Month: June 2008

Getting Things Done

by digby

In an interview on the ABC News Shuffle Podcast today (listen HERE) Sen. Joe Lieberman, the independent Democrat from Connecticut, made his case for the presidential campaign of Sen. John McCain, R-Ariz., saying, “I’m going to make a provocative statement: in many ways I think John McCain on Foreign Policy is closer to where Al Gore and I were in 2000, then Barack Obama is.” Lieberman made the comment in the midst of acknowledging that on domestic issues ranging from the economy to health care his positions more closely align with Sen. Barack Obama, D-Illinois. “On domestic policy, you’re right. I’m closer on a lot of issues, not all, to Obama,” Lieberman said. “But the big difference for me is, McCain will actually get something done. It’s one thing to say where you are on a policy and give a good speech, but McCain as president will actually get something done.”

This is what is so loathsome about the Village fetish for bipartisanship. They don’t give a damn what the bill says, they just want to “get something done.”

We’ve had a virtual love fest of bipartisan legislation over the past seven years. It’s not as if the Republicans ever had a filibuster proof majority, after all. They managed to get a lot of things “done.” Bad things. And if they didn’t like something, they just threatened to filibuster and the Democrats bowed respectfully and backed away.

Here’s how Glenn Greenwald laid it out:

Many people, especially partisans, always believe that their own side is compromising too much and that the other side is always winning, so it’s best to consult objective facts in order to know how “bipartisanship” works. Here are the vote breakdowns by party over the last couple years on the most significant and contentious pieces of legislation, particularly (though not only) in the area of national security. In almost every case, the proposals that are enacted are ones favored by the White House and supported by all GOP lawmakers, and then Democrats split and enough of them join with Republicans to ensure that the GOP gets what it wants. That’s “bipartisanhip” in Washington: To support the new Bush-supported FISA law: GOP – 48-0 Dems – 12-36

To compel redeployment of troops from Iraq: GOP – 0-49 Dems – 24-21

To confirm Michael Mukasey as Attorney General: GOP – 46-0 Dems – 7-40

To confirm Leslie Southwick as Circuit Court Judge: GOP – 49-0 Dems – 8-38

Kyl-Lieberman Resolution on Iran: GOP – 46-2 Dems – 30-20

To condemn MoveOn.org: GOP – 49-0 Dems – 23-25

The Protect America Act: GOP – 44-0 Dems – 20-28

Declaring English to be the Government’s official language: GOP – 48-1 Dems – 16-33

The Military Commissions Act: GOP – 53-0 Dems – 12-34

To renew the Patriot Act: GOP – 54-0 Dems – 34-10

Cloture Vote on Sam Alito’s confirmation to the Supreme Court: GOP – 54-0 Dems – 18-25

Authorization to Use Military Force in Iraq: GOP – 48-1 Dems – 29-22

On virtually every major controversial issue — particularly, though not only, ones involving national security and terrorism — the Republicans (including their vaunted mythical moderates and mavericks) vote in almost complete lockstep in favor of the President, the Democratic caucus splits, and the Republicans then get their way on every issue thanks to “bipartisan” support. That’s what “bipartisanship” in Washington means.

So Lieberman’s right in one sense. John McCain will have a much easier time getting legislation through than Obama would, even with a majority. But it’s because Obama would not be able to rally as many Republicans as Bush has been able to rally Democrats, even to enact exactly the same legislation. They understand the value of obstructing an agenda for political purposes. And even worse, Democrats themselves, if history is any guide, will go out of their way to make Obama dance on the head of a pin to get a progressive agenda through the congress.

So yes, the way the Senate normally works, John McCain will be more able to “get things done.” But it won’t be because he’s more willing to compromise. It’s because Republicans won’t and Democrats will under a Republican president. A Democratic president has to deal with recalcitrant Republicans as well as preening Democrats who only show their “courage” when it comes to standing up to other Democrats. It’s a completely different dynamic based upon the conventional wisdom that Democratic courage is defined by how much you betray your own voters. (Republican courage is defined by agitating for violence and bloodshed as often as possible.)

The key to understanding how the elders define bipartisanship is recognizing that whatever your beliefs or principles, you “get things done” in Washington by doing what conservatives want you to do.

.

Judging The Crazy

by dday

Two of the three potential Vice Presidential nominees shuttled to Chez BBQ last month for a powwow with John McCain were Mitt Romney and Bobby Jindal. They’re both a real pair of winners. Today, Romney called nuclear nonproliferation a “liberal position.”

This morning, failed Republican presidential candidate and former governor Mitt Romney was interviewed by CNN anchor John Roberts. During the interview, Mitt dutifully repeated the McCain campaign’s latest anti-Obama smear, that he’s “never been a part of a bipartisan group that came together to solve a controversial issue.” […]

When it was pointed out that Obama has worked with Sen. Richard Lugar, R-Indiana on the Lugar-Obama Nonproliferation legislation, signed into law by President Bush, and with Sen. Gordon Smith, R-Oregon, on increasing gas mileage efficiency requirements, this was Romey’s actual response:

“Actually, on both cases, you’re talking about two liberal positions, non-proliferation as well as the gasoline mileage.”

It is now considered liberal to want to reduce the potential of nuclear destruction. For context, four years ago George Bush and John Kerry agreed that nuclear proliferation was the greatest current threat to global security. Romney either doesn’t know what non-proliferation means, or thinks that anything with the word “non” involves taking away the sweet sweet cash funnel to military contractors. Henry Frickin’ Kissinger believes in nonproliferation, fercryinoutloud.

This position puts Romney on the radical left when compared to Bobby Jindal’s latest bill-signing ceremony:

On the heels of today’s SCOTUS decision in Kennedy v. Louisiana barring the death penalty for sex offenders, Gov. Bobby Jindal released a statement calling the ruling an “affront to the people of Louisiana” – and what’s more, vowing to do whatever possible to amend the state’s laws in order to maintain the death penalty for child rape.

But that’s not all he did.

Today, Gov. Jindal signed the “Sex Offender Chemical Castration Bill,” authorizing the castration of convicted sex offenders. They get a choice: physical or chemical. Oh, and they don’t just get castrated and leave – they still have to serve out their sentence.

Hammurabi would be proud. Would this hold for those offenders who committed forcible optical intercourse, too?

Good Lord these people are out of their skulls.

.

OMG tigr!

by digby

Media Bloodhound caught a perfect example of the Entertainment Industrial Complex doing its best to ensure that Americans stay as uninformed as possible:

On June 17, Lara Logan, CBS News’ Chief Foreign Correspondent, had this exchange with Jon Stewart:

STEWART: Do you watch the news that we’re watching? LOGAN: No. STEWART: …in the United States? Do you see what we’re hearing about the war? So, we might actually know everything? LOGAN: If I were to watch the news that you hear in the United States—I’d just blow my brains out because it would drive me nuts.

The following night, CBS Evening News spent the first four-and-a-half minutes of its broadcast on star golfer Tiger Woods’ injury. (View full clip here.) This is how anchor Russ Mitchell (filling in for Katie Couric) began this opening story, which accounted for, excluding commercials, nearly one quarter of the night’s newscast:

RUSS MITCHELL: Just two days after one of his greatest victories, the season is over for perhaps the biggest name in sports. Tiger Woods, the world’s number one golfer, said today he needs reconstructive knee surgery to a pair of torn ligaments. It is a major blow for Woods and for the sport itself.

I contacted CBS and asked them how they not only justified making this their lead story but saw fit to devote nearly a quarter of their broadcast to it. I received the following statement from Rick Kaplan, Executive Producer of CBS Evening News, who, I was also informed, had a direct hand in making this decision:

“The Tiger Woods injury story was of major importance and we felt we needed to devote time to it as the lead. Tiger is arguably one of the world’s premiere athletes and his career is in some jeopardy with Tiger halting playing the sport for the year. It was certainly the most talked about story of the day, and the biggest story in most national newspapers. Our story contained implications for sports, millions of fans, and many aspects of business; which have by and large been revolutionized by the Tiger Woods phenomenon.”

Click over to Media Bloodhound to see a small sampling of the headlines that existed on that day from the US and around the world. You’ll see what excellent editorial judgment that was.

It’s not that sports news isn’t important. But four minutes out of about 22? About an athlete’s knee injuryt? Really? It’s not like he died or even that he found out that he had to retire because of his injury. He’s out for the rest of the 2008 tour and will make a full recovery. The humanity.

I know this was undoubtedly the story of the day during lunch at the Palm among all the men who watched that memorable US Open — guys like Kaplan who run networks and who have been “revolutionized” by the Tiger Woods Phenomenon, (which I suspect translates into buying all of his products and following his career like a bunch of teen age groupies.) But I’m not really sure that the obsessions of a bunch of rich guys for another incredibly rich guy qualifies as news. It’s celebrity gossip for boys.

.

Eye Babies

by digby

Whenever people pooh-pooh the actions of the Bush Justice Department, I think of the fact that they actually allowed immature, right wing, religious zealots to do the hiring. As we’ve seen over the past few days, the allegedly non-partisan hiring in the bureaucracy consisted nearly entirely of federalist society members and right wing Christians.

This little find, from TBOGG tells the story in a nutshell. He discusses the work of one Esther Slater McDonald who was deeply involved in the “vetting” of hires, specifically charged with finding out if they were “anarchists” or “leftists.” She was an alum of another of those Conservative Christian Colleges, like Monica Goodling:

Thanks to TPM reader Citoyen92, we learn a few things about Pensacola Christian College which makes the Yearning For Zion Ranch look like Hef’s mansion:

Pensacola Christian College prides itself on being different, not just from secular colleges, but from fellow Christian ones, too. Some of those differences, like the way students dress, are obvious to any visitor. Others are not. Since its founding, more than 30 years ago, Pensacola has blossomed from a tiny Bible college into a thriving institution of nearly 5,000 students. Along the way it has become known as among the most conservative — and most secretive — colleges in the country. Not to mention one of the strictest. The rules at Pensacola govern every aspect of students’ lives, including the books they read, the shoes they wear, the churches they attend, and the people they date. Many of those regulations are spelled out in a handbook sent to students after they enroll, but there are plenty of unwritten rules as well. Demerits are common and discipline swift. It’s all in the name of preserving Pensacola’s “distinctives” — the word the college uses for what sets it apart. But many former students say the enforcement of the rules is often cruel and capricious. Dissent is never tolerated, they say, and expulsions for seemingly minor infractions are routine. […] Of Pensacola’s many rules, those dealing with male-female relationships are the most talked about. There are restrictions on when and where men and women may speak to each other. Some elevators and stairwells may be used only by women; others may be used only by men. Socializing on particular benches is forbidden. If a man and a woman are walking to class, they may chat; if they stop en route, though, they may be in trouble. Generally men and women caught interacting in any “unchaperoned area” — which is most of the campus — could be subject to severe penalties. Those rules extend beyond the campus. A man and a woman cannot go to an off-campus restaurant together without a chaperon (usually a faculty member). Even running into members of the opposite sex off campus can lead to punishment. One student told of how a group of men and a group of women from the college happened to meet at a McDonald’s last spring. Both groups were returning from the beach (they had gone to separate beaches; men and women are not allowed to be at the beach together). The administration found out, and all 15 students were expelled. Even couples who are not talking or touching can be reprimanded. Sabrina Poirier, a student at Pensacola who withdrew in 1997, was disciplined for what is known on the campus as “optical intercourse” — staring too intently into the eyes of a member of the opposite sex. This is also referred to as “making eye babies.” While the rule does not appear in written form, most students interviewed for this article were familiar with the concept.

People are free to attend whatever schools they choose, of course. But the idea that people this far out of the mainstream of American life were working in the highest reaches of the Justice department ferreting out “anarchists” and “leftists” makes my blood run cold. Are there many of these people working in government jobs that give them access to personal information about American citizens?

.

Yoo And Addington On The Hill

by dday

There’s quite a remarkable hearing going on today in a House subcommittee. David Addington and John Yoo are voluntarily testifying about the torture practices of the Bush Administration. Thanks to time zones, I didn’t get to tune in until the end of the first round of questioning, but I’m getting the feel of it from reports by Spencer Ackerman and at the liveblog on Daily Kos.

It seems like both of them are being evasive but for completely different reasons. Addington ought to be held in contempt of Congress for just plain contemptuousness. As Scott Horton noted on Pacifica’s coverage, he clearly believes himself to be smarter than all the Representatives in the room, and he has no problem bullying them around the way he reportedly bullies everyone in the executive branch. He also doesn’t mind lying about his role in designing torture tactics after a personal trip to Guantanamo. He essentially said, according to Horton, that the world is very dangerous and the threat is not yet over, implying that Congress had better back down with all the questioning and recognize that absolutely anything can be done in the name of protecting the country. Here’s an example:

Addington, naturally, is being legalistic and careful. Can president violate statutes during wartime? “As a general proposition, no, … but facts matter for a lawyer.” Which facts would justify the president violating such a statute? Addington says he won’t answer. He’s combative, and good. Could self-defense be such a case? “I haven’t expressed an opinion… I haven’t researched the statute.” Says on FISA, “there is a serious constitutional question that Congress might… try to block the president’s power.”

The President’s power, that is, to allow prisoners to be sodomized with a broomstick. The President’s power to murder prisoners in US custody. The President’s power to hide prisoners from the Red Cross in violation of international law. The President’s power, and the power of those around them, to commit war crimes. For your protection. In your name.

“After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes,” Taguba wrote. “The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Now Yoo, on the other hand, seems afraid for his life and livelihood. He is trying not to answer any question too fully, is stretching out every answer to run out the clock on the questioners, is debating the meaning of words like “implemented,” and is consulting with two lawyers on practically every question. He’s trying to explain away the Convention Against Torture and generally throw up enough mud to resist any real answer. He’s constantly citing Justice Department guidelines that restrict his testimony, too. Over and over he makes the claim that he was simply a lawyer providing legal advice. Of course, at the Nuremberg trials the precedent was set that lawyers whose advice was used to commit war crimes are culpable in those activities. If the policy is to go to the very limit, and the lawyer sets the limit, then he is creating the policy. Yoo can’t wiggle off the hook… at least in an international court of law. The Military Commissions Act of 2006 gave some debatable measure of immunity to most of this crowd for their crimes.

The subcommittee is being very thorough and not taking a lot of bullshit. As the facts about physical and psychological abuse slowly come to light, not only at Abu Ghraib but across all US detention sites, and as we learn more about those who directed the policies that led to this torture, abuse and murder, the policymakers have become more unbridled in investigating these crimes. The grilling of William Haynes – almost made a federal judge for life – at the Senate Armed Services Committee last week showed an unusually strident Carl Levin and his compatriots angered by Haynes’ activities. After the Supreme Court asserted in Boumediene that prisoners captured at Guantanamo have the ability to challenge their crimes, we’ve seen the DC appeals court overrule the Administration on their designation of “enemy combatants,” where other prisoners have begun to use their habeas rights to challenge their detentions. The Bush-Cheney policies on interrogation and torture have been discredited by the law and by Congress, and the notion of a “few bad apples” has been totally rejected. As Jerrold Nadler said today:

“It does not go too far to say the reputation of our nation as the leading exponent of human rights and human dignity have been besmirched by this administration […] I know I speak for many of colleagues when I say that the more we find out about what was done and how it was justified, the more appalled we have become.”

None of this, of course, matters to Addington and Yoo, who instead value their radical agenda of executive power and aren’t too concerned about the courts and the Congress’ opinion. In fact, they’re already winning this battle where it counts.

A new poll of citizens’ attitudes about torture in 19 nations finds Americans among the most accepting of the practice. Although a slight majority say torture should be universally prohibited, 44 percent think torture of terrorist suspects should be allowed, and more than one in 10 think torture should generally be allowed.

The findings of the WorldPublicOpinion.org poll put the United States alongside countries like Russia, Egypt and the Ukraine and lagging far behind allies like Great Britain, Spain and France in how its citizens view torture.

The poll found 53 percent of Americans believed all torture should be prohibited; the average in all 19 countries polled was 57 percent.

The Jack Bauer-ization of the torture question, the mainstreaming of cruel and unusual punishment, the ability for the right to demagogue this issue for six years, means that so much of this bipartisan condemnation is coming a little too late. It’s nice to hear, but Addington’s bullying view has ruled the day for so long that I don’t know if we can even get back to a sense of normalcy.

WASHINGTON — A bipartisan group of 200 former government officials, retired generals and religious leaders plans to issue a statement on Wednesday calling for a presidential order to outlaw some interrogation and detention practices used by the Bush administration over the last six years.

The executive order they seek would commit the government to using only interrogation methods that the United States would find acceptable if used by another country against American soldiers or civilians.

It would also outlaw secret detentions, used since 2001 by the Central Intelligence Agency, and prohibit the transfer of prisoners to countries that use torture or cruel treatment. The C.I.A. has allowed terrorism suspects to be taken to such countries.

Among the signers is George P. Shultz, secretary of state under President Ronald Reagan. “It’s a good time to step back, take a deep breath and set a standard,” Mr. Shultz said in an interview.

That would have been a good time in October 2001, before war fever made everybody in Washington a little crazy, and the White House was allowed to take the policies they always wanted to implement off the shelf, using the SERE program designed for our soldiers to resist enemy torture and reverse-engineering it to torture others. We knew in 2001 that torture was ineffective, counter-productive, prone to generating bad intelligence, and would create more terrorists than it would stop terrorist attacks. It’s not some grand display of honor to speak out about it now. It’s actually more like cowardice.

I appreciate the work of this subcommittee, and after this embarrassment of a President’s term ends I would hope that there is a grand inquest into these high crimes. But don’t bet on it. And the court of public opinion, the space has already been given to the fearmongers and jingoists to connect torture with saving American lives. The truth, of course, is the opposite.

.

Blue on Blue

by digby

Here’s some more of that hot dog-on-dog action:

Blue Dog Democrats, frustrated that their fight to end deficit spending has been stymied by the Senate, may endorse candidates running for the upper chamber.

Leaders of the group told The Hill on Wednesday that they are considering plans to formally back and contribute to Senate candidates running in November.

“I expect you could see the Blue Dog PAC get involved in some Senate races this year,” said Blue Dog Rep. Mike Ross (D-Ark.).
“We’re never going to restore fiscal discipline to our government until we get more Blue Dogs elected to Republican Senate seats.”

Here’s the problem. These people supposedly believe in “fiscal responsibility.” But, as Democrats in a Democratically led congress, they are completely ineffectual at stopping Republican tax cuts or raising taxes, but remarkably effective at stopping Democratic spending programs. Heads they win, tails we lose. They are completely useless at anything except making the liberal agenda impossible to enact.
And strangely enough, the fiscal hawks always seem to become newsworthy as powerful kingmakers and important players when Democrats are about to take power and have a lot of work to do to clean up after a Republican spending spree. We certainly haven’t been reading a lot about the need “fiscal responsibility” over the past eight years. Suddenly the whole Village is buzzing about it.

“We’re interested in getting some like-minded people in the Senate,” Tanner said.

[…]

A Blue Dog senator would be a first, but Sen. Evan Bayh (D-Ind.), a conservative Democrat who was governor of right-leaning Indiana from 1989 to 1997, noted that there have already been several attempts at centrist coalitions in the Senate. He said he would consider joining another.
“Over the years there have been efforts to establish centrist … groups here,” Bayh said. “It’s never been as formal or as lasting as the Blue Dogs, but obviously the more like-minded members that we have — centrists, pragmatists — the greater the potential for something like that to occur with me. I’m not interested in joining an organization just to join something, but if there’s actually a potential for practical results? Absolutely. We need more of that around here.”

You can certainly understand why a pragmatic Democrat like Bayh would be in favor of such a thing. After all, for the last decade or so the place has been run by a bunch of wild-eyed, liberal ideologues who are putting up roadblocks to raising taxes to pay for popular programs. That’s the ticket.

Endorsed members get a $5,000 donation from the PAC for the general election. But Blue Dog members also generally campaign for them and help them raise money.
Blue Dog staffers note that the idea of supporting Senate candidates has not even been brought before the Blue Dog PAC board, an 11-member panel that could then refer it to the full membership of the coalition.
The Blue Dogs certainly have the money. The Blue Dog PAC has doled out $790,000 this election cycle, and still has nearly $1.5 million in the bank.

You know, that isn’t really all that impressive. Blue America raised more than 1.2 million in the last two election cycles (so far) and we’re just a bunch of useless DFH’s. I suspect that the lure of the Blue Dog has as much to do with certain “perks” provided by the big money special interests as the contributions themselves. And Villagers much prefer it if the elected representatives associate with the “right” people, so one must always be aware that taking contributions from DFH’s has a certain taint. Still, money’s money and if that’s really what it’s all about, then the netroots may be in a position to affect this more than they give us credit for. It could happen.

.

FISA Update

by dday

Ian Welsh at FDL has all the sordid details of the 80-15 vote in favor of the motion to proceed on the FISA bill. There are now 30 hours of debate available on FISA and I’m sure Sen. Dodd and Sen. Feingold are going to use every scrap of that, but realistically, I don’t see how we stop this freight train. Delay is the only option.

Senate candidates like Jeff Merkley and Rick Noriega have offered strong opposition to the bill, and that’s great, but of course we have a Senate afflicted with DC disease and weighed down with telecom cash.

30 hours may just be enough if the other bills in the Senate’s queue are foregrounded to delay this to the recess, if those opposing use absolutely every trick at their disposal. But that’s about it, and it may be delaying the inevitable.

Here are the 15 who stood up for the Constitution today.

Biden (D-DE)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Dodd (D-CT)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Kerry (D-MA)
Lautenberg (D-NJ)
Leahy (D-VT)
Menendez (D-NJ)
Sanders (I-VT)
Schumer (D-NY)
Wyden (D-OR)

…no Obama on that list, he was campaigning. But it wouldn’t have mattered anyway. He’s el foldo on this issue.

“The bill has changed. So I don’t think the security threats have changed, I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people.”

A few weasel words from there, but Obama is totally cool with the precedent of the government giving a slip of paper to a corporation allowing them to break the law. He’s cool with the premise of “we were just following orders” that was shot down at Nuremberg being revived. He’s cool with if the President does it, then it isn’t illegal. He’s cool with a bunch of the other really dangerous aspects of the bill, including the vacuuming up of every communication that leaves or enters the United States without even the caveat that they be related to terrorism. He’s cool with a national surveillance state.

Just plain cool with it.

.

Going One Better

by digby

Wow.

Democrat Barack Obama says he disagrees with the Supreme Court’s decision outlawing executions of people convicted of raping a child.

Obama told reporters Wednesday that he thinks the rape of a child, ages six or eight, is a heinous crime. He said if a state makes a decision, then the death penalty is potentially applicable.

What legal principle does that fall under I wonder?

I think those who rape children are truly heinous individuals, for sure. But once you start saying the the death penalty is for “heinous” crimes rather than the specifically heinous crime of taking another life, you open up a whole new world of execution worthy categories. There was a time when stealing a horse was considered so heinous that it deserved the the death penalty. Should we go back to a time when the state could pretty much decide to execute anyone it wanted?

I get why he said it. Everybody’s petrified of being “gotcha’d” like Dukakis on the rape question. But this one isn’t hard. All he had to say was that as a father he would certainly want to kill anyone who did such a heinous thing with his bare hands, but as a public servant and legal scholar he knows that the death penalty should be reserved for people who kill. Child molesters should be locked up and never allowed near children again. Nobody would think he was soft for saying that he would support the Supreme Court decision on this. Jesus, it wasn’t that long ago that being against the death penalty for any crime was an established liberal principle — and the Supreme Court agreed!

But hey, I guess that’s what makes it a nice political freebie. A chance to side with Scalia and Roberts without any consequences is a welcome gift when you are trying to shed the liberal label. I get that. But I don’t see how that is good for the country. With a corrupt and imperfect legal system run by members of the human species, we shouldn’t be executing anyone. Raising the ante, even rhetorically, is not helpful.

Bill Clinton raced to Arkansas to sign a retarded man’s death warrant in his run in 1992 and now Barack Obama says that he believes the death penalty should be expanded to non-murderers. Not much “progress” on this one, that’s for sure.

Update: I am told by one of my readers that it is disrespectful to assume that Obama doesn’t really believe the death penalty should be expanded. That’s true. He may very well truly believe this.

Update II: From SCOTUSblog’s analysis of the ruling:

On Wednesday, in Kennedy v. Louisiana (07-343), the Court’s five-Justice majority said at one point: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” For a Court not yet ready to end the long-running constitutional experiment with the death penalty, it was a revealing utterance of near-revulsion at the process.

Back on April 16, in a separate opinion in Baze v. Rees (07-5439), Justice John Paul Stevens wrote that he had reached “the conclusion that the imposition of the death penalty represents ‘the pointless and needless extraction of life with only marginal contributions to any discernible social or political purposes. A penalty with such negligible returns to the state [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ “ With that, a fourth Justice in the nation’s history — after William J. Brennan, Jr., Thurgood Marshall and Harry A. Blackmun — converted to the abolitionist side on capital punishment.

The first of those two statements is clear evidence that the Court, at least as presently constituted, is determined not to “extend” or “expand” the reach of the death penalty (the use of the words “extend” and “expand” prompted some of the dissenting Justices’ most critical responses Wednesday). And the second of those statements suggests, once more, that the longer a Justice stays on the Court and watches capital cases come and go, the greater the prospect that capital punishment will lose another vote and there will be an internal voice reinforcing any other Justice’s hesitancy.

That does not mean, however, that the Court will routinely stop executions. Since its ruling in Baze, it has repeatedly declined to step in to block a scheduled execution. And even Justice Stevens has not dissented from those orders. But there is a definite trend line: following nullification of the death penalty for the rape of an adult woman (Coker v. Georgia, 1977, for murder by a mentally impaired individual (Atkins v. Virginia, 2002), and murder by a minor (Roper v. Simmons, 2005), the options for using the death penalty continue to narrow.

For me, that’s a rare bit of good news from the Court. Apparently, mileage varies pretty widely on that among liberals these days.

Update III: It appears that this is an explicit states’ rights argument. That doesn’t improve the position.

.

The Inspiration

by digby

As the constitutional abuses of the Bush administration came light, we’ve often repeated the old Nixon quote “if the president does it, it’s not illegal.” But until I was reminded by a reader today, I hadn’t recalled the specific conversation in detail:

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president’s approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.

FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there’s no subtle way to say that there was murder of a dissenter in this country because I don’t know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president’s judgment?

NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA’s covert operations are concerned, as far as the FBI’s covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don’t know whether it can be done today or not.

FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, “It’s quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation’s security are lawful, but which if undertaken by private persons, are not.” What, at root, did you have in mind there?

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, “Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.”

Now that’s the kind of action I’m referring to. Of course in Lincoln’s case it was the survival of the Union in wartime, it’s the defense of the nation and, who knows, perhaps the survival of the nation.

FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it’s true that we didn’t have the North and the South—

FROST: But when you said, as you said when we were talking about the Huston Plan, you know, “If the president orders it, that makes it legal”, as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON: No, there isn’t. There’s nothing specific that the Constitution contemplates in that respect. I haven’t read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we’re all talking about.

At the time, considering the Huston Plan as being based on a legitimate legal doctrine setting forth the unlimited power of the president to “preserve the nation” was considered by most people to be a figment of Tricky Dick’s paranoid fantasies. It was ridiculous, lunacy, the fevered imaginings of a disgraced and somewhat unhinged political figure. Sure, everyone knew the government did things like that, particularly in the various red scares, but thought they at least had the decency not to pretend it was based upon some unenumerated royal prerogative.

I guess we know now that wasn’t true, don’t we? It was, in fact, a constitutional philosophy that was believed by members of Nixon’s party for over 30 years. It manifested itself in Iran-Contra and came to full fruition with the torture, imprisonment and surveillance regime of the Bush administration. It wasn’t a fluke. They really believed the president had the power to do anything he wanted and the only thing stopping him was the congressional appropriations process.

The question is if that has now become a mainstream philosophy. I would guess that it has and that we will spend many decades arguing not whether the president has these sovereign powers but rather how sweeping they are and under what circumstances they will be used.The congress is on the verge of legalizing the unlimited and secret use of private corporations to spy on its customers without warrants. It has already shown a complete willingness to allow the president to designate people at his discretion as being beyond the scope of the constitution, human rights and international law, including the right to torture. The Supreme Court is only one vote shy of sanctioning all of that for generations.

We will have no way of knowing if or how they are using these powers to “preserve the nation” (In the days after 9/11 we know for a fact that they did use them to monitor dissenters.) Presidents will undoubtedly be tempted to use them for political purposes under that doctrine, just as Nixon did, if the populace ever becomes that vociferous again. Who knows what “preserving the nation” will mean next time?

Whatever doesn’t kill the authoritarian beast only makes it stronger. We’ll be dealing with the fallout from this for yet another 30 years. Indeed, this time it may just stick forever.

.

Dog Ate My Homework

by dday

It is a novel excuse, I will say that.

The White House in December refused to accept the Environmental Protection Agency’s conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened, senior E.P.A. officials said last week.

The document, which ended up in e-mail limbo, without official status, was the E.P.A.’s answer to a 2007 Supreme Court ruling that required it to determine whether greenhouse gases represent a danger to health or the environment, the officials said.

I would give you my opinion of this, but I refuse to read the article. I excerpted the first two paragraphs with my eyes closed. And if you try to comment I’m not going to read those either. La la la la I can’t hear you!

Would that Al Gore came up with this one in early January 2001 while presiding over the Senate as the Vice President, refusing to open up the list of Electoral College votes and reading them aloud. Of course, that would be too terrible partisan.

(I was also considering “See No Email, Hear No Email” for the title. Which one do you prefer?)

.