Who could have known - Part II

1. I'm a uniter not a divider.
2. I'm going to bring morality and ethics back into the Whitehouse.
3. There are well-established links between Saddam and 9/11.
4. Saddam has WMDs...

5. I don't think anybody anticipated the breach of the levees (by Hurricane Katrina).

Yes folks, it's 5-0 to the reality-based community. The NYT has posted a video that clearly shows Bush being briefed on the likely effects of the category five hurricane. Yet four days after the storm, Bush would proclaim that he was clueless about this as well. How does this man have any credibility left?

Still alive

Sadly, I haven't had any time to blog lately. All I can do at this stage is point to a couple of interesting pieces I've seen lately: (1) Journalist Mark Danner's interesting take on all that's gone on since 9/11; and (2) the best piece (from Findlaw) on the now infamous Mohammed cartoon's I've seen.

Lagging behind the times

In a truly appalling piece of judging, the Italian Supreme Court recently ruled that sexually abusing a teenager is a less serious crime if the victim is not a virgin.  The Court ruled in favour of a man in his forties, who had forced his 14 year old stepdaughter to engage in oral sex.  Having been sentenced to 3 years and four months’ imprisonment, he lodged an appeal on the basis that the fact that his stepdaughter had had sex before should be considered as a mitigating factor in sentencing.  The Court agreed, stating that the stepdaughter’s “personality, from a sexual point of view, is much more developed than what would be normally expected of a girl of her age".  It followed that it was fair to argue that the harm to the victim was accordingly less.  

In effect, the court proceeds on the implicit assumption that the stepdaughter’s free will and autonomy have no relevance at all: coerced sex with her stepfather is in every way equivalent to the sexual experiences that she presumably chose to have.  File this one away with the “she was wearing skin-tight jeans” defence.

Hurricane Katrina revisited

Although Bush Administration officials claimed to be surprised when told that levees around New Orleans had been breached on August 30, Congressional investigators have discovered that an eye witness account of a FEMA official, which detailed the extensive effects of Hurricane Katrina, had reached the Department of Homeland Security’s HQ by the evening of the 29th, and the Whitehouse by midnight.  In fact, Michael Brown, who was at the time in the midst of doing a “heckuva job”, notified the Whitehouse with a telephone call.  This is the same Administration which was going to be bring dignity back to the Whitehouse.  Frankly, I’m shocked that they were less than truthful on this occasion.  I mean, it’s so out of character for them to be deceptive.

Alberto Gonzales: justifier extraordinaire

I didn’t think it was possible, but I now have even greater disdain for Alberto Gonzales than before.  Is there anything that the ultimate “yes-man” will not say yes to?  Is there any executive action he won’t conjure up a legal fig-leaf for?  Incommunicado detention on the say-so of el Presidente?  A little bit of water-boarding?  How about some warrantless surveillance of telephone calls by Big Brother?  None of these seem to pose any problem for Gonzo.  Someone is actually going to have to come up with a new parade of horribles.  

Dissent in the echo chamber

It turns out that not everyone in the Bush Administration agrees with the Alberto Gonzales “where do you want the legal fig-leaf” school of legal advice.  (Poor old Gonzo, by the way, received a chilly reception at Georgetown Law School last week.)  As detailed in an intriguing story by Newsweek, a number of lawyers in the Administration in fact dissented from the extreme views about the powers of the President in wartime put forward most notoriously by John “what do you need me to justify” Yoo.  One day I suspect we’ll look at these people in the same way that we look at those who, in the eyes of posterity, rightly opposed overzealous executive action in the past.  

More Coulter humour

Speaking at a Black college, renowned funny-woman and frequent Saturday Night Live guest star Ann Coulter “joked” that Justice Stevens should be poisoned in order to secure a more conservative Supreme Court for the abortion wars:

"We need somebody to put rat poisoning in Justice Stevens' creme brulee… That's just a joke, for you in the media."

Hehehe. Ann, stop me before I start rolling in the aisles, and don’t quit your day job as a conservative hack.

Why didn't anyone tell me this when I lived in New York?

During my time living in the United States, I found that there were few occasions when I would ever be advantaged by being a foreigner (technically, a legal resident alien or something).  Aside from serious matters like being eligible for incommunicado detention by the whim of the President, there are also more prosaic things like people not being able to understand your sandwich orders.  So, imagine my surprise when I find out that Macy’s gives foreigners an 11% discount for being foreigners, which puts me about on par with an American with crappy credit history.  

Their conceit knows no bounds

In response to a hard-hitting speech earlier this week by former US vice-President Al Gore, in which Bush’s lawless wiretapping is heavily criticised, the Administration through Scott “mouthpiece-of-Sauron” McClellan and Alberto “Grima Worm-tongue” Gonzalez raises the old tu quoque defence: Clinton did it too! So there.

McClellan, for example, stated that the Clinton-Gore administration had engaged in warrantless physical searches. He cited the FBI’s warrentless search of the home of CIA traitor Aldrich Ames. He also noted that Clinton’s deputy Attorney General, Jamie Gorelick (a rather unfortunate name), had testified before Congress that the president had the inherent authority to authorise such activity. So who the hell is Gore to now tell George that he can’t do a bit of warrantless wire-tapping? "I think his hypocrisy knows no bounds," McClellan said of Gore.

However, when Ames’ house was searched in 1993, and when Gorelick testified in 1994, the Foreign Intelligence Surveillance Act — the legislation that is thought by just about everyone outside of the White House, the National Review and the Weekly Standard to govern wire-tapping for national security purposes — did not cover physical searches. FISA was amended to cover such searches in 1995. Clinton signed that legislative change into law.

Oopps! Mark that down as another objection from the reality based community.

George Bush's First Amendment

There are some people who would have us all believe that America invented freedom. Although this claim is of course highly dubious, one cannot deny that certain Americans have played a significant role in how we think about freedom. Take freedom of speech for example. It’s basically impossible to discuss this topic without coming across the great jurist Oliver Wendell Holmes’ notion of the marketplace of ideas (“the best test of truth is the power of the thought to get itself accepted in the competition of the market”), and Louis Brandeis’ linking of freedom of speech to proper democratic participation by the citizenry.

In more recent times, equally — ahem — esteemed thinkers have given their views on what freedom of speech means. Shortly after 9/11, former US Attorney General John Ashcroft, and now best selling folk singer, established the “no freedom to critique of our policies” conception of freedom of speech:

“[T] to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our national unity and diminish our resolve.”

More recently, the equally erudite thinker, George W Bush, outlined the “honest critiques only” view. Such critiques bring credit to American democracy and not comfort to its enemies. They do not include, for example, questioning the motives for the US invasion of Iraq. A classic example of Bush free speech in action occurred at one of his recent echo-chamber town meetings. A hard-nosed citizen-questioner, probably hand-picked and vetted by Karl Rove, threw this curve-ball regarding the NSA spying scandal at Bush:

“[H]ere's people in our states and there's people that are in D.C. that will take and jeopardize what I feel is our national security and our troops' safety today for partisan advantage, for political advantage. They're starting an investigation in the Justice Department about the -- looking into this, where these leaks came from. Is the Justice Department going to follow through and, if necessary, go after the media to take and get the answers and to shut these leaks up?”

In the words of those astute political commentators on the Daily Show, “you’re welcome to say whatever he wants” (video here).

Signs that you may be a nerd #5

If you laugh as hard as I did at this hilarious send-up of the Supreme Court by Dahlia Lithwick.  

Shutting the courthouse door on the Guantanamo detainees?

Since 9/11, the legislative branch of the US government has been largely muted in relation to Bush’s war on terror.  Conveniently, this has allowed Yoo-ian executive unilateralism to fill the void.  Take the staggering claims of executive power in relation to Guantanamo Bay for example: detention on executive say-so; prosecution in a system entirely set up and run by the executive; torture/cruel inhuman or degrading treatment/abuse under executive war-making powers.

Some of the abuses of the war on terror were of course the impetus for the recent McCain Amendment, which prohibits the mistreatment of any detainee in American custody.  It was the first sign (for a while) that Congress was paying attention.   (Of course King George — true to his strict constructionist view of the law — has reserved the right to disregard the McCain Amendment, or indeed any other law that would fetter his beloved (“my precious…) commander-in-chief power.)

As I also noted at the time, a further amendment to the same Act, the Graham Amendment, appears to strip the federal courts of jurisdiction to hear habeas corpus petitions from Guantanamo detainees, and puts a more limited form of review in place of the great writ.  Subject to any constitutional infirmities, it appears that the Graham Amendment will shut the door on future habeas corpus claims.  Additionally, the Bush Administration is arguing (predictably) that cases currently pending before the courts ought to be dismissed in light of the new Act.  This includes the incredibly significant Hamdan case, which concerns issues such as the extent of presidential power to establish military commissions and the applicability of the Geneva Conventions.  

So there’s that valuable legislative input (see it all here).  I suppose this just goes to show that you should be careful what you wish for.

Shutting the courthouse door on Guantanamo detainees?

Since 9/11, the legislative branch of the US government has been largely muted in relation to Bush’s war on terror.  Conveniently, this has allowed Yoo-ian executive unilateralism to fill the void.  Take the staggering claims of executive power in relation to Guantanamo Bay for example: detention on executive say-so; prosecution in a system entirely set up and run by the executive; torture/cruel inhuman or degrading treatment/abuse under executive war-making powers.

Some of the abuses of the war on terror were of course the impetus for the recent McCain Amendment, which prohibits the mistreatment of any detainee in American custody.  It was the first sign (for a while) that Congress was paying attention.   (Of course King George — true to his strict constructionist view of the law — has reserved the right to disregard the McCain Amendment, or indeed any other law that would fetter his beloved (“my precious…) commander-in-chief power.)

As I also noted at the time, a further amendment to the same Act, the Graham Amendment, appears to strip the federal courts of jurisdiction to hear habeas corpus petitions from Guantanamo detainees, and puts a more limited form of review in place of the great writ.  Subject to any constitutional infirmities, it appears that the Graham Amendment will shut the door on future habeas corpus claims.  Additionally, the Bush Administration is arguing (predictably) that cases currently pending before the courts ought to be dismissed in light of the new Act.  This includes the incredibly significant Hamdan case, which concerns issues such as the extent of presidential power to establish military commissions and the applicability of the Geneva Conventions.  

So there’s that valuable legislative input (see it all here).  I suppose this just goes to show that you should be careful what you wish for.

That’s why they play the game (episode 543234)

The Texas Longhorns defeated the USC Trojans in the Rose Bowl earlier this week to win college football’s national championship.  Although I personally don’t consider it to be a huge upset, most were picking USC to romp home.  After all, USC was absolutely loaded.  Great offensive line, more quality  receiving targets than the San Francisco 49ers (okay, so that’s not too difficult), one Heisman trophy winning quarterback in Matt Leinart, one all-world Heisman trophy winning running back Reggie Bush, and one Heisman trophy contender if he played on any other team in Lendale White.  

If USC was going to be beaten, it would have to be by a team with enough defensive firepower to slow down the Trojans just a bit, and enough offensive firepower to keep up.  Texas’s defence did just enough at critical junctures of the game, and in one player, quarterback Vince Young, Texas had enough offence — to the tune of this fantasy-football-geek-drool-inducing stat-line: 200 yards rushing/3 touchdowns and 267 yards passing.  A game for the ages.  

The fate of USC — an unbeatable team loaded with future NFL players and riding a 34 game winning streak only to be defeated in the national championship game — is eerily similar to the 2002 Miami Hurricanes, who also faltered at the last hurdle (although that was largely thanks to a phantom pass interference call at the end of the game — not that I’m bitter or anything).  Of course, my dear Hurricanes have gone downhill since then, so it will be interesting to see whether USC can reload for another shot at the championship.

Top ten reasons not to have a common name #5

Here’s further reason to have great faith in US homeland security: the right people are being prevented from flying by the No-Fly list. Jim Moore, author and Bush administration critic, recently found himself on the list and recounted his experience:

"I'm sorry, sir," she said. "There seems to be a problem. You've been placed on the No Fly Watch List."
"Excuse me?"
"I'm afraid there isn't much more that I can tell you," she explained. "It's just the list that's maintained by TSA to check for people who might have terrorist connections."

"You're serious?"
"I'm afraid so, sir. Here's an 800 number in Washington. You need to call them before I can clear you for the flight."

Exasperated, I dialed the number from my cell, determined to clear up what I was sure was a clerical error. The woman who answered offered me no more information than the ticket agent.
"Mam, I'd like to know how I got on the No Fly Watch List."

"I'm not really authorized to tell you that, sir," she explained after taking down my social security and Texas driver's license numbers.
"What can you tell me?"
"All I can tell you is that there is something in your background that in some way is similar to someone they are looking for."

How very creepily Kafka. I don’t know Jim Moore personally, but he seems like an innocuous white dude from Texas who by his own account is a law-abiding citizen. He also doesn’t have that tell-tale sign of bad guy: an obviously suspicious sounding name, like say “Mohammed”. He has, however, apparently written books critical of the Bush administration. Hmmm… And I’m sure Article II of the Constitution would provide a legal justification if needed.

Given that one cannot find out the reason one is on the list, it is difficult to get off the list. Not only is this a major pain in the ass for the aforementioned Jim Moore, it could also pose problems for anyone else named Jim Moore. This is because the No Fly list is the product of such complicated search algorithms and electronic database software that it apparently can’t distinguish people with the same name. This explains the trouble Edward Allen had travelling from Texas to New York. This Edward Allen, who has the misfortune of sharing his name with some other nefarious Edward Allen, is an even more unlikely terrorist — he’s 4 years old. Of course, this Edward Allen’s mother could have had the foresight to give her son a more unique name like Edward Allen0653.

So there you have it. The US government is keeping America both safe and free.

John Yoo's latest memo for President Bush

Dear Mr President,

Re: Control over television

I understand that you and Laura are having a disagreement over the Crawford Ranch plasma television set; she wants to watch the season finale of “Desperate Housewives” while you wish to see the National Championship game of college football, the Rose Bowl.  You have asked for my advice as to your legal options.

As you know, I have become famous — indeed some camembert-eating liberals might say “notorious” — for defending many of your policies during the war on terror.  You’ll recall some of my earlier “greatest hits”, such as when I advised you that you may unilaterally suspend treaties such as those quaint Geneva Conventions, or when I advised that legislative attempts to limit your power to order torture would violate the commander in chief clause of the Constitution.  After all, you just never know when you might need that operational flexibility to do a little bit of waterboarding, or genocide.  

Thus, with firm and clear precedent establishing the proposition that the Constitution allows the President, as commander in chief, do whatever the hell he wants in his naked unreviewable discretion, you are in a strong position to assume control of the television remote regardless of what Laura says.  Additionally, I would note that should she try to deny you the opportunity to watch the University of Texas play the University of Southern California in the Rose Bowl, this could amount to giving material support to the enemy meaning that you could, in your discretion, detain her as an enemy combatant for the duration of hostilities (about three hours, assuming no overtimes).  


Kind regards,
John Yoo


Ps: I hope Texas smashes those chardonnay-loving Californians.

Constitutional Law with Bush II: The Silent Implied Veto

If you can’t beat ‘em, then join them. I’ve joined Bush’s Department of Illegality Laundering. And in my new role, I’ve discovered the joys of the Bush view of Article II of the Constitution — so versatile, so malleable, so very living constitution. I realize that this is not really consistent with originalism, textualism or any of the techniques of interpretation that conservatives like to batter liberal judicial activists with, but hey, consistency is overrated. And it has to be balanced against national security concerns.

In fact, I’ve come up with a new legal fig leaf: the silent partial imperial veto (SPIV) — an implied power located in the penumbral emanations of the commander-in-chief clause. Take the annoying McCain Amendment for example. The commander in chief had this to say when signing the Defence Appropriations Bill (to which the Amendment is attached) into law:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The beauty of the SPIV is thus revealed. Instead of vetoing the Amendment— and thereby incurring whatever political cost is attendant upon vetoing a provision that would prohibit cruel, inhuman and degrading treatment of detainees in American custody — the SPIV lets you claim that the US doesn’t torture or mistreat detainees while still preserving the flexibility to ignore the McCain Amendment and do a Jack Bauer where necessary. Additionally, the SPIV preserves the Graham Amendment, which limits the rights to redress of Guantanamo detainees. How handy.

There you have it. I’m expecting to be anointed as the new John Yoo or Al Gonzalez in no time.

Has Jack Bauer read the Convention Against Torture?

Or the McCain Amendment (which King George has graciously agreed not to veto)?  The answer seems quite clearly to be no, since the hero of the genuinely claustrophobically entertaining television series “24” seems to torture at least one bad guy a week.  And the evil terrorist — hey, let’s drop all that suspect business ok? — always seems to spill that important detail that allows Jack to save the day.  

Who could reasonably object to Jack Bauer being allowed carte blanche to do what he does best?  The man lives in the permanent ticking bomb scenario so beloved by first year philosophy students — 24 even has the ticking bomb sound every fifteen minutes.  24’s underlying message is clear: America can beat the terrorists if it just allows warriors like Jack Bauer to do whatever it takes, free from impediments like legal rules and due process.  24 is produced by Fox.  Now there’s a surprise.

The Constitution according to George

I discussed this topic last year, but here is a clearer explanation.

Ann Coulter wasn't hugged as a child

Some cheery holiday thoughts from Ann Coulter, conservative pundit extraordinaire and bestselling author:

"I think the government should be spying on all Arabs, engaging in torture as a televised spectator sport, dropping daisy cutters wantonly throughout the Middle East and sending liberals to Guantanamo."

Res ipsa loquitur.