Monday, October 19, 2009

Should I Be Happy Now?

When the people are being beaten with a stick, they are not much
happier if it is called "the People's Stick".

-- Mikhail Bakunin

In this week's Sift:
  • Civil Liberties: Where Are We? Bush was bad, Obama is better. But is he better enough?
  • Hispanics Strike Back at Lou Dobbs. Should CNN spend an hour every night dissing Hispanics? And Jon Stewart wonders why CNN fact-checks SNL skits, but nothing else.
  • Short Notes. Which is scarier: Some vague number of Muslim interns who might be trying to infiltrate congressional staffs? Or four conspiracy-mongering wackos who have infiltrated Congress itself? You can argue that Obama's Nobel was undeserved, but unconstitutional? No, people are not praying to Obama. A tip: If you're planning to deny rape victims their day in court, don't let Al Franken interview you. The teabaggers turn on Republican Lindsey Graham. Bonddad is getting optimistic about the economy. And more.

Civil Liberties: Where Are We?
In my mind, the #1 reason to get rid of the Bush administration -- more important than wrecking the economy or starting two wars they didn't win -- was what they did to our rights and our system of government.

Teabaggers like to throw around words like tyranny, but everyone seems to have forgotten the Jose Padilla case. The Bush administration argued before the Supreme Court that the president could make an American citizen's rights go away just by signing a memo declaring him an enemy combatant. Padilla was eventually convicted of a vague conspiracy charge, but that was only after he had been held without charges for several years in conditions amounting to sensory deprivation. During his trial, his lawyers believed his treatment by the government had driven him insane.

While all that was happening, the only legal difference between Padilla and the rest of us was that memo signed by President Bush. Padilla was quite literally a victim of tyranny, and all of us were just one signature away from similar treatment.

So, are we better off now or not? Let's go issue by issue.

Enemy combatants. The courts largely rejected the Bush administration's arguments, but the administration maneuvered to prevent the Padilla case from becoming a binding precedent. (Just before the Supreme Court could rule on his detention-without-charges, the administration charged Padilla with a crime and made the case moot. They did something similar in the Rasul and Hamdi cases.) So we never got the ringing affirmation of our rights that would prevent the Obama administration from making similar claims. But so far it has not done so. Unless they're doing it secretly, the Obama administration is not holding any American citizens as enemy combatants.

Guantanamo. President Obama still has a few months to make good his promise to close Guantanamo during his first year. But the problem isn't literally Guantanamo, it's what Guantanamo represents: a legal black hole to swallow up the people we don't know what to do with. Bagram prison in Afghanistan is a similar black hole, and it remains open.

Torture. Back in January, President Obama issued an executive order (i) recognizing that the Geneva Conventions apply to everyone we detain; and (ii) limiting interrogation techniques (by all agencies, including the CIA) to those listed in the Army Field Manual. In less formal statements, all the Bush-administration word games about torture seem to have ended: It's illegal, and we're not fuzzing things up with euphemisms like enhanced interrogation.

Where the Obama administration falls down is in its insistence that we "move on". If torture is illegal, and if there are credible accusations that people have been tortured, then the rule of law demands that those alleged crimes be investigated and prosecuted. Attorney General Holder has opened the door to prosecuting low-level interrogators, but not to prosecuting those who gave the illegal orders. The administration is also fighting civil suits by torture victims against Bush officials.

People like Dick Cheney are claiming that torture is a "policy difference" between the administrations, not a crime. Obama is behaving as if he believes the same thing. And that means we'll likely start torturing again during the next Republican administration -- secure in the knowledge that no one is ever held accountable for such crimes.

Warrantless wiretaps. Wiretapping without warrants (and without any probable cause of wrongdoing on the part of the victims) may not have been the worst thing the Bush administration did, but it was the most transparently illegal. The Fourth Amendment couldn't be clearer:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That list -- "persons, houses, papers, and effects" -- constituted everything the Founders could think of. So the bias should be to interpret the Fourth Amendment expansively rather than tightly, and the courts generally have. If the Founders had used email, mobile phones, and computer databases, they would have been on the list too.

Here's what I'd like to see: A clear statement from the administration saying "This is what the Bush administration did. We think this part of it was legal and this other part of it was illegal. We've put a stop to all the stuff we thought was illegal." I haven't seen anything like that.

Administration officials have been cagey about saying what is legal and illegal. They've continued blocking the release of information about the program, and have repeated the Bush administration's abuse of the state secrets privilege to keep information out of court.

Have they stopped the law-breaking? My pro-Obama bias says yes, but who really knows?

Signing statements. When a president signs a bill into law, he sometimes issues a signing statement. The practice goes back to President Monroe and can have a legitimate role in the executive-legislative rivalry when used in good faith. For example, if Congress gives the President permission to do something he was going to do anyway, the President can defend his prerogatives in a statement saying, "Thanks, but I already had the power to do that."

The improper use of a signing statement is to invalidate the law, a practice that started in the Reagan administration (allegedly thought up by a young lawyer who is now Justice Alito), continued under Bush the 1st and Clinton, and then wildly expanded under Bush the 2nd. The statement can say, in effect, "For enforcement purposes, we're going to interpret the word up to mean down." The Constitution already provides the president with a veto (which, unlike a signing statement, Congress can override). If he doesn't use it, he should enforce the law as written.

Here's the tricky case: A tiny part of a large and urgent bill tells the president to do something he thinks is unconstitutional. So he signs it, but says, "I'm not going to do the unconstitutional part." The Founders didn't plan on that, but they also didn't plan on Congress passing omnibus bills with thousands of individual provisions.

In March, President Obama issued a memo describing his criteria for signing statements. He leaves open the possibility of ignoring unconstitutional provisions of laws, but says he will "use caution and restraint", grant that laws passed by Congress have a "presumption of constitutionality", and apply only "well-founded" constitutional interpretations (presumably a slap at the self-serving unitary executive theory of the Bush administration).

Charles Savage, the reporter who publicized the Bush administration signing statements, is keeping track of Obama's as well. So far he seems to be carrying out his stated policies in good faith.

Separation of powers. This is the issue where Obama has the best record, and he's getting no credit for it. On major issues like the stimulus bill or health care, he has insisted that Congress write the laws. This has led to some messy public debates and probably some bills that are not as good as if administration experts had written them behind closed doors and then shoved them through Congress, as the Bush administration used to do. But it's better democracy and healthier for our system of government.

Our media, however, has developed an affection for the imperial presidency, so letting Congress write the laws is often damned as "lack of leadership". Sometimes Congress itself seems to resent being asked to work for a living.

Summing up: Is Obama's civil liberty record better than Bush's? Undeniably. But I can't help feeling that an opportunity was missed. Obama's inauguration was the right moment for the U.S. government to plead temporary insanity. The precedents set by the Bush administration could have been rejected root and branch. Waterboarding and legal black holes could have joined slavery, the Native American genocide, Jim Crow laws, and the Japanese internment as things we did when we were crazy, and that no one should ever suggest doing again.

Instead, Obama is treating Bush's abuses -- now I'm doing it; they weren't just abuses, they were crimes -- as if they are part of the normal back-and-forth of American politics. Obama has (for the most part) stopped the assault on our rights, and has rolled back some of the worst Bush actions. But others he has ratified.

Procedures that survive administrations of both parties start to seem normal. On the whole, then, American democracy is going to come out of the Bush/Obama years in worse shape that it was at the end of the Clinton administration.

Hispanics Strike Back at Lou Dobbs
If you haven't listened to CNN's Lou Dobbs in a while, you'll be shocked when you do. He has joined Limbaugh, Hannity, Beck, and O'Reilly as cogs in the right-wing noise machine. No matter how meritless the latest wingnut talking points are -- ACORN, Obama's birth certificate, czars, and so on -- Dobbs reliably repeats them with proper outrage.

Lou has always had a populist streak, but he used to exercise it on issues like the shrinking middle class. But illegal Hispanic immigration has become his signature issue, and it has moved him to the Right. For a long time now he has been relentlessly pushing falsehoods about the crime and disease that Hispanic immigrants allegedly bring with them. This dirty-wetback image, in turn, leads to discrimination and even violence against all Hispanics, including American citizens.

Now Hispanic-Americans are trying to strike back with a campaign to get Dobbs fired. They're using the premier of CNN's Latino in America as a moment to focus on this issue. Check out their video and decide whether you want to sign their petition. Or watch the coverage of the anti-Dobbs campaign on GRITtv.

Dobbs is responding to this campaign with a specious free-speech argument. The First Amendment won't let the government put you in jail for what you say. But it doesn't guarantee anybody a TV show, as liberals like Phil Donahue and Bill Mahr know well.

Here's somebody else CNN might think about getting rid of: Alex Castellanos, whose consulting firm works for AHIP, the health-insurance industry PR group. Castellanos is introduced as a conservative or Republican commentator (which is fine), but viewers are not told that he is in the pocket of the health-insurance companies.

This brings back the question I asked in April 2008: Who works for you? When I watch a news channel, is it too much to ask that the commentators there -- liberal, conservative, or whatever -- be working for me to help me understand the world, rather than working on me for someone else?

Ditto for the liberal Richard Wolffe on MSNBC. The whole system is corrupt, not just one end of it.

Jon Stewart rips CNN for fact-checking Saturday Night Live's sketch making fun of President Obama, but not finding time to check all the misinformation their guests spew about health-care reform. And he wonders if CNN's crack staff has also discovered that land sharks do not deliver candygrams.

Short Notes
Florida is becoming famous for bizarre legal cases (Elian Gonzalez, Terri Schiavo). Here's another one. As I typically do in such cases, I've been trying to imagine how things would play out if the religions were reversed -- if Muslims were preventing a Christian family from reclaiming their daughter.

While we're talking about the Committee on American-Islamic Relations (CAIR), four Republican Congresspeople are demanding action based on a new book published by the conspiracy-mongering website WorldNetDaily (best known for its work on the burning issue of Obama's birth certificate). The book's author infiltrated CAIR as an intern, and has uncovered a conspiracy to infiltrate the staff of congressional committees as interns.

So having uncovered this dread conspiracy, can either the Congressional Republicans or WorldNetDaily give us the name of even one such intern? Can they name even one piece of legislation influenced by this conspiracy? Uh ... no.

What scares me here isn't the hypothetical Muslim interns -- interns, as we all know, being the very chrome on the levers of power. It's that Congress itself has been infiltrated by at least four conspiracy-theory wackos who think WorldNetDaily is a reliable source. (See Glenn Greenwald for more details on what he calls "the most despicable domestic political event of the year.".)

The Washington Post opinion section seem to get weirder and further to the right every day. Friday they published an op-ed claiming that President Obama's Nobel isn't just undeserved, it's unconstitutional. Fortunately, we don't have to get our constitutional interpretations from the Post when Yale professor Jack Balkin is still blogging.

This is how myths start: George Will criticized Obama's ego and vanity, citing as evidence that he overuses first-person-singular I/me pronouns. Anybody else who wants to make that point can now reference Will.

The problem: Will made the whole thing up. Mark Liberman of Language Log looked at the speeches Will was talking about, counted, and then examined comparable speeches by Presidents Bush the 2nd and Clinton. Obama actually uses significantly fewer I/me pronouns.

One more myth: The supposed clip of people praying to Obama. In some iterations of the litany, you can clearly hear the crowd saying "Deliver us O God." In other iterations they get out of rhythm, so there seems to be an extra syllable at the end. Jaundiced ears heard that garbled "O God-od" as "O-ba-ma". And now, in certain circles it is considered a fact -- don't tell us otherwise, we've seen the video -- that Obama is being worshiped as a god. Probably those are the same people who think he's the Antichrist. (I'm not sure how you fact-check somebody being the Antichrist, but Snopes says he isn't, in case you were curious.)

In spite of all the rhetoric about Obamamania and the Obama personality cult, progressives have in general been far more critical and less worshipful of President Obama than conservatives were of President Bush. Glenn Greenwald fleshes this point out.

Bill Mahr outdid himself in this clip. It wasn't until Bush got out of the way that comedians could give all the other ridiculous Republicans the attention they deserve. "This was truly a bizarre year for Republicans. Their sex scandals were with women."

It's good to have Al Franken in the Senate. Here he grills an attorney from KBR, a former Halliburton subsidiary that does government contract work in Iraq. In particular, Al is asking about their policy that all disputes within the company be handled by binding arbitration, and how that policy has applied to Jamie Leigh Jones.

I read some of your testimony to Ms. Jones. You said that the net result of the use of arbitration is "better workplaces". ... She was housed with 400 men. She told KBR twice that she was being sexually harassed. She was drugged by men that the KBR employment people knew did this kind of thing. She was raped. Gang-raped. She had to have reconstructive surgery, sir. ... And then, she was locked in a shipping container with an armed guard. Now, my question to you is: If that's a better workplace, what was the workplace like before?

Background: Mother Jones magazine (no relation) covers Ms. Jones' ongoing legal case. Fake conservative blogger Jon Swift summarized the conservative blogosphere's reaction to the case.

Franken's first legislative act was to propose an amendment not allowing such arbitration clauses to cover rapes of government contractors. It passed the Senate, but Jon Stewart wonders why 30 Republicans voted against it.

The Obama administration is changing federal policy on marijuana. The feds will no longer waste their resources arresting people who are in compliance with state medical marijuana laws. This is a victory for local control and states rights and all that stuff conservatives are supposed to like. Why do I think they won't applaud?

Studies show that many Americans (Harvard says 45,000 a year) die because they don't have health insurance. Faced with this argument, Senator Kyl counters:
I'm not sure that it's a fact that more and more people die because they don't have health insurance. But because they don't have health insurance, the care is not delivered in the best and most efficient way.
Translation: "Not gonna look. Not gonna look. Can't make me. Nyeah, nyeah, nyeah."

I'm sure Harvard has no answer for that.

I've mentioned before that the potential savings from reforming medical malpractice are trivial compared to the overall health-care budget. The Congressional Budget Office agrees.

For years there has been a gentlemen's agreement to pretend that Fox News is a legitimate news channel rather than the conservative propaganda vehicle that conservative political operative Roger Ailes founded it to be. The Obama administration has decided not to play along any more. It'll be interesting to see where that goes.

If you're feeling bad about your parenting, watch this. (The baby is OK.)

The Onion reports that 93% of all newspapers are bought by kidnappers.

Conservative politicians are only beginning to realize what genie they let out of the bottle when they pandered to the teabag protests. Here Lindsey Graham gets heckled because his global warming position is "a pact with the devil" -- i.e., John Kerry. One heckler yells over and over that Graham should read Article I, Section 9. I did. I have no idea what he's talking about.

Liberal economic blogger Bonddad loves graphs. He thinks they show the economy is starting to turn up.

1 comment:

Anonymous said...

Some months ago I started getting the impression that George Will was becoming a crabby curmudgeon, losing the writing and intellectual skill that caused me to read his stuff even though I disagreed with him.
By now I've stopped trying to read him, and I'm suspecting he may be losing more than skill.
- Ruth Bruns