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The Arar Disgrace

[ 3 ] June 18, 2010 |

The Supreme Court, to put it mildly, did not cover itself in glory this week when it refused to hear Maher Arar’s appeal.    (This is not to say that I necessarily blame the Court’s  four three more liberal members + Kennedy (?)* for not voting to grant cert: a Supreme Court decision affirming the executive’s ability to arbitrarily serve up innocent people for torture would be even worse than refusing to hear the case, and they would have good reason to believe that this would be the most likely outcome.)    But it should be noted that while this is a case where the Court should intervene, this doesn’t relieve the relevant public officials of responsibility.   The primary responsibility for this disgrace rests, of course, with the Bush administration, which ordered the arbitrary torture of an innocent man.

But by refusing to admit responsibility and by actively opposing Arar his day in Court, the Obama administration must now be counted accessories after the fact, and this just isn’t acceptable.    And it’s not isolated; Obama’s record on these issues continues to be very poor, and there’s no way of defending it.

*See comments.

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The Fifth Amendment Does Not Enact Mr. William Jacobson’s Pro-Corporate Polluter Policy Preferences

[ 18 ] June 18, 2010 |

William Jacobson provides us with the latest example of a Republican arguing that various random provisions of the Constitution should be read as nullifying the results of the 2008 elections and providing free-floating protection against policies unfavorable to powerful Republican interests:

Under what legal authority did the “rule of law” President make the decision as to how much a private entity would pay and then “inform” the private party that it must obey or face the harsh retribution of the federal government? […] Respect for the Due Process Clause of the Fifth Amendment is what separates us from North Korea or Venezuela (emphasis mine).

Leaving aside the sick comedy of being lectured by defenders of Bybee and Yoo about the importance of the due process of law and the dangers of arbitrary executive power, Jacobson’s post is necessarily rather short on explanations of why the actual policy (as opposed to the one he imagines) in question violates the Fifth Amendment. In particular, he seems to have missed some key terms from this story, including “BP will create,” “escrow,” and “set aside.” BP will not be denied its day in court; it has simply agreed to set aside money to pay the judgments that are overwhelmingly likely to be found against it. The agreement voluntarily entered into by BP ensures that it can’t escape legal judgments by just paying out all of its current profits as dividends and then claiming to be broke.

At any rate, given that 1)BP agreed to the fund, and 2)it will be afforded the full protections of due process of law as it faces damage suits for destroying the Gulf, how this agreement violates the Fifth Amendment is rather mysterious. What about the text forbids this? What’s the case law? I’m guessing that we’re not going to hear answers to these questions.

A Ruse By Any Other Name…

[ 25 ] June 17, 2010 |

Lt. Gen. Michael Oates is worried that excessive adherence to war law might be undermining military effectiveness in Afghanistan:

Commanders in Iraq and Afghanistan have been reluctant to launch more secret operations because of an excess of caution about violating military rules and international law, a top Army officer says.

The tentative approach to “deception operations” has cost the U.S. military opportunities to weaken the enemy without firing a shot, said Army Lt. Gen. Michael Oates, commander of the Pentagon’s task force to counter improvised explosive devices.

The anti-IED task force has advocated dismantling insurgent networks as an effective way to combat improvised explosive devices, or IEDs.

Earlier this year, Marines in Afghanistan’s Helmand province read announcements over a loudspeaker to trick insurgents into thinking their specially modified roadside bombs couldn’t be found by U.S. minesweepers.

As a result, the insurgents didn’t bother hiding them well and Marines were able to easily find the bombs, said Marine Maj. Don Caporale, an information operations officer.

“We started finding all kinds of mines with this (modification), which, of course, was a complete hoax,” Caporale said.

Still, Oates said in an interview, “there’s a Gordian knot of law, regulation, procedure and risk aversion. We have got to do some due diligence on this problem.”

He said the main problem is a fear of violating regulations that govern when and how the military can use deception. “Mostly it is a risk aversion, in my opinion,” Oates said in an e-mail.

Such regulations and international treaties include provisions forbidding the faking of surrender to draw out an enemy and then kill them, according to the Pentagon’s guidelines on military deception.

Oates’ comments reflect a broader concern among commanders that the U.S. military is too cautious when it comes to deception.

Some might say it’s a sign of a well-disciplined military that it bends over backward to follow war law even when it’s hard. Only this wouldn’t be a case of following war law, because the Geneva Conventions actually don’t outlaw deception at all. Indeed, both the Hague and Geneva treaties acknowledge that ruses – efforts to deceive the enemy on points of fact – are an indispensable part of warfare and are permissible.

Perfidy is different. In those cases – such as feigning surrender only to gain a lethal advantage over one’s enemy – the protections of the laws themselves, and the code of conduct among warriors on which they depend, are used as a weapon. These acts are outlawed because they undermine war law itself.

None of the tactics described in the USA Today report on Afghanistan would fall into that category. So what are US troops so worried about?

Perhaps this is a case where the military has shot itself in the foot by failing to train GIs sufficiently in LOAC basics – much less make communicating actual treaty obligations to the public and media a cornerstone of its PR strategy.

All apologies

[ 4 ] June 17, 2010 |

Joe Barton’s apology to BP (which he retracted after being told by the GOP leadership that if he didn’t he would lose his committee position) indicates the extent to which politicians in states like Texas are in pocket of the oil industry. Someone like Barton is so completely bought and paid for that he can’t even remember that there’s an actual limit to the willingness of at least the national GOP to serve the interests of Big Oil (apparently that limit is reached when a foreign corporation’s negligence threatens to destroy the entire Gulf of Mexico).

The Understaffed NLRB Mess Gets Worse

[ 7 ] June 17, 2010 |

I’m very ambivalent about the Supreme Court’s ruling today that the NLRB did not have the statutory authority to act with only two members. But, to be honest, my instinct is to be sympathetic to the majority opinion.

Judicial nominations, which involve lifetime appointments to an independent branch, are a more complex question. But for executive branch appointments, the Senate should have a very limited timeframe to take an up-or-down straight majority vote. And until then, presidents should start making very liberal use of the recess appointment power. The current set of rules and norms is just nutty.

Bush, Executive Power, and the Iraq War

[ 6 ] June 17, 2010 |

To follow up on Scott, it’s fair to say that I find Jonathan Bernstein’s arguments regarding Bush’s lack of influence over Iraq war planning unconvincing:

In fact, in the case of Iraq it seems to be the case that the uniformed personnel disagreed with the civilian political appointees, and the latter won (at least for the critical years 2003-2006). Even then, though, it’s not necessarily the case that the political appointees are on the president’s side. In the case of Iraq, there’s also an important party faction involved, and they were the ones who really got their way.

1. I think that Jonathan is correct to identify this as a conflict within the national security bureaucracy, and that he appropriately characterizes the nature of the conflict; civilian political appointees (Rumsfeld and Wolfowitz, although for different reasons) favored a small number of troops, while the uniformed military favored a larger contingent. I’m not sure, however, why Jonathan has embraced radical uncertainty regarding the President’s stance on this question. It would be extremely surprising to find that the President’s attitudes were closer to the military bureaucracy (over whom he had very limited influence) than to his own political appointees. Moreover, the fact that the military bureaucracy lost the fight doesn’t prove that Bush sided with his political appointees, but it sure is consistent with that explanation.

2. Bush had an extraordinary degree of freedom in choosing his foreign policy team, a degree of freedom that Presidents don’t usually enjoy. People forget that Rumsfeld and Cheney aren’t actually neocons, and in spite of having some policy similarities with neocons, possessed independent bases of power within the Republican party hierarchy. Rumsfeld wasn’t even particularly popular with the neocons, who believed that he had views which were too “realist”. There’s every reason to believe that Bush chose both Cheney and Rumsfeld not in order to satisfy any particular faction or constituency, but because he was genuinely enthused about their ability to do their respective jobs. The same goes for Condoleeza Rice. The only major foreign policy figure that can reasonably be argued to have been pressed on Bush was Colin Powell, and Colin Powell was, not surprisingly, sidelined from major Iraq decision-making.

Now, Jonathan can argue that the prominence of the views of Bush’s hand-picked subordinates in warplanning doesn’t actually indicate the President’s preferences, but this leads to a situation in which it’s very difficult to lay ANY responsibility at the President’s feet. If the behavior of the President’s most trusted and freely assigned subordinates isn’t evidence of Presidential power, then it’s hard to say what is.

3. While I generally reject the idea that wars can be divided between conflicts of choice and conflicts of necessity, the Iraq War would be an almost textbook case of the former. There were simply no domestic or international constraints which forced this war on the administration. A comparison with JFK and LBJ is informative. Both JFK and LBJ would have suffered substantial attacks from Republicans and right wing Democrats for an insufficiently hawkish approach to Vietnam. Moreover, while it would be wrong to say that the international situation required US intervention, commitment was at least intelligible in the context of commonly held beliefs in the 1950s and 1960s regarding the need to stop Soviet “expansion”. None of this is the case with Iraq; while it’s possible that Joe Lieberman might have tried to attack Bush from the right on Iraq in 2004, it’s not terribly likely that the Democrats would have built their campaign around the idea that Bush was insufficiently hawkish. Again, Iraq is an almost textbook case for Presidential prerogative.

Thus, it’s possible that Bush a) didn’t want the war but was pushed by neocons within the administration who could threaten him with…. something or other, or b) that he wanted a larger contingent but was unable to win a victory over his own political appointees. However, both of these explanations are far less likely than the null hypothesis; Bush’s views were substantially similar to the political appointees he selected, and he got the war he wanted in the way he wanted to fight it.

More On Executive Power

[ 30 ] June 17, 2010 |

Some good discussion in the comments to this thread about the power of the presidency, which merit a response.

First, from Erik, who says that Obama could have “lobbied openly for a public option and had called for rallies to support a progressive plan” because “it might have swayed a couple of more moderate Republican senators at the same time. Moreover, it likely would have turned up the heat on politicians to get a stronger bill passed.” I still don’t buy it, and at best it represents a trivial source of power, for at least two reasons. First, even assuming that using the bully pulpit could substantially affect public opinion (and I actually don’t even believe that, but let’s leave that aside for now), it greatly understates the autonomy of legislators, especially in the Senate. First of all, there are basically only two moderate Republicans left, and 1)Snowe is enormously popular, 2)Collins isn’t up until 2016, and 3)the only thing either of them really have to fear is from Republicans who could fund a primary challenge. The idea that holding some rallies could have caused them to vote for a much more progressive plan when they didn’t even vote for the final compromise is, frankly, absurd. And as Jonathan points out, even if by some magic you can get their votes, you’re still more than 10 votes short of a meaningful public option, and you would have to get most of them from states in which no amount of rallies are going to make health care reform popular. And, second, I think this focus on particular policy details is far too fine-grained in terms of how politics works and what the public understands. Obama did, after all, lobby hard for health care reform in general, and you’re unlikely to get many people to go to the barricades over the important but essentially wonky detail of whether the bill contains a robust public option. After all, if that kind of public opinion mattered, the bill would have had a robust public option, since the public option was more popular than the bill as a whole. Public opinion just doesn’t have that kind of impact on policy details.

Jonathan, meanwhile, argues that I’m still overestimating the president’s power on foreign policy. Responding to my argument that the fact that political divisions in the administration over the Iraq War were resolved in the president’s favor in fact indicates the strength of the president’s position, he responds:

1. Only if he really wanted it; not if he was rolled.

2. And only on that issue. If we think of Bush as the winner of the “should we have war in Iraq” fight, that still doesn’t mean he gets his way without constraints; it just means he won that fight.

On the first question, I’m not really sure how to respond; at some level, it gets to be like speculation about whether John McCain is “really” an anti-abortion zealot or whether George Wallace was “really” a racist. At some point, for public officials, the proof of the pudding is in the eating. So if Bush was “rolled” (by who?), this doesn’t really say anything about institutional limitations on the president’s power; it just says a lot about Bush’s weakness and lack of judgment. Nothing inherent in the powers of his office compelled him to side with Rumsfled and Cheney instead of Powell. And while he may (or may not) have been constrained in terms of fighting the war of Paul Berman’s dreams, the fact that remains that he ended up pursuing the war knowing that it wasn’t that type of war. Which makes the most logical inference that this was the war he wanted.

More generally, I don’t think that anyone is arguing that presidents in national security are entirely unconstrained by political or administrative factors. Even in a parliamentary system, there’s no such thing as entirely unconstrained power. The point I take most people to be making is that these constraints are different not only in degree but in kind from the kind of constraints a president faces in enacting domestic legislation. If an evil neocon cabal was pushing Bush towards a war he didn’t want, he could have ignored them or fired them. But potential median votes in the Senate don’t want to vote for new legislation, in most cases there just isn’t much a president can do about it. (And while presidents sometimes need Congress in national security policy, of course, this is less common and generally the president is more likely to receive deference.) So I think it’s fair to hold the president much more responsible for national security policy than for domestic policy.

This Will Only Spur Further Aggression…

[ 4 ] June 17, 2010 |

This sounds like appeasement.

We are pleased to announce the University of Kentucky will provide a one-time, lump sum payment for eligible faculty and staff during the 2010-11 fiscal year. This one-time payment is designed to reward eligible faculty and staff at a time when economic conditions have limited our ability to offer annual merit increases.

Though we regret being unable to offer annual merit increases to our outstanding staff and faculty this year, our University administration has worked in recent months to identify more than $6 million in one-time funds needed for the one-time payment: Over 80 percent of non-UK HealthCare employees will benefit as a result.

Hitler’s take on the vuvuzela

[ 4 ] June 17, 2010 |

When Wingnuts Belatedly Recognize the Insanity of One of their Own…

[ 13 ] June 16, 2010 |

All of this about Debbie Schlussel is just spectacularly entertaining…

Today in 1904

[ 6 ] June 16, 2010 |

At 8 a.m. on the morning of 16 June 1904, two men woke up.  One shaved for class and breakfasted with his usurper and an anti-Semite.  The other, a Jew, purchased a pork kidney and serves it to his wife in the same bed in which she cuckolded him.  He left to pick up a letter from his secret sweetheart and chatted with the people he met on his way to the baths.  Once clean, he attended a funeral and saw a mysterious man.

After the funeral, he tried to place an advertisement in a local newspaper but decided more research was required, so he scooted off to the library where, unbeknown to him, the first of our two men was disquisiting on Shakespeare.

Many people walked around, including our Jew, who decided to follow his morning kidney with an afternoon liver.  He ogled the barmaids and thought about his wife who, if his suspicions were correct, would soon be cuckholding him again.  So he exited the bar with the pretty reminders of his pain and entered another full of anti-Semites.  Fists and cans were thrown.

Troubled by thoughts of wife and ancient grievances, he wandered seaside way and publicly co-masturbated with a cripple.  He later attended the birth of a child and the English language before following our first man into the red-light district.  He caught up with him, himself, himself-in-drag, his dead grandfather, Nobodaddy, a giant green crab, a talking hat-stand and ducked out when the police arrived.  Chastened, the two men entered a dive and met a drunken sailor.  They absconded to the home of the Jew and bonded while urinating under the stars.

As 16 June 1904 came to a close, the Jew returned to his troubled marital bed and asked his wife to serve him breakfast in it tomorrow.

She considered his request but never decided one way or the other.

(Happy Bloomsday!  Sorry about the spoilers.  This was originally published elsewhere.)

On Presidential Power, Foreign and Domestic

[ 20 ] June 16, 2010 |

To briefly note some blogospheric discussion that happened while I was away, I essentially agree with Johnathan Bernstein about the power over domestic policy.   In particular, people arguing that a robust public option could have been had if Obama had really wanted it need to be concrete: what specific and usable leverage, exactly, did Obama have over Ben Nelson and the dozen+ Democratic Senators who were clearly opposed to a public option with any teeth?   In most cases, just not very much.    The only caveat I have is that after enactment presidential power grows considerably; the veto points and supermajority rules that give enormous leverage to individual Senators when legislation is being considered before the fact also do a lot to give the president substantial policy-making discretion after the fact.

On the other hand, I also think Matt is right that the president is much more powerful when it comes to national security.   It’s true that, structurally, if it chose to, Congress still has a very substantial ability to check the President’s national security powers.    But given current political configurations these limitations are largely formal.    The president is going to have a massive standing army at his disposal for all of our lifetimes, and once he or she decides to initiate action Congress is likely in most circumstances to defer to presidential decisions; these are long-standing trends, and if anything is going to change them I don’t see it.    I’m also a little puzzled by this specific claim from Bernstein:

Yes, Bush got his war there.  But first, note that at least in my opinion it’s an open question as to whether Bush wanted that war or not.  I think there’s plenty of evidence that the neocons wanted the war in Iraq, but it’s not clear to me whether they manipulated Bush into it or if Bush wanted it from the get-go.

I’m actually pretty skeptical of the idea that Bush was just conned into the war by clever neocons — in particular, Dick Cheney had exactly as much power as Bush chose to give him — but even if it’s true in terms of presidential power it’s neither here nor there. Why Bush decided to attack Iraq doesn’t matter; he decided to, and he got the war with Congress doing little but meekly waving a red flag. I’m also not sure about about the assertion that “the things he needed to do to get the war doomed it to failure.” It may be true, I guess, that Bush really wanted a much larger invading army and really wanted to be more prudent about his decision-making process but was thwarted by external factors, but I find this very implausible. It’s much more likely that the Iraq war was fought the way it was fought because that’s how the administration wanted it. As Matt says, the international system may provide some constraints and a president’s power is never unlimited even in practice, but throughout the Bush administration Congress was often a minor player in national security (and especially warmaking) policy in a way it never is in domestic policy. And, certainly, the fact that the plan and rationale for the Iraq War were incoherent isn’t actually evidence that the incoherence was caused by external constraints.