons of mass destruction!" "We do not torture!" However, further developments in the torture matter revealed a shift. Even as he denied the existence of torture, he and his officials began to defend his right to order it. His Attorney General, Alberto Gonzales, refused at his confirmation hearings to state that the torture called waterboarding, in which someone is brought to the edge of drowning, was prohibited. Then when Senator John McCain sponsored a bill prohibiting cruel, inhuman and degrading treatment of prisoners, Bush threatened to veto the legislation to which it was attached. It was only in the face of majority votes in both houses against such treatment that he retreated from his claim.

But in the wiretapping matter, he has so far exhibited no such vacillation. Secret law-breaking has been supplanted by brazen law-breaking. The difference is critical. If abuses of power are kept secret, there is still the possibility that, when exposed, they will be stopped. But if they are exposed and still permitted to continue, then every remedy has failed, and the abuse is permanently ratified. In this case, what will be ratified is a presidency that has risen above the law.

The danger is not abstract or merely symbolic. Bush's abuses of presidential power are the most extensive in American history. He has launched an aggressive war ("war of choice," in today's euphemism) on false grounds. He has presided over a system of torture and sought to legitimize it by specious definitions of the word. He has asserted a wholesale right to lock up American citizens and others indefinitely without any legal showing or the right to see a lawyer or anyone else. He has kidnapped people in foreign countries and sent them to other countries, where they were tortured. In rationalizing these and other acts, his officials have laid claim to the unlimited, uncheckable and unreviewable powers he has asserted in the wiretapping case. He has tried to drop a thick shroud of secrecy over these and other actions.


That's about it. The president has asked for us to ratify this all, rolling the dice, betting that the will of the people will force congress and the courts to accept that he has unlimited power.

He may be right. See Steve Benen here, reviewing why the Democrats will say little about all this –


If the controversy boils down to "Bush wants to spy on bad guys and Dems aren't happy about it," it's a phony debate that skirts the real issues. However, if it's "We need to eavesdrop in order to protect the country" vs. "Go right ahead, just follow the law and allow for some checks and balances," it's at least a fair fight based on the facts.


But it's not going to be a fair fight. All the president's supporters are hammering home that all the president is trying to do is fight the bad guys, and opposing that, of some minor details, is reckless.

Jonathan Schell on those minor details –


The deeper challenge Bush has thrown down, therefore, is whether the country wants to embrace the new form of government he is creating by executive fiat or to continue with the old constitutional form. He is now in effect saying, "Yes, I am above the law - I am the law, which is nothing more than what I and my hired lawyers say it is - and if you don't like it, I dare you to do something about it."

... If Congress accepts his usurpation of its legislative power, they will be no Congress and might as well stop meeting. Either the President must uphold the laws of the United States, which are Congress's laws, or he must leave office.


No, there's the third alternative - everyone agrees with the president and his authority has no limits.

Well, one can move away from the Cassandra voices of the left saying that we're losing the republic and all we fought for since 1776 (the sky is falling and we're faced with a big-brother dictator in the making), and from those on the right saying this is no big deal and we've always needed a strong leader (unleash our duly elected hero-savior from the surly bonds of the useless laws). One can turn to folks who can put this in perspective.

Who would that be? Oh, maybe constitutional scholars.

One of those would be Cass Sunstein at the University of Chicago. Who's he? According to this he's the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at their law school and also a member of the Department of Political Science - a Harvard man, undergraduate and law too. The link has more - his many books and how he clerked for Thurgood Marshall and all the rest. He's a big gun. You even see him on television now and then - Wednesday, December 28th on MSNBC's "Hardball" for example. They gave him about ten seconds.

But he's thinking long and hard about all this, mainly at The University of Chicago Law School Faculty Blog. Yes, there is such a thing. And it's not much like The Smirking Chimp at all. No rants. It's not as exciting? Yes, it's detailed and dry and, actually, useful.

MSNBC may have given him ten seconds, but he stretches out at the blog, with, on the same day, The President's 'Inherent' Power. He's puzzled.

Here's the issue –


The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.


So what do you do with that?

Well, you look back to when president Truman attempted to have the federal government take over the steel industry (Youngstown Steel and Tube, 343 U.S. at 587) - there was a strike and we were at war and we needed steel. The Supreme Court slapped Truman down real hard, and we could look to that –


In his concurring opinion in The Steel Seizure Case, Justice Jackson tried to refine the battle between (1) and (2) by drawing attention to Congress. He suggested that we might also adopt two other positions. (3) The President has such authority because Congress has said that he does, thus augmenting the President's own power with "all that Congress can delegate." (4) The President lacks such authority because Congress has said that he doesn't, ensuring that his own power "is at its lowest ebb."

... We have seen (4) in the argument that FISA bans the President from engaging in such surveillance without going through the FISA process. Naturally, the Department of Justice, attempting to protect the President's prerogatives, emphasizes "inherent" power and implies that Congress lacks the authority to intrude on it.


Well, that may not be very useful.

All this is discussed here by "Armando" at Daily Kos and it all comes down to the professor saying we should see "if progress can be made by bracketing the most fundamental questions about 'inherent' authority and by giving careful attention to what Congress has done." But "Armando" points out a conflict is unavoidable here - "The President is defying a law duly enacted by Congress. And NO Supreme Court case has countenanced such a power grab by a President."

Yes, they shot down Harry Truman over this, and "Armando" points to the Hamdi ruling, that cited the Truman slap down –


[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.


And that's the battle.

"Armando" –


In short, there is no support in the case law for the assertion that the President has plenary power when acting as Commander in Chief. It is contrary to the Constitution, the Federalist Papers, particularly Federalist 69, and all Supreme Court jurisprudence. It is an outlandish and yes, preposterous assertion by the Bush Administration.

Professor Sunstein would do well to be straightforward on this. He comes closer today, but still seems unable to say it straight out.


Well, one must be careful.

But something is really odd here. There's a lot of tap dancing around what's really going on. It looks like a power grab, a coup of some sort, where those seeking unlimited power have just taken it and hope these constitutional scholars will futz around until it's too late to change anything. Bush has the military behind him, and Fox News. What else does he need? This fellow in Chicago, as thoughtful as he is, doesn't matter much.

What is a bother with this NSA wiretapping business, however, is what was bound to happen on a practical level. As reported by the New York Times on Wednesday, December 28th, here


Defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the NSA program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.


Yeah, but the bottom line here getting reconsideration because of two issues, disclosure and illegal search. We're not talking about tossing out something someone said because the cops didn't read him his Mirada rights. Here the issue is the prosecution having evidence they did not reveal to the defense team, or using evidence that, even if revealed, was obtained illegally. You cannot do either. The accused is supposed to know what the evidence is that is being used against him. That's kind of basic. And just as you cannot use evidence obtained by torture (yet), so you cannot use evidence you gathered by breaking the law, which is also kind of basic.

Noted defense attorney Jeralyn Merritt here runs down what this means in terms of bad guys we've put away –


- Gerry Spence, who represents Oregon lawyer Brandon Mayfield in his civil action against the US for arresting and detaining him as a material witness in the Spain bombings. Mayfield was later released with no charges brought.

- Lawyers for the Lackawanna (Buffalo) 6 and Portland 7 are considering challenges, as are those representing Jose Padilla's co-defendants.

- David B. Smith intends to bring a challenge for David Faris, charged in Ohio with plotting to blow up the Brooklyn Bridge: [He] said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush.

- The co-defendants of Jose Padilla are gearing up: [They] plan to file a motion as early as next week to determine if the NSA program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants.

- John Zwerling, one of my pals from Alexandria, VA., will be filing as well, on behalf of Seifullah Chapman. Chapman was a follower of Ali al-Timimi, a Muslim scholar convicted of inciting his disciples to wage war against the US. Al-Timini is serving a life sentence, Chapman is serving 65 years. [Zwerling] said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if NSA wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information. "We want to know, Did this NSA program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."


And so on and so forth.

And it seems some federal prosecutors tell the Times the NSA warrantless surveillance could be a problem for the Government in both past and future cases.

Merritt of course points to Brady v. Maryland - the government and prosecutors are required to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses. This includes information that might impact their guilt or their sentence. And she points to Kyles v. Whitley, 514 U.S. 419 (1995) - the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. "Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies." Other government agencies would include the NSA, of course.

This could get really interesting, as she cites also the basic 18 U.S.C. Section 3504


(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States -

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; ...

(b) As used in this section "unlawful act" means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.


Damn, that's a problem.


And Merritt points out that the government can't avoid answering the defense requests simply by asserting the material is classified. "Once it is established that a defendant has standing to make the challenge, at a minimum I think the Government could be compelled to submit the information to the Judge for a decision on whether it is relevant and helpful to the defense and should be turned over. In the event of an adverse decision by the Court, the Government should have only two choices: either turn over the information or refuse and dismiss the criminal charges."

So we mighty have to let these people go? Who'd have guessed?

And late in the day it got ever more interesting with this - Terror suspect challenges US president's 'unchecked'


Lawyers for an American 'war on terror' detainee said they had petitioned the Supreme Court to examine the US president's powers, citing "the danger of an unchecked Executive Branch".

In a filing on Tuesday, lawyers for terror suspect Jose Padilla cited evasive government moves to avoid a high court examination of his case as reason for requesting a "certiorari" review of a lower court decision challenging the president's wartime powers.

"The government's actions highlight the need for this court to grant certiorari to preserve the vital checks and balances" implicit in the US Constitution, the petition said.

Referring to a series of "strategic maneuvers" to keep Padilla's case from being heard in court, the petition said the government's actions "highlight the danger of an unchecked Executive Branch."

Padilla's detention "raises questions of profound constitutional importance about the government's military power over citizens in the homeland," the petition said.


This is odd, and those "strategic maneuvers" were discussed in these pages here last week - in September Padilla's lawyers petitioned the Supreme Court to review the government's powers to detain him without charge or trial, and in response the government moved to transfer Padilla to civilian custody for trial. Maybe he wasn't a bad guy. Maybe they didn't want his case to be reviewed, as we had held him for more than three years without explaining why. So we changed the charges, from "he's an enemy combatant and we can lock him up forever without charges or trial" to "he's just a criminal and let's have a trail." A Virginia appeals court rejected that - it looked like lame attempt to avoid Supreme Court scrutiny. Now he wants a hearing.

The countermove? This - "The U.S. government on Wednesday asked the Supreme Court to transfer American 'enemy combatant' Jose Padilla from U.S. military custody to federal authorities in Florida - one week after an appeals court refused a similar request."

It gets odder and odder. What rights does the president have? Is anything he says so, just because he says it? People are fighting for, at the very least, some clarification here.

And then, speaking of odd things, the Wall Street Journal reports what up with Move America Forward, as they have a new campaign


The television commercials are attention-grabbing: Newly found Iraqi documents show that Saddam Hussein possessed weapons of mass destruction, including anthrax and mustard gas, and had "extensive ties" to al Qaeda. The discoveries are being covered up by those "willing to undermine support for the war on terrorism to selfishly advance their shameless political ambitions."

The hard-hitting spots are part of a recent public-relations barrage aimed at reversing a decline in public support for President Bush's handling of Iraq. But these advertisements aren't paid for by the Republican National Committee or other established White House allies. Instead, they are sponsored by Move America Forward, a media-savvy outside advocacy group that has become one of the loudest - and most controversial - voices in the Iraq debate.


So that's the new push? There really were weapons of mass destruction, including anthrax and mustard gas, and Saddam Hussein did have "extensive ties" to al Qaeda?

No doubt CNN and the rest will handle this like the Swift Boat thing and Kerry. Let's hear both sides. "Some assert the earth is flat and the sun revolves around the earth, while most say this is not so, but in the interest of fairness we must report both sides of the controversy, in depth, for many weeks." Hell, it worked before.

And now that there have been elections in Iraq, and they seem to working on forming some sort of government, things will be just fine. So don't listen to the Knight-Ridder folks, who almost always get things right, when they report this


KIRKUK, Iraq - Kurdish leaders have inserted more than 10,000 of their militia members into Iraqi army divisions in northern Iraq to lay the groundwork to swarm south, seize the oil-rich city of Kirkuk and possibly half of Mosul, Iraq's third-largest city, and secure the borders of an independent Kurdistan.

Five days of interviews with Kurdish leaders and troops in the region suggest that U.S. plans to bring unity to Iraq before withdrawing American troops by training and equipping a national army aren't gaining traction. Instead, some troops who are formally under U.S. and Iraqi national command are preparing to protect territory and ethnic and religious interests in the event of Iraq's fragmentation, which many of them think is inevitable.

The soldiers said that while they wore Iraqi army uniforms they still considered themselves members of the Peshmerga - the Kurdish militia - and were awaiting orders from Kurdish leaders to break ranks. Many said they wouldn't hesitate to kill their Iraqi army comrades, especially Arabs, if a fight for an independent Kurdistan erupted.

... The interviews with Kurdish troops ... suggested that as the American military transfers more bases and areas of control to Iraqi units, it may be handing the nation to militias that are bent more on advancing ethnic and religious interests than on defeating the insurgency and preserving national unity.


You do recall the Kurds still viewed themselves as an independent and autonomous entity when they entered into Iraq's first new oil contract, without notifying the central government (LA Times here). Would they rise up with Kurds from Turkey, Iran, and Syria to form an independent state? Now? "The government in Baghdad will be too weak to use force against the will of the Kurdish people.''

So that's ten thousand Kurds in the Iraqi army ready to fight in a civil war. The Shiites who will run the place align themselves with Iran. The Sunnis, out of power, keep blowing up things.

Spin that.

Even if you seize unlimited power, some things just don't work out.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

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