I wish I could remember where I found the link.

Earlier tonight, someone pointed me to a very moving essay, from nearly a year ago, by a man named Bernard Avishai. It's about Israel, its Arab population, and its future - and though the politics have changed in the months since it was published, the big questions haven't been.

It's a very graceful read.

Struggling to take the story at face value.

Ariel Sharon's going to be undergoing heart surgery, of a sort; the authors of the relevant article are pitching it as a very minor affair, despite the man's age and weight, and I hope that proves true. He's earned a certain respect from me over the last few years by not being Bibi Netanyahu, and I wish him every opportunity to keep doing so, in good health.

To everyone who celebrates either . . .

Merry Christmas and happy Hanukkah!

What do we do?

This post has changed a lot since I started it. I was (and still am) primarily responding to an article in the Washington Post, titled "Bush Administration Defends Spying Program," and my thesis came in two parts. First was that the Bush administration seems to be hoping that it can convince its partisans that the conflict here is over privacy rights, rather than the president's explicit embrace of law-breaking. I still suspect that's true. Second was that Congress would do well to rescind and retool the act authorizing the use of force in Afghanistan, giving the White House a "Thou shalt not use this as an excuse," both to symbolically assert the station of the legislature (whose will, you'll recall, the executive is supposed to . . . well, execute) and to try to raise the stakes on this whole spying front, and maybe drag the president back down to the plane of nearly acceptable behavior.

The conclusion I keep keep on smacking up against is that that just isn't enough (plus, of course, it changes the conversation to the point of whether the pre-existing law might really mean what the White House says it means - which it doesn't). If you read the end of the article, you'll see that the administration's spokesman, Assistant Attorney General William Moschella, really isn't claiming the authorization of force as the key fig leaf.

Moschella also maintained the NSA program is "consistent" with the Fourth Amendment _ which prohibits unreasonable searches and seizures _ and civil liberties.

For searches to be reasonable under law, a warrant is needed, Moschella said. But, outside criminal investigations, he said, the Supreme Court has created exceptions where warrants are not needed, finding that the "reasonableness of a search" depends on "the totality of the circumstances."

"Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the 'special needs' exception to the warrant requirement," Moschella wrote.

"Intercepting communications into and out of the United States of persons linked to al-Qaida in order to detect and prevent a catastrophic attack is clearly reasonable."

He doesn't allow Congress or the courts any role in determining what's reasonable, you'll note; that's apparently only within the magisterium of the executive branch.

And this is coming from an assistant attorney general.

The torture, the violation of FISA, the stove-piping of intelligence, the "Free Speech Zones" at rallies in public places, the lies after lies after lies: any single beat is destructive enough to the political process, but each new aspect is also just a symptom of this one defining problem - the people running the executive branch think their one moment of limitation in a democratic state comes with the quadrennial election - with that in hand, everything they do is done by right. Flash back with me now to January:

President Bush said the public's decision to reelect him was a ratification of his approach toward Iraq and that there was no reason to hold any administration officials accountable for mistakes or misjudgments in prewar planning or managing the violent aftermath.

"We had an accountability moment, and that's called the 2004 elections," Bush said in an interview with The Washington Post. "The American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me."

That's it. As far as I can tell, that's what he sincerely believes. "We had an accountability moment."

So, again, what do we do? What form of censure can Congress, or the public, or even the Supreme Court, place upon this administration that can be broad and deep enough to force home the point that the entire philosophy of government being espoused is unconstitutional? What short of impeachment can stop the damage?

Anyone?

RNC makes false comparison to try to shut down debate.

Sometimes, the people that write the headlines need a little help.

As members of Congress from both parties continued to criticize the National Security Agency's domestic eavesdropping yesterday, the Republican National Committee issued a news release portraying the critics as Democrats seeking to "play politics again with national security."

The RNC asserted that Presidents Bill Clinton and Jimmy Carter both authorized comparable forms of "search [or] surveillance without court orders."

. . .

The Clinton and Carter orders, which were published, permitted warrantless spying only on foreigners who are not protected by the Constitution. Bush's secret directive permitted the NSA to eavesdrop on the overseas calls of U.S. citizens and permanent residents.

The RNC's quotation of Clinton's order left out the stated requirement, in the same sentence, that a warrantless search not involve "the premises, information, material, or property of a United States person." Carter's order, also in the same sentence quoted, said warrantless eavesdropping could not include "any communication to which a United States person is a party."

I'm not entirely sure how the Republican National Committee's purview came to extend to questions of the legality of any specific policy of the president's - but since the point is to frame the current scandal as simple partisan back-and-forth, I guess they were just the obvious mouthpiece for the message.

Anyway, I just thought I'd note that the word choice upon which the deception rests isn't likely to have been accidental. These guys aren't just making honest mistakes.

The full article is here, care of the Washington Post.

Good grief, Ohio.

I think a certain state legislature wants to look tough for Daddy . . . .

The Ohio Patriot Act has made it to [Governor] Taft's desk, and with the stroke of a pen, it would most likely become the toughest terrorism bill in the country. The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

WEWS reported it would also pave the way for everyone entering critical transportation sites such as, train stations, airports and bus stations to show ID.

More (though not much more) here - thanks to Eric Alterman for the link.

Quick follow-up.

Much as it pains me to compare President Bush to President Lincoln, the latter's suspension of habeas corpus in 1861 and 1862 probably does construe the clearest legal and constitutional parallel to what the current administration is out to do.

Let me just note three points.

First, President Lincoln did have a flimsy legal leg to stand on - the Constitution says, in Article 1, Section 9, "The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it." I think the implication was actually that Congress was the outfit with the power to issue the suspension under those very rare circumstances, but Congress was out of session (at least in `61) and, anyway, that's the problem with writing in the passive voice.

Second, this was during an actual, finite war. President Lincoln knew it would end in surrender and ink, and as far as I know there's no reason to believe he intended to prolong the suspension until he achieved some distant, unrelated point of satisfaction (though that is more or less what his successor did).

Third, and most important, the Supreme Court ruled that this was unconstitutional and undid it in 1866. I quote the Court of the day:

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure [p*125] together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.

This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested [p*126] in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

Pretty to-the-point.

What the vice president says.

A new piece in the New York Times covers Dick Cheney's most expansive comments on the Bush administration's new spying scandal - for which he's not apologetic, of course - and the intentions that underlie it. It's a theme he's been sounding since at least the `80s, according to the story: he seems to feel that the view of executive powers current in the Nixon presidency was the proper one, and that subsequent restrictions have been deleterious to the body politic.

"I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Mr. Cheney, who was in many ways the intellectual instigator of the rapid expansion of presidential authority as soon as Mr. Bush took office.

Mr. Cheney directly linked the effort to bolster the president's wartime authority to the nation's safety since the Sept. 11, 2001, attacks.

"You know," he said, "it's not an accident that we haven't been hit in four years."

. . .

Having served in Congress and as chief of staff to President Gerald R. Ford - a period when he first became concerned about infringements on presidential power - Mr. Cheney said he believed the pendulum had swung back too far after the Nixon resignation.

After expressing respect for the powers of Congress, Mr. Cheney told reporters, "But I do believe that especially in the day and age we live in, the nature of the threats we face, the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

He described the War Powers Resolution, passed in 1973 in a post-Vietnam effort by Congress to prevent the president from committing troops without sharp Congressional oversight, as "an infringement on the authority of the presidency" and suggested it could be unconstitutional.

"Watergate and a lot of the things around Watergate and Vietnam both during the 70's served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Mr. Cheney said.

. . .

"Part of the argument in Iran-contra was whether or not the president had the authority to do what was done in the Reagan years," he said. "And those of us in the minority wrote minority views that were actually authored by a guy working for me, one of my staff people, that I think are very good at laying out a robust view of the president's prerogatives with respect to the conduct of especially foreign policy and national security matters."

Asked if the proper balance had been restored under Mr. Bush, he said, "I do think it's swung back."

Mr. Cheney suggested that Democrats who pushed to trim the powers of the presidency in the wake of the disclosure of the eavesdropping program would pay a political price.

"Either we're serious about fighting the war on terror or we're not," he said.

First, according to the 9-11 Commission, we're not serious.

The United States is at great risk for more terrorist attacks because Congress and the White House have failed to enact several strong security measures, members of the former Sept.11 commission said Sunday.

"It's not a priority for the government right now," said the former chairman, Thomas Kean, ahead of the group's release of a report today assessing how well its recommendations have been followed.

"More than four years after 9/11 ... people are not paying attention," the former Republican governor of New Jersey said. "God help us if we have another attack."

Added Lee Hamilton, the former Democratic vice chairman of the commission: "We believe that another attack will occur. It's not a question of 'if.' We are not as well-prepared as we should be."

The five Republicans and five Democrats on the commission, whose recommendations are now promoted through a privately funded group known as the 9/11 Public Discourse Project, conclude that the government deserves "more Fs than As" in responding to their 41 suggested changes.

Just for the record. All of this administration's efforts to tar its detractors as irresponsible have to be held up against this one basic fact: these guys have other priorities themselves.

Honestly, I think it's almost beside the point to him - Mr. Cheney's just doing his best to incorporate the White House's chosen PR response ("Everyone who questions this is weak on national security!") into his more deeply felt argument: that Constitutional safeguards of individual liberty and the balance of powers have been wildly overemphasized relative to the legitimate powers of the executive branch. Mr. Cheney honestly believes that the president can simply ignore (in this instance alone) the Foreign Service Intelligence Act of 1978 - and the Fourth Amendment, if need be - because the privileges granted him in protecting national security are more fundamental to the republic than civilian law.

Now, I'm not a constitutional scholar, but you don't have to be to see that that's off-kilter. The idea of the legally uninhibited executive is one that every living system born of English common law, ours included, has been moving away from since 1215. In the American experiment . . . well, to set the tone, let me just toss out a paragraph from James Madison's notes from the debates at the Federal Convention of 1787 - this is from June 1.

Mr. MADISON thought it would be proper, before a choice shd. be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt. whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd. be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz. "with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature," as may from time to time be delegated by the national Legislature." The words "not legislative nor judiciary in their nature" were added to the proposed amendment in consequence of a suggestion by Genl. Pinkney that improper powers might otherwise be delegated.

It should be added that Charles Pinkney then moved to have the phrase "and to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated" stricken, since it was evident from earlier text that the executive's role was of course going to be limited to enforcing the will of the legislature. Seriously, remember: a lot of these guys thought of John Adams as a quasi-monarchist (to be fair, the Alien and Sedition Acts went a long way toward bearing that fear out - but at least those came through Congress); I can't really believe that they'd've thought John Yoo's unitary executive theory was convincing at its broadest interpretations.

In point of fact, a year or so back, Josh Marshall - a degree-bearing historian, I might add - offered a few thoughts about Thomas Jefferson's take on how an ethical executive might be forced to act in violation of settled law:

If memory serves, Thomas Jefferson -- when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.

Jefferson's argument, however, wasn't that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

As I recall Jefferson's argument there was never any thought that the president had the power to prevent future prosecutions of himself or those acting at his behest. Indeed, such a follow-on claim would explode whatever sense there is in Jefferson's argument.

If you see the logic of Jefferson's argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself -- subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson's argument was very much one of executive self-sacrifice rather than prerogative.

You'll note the difference in nuance between that and Vice President Cheney's contention that the military powers granted to the president in Article 2 can just magically bend back into the civilian sphere without any Congressional or popular oversight. [Just for a hoot, you can also spend a few lazy hours comparing President Jefferson's rhetoric during the first Barbary War with our current president's views from the post 9-11 world. Give yourself a pat on the back if you can successfully guess which one wrote "The freedom of opinion and the reasonable maintenance of it is not a crime and ought not to occasion injury."]

Anyway, Mr. Cheney and his clique argue that the powers, though always inherent in the presidency, are enjoying their current phone-tappin', kidnappin' expression as a result of purely situational phenomena - the existential turbulence popularly known as the War on Terror. Once we've dealt with the capacity of global Islamo-fascist political movements to take violent action, the exercise of domestic powers will go back to normal. As Kevin Drum notes, though, that represents a kind of transcendent view of wartime - and one whose parameters, as it currently stands, are defined purely by and at the whims of the executive branch. If the War on Terror covers surveillance of People for the Ethical Treatment of Animals, then there's no reason to expect it to end with the decline of military engagement in Afghanistan or Iraq - it becomes as much a psychological state as an effort to correct a discreet, immediate problem.

Now imagine if President Reagan or President Clinton had tried to tell the American public that the War on Drugs effectively empowered them to ditch Congress and to set aside those pre-existing laws they found inconvenient. How about LBJ's War on Poverty? Wars against abstractions can't be clearly won - and when they become excuses for people to arrogate significant power, you can bet that there are some serious disincentives to conceding effective victory and shutting down.

Maybe - and I don't mean this facetiously - you trust the Bush administration to do the right thing at the right time. But a big point of the American system of government is that we should never have to fall back purely on trust.

Vice President Cheney, and the president he serves, really shouldn't have to be reminded of it, either.

Ah, shit.

Remeber last Saturday's headline of the morning?

Apparently, it's no longer in effect.

Sunni and secular political parties angrily claimed Tuesday that last week's Iraqi national election was rigged, demanding a new vote and threatening to leave in shambles the delicate plan to bring Iraq's wary factions together in a new government.

Faced with preliminary vote counts that suggest a strong victory by the United Iraqi Alliance, a coalition of Shiite religious parties that dominates the outgoing government, political leaders of Iraq's Sunni Arab minority hinted that insurgent violence would be accelerated by the suspicions of fraud.

Juan Cole has some pretty specific thoughts on how the apportionment of seats in the next Iraqi government is likely to play out - again, you'll note that the fundamentalist Shi'ite slate is the one that comes up smiling.

These results suggest a very strong position for the United Iraqi Alliance. There were [59]* seats at issue in Baghdad province, the largest single lot. If the UIA got 35-40 of them, that is a huge victory. Add those 35 to the likely 70 or so the UIA got in the solidly Shiite provinces, and you have 105. Another 8 in Babil and it is 113. A similar number in Diyala and you'd have 121. Then they may get some of the reserved seats when the reapportionment is done. They will be very close to having the 138 it needs to form a government. They can certainly pick up a few small allies and do it, perhaps without needing either the Sunnis or the Kurds (though they will need an initial coalition to gain the 2/3s needed to elect a president to appoint the prime minister).

I'm afraid that this could come very close to being the worst case scenario for Iraqi stability; I've been worried about Sunni engagement in the government, but if the Shi'ite extremists also marginalize the Kurds, we might see the peshmurga pull up its stakes and start some on-the-ground support for an effectively autonomous (rather than mostly autonomous) Kurdistan in the north, and that could mean a mess somewhere between an irrevocable Iraqi civil war and an all-out regional meltdown - the Turks and Iranians really don't want a functioning Kurdistan in the neighborhood.

It really was nice to feel optimistic for a day or so, though.

Today's bulletin from Bushworld.

Sen. Russell Feingold (D-Wis.) raised the prospect of a special prosecutor investigation and said Gonzales would have to recuse himself. Sen. Barbara Boxer (D-Calif.) sent an inquiry to presidential scholars asking if they agree with John Dean, the White House counsel during Watergate, who she quoted as saying that Bush has admitted to an impeachable offense.

But Bush had a different investigation in mind. At his news conference, he said that although he had not issued an order, he presumed the Justice Department has opened an inquiry into who leaked the information about the NSA program. "It was a shameful act for someone to disclose this very important program in a time of war," he said. "The fact that we're discussing this program is helping the enemy."

You hear that, people? We can't demur when the president breaks the law, or the terrorists win! Won't somebody please think about the children?!

Seriously, I'm pretty sure that it wouldn't do the country a whole lot of good to undergo two impeachments in two successive presidencies - and that's a shame, because this one really has it coming. Torture, kidnappings, secret prisons, illegal domestic surveillance: this is a sustained attack on the American legal tradition, and deserves to be publicly judged as such.

But I guess that's what history is for.

Anyway, the quote came from this morning's Post, and you can find the full article here if you're registered and have the inclination. While you're under the Post's umbrella, you might also want to read the fascinating little story of how the FBI is using its expanded counterterrorism powers to keep watch over the ACLU.

Good times for America, huh?

Illegal music comment of the day.

American Idiot is, God help me, the most addictive Green Day album I've ever come across. Maybe not the most transgressive - in fact, at this point Billie Joe and the gang are probably this generation's kings of anthem rock, and that's by definition not terribly radical - but the songs burrow into your head, and they're just angry enough to feel legit.

But this isn't about that, exactly - it's about the Dean Gray mashup. The scandal is pretty well documented on the American Edit main page, and there's not much I can add to it other than "Warner Music is coming across as short-sighted and, collectively, really rather dickish."

In fact, consider it added.

What's causing me concern, though, is that I've now had "Boulevard of Broken Songs" on auto-repeat for something like three days. True, I don't have music on constantly when I'm working, but when the music is on, it's this. It turns out when you mix Green Day, Oasis, Travis, Aerosmith, and a voice-over from some female vocalist I don't recognize, you create the auditory equivalent of crack cocaine. It's got the sing-along factor of four pop standards, for God's sake!

Be careful with it, people.

Best. Paragraph. Ever.

Lawmakers have been caught by surprise by several recent reports, including the existence of secret U.S. prisons abroad, the CIA's detention overseas of innocent foreign nationals, and, last week, the discovery that the military has been engaged in domestic spying. After five years in which the GOP-controlled House and Senate undertook few investigations into the administration's activities, the legislative branch has begun to complain about being in the dark.

From the Washington Post.

Let's toss in a little more context from the same article, shall we?

Democrats on the [House Government Reform] committee said the panel issued 1,052 subpoenas to probe alleged misconduct by the Clinton administration and the Democratic Party between 1997 and 2002, at a cost of more than $35 million. By contrast, the committee under [Republican Representative Thomas M.] Davis has issued three subpoenas to the Bush administration, two to the Energy Department over nuclear waste disposal at Yucca Mountain, and one last week to the Defense Department over Katrina documents.

Too funny!

I cry bullshit!

You might've noticed that the White House is involved in a little stink over President Bush's authorization of warrant-free surveillance from the NSA. In point of fact, the revelation came at precisely the right time to complicate the re-authorization of sunset provisions of the Patriot Act (and, as an aside, I'm fascinated by what that little show of synchronicity might signify about the New York Times, which sat on the story for a year - and clearly consciously chose to release it when it did); a few Republican senators now seem to feel that they can't make the political case that the executive branch can be trusted to do the right thing with overly broad powers.

Good for them!

Well, the president stepped forward to make his default argument: that everything he's done has been good and necessary. A full transcript of his comments is available here, and from it I cull the bulk of his wiretapping message:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.

Yesterday, the existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have.

And the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country.

As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the Sept. 11 attacks. And the commission criticized our nation’s inability to uncover links between terrorists here at home and terrorists abroad.

Two of the terrorist hijackers who flew a jet in the Pentagon, Nawaf Alhazmi and Khalid al-Midhar, communicated while they were in the United States, to other members of Al Qaeda who were overseas. But we didn’t know they were here until it was too late.

The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.

The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time.

And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.

The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligment assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.

During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president.

I have reauthorized this program more than 30 times since the Sept. 11 attacks and I intend to do so for as long as our nation faces a continuing threat from Al Qaeda and related groups.

The N.S.A.’s activities under this authorization are thoroughly reviewed by the Justice Department and N.S.A.’s top legal officials, including N.S.A.’s general counsel and inspector general.

Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activities also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization.

This authorization is a vital tool in our war against the terrorists. It is critical to saving American lives. The American people expect me to do everything in my power under our laws and Constitution to protect them and their civil liberties. And that is exactly what I will continue to do so long as I’m the president of the United States.

At least he's direct, and I do believe he generally means what he's saying. Here. In this particular case.

But there are a lot of problems with it - starting, of course, with legality. The president's lawyers (perhaps most vocally, even after his tour on the public payroll, John Yoo) have long taken a very extreme position on the powers inherent in the executive branch, so it's no great surprise that they'd contend that . . . well, let's let the Times spell it out:

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Now, Senator Russ Feingold has apparently (I'm afraid I can't find the link) released a press briefing with a few tidbits about existing law:

* FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as provided for by statute. The only defense is for law government agents engaged in official duties conducting "surveillance authorized by and conducted pursuant to a search warrant or court order." [50 U.S.C. § 1809]

* Congress has specifically stated, in statute, that the criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]

The White House's premise, though, is that this is no longer in force because - pursuant to the powers the executive branch assumed in the commencement on the "war on terror" - the president has the power simply to deem these laws no longer in force. L'etat, c'est moi, and all that.

Unsurprisingly, there's at least one instance of a judge disagreeing - and, in fact, barring evidence obtained through these warrantless taps from her court. In most cases, though, the judiciary was apparently simply kept unaware - to the extent that members of the NSA were wrestling with the question of whether the fulfillment of their duties in the new regime required lying to the courts (I'm not sure if that necessarily rises to the bar of perjury, but it ain't good).

Seriously, it's pretty basic constitutional theory that the executive branch does not, in fact, have the power to summarily place itself above the reach of the other two - the ugly matter of President Clinton, Paula Jones, and the lawsuit that kept them together should still be lodged deeply enough in the nation's consciousness to emphasize that point. And, while telling select congressmen that the program is going on is all well and good, President Bush and his speechwriters are being wildly disingenuous in trying to pass that off as being equivalent to securing congressional approval - by which most people mean passage of actual law.

So, I think it's illegal. More importantly, a lot of senators think it's illegal. Hell, according to the Times, quite a few members of the NSA think it's illegal. In the one cited instance in which evidence gained by these methods was openly discussed in court, it was immediately excluded by the judge. Basically, its constitutional legitimacy - and therefore its utility in a lot of circumstances - seems just a little bit suspect. A lot. Why do it, then?

Well, the earliest argument was that it was necessary in order to promote immediate, massive responses to critical situations - getting a warrant would simply be impractical. Again, from the Times:

Some of those who object to the operation argue that is unnecessary. By getting warrants through the foreign intelligence court, the N.S.A. and F.B.I. could eavesdrop on people inside the United States who might be tied to terrorist groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence Surveillance Court is generally considered lower than that required for a criminal warrant - intelligence officials only have to show probable cause that someone may be "an agent of a foreign power," which includes international terrorist groups - and the secret court has turned down only a small number of requests over the years. In 2004, according to the Justice Department, 1,754 warrants were approved. And the Foreign Intelligence Surveillance Court can grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently, the officials said. Those involved in the program also said that the N.S.A.'s eavesdroppers might need to start monitoring large batches of numbers all at once, and that it would be impractical to seek permission from the Foreign Intelligence Surveillance Court first, according to the officials.

But.

Well, first, Josh Marshall's done some digging, and he reports that, since the institution of the Foreign Intelligence Surveillance Court in 1978, the "small number of requests" turned down has been four.

Total.

In twenty-seven years.

So we can probably assume that the burden for establishing due cause for legal surveillance is - let's speak softly - pretty low.

More, the Foreign Intelligence Surveillance Act was designed precisely to allow for emergency response, even providing for the issue of, yes, retroactive warrants. As for the inconvenience involved in securing large numbers of warrants - might I suggest the government hire more lawyers? I think the American people would be willing to pay.

Anyway, it just seems that this is another deal where - as much as anything - the intent was just to expand the powers of the executive branch. All the goals the White House names in its public argument are simply too hazy to credit.

The president - perhaps in honest frustration - also goes the extra mile in this speech and claims that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies and endangers our country."

If I may: cry me a river, sir.

There was never any question in my mind that the phone lines of suspected terrorist associates were being tapped. I suspect there was no question in anyone's mind - it's just common sense stuff. The big revelation here isn't that it's going on; it's that it's being conducted by the NSA without any serious oversight, just because the president says it's okay.

Making that public only benefits our enemies insofar as it makes the current occupants of the White House look like a bunch of arrogant jackasses - and, Mr. President, I might suggest that the proper response to that isn't to whine about having the curtain drawn back so all of Oz can see what you really look like, but to try harder to govern in a way that's consistent with the country's better legal and political traditions.

Headline of the morning!

"Sunni alliance hail Iraq election as success" - care of Reuters.

Man, I hate to get my hopes up - history teaches that that makes them more likely to get hit by lightning or sucked into jet engines - but I can't think of a more gratifying soundbite anyone could've printed.

. . .

"Ten out of ten strikingly attractive young women love the J.," perhaps. But it's a tossup!

Another good one from Bill Moyers.

Longish, but worth the read.

John Bolton: how's he doing?

I know, I know: the question has dominated your every waking moment! Well, don't you worry - Mark Leon Goldberg has the answer for you over at the American Prospect!

The short answer, for those that just can't wait? He's a disaster!

Okay, we all expected that. The real question was always whether the Secretary of State could control his behavior when push came to shove, and the evidence now supports a big, loud belch of a "No." Ms. Rice had a success in September, when she personally intervened in negotiations (feeding into the UN World Summit) to restore references to the Millennium Development Goals that Mr. Bolton had wanted excised from the program. Apart from that, though, her record has been more mixed.

Here's how our Secretary of State and UN Ambassador have worked together to address escalating tensions with Syria, for example.

Indeed, it was Rice, not Bolton, who achieved the one significant success of Bolton’s first 100 days at the United Nations: a unanimous October 30 Security Council vote requiring Syria to fully cooperate with a UN investigation into the suspected Syria-sponsored assassination of former Lebanese Prime Minister Rafik Hariri. The Prospect has learned that in the days and weeks leading up to the late October UN report on Hariri’s assassination, Rice sought to sideline Bolton from the negotiations over the Security Council resolution that the report inspired. She also made the State Department, not the U.S. Mission to the UN, the central address for discussions on the resolution.

One of the first signs that a bureaucratic battle was brewing between Bolton and Rice over Syria came on October 18, when the State Department press corps was shocked to find that Rice had unexpectedly flown to New York to meet Annan. A State Department spokesman explained that the two met to “compare notes” in advance of a widely anticipated report by Detlev Mehlis, the secretary-general’s special investigator for the Hariri assassination. Yet Bolton, the man in charge of the United States’ day-to-day operations at the UN, was conspicuously absent from that meeting. In what appears to have been less of an accident than a matter of intentional timing, Rice made her trip to New York on the very morning that Bolton had to be in Washington, testifying before the Senate on the progress (or lack thereof) of UN reforms.

The Prospect has further learned that, rather than forging Security Council strategy with America’s European allies at the UN building in New York, much of the diplomatic legwork has been carried out in Foggy Bottom. On October 22, a French delegation from the UN traveled to Washington for initial discussions on the Syria resolution (later called Security Council Resolution 1636), of which the French were the original authors. According to a diplomatic source, Bolton was not initially invited to that meeting. The French, however, insisted on his presence. So Bolton attended, but not without three chaperones: Assistant Secretary of State for Near Eastern Affairs David Welch, Welch’s deputy (and vice-presidential daughter) Elizabeth Cheney, and National Security Council Middle East chief Michael Doran. “It’s like they stuck a strong team from the [State Department and National Security Council] to watch him,” said the diplomat.

Despite Rice’s tight oversight of the resolution negotiations, the unanimity of the council was still in doubt one day before the Security Council meeting. Finally, in a last-minute lunch meeting with her foreign-minister counterparts from the veto-wielding permanent five Security Council members, Rice personally removed references to sanctions that had been inserted by the United States. With those obstacles to unanimous consent gone, Resolution 1636 passed 15 to 0.

Rice’s involvement came after Bolton had won round one in the Syria battle. Bolton and Rice’s bureaucratic tiffs over Syria had actually boiled over two weeks prior to the Security Council vote. Journalist Ibrahim Hamidi, writing in the Arabic-language newspaper Al-Hayat, reported -- and the Prospect has independently confirmed -- that Bolton had leaked to British newspapers that the Bush administration had signaled its willingness to offer Syria a “Libya-style deal” -- a reference to Libyan President Muammar Quaddafi’s decision last year to give up pursuing weapons of mass destruction and renounce terrorism in return for a restoration of relations with the United States and the United Kingdom. According to The Times of London, Syria responded positively to the secret U.S. offer, which was made through a third party. But after Bolton publicly aired the details of the potential deal -- which would require Syria to cooperate with the Mehlis investigation, end interference in Lebanese affairs and alleged interference in Iraqi affairs, and cease supporting militant groups like Hamas and Hezbollah—Damascus quickly denied that such a deal was in the offing.

Just to spell it out: the man sabotaged ongoing negotiations, leading to his (perhaps unwitting) exclusion from subsequent stages of deliberation, and when he was finally returned to the process in the process, it was against Ms. Rice's will and under the watchful eyes of three - three! - handlers.

You know what that says to me? That says professionalism, baby! That says, here's a man who cares so much about his job (that job being, in layman's terms, fucking up American diplomacy) that his superiors have to have him tethered! Oh, see how far a can-do attitude can take you?

The relationship was already in evidence in June, when Ms. Rice had to keep international policy discussions pertaining to Iranian nukes secret from Mr. Bolton.

Rice was playing hardball with Bolton, too. During the first Bush term, Bolton had effectively blocked U.S. support for a French, German, and British plan for confronting Tehran’s nuclear ambitions. Soon after Rice moved to Foggy Bottom, she sought to keep Bolton out of key policy discussions about Iran. In June, The Washington Post reported that Rice sought to keep secret from Bolton a meeting of French, British, German, and American officials who flew to Washington for a “brainstorming session on Iran.” Of the Iran meeting a European diplomat told the Post, “It was the American side that didn’t want him there.”

Our man at Turtle Bay, ladies and gentlemen!

But, wait, J.! you may be thinking, Condi caught him every time! Maybe it's good cop-bad cop! Maybe he's crazy in exactly the same way Mel Gibson was crazy in all those Lethal Weapon movies - and everybody knows Hollywood crazy gets results!

Okay, here's what happens when Condoleezza Rice loses the fight:

When he arrived at Turtle Bay, Bolton stepped into the middle of negotiations on the most extensive set of UN reforms since the world body’s founding 60 years ago. On the table was a wide-ranging set of reforms, most of which had been championed by the United States: replacing the discredited Human Rights Commission (notorious for including such beacons of freedom as Sudan) with a new and improved Human Rights Council; increasing administrative oversight in light of the oil-for-food scandal; creating a new “Peace Building Commission” to help with postconflict reconstruction; working toward a strong definition, and condemnation, of terrorism; and making a forceful statement on nuclear nonproliferation.

Bolton, however, has been unable to deliver on most of these reforms. When he submitted his 750 edits to the working draft of UN reforms two weeks after arriving, he had insisted on going line by line through the document as a way to maximize U.S. gains. But rather than bolstering the United States’ bargaining position, the approach largely backfired. It gave spoiler countries like Pakistan, Cuba, and Venezuela the opening they needed to pursue maximalist positions on their own pet issues, and allowed countries with less-than-stellar human-rights records to undermine America’s insistence that the new Human Rights Council must exclude countries under UN sanction.

To make matters worse, once the negotiations devolved into a painstaking process of debating each word of the document, spoiler countries were rewarded by striking temporary bargaining alliances on single issues, or sometimes even on single sentences. Again, this was largely to the detriment of U.S. interests. For example, when Bolton tried to purge the section concerning nonproliferation of any mention of disarmament, the alliance of Israel, India, and Pakistan -- nuclear powers that are not parties to the Treaty on the Non-proliferation of Nuclear Weapons -- retorted by introducing language emphasizing disarmament and deleted references to the non-proliferation treaty. “We could not get back the balance between nonproliferation and disarmament [from earlier drafts],” a European diplomat told Jim Wurst of the Global Security Newswire. Eventually the entire section was scrapped. By the time heads of state signed on to reforms, the document contained not a single word on nuclear nonproliferation, and had even lost its pledge to keep weapons of mass destruction out of the hands of terrorists.

Could there be more? Why, yes!

By December, a looming crisis over the UN budget was testing Bolton and Rice’s relationship once again. At the time of this writing, the United Nations was in chaos. Kofi Annan had just canceled a trip to Asia to oversee negotiations over the UN’s biennium budget, which was being derailed by an American threat to withhold support for the UN’s two-year operating budget until a number of management reforms are passed. With a December 31 deadline looming, Bolton proposed that the world body adopt a three- or four-month interim budget -- just enough time to force other member states to accept the reforms.

These reforms are backed by Europe, Canada, Australia, New Zealand, Japan, and the secretary-general himself. Yet Bolton’s strong-arm tactics led their representatives to warn that his proposal would starve the United Nations and disrupt other important UN business like peacekeeping operations.

. . .

Bolton achieved this feat just a few short weeks before the December 31 deadline by threatening to withhold U.S. support for the UN’s $3.9 billion budget. Since the 1980s, the UN’s biennial budget has been adopted by consensus, a system encouraged by none other than the Reagan administration to ensure that poor countries could not frivolously increase the budget, the bulk of which is paid for by a handful of wealthy nations. Now that fear has been reversed: The UN’s largest contributor is threatening to use the consensus process to block the UN’s budget. Bolton has argued against passing the new biennial budget which begins January 6, without implementing management reforms that are generally opposed by the G-77 bloc of developing countries and favored by Annan and the Western world. Instead, he proposed an interim budget that would last a few months, during which time he would be able to push through the managerial reforms.

The reforms that Bolton advocates are badly needed; they would at once streamline the UN’s ossified bureaucracy and expand the office of the secretary-general to ensure greater accountability and oversight on the part of UN programs. Bolton, however, is alone in the view that the budget need be delayed until these reforms are passed. Annan and his staff forcefully oppose any budgetary postponement—as does virtually every other UN member state. On November 30, The New York Times reported that Warren Sach, assistant secretary-general and controller of the UN, said that Bolton’s interim budget would give the UN a deficit of $320 million in the first quarter of 2006. Among the options to close the deficit is taking money from the separate peacekeeping budget. “This place does not run on air,” he lamented. Should an interim budget be adopted, the United Nations would have to significantly curtail expenditures for the first quarter.

Bolton’s budget proposal was also the subject of a rare public dispute between the United States and one of its closest allies at the UN. On November 23, Britain’s habitually soft-spoken UN ambassador, Emyr Jones Parry, openly rebuffed Bolton’s overture to have Britain join him in opposing the budget. “We are not in favor of holding any individual items or the budget hostage to other issues,” he announced. Echoing his concern was the UN’s second-largest financial contributor and staunch advocate of managerial reforms, Japan, which contributes 19 percent of the total UN operating budget. Not to worry: As one South American diplomat dryly ridicules, “[Bolton] can probably still bring along his usual allies—Palau and the Marshall Islands.”

And, for the record, the word on the street is that Ms. Rice isn't happy.

The rumor mill at the Vienna Café has suggested that Bolton must have bypassed Rice and received support for holding the UN budget hostage from the president himself -- a view widely held as the truth among UN diplomats. Regardless of the accuracy of this rumor, Bolton’s move is paradigmatic of his self-defeating approach to the UN: Instead of banding together with powerful allies, he alienates them. And in doing so he empowers adversaries like Iran, Venezuela, Cuba, and other spoilers content with a UN that is tied in knots. Critics feared that Bolton’s tenure would be problematic for American interests. The evidence suggests it’s been even worse.

This brings us to the original, awful question behind Mr. Bolton's interim appointment: does the White House want to have a maniac throwing procedural bombs right and left in the midst of its diplomacy apparatus? Do the major players want the UN crippled?

Maybe, maybe not. Either way, it's painfully clear that the president and his relevant advisors value a show of executive infallability - Congress wouldn't confirm the guy, so now he has to get the job, or we look weak! - above the prospect of actually having an agent in that office that could get positive things done.

I never thought I'd write this, but my heart goes out to Condoleezza Rice. Until the interim term expires, she's got a lot of work ahead of her that shouldn't be necessary.

The Wrath of the Comforting Cloud of Disbelief.

Congress deserves a pat on the back today for facing down the Bush administration and passing John McCain's unconditional ban on torture, right? Not exactly. Alongside McCain's legislation sits another amendment that undercuts the ban by allowing for the legal use of testimony obtained by torture. If enacted, that provision will move the United States away from standing behind a clear legal and moral principle and into the murk of hedges and exception-making—achieving exactly what McCain's bill is supposed to avoid.

Sigh.

This comes care of Slate, if you care to read more.

Meanwhile, please note - with Andrew Sullivan's kind assistance - that the Brits just took a higher road.

Just when I was in danger of seeming upbeat . . .

Congress comes along and helps me restore my comforting cloud of disbelief.

Congressional Republicans made progress on twin tracks Wednesday toward their end-of-year budget goals, passing a bill freezing or cutting back spending on medical research and education and nearing agreement on cuts to the Medicaid health care program for the poor.

The first measure, a $602 billion bill funding a wide variety of health, education and labor programs, passed the House on a 215-213 vote. It would cut federal aid to education for the first time in a decade, and spread about $1.4 billion in cuts across the departments of Labor, Health and Human Services, and Education.

Whew! Glad to see we may be coming a little bit closer to putting children, the sick and the poor in their place! Now I bet that fourth tax cut is a lock!

Man, if the Democrats can't get at least one chamber of Congress back next year, somebody's going to owe the public some good, old-fashioned seppuku.

A surprisingly good day!

Okay, if you live in the DC metro area, it's actually a day of dark, low skies, slush, and crazy drivers - but the world at large may've just done itself some favors. Something like eleven million people are thought to've gotten out for the vote in Iraq, with only limited violence (that's what we call thirty-five distinct attacks these days) to cast a pall; best of all, the Sunnis apparently went to the polls in real numbers. Sure, there's still the fear that Iraq will end up with a government that's weak, corrupt, or hostile to the interests of a major subset of its citizenry - and any of that could have terrible consequences for the security situation - but we're seeing widespread acceptance of the political process, and that's really a sine qua non for any stable nation that could one day emerge from the rubble and the terror. Add to that the fact that the Bush administration has finally conceded that the DoD isn't better suited to try to build a civil society than the State Department (though, sure, this could just reflect the relative influence of Condoleezza Rice over Don Rumsfeld), and there might actually be room for just the thinnest strand of hope.

At the very least, it looks like the best few days Iraq has had for a long while.

Back on the home front, John McCain's anti-torture amendment finally picked up the qualified support of the White House, though Congress has apparently given in far enough to our vice president's growling and hissing to allow CIA agents to mount "But I thought it was legal!" as a legitimate defense. Plus, of course, there are still Republicans in opposition, and Rep. Duncan Hunter is threatening to scuttle the whole thing as it currently stands. Still, this represents - if only in rhetorical terms - a serious erosion of the administration's "We can do what we want to whomever we want!" policy, and should be set on a pedestal and adored as such. I just wish there was a way to keep the White House from shouting that this proves that America's the most noble damn country on Earth, rather than acknowledging that the fact that the provision was needed at all is a huge disgrace.

Ah, well. We take what we can get, and hope they don't jigger the Army manual to suck all the gains away.

Then, of course, there's the news that promised federal aid to New Orleans has just come pretty close to doubling - or, at least, the president has put a request along those lines before Congress (which I'd hope wouldn't be inclined to argue). Maybe the levees will actually have a chance when the next hurricane season roars around.

So, yeah: good day. Shame about all the freezing rain.

Ooh! Brilliant colors, lost world!

Oh, thank you, New York Times - something to get excited about!

Archaeologists reported yesterday that they had uncovered a masterpiece of Maya art showing a surprisingly early flowering of the civilization, well before the classical period that began after A.D. 250.

The find, a 30-by-3-foot mural in vivid colors depicting the ancient culture's mythology of creation and kingship, is the centerpiece of a larger mural, parts of which were first discovered and exposed in Guatemala four years ago. New radiocarbon tests revealed the painting to be 200 years older than originally estimated, dating to about 100 B.C.

"In Western terms," said William Saturno, an archaeologist at the University of New Hampshire who is a research associate at Harvard, "it's like knowing only modern art and then stumbling on a Michelangelo or a Leonardo."

And what do we make of this?

Torture - it's like eating a giant tub of hot, buttered popcorn. Once you get that first taste, you know you're just not going to stop until all of your illegal detainees have been violated in terrible and intimate ways!

Actually, I'm jumping the gun - but the latest twist in the story seems unsettling at first glance. Apparently the Army has just put together some actual guidelines on interrogation - long overdue, you might think - and then you discover that the first thought of an awful lot of people in the know is that these guidelines might as well have been specifically intended to piss off John McCain.

The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday.

The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said.

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

Some military officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when Mr. McCain, Republican of Arizona, is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners.

In a high-level meeting at the Pentagon on Tuesday, some Army and other Pentagon officials raised concerns that Mr. McCain would be furious at what could appear to be a back-door effort to circumvent his intentions.

"This is a stick in McCain's eye," one official said. "It goes right up to the edge. He's not going to be comfortable with this."

The story (from the New York Times) doesn't say too much about the document itself - its contents are sealed, lest any potential detainees get tipped off to whatever Soviet will-breaking tactic we're adopting this week - but when the thrust of the piece is that the figurehead of the anti-torture campaign is going to be enraged by the methods the Army is out to codify, I've got to worry that there's enough smoke to promise fire.

Watch the papers tomorrow/later today for the next strange installment . . . .

The ride of Johnny Mangaseed!

Okay, it's a trivial point, but I was happy to come across an article saying the Japanese are helping Vietnam kick up a domestic comic book industry. Not a lot of details here - it's documenting the aftermath of a seminar in Ho Chi Minh City as much as anything else - but my inner dork demands I flag it.

A couple of quick comments.

Blogging has been light for the past couple of days, and may continue to be so a little bit longer - apologies to anyone who checks regularly, but I've got a couple of other efforts hovering at the foreground at the moment. [And that's with the sorry pretense that I'm ready for Christmas.]

Still, the world hasn't stopped hurling itself violently through space just because I'm not at my pithy best; there's plenty of news out there that deserves thoughtful accounting or snarky reference! Looming most large is the coming election in Iraq (or, as crazed but enterprising insurgents call it, the coming Satanic project) - and the best thing I can do for you there, even if I'm back warming my keyboard full-time when Thursday hits, is to point you to Juan Cole's blog. Professor Cole is paying closer attention than anyone else I read, and he's not afraid to show some links.

For my own part - well, I wouldn't call my mood optimistic, but I'm fairly comfortable in saying that the election could help things, and is very unlikely to make them worse - barring massive fraud or critical assassinations, anyway. At this stage, I don't know if the Sunnis can get a government they'll trust (the other side of the coin is that I'm fairly hopeful for the Shi'ites and Kurds), but Lord knows they don't have one now. So I note with satisfaction Sunni plans to participate more fully this time around, and here's hoping everyone does better for it.

As for our own embattled democratic republic - ahhh, the Supremes have just announced that they'll review Texas's most recent adventures in redistricting, and that makes me smile. [My good mood is somewhat dampened by the knowledge that the Bush administration has chosen to pre-emptively beat back any further scandals wherein political appointees are caught overruling the Justice Department's lawyers on voters' rights matters by blocking Justice Department lawyers from issuing relevant opinions at all. More disdain for professional expertise from the people who brought us hurricane management, my friends.]

One final note: time stamps at the ends of these posts are now . . . well, if not accurate, then at least reasonably loyal to my computer's own clock. Sure, I went a few days without bothering to investigate the "Post and Comment Options" at the bottom of the composition window, but that's because I was too busy thinking rare and elegant thoughts - thoughts that needed to be blogged!

Plus, I'm a twit.

The United States has secret laws.

No, seriously. I'm not just being poetic.

Former Rep. Helen Chenoweth-Hage, R-Idaho, experienced the existential horror of being governed by secret laws last month while attempting to board a United Airlines flight from Boise to Reno. When pulled aside by security guards from the Transportation Security Administration for additional screening, including a physical pat-down, Chenoweth-Hage requested a copy of the federal regulation authorizing such searches. Her request was denied.

"She said she wanted to see the regulation that required the additional procedure for secondary screening and she was told she couldn't see it," local TSA Security Director Julian Gonzales told the Idaho Statesman.

Chenoweth-Hage said that if she couldn't see the regulation, she wouldn't submit to the pat-down. If you don't allow us to search you, you can't fly, they responded. And so she didn't, getting into her car and driving to Reno instead.

A case can be made that airline security would suffer if the criteria used for screening passengers were to be revealed. Such a disclosure would make it easier to circumvent passenger screenings. But Chenoweth-Hage wasn't asking for such details, only for the legal authorization for pat-downs. Why couldn't they at least let her see that? asked Statesman correspondent Dan Popkey.

"Because we don't have to," replied TSA doorkeeper Gonzales.

"That is called 'sensitive security information.' She's not allowed to see it, nor is anyone else," he said.

How did we come to such a pass?

Unlike most forms of classified national security information, which are based in executive order, the concept of "sensitive security information" originated in a 1974 statute, the Air Transportation Safety Act. The intent of SSI was to prohibit disclosure of several categories of information, including information "detrimental to the safety of persons traveling in air transportation." As initially implemented, SSI was applied rather narrowly to the nuts and bolts of airport and airline security programs. Theoretically, an unlimited number of SSIs can be promulgated—as long as they fit the broad definition set down by law. As official secrets go, SSIs are fairly tame. Several government employees have been fired or forced to resign for making unauthorized disclosures of SSIs, but it's not a crime.

But a little-noticed passage in the Homeland Security Act of 2002 expanded the scope of SSIs to prohibit disclosure of information that "would be detrimental to the security of transportation." This change in wording ushered in an expansive new interpretation of SSI. A May 2004 Federal Register notice spelled out 16 categories of information that may now be designated as SSI. These include not only airport security plans (as before) and threat assessments, but also records of security inspections and investigations, names of security personnel, and training materials. More problematically, "security directives" such as the one that Chenoweth-Hage requested are exempt. And for good measure, the 16th category is a catch-all exemption for "other information" that TSA may at its discretion determine should be withheld.

"By removing any reference to persons or passengers, Congress has significantly broadened the scope of the SSI authority," wrote Congressional Research Service analyst Todd B. Tatelman in a new report. "As a result, it appears that the authority to classify information as SSI now encompasses all transportation-related activities including air and maritime cargo, trucking and freight transport, and pipelines." This latent authority could be used to expand the current secrecy regime into other areas of transportation and national infrastructure. Already, "the number and scope of [security directives]" designated as SSI "has markedly increased" since Sept. 11, 2001, as noted by an internal TSA memo.

The TSA, which is now part of the Department of Homeland Security, has deployed its new secrecy authority with gusto. The TSA signed a security agreement with the Des Moines, Iowa, police department last year as a condition for the city receiving federal financial assistance for airport security.

"If I hadn't seen this contract I wouldn't have believed it could happen in America," Police Chief William McCarthy told the Des Moines Register. Its non-disclosure requirements were so stringent that it might have prevented officers from "reporting the arrest of a drunk at the airport" without first consulting TSA, he said. Similar agreements have been signed with police departments in other cities around the country.

Following the intervention of Sen. Chuck Grassley, R-Iowa, and Tom Harkin, D-Iowa, TSA Administrator James Loy reportedly "clarified" that the agreement was merely intended to ensure that the federal government was directly notified of security incidents at airports "rather than learning of events through the press." Although police initially believed that the agreement itself was secret, TSA eventually advised that only an appendix on airport security needed to be withheld.

Meanwhile, say some internal critics, SSI authority has already been used as a cudgel to impose security discipline and rein in dissent.

After MSNBC reported last year the TSA's decision to remove federal air marshals from certain long-distance flights to economize, TSA launched a probe to identify who had revealed such sensitive security information to the media. A new Department of Homeland Security inspector general report noted that "air marshals from two locations said that they were threatened with arrest and prosecution if they were found to have released sensitive security information (SSI), even though release of SSI is not a prosecutable offense."

Software designer John Gilmore ran afoul of another SSI directive in 2002 after refusing to present a photo identification before boarding a flight. Gilmore has challenged the constitutionality of this practice with a lawsuit. Citing security concerns, the government says the case cannot be argued in open court. In his suit, he claims he was told that there were "security directives that mandated the showing of ID, but that he couldn't see them." The directives, he learned, "are revised as often as weekly, and are transmitted orally rather than in writing. To make things even more confusing, these orally transmitted secret rules change depending on the airport."

Responding to a different lawsuit brought by the ACLU of Northern California contesting the administration of the so-called "no fly" list, U.S. District Judge Charles R. Breyer agreed that some SSIs go too far.

"The Court's preliminary review of the voluminous material demonstrates that in many instances the government has not come close to meeting its burden [to justify withholding], and, in some instances, has made frivolous claims of exemption," Breyer wrote in a June 2004 opinion. "General statements that, for example, the information is sensitive security information, are inadequate to satisfy the government's burden."

Although some of the contested material in that proceeding has now been disclosed, the government seeks dismissal of the larger case.

Despite some hopeful signs of resistance from feisty individuals and the occasional judge, the challenges posed by SSI are likely to continue and to grow. The root of the problem lies in the very definition of the term. Instead of articulating reviewable criteria for designating information as "sensitive," Congress said in effect that SSI is whatever the TSA says it is. This momentous transfer of authority to the executive branch won't be remedied until Congress recovers its appetite for oversight and accountability.

That's from Slate, and I have to admit that it's pretty close to the whole article - I'm pushing fair use to the bleeding limit, `cause that's just the kind of guy I am! Meanwhile, there's more on the Gilmore case over at CNET. It's worth reading just for the bluntness of the final paragraph.

The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

Just takes your breath away, doesn't it?

Expect the worst and you'll never go wrong.

So, Team Bush has walked out on the climate change talks.

Two weeks of treaty talks on global warming neared an end today with the world's current and projected leaders in emissions of greenhouse gases, the United States and China, still refusing to take any mandatory steps to avoid dangerous climate change.

The Bush administration was sharply criticized by environmental groups for walking out of a round of informal discussions shortly after midnight that were aimed at finding new ways of curbing gases beyond steps taken so far.

The walkout was widely seen here as the capstone of two weeks of American efforts to prevent any fresh initiatives from being discussed.

This, from the New York Times. It shouldn't come as a huge surprise, what with Team Bush being what it is - reckless, lazy, and gleefully devoted to the most reactionary instincts of our energy interests.

But it actually gets better - by which I mean more appalling.

Bush-administration officials privately threatened organizers of the U.N. Climate Change Conference, telling them that any chance there might’ve been for the United States to sign on to the Kyoto global-warming protocol would be scuttled if they allowed Bill Clinton to speak at the gathering today in Montreal, according to a source involved with the negotiations who spoke to New York Magazine on condition of anonymity.

Bush officials informed organizers of their intention to pull out of the new Kyoto deal late Thursday afternoon, soon after news leaked that Clinton was scheduled to speak, the source said.

My God, the pettiness of it! This country's being run by sixth graders - stupid sixth graders.

Three more years. Three long, destructive years.

Another darn torture story.

They just keep piling up, don't they?

Although Bush administration officials have denied that they transfer terrorism suspects to countries where they are likely to be abused, a classified memorandum described in a court case indicates that the Pentagon has considered sending a captured militant abroad to be interrogated under threat of torture.

The classified memo is summarized — its actual contents are blacked out — in a petition filed by attorneys for Majid Mahmud Abdu Ahmad, a detainee held by the Pentagon at its Guantanamo Bay, Cuba, facility.

The March 17, 2004, Defense Department memo indicated that American officials were frustrated in trying to obtain information from Ahmad, according to the description of the classified memo in the court petition. The officials suggested sending Ahmad to an unspecified foreign country that employed torture in order to increase chances of extracting information from him, according to the petition's description of the memo.

The precise contents of the Pentagon memo on Ahmad were not revealed, but the memo was described in the petition by New York attorney Marc D. Falkoff, who contested the transfer of Ahmad and 12 other Yemenis in U.S. District Court in Washington this year.

Falkoff's description was not disputed by U.S. government lawyers or by U.S. District Judge Rosemary M. Collyer, who read the actual Pentagon document. The judge ruled in favor of the Yemenis on March 12, and Ahmad has not been transferred from the Guantanamo Bay detention facility.

The memo appears to call into question repeated assertions by the administration that it does not use foreign governments to abuse suspected militants — what critics call "torture by proxy."

No, we'd never, ever, ever do that, except insofar as we do. Thank you, Department of Defense.

The full article, written by Ken Silverstein, is up at the LA Times, but I'm afraid it's subscription-only. Follow the link at your peril.

But . . . why?

Bad news, Pooh-lovers. Disney doesn't like Christopher Robin's Q-ratings.

“There’s only one thing to be done,” said the executives at Disney, and replaced him with a six-year-old girl.

Among the frantic merchandising activities laid on to mark the 80th anniversary of Hundred Acre Wood, Disney has commissioned an animated series My Friends Tigger and Pooh.

The Bear of Very Little Brain will be more active and the characters first rendered by Ernest Shepherd will appear in 3-D computer animation in brighter colours.

But what is most likely to anger longtime Milne devotees is the arrival of the “tomboyish girl” in the role usually played by Christopher Robin.

“We got raised eyebrows, even in-house, but the feeling was that these timeless characters really needed a breath of fresh air that only the introduction of someone new could provide,” Nancy Kanter, of the Disney Channel, told USA Today.

Sigh.

More here.

By the way.

As mentioned in the last post, the White House was given reason to believe that the forced testimony of Ibn al-Sheikh al-Libi was suspect as early as February, 2002. By March of 2004, we now know that the CIA had formally rejected the intelligence derived from his interrogations - the very intelligence that supported allegations of ties between Saddam Hussein's ugly little tyranny and al-Qaeda. Okay? Okay.

So, just for laughs, here's this - from June 18, 2004.

Vice President Dick Cheney said Thursday the evidence is "overwhelming" that al Qaeda had a relationship with Saddam Hussein's regime in Iraq, and he said media reports suggesting that the 9/11 commission has reached a contradictory conclusion were "irresponsible."

"There clearly was a relationship. It's been testified to. The evidence is overwhelming," Cheney said in an interview with CNBC's "Capitol Report."

"It goes back to the early '90s. It involves a whole series of contacts, high-level contacts with Osama bin Laden and Iraqi intelligence officials."

"The press, with all due respect, (is) often times lazy, often times simply reports what somebody else in the press said without doing their homework."

Three days earlier, President Bush had argued that Abu Musab al-Zarqawi was himself demonstrable proof of Saddam's ties with al-Qaeda, but that particular round of grasping at straws doesn't have much to do with what the Egyptians wrung out of Mr. Libi, so I'll give it half a pass.

Knowing what we now know, it's hard to make Mr. Cheney look both honest and in his right mind on this one, though.

Torture yields lies.

It's also repugnant, of course, but let's set that aside for just a little while: here's another look at actual results, care of the New York Times.

The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.

The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.

The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.

Now, I'm sure the Bush administration would've been trying to conflate Iraq and al-Qaeda even without Mr. Libi's testimony - they moved merrily along with the game even though his account was considered suspect as early as February, 2002. Hell, just this week Vice President Cheney was out there alluding to links between the current Iraqi insurgency and September 11:

Some have suggested by liberating Iraq from Saddam Hussein we simply stirred up a hornet's nest. They overlook a fundamental fact: We were not in Iraq in September 2001 and the terrorists hit us anyway.

The man just loves his half-assed, manipulative conspiracy theories!

But it's certainly fair to say that taking Mr. Libi to the Egyptians for freestyle body-centric breaking-and-entering doesn't seem to have gotten us information that anyone would call trustworthy today. I'm not arguing that the man was an innocent, but the only way you could say his treatment did us any good is if you believe that American public opinion really needed to be won over with falsehoods.

The current mob in the White House may believe that, but I think most of us - regardless of our feelings about the war - would disagree.

And did I mention that torture was repugnant?

More in bad faith from our man at Turtle Bay.

You may've caught the little story in yesterday's Washington Post - Louise Arbour, the high commissioner for human rights at the United Nations and a retired Canadian Supreme Court justice, spoke out on Human Rights Day (or, as we call it in this part of the world, Wednesday) against the damage done by the War on Terror to international norms. Basically, she said torture is bad, and yet it seems to be losing its stigma.

John Bolton, of course, popped a gasket. The US doesn't torture, he says - and, anyway, it's none of the UN's business. Ms. Arbour, as a mere "international civil servant," should go after Zimbabwe, and leave the big boys alone.

Well, I'm all for going after Zimbabwe and its ilk for human rights abuses, but the rest of it is bullshit. Andrew Sullivan says more on the matter, all in one easy-to-read paragraph.

Good news, way overdue.

A relatively minor thing, but . . .

The Red Cross and Red Crescent movements on Wednesday gained an additional emblem that paves the way for Israel to join the global relief network after nearly six decades of exclusion.

The 192 signatories of the Geneva Conventions approved the new "red crystal" emblem - a diamond-shaped red crystal on a white background - into which the Red Star of David of the Israeli relief agency Magen David Adom (MDA) can be placed.

More on the story here, if you're interested.

Let's talk a little about frontiers.

For anyone who doesn't know me: I write fiction on the side. I try to, anyway. It's been years since I've put together anything with a coherent beginning, middle and end that's more than five or ten pages long.

I'm not proud of it, but there you go.

Somehow, I've found myself at a point in my life where most of what I read is non-fiction (currently, Thomas Cahill's Sailing the Wine-Dark Sea), but deep in my heart I really want nothing more than to find some new line of turbulent and exotic fantasy - something with the atmospherics of good travel-writing, the speed of Raiders of the Lost Ark, and the loyalty to its own characters to feel like something other than a retread of what Anne McCaffrey or George Lucas showed me when I was ten. Madeleine L'Engel did it, William Gibson did it, Steven King did it, Hermann Hesse did it in his own deep way (Magister Ludi is a success on an awful lot of levels, and dreamy exoticism is one of them), China Mieville and Garth Nix have come enticingly close - but I want more good stuff, and, obviously, I'd like to pull it off myself. Doesn't have to be on the same scale Hesse managed.

Or close.

But I don't particularly want to take the long time ago, galaxy far away route - I even have reservations about sending John Carter to Mars. So, what are the complications to doing weird adventure fiction in contemporary settings?

Right now, let's come back to frontiers, and the lack thereof. Now, I'm not necessarily talking about the mythical American West - a fringe between the known and the unknown; I mean instead a kind of psychological space where the formal conventions of law either are militarized, and don't primarily serve to protect peace, or are so feebly enforced and/or structurally corrupt as to be ineffectual or completely contrary to right action. The original Star Wars trilogy finds it in stylized, bloodless revolution; Huckleberry Finn finds it in movement along a river; for the ancient Greeks, it might as well have been everyday life in a world run by lustful and arbitrary gods. For noir PIs, attendants of the law tend just to be characters (often antagonists) with political weapons - so, again, everywhere is a frontier; comic book superheroes tend to spend a lot of time standing on rooftops, visibly a step abstracted from the streetside world - and, of course, there's now sixty-seven years of precedent to establish that supervillains are outside the purview of fictional conventional law enforcement. The Three Musketeers were . . . well . . . swashbucklers.

Too much blather? The point is that protagonists typically aren't seen as being childishly irresponsible in failing to turn their problems over to the cops.

So here's my hypothetical question: how do you write a satisfying contemporary adventure if you don't expect your protagonists to be (at least at the outset) either policemen or criminals? What's an effective way to establish in a beat that heroic action is justified - to move the effective psychological context over to that damn frontier? [Let's assume for the moment that we're talking about a runaround shootemup, rather than a story where conflict doesn't involve violence or transgressions against private property; I'm thinkin' those situations tend to have parallel problems, where it's the protagonists' expertise relative to the problem that needs to be established in order to justify their involvement - but one good thing about pulpy adventure hoohah is that the question of character involvement tends to boil down to sweet, streamlined necessity.]

Well, there's higher knowledge, for one thing. The characters know more than the authorities, and are therefore uniquely situated to act. Having a particularly aggressive villain is probably a corollary to that, in a way: the protagonists, on the defensive, are possessed of the unique and specialized knowledge that they're screwed if they stay still. There's the higher calling - the idea that the course of action the character follows is the result of obsession or duty or something else so integral to the individual (and so easy for the audience to buy into) that turning the challenges over to the grownups would amount to a less proper action than going forward on one's own.

And, of course, there's war - nothing "higher" there. Still, the idea is that conflict is itself the sanctioned status quo, and that individual initiative is automatically encouraged by the situation. Snap! [That said, setting a story in Iraq or Afghanistan kinda sits badly with me; I'd hate to trivialize the hell that real people are going through by tossing in robot ninja dancing girls or the like.]

Is one better than the others? Obviously not, though certain kinds of stories lend themselves better to one approach than another: you might want to look at a "higher calling" if you intend to have your characters be proactive, rather than foils for murderers, tyrants, and wildly ambitious antagonists of more subtle shading.

I'd say more, but I should go feed cats.