On Sunday, March 4, the New York Times presented its "must do" list for President Bush and his administration.  Needless to say, such lists are probably good for little. The Times no doubt wishes to claim it represents the people, common sense, and the rule of law - and the constitution and apple pie and motherhood and all the rest, and perhaps applehood and mother pie as well.

Of course Ann Coulter - "the woman who speaks what all loyal Americans really think but dare not say" as Fox News would have it - has famously said she is sorry that Timothy McVeigh, the late Oklahoma City Bomber, chose to blow up the Mura Building in that small city and not the Times building in midtown Manhattan. She has identified the Times as the enemy, as has Bill Bennett, compulsive gambler and author of the best-selling The Book of Virtues and The Children's Book of Virtues.  He would like the Times charged with treason and the paper shut down - for revealing the administration's programs to ignore the law and eavesdrop on anyone they choose without warrants, and for revealing how we've kind of skirted international law, or at least international banking regulations, to monitor everyone's international monetary transactions.  His thought is that if we all die in some sort of terrorist attack we can blame the New York Times (and the Washington Post of course) for what happened - they have revealed and thus taken away valuable tools in fighting the very worst enemy we have ever faced. (He doesn't speak to the legal issues, only to the practical matters.)

So what the New York Times wants in the early March editorial is of no concern in certain circles. Whatever they call for is presumed to be laughable, if not contemptible.

In other circles, it may not be either.

The Times piece is certainly very high-minded - they are on their high horse as the saying goes, and the tone is one of righteousness -

The Bush administration's assault on some of the founding principles of American democracy marches onward despite the Democratic victory in the 2006 elections. The new Democratic majorities in Congress can block the sort of noxious measures that the Republican majority rubber-stamped. But preventing new assaults on civil liberties is not nearly enough.

Five years of presidential overreaching and Congressional collaboration continue to exact a high toll in human lives, America's global reputation and the architecture of democracy. Brutality toward prisoners, and the denial of their human rights, have been institutionalized; unlawful spying on Americans continues; and the courts are being closed to legal challenges of these practices.

So someone should do something about all this, and more specifically the congress should. They should reject any new efforts of the sort, and clean up the items on their list.

As for the Times' list, there are the big three things to do -

• Restore Habeas Corpus
• Stop Illegal Spying
• Ban Torture, Really

In addition, the Times says, we just have to close the secret prisons, account for the ghost prisoners, ban extraordinary rendition, tighten the definition of enemy combatant, fairly screen prisoners, ban secret and tainted evidence, better define "classified evidence" and respect the right to counsel.

Stopping all of this seems unlikely. Few Democrats in Congress want what some call "the right-wing noise machine" to hammer away at them on radio and television - saying they hate America, hate the troops, want the terrorists to win and America to lose.  Who need the hassle?  And who can afford to lose even a few votes when election time rolls around again? The Times is calling for something not possible these days.

As a curious footnote, regarding the difficulty of legal challenges, there is the curious case of David Hicks, the Australian held at Guantanamo.  He just became the first person charged under the new military tribunals set up by Congress just before the mid-term elections - in response to the Supreme Court's Hamdan decision striking down the old tribunal system.

After being held for five years without a trial and being originally charged with conspiracy to commit murder and engage in acts of terrorism, attempted murder and aiding the enemy, Hicks was finally charged with a single count of providing material support for terrorism, which, his lawyers argue, wasn't outlawed until 2006.  That should be a no-no. Even non-lawyers know the rules. You don't arrest someone, hold them for years, then create the law that justifies their arrest and charge them with the crime that wasn't a crime when you arrested them. But that's what's going on in this case.

The Australians are understandably outraged, and then it gets even better - Hicks' trial may be delayed because his American military lawyer, Major Michael Mori, is being threatened with prosecution under the Uniform Code of Military Justice by the chief American prosecutor, Colonel Morris Davis -

Colonel Davis has accused Major Mori of breaching Article 88 of the US military code, which relates to using contemptuous language towards the president, vice-president, and secretary of defence. Penalties for breaching the code include jail and the loss of employment and entitlements.

Major Mori denied he had done anything improper but said the accusations left him with an inherent conflict of interest.

"It can't help but raise an issue of whether any further representation of David and his wellbeing could be tainted by a concern for my own legal wellbeing," Major Mori told the Herald. "David Hicks needs counsel who is not tainted by these allegations."

Now Major Mori, who has been to Australia seven times, will seek legal advice. The issue will also have to be raised with Hicks when his legal team next sees him. Davis has criticized Mori's recurrent trips to Australia - and, as those awful people at the New York Times reported on 2 March, American embassy officials tried, and failed, to have the Pentagon bar Mori from coming to Australia.

Will Hicks get a fair trial? Not if we can help it.

Note this comment from Australia -

As an aside on this issue, Australians have generally fallen in love with Major Michael Mori. Every time we see him he is in his uniform, even at official functions. He seems to be the only American who gives a damn about what America has done to David Hicks.

When all this is over and done with, Major Mori can immigrate to Australia and become an Australian citizen. If he chooses to run for Prime Minister, people will welcome it.

What a mess - and one of the things about which the Time is getting all righteous, or self-righteous if you don't see it quite their way.

And the Times, while they're at it, adds a few more things to their wish list -

Beyond all these huge tasks, Congress should halt the federal government's race to classify documents to avoid public scrutiny - 15.6 million in 2005, nearly double the 2001 number. It should also reverse the grievous harm this administration has done to the Freedom of Information Act by encouraging agencies to reject requests for documents whenever possible. Congress should curtail FBI spying on nonviolent antiwar groups and revisit parts of the Patriot Act that allow this practice.

The United States should apologize to a Canadian citizen and a German citizen, both innocent, who were kidnapped and tortured by American agents.

Oh yes, and it is time to close the Guantánamo camp. It is a despicable symbol of the abuses committed by this administration (with Congress's complicity) in the name of fighting terrorism.

This is quite a lot to ask of those they identify as the folks who can fix it all - the new congress.  They may be the wrong institution to change it all, even if they are the only institution left that can even try.

So they want the old America back. When the Bush supporters are feeling charitable they shake their heads sadly and call that pre-9/11 thinking - some people "just don't get it" - 9/11 changed everything and all that.  When Bush supporters are feeling less charitable they call on Bill Bennett, who raises the issue of treason, or Ann Coulter, who pretty much calls for the Times building to be bombed, by those who love this country.

Glenn Greenwald looks at matters more analytically.  If, as the Times urges, Congress should impose legislative limits on the Bush administration's abuses, they've got it all wrong.  What really is needed is something else - "aggressive and dramatic light is shined on their behavior."  He says confrontational investigations, subpoenas, and hearings should be the priority.  Yes, it is fine with him that the Time "condemned those abuses and repeatedly called for actions to limit, if not altogether end, the sheer lawlessness of the Bush presidency."

But there is reality here -

None of the proposed measures - from restoring Habeas Corpus to enacting new FISA legislation to closing secret CIA prisons to repealing the interrogation provisions of the Military Commissions Act - is realistic, because it is just not possible to marshal the filibuster-proof number of votes in the Senate right now to accomplish any of that. That's just reality.

And that, in turn, is true because Senators, including large numbers of Democratic Senators, remain petrified of challenging the President in any meaningful way on national security issues generally, and are particularly wracked with fear when it comes to trying to limit those powers which are "justified" in the name of Fighting the Terrorists. Before any of these measures can be pursued meaningfully, media perspective and public opinion on these matters need to change.

Congressional Democrats, for instance, have become somewhat more emboldened in their opposition to the War in Iraq not because they suddenly decided on principle that resolute opposition was necessary, but because American public opinion was way ahead of them and all but demanded action on the war. Americans turned against the war, and thus, Congressional Democrats feel compelled to find a way to follow. Nothing moves Beltway politicians except pressure from their donors and/or demands from the voters who have the power to turn them out of office.

It's a matter of dealing with sheep. These are career politicians, after all. That is our form of government.

And Greenwald also points to Ron Suskind recently suggesting there is more on the way, in an interview with Der Spiegel - "a whole array of similar, if not worse, abuses which the unprecedentedly [sic] secretive Bush administration has still managed to conceal" -

SPIEGEL ONLINE: You quote former CIA director George Tenet in your book as saying after Sept. 11: "There is nothing we won't do, nothing we won't try." Are there any other dirty stories?

Suskind: Logically, I would have to say yes. You're dealing with an oddity here, a secret war. Wars tend to be very public things, they are visible. There are correspondents traveling with the troops and you get daily dispatches. This is a new conflict, fought largely in secret. The public is only informed a kind of "need to know basis." Based on that, I would assume that there remains something of an undiscovered country of activity in terms of what we have done over the past five years.

Oh, that's cheery.

But maybe the secrecy is where to at least make a start -

Beyond the obvious fact that the Republican-led Congress completely abdicated their legislative and oversight responsibilities for five years, there have been two principal reasons the Bush administration has been able to break the law with impunity and to continue to govern with no accountability - (1) a listless and compliant press which has done very little to reveal and make Americans aware of the true nature and extent of these abuses, and (2) the administration's obsessive maintenance of a wall of secrecy which has concealed its behavior from the public and thus prevented the public (and the media) from really understanding what their Government has been doing. While little is going to change with the former, the Democrat-controlled Congress does have the ability to tear down that wall of secrecy and truly shed light on how radical and lawless this administration has been.

Thus, it logically seems to him, what "we urgently need are compelled, subpoena-driven, aggressive hearings designed for maximum revelation and drama."

They would be both dramatic and television-news-friendly.  They'd be good theater, and useful because they are just that -

You can't convince Americans of the need to stop abuses until you demonstrate to them in a dramatic and undeniable way that those abuses are being perpetrated and that they are harmful and dangerous. Just as one example, FISA itself was enacted only after the Church Committee conducted a probing and aggressive investigation and exposed the decades of eavesdropping abuses on the part of the Executive branch, whereby all the heinous transgressions from J. Edgar Hoover's blackmail-motivated eavesdropping on Martin Luther King to the array of Nixonian surveillance excesses came to light in all of their unvarnished and ugly reality. Americans were not moved by abstract notions of privacy or checks and balances but by the real life anecdotes of abuses and the evidence demonstrating how widespread they were.

Forget the abstract notions; we need drama - Sam Ervin ("I'm just a country lawyer") making key people in the nexus of the high and mighty squirm on national television.

It's a matter of competing narratives -

That is what we need now. But we do not have it because the administration even in the wake of its defeat in the November elections - one could even say especially after the election -- continues to aggressively exploit and manipulate the terrorism threat as a tool to conceal their own conduct and protect themselves from accountability and consequences. Until that ends, no progress on any of these issues is possible.

So you change the story in play.

But recent events are not, as Greenwald notes, very helpful -

The administration successfully convinced an appeals court last week to uphold dismissal of the lawsuit brought by Khaled el-Masri - the German citizen who was abducted by the CIA, shipped around to various countries for interrogation, and then dumped on the side of the road in Albania once it was determined he was innocent. The administration claimed that allowing the lawsuit to proceed would risk disclosure of "state secrets" - a doctrine previously confined to a very narrow scope of cases but which the administration has expanded beyond recognition in order to all but entirely shield its conduct from judicial review and to shield itself from accountability under the law.

And then there is the ongoing travesty of the Jose Padilla criminal case, where the judge has ordered the Government to turn over all tapes of Padilla's interrogation in order to determine whether, as Padilla alleges, he was tortured while being held incommunicado and with no charges for three-and-a-half years. But as Newsweek just reported, the administration is claiming that it is "no longer able to locate" the "crucial video" of Padilla's last interrogation in the military brig. After years of resisting any efforts to allow Padilla any process of any kind, and finally being ordered by a federal court to disclose this information, the administration now simply claims that it lost the critical evidence which would shed definitive light on Padilla's treatment and therefore cannot produce it.

There's a ton of this -

Sen. Jim Webb has spent the last two months - unsuccessfully - merely attempting to obtain an answer from the administration as to whether they believe they have the authority to attack Iran without Congressional approval. The administration has repeatedly breached all of its commitments to provide to Congress any real information about how it used its illegal eavesdropping powers on Americans when it exercised those powers for five years with no oversight (on whom did they eavesdrop in secret?). And just last week, Attorney General Gonzales expressed the same contempt for Congressional oversight as he has been exhibiting for years, albeit more explicitly this time, when he told Bob Novak that, in essence, he has more important things to do than respond to Congressional inquires.

So some force will be necessary, not "vague little threats of future action or pseudo-tough allusions to subpoenas."  That's just pointless.

Consider the current environment -

There has been talk recently from the President's supporters of the possible "constitutional crisis" that may be triggered by a confrontation between the President and the Congress over war powers in Iraq and/or Iran. Such talk is absurd. We have had a constitutional crisis in this country since September, 2001, when the Bush Justice Department promulgated theories of limitless presidential power that could not be any more repugnant to our constitutional order. And since then, this President has exercised those powers continuously and aggressively, to the point where he has literally existed outside of and above all forms of law, and has been all but immune from true judicial scrutiny and/or Congressional oversight or limitation.

There's no need to provoke a constitutional crisis.  We have one.  So let's resolve it.  And after all, if Congress "sits by and allows the President to seize limitless power and to ignore Congressional authority, then the subversion of our constitutional system becomes as much the fault of the Congress as the President."

Fine - and then it all comes down to tactics -

… one should acknowledge that approaching these matters incrementally is necessary. For instance, demanding information that you know is not forthcoming might be strategically smart before issuing subpoenas, so that one can depict the subpoenas as necessary. But we don't really have the luxury of having months go by while we indulge all of that incremental strategizing.

Democrats have to internalize that this administration does not operate like previous ones. No rational person can doubt that they are limitless in their contempt for legal restrictions or notions of checks and balances. The last election, by itself, has not changed their approach and will do not so. They are not going to voluntarily comply with anything or disclose anything. They are going to have to be forced to do so.

And televised, highly publicized confrontations over the administration's hubris and arrogance and utter contempt for our legal institutions and political traditions is not something to be avoided. It is something we desperately need as a country. Issue subpoenas for all of this information, make them defy the subpoenas, and then demand that courts compel compliance. Create media dramas in which the administration fights to maintain full-scale secrecy around all of its legally dubious and extreme behavior. Americans hate hubris of that sort and do not trust this administration. Those are fights they cannot win.

That sounds like fun.  And it sounds useful.

Of course, Greenwald admits there is a real question here - "whether the Democrats who have been given control of the Congress by the American people have the stomach for that fight."

One can only hope their obvious need for the spotlight - it has been said "Politics is just show business for ugly people" - will overcome their fear of what the talking heads on Fox news will say of them.

And, heck, the New York Times already gave them script notes.

This item posted - in its final version - March 11, 2007

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik