Legal Fiction

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Not much time tonight, but here are some scattered thoughts on a few races.

First, Lieberman-Lamont. It looks like Joe may hang on after all. Frankly, I think Lamont made a big mistake by treating the general differently than the primary. He apparently bought into the theory (which I heard on TV a lot) that he would have to expand his appeal to win. Bad idea. He should have kept on hammering on Iraq and followed Rove's "there is no middle" advice. No Republicans or right-leaning Indies were going to vote for him anyway. His goal should have been to get a bigger share of Dems. He didn't do that in the critical early days after his victory (and went radio silent) and that may well cost him the seat.

Second, Ford-Corker. Ford has run a damn near perfect campaign and has the good fortune of a bumbling GOP candidate. No great insights here, but I've been impressed by his political savvy. Don't get me wrong - I love Tennessee. But it's not a state (like VA, NC, or TX) whose underlying demographics are trending Democratic. Given the landscape, Ford is showing some top-notch, even Clinton-esque, political skills in making this race so competitive.

Third, Menendez-Kean. I'll have to agree with Zengerle. I think I'm for Kean. Yes, I know all the arguments, and I know that we're essentially in a parliamentary system where only parties matter. But the New Jersey Democratic Party is a rotten, corrupt institution. And that guy stinks. Given the consequences, I might think differently if control of the Senate depended on it. But if it's just a matter of having 48 vs. 49, that's not enough for me.

UPDATE: I guess I'm flaking on the Kean question. The real question is not who you would support knowing the outcome, but who you would support behind the veil (i.e., if you don't know who will control). That's really tough, but in light of what we saw today (suspension of habeas), maybe you have to hold your nose. I mean, I would rather have habeas corpus and a stinking rotten NJ Democratic Senator than having no habeas corpus but a less-rotten guy representing NJ.

So if I'm forced to pick behind the veil, I guess I'll flip-flop and take a one-time-only ticket on Menendez just to ride out the Bush presidency. But if it turns out that the Dems have either 49 or 51 without Menendez, I'll be glad he lost.

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So I'm leaving the D-dot-C tomorrow for a vacation through next week. I'll be posting, but at more irregular hours. And so, what books should I get? I'm thinking The Emperor's Children, but I'm open to other suggestions (fiction or non-fiction).

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As I mentioned earlier, if Congress is going to gut habeas corpus (and move us back to roughly 1214 A.D.), it's better that the bill pass as-is. The way it stands now, the provision is so extreme that it makes it much easier for a court to strike it down. If, however, Congress added an amendment providing habeas under very narrow circumstances, that would make things far more complicated for a court to determine whether habeas had been improperly "suspended."

With things moving on to the courts apparently, I'm going to try to get smart on habeas suspension (and jurisdiction-stripping) and try to translate that into non-legalese. If anyone knows of any good posts/articles/etc., feel free to pass them along.

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Bush Second Inaugural:

On this day, prescribed by law and marked by ceremony, we celebrate the durable wisdom of our Constitution, and recall the deep commitments that unite our country.

Art. I, Section 9:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Bush Second Inaugural:

At this second gathering, our duties are defined not by the words I use, but by the history we have seen together.

Section 6:

(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—

Bush Second Inaugural:

From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.

Section 950v:

‘‘(i) The term ‘serious physical pain or suffering’ means bodily injury that involves—
‘(I) a substantial risk of death;
‘‘(II) extreme physical pain;
‘‘(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); Or
‘‘(IV) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

Bush Second Inaugural:

Advancing these ideals is the mission that created our Nation. It is the honorable achievement of our fathers. . . . So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.

Section 948b:

‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.—No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

Bush Second Inaugural:

We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right. America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies.

Section 948b:

‘‘(d) INAPPLICABILITY OF CERTAIN PROVISIONS.—
(1) The following provisions of this title shall not apply to trial by military commission under this chapter:
‘‘(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.

Bush Second Inaugural:

We will encourage reform in other governments by making clear that success in our relations will require the decent treatment of their own people. America's belief in human dignity will guide our policies.

Section 950k:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever . . . relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Bush Second Inaugural:

Americans, of all people, should never be surprised by the power of our ideals. . . . We do not accept the existence of permanent tyranny because we do not accept the possibility of permanent slavery. . . . Today, America speaks anew to the peoples of the world:

All who live in tyranny and hopelessness can know: the United States will not ignore your oppression, or excuse your oppressors.

Section 7:

‘‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Bush Second Inaugural:

From the perspective of a single day, including this day of dedication, the issues and questions before our country are many. From the viewpoint of centuries, the questions that come to us are narrowed and few. Did our generation advance the cause of freedom? And did our character bring credit to that cause?

Section 5:

(a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

Bush Second Inaugural:

Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities.

Section 6:

(3) INTERPRETATION BY THE PRESIDENT.—
(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions[.]

Bush Second Inaugural:

America, in this young century, proclaims liberty throughout all the world, and to all the inhabitants thereof. Renewed in our strength - tested, but not weary - we are ready for the greatest achievements in the history of freedom.

Section 10:

Section 1005 . . . is amended by striking ‘‘the Department of Defense at Guantanamo Bay, Cuba’’ and inserting ‘‘the United States’’.

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I should probably expand a bit on my Clinton/Fox News post. As usually happens with Clinton, the reaction to what he does is more interesting than what he actually does.

First, I was particularly intrigued by Bill Kristol’s argument (repeated elsewhere) that this was some sort of staged political act. I mean, maybe it was, maybe it wasn’t. But these arguments are revealing because they show lingering fear and/or respect for Clinton. It’s very similar to the reaction that Karl Rove generates on the Left. It’s amazing at times to watch anti-Rove writers do logical gymnastics to explain why bad facts (for Bush) should be understood as some larger master strategy engineered by Rove.

What this shows, I think, is fear. Democrats have an instinctive and visceral fear of Karl Rove because he’s beaten them (more than once). And when you’re afraid of something, your fears start connecting dots and data points in strange ways, just like children see monsters in the shadows. (See also Othello). And because Democrats fear Rove, they have an annoying tendency to connect data points in a way that transforms him into some sort of all-knowing, all-seeing deity.

Same deal with Clinton. Much of the animosity on the Right toward Clinton is rooted in fear. On some level (that they don't like to talk about at parties), they are still afraid of him because he beat them, practically on everything. (You? You, Lt. Weinberg?) (ed. Stop. Sorry). And I'm not really talking about the elections (though those count). I’m really talking about the 1995 showdown with Gingrich, and then impeachment. It’s easy to forget now, but the Republican Congress had a sort of whipped puppy vibe after the 1998 election (and Gingrich’s fall from power). Clinton got pretty much what he wanted, for instance, in the subsequent budget battles and the GOP was too scared to take him on directly.

And if I can venture (unempirically) into the conservative psyche, I’d say a lot of people are feeling mixed emotions about a Hillary candidacy. Part of them welcomes it because they think she’s unelectable. But down deep, they’re also afraid because Clintons don't lose. Or at least, they haven't yet.

Second, I found liberals’ response to the Clinton smackdown interesting too. This isn’t exactly a profound insight, but I think the actual facts or "changing the headlines" or the supposed political strategy have little to do with the embrace Clinton received. It’s simply Howard Dean all over again — the deep, visceral longing for non-timidity, particularly on the national security front. Democrats and liberal bloggers are sitting around watching Democrats remain silent on issues like, you know, torturing human beings for fear of looking weak. And then here comes Clinton who just walks up and pops Chris Wallace right on the nose. It’s precisely — precisely — the same reason why people rallied behind Dean’s famous “I’m from the Democratic wing of the Democratic Party.” It’s above all the refusal to be bullied that Democrats (particularly liberal bloggers) crave to see.

That said, people like Reid and Pelosi have been hitting Bush pretty hard on Iraq this year. So it’s not just that Democrats have been sitting on their hands, it’s also that they’ve lacked a high-profile media platform (as Atrios often stresses) upon which to “fight back.” In other words, it’s not just that Clinton “fought back,” it’s that he is one of the few who can do it in a very high-profile way. That sort of stuff rallies the troops.

And finally, I want to make one point about Fox News the institution. Regardless of your views of whether "the media" has a liberal bias, Fox News is just different. It is a wing of the Republican Party and is very much part of the party’s communications infrastructure. The NYT may be liberal but it's not self-consciously part of the Democratic infrastructure. Of course, I don’t really have a problem with Fox News doing that (First Amendment and all that). My gripe is that Fox News pretends that it doesn't, and has convinced much of the public along the way.

I mean, I think people know that Fox News has more of a tilt, but many don’t see it as an actual wing of the Republican Party. Many conservatives see it first and foremost as a legit news channel that strives to eliminate “liberal bias.”

What Clinton did was to pull the curtain back, to puncture the illusion, to rip the dress off of Nurse Ratched on-the-air. He explicitly said on-the-air that Wallace had a political purpose. Maybe Wallace did, maybe he didn’t, but the institution clearly does. Everyone who appears on the network (people like Susan Estrich) knows this, but they go forward with their interviews anyway with a knowing wink-and-a-nod. What they don’t do is to say on-the-air, “this channel is an arm of the Republican Party” in the face of blatantly partisan features or questions.

In other words, what they don’t do is challenge the legitimacy of Fox News as a news channel. It’s a partisan opinion channel. There’s nothing wrong with that — it’s highly entertaining, and certainly a further testament to Rupert Murdoch’s savvy and brilliance. But it’s not journalism. And so when Democrats and liberals (particularly the loons that Hannity and O’Reilly manage to dig up) appear on networks like these and go through the motions as if they’re on Nightline, they confer legitimacy on the institution as a news organization.

So what do you suggest people do? Refuse to go on the show? Preface everything with a denouncement?

Huh? Oh, sorry, I would love to respond, but I have to take this. . . . [exit stage right]

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Feddie over at Southern Appeal catches a lot of grief in the comments here. And I've caught my share of grief over the years for linking to him, often supportively, often not. But the thing with Feddie is that, though we obviously have our political differences, he walks the walk, morally speaking.

A couple of latest examples: (1) seeing George Allen for what he is; and (2) denouncing the torture campaign. These positions are not, obviously, popular with his readers (as the comments illustrate). But as I say, he walks the walk. If the evangelical and social conservative movement were more willing to do the same, I think they would find a much more receptive, alliance-building audience on the other side of the political aisle. But when you see top leaders turning a blind eye to things like torture, it delegitimizes the entire movement. But anyway, kudos to Feddie for calling a spade a spade.

Though Notre Dame is still overrated.

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I wasn't going to say anything about Bush’s “comma” [Chameleon] comments, because it seemed too “gotcha.” But then I saw Steve Benen say this and it got me thinkin’ about stuff:

Now, I think I know what the president means. As he sees it, history takes a long view, so three and a half years of mistakes, violence, poor judgment, and corruption are minor details that will be easily overlooked by a long-term triumph. Or so Bush says. Of course, by this logic, everything is “just a comma.” Every life, every conflict, and every generation can be dismissed and made to appear trivial by backing up enough degrees.

Exactly. Given that Bush appears (at least since the Second Inauguration) to have adopted a Hegelian Freedom-is-Unfolding view of the world, it’s not surprising that he’s demonstrating the flaws in Hegel’s thought.

I remember distinctly a college lecture in which the professor closed the class by saying something like, “And that, perhaps, is the ultimate problem with Hegel. He requires that you remain silent in the face of the Holocaust.” I didn’t quite gather what he meant at the time (I might well have had a fierce game of beer pong the night before), but it’s more clear now. To be grossly general, the problem is that Hegel sees History as the linear unfolding of one big story with a happy ending. For that reason, everything that happens is simply a necessary step on the way to the ultimate happy ending.

And that’s really what I want to gripe about today — the idea that history is linear, that life will end happily, that we are all marching toward some inevitable glory. We’re not. And that sort of thinking is making the world a worse place.

If you think about it, the view of Life-as-Story-with-Happy-Ending isn’t unique to Hegel. It’s sort of like a Mad-Lib narrative — you can just fill in the blanks with what you want the happy ending to be. History is the inevitable march toward Freedom and Democracy (Bush, Fukuyama, neocons). History is the inevitable march toward consciousness by the Spirit (Hegel). History is the inevitable march toward freedom of the workers (Marx, communists). History is the inevitable march toward the fulfillment of God/Allah’s plan. You never really get there, but you’re always going there because that’s the way things inevitably go.

The problem with this sort of thinking is exactly what Benen identified. So long as your eyes are fixed on some distant abstract goal that is unverifiable or impossible to obtain, you can rationalize away anything that contradicts your thinking. Particularly pesky reality with its messy car bombs and beheadings. These things are bad — I’m sure Bush thinks so — but they don’t get to him. More importantly, they don’t cause any middle-of-the-night reassessments. That’s because he has the Freedom Narrative in his head. And many of his followers do too. And it provides order to the chaos — it imbues the errors and the deaths with higher purpose.

The other problem with adopting these abstract visions is that (because they are essentially meaningless) they place no real constraint on your current actions. You can do what you want to do — or what fear or ignorance drives you to do — and justify it retroactively through appeals to Freedom or Allah or The People or The Revolution or whatever This Year’s Abstraction happens to be. A lot of liberals think that pro-war conservatives are just bullshitting them when they justify Iraq through the Freedom Narrative. They’re not — or at least, most of them aren’t. I think they’ve come to rely on it like a mental crutch. Because without that higher purpose, you might see through to what Iraq really is. Without the knowledge that we're fighting for Freedom, you might see through to what we’re authorizing as public policy — torture and indefinite detention without the right of habeas corpus, a right many centuries older than America itself. So take your pick. We’re either deluded or wicked — I’ll opt for the former.

And I apologize for this brief David Broder moment, but I think many liberals fall prey to the illusion of inevitability as well. It’s not so much that they see life as unfolding according to some master narrative. They are just genuinely optimistic that things will get better through time. They sincerely believe people will have better views in 25 or 100 years than they do now.

That’s just not true though. I mean, if the 20th Century taught us nothing else, it should have taught us that. Things aren’t inevitably going to get better. People aren’t inevitably going to look back at these times and dismiss them. Habeas corpus isn’t inevitably going to be restored in saner times by saner people (or by Arlen Specter). Gays aren’t inevitably going to have full civil rights. If things get better, it’s going to be because people fought for things (like habeas) when they were under attack. Like Hilzoy and Katherine, who are fighting a lonely battle to raise awareness for habeas as we speak.

There’s a tendency to ignore the things going on right now and think, “Ah, we’ll get sane again one day.” I do that, and I’m sure you do too. But that’s not true. Or even if it is true, something tragic can happen before sanity returns (e.g., a strike on Iran, a marriage to Tom Cruise).

I’m not sure I have a point in all this ranting. I suppose it’s just that the perception of inevitability harms us in more ways than you realize. It prevents leaders and their supporters from grasping the reality of the policies in place. And it prevents those who would oppose them from feeling a sense of urgency about doing so. I’m not sure what to do, but as Atrios says, election efforts aren’t a bad place to start.

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Video.

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Hilzoy has an excellent post on the most pernicious section of the Great Compromise – the jurisdiction-stripping provisions that would eliminate habeas review (and more). I have a question though – is the word “action” understood to mean only “civil action” (i.e., not criminal action). I’m guessing it is given Hilzoy's arguments, but if it doesn’t, then you could read the statute as effectively legalizing murder.

Here’s the language in question (which I’m cutting and pasting from Hilzoy):

"(c)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who --

(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --

(A) is currently in United States custody; and

(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)

Read literally, that would prohibit a federal court from hearing any action whatsoever (not just habeas) regarding the treatment of a detainee. If a CIA agent murdered a detainee, he could not be prosecuted because, even though it would be a war crime, no federal court would have jurisdiction to hear it.

I’m guessing though that “action” is understood or defined (perhaps elsewhere in the federal statutes) to mean a “civil action.” If it didn’t, then the preceding habeas provision would be superfluous (since the second part would encompass the first). Also, if “action” is read this broadly, it would make prosecutions under the War Crimes Act wholly inapplicable to “enemy combatants.”

Anyone know? If there's even the slightest question about this ambiguity, it should be cleared up before handing over such wide powers to this administration and Cheney's willing practitioners in OLC. (And of course, the elimination of all civil actions is a problem in and of itself.)

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I’m still looking over everything, and it looks like the McCain faction (sadly, but unsurprisingly) surrendered. What jumps out at me in looking it over was the amount of power and discretion Congress just handed over to the Executive. Anyway, it’s easy to get lost in all this, but I think once you put the pieces together, it’s pretty clear that this bill is a systematic effort to authorize cruel interrogation measures and then shield them from prosecution.

Let’s start in the War Crimes section, which is probably the most complete capitulation. Both bills included a laundry list of actions that constituted “war crimes,” but the heart of the dispute was over the second one — “cruel, inhuman, and degrading treatment”

MCCAIN	BUSH	COMPROMISE
CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.—The act of a person who subjects another person in the custody or under the control of the United States Government, regardless of nationality or physical location, to cruel, inhuman, or degrading treatment or punishment.	CRUEL OR INHUMAN TREATMENT.—Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical shall be guilty[.] [Defines “severe mental pain or suffering]	CRUEL OR INHUMAN TREATMENT. —The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

A few things to note here. First, notice the verb. The initial McCain bill used the word “subjects,” whereas the others use “commits.” The verb change is subtle but it arguably pushes criminal liability down the chain of command. The latter two arguably limit criminal liability to someone actually “committing” torture. (Even “conspires” is linked to “commit.”) Under my reading, Donald Rumsfeld could arguably “subject” someone to torture, but he could not “commit” or “conspire to commit” torture. So he’s off the hook.

Second, notice that although the latter two bills include “cruel and inhuman” in the title, the text doesn’t actually include those words. The new bill is essentially Bush’s bill with “or serious” added. The original McCain bill, by contrast, prohibited “cruel, inhuman, or degrading treatment or punishment.” The obvious upshot here is that the original McCain bill bans the CIA “alternative” procedures, whereas the latter two don’t.

Of course, the McCain response will be that he prohibited cruel, inhuman, and degrading treatment in a different part of the compromise bill:

(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.

(1) IN GENERAL. No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

But read the fine print.

(3) The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

This prohibition is in the same section as the war crimes, but not in the same sub-section. If I’m reading this correctly, the penalties for “cruel” punishment will not be determined by the existing penalties under the War Crimes Act, but by the President through administrative penalties.

Obviously, a lot of this turns upon how certain words are interpreted (or have been interpreted under existing case law). And so, this is the kicker:

INTERPRETATION BY THE PRESIDENT. (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

The bill incorporates the Geneva Convention prohibitions (or some of them) into the War Crimes Act. The President gets to interpret the Geneva Convention. Ergo, the President gets to interpret (i.e., be afforded deference regarding) the meaning of the War Crimes Act. It’s just the thing a growing executive needs to authorize torture.

And then there’s this:

MCCAIN	BUSH	COMPROMISE
No person may invoke the Geneva Conventions or any protocols thereto as an individually enforceable right in any civil action against any [federal officer or agent].	No person in any habeas action or any other action may invoke the Geneva Conventions or any protocols thereto as a source of rights whether directly or indirectly for any purpose in any [state or federal] court.	No person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court [state or federal].

Very careful language here. The McCain bill clearly let the Geneva Convention be used for criminal actions. The new one is ambiguous, but it may very well be exactly the same as the Bush bill depending on the word “proceeding.”

And so it all fits together nicely for someone who wanted to, say, authorize torture (though not “torture” of course, which is very different). The CIA can devise interrogation methods by working around the language in the compromise bill. If there are any doubts, the President can say that he determines that these practices are consistent with the language of the Geneva Conventions. And just to be safe, the Geneva Convention may be completely banned as a source of rights in court. And just to be super-safe about that new pesky McCain language, the penalties for “cruel or degrading” punishment are to be enforced by, yes, the President.

Not a bad day’s work.

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Did they fold? I want to look things over before I weigh in, but it doesn't look good.

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George Allen claims that he just randomly made up the word "macaca." This is obviously a lie, but I have a question. What are the odds of randomly making up a word that happens to be a racial slur, mathematically speaking? How would you calculate it?

For instance, is it # of racial slur words/# of total words? Do you incorporate syllables (i.e., the odds of stringing together three syllables that collectively create a racial slur)?

This is far beyond me, but there must be a way to calculate it. Anyone?

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I’ve been traveling for work this week, so I’m just now catching up on the news. I did want to comment briefly though on the Nyhan/Tapped brewhaha.

First, assuming I have the facts right, I think Tapped’s editors come away looking pretty silly — and, frankly, I was surprised by their action given my respect for the magazine and the site. What’s more surprising though is that Nyhan's writing surprised them. Nyhan is well-known for criticizing “both” sides ever since his Spinsanity days. It's hard to believe his posts were unexpected.

And to be clear, I like Nyhan and I enjoyed his book. But my one critique of him is that he’s got a little bit of David Broder Syndrome — a mild case though. The Broder Syndrome (described here) is actually a virus that attaches to the receptors of one’s brain cell and releases genetic material that imposes a rigid balance upon one’s cognitive functions. Victims begin thinking that “both sides are equally bad” or that “in any given debate, the middle is always correct.” The most obvious symptoms are when political commenters strongly critique the Bush administration or Republicans, but then follow it up with some variation of “but Democrats are equally bad because . . .” Marshall Wittman's case is, sadly, terminal.

To be fair, Nyhan doesn’t fall prey very often. It’s clear where his sympathies are and he’s usually right on the merits of things. But his criticisms of liberals are mechanical at times. In other words, his criticisms don’t always strike me as heart-felt. Instead, I think he sometimes forces it and critiques simply for the sake of critiquing to reaffirm his “independence.” I get the sense that he wakes up some days and thinks, “uh-oh, I need to show my independence today by denouncing something on the Left because I haven’t done that for a while.”

The Coulter post he did is a perfect example. I mean, it’s hard for me to believe he’s sincerely upset and offended about a book title called “Brainless: The Lies and Lunacy of Ann Coulter.” For one, it’s Ann Coulter — do you really care? Second, it’s obvious that the book isn’t aspiring to some higher discourse — it’s using Coulter’s notoriety to make money. I don’t know — it just seemed forced. It seemed like a post that could have just as easily read “please note my willingness to criticize the side I’m nominally aligned with.”

[Same deal with this one, which again, seems strained to me.]

None of this is to say that you should avoid criticizing the "side" you’re aligned with. I do it — and Nyhan often it does it and does it well. But you should at least, you know, believe in the criticism. What annoys people is not Nyhan's criticism per se, but his gratuitous criticism that is only for the purpose of showing off “independence” from the “extremes.” I didn’t read all his Tapped posts, but it looks like he went in there bound and determined to show off his independence by writing several forced criticisms of non-conservatives that I seriously doubt his heart was in. That certainly doesn’t excuse Tapped for being heavy-handed editorially though.

But again, I don’t want to overstate things. Nyhan’s book is really good. And he’s a good writer and I like him a lot. And in normal times, his small outbreaks of Broder Syndrome wouldn’t bother me. But in today’s world, my only purpose in life is convincing others that the following motto is true — Both Sides Are Not Acting Equally Bad. And so gratuitous contrarianism is an unwelcome guest at my table these days.

[The one exception is Kaus, who I think is very good at gratuitous contrarianism. His batting average is not exactly 1,000, and he irritates me to no end, but I find myself going back each day.]

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Hopefully you haven’t noticed, but there’s been some tension in my posts about the military commission debate. I initially argued that the McCain-Bush dispute exaggerated the substantive differences between their bills, which are both bad. More recently, though, I’ve given the McCain faction credit by arguing that the dispute could give rise to profound questions about America’s moral character. So what is it Publius, if that really is your name? Is this Kabuki theater, or the real thing? The answer is that it’s both.

The key is that, in politics, you must always distinguish between reality and perceptions of reality. Very often, perceptions are more important than the underlying reality and can actually have a material effect upon it. Take Frist and the Gang of 14. By any objective measure, Frist cleaned the Dems’ clock. Through the nuclear gambit, Frist got basically every judge he wanted, with every indication he could get anyone else he wanted. But because the expectations among social conservatives were so unrealistic, it was perceived as a loss – one that had a material effect on Frist’s presidential ambitions and on the fever of the judicial debate itself (i.e., it lowered the temperature because one side felt defeated). In short, perceptions took on their own reality – the ideal became material.

Something similar is happening here – the perceptions of disagreement have so intensified that the debate has become a material one that is very real, and very consequential.

First, let me again make clear that both bills are very bad. The main reason, which others have explained, is that it eviscerates habeas rights for all detainees. And contrary to what legal geniuses like Mark Levin might say, habeas isn’t a right for terrorists. It’s a right for those who are wrongly detained as terrorists. There’s a Digby post on this somewhere, but a lot of the detainee procedure debate is beside the point because it doesn’t address the threshold question – whether you are in fact properly detained. In other words, procedures are important not so much because honest-to-God terrorists deserve them, but to identify whether the person detained (perhaps indefinitely) actually is a terrorist.

And given that we’ve wrongly detained so many people (via Hilzoy), I’m wary of throwing habeas overboard. In fact, the mere existence of habeas (as opposed to its actual use) often eliminates the need for courts to consider it. That’s because if the detaining authorities know that they’ll potentially have to justify their actions in a habeas proceeding, they’ll take more precautions at the front end to detain the right guy. (Indeed, that's a key rationale for ALL constitutional criminal protections).

But anyway, the reality of the loss of habeas (and McCain’s willingness to partially amend the War Crimes Act) makes this largely an exercise in Kabuki – i.e., the appearance of the debate will confer legitimacy on a compromise that is an objectively bad result.

But but but . . . the perception of the McCain-Bush debate has now taken on a life of its own. And for that reason, the Warner-McCain-Graham faction deserves praise. As I explained here, the perceived debate is no longer about the rival bills per se, but about whether America will legally authorize torture. That’s how the debate has been defined – and people are taking sides based on that understanding of the debate. In that sense, even though it’s a perceived debate (i.e., perceived as the whole of the debate, when it’s really just a part), it has become a fundamental one that cuts to the very heart of what America stands for.

In addition, the McCain faction is facing enormous political pressure to cave. So far, they’ve held their ground, largely on the basis – and this is critical – that the Geneva Convention and human rights should be honored. And they’re holding firm despite the fact that the 2006 mid-term strategy relied completely on using this bill as a sword.

Any idea that this is orchestrated Kabuki theater should have been put to rest by Bush’s temper-tantrum on Friday which reminded me of a spoiled brat at the McDonald’s Playland who didn’t get his way. Bush could have had nearly everything he wanted, but he overreacted – and in doing so, the debate has been defined in terms of whether to authorize torture.

Or at least, I think it has. Maybe I’m getting duped, but I don’t think so. McCain, like Bush, is notoriously stubborn. And it’s clear that Bush is dug in (or else he’ll look foolish after Friday’s press conference). And my hunch is that Bush’s temper tantrum makes McCain less likely to fold. Of course, what gets Shakespearian about all this for McCain is that the subtext of Bush’s threat is the 2008 election. There is nothing Bush can do to punish McCain in terms of his Arizona constituents, but he (and his network) can certainly make McCain’s march to the nomination more difficult.

And so I think McCain may be facing a tragic Shakespearian dilemma. He suffered torture as a POW, and he really wants to be President. Yet, being president may require him to sell out and allow torture. Seems like an easy question, but when the White House is realistically in your grasp, it’s not. For now, though, he’s holding his ground. And I respect that – immensely.

As a final matter, the question is – what about habeas? Well, the best outcome would be that Congress gridlocks and no bill is passed. The next best outcome is that the bill passes as is regarding habeas (without small improvements). To be honest, we’ve lost the habeas battle already. The Democrats aren’t going to take a stand for it if McCain wins this battle. It’s just not going to happen – and no public rallying can make it happen. So, the only hope is that a provision so flawed gets passed that it makes it easier for courts to reverse it under the Due Process or Suspension Clauses. Assessing the constitutional limits on restricting habeas is a long, hard slog (though a fun one for fed courts nerds like me), but I’ll save that for another day. Here are some posts I did find on the subject though if you’re interested.

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Stephen Hayes, "How Bad Is the Senate Intelligence Report? Very bad":

There is much to quarrel with in the report. But it is worth spending a moment to consider the vast amount of information that was left out of the committee's treatment of Iraq's links to al Qaeda. A few examples:

There is no mention in the report of Abdul Rahman Yasin, an Iraqi who admitted mixing the chemicals for the bomb used in the 1993 World Trade Center attack, cited in the July 2004 Senate report as an al Qaeda operation. . . . There is no mention of documents recovered in postwar Iraq confirming that the Iraqi regime provided Yasin with housing and funding after his return to Iraq until the beginning of the Iraq War in 2003. . . . There is no mention of documents unearthed by reporters with the Toronto Star and the London Telegraph.

Richard Hofstadter, "The Paranoid Style in American Politics":

A final characteristic of the paranoid style is related to the quality of its pedantry. One of the impressive things about paranoid literature is the contrast between its fantasied conclusions and the almost touching concern with factuality it invariably shows. It produces heroic strivings for evidence to prove that the unbelievable is the only thing that can be believed. Of course, there are highbrow, lowbrow, and middlebrow paranoids, as there are likely to be in any political tendency. But respectable paranoid literature not only starts from certain moral commitments that can indeed be justified but also carefully and all but obsessively accumulates "evidence." The difference between this "evidence" and that commonly employed by others is that it seems less a means of entering into normal political controversy than a means of warding off the profane intrusion of the secular political world. The paranoid seems to have little expectation of actually convincing a hostile world, but he can accumulate evidence in order to protect his cherished convictions from it.

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I’ve been hearing Bush critics use an argument lately that goes something like this – if this really is the struggle of our lifetime, why haven’t you done X or Y or Z. It’s not so much that critics want X or Y or Z to happen, they just want to illustrate that Bush’s actions (as opposed to his words) don’t provide any evidence from which anyone could conclude that he actually believes his arguments.

Frankly, I’ve never found those critiques all that convincing. I mean, it’s at least possible to believe we’re in an existential war with Islamo-fascist-burgers without starting a draft, or without raising taxes, etc. But this Washington Post story (which isn't exactly new) describing how the CPA was filled with inexperienced party hacks (or their children) pretty much confirms what these critics are saying – the administration has never taken this war seriously in any respect other than politically.

A 24-year-old who had never worked in finance -- but had applied for a White House job -- was sent to reopen Baghdad's stock exchange. The daughter of a prominent neoconservative commentator and a recent graduate from an evangelical university for home-schooled children were tapped to manage Iraq's $13 billion budget, even though they didn't have a background in accounting.

Not to be too blunt, but this stuff got people killed. Getting these tasks right was essential back when we actually had some window to do something about them. But not only were they not done right, no one even made an attempt to do them right. Sending a home-schooled kid right out of college to run Iraq’s budget is about as clear a signal as you can send that you don’t really care about the job. But they’ve never really cared – about any of it. And if they do, there simply isn’t any evidence to convict them of that charge.

Other than words, of course. And that’s the real benefit of Bush’s abstract appeals to freedom. It allows him to escape reality – and wartime negligence – by appealing to abstractions. The thing about abstractions, though, is that they are inherently meaningless – they’re empty vessels into which people project what they want (e.g., both sides in the Civil War were fighting for “freedom”). And so any action, no matter how bad, can be justified if it is done for the sake of “freedom” or “liberty” or “Allah” or “the people” or whatever your abstraction of choice may be.

And that’s where we are today – the “idealists” are advocating to legalize torture in the name of “freedom,” while simultaneously transforming the fires of Baghdad into the birth pangs of a new "liberty."

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Toward the end of the Olbermann clip shown here (via The Moderate Voice), law professor Jonathan Turley offers another reason why Bush & Company are so anxious to get this legislation passed immediately. Turley's theory was that, because the CIA prisoners were transferred to Gitmo, that means the Red Cross will be meeting with them soon. When that happens, the Red Cross will disclose what interrogation measures the prisoners endured. These measures will include waterboarding, which is a clear violation of international law and thus the War Crimes Act.

In other words, they're covering their backsides from prosecution in addition to seeking authorization for these procedures going forward.

[UPDATE: Commenters have noted that Turley's theory is off because the Red Cross normally keeps this information confidential, and that its prior disclosure was an exception that won't likely happen again. I'll proclaim ignorance on this - I assumed Turley knew what was he talking about re the Red Cross. We'll see, I guess.]

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Although it’s still too early to tell whether the McCain faction will hold, I’m starting to get the feeling that Karl Rove may have overplayed his hand this time.

Contrary to my own predictions, the most high-profile issues right now are torture and Geneva Convention concerns (and not access to classified evidence). And for now, and to their credit, it looks like the Warner-McCain-Graham faction isn’t budging. Their stubbornness is creating two very big problems for the White House, and the GOP’s ‘06 strategy more generally.

First, it prevents the GOP from wedging and pounding Democrats on the military commission bills. As Josh Marshall and others have explained, the goal here was to split the Senate along party lines. And so the strategy was to come up with a bill so offensive that no Democrat could support it – or one that would have at least split the Democratic caucus. However, the bill has accomplished precisely the opposite – the Dems are united and the GOP is split. And that’s quite significant given that we’re within two months of the election.

That, however, isn’t Rove’s biggest problem. Yes, I’m sure he wants to wring John Warner’s neck right now, but he may have bigger problems – and that right soon. After all, Problem #1 only costs the GOP the ability to go on offense. The bigger problem (Problem #2), though, is that this manufactured dispute may soon put the White House on the defensive – and in a big way.

Very often, major news stories are significant not so much for the acts themselves, but because the acts reflect deeper cultural or socioeconomic forces lurking iceberg-like beneath the surface. The classic example is Rodney King – it blew up not so much because of the act itself or the trial but because of the underlying racial and economic tensions in Los Angeles in the early 90s. Thus, seemingly minor or isolated events can get really big really fast if they tap into larger, deeper questions and concerns.

We may be seeing this very process unfold in the context of the military commissions bill. The most visible story – the “superstructure” – is that GOP Senators are bucking the White House on a fairly complicated military commissions bill. However, the current media narrative is very simple – the Republican Party is fighting about whether to legalize torture. And in relaying this narrative, virtually every mainstream media outlet in the country (excluding partisan columnists, magazines, etc.) is going to paint McCain & Company as the good guys.

And that’s where the danger comes in for the White House. By sheer accident and lack of foresight, the “story” is now about whether America should legalize torture and/or cruel treatment. And the problem is that this simplified story may strike an even deeper nerve.

What I mean is that this dispute has the potential of escalating into a much more profound and high-profile debate about what exactly our nation stands for. It's sort like an arsonist who loses control of his fire, and then his house. If that happens, the debate wouldn't be about the military commissions bill per se, but about the nature of America itself. In short, Rove may have unwittingly brought America to an honest-to-God moment of truth.

Regardless of one’s fondness for Bush, there is certainly a great deal of uneasiness about America’s detainee practices post-Abu Ghraib across the political spectrum. Many people want to dismiss what they’ve seen as stray acts of bad individuals, rather than systemic policy endorsed by government, and thus, by our nation. That’s not America, they say. But the question now is whether America will in fact deliberately and consciously ratify these acts as national policy. Billmon says it well:

We are, in a sense, at the moment of truth. The sadistic and/or bizarre acts committed in Guatanamo, Abu Ghraib and the CIA's secret prisons can be written off as the crimes of a few bad apples with names like Bush, Cheney and Rumsfeld -- or, more charitably, as the consequences of a string of bad and brutal decisions made under emergency conditions by men who were terrified by all the things they didn't know about Al Qaeda. Either way, they were not acts of national policy, endorsed and approved by Congress after open, public debate. But, thanks to the Hamdan decision, the question is now formally on the table.

I think (or perhaps hope) that there’s a widely-shared desire to reaffirm our moral standing in light of everything we’ve seen, even among strong Bush and Iraq War supporters. And standing with McCain on this issue might offer Americans a chance at redemption – a chance to wash their hands of the past. (In their own minds that is – Iraq would still have been invaded, Abu Ghraib would still have happened, the military commission bill would still be very flawed).

The fact that Republican Senators are divided is a key catalyst to this sort of “higher” reflection across the political spectrum. If Bush had successfully split the Senate along party lines, many Republicans' default settings would have kicked in and they would have ignored Chuck Schumer on the Sunday talk shows. But the fact that the GOP is split makes them stop and at least give the arguments a chance. (Democrats have default settings too - David Broder: Well said).

And if they stop and think about it, they may realize what’s actually happening here – the President of the United States is attempting to authorize torture and cruel treatment as national policy. And he is doing so as a political strategy.

That’s the kind of narrative that can blowback and burn you. Under the emerging media narrative, the choice is clear – do you support authorizing torture or not? Congressional leaders – and conservative pundits – will have to ask themselves if they really want to put their names on the historical record supporting the authorization of torture. Why Democrats would run from elevating this issue is beyond me.

Of course, this may all be a delusion, and McCain may cave tomorrow. But if – just if – Rove’s final campaign is a failure because of the backlash created by his decision to base the GOP’s electoral strategy on support for torture, well, folks, that’s the kind of irony that only an Intelligent Designer could create.

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Andrew McCarthy:

In this war, there is one overriding question: Where are they? . . . Senator McCain and his entourage, Senators Lindsey Graham and John Warner, are making it ever more difficult to answer that question. They, like the JAG corps they champion, lack the vision to peer beyond familiar standards designed for dated challenges. They are an anachronism. We can admire their moorings in an era of honor — of nation-states and humanity and civilized hostilities. But we can’t afford it if they look at Zarqawi and see Hector.

Praxis Rerum Criminalium, 1556.

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Sorry for the slow-going on posting - I'm having one of those days weeks months.

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Billmon had a good line a while back about military planning: There's a saying: Amateurs talk strategy; professionals talk logistics. I think that’s true for politics too. The biggest mistake that amateur observers (like myself) make is that they overrate ideas and strategy, and underrate money and machines. You hear it a lot — Joe Schmo has $X more cash-on-hand, but it usually goes in one ear and out the other. The amateurs (again, me) are too busy thinking about the speeches they’d write, the commercials they’d make, or the vicious attacks that would win the day.

That stuff is important, but sad to say, it’s usually less important than money and infrastructure. To me, that’s what the significance of the Chafee victory is. As this Post article explains, the efficiency and effectiveness of Chafee’s get-out-the-vote (GOTV) operations (powered by RNC operatives, connections, and cash) won the day. And I hate to give in to the narrative, but it is a warning bell about how good the modern Republican Party has become at the logistics of winning elections.

Maybe some Rhodies can comment and correct me, but I don’t think Linc’s campaign was high on ideas and lofty strategy. I mean, what does that guy represent anyway? He seems to me to be the epitome of timidity and cowardliness.

So instead of developing abstract meta-strategy, Linc and the RNC went logistical. And they did it early. And rest assured that operations described in the Post will be in full effect in places like Ohio and Missouri:

The Rhode Island effort offered a window into how a mobilization program unfolds.

About six months ago, the National Republican Senatorial Committee sat down with the Chafee campaign to construct a voter-turnout program. Weekly phone calls followed and a number of NRSC senior staffers -- including political director Blaise Hazelwood -- made regular trips to the state to ensure the structure was being built. They identified potential Chafee voters and pressed Democrats to change their party identification to “unaffiliated,” a move that would allow them to vote in the Republican primary.

As the campaign wore on, Republicans began another slew of phone calls to unaffiliated voters to tell them that they could vote for Chafee and then immediately change their registration back to unaffiliated or Democrat. The RNC road-tested a new technology in the race that officials said is making their targeting program faster and more precise. It is based on a program that allows volunteers to call potential voters, note their political views and preferences on sheet of paper and immediately scan the results into a huge database known as the Voter Vault. Experts in the political practice known as microtargeting can then instantly analyze the results to determine which issues are moving voters and adjust their pitch.

I’m not sure whether to be awed or terrified. Voter Vaults and computer targeting programs don’t exactly make for good Norman Rockwell-type images of democracy.

Anyway, it’s easy to lose sight of it, but elections (in the age of networks, cells, etc.) are about microstructure (i.e., infrastructure). The strength of operations at the microstructure level is where campaigns are ultimately won or loss. And that’s why money matters — money lets you build that microstructure. Yes, commercials are important, but think about what needs to happen on Election Day on the precinct level. You need people to remind others to vote, to transport them to the polls, to call their neighbors — and you need to have precinct leaders supervising all this stuff. All of this turns on having some sort of infrastructure (which generally turns on money).

That’s why religious conservatives have been such an electoral force. They have pre-existing infrastructure via their congregations and the networks of congregations in their community. The type of infrastructure campaigns try so hard to build already exists for churches. Unions are precisely the same (which is Reason #1,000,001 Democrats should be doing more to strengthen unions).

I said my peace on this in 2004, but infrastructure-building potential is also what’s so promising about the so-called netroots (and what was so innovative about the Dean campaign). They may be overhyped right now, but they do provide a virtual infrastructure that has produced real benefits in terms of fundraising, activism, and GOTV operations (see, e.g., 2004 election, Lamont). It’s still in its early stages, but if say Gore jumps in for 2008, I think you’ll see an instant outpouring of money and volunteers that will dwarf Howard Dean.

But anyway, the bottom line is that GOP’s ground game is really really good, and getting better all the time. And as Linc showed, that stuff matters. For that reason, I’m becoming increasingly skeptical the GOP will lose this House this year (though it’s also for underlying structural flaws such as gerrymandering — but that’s a different post).

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The emerging narrative on the rival military commission bills is that noble Senators (Warner, McCain, and Graham) are doing battle with the big bad Bush administration in defense of the rule of law. Don’t believe the hype. The bills aren’t really that far apart (particularly on the issues that matter). And so I fear that the high-profile narrative of “conflict” obscures the fact that both of these bills are really bad. In short, this is more or less a Kabuki dance, though it’s unclear whether the nobles realize they’re dancing.

Lots of people have excellent round-ups of the more troubling provisions of both Bush’s and Warner’s bills (e.g., Balkin, Hilzoy, Lederman I and II). I hope to get into more detail when I have some time, but let me try to lay things out at a more general level for now.

First, I really can’t stress how important Katherine’s point (at Obsidian Wings) is that people need to recognize that there are two distinct processes here — the combatant designation process and the actual military commission process. The former determines if you are an enemy combatant (EC), while the latter deals with your actual trial. What’s critical to understand is that nothing requires people designated as ECs to proceed to the second phase. That’s where the indefinite detention problem arises. Katherine explains:

But the crucial thing to realize about the military commissions is this: most prisoners in Guantanamo will never, ever see one. Ten have been charged so far. Maybe a few more dozen will be charged eventually. That's all. An overwhelming majority of the prisoners at the base will never be tried by a military commission.

Thus, in many respects, the military commissions are almost beside the point. Don’t get me wrong, they’re certainly important, but the bigger rule of law violations are occurring at Stage 1, not Stage 2 — largely because the due process afforded at Stage 1 is grossly inferior. And, critically, the ability to appeal these decisions is extremely narrow, while the ability to challenge the conditions of your detainment (in habeas, for instance) is non-existent (unless the Supreme Court rules these restrictions unconstitutional — which turns on Justice Kennedy and, yes, Scalia).

But that battle has already been fought and lost. That’s the state of law today — Congress approved it back in 2005 with the Detainee Treatment Act (DTA). Of course, the larger narrative there was that McCain had wrestled the administration down and forced them to accept protections against torture.

But McCain’s efforts were less successful than they appear. It’s true that the DTA formally bans torture. However, a subsequent amendment (Graham-Levin) allows evidence obtained by torture to be introduced. Further, the DTA cuts off detainees’ ability to raise claims regarding their torture (e.g., by prohibiting habeas challenges to the conditions of their detainment). Finally, it allows interrogators to use the “following orders” defense. Basically, it bans torture but prevents that ban from being enforced. And so the truth is that McCain allowed his amendment to be gutted at the same he accepted the glowing media praise.

[UPDATE: I failed to add that Hamdan ruled that courts have jurisdiction to hear habeas claims pending at the time the DTA was passed. The new bills would cut that off. This is further evidence that I need to get all this stuff down a little better before I start offering commentary (which I will do). To be honest, I should have been digging into this a long time ago.]

Fast forward to today. We’re now at the military commission stage. And despite the hubbub, the bills are very similar on most of the issues that really matter. For instance, both bills eliminate habeas for everything relating to the detention or conviction of the detainees. Both bills allow the admission of evidence obtained by coercion (which is short of torture). Both of them apply retroactive immunity (though they do it in different respects). And both of them narrow the War Crimes Act.

But there are differences. From what I can gather, the material disputes are: (1) certain trial procedural differences (e.g., ability to use concealed classified evidence); and (2) the scope of the War Crimes Act amendment (and the acts it would prohibit).

As I explained here, the current War Crimes Act criminalizes all violations of Common Article 3. Warner’s bill — like Bush’s bill — criminalizes only some of them and the proceeds to list those violations. This sticking point seems to be the ban on “cruel, inhuman, and degrading” treatment, which the Warner bill bans (see p.79). Bush’s bill doesn’t go this far. In fact — and this is almost funny — the subject heading of the corresponding section in Bush’s bill is entitled “Cruel or Inhuman Treatment,” (p.80), but the section never actually uses that language. (I think I saw Lederman make this point somewhere). Lederman speculates that this careful language is intended to allow them to continue with cruel and degrading treatment going forward.

I’m getting in the weeds here, but this is the section where the rubber will really meet the road. It will be interesting to see if McCain holds his ground here. My hunch is that the administration cares less about concealed classified evidence than they say they do. What they really care about (for obvious reasons) is narrowing the War Crimes Act. So don’t be surprised if they give in to McCain on the classified evidence (while the media fawns) while silently getting their way on the War Crimes Act language.

But the larger point is even if the Warner-McCain bill passes as is, the state of the law isn’t good because (1) the flawed combatant designation process remains in place; (2) habeas is completely gutted; (3) prosecution for past war crimes is impossible; and (4) the War Crimes Act is narrowed. And of course, the McCain bill is only going to get worse going forward.

Remember this as we listen to David Broder celebrate the inevitable “compromise.”

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Well, how was it? I've literally been working all night and haven't even looked around at the coverage. Though I'm sure I would have watched it if I had been home.

Thoughts? Should I watch it?

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I have a confession to make about 9/11. Despite my best efforts to repress these thoughts, I’ve been increasingly annoyed at 9/11 remembrances this year. I’ve also found myself getting angry at people on TV telling me to remember. I didn’t want to remember — I wanted to forget. I wanted it all to be over. I wanted the anniversary to come, go, and be gone. But these are bad thoughts. It is, after all, a day that should be remembered, both for its tragedy and its heroism.

But then I figured it out — there are actually two 9/11s. The first one is — the day. The attacks themselves with the lost lives and the tragic heroism and everything else we remember all too well. But that 9/11 no longer exists. Or more precisely, it’s been pushed aside by the second 9/11. And the second 9/11 is the political prop — a mangled, grotesque doppelganger of the first one that has been whored out on the political street for over four years now. The second 9/11 is the source of policies that have made the world far worse, and have killed many times the number of people who died in the Towers. And so, what’s truly tragic about the second 9/11 is that it threatens to forever stain the legacy of the first 9/11. Specifically, given the policies that have been (or will be) taken in its name, I fear that history may not care about what happened to us on the first 9/11, but will instead care only about what we did in response to the second one.

To back up for a second, I want to make clear that I’m not making light of the first 9/11. Not in the least. When remembering that 9/11, I focus not on the abstractions, but instead on the concrete reality. I don’t care about the freedom narratives, I care about the last cell phone calls to loved ones. And I’ve always been most haunted by the firemen and police officers — the men and women who saw the fires, laced up, and charged them. In the age of Seinfeld irony, they put blood in the abstract concept of heroism. And their existence was extinguished in the act of saving others. It was a thing of both tragedy and existential beauty. We can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.

And after 9/11, I brooded about their deaths more than anything else. I compared my life’s efforts (the acts of my existence) to theirs, and found mine lacking. Their lives were about something — mine, well, it remains to be seen. Self-absorbed, perhaps, but that was my experience of the day.

But all that is gone now. The loss, the heroism, everything — it has all been replaced by the second 9/11. And the second 9/11 is not the day, but the concept of the day. And more precisely, it is the concept that has been tailored and mangled to fit the needs of the Republican Party. This cheap imitation of the day has been dressed up and whored out to justify Iraq, to justify torture, and to justify a political and policy agenda that has destroyed tens of thousand lives and made us reviled throughout the world.

And those are the reasons why I (like many liberals I suspect) have been annoyed with the 9/11 remembrances. We feel like we have to go along, but inside we resent the anniversary and want it to be over. Inside we’re coming to hate the day. But we shouldn’t. That’s because it’s not the day we hate, it’s the second 9/11. It’s the Frankenstein-like creation that Bush and Cheney and Rove created for political reasons.

And it’s perfectly rational to have animosity toward the second 9/11. Starting within months of the day, the second 9/11 was used and invoked only for naked political purposes — to elect Republicans, to defeat Democrats, and to enact policies that many progressives morally and philosophically reject at their most fundamental core.

Let’s start in 2002. Beginning in the fall, the second 9/11 was trotted out in the most cynical and political of ways to build up support for a war most liberals profoundly disagreed with. Even assuming there were good arguments for war, the Republican Party created a hysterical environment that ensured that no rational thinking about the war could take place. Unlike Bush I (whose superiority to the son increases with each passing year), the Republican Party scheduled the Iraq vote one month before midterm elections. In the run-up to the vote, they used the first 9/11 anniversary in the most cynical possible way. And it worked. America marched off to Iraq and the Democrats lost the Senate.

And this explains much of the liberal hostility to the second 9/11. They rightly see the second 9/11 as the cause and justification for the Iraq War and their own political defeats.

Moving forward, before the 2004 elections, evidence of widespread systematic torture came to light. On top of that, Americans read leaked legal memoranda justifying torture on such specious grounds that they might as well have come from an old Communist regime. And then there’s lawless Guantanamo to boot with God only knows what horrors and abuses that will ultimately be uncovered. The justification for all this lawless behavior was (and is) the second 9/11. Without such actions, they say, we’ll have another 9/11.

And then there's the 2004 election — I spent about a year talking about that one, so I won’t revisit it.

Fast forward to 2006. Once again, Bush is trotting out the old whore for another night on the political street just in time for the election. This time, the administration is using the actual planners of the day to justify legislation that amends the definition of war crimes, frees them from any liability under the war crimes statute, renounces many of our obligations under the Geneva Convention, and cuts off virtually all court review of military commissions, and more critically, the enemy combatant designation process (thus ensuring indefinite detention without the possibility of court review). (On the last point, see Katherine's post at "the Wings"). This fall, you can either support this wretched legislation or you support KSM. And so once again, the second 9/11 is being used to force opponents to support deeply-flawed policies and to make political gains in the fall elections.

And then there’s Iran. The second 9/11 may yet be trotted out to start what would be a disastrous (and frankly, criminal) war.

And that’s what’s so maddening about Bush’s prime-time speech tomorrow. Because he’s the President, he can claim to be giving an important national speech about the day — the first 9/11 — which was of course a national tragedy. But the reality is that this speech is part of a week-long campaign strategy for the fall elections. Everyone knows it, but the networks don’t have much choice but to let him have his time.

Of course, the answer to all this isn’t to whine, but to fight back (as I explained in detail here). But I for one will not be watching the speech. Nor will I pay an ounce of attention to people at, say, the Corner who tell me why the memory of 9/11 should steel our resolve to finish wars that can’t be finished, or to start wars that can’t be won.

But the day should be remembered. And that’s really the broader goal of the elections right now — to wrestle 9/11 out of the hands of George Bush, who has exploited and demeaned it again and again for over four years now. If the people who act this way aren’t repudiated, then I fear the legacy of 9/11 will be one of hatred and resentment for what we did in its name rather than what was done to us. And if that happens, then the sacrifices and the losses will be remembered by future generations only in association with policies that made the world worse.

America shouldn't let that happen. We owe our heroes more.

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The most shocking parts of the Senate Intel Committee Report have virtually nothing to do with its substantive conclusions. The fact that the Report further confirms that claims of al Qaeda-Iraq links were bald-faces lies isn’t exactly new (to sentient beings, that is). And although the Report illustrates why no one on Earth is better-suited to be the official Cheney biographer than Stephen Hayes, that's not all that surprising either.

What is surprising is that Hagel and Snowe jumped ship and voted to confirm several conclusions that make the administration look very bad. Because they jumped, people like Chambliss and Hatch (deep policy thinkers that they are) were relegated to minority report status on a GOP-majority committee.

But what’s even more surprising is the timing of the release. The Committee plopped this bombshell on the public two days before 9/11 and in the middle of Bush’s now-stumbling political offensive. Maybe I’m too cynical about these things, but why now? Snowe and Hagel are Republicans after all — why would they support releasing it now? Surely they get the strategy memos, right? (well, maybe not Hagel).

Or maybe I’m reading too much into it. Maybe it’s always been planned for release right now. Anyone know?

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It's also becoming clear that I should have looked more closely at the classified evidence issue (i.e., whether a person can be convicted on evidence they don't see). But I guess I'm confused about what the bill actually does or doesn't say. The Post says this:

During the trials, prosecutors would be permitted to use classified information to secure convictions; defendants and their lawyers would not be told about such information.

The bill, however, says this:

(5)(A) Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted under subparagraph (4) [describing procedure for admitting classified evidence].
(B) Civilian defense counsel shall be permitted to be present and to participate in all trial proceedings, and shall be given access to evidence admitted under subparagraph (4), provided that civilian defense counsel has obtained the necessary security clearances and that such presence and access are consistent with regulations that the Secretary may prescribe to protect classified information.

Maybe I'm missing something, but it looks like they can't conceal this information from defense counsel, who could then challenge or expose egregious behavior (and from what I understand, defense counsel is required).

That said, there are problems. For instance, the defense counsel can't share this with his or her client. And the individual may see concerns or issues in the evidence that aren't on the counsel's radar. It also seems that individuals should be allowed to see the basis of their conviction, just as a matter of fairness. And finally, if the JAG people and Warner think this is a major problem, then I'll certainly defer to them.

And on a final note, I should be clear that I don't think Bush's bill is a good one, or should become law. My point was more that it does contain some legitimate protections. And the fact that the administration has been forced to give up this much is in itself a victory of sorts.

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Well, I just found out that I was (shockingly) too quick to offer some praise for Bush's bill. In the immortal words of Richard Marx (Karl: no relation), I shoulda known better. (I can't take credit for the following insight, so thanks to Katherine for the helpful email).

Anyway, it's not so much that these military commissions are bad, it's that they're largely beside the point. Most detainees won't see them. That's why the most significant section of the Bush bill is probably not the War Crimes Act amendment, but the amendment to the habeas statute (p.77-78).

Anyway, I'll explain more tomorrow - I had a crazy day today. But there's a lot more to say, so stay tuned. To be honest, I should have been more keyed into this debate a long time ago.

And for those of you who didn't grow up watching MTV, here's the inspiration for this post's title:

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I scanned Bush’s military commissions bill and finally had a chance to sink my teeth into some of the legal issues swirling around this controversy. And so I’m just beginning to grasp how thoroughly Marty Lederman has worked through the legal ins and outs of all this stuff. I’m eagerly awaiting fuller assessments from Lederman and Katherine at Obsidian Wings, but until then, I’ll take a stab at it.

First, although I know it’s better to stick as closely as possible to the courts martial system (which is what the Warner-McCain bill does, I think), this bill is a dramatic improvement over the status quo in many respects. Yes, given the players involved, I’m sure the poison pills will come to light, but it’s worth noting a few positive provisions:

(1) - Citizens are not subject to these commissions (p. 15).
(2) - The accused are entitled to know the charges against them (p.23-24).
(3) - Statements obtained by torture (as defined) or even coercion are inadmissible (p.24).
(4) - Hearsay is admissible, but the judge has the flexibility to exclude it (p.25-26).
(5) - Even though classified evidence can be admitted in the absence of the accused, the government has to let the defense counsel see it (p.34). Same deal with classified exculpatory evidence (p.40-41).
(6) - A unanimous verdict is required for death penalty (p.44).
(7) - The accused have double jeopardy protections (p.37-38).

To be clear, there may be a lot I’m missing – I haven’t spent as much time on these issues as I would like. (Help me RhondaKath-rine, help help me Kath-rine). And there are certainly areas of concern, particularly the narrow appellate/habeas jurisdiction. But this appears to be a long way from the status quo, which is in and of itself a victory for the efforts of rule of law advocates.

That said, the bill’s most troublesome provision is – as Lederman recognized – the narrowing of the War Crimes Act. I’m going to try to lay this out in a way that non-lawyers will hopefully find clear (and possibly interesting).

Anyway, one of central issues in this debate has been so-called Common Article 3 of the Geneva Convention. The gist of why Article 3 matters is that it imposes obligations with respect to non-soldiers. Specifically, it prohibits states (i.e., signatories) from doing certain things to non-soldiers:

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The reason these provisions matter is that the federal War Crimes Act criminalizes any and all violations of Article 3. Here’s 18 U.S.C. 2441:

§ 2441. War crimes

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
. . .
(c) Definition.— As used in this section the term “war crime” means any conduct—
. . .
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict.

To recap, the war crimes statute – in (c)(3) – incorporates Article 3 in its entirety. If you’re with me so far, you can see why Bush’s proposed bill is problematic. Bush’s bill (p.79-80) strikes (c)(3) and replaces it with a new (c)(3):

“(3) which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva 12 August 1949, when committed in the context of and in association with an armed conflict not of an international character—[it goes on to list examples]

Notice what they did? They basically changed “all” to “some.” Right now, all violations of Article 3 are war crimes. If this bill becomes law, only “some” of them will. As Lederman pointed out weeks ago regarding a prior draft, the listed violations omit “humiliating and degrading treatment.” Even worse, they apply this new language retroactively (p.86), which immunizes people from past violations that would not be covered under the amended War Crimes Act.

Lederman’s theory is that immunizing past conduct isn’t really the point given that the President himself decreed (pre-Hamdan) that Article 3 doesn’t apply in our war against radical-jihad-islam-o-burgers-with-cheese-hold-the-pickles. Lederman argues that the amendment is more about allowing them to humiliate and degrade (and maybe waterboard) going forward. Maybe he’s right, but I suspect the retroactive provision is meant to eliminate any risk. After all, not going to jail is a pretty big motivation. No need to take chances, eh Donny?

There are of course lots of interesting political angles too – and I’ll get to those later.

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I won't have time to assess all this until tonight, but I really really hope the White House didn't just sign up the planner of 9/11 to be a key member of the GOP's fall campaign team.