Monday, March 9, 2009

Secret Laws

I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. -- George W. Bush, June 26, 2003.

Ninety-nine percent of what we do is legal. -- Scooter Libby, quoted by Jane Mayer in Chapter 12 of The Dark Side.

In This Week's Sift:
  • Secret Laws: Nine Bush Memos Declassified. If the Bush administration had really believed in its theory of presidential power, it wouldn't have been classified.
  • The Next Time You're in the Bookstore ... look for Jane Mayer's The Dark Side. It's the best summary of the Bush administration war-on-terror story.
  • Tigerhawk. I develop sympathy for a maligned conservative blogger.
  • Short Notes. A couple scoops from the Onion. Thomas Friedman's biggest mistakes. Atlas Shrugged as prophesy. Is Tim Geithner starting to sound like Donald Rumsfeld? Jon Stewart vs. CNBC. And more.

Secret Law: Nine Bush Memos Declassified
By now you've probably heard of the nine Bush administration memos that got declassified and released by the Obama Justice Department last Monday. I've skimmed a couple of these memos, but haven't gone through them all in detail, so I am relying on people who have: Scott Horton, Glenn Greenwald, and Jack Balkin. (Back in April, I went through the Yoo torture memos line-by-line, so I'm not surprised by anything I'm reading now.)

The memos, prepared by the Justice Department's Office of Legal Counsel (OLC) shortly after 9/11, say that the president can order military operations within the United States, and that the Bill of Rights would not apply to these operations. Also, according to the NYT:
the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.
The newly released memos have gotten a lot of coverage in the press, but I think one point is so basic that it's in danger of being missed: Why on Earth should legal opinions be classified in the first place?

In my previous life as a mathematician for the MITRE Corporation, I had a clearance and occasionally ran into classified documents. Usually, the classified pages in a document were very specific and technical -- the exact specifications for some radar or communications system, for example. But you wouldn't classify an abstract discussion of radar or communications. Those theories are in textbooks.

These secret memos, by contrast, don't reveal detailed government plans that would be useful to our enemies. They put forward an abstract legal theory that Jack Balkin sums up like this:
The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary.
If that theory is true, then it shouldn't be classified, it should be in Civics textbooks. We should proudly teach our children that our rights exist by sufferance of the president, who could revoke them all if he so decided.

Secret law -- and when an "interpretation" stands the written law on its head, in essence it becomes a new law -- runs against our entire legal tradition. As far back as the Roman Republic, the West has believed that laws should be written down and displayed in clear view.

Why did these memos have to be classified? Because they're absurd. You never need to classify the fact that 2+2=4. But if you want the government to operate under the assumption that 2+2=5, then you do have to classify it, because your government will be a laughing stock otherwise.

Background. If you've been reading the Sift for a while, you have run into the Justice Department's Office of Legal Counsel (OLC) before. It is the highest legal authority inside the executive branch of government. Unless and until the courts directly contradict it, the OLC's interpretation of the law is official. So if lawyers from the Navy disagree with lawyers from the State Department, an OLC opinion settles the matter in the same way that a Supreme Court opinion settles disagreements between lesser courts

Like the Supreme Court, the OLC can be extremely powerful if it falls into the wrong hands. It can declare that black is white, and (so long as the issue stays out of the courts), the rest of the government is forced to go along with the assumption that black is white.

Bush defenders frequently ask some version of this legitimate question: Shouldn't the president be able to respond to whatever comes up, even if the law or the Constitution didn't foresee this exact situation? If you get into one of those ticking-nuclear-bomb scenarios, you don't want the president waiting for an act of Congress before he does anything about it.

In such a situation, the president should act more-or-less the way Lincoln did: Do what you need to do, then go confess your sins to Congress. At that point Congress can either retroactively approve your actions or start impeachment proceedings. Instead, the Bush administration made up bogus legal theories about why they didn't need anybody's permission or approval. Consequently, we (and Congress) still don't know most of what they did.

The Obama administration doesn't want former enemy combatant Jose Padilla to be able to sue John Yoo for his mistreatment.

Glenn Greenwald looks at Britain's reaction to the allegations that Binyam Mohamed, a British resident recently released from Guantanamo, was tortured there with the knowledge and assistance of the British government. He finds their public discussion strikingly different from ours.

the tacit premise of the discussion is that credible allegations of criminality -- even if committed by high government officials, perhaps especially then -- compel serious criminal investigations. Imagine that. How shrill and radical.

The Next Time You're in the Bookstore ...
... look for The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals by Jane Mayer.

Mayer has been covering civil-liberties issues for the New Yorker all through the Bush administration. I find I agree with the WaPo review by Andrew Bacevich: This book's "achievement lies less in bringing new revelations to light than in weaving into a comprehensive narrative a story revealed elsewhere in bits and pieces."

I've read a lot of the Bush administration books and articles, and reviewed some of them here on the Sift, so few of the specific events in the book were new to me. But seeing them all laid out in order from 9/11 to last April provided a new depth and perspective. If you've been reading reviews of the various war-on-terror books and thinking you should get around to reading one someday, put those aside and read this one.

Seeing the whole story in one place deepened my feel for the characters. Mayer's Dick Cheney, for example, is not a one-dimensional Dr. Evil. Instead, he seems like a man afraid to admit that he's out of his depth. Cheney came to office with no background in terrorism, the Muslim world, counter-insurgency, interrogation, constitutional law, or any of the other issues that instantly became central after 9/11. Suddenly, the country needed a strong vision from its leadership, and no one else was in a position to provide one -- certainly not President Bush, who hated briefings longer than five minutes.

The emergency post-9/11 mentality was in part an overreaction to the administration's neglect of terrorism pre-9/11, coupled with an administration-wide character flaw that didn't allow them to admit or learn from their mistakes. The true story of 9/11 is that collectively the government had all the information it needed to prevent the attack, it just didn't route those bits of information to people who could have put them together and acted on them. 9/11 was a failure of management, not of power. But the administration was congenitally incapable of telling the story that way, even to itself. Instead, 9/11 was always invoked to support the government's push for more power: the power to spy, to torture, to invade.

Much of the book follows the lawyers of what became known as "the War Council" -- essentially a shadow government consisting of the major players' legal counterparts: David Addington (Cheney), Alberto Gonzales (Bush), Jim Haynes (Rumsfeld), and John Yoo (who technically was under Ashcroft, but was really a loose cannon). Addington (like Cheney) dominated the group, while Gonzales (like Bush) was a lightweight who never really wielded the power he had on paper. It's doubly interesting who was left out of the group: Ashcroft, as well as the top lawyers of the FBI, the State Department, or the military judge advocate generals (JAGs).

this insular, unelected, self-reinforcing group, with virtually no experience in law enforcement, military service, counterterrorism, or the Muslim world, was in position to make many of the most fateful legal decisions in the post-9/11 era. ... “Addington spoke authoritatively about what the President decided in 2002, but he wrote the document, and it was probably his decision,” a former White House official said later.

The War Council's lack of relevant experience led to some major mistakes. For example, the original Guantanamo military tribunals were based on tribunals convened by FDR -- ignoring the subsequent Uniform Code of Military Justice established in 1951. Any military lawyer could have told the War Council that the JAGs would consider this a return to the Bad Old Days -- but no military lawyers were present when the decision was made.

The torture policy was based on a similar lack of experience. This story is worth repeating in its entirety:

The FBI had an embarrassing firsthand reminder of why such tactics are illegal when, immediately after September 11, they coerced an Egyptian national who had been staying at a hotel near the World Trade Center into falsely confessing to a role in the attacks. Abdallah Higazy, like the other hotel guests, fled when the hijacked planes smashed into the towers. Soon after, the hotel told the FBI it had found in his closet a radio communication system for air pilots. The FBI took Higazy into custody. According to Higazy, an FBI agent told him that if he didn’t confess that the equipment was his, and that it connected him to the Al Qaeda attacks, his family in Egypt would be tortured. After first denying the charges, Higazy confessed under the pressure. Luckily for him, an airline pilot who had also been a guest at the same hotel soon returned to ask for his radio back.

Again and again, torture led to false testimony. (Colin Powell was convinced to make his famous presentation to the UN after he was unknowingly given false testimony produced under torture.) That was entirely predictable: The enhanced interrogation techniques came from the SERE school whose purpose was to train American soldiers who might face torture if captured. Ultimately their techniques were copied from the KGB, who intended to produce false confessions.

The program and their claims were never subjected to any independent analysis. They always went back to the same people who were running the program at the Agency to ask if it was working, and they always said it was.

My takeaway from The Dark Side is to be more convinced than ever that President Bush himself needs to be put on trial. The only motivation lawyers have to tell their clients things they don't want to hear is to keep those clients out of jail. If presidents can't go to jail, no matter what they do, no one will ever tell them No.

I haven't gotten around to reading David Kilcullen's new book about counter-insurgency yet, but Andrew Bacevich has.

Sometimes I don't understand my own liberal-blogger tribe. A minor conservative blogger named Tigerhawk put up a video explaining that well-to-do professionals like him (the over-$250,000 folks whose taxes Obama wants to raise) work extremely hard and are not the villains of this financial crisis. He recommends that Obama come to them with more of a your-country-needs-your-help message than a you-haven't-been-paying-your-fair-share message.

Reasonable stuff, as far as it goes. (I'm sure lots of minimum-wage people work hard too, when you lump their three part-time jobs together.) But I wouldn't have found this video at all if the liberal blog Sadly, No! hadn't picked it out as an example of rich people's whining arrogance. I didn't react that way at all. In fact, wandering around Tigerhawk's blog, I realized this was gold as far as I'm concerned: a conservative blogger who seems to have some standards about facts and logic. No ranting about Obama's birth certificate or how we need to have an armed insurrection to keep the country from going Communist. (I think it helps that we're both Big Ten fans raised in the Midwest. The "hawk" part of his name comes from the Iowa Hawkeyes.)

I've recommended a lot of liberal blogs, but I think it's important that we not become an echo chamber. So I'm adding Tigerhawk to my bookmarks and I'll drop in now and then to see how things look from the other side. Catching up a little: Tigerhawk's take on the financial crisis is pretty interesting. It's reassuring to know that a (self-described) conservative CFO from a medical device company tells the story pretty much the same way I do. And his questions for health care reformers are pretty good, if somewhat affected by the whole medical-device-company thing.

Short Notes
If you needed any more proof that pundits don't belong to a meritocracy, Vanity Fair summarizes the most outrageous predictions of Thomas Friedman.

The Onion reports that American blacks are being "creeped out" by all the positive responses they're getting from white strangers now that Barack Obama is president: smiles, pats on the back, offers to fist-bump or high-five. "To be honest, you people are kind of terrifying when you're happy," says one. And another adds: "I know you mean well and all, but seriously, knock it off. You're giving my children nightmares."

Another Onion scoop: A school-board member in Arkham, MA wants the curriculum to reflect a really old-time religion, preparing students for the apocalyptic return of the Elder Gods.

This one isn't from the Onion, it just sounds that way. Republican Congressman John Campbell:
we’re living through the scenario that happened in Atlas Shrugged, The achievers, the people who create all the things that benefit rest of us, are going on strike. I’m seeing, at a small level, a kind of protest from the people who create jobs, the people who create wealth, who are pulling back from their ambitions because they see how they’ll be punished for them.”
Speaking as somebody who was a huge Ayn Rand fan in my misguided youth, this is deeply weird. Picture it: Somewhere there's a guy who has the next Google or Microsoft in his head, but when he sees the capital gains tax going up to 20% he thinks: "Why bother? I'd only get to keep 80% of those billions. I'm not going to take that kind of punishment." How likely is that?

Tigerhawk provides an interesting datum: On March 3, Atlas Shrugged was up to #38 on Amazon's sales list. I just checked, and it's still at #54. Not bad for a book published in 1957.

California's Proposition 8 saga continues. The ballot initiative to make same-sex marriage illegal again (and give involuntary divorces to thousands of same-sex couples) passed in November. Now the state's Supreme Court is hearing a case challenging Prop 8's legitimacy.

The issue here sounds technical: Is Prop 8 a constitutional "amendment" (as it claims to be) or a "revision"? Amendments are narrow and can be passed by majority vote, while revisions are more sweeping and require either 2/3rds of the legislature or a constitutional convention. It's an important distinction, because California's amend-the-constitution-by-majority-vote provision is insane without some strict limitations. Otherwise, a simple majority could proclaim Schwartzenegger dictator-for-life.

Congress may become a branch of government again: It looks like Karl Rove and Harriet Myers are finally going to have to testify about the US atttorneys scandal.

Al Rodgers on DailyKos collects a few Daily Show clips that prove a point: Jon Stewart is more on top of the financial crisis than the so-called "serious" reporters are. My favorite moment comes during his conversation with NYT financial reporter Joe Nocera (about the 4:25 mark in the third clip), when Jon nails CNBC's fawning interviews with the very people who turned out to be at the center of the disaster.
It'd be like the Weather Channel interviewing Hurricane Katrina and saying "You know, there's a report that you have high winds and flooding." And Katrina's like, "No, no, no -- I'm sunny." And they're like "All right" and they walk away.

This clip from Tim Geithner's testimony to the Senate is disturbing, because he doesn't answer Senator Cantwell's question about the AIG bailout. In essence AIG is a conduit: It insured bad debts for other financial institutions, so as the debtors default, the federal bailout money is flowing through AIG to those other institutions. Cantwell is trying to get Geithner to say who the insured institutions are and how much they're getting, but he provides no specifics.

The worrisome thing is that Geithner seems to be taking the same attitude towards Congress and the bailouts as Donald Rumsfeld took towards Congress and Iraq: Your job is to keep writing the checks. We'll decide what you need to know about where the money is going.

It started out as one of the more bizarre stories that the Republicans made up about the stimulus bill: Harry Reid was setting aside $8 billion to build a mag-lev train from Disneyland to Las Vegas. Now the story is getting even better, as stories unconstrained by reality often do. In the new version, the train goes from Disneyland to a particular Nevada brothel, which in the real world is nowhere near Las Vegas. And Fox News is reporting it all as fact.

The New Yorker's Atul Gawande has an interesting take on the health care system: We should build on what we have. I was skeptical, but then he retells the history of how other countries got their health care systems.


TigerHawk said...

Thanks for the nice note. I admit, I was surprised at the intensity of the reaction from others on the left, but perhaps that only shows how out of touch I am.

Doug Muder said...


Thanks for dropping by. Come back sometime. I'm here every Monday.