SHAME! SHAME!

The Senate has rejected Arlen Specter's amendment to the detainee mistreatment bill. The amendment would have removed the provision stripping courts of the jurisdiction to hear habeus corpus claims from detainees. The vote was 48 for and 51 against. Four Republicans, Specter, Chafee (involved in a tight race in deep blue Rhode Island), Smith of Oregon (a mild surprise)and Sununu of New Hampshire (less of a surprise than you might think) voted for the amendment. One Democrat, Nelson of Nebraska--the most conservative (whatever that means these days) Democrat in the Senate--voted with the torturers. Susan Collins (R. ME), Lindsay Graham (R. SC), John McCain (R. AZ) and Richard Lugar (D, IN), all supposedly respectable or reasonable Republicans, voted to keep the obviously unconstitutional provision in the bill. Olympia Snowe, of Maine, who's up for re-election (though apparently not in danger) absented herself.

Remember that the habeus provision was not the only evil part of this bill, as The New York Times mentioned today.

More shame for every American, even those of us who have fought against these outrages.

A DARK DAY

Two of them, actually: the House passed the Military Commissions Act today, and the Senate seems certain to go along tomorrow. This is the bill which, in addition to immunizing CIA and military interrogators from prosecution for past outrages, attempts to prevent detainees from using the ancient writ of habeus corpus to challenge their detention.

Arlen Specter is actually showing some backbone by offering an amendment that would eliminate the provision denying habeus corpus, but it is said that he will fail--perhaps it has been arranged for the amendment to fail. Dark indeed.

(If all of the Democrats voted for Specter's amendment, along with him and Lincoln Chafee--locked in a tight race for his Senate seat in very blue Rhode Island--only four other Republicans would have to stand up for the Constitution. Graham? Hagel? Lugar? Snowe? Collins? McCain? Where are they?)

For an idea of what this law would mean, read this superb article by Sabin Willett, a Boston lawyer, in today's Boston Globe. (Your editor reads the op-ed pages almost every day. He's had articles published in some of America's best newspapers. This maybe the best op-ed piece he's ever read.)

I have a vision of some Democrat (Russ Feingold?) standing up to pull a Mr.-Smith-Goes-to-Washington moment, holding the fort and, perhaps, just perhaps, getting the public's attention. But those things only happen in movies, right?

Reams have been written about this, but let me make just a few points: Habeus Corpus is known as The Great Writ, because it is at the core of our legal system. The ability of a person held by the sovereign to force disclosure of the evidence against him is essential to any fair system of justice. The Constitution permits suspension of habeus corpus in only two instances: invasion or rebellion. It seems safe to assert that neither obtains today. The administration and its allies, in typically craven calculation, are not literally revoking the right of habeus corpus. Instead, they purport to strip the federal courts of jurisdiction to hear claims involving the writ when brought by detainees. It does not take a great legal scholar to think that the courts can recognize when Congress and the President attempt to avoid the unconstitutional nature of a deed through subterfuge. So, not only are Congress and the President about to pass a patently unconstitutional law, they are precipitating a constitutional crisis in the bargain.

A friend of mine says that this is "the day the city on the hill burned and no one called the fire department." Too true.

Return of the Bourbons

I think it was Talleyrand who said that the Bourbons of France had "learned nothing and forgotten nothing." The Bush administration is showing its Eighteenth-Century mindset (remember, that was the age when the "divine right of kings" was in fashion, at least with some people): Once again, the White House has blocked publication of a report on the evils of global warming. The report in question suggests that warming contributes to the frequency and strength of hurricanes.

Having learned nothing, the White House will, once again, be surprised to find out that suppressing the report is the best way to make sure that it is highly publicized.

Good News (Sort of)

The AP reports that passage of a bill whitewashing Bush's warrantless wiretapping program is not going to pass before the end of the Congressional session this week.

The respite could prove short-lived, however. If Republicans retain control of Congress in November, they will surely ram the bill through immediately after the election. If Democrats win one or (it could happen) both houses, expect a lame-duck Republican Congress to try its damnedest to get the warrantless-wiretapping and other egregious ideas enacted before the new Congress takes over in January.

Craaack

That noise you hear from the South is the roof falling in on Sen. George "Macaca Man" Allen. Dogged by his ridicule of a campaign worker for Democrat Jim Webb, which led to the four-handkerchief revelation of his mother's Jewishness, Allen has now been accused by two men of using "racial slurs" (as The New York Times delicately puts it) in the 1970's and '80's. The two accusers are an anthropologist and an anesthesiologist and both are white, so their reports have some built-in credibility. They also supply telling details.

Although Allen has denied using the N-word, none of this should come as a surprise. It has long been known that the Senator had a Confederate flag in his law office, as well as a noose (some have described claimed it to have been a lariat, but apart the difference is clear as day).

The Times' headline and lead actually plays down the seriousness of the latest revelation. The body of the story contains this passage:

"Mr. Shelton, a radiologist now living in North Carolina, said that on a hunting trip Mr. Allen had sought out the home of an African-American and affixed the head of a dead deer to the mailbox. He also said Mr. Allen had called him Wizard, for Robert Shelton, who used the title as a leader of the Ku Klux Klan."

The doctor also said that Sen. Allen told him that he had moved to Virginia "because the blacks know their place."

Even in the South, this kind of open racism does not play well, and that's likely to be especially true in increasingly-suburbanized Virginia.

The bad news is that, even without the racism, a mealy-mouthed opportunist like George Allen can be elected to high office.

DUH-UH

From The New York Times:

"Spy Agencies Say Iraq War Worsens Terror Threat

A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks."

So, now it's official: Our own intelligence agencies confirm that the Bush administration has reduced the nation's security. And remember that the President had a stratospheric approval rating, not only here at home but around the world, in the aftermath of 9/11.

The greatest political debacle in American history? It would surely be difficult to find its equal.

Who Will Stand Up?

In Esther Forbes' wonderful book for young adults, Johnny Tremain, there is a meeting of the patriot party in Boston on the eve of the Revolution. The question of just what they are fighting for comes up, and James Otis speaks. Otis, who had argued the writs-of-assistance cases that presaged our debate over warrantless wiretapping, was afflicted with the mental illness that would plague him for the rest of his life. But on this occasion, his mind was clear. What was at stake, he said, was "That a man can stand up," and speak his mind.

With the announcement of a "compromise" between the Bush White House and Senators McCain, Warner and Graham on the detainee-treatment bill, it's time for someone to stand up and shout. Shout that the bill would permit the administration to continue mistreating prisoners, as long as it doesn't admit that it is doing so. Shout that those who have engaged in torture--and those who authorized it--will be immunized from responsibility for their crimes. Shout that the right of habeus corpus (the "great writ" as it is often called, and perhaps the oldest recognized right of all) will be taken from hundreds of men at Guantanamo who have committed no crime. (Full disclosure: my law firm represents two of those men.)

Will Democrats stand up? Will they point out the defects in the bill as The Washington Post and The New York Times have? Let's hope that at least a few of them will.

You can help give the Democrats some spine: write to your Democratic senator or congressman (or, if you are unlucky enough to be represented by Republicans, to any Democrat in Congress) asking them to stand and be counted for the values this nation was founded on.

National Insecurity

According to Sen. Thad Cochran, (R. MS), the armed intruder who crashed his car through a barricade and then ran through the Capitol was not apprehended by Capitol Police, but by a worker in a flag shop in the visitor center. Just another piece of evidence that we're all on the front line in the war against terror. And bad driving, too.

Reduced to Gimmickry

You may have heard that the House Judiciary Committee voted against sending the President's Freedom-to-Torture Act to the floor yesterday. Through use of a parliamentary gimmick, however, the committee took another vote and managed to squeak out a 20-19 "victory" for the administration.

Small consolation: there has never been any doubt about the House's determination to rubber-stamp whatever Bush wants in what he calls the war against terrorism, and the fact that Republicans are voting against him at all shows how badly support for administration policy--even on the national-security issue that's been Republicans' bread and butter--is slipping.

WOW

I watched the space shuttle return this morning. As one who can recall Yuri Gagarin, Alan Shepard and John Glenn when he was an astronaut, as well as the first Moon landing, I've become a bit blase over space flights--even as I recognize the danger as exemplified in the two shuttle disasters--but what a thrill to watch as that big ship comes back to Earth. I wish I had a good video link to supply so you can watch it, but the couple that I've found don't do the event justice.

Back in Play

For weeks, the conventional wisdom was that Democrats stand a good chance of taking over the House, but that the GOP will keep control of the Senate--bad news, because the Senate could block W's yahoo appointments. In recent days, as terror seems to supplant Iraq on the front pages, press enthusiasm for Democratic chances in the House has cooled. Whether there has been any real improvement in Republican fortunes in the House is highly questionable, but three new polls show incumbent GOP Senators Conrad ("Laughingstock") Burns (MT), Mike DeWine (OH) and Lincoln Chaffee (RI) behind their Democratic challengers by six to nine points. Add to that a virtually tied race in Missouri and a contest in Tennessee (for the seat of retiring Majority Leader Bill ("The Man That Likes to Cut Up Cats") Frist) that seems to have Democrat Harold Ford ahead, and the Party of Jefferson and Jackson could well be on its way to recovering control of the upper house.

A Lighter Note

I don't know why, but I love this story from The New York Times:

"Long before there were snakes on a plane, there were leopards in a carry-on, and monkeys down a pair of pants, according to a federal indictment handed up on Monday in Southern California."

It seems that Chris Mulloy, of Palm Springs, has been charged with illegally importing two leopard cats (I'm no biologist, but I don't think they are the same as leopards) in his hand baggage. Mulloy was turned in by his alleged confederate, Robert Cusack, who was caught after "Federal agents were tipped off to some unusual happenings when large birds of paradise came flying out of his luggage...."

You can't make this stuff up.

Scary

There's increasing evidence that the Bush administration is seriously considering a war with Iran. First came a report from Time that the Navy has ordered a task group including four mine warships to prepare for deployment by October 1st, followed by a request from the Chief of Naval Operations for a review of plans to blockade Iranian oil ports. The two reports dovetail, because the Persian Gulf and the vital Strait of Hormuz at its mouth are among the few areas where mine warfare would be at the forefront of US warmaking. (The US Navy has never concentrated on mine warfare as some other nations have.)

Today, the McClatchy newspapers report that a new battle over intelligence--reminiscent of the fictionalization that went on before the Iraq war--is brewing over Iran. The key graph:

"U.S. intelligence and counterterrorism officials say Bush political appointees and hard-liners on Capitol Hill have tried recently to portray Iran's nuclear program as more advanced than it is and to exaggerate Tehran's role in Hezbollah's attack on Israel in mid-July."

As if that weren't enough remember that there are only 40 days to the election, and the Republicans are in trouble.

(I wish I could say that not even the Bush administration would be irrational enough to push us into a war with Iran, especially now. I wish I could say that.)

Worth A Look

From the Project for the Old American Century, which has many more. Posters, T-shirts etc. available.

War Crimes

The AP reports that "the U.S. military has created a global network of overseas prisons, its islands of high security keeping 14,000 detainees beyond the reach of established law."

An American spokesman said that each detainee in Iraq "is detained because he poses a security threat to the government of Iraq, the people of Iraq or coalition forces." Given the US record at Guantanamo, such a statement must be regarded as, at best, flackery; more likely it is simple fiction or even an outright lie.

The AP also reports that the US military has been holding one of its photographers, an Iraqi, incommunicado for five months. Tom Curley, president of AP, said "We want the rule of law to prevail. He either needs to be charged or released. Indefinite detention is not acceptable. We've come to the conclusion that this is unacceptable under Iraqi law, or Geneva Conventions, or any military procedure." Let us hope that Mr. Curley would extend that sentiment to the other 13,999 detainees.

Meanwhile, the President and his band of merry men (and women, too: let's not forget Condi) continue to push their kangaroo courts bill, and reports have surfaced that people on both sides of the fight (that is, Republicans and Republicans) are saying that a compromise may be possible. Funny, when I grew up, the politicians proclaimed that there could be no compromise with tyranny.

Machine Politics

A study from Princeton University examined two Diebold voting machines--"the most widely deployed electronic voting platform in the United States."

The results--summarized in Taegan Goddard's Political Wire:

1. Malicious software running on a single voting machine can steal votes with little if any risk of detection. The malicious software can modify all of the records, audit logs, and counters kept by the voting machine, so that even careful forensic examination of these records will find nothing amiss. We have constructed demonstration software that carries out this vote-stealing attack.
2. Anyone who has physical access to a voting machine, or to a memory card that will later be inserted into a machine, can install said malicious software using a simple method that takes as little as one minute. In practice, poll workers and others often have unsupervised access to the machines.
3. AccuVote-TS machines are susceptible to voting-machine viruses -- computer viruses that can spread malicious software automatically and invisibly from machine to machine during normal pre-and post-election activity. We have constructed a demonstration virus that spreads in this way, installing our demonstration vote-stealing program on every machine it infects.
4. While some of these problems can be eliminated by improving Diebold's software, others cannot be remedied without replacing the machines' hardware. Changes to election procedures would also be required to ensure security.

Now, it's easy to see why Diebold would resist changes in its machines--they would cost money and, very likely, a loss of future business. But apart from politicians who are in the company's pocket, who would oppose correcting these faults, especially as they, or like defects, have been reported over and over and over? Only two answers come to mind: those who are stupid, and those who actually intend to steal votes.

I do NOT mean to suggest that preventing corruption is the only, or even the main reason for demanding drastic improvement in electronic voting. Any fair-minded, reasonably honest person must recognize that the defects in electronic voting can come from simple sources that have nothing to do with corruption: software mistakes, manufacturing errors, static electricity, etc. We want voting machines to be accurate and verifiable not merely to avoid fraud, but because democracy deserves precise vote counting. That does not derive from a suspicion of fraud, but from a belief that democracy is the best form of government, and that sloppy vote totals are undemocratic. Anyone disagree?

(Given the Republican devotion to measures argued to diminish the chances of election fraud--such as requiring voters to use government-approved IDs in order to vote--it becomes harder and harder to believe that the GOPs opposition to fixing the well-documented faults in electronic voting machines is not based on anything other than an intent to cheat.)

"The world is beginning to doubt the moral basis of our fight against terrorism."

That's from Colin Powell's letter to Sen. John McCain, criticizing Bush administration efforts to abrogate United States adherence to Common Article 3 of the Geneva Convention.

Colin Powell, probably the most respected soldier of his generation and one of the most respected (and popular) Americans, speaks out against the administration's policy toward terrorists in our custody. In doing so, he's echoing the opinions of leading military lawyers, present and retired, and at least one other retired Chair of the Joint Chiefs of Staff. Yet Bush, Deadeye Dick and Co. move along, undaunted and undeterred.

Time (long past time, really) for someone to point out that the emperor has no clothes--and no connection to reality, either.

The REALLY scary part is that these people get taken seriously by anyone.

Think Only Republicans Can Make Attack Ads?

Check out this one aimed--in more ways than one--at Sen. George "Macaca" Allen. I'm much tempted to send a contribution to get this one on the air in Virginia over and over and over.

Saying it all

Bob Schieffer, back in Washington after his stint as anchor of the CBS Evening News (and didn't he give Katie Couric a hard act to follow?) says it exactly right about secret prisons and how to fight terrorism. Read a transcript it here. You can also see the tape.

Thoughts on 9/11

We were in Oregon on the 5th anniversary of September 11, 2001, without ready access to a computer. So these observations will be a little late.

Impressions:

On Sunday, the night before the anniversary, CBS ran an 'accidental' documentary about the event. (It was broadcast before, but I hadn't seen it.) In July 2001, two French brothers and a NY firefighter had started making a documentary about an NYFD rookie. As it happened, the firehouse he was assigned to was in lower Manhattan, and his house was one of the first to respond. That turned out to be a blessing, because the men from that house went into the first tower to be hit--which was the second to collapse. Remarkably, all of the firefighters from the house came back alive that day. But even without the pathos of death for one of those that the camera had followed, this was powerful television (other footage, such as of the towers falling, was cut into the tape shot by the French brothers, helping both context and drama). What was most remarkable, to me, was the calmness and determination of the people dealing with the disaster inside the towers. Most, given the subject of the documentary and the nature of what had happened, were firefighters, but there were also police and I remember especially the Port Authority employee who was called on the intercom to each of the 98 elevators in the tower (yes, 98), asking if there was anyone inside. In the five years since the first 9/11, it has become easy to talk about the courage of the responders without sensing what was really about. This brought it back. (You can see the documentary here.)

On Monday, I saw both Tom Brokaw and Rudy Giuliani twice--once on the Today show, once on the evening news. Brokaw, projecting a bit more avuncularity than when he was the anchor, made the point that the passengers on Flight 93 who resisted the highjackers and brought the plane down had established a new model--that now we can expect that kind of behavior for passengers in any flight that's taken over. If he's right, and I suspect that he is (at least as a model, if not in reality), it strikes me that that might be at least as great a deterrent to another 9/11 as all of the official airline security measures that we've spent billions on. Given the near-impossibility of taking serious weapons aboard--for that, we must credit the government--potential highjackers must realize that the chances of taking over an airplane long enough to fly it into a selected target are small. Maybe that's the real reason why 9/11 hasn't been repeated.

I was surprised by Giuliani's frankness and honesty. Both Matt Lauer and Brian Williams asked if there was something he would have done differently, and he readily admitted to faults in the planning. On the evening news, he noted that 9/11 was three times bigger than what had been planned for, that the planning had expanded since then, but he noted that al Qaeda might be planning something five times as large. I'm not ready to sign on to the Rudy for President bandwagon, but it was refreshing to hear such talk, especially from a Republican. He spoke the way McCain is said to.

On Tuesday, as we prepared to fly back to the East, I was selected to go through a "puffer" at Portland International Airport--that's the machine that puffs air at you then reads it for explosive residue. The whole process takes 30 to 60 seconds, so it can't yet be used on all or even most passengers. And the machine obviously has flaws--it didn't pick up my incendiary rhetoric, for instance.

A Different World

(First, an apology. Due to the long Labor Day weekend and a minor hand injury that has me typing with 9 fingers, I have not been posting. And, as we shall be in the great Pacific Northwest from Sept. 8th until the 12th, this might be the only post until the middle of next week. But please stop by and see TONE again. Thanks.)

How many times over the past five years have we heard that the world changed on 9/11? But is it true? Was it ever true?

Almost as soon as it became clear who had carried out the attacks on the World Trade Center and the Pentagon, I said to myself--and those few who were polite enough to listen--that the terrorists could never defeat the United States. The only real threat to the nation came from ourselves.

Terrible as the losses on 9/11 were, they did not seriously damage the fabric of the United States. (Compare the cost of Sept. 11 with the toll that a Soviet Union with only a little over half of the current US population suffered in WWII: At least 5 times as many people killed every single day during the war as we lost on 9/11.) Most of the real harm has been self-inflicted.

As became all too clear in the past few years, some Americans seem bound and determined to fight against what I thought this nation was all about: FDR's Four Freedoms, democracy, the sense that we are all in this together. For dark months, it seemed that those whose view of freedom was, in Jim Croce's words, "let him live in freedom/if he lives like me," would prevail. Yet like a great ship that has fought through a storm, staggered and sometimes thrown off course, the nation seems to be coming back to where she should be. True, most of the criticism that has mounted around the President, his administration and his party is aimed simply at their incompetence rather than their cramped and twisted view of what America is all about. Yet people who realize that the policies are not working are coming to question the principles on which those policies were built.

It is not yet clear that the nation is freeing itself from the tyranny--for that is what it is--of the Right: Democrats could still fail to grasp the opportunity that is being held out to them this year. Osama bin Laden--George W. Bush's great political ally--could pull off an act of terrorism that moves swing voters back to Republicans (although now there is an equal risk that they will desert the party in droves if that happens). An ineffective Democratic candidate in 2008 could prolong Republican tenancy in the White House. Still, it seems to me that the worst is over--that the great ship is headed toward a clear sky and a smoother sea.

Safer, But Not Safe

"The Bush administration proclaimed significant progress in the war on terror Tuesday but said the enemy has adjusted to U.S. defenses and that 'America is safer but we are not yet safe.'"

AP

and you can bet that no one in the White House will say we are safe until after Election Day. And not even then if the Democrats win.

Burn(s)ed Again

Montana Republican Senator Conrad Burns is fast putting himself in the most unenviable position that can beset a politician: he's becoming a figure of ridicule. Back in July, Burns lambasted a group of firefighters who had come from Virginia to fight fires in Montana.

Then, a couple of days ago, the Senator told us that we are up against a faceless band of terrorists who "drive taxi cabs during the daytime and kill at night." (Apparently, he's never seen some of the taxi drivers I've encountered, but that's another story.)

Now Burns has asked Montana Governor Brian Schweitzer (a Democrat) to declare a state of emergency due to forest fires, and to activate the Montana National Guard. Not a bad idea, right? Except that Schweitzer had declared such an emergency on July 11th and issued a second declaration a month later. And the National Guard? Its helicopters were first deployed to fire-fighting duty on August 3rd.

Polls have shown Burns' race against Democrat Jon Tester to be close, but it's hard--very hard--to see how someone who becomes a laughingstock can be re-elected.

Straw Men, Fight Back!

Kevin Drum, of The Washington Monthly points to a story in The Washington Post revealing that what we all knew was true: Republican slurs at imaginary Democrats who want to cut off funds for the Iraq war or are tacit allies of terrorists are fiction when they're not outright lies. The WAPO story notes that

"Pressed to support these allegations, the White House yesterday could cite no major Democrat who has proposed cutting off funds or suggested that withdrawing from Iraq would persuade terrorists to leave Americans alone."

Drum concludes, "It's about time the straw men started fighting back." Actually, it's long past time, but he's right nonetheless.