Tag Archives: Nick Baumann

The Party Of No?

Nick Baumann at Mother Jones:

Rape is only really rape if it involves force. So says the new House Republican majority as it now moves to change abortion law.

For years, federal laws restricting the use of government funds to pay for abortions have included exemptions for pregnancies resulting from rape or incest. (Another exemption covers pregnancies that could endanger the life of the woman.) But the “No Taxpayer Funding for Abortion Act,” a bill with 173 mostly Republican co-sponsors that House Speaker John Boehner (R-Ohio) has dubbed a top priority in the new Congress, contains a provision that would rewrite the rules to limit drastically the definition of rape and incest in these cases.

With this legislation, which was introduced last week by Rep. Chris Smith (R-N.J.), Republicans propose that the rape exemption be limited to “forcible rape.” This would rule out federal assistance for abortions in many rape cases, including instances of statutory rape, many of which are non-forcible. For example: If a 13-year-old girl is impregnated by a 24-year-old adult, she would no longer qualify to have Medicaid pay for an abortion. (Smith’s spokesman did not respond to a call and an email requesting comment.)

John Cole:

I’m curious if Conor F. will call me shrill or over the top or accuse me of using vile rhetoric if I point out that this makes the GOP objectively pro-rape, to borrow some warblogger terminology from years gone by. That’s right, ladies- the only way you are allowed any say in a pregnancy resulting from rape is if the rapist roughed you up a bit. Otherwise, the fetus rules

Jim Newell at Gawker:

The fact that “forcible rape” has no real meaning as a federal legal term makes this all the more obnoxious.

Oh, and what about the incest exception? “As for the incest exception, the bill would only allow federally funded abortions if the woman is under 18.” You figure out the rationale on that one.

Charles Johnson at Little Green Footballs

Vanessa Valenti at Feministing:

So what’s your damage, guys? Boehner? Smith? Because all this does is make it all the more obvious of exactly how anti-woman your agenda is. Shame on you all.

James Joyner:

While I’m rather queasy about the whole thing, but am not convinced it’s as bad as all that.

First, as Benen acknowledges, this is simply a sop to the social conservative base.  It has zero chance of being passed into law, given that it’s not going to make it through the Senate, much less with enough votes to secure an override of President Obama’s inevitable veto.

Second, the rape exception was never logical but rather a concession to an emotional issue.  That is, if one believes a fetus at a given stage of development is a human life worthy of protection by law, the events leading to the pregnancy are irrelevant.  We don’t, after all, countenance the murder of post-birth children conceived pursuant to rape. But the idea that a woman should be forced to bear the emotional trauma of carrying a constant reminder of a violent, awful crime for nine months — and then be forced to either look at the child every day or bear the alternative trauma of giving up the baby — is just so emotionally wrenching that we’ve carved out an exception.  The fact that rape cases account for an infinitesimal fraction of abortions in this country also helps.

But does this really hold in the case of a statutory rape which, despite the name, frequently isn’t really a rape at all?   Again, this is a queasy subject.   We can all agree that a 9-year-old lacks the emotional maturity to give meaningful consent to sex with an adult and that an adult who violates a child is a rapist.   But we’ve raised the bar on childhood in recent years, extending it well into puberty. Within living memory, it was common, at least in rural areas, for girls to marry and start having children in early puberty.  Generally, with men significantly older than they were. Now, though, most states make it a crime for a 19-year-old to have consensual sex with their 16-year-old girlfriend.

Is a pregnancy arising from that circumstance really comparable to one arising from being jumped in a dark ally by a stranger and violated under threat of death?  Really?

But here’s the thing:  the sponsors of this bill aren’t proposing that we do away with statutory rape laws.  Indeed, they’re in common cause with those who made and enforce those laws. So, they’re in the bizarre position of both supporting the criminalization of teenage sex and yet arguing that the girl who the law says lacks maturity to consent to sex nonetheless has the maturity to have a child arising from said sex.

Furthermore, they’re undermining their own case here.   Abortion is already legal under most circumstances in America, a position that’s not going to change.  And government funding for abortion has been withheld almost as long; that’s also not going to change.    So, why attempt to move the bar ever-so-slightly in a direction that most Americans — including your core supporters — are going to find uncomfortable?   Especially when you know damned well that you can’t actually succeed?

Steve Benen:

In all likelihood, this bill, like the ACA repeal measure, wouldn’t stand much of a chance in the Senate, and would surely draw White House opposition.

But the fact that the bill actually reflects Republican priorities, and will almost certainly pass the House with overwhelming GOP support, speaks volumes.

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What The Hell Is Going On In Tunisia?

Andrew Sullivan has a great many posts on Tunisia. Video above is graphic.

Live blogs: The Guardian, Scott Lucas at Enduring America, BBC News

Paul Behringer at National Interest:

“Wildcat protests and rioting” have “shaken” Tunisia’s leader of twenty-three years, President Zine el-Abidine Ben Ali, according to the Wall Street Journal and New York Times. The demonstrations, which the United Nations says have resulted in over sixty deaths, were sparked at least partly by a WikiLeaked document written by the American ambassador (and cleverly titled “Corruption in Tunisia: What’s Yours is Mine”) in which he detailed the ruling family’s extravagent wealth (many Tunisians refer to Ben Ali’s extended relations as “The Family” or “The Mafia”). And what began in mid-December as one small-town street vendor’s self-immolation (after authorities took away his vegetable cart) culminated Thursday in the looting and destruction by protestors of a home owned by the president’s uncle in a wealthy seaside resort.

President Ben Ali, who originally took power in a bloodless coup, then gave a speech in which he promised to halt violent crackdowns on the demonstrators, open up freedom for the press and stop Internet censorship—and “cut prices for sugar, milk and bread.” He also promised to step down as president after his current term runs out in 2014, as required by Tunisia’s constitution. But the Times also reports that his effort to sooth the public’s anger (and save his own neck) have thus far come to naught.

Nick Baumann at Mother Jones:

Want to know what’s happening in Tunisia? Let me explain:

What is Tunisia? Tunisia is a mostly Arab, mostly Muslim country in North Africa. It is on the south side of the Mediterranean sea, east of Algeria and west of Muammar Gaddafi’s Libya. Its capital is Tunis, and it has been ruled by dictators since it won independence from France in 1956. The current ruler, Zine El Abidine Ben Ali (Ben Ali), has ruled since 1987. He is the kind of ruler who gets re-elected with 90 percent of the “vote.”

What’s happening? Violent riots and protests have spread across the country over the past four weeks. Now Ben Ali’s totalitarian government seems to be collapsing. (Elliott Abrams, a former Bush administration official who unfortunately is rarely right about anything, thinks that if democracy can take hold in Tunisia, is could spread elsewhere in the Arab world, too.)

Why are Tunisians unhappy? Well, they don’t have much freedom. But there also just aren’t enough jobs. Official unemployment is 13 percent, but it’s probably actually much higher. The combination of a repressive regime and a faltering economy is often bad news for the regime. Plus, the regime has diverted a lot of the country’s wealth to Ben Ali’s family and friends, so people are really upset about official corruption.

How did it all start? On December 19, authorities in the small, central city of Sidi Bouzid seized the produce cart that 26-year-old Mohamed Bouazizi was using to make a living. So Bouazizi set himself on fire. Young people in the small, central city of Sidi Bouzid rioted, and police moved to seal the city. In early January, Bouazizi died, becoming an early martyr for the cause. Brian Whitaker, the Middle East editor of the Guardian and a Tunisia expert, has a good article explaining how Bouazizi and Sidi Bouzid got the ball rolling on revolution.

Robert Mackey in NYT:

On Thursday, as protests continued across Tunisia, bloggers and eyewitnesses posted more video of the demonstrations online, including graphic images of protesters who have been gunned down on the streets.

One clip, uploaded by contributors to Nawaat — a group blog using Posterous, YouTube, Facebook and Twitter to spread news of the protests — showed a huge banner of the country’s president, Zine el-Abidine Ben Ali, being torn down in Hammamet on Thursday. As my colleague David Kirkpatrick reported from Hammamet, an exclusive Mediterranean beach town, “rioters calling for the ouster of Tunisia’s authoritarian president swarmed the streets, torched bank offices and ransacked a mansion belonging to one of his relatives.”

Despite apparent efforts by the government to keep Tunisians from using social networks to report on the crisis, new video continues to be posted day after day.

As the casualties mount, and the government continues to use violence to suppress the discontent, video of dead protesters has been added to Nawaat’s YouTube channel with disturbing regularity. On Thursday,  one extremely graphic clip, apparently filmed earlier in the day on the streets of Tunis, the capital, showed the body of a man the bloggers said was gunned down by a sniper.

Jillian C. York, on 1/13:

An email from Youssef Gaigi:

Today’s speech shows definitely a major shift in Tunisia’s history.
Ben Ali talked for the third time in the past month to the people. Something unprecedented, we barely knew this guy. Ben Ali talked in the Tunisian dialect instead of Arabic for the first time ever.
He spoke directly to the police forces and ordered them not to shoot, unless in cases of self-defense. On the same line he said a commission will investigate in the murders that occurred.
He also said that people misled him in several areas, and particularly in the areas of politics and freedom. He admited that he didn’t achieve his goals or dreams in these areas.He granted that all liberties will be given to the people of Tunisia. He stated that the right of setting an organization, a political party, or a media will be totally opened. He said all censorship online or on traditional media will be stopped.
People are still cautious and doubt these words. We are talking about billions of $ stolen by his family. A political party, RCD, which is much much stronger than other parties. We are also talking about 150k policemen who acted like a terrorist organization for decades and particularly lately. Turning his words into action will be a very difficult mission.
We will probably start by checking his words tomorrow.

And

I missed another major point in his speech, probably because of the excitement of this moment.
He announced that he would not run for president in 2014.
Again, I am not sure this is sufficient. Yet this is a step forward.

Marc Lynch at Foreign Policy:

Barely a month goes by without a Washington Post editorial bemoaning Egypt’s authoritarian retrenchment and criticizing the Obama administration’s alleged failure to promote Arab democracy. But now Tunisia has erupted as the story of the year for Arab reformers. The spiraling protests and the regime’s heavy-handed, but thus far ineffective, repression have captured the imagination of Arab publics, governments, and political analysts. Despite Tunis’s efforts to censor media coverage, images and video have made it out onto social media and up to Al Jazeera and other satellite TV. The “Tunisia scenario” is now the term of art for activist hopes and government fears of political instability and mass protests from Jordan to Egypt to the Gulf.

But the Post‘s op-ed page has been strikingly silent about the Tunisian protests. Thus far, a month into the massive demonstrations rocking Tunisia, the Washington Post editorial page has published exactly zero editorials about Tunisia. For that matter, the Weekly Standard, another magazine which frequently claims the mantle of Arab democracy and attacks Obama for failing on it, has thus far published exactly zero articles about Tunisia (though, to his credit, frequent Standard contributor and ex-Bush administration official Elliott Abrams has weighed in on it at his new CFR blog). Why are the most prominent media voices on Arab democracy so entirely absent on the Arab reform story of the year?

Perhaps they’ve had nothing to say simply because there has been little coverage of Tunisia in the Western media, and the United States has few interests or leverage in Tunis, making it a marginal issue for U.S. political debate. Tunisia is not generally on the front burner in American thinking about the Middle East. It’s far away from Israel, Iraq, and the Gulf, and plays little role in the headline strategic issues facing the U.S. in the region. Despite being one of the most repressive and authoritarian regimes in the region, Tunisia has generally been seen as a model of economic development and secularism. Its promotion of women’s rights and crushing of Islamist opposition has taken priority in the West over its near-complete censorship of the media and blanket domination of political society. Indeed, the United States has cared so little about Tunisia’s absolute rejection of democracy and world-class censorship that it chose it for the regional office of MEPI, the Bush administration’s signature democracy promotion initiative.

This is understandable, but hardly satisfying. I can understand the hesitation of U.S. officials to take a strong position on the side of either the protesters or the regime at this point, given the strategic complexities and the implications of taking any rhetorical stance. To my ears, at least, the U.S. message has been muddled, with some officials seeming to take the side of the protesters and warning against too-harsh repression and others seeming to avoid taking a stance. For what it’s worth, I told a State Department official in a public forum yesterday that the absence of major U.S. interests in Tunisia and the real prospect of change there make it a good place for the Obama administration to take a principled stand in favor of public freedoms and against repression.

Daniel Larison responds to Lynch:

The easy answer, but possibly also the right one, is that they have nothing to say about it because it is something much more like a genuine, indigenous popular movement that is not working to advance “pro-Western” or “pro-American” policy goals, and it is therefore irrelevant or even unwelcome in their view. Most of the “color” revolutions were directed against governments that were seen as hostile to U.S. and allied interests or at least too closely aligned with Russia and (in Lebanon’s case) Syria, and the “color” revolutionaries were always identified as “pro-Western” reformers regardless of the accuracy of this description, and so advocates of “democracy” responding accordingly with enthusiastic support for the protesters. When a pro-Western secular autocrat faces a popular uprising that is almost certainly not being encouraged and backed from outside, these advocates of “democracy” have nothing to say because democratic reform was simply a means for advancing regime changes in several countries that the advocates wanted to bring into a Western orbit. Ben Ali’s downfall represents quite the opposite. If Lynch looked back at the reactions from most democracy-promoting outlets after the elections of Morales or of Chavez, which came at the expense of pro-American oligarchies, he would likely find a similar silence and indifference to the empowerment of those countries’ poor majorities.

Blake Hounshell at Foreign Policy:

UPDATE: The Tunisian government is denying that Morjane has stepped down, according to Al Arabiya. Meanwhile, President Ben Ali just spoke and said he had ordered security forces to stop firing on demonstrators. He also announced a series of measures aimed at mollifying popular anger, including lower prices for bread, milk, and sugar. Most important of all, he promised not to run for re-election in 2014, when his term is due to expire. We’ll see if he lasts that long.

This thing may really be happening. Kamel Morjane — or someone with access to his website — has just announced his resignation*:

Citizens of the Republic of Tunisia, After witnessing the recent event that our country has been enduring since December17th  2010, I declare my inaptitude in pursuing my function in a serene and objective environment as intended.

I declare hereby my official resignation from my function as a minister of foreign affairs at the Tunisian government. In  a last effort to assume my responsabilities, I am asking the families of the tunisian martyrs to accept my sincere condoleances and my deep regret faced to their common tragedy. I assumed the fate of the Tunisian citizens, after marrying the daughter of one of Ben Ali’s first cousins, and was a member of the family and part of their clan. I am not proud of my own family, and in an honest declaration, would be ready to be judged in court at the same time as they will be. This will be my last service to the Tunisian citizens, in hope that with my resignation, citizens of Tunisia will be more graceful towards me and my family.

I make this decision in hope for the return of rest. I relinquish the Tunisian government to express my  deep affliction and my righteous anger toward the dire management of  this crisis, causing hence the death of dozens of young Tunisians. I am  profoundly convinced that these are not terrorist acts, but citizens  exerting their right to strike against a regime who abandoned them for  two decades. For this reason, I do not deem myself a member of this  oppressing and manipulating government. In a last resort to save face with the international media, the government is working hard from within to portray the protesters as mindless terrorists  destroying their country and refusing any peaceful discussion. The  government has hired teams of their own police in civilian attire that  go around ravaging the suburbs in an effort to spread doubt and  disseminate the truth about the tunisian people.

I reiterate my most sincere condolences to the families of victims, not only  to the ones that passed away these four past weeks, but to all the broken families by the injustice and inconveniences caused by this clan as  well.

For a free Tunisia,

Kamel Morjane

This is a fast-moving story. The New York Times reports that protesters overran a mansion owned by one of the president’s relatives. The Twitterverse is aflame with rumors that other members of the ruling family have fled the country. President Ben Ali is said to have three helicopters fueled up and ready for an emergency flight to Malta.

Max Fisher at The Atlantic

Elizabeth Dickson at Foreign Policy:

As I spoke by phone with Taoufik Ben Brik, a Tunisian opposition journalist, just moments ago, the country’s president, Zine El Abidine Ben Ali, got onto a plane and left the country. “There will be a military coup — we will see. You will see,” Ben Brik told me. “The army has just closed down the airspace in Tunisia, and they are arresting members of the family.”

If Twitter is to be believed, Ben Ali really is gone.

Ben Brik, one of the (now former?) president’s most pronounced critics, described the regime as “the worst kind of tyranny — [running] a police state, a military state, and a surveillance state.” Ben Brik himself has been subject to that as a journalist, having been harassed and imprisoned on numerous occasions. “It wasn’t just that I was arrested — I was harassed, me and my family. Google me and you will see how they arrested my child, just 14 years old.” Ben Brik was most recently released last April and remains in Tunis, where he is watching the situation unfold on the streets.

What brought the protesters to the streets in the first place was the drive for democracy, a place where freedom was possible — and normal. And yes, WikiLeaks helped. “WikiLeaks revealed a truth previously unspeakable about the mafia-like state,” Ben Brik said.

Mahar Arar at The Huffington Post:

To understand why these acts of violence against civilians is rarely condemned by Western governments, we have to understand the political dynamics in the region. Tunisia, despite the private criticisms targeted at the regime by the U.S. ambassador (as was revealed by WikiLeaks), is considered an important Western ally in the so called “war on terror”. Ben Ali, the President of the “Republic”, like the majority of the Arab dictators, have taken advantage of the American government’s strong desire to build relationships with new allies to fight Al-Qaida and related groups. These police states, including Tunisia, exploited this post-9/11 trend in the American foreign policy which allowed them an increased grip on power. As a result, they delegitimized peaceful decent further, put more restrictions on freedom of expression and heavily controlled Internet access. Also, because they have only been concerned about their own well being, and not about the well being of their constituents, these rulers have focused on increasing their own wealth and that of their family members through questionable business dealings and favouritism. It is no secret that the Ben Ali clan acts more like a Mafia putting their hands on the majority of profitable businesses in the country.

Here is my humble prediction for the next decade: unless Arab leaders implement serious political and economical reforms we will see more of this type of popular uprising in other neighbouring countries. It is only a matter of time. The wind of peaceful change in Tunisia has given hope to the oppressed people all over the Arab World. Whether Western countries or their allies in the region like or not, this wind, with the help of the Internet, will eventually affect the all these countries who are thirsty for democracy and justice. Only then, when it is too late, the Western countries will regret that they have all along been on the wrong side of the fence.

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Tucson

James Fallows:

After this horrible news from Tucson….

… let me amplify something I said half-coherently in a live conversation with Guy Raz on All Things Considered a little while ago. My intended point was:

Shootings of political figures are by definition “political.” That’s how the target came to public notice; it is why we say “assassination” rather than plain murder.

But it is striking how rarely the “politics” of an assassination (or attempt) match up cleanly with the main issues for which a public figure has stood. Some killings reflect “pure” politics: John Wilkes Booth shooting Abraham Lincoln, the German officers who tried to kill Hitler and derail his war plans. We don’t know exactly why James Earl Ray killed Martin Luther King, but it must have had a lot to do with civil rights.

There is a longer list of odder or murkier motives:
– Leo Ryan, the first (and, we hope, still the only) Representative to be killed in the line of duty, was gunned down in Guyana in 1978 for an investigation of the Jim Jones/Jonestown cult, not any “normal” political issue.

– Sirhan Sirhan horribly transformed American politics by killing Robert F. Kennedy in 1968, but Sirhan’s political causes had little or nothing to do with what RFK stood for to most Americans.

– So too with Arthur Bremer, who tried to kill George C. Wallace in 1972 and left him paralyzed.

– The only known reason for John Hinckley’s shooting of Ronald Reagan involves Jodie Foster.

– It’s not often remembered now, but Manson family member Lynette “Squeaky” Fromme tried to shoot Gerald Ford, again for reasons that would mean nothing to most Americans of that time.

– When Harry Truman was shot at (and a policeman was killed) on the sidewalk outside the White Blair House, the attackers were concerned not about Cold War policies or Truman’s strategy in Korea but about Puerto Rican independence.

– The assassinations of William McKinley and James Garfield were also “political” but not in a way that matched the main politics of that time. The list could go on.

So the train of logic is:
1) anything that can be called an “assassination” is inherently political;
2) very often the “politics” are obscure, personal, or reflecting mental disorders rather than “normal” political disagreements. But now a further step,
3) the political tone of an era can have some bearing on violent events. The Jonestown/Ryan and Fromme/Ford shootings had no detectable source in deeper political disagreements of that era. But the anti-JFK hate-rhetoric in Dallas before his visit was so intense that for decades people debated whether the city was somehow “responsible” for the killing. (Even given that Lee Harvey Oswald was an outlier in all ways.)

That’s the further political ramification here. We don’t know why the Tucson killer did what he did. If he is like Sirhan, we’ll never “understand.” But we know that it has been a time of extreme, implicitly violent political rhetoric and imagery, including SarahPac’s famous bulls-eye map of 20 Congressional targets to be removed — including Rep. Giffords. It is legitimate to discuss whether there is a connection between that tone and actual outbursts of violence, whatever the motivations of this killer turn out to be. At a minimum, it will be harder for anyone to talk — on rallies, on cable TV, in ads — about “eliminating” opponents, or to bring rifles to political meetings, or to say “don’t retreat, reload.”

Jack Shafer at Slate:

The attempted assassination of Rep. Gabrielle Giffords, D-Ariz., and the killing of six innocents outside a Tucson Safeway has bolstered the ongoing argument that when speaking of things political, we should all avoid using inflammatory rhetoric and violent imagery.

“Shooting Throws Spotlight on State of U.S. Political Rhetoric,” reports CNN. “Bloodshed Puts New Focus on Vitriol in Politics,” states the New York Times. Keith Olbermann clocked overtime on Saturday to deliver a commentary subtitled “The political rhetoric of the country must be changed to prevent acts of domestic terrorism.” The home page of the Washington Post offered this headline to its story about the shooting: “Rampage Casts Grim Light on U.S. Political Discord.”

The lead spokesman for the anti-inflammatory movement, however, was Pima County Sheriff Clarence Dupnik, whose jurisdiction includes Tucson. Said Dupnik at a Jan. 8 press conference in answer to questions about the criminal investigation:

I’d just like to say that when you look at unbalanced people, how they are—how they respond to the vitriol that comes out of certain mouths, about tearing down the government, the anger, the hatred, the bigotry that goes on in this country is getting to be outrageous. And unfortunately, Arizona, I think, has become sort of the capital. We have become the mecca for prejudice and bigotry.

Embedded in Sheriff Dupnik’s ad hoc wisdom were several assumptions. First, that strident, anti-government political views can be easily categorized as vitriolic, bigoted, and prejudicial. Second, that those voicing strident political views are guilty of issuing Manchurian Candidate-style instructions to commit murder and mayhem to the “unbalanced.” Third, that the Tucson shooter was inspired to kill by political debate or by Sarah Palin’s “target” map or other inflammatory outbursts. Fourth, that we should calibrate our political speech in such a manner that we do not awaken the Manchurian candidates among us.

And, fifth, that it’s a cop’s role to set the proper dimensions of our political debate. Hey, Dupnik, if you’ve got spare time on your hands, go write somebody a ticket.

Sheriff Dupnik’s political sermon came before any conclusive or even circumstantial proof had been offered that the shooter had been incited by anything except the gas music from Jupiter playing inside his head.

For as long as I’ve been alive, crosshairs and bull’s-eyes have been an accepted part of the graphical lexicon when it comes to political debates. Such “inflammatory” words as targeting, attacking, destroying, blasting, crushing, burying, knee-capping, and others have similarly guided political thought and action. Not once have the use of these images or words tempted me or anybody else I know to kill. I’ve listened to, read—and even written!—vicious attacks on government without reaching for my gun. I’ve even gotten angry, for goodness’ sake, without coming close to assassinating a politician or a judge.

From what I can tell, I’m not an outlier. Only the tiniest handful of people—most of whom are already behind bars, in psychiatric institutions, or on psycho-meds—can be driven to kill by political whispers or shouts. Asking us to forever hold our tongues lest we awake their deeper demons infantilizes and neuters us and makes politicians no safer.

Alex Massie:

So apparently a pretty stupid Sarah Palin poster from last year in which gunsights were slapped over 20 districts carried by John McCain from which the Democratic incumbent had voted for Obamacare, is now to be considered the inspiration for this atrocity. Mrs Palin has some influence, but let’s not get carried away. For what it’s worth – and readers know that I’m hardly her greatest fan – I do not think she is very much more responsible for this abomination than Jodie Foster was for John Hinckley’s attempt to murder Ronald Reagan. In any case, Palin’s poster was only a souped-up version of a campaign trope that both parties have been happy to employ in the past. (That said, Palin Presidential Futures, already worth shorting, took another dive yesterday.)

But the sordid temptations of politics are such that people who argue there’s little sensible connection between Hollywood “violence” and real-world violence now suddenly insist that it just takes a silly poster and plenty of over-heated rhetoric to inspire America’s Top Kooks to come out of the closet, all guns blazing. And of course the reverse is also true: people happy to blame Grand Theft Auto for just about anything now insist there’s no connection at all between the tone of political discourse (“Second Amendment Solutions!”) and some nut taking these notions just a little bit too seriously.

Clearly, things are a little more complicated than that. While you cannot legislate for lunatics there’s also little need to give them any encouragement. But the more we learn about Jared Loughner the more it seems probable – at this stage – that he’s the kind of mentally unstable person who neither needed nor took any inspiration from Palin or the Tea Party or anything other than powerful fantasies that were his own creation.

And this too is normal. Political violence of this type is almost definitionally unhinged but it’s striking how rare it turns out to be the case that the perpetrators can be fitted into one neat political profile or another. And even when they can their targets are frequently so at odds with the meaning of their supposed “philosophy” that trying to “make sense” of such matters becomes an even more frustrating task.

Anyway, we may think these are unusually turbulent times, fanned by unusual quantities of cheap and phoney populism, scaremongering and hysteria but this is not in fact the case. ‘Twas ever thus and the 1960s offer a perspective that might be worth looking at if only, despite all the huffing and puffing, to appreciate how calm and at peace America is these days. Remember McKinley and Garfield too, if you want to go still further back. America ain’t tearing itself apart these days, no matter how much Paul Krugman tries to persuade you it must be. The paranoid style has rarely lacked followers and, just as significantly, the centre has also always had a healthy paranoia of its own. Sometimes, as is the case today or in the aftermath of any other act of grim violence, this will seem unusually plausible.

Most of the time, however, the scare stories about a new era of Militiamen or whatever are seriously over-cooked. The temper of these American  times – despite what you will read everywhere today and tomorrow – is not unusually rebarbative or even uncommonly obtuse. (What might be said, mind you, is that the level of rhetoric is out of proportion to the stakes involved in the political game these days.)

The fact of the matter is that a country of 300 million people cannot help but be generously larded with oddballs, freaks, paranoids and assorted other nutters. Couple that with the American genius for self-realization and you soon begin to wonder why there isn’t more politically-themed violence than is actually the case

Radley Balko:

We’re going to hear a lot of talk in the coming days about putting an end to anti-government rhetoric. I’ve been listening to it all morning on the Sunday talk shows. Let’s get the obvious out of the way, here: Initiating violence against government officials and politicians is wrongheaded, immoral, futile, and counterproductive to any anti-government cause. As is encouraging or praising others who do. I ban anyone who engages in that kind of talk here.

But it’s worth remembering that the government initiates violence against its own citizens every day in this country, citizens who pose no threat or harm to anyone else. The particular policy that leads to the sort of violence you see in these videos is supported by nearly all of the politicians and pundits decrying anti-government rhetoric on the news channels this morning. (It’s also supported by Sarah Palin, many Tea Party leaders, and other figures on the right that politicians and pundits are shaming this weekend.)

I hope Rep. Giffords—and everyone wounded yesterday—makes a full recovery. It’s particularly tragic that she was shot while doing exactly what we want elected officials to do—she was making herself available to the people she serves. And of course we should mourn the people senselessly murdered yesterday, government employees and otherwise: U.S. District Judge John Roll, Dorothy Murray, Dorwin Stoddard, nine-year-old Christina Green, Phyllis Scheck, and Gabe Zimmerman.

That said, I long for the day that our political and media figures get as indignant about innocent Americans killed by their own government—killed in fact, as a direct and foreseeable consequence of official government policy that nearly all of those leaders support—as they are about a government official who was targeted by a clearly sick and deranged young man. What happened this weekend is not, by any means, a reason to shunt anti-government protest, even angry anti-government protest, out of the sphere of acceptable debate. The government still engages in plenty of acts and policies—including one-sided violence against its own citizens—that are well worth our anger, protest, and condemnation.

Michelle Malkin

Jonathan Martin in Politico

Keach Hagey in Politico

Nick Gillespie at Reason:

There’s no question that the GOP and its proponents are more than ready to play a similar game. Any moral lapse by a Democrat, for instance, is an ethical rot that stems directly from the malefactor’s stance on the minimum wage or Don’t Ask Don’t Tell, say, while hypocrites such as Sen. Larry Craig and Tom DeLay are ethical one-offs. The most-unbelievable response in the immediate aftermath of the 9/11 attacks was longterm GOP activist Jerry Falwell’s announcement on Pat Robertson’s TV network that gays and women wearing pants etc. were responsible for radical Islamists killing 3,000 people (even more sadly, years after Falwell apologized for his self-evidently retarded statement, conservative writer Dinesh D’Souza blew out the thesis into a full-length book). I’m not trying to be “fair and balanced” here by bringing up GOP stupidity; I’m trying to point out that we’re in a decade of this sort craptastic instantaneous spin that latches on to everything in its path. I say this as someone who was fingered as broadly responsible for the culture that produced “American Taliban” John Walker Lindh.

Readers of this site know I’m no Sarah Palin fan, but to accuse her of complicity in the murderous spree of a clearly insane person is one of the main reasons that partisan political parties are losing market share. I had myself tweeted that blaming Palin for Jared Loughner’s mass killing would be like blaming J.D. Salinger for Mark David Chapman shooting John Lennon (and as Jesse Walker pointed out, in Chapman’s case, at least we could be sure Chapman had read Salinger). Given Loughner’s fixation on grammar and the supposed lack of literacy evinced by most Americans, maybe William Safire and S.I. Hayakawa should be held responsible.

Like Matt Welch and Jack Shafer, I don’t think that today’s political rhetoric is particularly overheated or vitriolic and, even if it were, I don’t think that would be a problem. I suspect that most people are like me in that they respond to folks who actually believe something and are willing to fight for it when it comes to a particular political issue. I don’t like bipartisanship, which usually means that all of us get screwed, but it’s easy enough to respect someone you virulently disagree with if you think they are arguing in good faith.

The problem isn’t with the current moment’s rhetoric, it’s with the goddamn politicization of every goddamn thing not even for a higher purpose or broader fight but for the cheapest moment-by-moment partisan advantage. Whether on the left or on the right, there’s a totalist mentality that everything can and should be explained first and foremost as to whether it helps or hurt the party of choice.

That sort of clearly calculated punditry helps explain one of last week’s other big stories, which is how both the Dems and the GOP have really bad brand loyalty these days. In its most recent survey of political self-identification, Gallup found that the Dems were at their lowest point in 22 years and that the GOP remains stuck below the one-third mark. The affiliation that has the highest marks for the past couple of decades on average and is growing now is independent. Faced with the way that the major parties and their partisans try to bend every news story, trend, box office hit or bomb, you name it, whether truly horrific (as Saturday’s shooting was) or totally banal, is it any wonder that fewer people want to be affiliated with the Dems and Reps? This is a long-term trend. Indeed, Harris Poll numbers that stretch back to the late ’60s show the same trend: Fewer and few folks want to view themselves as Democrats and the GOP has never been popular (even though far more people consider themselves “conservative” than “liberal”). And note what Gallup are Harris are talking about there is not party registration. It’s identification and self-affiliation; how you see yourself. It’s a cultural identity.

Paul Krugman at The New York Times

Ross Douthat at The New York Times

Tom Maguire on Krugman

Nick Baumann at Mother Jones:

At 2:00 a.m. on Saturday—about eight hours before he allegedly killed six people and wounded 14, including Rep. Gabrielle Giffords (D-Ariz.), in Tucson—Jared Lee Loughner phoned an old and close friend with whom he had gone to high school and college. The friend, Bryce Tierney, was up late watching TV, but he didn’t answer the call. When he later checked his voice mail, he heard a simple message from Loughner: “Hey man, it’s Jared. Me and you had good times. Peace out. Later.”

That was it. But later in the day, when Tierney first heard about the Tucson massacre, he had a sickening feeling: “They hadn’t released the name, but I said, ‘Holy shit, I think it’s Jared that did it.'” Tierney tells Mother Jones in an exclusive interview that Loughner held a years-long grudge against Giffords and had repeatedly derided her as a “fake.” Loughner’s animus toward Giffords intensified after he attended one of her campaign events and she did not, in his view, sufficiently answer a question he had posed, Tierney says. He also describes Loughner as being obsessed with “lucid dreaming”—that is, the idea that conscious dreams are an alternative reality that a person can inhabit and control—and says Loughner became “more interested in this world than our reality.” Tierney adds, “I saw his dream journal once. That’s the golden piece of evidence. You want to know what goes on in Jared Loughner’s mind, there’s a dream journal that will tell you everything.”

Peter Beinart at Daily Beast:

Liberals should stop acting like the Tea Party is guilty of inciting Rep. Gabrielle Giffords’ shooting until proven innocent. That’s unfair. If someone finds evidence that violent anti-government, or anti-democratic, rhetoric helped trigger Jared Lee Loughner’s shooting spree, then the people making those statements should pay with their political careers. But so far, at least, there is no such evidence. Of course, Sarah Palin should stop using hunting metaphors to discuss her political opponents. She should stop doing that, and a dozen other idiotic things. But just as Tea Partiers are wrong to promiscuously throw around terms like “communist” and “death panels,” liberals should avoid promiscuously accusing people of being accessories to attempted murder. That’s too serious a charge to throw around unless you have the goods. I want Barack Obama to derail the congressional Republicans as much as anyone. But not this way.

The Giffords shooting doesn’t prove that Sarah Palin has blood on her hands. What it does prove is that when it comes to terrorism, people like Sarah Palin have a serious blind spot. On the political right, and at times even the political center, there is a casual assumption—so taken for granted that it is rarely even spoken—that the only terrorist threat America faces is from jihadist Islam. There was a lot of talk a couple of weeks back, you’ll remember, about a terrorist attack during the holiday season. And there’s been a lot of talk in the last couple of years about the threat of homegrown terrorists. Well, we’ve just experienced a terrorist attack over the holiday season, and it was indeed homegrown. Had the shooters’ name been Abdul Mohammed, you’d be hearing the familiar drumbeat about the need for profiling and the pathologies of Islam. But since his name was Jared Lee Loughner, he gets called “mentally unstable”; the word “terrorist” rarely comes up. When are we going to acknowledge that good old-fashioned white Americans are every bit as capable of killing civilians for a political cause as people with brown skin who pray to Allah? There’s a tradition here. Historically, American elites, especially conservative American elites, have tended to reserve the term “terrorism” for political violence committed by foreigners. In the early 20th century, for instance, there was enormous fear, even hysteria, about the terrorist threat from anarchist and communist immigrants from Eastern or Southern Europe, people like Sacco and Vanzetti. In the aftermath of World War I, large numbers of immigrant radicals were arrested and deported. Nothing similar happened to members of the white, protestant Ku Klux Klan, even though its violence was more widespread.

Similarly today, the media spends the Christmas season worrying how another attack by radical Muslims might undermine President Obama’s national-security credentials. But when Jared Lee Loughner shoots 20 people at a Safeway, barely anyone even comments on what it says about the president’s anti-terror bona fides. And yet Loughner’s attack is, to a significant degree, what American terror looks like. Obviously, jihadists have committed their share of terrorism on American soil in the last couple of decades—from the attempted bombing of the World Trade Center in 1993 to the 9/11 attacks to Army psychiatrist Nidal Malik Hasan’s murder of 13 people at Fort Hood in 2009. But there have been at least as many attacks by white Americans angry at their own government or society. For almost two decades, culminating in 1995, Unabomber Ted Kaczynski sent mail bombs to people he considered complicit in industrial America’s assault on nature. (A surprising amount of recent American terrorism comes from militant environmentalists.) That same year, Timothy McVeigh blew up the Alfred P. Murrah Federal Building in Oklahoma City, the second-largest recent terrorist attack on U.S. soil after 9/11. In 1996, Eric Rudolph bombed the Atlanta Olympics to protest abortion and international socialism. According to the FBI, opposition to abortion also played a role in the 2001 anthrax attacks (you know, the ones Dick Cheney were sure had been masterminded by Saddam Hussein). In 2009, Wichita, Kansas, abortion doctor George Tiller was murdered. (He had already been shot once, and his clinic had been bombed.) That same year octogenarian neo-Nazi James Wenneker von Brunn shot a security guard at the U.S. Holocaust Memorial Museum. Last February, a man angry at the federal government flew a small plane into an IRS building in Austin, Texas.

Instapundit at The Wall Street Journal

Ezra Klein:

None of this, of course, will ease the suffering of Giffords or her family, nor of any of the other individuals and families directly affected by this morning’s slaughter. For them, the process of grieving and recovering has barely begun. Loughner’s shooting might’ve been motivated by mental illness, but the people in that parking lot were motivated by democracy: It was a meeting between a congressional representative and those she represents. They were attacked for being good citizens, and nothing can ever put that right.

But one way that people might pay tribute is to follow their example and attend the next meeting held by their representative. It is so easy and safe to participate in the American political system that we sometimes take doing so for granted. Today was a horrifying look into a world in which that isn’t so, and it should leave us with renewed appreciation for, and determination to protect, the world we have. On this, Giffords was way ahead of us: When the 112th session of the House of Representatives convened to read the Constitution earlier this week, she chose to read the section guaranteeing Americans the right “peaceably to assemble.”

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Ominous When Bloggers Bring Out The Nuremberg Code

Max Fisher at The Atlantic with the round-up

James Risen at NYT:

Medical professionals who were involved in the Central Intelligence Agency’s interrogations of terrorism suspects engaged in forms of human research and experimentation in violation of medical ethics and domestic and international law, according to a new report from a human rights organization.

Doctors, psychologists and other professionals assigned to monitor the C.I.A.’s use of waterboarding, sleep deprivation and other “enhanced” interrogation techniques gathered and collected data on the impact of the interrogations on the detainees in order to refine those techniques and ensure that they stayed within the limits established by the Bush administration’s lawyers, the report found. But, by doing so, the medical professionals turned the detainees into research subjects, according to the report, which is scheduled to be published on Monday by Physicians for Human Rights.

The data collected by medical professionals from the interrogations of detainees allowed the C.I.A. to judge the emotional and physical impact of the techniques, helping the agency to “calibrate the level of pain experienced by detainees during interrogation, ostensibly to keep it from crossing the administration’s legal threshold of what it claimed constituted torture,” the report said. That meant that the medical professionals crossed the line from treating the detainees as patients to treating them as research subjects, the report asserted.

Nick Baumann at Mother Jones:

According to the report, which draws on numerous declassified government documents, “medical professionals working for and on behalf of the CIA” frequently monitored detainee interrogations, gathering data on the effectiveness of various interrogation techniques and the pain threshholds of detainees. This information was then used to “enhance” future interrogations, PHR contends.

By monitoring post-9/11 interrogations and keeping records on the effectiveness of various techniques, medical professionals could also provide Bush administration lawyers with the information they needed to set guidelines for the use of so-called “enhanced” interrogation tactics. For instance, attorneys in the Justice Department’s Office of Legal Counsel (OLC) who were devising the legal rationale for the interrogation program could use the research to determine how many times a detainee could be waterboarded. Or, based on the observations of the medical personnel monitoring the interrogation sessions, they could assess whether it was legally justifiable to administer techniques like stress positions or water dousing in combination or whether these methods needed to be applied separately.

Physicians for Human Rights makes the case that since human subject research is defined as the “systematic collection of data and/or identifiable personal information for the purpose of drawing generalizable inferences,” what the Bush administration was doing amounted to human experimentation:

Human experimentation without the consent of the subject is a violation of international human rights law to which the United States is subject; federal statutes; the Common Rule, which comprises the federal regulations for research on human subjects and applies to 17 federal agencies, including the Central Intelligence Agency and the Department of Defense; and universally accepted health professional ethics, including the Nuremberg Code… Human experimentation on detainees also can constitute a war crime and a crime against humanity in certain circumstances.

Ironically, one goal of the “experimentation” seems to have been to immunize Bush administration officials and CIA interrogators from potential prosecution for torture. In the series of legal papers that are now popularly known as the “torture memos,” Justice Department lawyers argued that medical monitoring would demonstrate that interrogators didn’t intend to harm detainees; that “lack of intent to cause harm” could then serve as the cornerstone of a legal defense should an interrogator be targeted for prosecution. In 2003, in an internal CIA memo cited in the PHR report, the CIA’s general counsel, Scott Muller, argued that medical monitoring of interrogations and “reviewing evidence gained from past experience where available (including experience gained in the course of U.S. interrogations of detainees)” would allow interrogators to inoculate themselves against claims of torture because it “established” they didn’t intend to cause harm to the detainees.

Spencer Ackerman at Washington Independent:

Just months after 9/11, the CIA hired two psychologists with experience in a training program to help U.S. servicemembers survive enemy torture, known as SERE, to help design an interrogation program for hard-to-crack al-Qaeda detainees. Those psychologists, Bruce Jessen and James Mitchell, set to work on a detainee in CIA custody, Abu Zubaydah, and under their guidance in the summer of 2002, Abu Zubaydah was waterboarded 83 times. Their work contributed to the establishment of several other interrogation methods not permitted under decades-long understandings of the Geneva Conventions, like keeping a detainee’s body so painfully contorted as to prevent him from falling asleep.

Jim Risen of The New York Times has the CIA’s rebuttal:

“The report is just wrong,” said Paul Gimigliano, an agency spokesman. “The C.I.A. did not, as part of its past detention program, conduct human subject research on any detainee or group of detainees. The entire detention effort has been the subject of multiple, comprehensive reviews within our government, including by the Department of Justice.”

The National Religious Campaign Against Torture emailed reporters a statement on the report: ”These revelations are profoundly disturbing and raise for us the question of what more remains hidden.  The spiritual health of our nation will continue to suffer until the full truth opens a path to the justice and healing that our nation so desperately needs.”

The Center for Constitutional Rights calls on the Obama administration to certify that its new interrogation team, known as the HIG, does not engage in any similar human experimentation:

CCR also demands that the new intra-agency interrogation unit that was disclosed in February 2010 explain the nature of the “scientific research” it is conducting to improve the questioning of suspects. The current government may attempt to take advantage of ambiguity in Appendix M of the Army Field Manual, added by the Bush administration and left in place by the Obama administration, to justify the ongoing use of some “enhanced” interrogation techniques such as sleep deprivation in the new interrogation guidelines. Any ongoing unlawful human experimentation to “perfect” such techniques must immediately cease.

Adam Serwer at Tapped:

According to PHR, these practices violate domestic and international prohibitions against involuntary human experimentation, most ominously the Nuremberg Code, which was put in place after the Holocaust. PHR also contends that the experimentation exposes interrogators and Bush-era officials to additional legal liability because unlike the techniques themselves, the Office of Legal Counsel does not seem to have sanctioned the experimentation as legal.

That doesn’t mean the Bush administration was completely unaware of the possibility that they were breaking the law with their torture experiments. The 2006 Detainee Treatment Act retroactively weakened the definition of involuntary experimentation under the law, criminalizing only those involuntary acts committed “without a legitimate medical or dental purpose, and in so doing endanger[ing] the body or health of such person or persons.”

Naked Capitalism:

If the allegations are true, such experimentation would certainly violate the Nuremberg Code, the Geneva conventions, and the War Crimes Act of 1996.

Nuremberg Code

Among other things, the Nuremberg Code prohibits experimentation conducted without the voluntary consent of the subject. Voluntary consent means:

The person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonable to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

Moreover, the Code requires that the subject be allowed to stop the experiment at any time “if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.”

The Code also requires that “the experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.”

Here, the experimentation did not seek consent at any point.  And – rather than limiting pain – the experimentation was specifically conducted as a way to determine how to maximize the pain the subject would experience.

Geneva Convention and War Crimes Act

The Geneva Convention Against Torture provides that “no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

And the War Crimes Act of 1996, a federal statute set forth at 18 U.S.C. § 2441, makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment. The statute applies not only to those who carry out the acts, but also to those who ORDER IT, know about it, or fail to take steps to stop it. The statute applies to everyone, no matter how high and mighty. Indeed, even the lawyers and other people who aided in the effort may be war criminals; see also this article, this one, and this press release.

The detainees were obviously subjected to torture, cruel, inhuman and degrading treatment, and so both the Convention and the War Crimes Act were violated.

Emptywheel at Firedoglake

Steve Benen:

Of course, the real scandal is that Obama is like Spock and his White House asked a Senate candidate who applied for an administration job if he was still interested.

You see, torture and using detainees in medical research are defensible. “Chicago-style politics” is the real outrage.

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Oh My God! They Indicted Kenny! … You Bastards!

Ravi Somaiya at Gawker:

First Goldman Sachs gets a lawsuit from the SEC, now prosecutors have indicted a former Blackwater president and four other former employees on weapons charges. Details are not yet clear. But who knows where this Federal justice train will stop.

Christopher Weber at Politics Daily:

The 15-count indictment accuses the five of skirting federal firearms laws and misrepresenting weapons sales, Reuters reported.

Gary Jackson, the company’s former president, was charged along with former general counsel Andrew Howell; former executive vice president William Mathews; former vice president of logistics and procurement, Ana Bundy; and former armorer Ronald Slezak.

Prosecutors said they gave weapons as gifts to Jordanian officials in hopes of winning their business. To account for the missing guns, Jackson allegedly ordered employees to fill out paperwork falsely showing that Blackwater workers had bought the guns for their own use.

The Justice Department said there was no wrongdoing by the Jordanian government and said the country helped in the probe, according to Reuters.

Zachery Roth at TPM:

The AP reported last month that the Feds were considering charges stemming from a 2008 raid, in which federal agents found and seized 22 weapons, including 17 AK-47s. The Feds were probing whether Blackwater obtained the letterhead of a local sheriff in order to create a false justification for buying the guns.

Blackwater changed its name to Xe Services last year, after a 2007 shooting by Blackwater guards in Baghdad killed 17 Iraqis.

Wonkette:

The Justice Department just indicted five evil southern scum-lords who used to run Blackwater, the private murder company hired by Dick Cheney to kill everyone in Iraq. The charges? Weapons violations, something about illegal machine guns, lies to the Feds, general criminality. No murder charges, because it’s always the little shit that brings down these big shits.

Nick Baumann at Mother Jones:

The South Park guys have hinted that an episode about the Blackwater/Cartman incident could be forthcoming this season. Anyway, the full AP report on the gun charges is here.

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Filed under Crime, GWOT

Can President Bush Or President Obama Hear Us Now?

Emptywheel at Firedoglake:

Judge Walker just issued the following ruling in the al-Haramain case:

The court now determines that plaintiffs have submitted, consistent with FRCP 56(d), sufficient non-classified evidence to establish standing on their FISA claim and to establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance; plaintiffs are therefore entitled to summary judgment in their favor on those matters. Defendants’ various legal arguments for dismissal and in opposition to plaintiffs’ summary judgment motion lack merit: defendants have failed to meet their burden to come forward, in response to plaintiffs’ prima facie case of electronic surveillance, with evidence that a FISA warrant was obtained, that plaintiffs were not surveilled or that the surveillance was otherwise lawful.

In the absence of a genuine issue of material fact whether plaintiffs were subjected to unlawful electronic surveillance within the purview of FISA and for the reasons fully set forth in the decision that follows, plaintiffs’ motion for summary judgment on the issue of defendants’ liability under FISA is GRANTED.

Walker is basically saying, “Well, government, if you won’t give us any evidence to prove you legally wiretapped al-Haramain, and given all the evidence they’ve presented proving they were wiretapped, then they win!”

More Emptywheel:

I think Walker has crafted his ruling to give the government a big incentive not to appeal the case. Here’s my thinking.

As you recall, last year when Walker ruled that al-Haramain had standing and therefore its lawyers should get security clearance that would allow them to litigate the case, the government threatened to take its toys–or, more importantly, all the classified filings submitted in the case–and go home. After some back and forth, Walker instructed the parties to make their cases using unclassified evidence; if the government wanted to submit classified evidence, Walker said, then al-Haramain would have to be given clearance to look at and respond to the evidence. The move did two things: it neutralized the government’s insistence that it could still use State Secrets to moot Walker’s ruling that al-Haramain had standing (and, frankly, avoided a big confrontation on separation of powers). But it also forced the government to prove it hadn’t wiretapped al-Haramain illegally, since it had refused to litigate the case in the manner which Congress had required.

The government basically refused to play. It made no defense on the merits. Which made it easy for Walker to rule in al-Haramain’s favor.

That’s the big headline: that Walker ruled the government had illegally wiretapped al-Haramain.

But there were two more parts of the ruling that are important. First, Walker refused al-Haramain’s request that he also issue an alternate ruling, one that relied on his review of the wiretap log and other classified filings, that would amount to a ruling on the merits. He basically said that such a ruling would muddy up the record if and when this case was appealed.

He also dismissed al-Haramain’s suit against the only remaining individual named as an individual defendant, Robert Mueller.

These last two parts of the ruling are, I think, the big incentives Walker has given for the government to just accept this ruling.

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I’ll explain in a later post why I think this will present some problems). And it’ll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance–tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

Michael Scherer at Swampland at Time:

Four quick bullet points on Judge Vaughn R. Walker’s decision today in Al-Haramain Islamic Foundation v. Barack Obama. (See pdf of ruling here.)

1. The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers. At one point the judge dismisses the government’s “impressive display of argumentative acrobatics.” At another point, the judge says the government’s arguments “take a flying leap and miss by a wide margin.”

2. The judge claims that the Obama Administration is attempting to place itself above the law. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [State Secrets Privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for the executive branch abuses of surveillance authority.” He dismisses this argument.

3. It is difficult to square the Justice Department’s use of State Secrets in this case with President Obama’s stated position on state secrets. In a press conference on April 30, 2009, Obama said the following:

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.

Glenn Greenwald:

On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny.  As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush’s illegal eavesdropping program.  For more on the background of this case and the Obama DOJ’s extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I’ll likely have more on this shortly.

Orin Kerr:

The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

Jeralyn at Talk Left:

The case involved the Al-Haramain Islamic Foundation, an Islamic charity, and two of its lawyers, Wendell Belew and Asim Ghafoor, who alleged their conversations were illegally intercepted. The Court granted their motion for summary judgment finding the Government is liable for damages for illegally wiretapping their conversations without a FISA warrant.

David Kravets at Wired:

Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.

Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence (.pdf). Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008.

The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

What seems immediately significant to me about this ruling, beyond calling into question the legality of the warrantless wiretapping program, is that unless the government appeals, it will be beyond argument that both administrations have been abusing the state-secrets privilege by using it to prevent scrutiny of illegal behavior by the government.

Nick Baumann at Mother Jones:

In 2006, Al-Haramain sued then-President George W. Bush and other top officials after the government mistakenly provided the charity with classified documents that supposedly prove it had been illegally surveilled. A district court judge initially ruled that Al-Haramain could use those documents in its case. Eventually, however, the courts decided that the “state secrets” clause precluded the charity from using the classified documents at trial—a defeat that some observers thought would be fatal to the lawsuit.

Instead of giving up, Al-Haramain and its lawyers tried a different tack, gathering ten times as much unclassified evidence as they had previously submitted. The government, in a tiff, refused to submit evidence contradicting the plaintiffs’ claims, and even tried to claim that it didn’t have to. Walker didn’t like that argument too much: Because the government refused to submit any evidence calling the plaintiffs’ case into question, he simply granted summary judgment—a sort of TKO.

Count this round for the civil libertarians.

UPDATE: More Greenwald

Jacob Sulllum at Reason

Julian Sanchez at Cato

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Georgia On My Mind

Ben Smith in Politico:

President George W. Bush and his senior aides considered — and rejected — a military response to Russia’s 2008 invasion of Georgia, according to a new history of the conflict and interviews with former officials in the Bush administration.

With desperate Georgians begging for American help in closing down the key route through which Russian soldiers were pouring into the country, Bush’s national security aides outlined possible responses, including “the bombardment and sealing of the Roki Tunnel” and other “surgical strikes,” according to a new history of the conflict and independent interviews with former senior officials.

“In that moment of desperation these issues came onto the table, and came to the principals committee” consisting of Bush, Vice President Dick Cheney and top Cabinet members, said Ron Asmus, a Clinton administration State Department official whose book, out this week, is called “The Little War That Shook the World.”

“There were people on [Vice President Dick] Cheney’s staff and [National Security Adviser Stephen] Hadley’s staff who said, ‘We can’t let Georgia go down like this.’”

Hadley, Asmus writes, thought the action too risky — but he formally raised the question with Bush, Cheney and other top officials in a meeting on Aug. 11 in order to prompt an “open discussion” and put Cheney and others on the record.

“No principal advocated the use of force,” said Asmus, who is now executive director of the Transatlantic Center in Brussels.

Hadley, in an interview, declined to comment directly on the substance of conversations among the principals but confirmed that there had been consideration — and dismissal — of the use of force.

Richard Adams at The Guardian:

If you think things couldn’t have been any worse under the presidency of George Bush, then consider this startling news: the White House actually discussed military intervention against Russia during its invasion of Georgia in the summer of 2008. According to a new book, Dick Cheney was up for it. The idea didn’t get far, which is just as well

Andrew Sullivan:

Steve Hadley seems the sane one here. My bet is that if McCain had been president, the US would have launched a war with Russia.

Nick Baumann at Mother Jones:

Politico reports breathlessly that George W. Bush’s administration “considered—and rejected—a military response to Russia’s 2008 invasion of Georgia.” Andrew Sullivan draws the conclusion that the Bush team “came close” to bombing Georgia to stop Russian troops from pouring into the tiny country through a critical tunnel. But that’s not really what the article says.

The key quote, in the sixth paragraph of the story, explains that “No principal advocated the use of force.” It’s both appropriate and unsurprising that Bush and Cheney’s national security aides—or the national security aides to any president—would lay out all the potential responses to a crisis like the invasion of Georgia. And it’s only responsible for the pricipals—actual decisionmakers like Bush, Cheney, and National Security Adviser Stephen Hadley—to discuss all the options. But if none of the actual decisionmakers ever pushed to use military force, it’s hard to argue that it was seriously considered. This really seems like a non-story.

What is startling when reading this article is how clueless Asmus and Hadley still are as to why the conflict happened and how it might have been avoided. Like so many hawks, Asmus thinks the problem was that NATO did not make Georgian membership even more certain, and he thinks that Bush did not engage in enough threatening bluster. This is foolish, but it does at least acknowledge the possibility that the administration mishandled things. Asmus’ analysis is very wrong, but given his horribly flawed assumptions about foreign policy his argument has some internal logic. Hadley is simply oblivious. He cannot conceive how administration policies created the poor state of U.S.-Russian relations, and he also has no understanding of how our reckless encouragement of Saakashvili and the dangerous projection of our influence into a region in which we have no interests precipitated the crisis in 2008. He refers to the Russian invasion as if it were something that came out of nowhere.

Remember that Hadley was National Security Advisor for several years before this. He was partly responsible for crafting the policies that led to the crisis and the war. The obliviousness on display in this article helps to explain why those policies were so flawed. Be very glad that he and people like him are no longer in government. This reminds us that the differences in the responses of our two main presidential candidates to the war in Georgia were not great as a matter of policy, but they were meaningful. In the end, both fell back on the conventional narrative that put all of the blame on Russia, but what we saw initially was that McCain was an unstable, dangerous person and Obama was at least rational and calm. Had McCain won and a similar crisis occurred, it is easy to imagine McCain authorizing military intervention. Whatever else happens, I don’t think anyone can seriously argue that the United States would be better off with that maniac in charge.

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