Glenn Greenwald's Blog, page 119

Manning, Obama and U.S. moral leadership

On December 15, when I first reported the inhumane conditions of Bradley Manning's detention, I did not assign any blame to -- or even mention -- Barack Obama. Although, as Commander-in-Chief, Obama was technically responsible for Manning's treatment, there was no evidence that he even knew about it, let alone planned it. But since then, the Manning controversy exploded into national prominence and Obama has explicitly defended the treatment, leaving no doubt that it directly reflects on who he is as a leader and a person.

For that reason, as The Guardian reports this morning, a letter signed by "more than 250 of America's most eminent legal scholars" that "includes leading figures from all the top US law schools, as well as prominent names from other academic fields" -- featuring "Laurence Tribe, a Harvard professor who is considered to be America's foremost liberal authority on constitutional law"; who "taught constitutional law to Barack Obama and was a key backer of his 2008 presidential campaign"; and "joined the Obama administration last year as a legal adviser in the justice department, a post he held until three months ago" -- not only denounces Manning's detention but also the 2009 Nobel Peace Prize winner's personal responsibility for it:

[Tribe] told the Guardian he signed the letter because Manning appeared to have been treated in a way that "is not only shameful but unconstitutional" as he awaits court martial in Quantico marine base in Virginia. . . . Tribe said the treatment was objectionable "in the way it violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences, not to mention someone merely accused of such offences".

The harsh restrictions have been denounced by a raft of human rights groups, including Amnesty International, and are being investigated by the United Nations' rapporteur on torture. . . .

The intervention of Tribe and hundreds of other legal scholars is a huge embarrassment to Obama, who was a professor of constitutional law in Chicago. Obama made respect for the rule of law a cornerstone of his administration, promising when he first entered the White House in 2009 to end the excesses of the Bush administration's war on terrorism. . . .

The protest letter, published in the New York Review of Books, was written by two distinguished law professors, Bruce Ackerman of Yale and Yochai Benkler of Harvard. They claim Manning's reported treatment is a violation of the US constitution, specifically the eighth amendment forbidding cruel and unusual punishment and the fifth amendment that prevents punishment without trial.

In a stinging rebuke to Obama, they say "he was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency."

Professor Benkler, echoing the point that I've repeatedly emphasized as I believe it to be the most important one, said "Manning's conditions were being used 'as a warning to future whistleblowers'." Indeed, Manning's treatment lacks even a pretense of justification; it -- just like the Obama administration's unprecedented war on whistle-blowers -- is clearly meant to threaten and intimidate future individuals of conscience who, like Manning, might consider exposing government deceit, corruption and legality: one of the few remaining avenues for learning what the Government does.

Aside from what conduct like this reveals about Obama, it also severely undermines the ability of the U.S. to exercise any shred of moral leadership in the world. Consider this series of events:

Washington Post, March 13, 2011:

Associated Press, April 4, 2011:

Reuters, yesterday:

The United States is beset by violence, racism and torture and has no authority to condemn other governments' human rights problems, China said on Sunday, countering U.S. criticism of Beijing's crackdown. . . . "The United States ignores its own severe human rights problems, ardently promoting its so-called 'human rights diplomacy', treating human rights as a political tool to vilify other countries and to advance its own strategic interests," said a passage from the Chinese report.

China also "accused the U.S. . . . of pushing for Internet freedom around the world as a way to undermine other nations, while noting that Washington's campaign against secret-spilling website WikiLeaks showed its own sensitivity to the free flow of information," and further "lambasted the U.S. over issues ranging from homelessness and violent crime to the influence of money on politics and the negative effects of its foreign policy on civilians." China's human rights record is atrocious, but can anyone contest the validity of its objections to the U.S. and the Obama administration's purporting to act as human rights arbiters for the world?

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Long-time commenter Chris Martinez (DCLaw1) has begun a new fiction blog that features his great writing, subtle humor, and unique insights. Fans of Chris' commentary here -- which includes me -- will very much enjoy the new blog.

The Washington Post's dependence on the government it covers

The Washington Post this morning published a lengthy article detailing the fortune -- and now the trouble -- generated for its parent company, The Washington Post Co., as a result of its acquisition of Kaplan Higher Ed. While The Post continues to lose money, Kaplan -- particularly its sprawling network of for-profit "universities" which the company began building in 2000 -- generates huge profits for the company, profits on which the Post Co. depends almost completely for its sustainability.

Indeed, the newspaper has become little more than a side vanity project for the Post Co. and the Graham family which continues to dominate it; it is now, at its core, in the business of profiting off of lower-income students who pay for diplomas, often obtained via online classes. "The fate of The Post Co. has become inextricably linked with that of Kaplan, where revenue climbed to $2.9 billion in 2010, 61 percent of The Post Co.'s total," the article detailed; "the company is more dependent than ever on a single business,' [CEO Donald] Graham wrote in last year's annual report, adding that the newspaper had never accounted for as large a share of overall company revenue as Kaplan does today."

The article is largely devoted to recounting the corruption and abuses which pervade the for-profit education industry in general and Kaplan in particular (saddling poor people with debt in exchange for nothing of real value). But what I found most notable is how dependent is this industry -- including The Washington Post Co. -- on staying in the good graces of the Federal Government. Because these schools target low-income students, the vast majority of their income is derived from federal loans. Because there have been so many deceptive practices and defaults, the Federal Government has become much more aggressive about regulating these schools and now play a vital role in determining which ones can thrive and which ones fail.

Put another way, the company that owns The Washington Post is almost entirely at the mercy of the Federal Government and the Obama administration -- the entities which its newspaper ostensibly checks and holds accountable. "By the end of 2010, more than 90 percent of revenue at Kaplan's biggest division and nearly a third of The Post Co.'s revenue overall came from the U.S. government." The Post Co.'s reliance on the Federal Government extends beyond the source of its revenue; because the industry is so heavily regulated, any animosity from the Government could single-handedly doom the Post Co.'s business -- a reality of which they are well aware:

The Post Co. realized there were risks attached to being dependent on federal dollars for revenue -- and that it could lose access to that money if it exceeded federal regulatory limits.

"It was understood that if you fell out of grace [with the Education Department], your business might go away," said Tom Might, who as chief executive of Cable One, a cable service provider that is owned by The Post Co., sat in at company-wide board meetings.

Beyond being reliant on federal money and not alienating federal regulators, the Post Co. desperately needs favorable treatment from members of Congress, and has been willing to use its newspaper to obtain it:

Graham has taken part in a fierce lobbying campaign by the for-profit education industry. He has visited key members of Congress, written an op-ed article for the Wall Street Journal and hired for The Post Co. high-powered lobbying firms including Akin Gump and Elmendorf Ryan, at a cost of $810,000 in 2010. The Post has also published an editorial opposing the new federal rules, while disclosing the interests of its parent company.

The Post is hardly alone among major media outlets in being owned by an entity which relies on the Federal Government for its continued profitability. NBC News and MSNBC were long owned by GE, and now by Comcast, both of which desperately need good relations with government officials for their profits. The same is true of CBS (owned by Viacom), ABC (owned by Disney), and CNN (owned by TimeWarner). For each of these large corporations, alienating federal government officials is about the worst possible move it could make -- something of which all of its employees, including its media division employees, are well aware. But the Post Co.'s dependence is even more overwhelming than most.

How can a company which is almost wholly dependent upon staying in the good graces of the U.S. Government possibly be expected to serve as a journalistic "watchdog" over that same Government? The very idea is absurd. The whole point of the First Amendment's free press guarantee is that adversarial journalism is possible only if journalists are independent of political power. Yet the U.S. now has exactly the opposite dynamic: most major media outlets are owned by corporations that are anything but independent of government: they are quite dependent upon political officials for their profit in countless ways. We have anything but an independent press, which is another way of saying we have anything but a free press.

If you tell journalists that they are restrained in adversarial reporting by such motivations, they will vehemently deny it and perhaps even believe their denials. Media self-censorship is rarely overt; these journalists thus do not typically receive memos instructing them to lavish political officials with favorable treatment and avoid alienating them (though sometimes that's exactly how they receive those dictates). But that's because such instructions are unnecessary. Any employees who thrive in large corporations do so by learning what's in their employer's interests and acting dutifully to promote those interests. No corporate employee can remain for long if their actions subvert their employer's core interests.

So inextricably linked are these media corporations and government officials that it's a cultural merger; the prevailing corporate ethos is that it is far better to be viewed favorably by those with political power than unfavorably. Why would any employee of these corporations -- including their journalists, editors, and producers -- possibly want to do something (such as alienating political officials) that is so plainly at odds with the financial needs of their corporate employers?

There are many well-documented reasons why the American media is so deferential to political power. Currying favor with political officials is how they secure scoops, leaks and access. Because media stars are now as wealthy and celebrated as the politically powerful whom they cover, they identify on socioeconomic and cultural grounds with these political officials; media stars are far more integrated into the halls of political power than they are outside of them. Whereas independent journalists are constitutionally inclined to scorn the powerful, employees of large corporations -- by their nature -- tend to be people who are revere institutional authority and are talented at flattering and accommodating those in power. And, as Jack Goldsmith recently argued, many establishment journalists are driven by what he bizarrely celebrated as "patriotism," by which he means fealty to American political officials and their actions.

But one crucial factor driving this decisively non-adversarial journalistic posture is that the large corporations which own these media outlets need desperately to maintain good relations with the political class. How could you possibly be a journalist at The Washington Post -- knowing that for your corporate employer "if you fell out of grace [with the Education Department], your business might go away" and that your boss is spending huge amounts of his time and money currying favor with federal officials -- and not have it affect what you write? I don't doubt that there are isolated reporters and editors who bracket out such considerations, but on the whole, the wholesale dependence of these companies on the Federal Government goes a long way toward explaining why the nation's major media outlets are so eager to please -- rather than check and expose -- those who wield the greatest political power.

WikiLeaks and the Media

I participated yesterday in a panel on WikiLeaks and the media at the National Conference for Media Reform in Boston. The entire panel discussion, moderated by Amy Goodman, can be viewed below; my presentation -- focusing on the reaction of the establishment press to WikiLeaks and the reasons why the controversy is so important -- begins at the 54:45 mark, and there is an interesting Q-and-A session that follows. Now that I'm home, regular posting will resume tomorrow or Monday.

 

Watch live streaming video from freespeechtv at livestream.com

America's two party system

(updated below)

Extensive traveling the last couple of days has prevented me from writing, but I wanted to post what I found to be an interesting MSNBC segment I did on Wednesday with Lawrence O'Donnell regarding the way in which America's two-party system suffocates political choice.  I spoke yesterday at Harvard's Kennedy School and was asked whether I've ever been told by MSNBC or any other television program on which I've appeared not to speak about a certain issue.  I replied that the media's narrowing of political debate doesn't generally operate in such an explicit way (though sometimes it does); rather, by confining themselves only to those issues relating to the partisan conflicts between Democrats and Republicans, anything that exists outside of that sphere is simply ignored.  Any positions that enjoy bipartisan consensus -- or issues that the two parties jointly ignore -- are rarely examined in establishment media venues.  Because O'Donnell somewhat unexpectedly (and commendably) directed the discussion to the fundamental deficiencies of the two-party system, this segment ended up being an exception to that rule (note that below the video, I discuss the OLC's argument about Obama's war powers): 

 

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The Office of Legal Counsel -- the DOJ division which provided the legal authority for virtually everything George Bush wished to do, from illegal eavesdropping to torture -- this week released a memorandum setting forth its reasoning as to why President Obama has the legal authority to involve the U.S. in a war in Libya without Congressional approval.  The OLC in essence argued that "the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval"; that this authority "derives from the President's 'unique responsibility,' as Commander in Chief and Chief Executive, for 'foreign and military affairs,' as well as national security"; and that -- despite all appearances -- what is happening in Libya is not a "war" as the Constitution uses that term when assigning the right to Congress (not the president) to declare wars (the OLC emphasized the limited nature of the intervention, though a U.S. General yesterday suggested the U.S. may consider deploying ground troops).

I'll have more to say about this assertion of executive authority, but for now, I'll note 3 points:  (1) whatever your view is of this argument, there is no question that it is the exact opposite of what Barack Obama argued as a Senator and candidate; The New York Times yesterday called the OLC memo "a striking departure from Mr. Obama's own interpretation of the president's constitutional powers before being elected"; (2) the small but vocal band of Obama's hardest-core Internet followers spent weeks haranguing anyone who wrote on this issue by absurdly claiming that a 1945 law concerning the U.N. is dispositive in providing statutory authority for Obama's Libya war; so self-evidently frivolous was this claim that the OLC, in arguing for Obama's war powers authority, does not even bother to mention (let alone rely upon) that statute; and (3) Bruce Fein -- the former Reagan DOJ official beloved by progressives during the Bush years for his early and emphatic condemnation of Bush's executive power abuses -- has drafted and published articles of impeachment over Obama's usurpation of Congressional authority in involving the U.S. in this war (Fein suggested the same remedy for Bush's illegal NSA program); obviously, that's not a realistic proposal (in large part because Congress, as usual, has no interest in defending its Constitutional power and prior Presidents have been repeatedly permitted to act in this manner), but the document does set forth the reasons why this action -- though far from unusual -- is such a glaring departure from what the Constitution permits.

 

UPDATE:  I'm speaking this morning, at 11:00 am, regarding WikiLeaks, on a panel at the National Media Reform Conference in Boston, along with Amy Goodman, The Nation's Greg Mitchell and others.  For those interested, the panel will be broadcast live at TheNation.com.

The impotence of the loyal partisan voter

Rachel Maddow last night issued a very harsh and eloquent denunciation of Obama's decision to try Khalid Sheikh Mohammed before a military commission at Guantanamo rather than a real court. At the end of her monologue, Maddow focused on the contrast between how the Republicans treat their base and how Democrats treat theirs, specifically emphasizing that the White House announced this decision on the same day it kicked off Obama's re-election bid. About that point, Rachel said this:

A Democratic President kicks his base in the teeth on something as fundamental as civil liberties -- he puts the nail in the coffin of a civil liberties promise he made on his first full day in office -- and he does it on the first day of his re-election effort. And Beltway reaction to that is. . . huh, good move. That's the difference between Republican politics and Democratic politics. The Republicans may not love their base, but they fear them and play to them. The Democratic Party institutional structures of D.C., and the Beltway press in particular, not only hate the Democratic base -- they think it's good politics for Democratic politicians to kick that base publicly whenever possible.

Only the base itself will ever change that.

How will that happen? How can the base itself possibly change this dynamic, whereby politicians of the Democratic Party are not only willing, but eager, to "kick them whenever possible," on the ground (among others) that doing so is good politics? I'd submit that this is not only one of the most important domestic political questions (if not the most important), but also the one that people are most eager to avoid engaging. And the reason is that there are no comforting answers.

One thing is for certain: right now, the Democratic Party is absolutely correct in its assessment that kicking its base is good politics. Why is that? Because they know that they have inculcated their base with sufficient levels of fear and hatred of the GOP, so that no matter how often the Party kicks its base, no matter how often Party leaders break their promises and betray their ostensible values, the base will loyally and dutifully support the Party and its leaders (at least in presidential elections; there is a good case that the Democrats got crushed in 2010 in large part because their base was so unenthusiastic).

In light of that fact, ask yourself this:  if you were a Democratic Party official, wouldn't you also ignore -- and, when desirable, step on -- the people who you know will support you no matter what you do to them? That's what a rational, calculating, self-interested, unprincipled Democratic politician should do:  accommodate those factions which need accommodating (because their support is in question), while ignoring or scorning the ones whose support is not in question, either because they will never vote for them (the hard-core right) or will dutifully canvass, raise money, and vote for them no matter what (the Democratic base).  Anyone who pledges unconditional, absolute fealty to a politician -- especially 18 months before an election -- is guaranteeing their own irrelevance.

It was often said that Bush/Cheney used fear as their principal political weapon -- and they did -- but that's true of the Democratic Party as well. When it comes to their base, Democratic leaders know they will command undying, unbreakable support no matter how many times they kick their base, because of the fear that has been instilled in the base -- not fear of Terrorists or Immigrants (that's the GOP's tactic), but fear of Sarah Palin, the Kochs and the Tea Party. Rachel herself made this point quite well before the 2010 election:

I talked at the top of the show tonight with Gail Collins about how one way to motivate your natural base for an election is to make your base afraid of what the other side has to offer. And that is true. That works. That works on both sides. It works for conservatives about liberals and it works for liberals about conservatives.

But one less soul-sucking way to motivate your base and to win an election and to keep winning elections and to, frankly, have history look kindly upon you, is to get your base to cheer for you -- not just to cheer against someone else, but to see you standing up, not just to bad guys with worse ideas than you, but to see you standing up for what is right because you know it is right, because we know you know it's right, even though you also know standing up for it is hard.

It may be that this fear of Republicans is rational (or, given how many GOP-replicating policies and practices the Democrats embrace, maybe it isn't).  But whatever else is true, one thing is for certain: dedicated partisans who pledge their unbreakable, eternally loyal support for any Party or politician are going to be steadfastly ignored (or worse) by that Party or politician, and rightfully so. If you spend two years vehemently objecting that certain acts so profoundly offend your principles but then pledge unequivocal support no matter what almost two years in advance to the politicians who engage in them, why would you expect your objections to be heeded? Any rational person would ignore them, and stomp on your beliefs whenever doing so benefited them.

I'm not saying I know the answer.  Joan Walsh yesterday urged progressives not to organize for Obama until next year while nonetheless vowing to support his re-election, which (though well-intentioned) strikes me as merely reinforcing this dynamic. But what I do know is that Rachel's optimistic proclamation that "only the base itself will ever change" this dynamic cannot be fulfilled without giving the Party and its leaders a true reason to pay attention or care about disenchantment (and, some day, to fear alienating their base). For those who are hopeful that this will happen, what do they envision will cause it? What would ever make Democratic Party leaders change how they view this dynamic?

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In Slate, the normally rhetorically restrained Dahlia Lithwick has a superb article condemning Obama's decision on the KSM trial as "appalling, cowardly, stupid and tragically wrong."  Indeed, as I've documented before -- virtually every country that suffers horrible Terrorist attacks -- Britain, Spain, India, Indonesia -- tries the accused perpetrators in its regular court system, on their own soil, usually in the city that was attacked.  The U.S. -- Land of the Free and Home of the Brave -- stands alone in being too afraid to do so.

Related to that:  the notion that political opinion in America would not allow Obama to do anything differently on these issues is empirically disproven; he ran on a platform of opposing all the measures he now supports and won decisively.  By itself, that proves that -- when these debates are engaged rather than conceded -- these positions are politically sustainable.  Obama adopts Bush Terrorism policies because he wants to and has no reason not to -- not because doing so is a political necessity.

Finally -- and as is usually true for this excuse -- the notion that "Congress made him do it" is totally false: aside from the fact that the Obama administration long ago announced that it would retain the military commission system, the White House -- long before Congress acted to ban transfers of detainees to the U.S. -- removed decision-making power from the DOJ in the KSM case and made clear it would likely reverse Holder's decision.  As The Atlantic's Andrew Cohen notes:

Long before the formal "restrictions" came into place on Capitol Hill, the Justice Department could have forced the issue in Congress by bringing Mohammed to trial in the U.S. Even recently, it could have asked the courts to broker the fight between the executive and legislative branches over the fate of the men. It could have put the heat on truculent local politicians. But the feds chose to avoid all of those fights until it was too late. One day, perhaps, we'll really know why.

The Congressional ban is the excuse, not the cause. 

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I'll be on Lawrence O'Donnell's MSNBC program tonight discussing issues relating to Obama's re-election effort.

Primitive Muslims' unique love of violence

University of Tennessee Law Professor Glenn "Instapundit" Reynolds, today, echoing so many by lamenting the compulsive violence of Muslims:

It's hard to keep track of all the barbaric behavior emanating from that part of the world.

Glenn Reynolds, November 23, 2010, on his prescription for dealing with North Korea:

If they start anything, I say nuke 'em. And not with just a few bombs. They've caused enough trouble -- and it would be a useful lesson for Iran, too.

Glenn Reynolds, November 4, 2006, on how to deal with the Muslim world:

It's also true that if democracy can't work in Iraq, then we should probably adopt a "more rubble, less trouble" approach to other countries in the region that threaten us.

Glenn Reynolds, February 13, 2007, on how to deal with Iran:

We should be responding quietly, killing radical mullahs and iranian atomic scientists . . . 

Glenn Reynolds, September 11, 2001, on responding to the 9/11 attacks:

GEORGE BUSH IS NOW THE MOST POWERFUL MAN IN THE WORLD:. . . Now, if he wants to nuke Baghdad, there is nobody to say him nay -- and damned few who would want to.

Boy, those primitive, dirty, lowly Muslims sure do have a bizarre, unique cultural compulsion toward violence and barbarism, don't they? Reynolds is highlighted here not because he's unique but because he's so drearily common. Behold the spectacle of those who cheered for the attack on Iraq (resulting in the deaths of at least 100,000 innocent people), who casually call for massive first-strike nuclear attacks on other nations (certain to vaporize hundreds of thousands or millions of human), who loyally marched lockstep behind a leader who instituted a worldwide torture and disappearance regime, lamenting how those grimy, backward Muslims over there have a disturbing and incomparable affinity for violence (and for examples of religious-motivated violence among Christians and Jews, see here).

Nuke 'em. Invade 'em. Torture 'em. Occupy 'em. Murder their scientists and religious leaders.  Put 'em in cages for life without due process.  Reduce 'em to rubble. Why? Because Muslims are so prone to violence and barbarism! That's a fairly succinct summary of America's political culture for the last decade at least.

The most uncounted cost of Endless War

Harry Reid and Lindsey Graham yesterday both suggested that Congress take unspecified though formal action against the Koran-burning by Florida preacher Terry Jones, which triggered days of violence this week by angry Muslims in Afghanistan. Graham in particular -- using the "but" that is the hallmark of all enemies of the First Amendment -- said: "Free speech is a great idea, but we're in a war." He claimed that "during World War II, we had limits on what you could say if it would inspire the enemy" (I think he was thinking of World War I, when Woodrow Wilson succeeded in all but criminalizing war opposition, including passage of the dangerously broad Espionage Act: the statute Dianne Feinstein and others now want to exploit to prosecute WikiLeaks).

There are several points worth highlighting about all of this. First, it demonstrates how many people purport to believe in free speech but don't. The whole point of the First Amendment is that one is free to express the most marginalized, repellent, provocative and offensive ideas. Those are the views that are always targeted for suppression. Mainstream orthodoxies, harmless ideas, and inoffensive platitudes require no protection as they are not, by definition, vulnerable to censorship. But as has been repeatedly seen in history, ideas that are despised and marginalized are often proven right, while ideas that enjoy the status of orthodoxy prove to be deeply erroneous or even evil. That's why no rational person trusts the state -- or even themselves -- to create lists of Prohibited Ideas. And those who endorse the notion that ideas they hate should be forcibly suppressed inevitably -- and deservedly -- will have their own ideas eventually targeted by the same repressive instruments.

If you're someone who wants to vest the state with the power to punish the expression of certain views on the grounds that the view is so wrong and/or hurtful that its expression should not be permitted -- as European countries and Canada routinely do -- then you're someone who does not believe in free speech, by definition; what you believe is that one is free to express only those viewpoints which the majority of citizens (and the State) allow to be expressed. Many of the most important views throughout history have been, at some point, hurtful, dangerous and even violence-engendering. The whole reason for free speech protections is to safeguard such ideas -- despised by the majority -- from suppression. Burning the Koran is despicable, but it's every bit as much core political speech as burning the American flag or an effigy of a hated political leader, or tearing up a picture of -- or publishing cartoons unfavorably depicting -- a religious leader.

Second, this event demonstrates one of the most uncounted (though one of the most intended) costs of our posture of Endless War: the way it is exploited to endlessly erode core liberties. The last decade's unrelenting (and still escalating) War on Terror -- i.e., war in multiple countries in the Muslim world -- has led to an erosion of virtually every basic civil liberty, including due process, Fourth Amendment protections, and habeas corpus. All wars have the same effect, as many of the most abusive assaults on core civil liberties in American history have been justified by appeal to war.

As Andrew Sullivan said of this episode: it's "a classic example of how warfare abroad can curtail liberties at home . . . we should also remember that this war has no end, and that therefore the liberties taken away by wartime are permanently taken away." In addition to the body count and the vast sums of money, this inevitable erosion of liberty from our continuous wars -- and the always escalating wall of secrecy that enables it -- must be counted when deciding whether to support them. Wars degrade a nation's character and the fabric of its political culture; Endless War has that effect exponentially.

Third, there is an extreme irony in Harry Reid and Lindsey Graham, of all people, suddenly worrying about actions that trigger anger and violence in the Muslim world. These two Senators, after all, have supported virtually every one of America's actions which have triggered vastly more anti-American anger, vengeance and violence in the Muslim world than anything Pastor Jones could dream of spawning -- from the attack on Iraq to the decade-long occupation of Afghanistan to blind support for Israel to the ongoing camp at Guantanamo. To support his demand for Congressional action against Pastor Jones, Graham has the audacity to cite Gen. Petraeus, who condemned the Koran burning on the ground that it would endanger American troops: "General Petreaus understand better than anybody else in America what happens when something like this is done in our country and he was right to condemn it."

But here's something else Gen. Petraeus said about what triggers violence against Americans and helps the Enemy:

Closing the military prison at Guantanamo Bay would purge the U.S. of a symbol used by enemies to divide the nation, the head of the U.S. Central Command said Friday. Army Gen. David Petraeus said the U.S. military is "beat around the head and shoulders" with images of detainees held in Guantanamo.

On a previous occasion, Gen. Petraeus said: "Gitmo has caused us problems, there's no question about it. I oversee a region in which the existence of Gitmo has indeed been used by the enemy against us."

By publicly demanding that Guantanamo detainees not be tried in the U.S., Reid played a major role in preventing closure of that camp, while Graham has been a leading advocate of the indefenite detention regime that made the camp so controversial and which itself spawns substantial anti-American violence in Afghanistan. Reid and Graham both voted for the attack on Iraq. Reid and Graham continue to be outspoken supporters of the war in Afghanistan. Both Senators are blind supporters of Israel, including its most heinous acts. If they're looking for targets to punish whose ideas have triggered violence and anti-American rage in the Muslim world, they should look in the mirror.

Citizenship duties

"Honestly, I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens."

--Britney Spears, September 3, 2003, answering this question: "A lot of entertainers have come out against the war in Iraq. Have you?"

"So what should I think about [the war in Libya]? If it had been my call, I wouldn't have gone into Libya. But the reason I voted for Obama in 2008 is because I trust his judgment. And not in any merely abstract way, either: I mean that if he and I were in a room and disagreed about some issue on which I had any doubt at all, I'd literally trust his judgment over my own. I think he's smarter than me, better informed, better able to understand the consequences of his actions, and more farsighted."

--Kevin Drum, Friday, in Mother Jones

 

I don't dispute that trust plays some proper role in deciding for whom one will vote. Part of the reason I advocated for Obama's election over John McCain's is because I believed -- and still believe -- that Obama was much smarter, more thoughtful, more intellectually open, and more knowledgeable than McCain. That Obama is very intelligent is not reasonably disputable, at least not in my view.

But there are other vital attributes that determine the quality of decision-making besides intellect: courage is one; an ability to form (and a willingness to defend) moral and ethical convictions is another; genuine empathy for others is still another. An amoral, cowardly, unprincipled genius is likely to make worse decisions than a stalwart, principled, moral person of average intelligence. That said, whatever factors one assesses, it's certainly legitimate -- when it comes to elections -- to form comparative preferences for politicians based on the trust one has in their decision-making ability.

But that's in a different universe than deciding that -- once they're in power -- you're going to relinquish your own critical faculties and judgment to them as a superior being, which is exactly what Drum (and Spears) announced they were doing. That form of submission is a definitively religious act, not a political one (Proverbs 3:5: "Trust in the LORD with all thine heart; and lean not unto thine own understanding"). Venerating a superior being and blindly following its will is a natural human impulse, as it frees one of the heavy burden of decision-making and moral and intellectual judgment, and it also creates a feeling of safety and protection (hence the cross-cultural and sustained strength of religion, as well as the potent appeal of both political authoritarianism and personality cults).

But "thinking" that way is an absolute abdication of the duties of citizenship, which compel holding leaders accountable and making informed judgment about their actions (it's a particularly bizarre mindset for someone who seeks out a platform and comments on politics for a living). It's also dangerous, as it creates a climate of unchecked leaders who bask in uncritical adoration. I honestly don't understand why someone who thinks like Drum -- whose commentary I've usually found worthwhile -- would even bother writing about politics; why not just turn over his blog to the White House to disseminate Obama's inherently superior commentary? And what basis does Drum have for demanding that Obama inform him or the nation of the rationale for his decisions, such as going to war in Libya; since Drum is going to trust Obama's decisions as intrinsically more worthwhile, wouldn't such presidential discussions be a superfluous act?

It's truly difficult to overstate just how antithetical this uncritical trust is to what the Founders assumed -- and hoped -- would be the cornerstone of the republic. Jefferson wrote in 1798: "in questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Adams, in 1772, put it this way: "The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty." Four years later, his wife Abigail memorably echoed the same sentiment in a letter to him: "remember, all men would be tyrants if they could."

Even the most magnanimous leaders -- perhaps especially them, given their belief in their own Goodness -- are likely to veer into serious error, corruption and worse if they are liberated from a critical citizenry. Mindlessly cheering for a politician -- or placing trust in their decision-making -- is understandable a couple of months before an election when you've decided their re-election is important. But it's wildly inappropriate any other time. And subordinating your own critical faculties to a leader's is, at all times, warped, self-destructive and dangerous.

* * * * *

See also: John Hinderaker, 2005 ("It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can't get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile") v. Jonathan Chait, 2010 ("President Obama is so much smarter and a better communicator than members of Congress in either party. The contrast, side by side, is almost ridiculous. . . . Most the time [sic], this is like watching Lebron James play basketball with a bunch of kids who got cut from the 7th grade basketball team. He's treating them really nice, letting his teammates take shots and allowing the other team to try to score. Nice try on that layup, Timmy, you almost got it on. But after a couple minutes I want him to just grab the ball and dunk on these clowns already").

* * * * *

Regarding yesterday's article on Obama's executive power theory: Charlie Savage today reports that, contrary to the source for TPM's account, Hillary Clinton merely suggested that the Obama administration might ignore Congressional restraints on the war in Libya, rather than definitively vowing it would. That doesn't change the key points -- it's a semantic difference more than anything else -- but it's worth noting.

Obama's new view of his own war powers

Back in January, 2006, the Bush Justice Department released a 42-page memo arguing that the President had the power to ignore Congressional restrictions on domestic eavesdropping, such as those imposed by FISA (the 30-year-old law that made it a felony to do exactly what Bush got caught doing:  eavesdropping on the communications of Americans without warrants).  That occurred roughly 3 months after I began blogging, and -- to my embarrassment now -- I was actually shocked by the brazen radicalism and extremism expressed in that Memo.  It literally argued that Congress had no power to constrain the President in any way when it came to national security matters and protecting the nation. 

To advance this defense, Bush lawyers hailed what they called "the President's role as sole organ for the Nation in foreign affairs"; said the President's war powers inherently "includes all that is necessary and proper for carrying these powers into execution"; favorably cited an argument made by Attorney General Black during the Civil War that statutes restricting the President's actions relating to war "could probably be read as simply providing 'a recommendation' that the President could decline to follow at his discretion'"; and, as a result of all that, Congress "was pressing or even exceeding constitutional limits" when it attempted to regulate how the President could eavesdrop on Americans.  As a result, the Bush memo argued, the President had the power to ignore the law because FISA, to the extent it purported to restrict the President's war powers, "would be unconstitutional as applied in the context of this Congressionally authorized armed conflict."  

That claim -- that the President and he alone possesses all powers relating to war under the "Commander-in-Chief" clause of Article II -- became the cornerstone of Bush's "ideology of lawlessness."  In a post that same month defining that ideology, I argued that this lawlessness was grounded in the September 25, 2001 War Powers memo by John Yoo, which infamously concluded as follows:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

That was the heart and soul of Bush lawlessness:  "no "statute can place any limits on the President's determinations" as "these decisions, under our Constitution, are for the President alone to make."

Yesterday, Hillary Clinton told the House of Representatives that "the White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission."  As TPM put it:  "the administration would ignore any and all attempts by Congress to shackle President Obama's power as commander in chief to make military and wartime decisions," as such attempts would constitute "an unconstitutional encroachment on executive power."  As Democratic Rep. Brad Sherman noted, Clinton was not relying on the War Powers Resolution of 1973 (WPR); to the contrary, her position is that the Obama administration has the power to wage war in violation even of the permissive dictates of that Resolution.  And, of course, the Obama administration has indeed involved the U.S. in a major, risky war, in a country that has neither attacked us nor threatened to, without even a pretense of Congressional approval or any form of democratic consent.  Whether the U.S. should go to war is a decision, they obviously believe, "for the President alone to make."

Initially, I defy anyone to identify any differences between the administration's view of its own war powers -- that it has the right to ignore Congressional restrictions on its war powers -- and the crux of Bush radicalism as expressed in the once-controversial memos by John Yoo and the Bush DOJ.  There is none.  That's why Yoo went to The Wall Street Journal to lavish praise on Obama's new war power theory:  because it's Yoo's theory (as I was finishing this post, I saw that ).  If anything, one could argue that Yoo's theory of unilateral war-making was more reasonable, as it was at least tied to an actual attack on the U.S.:  the 9/11 attacks.  Here, the Obama administration is arrogating unto the President the unilateral, unrestrained right to start wars in all circumstances, whether or not the U.S. is attacked.

But what Clinton's stated view really harkens back to is the Iran-contra scandal, when the Reagan administration funded the Nicaraguan contras despite an express Congressional prohibition on doing so, and then took the position -- when exposed -- that Congress has no power to restrict its national security decisions.  That position was pioneered in 1987 by then GOP Rep. Dick Cheney and his longtime aide David Addington, who wrote a dissenting report to the finding of the Iran-contra committee that the administration's funding of the contras violated the law.  As Charlie Savage detailed in his book, Takeover, Cheney insisted that Congress lacked the power to restrict the President's national security power in any way -- i.e., that the prohibition on funding the contras was constitutionally null and void -- and it was this theory of Presidential Omnipotence which laid the groundwork for Bush 43's imperial presidency:

Cheney has been on a thirty-year quest to implement his views of unfettered executive power  For example, when it was revealed in 2005 that the Bush administration had been illegally spying on Americans, Cheney responded: "If you want to understand why this program is legal…go back and read my Iran-Contra report." In that report -- authored in 1987 -- Cheney and aide David Addington defended President Reagan by claiming it was "unconstitutional for Congress to pass laws intruding" on the "commander in chief."

Isn't that bolded part -- the self-proclaimed crux of Cheneyite executive power radicalism -- exactly what Hillary Clinton asserted yesterday on behalf of the Obama administration to justify the unauthorized war in Libya?  Yes, it is.

The arguments raised to justify the Obama view of his own powers are every bit as frivolous as they were during the Bush years.  Many claim that the War Powers Resolution of 1973 allows a President to fight wars for 60 days without Congressional approval, but (a) the Obama administration is taking the position that not even the WPR can constrain the President, and (b) 1541(c) of that Resolution explicitly states that the war-making rights conferred by the statute apply only to a declaration of war, specific statutory authority, or "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."  Plainly, none of those circumstances prevail here.  That's why the Obama administration has to argue that it is empowered to ignore the WPR:  because nothing in it permits the commencement of a war without Congressional approval in these circumstances; to the contrary, it makes clear that he has no such authority in this case (just read 1541(c) if you have any doubts about that).

Then there's the notion that Presidents in the past have started similar wars without Congressional approval.  That's certainly true, but so what?  The fact that an act is commonplace isn't a defense or justification.  That "defense" was also a common refrain of Bush followers to justify their leader's chronic unconstitutional acts and other forms of law-breaking:  Lincoln suspended habeas corpus and FDR interned Japanese-Americans, so why are you upset that Bush is acting outside the law?  The pervasiveness of this form of thought underscores the dangers of learned acquiescence:  once a government engages long enough or pervasively enough in a certain form of criminality or corruption, the citizenry is trained to accept it and collectively ceases to resist it, even learns to embrace it.  What Obama is doing in Libya is either lawful or it isn't on its own terms; whether other Presidents in the past have acted similarly (and they have) is irrelevant.

Then there's the claim that the President, as "Commander-in-Chief" under Article II, is vested by the Constitution with the unilateral power to make decisions about America's national security.  Leave aside the fact that this premise was the crux of the Bush/Cheney worldview, one which every Good Democrat and Liberal vehemently condemned until recently.  Further leave aside the fact that both Obama and Clinton as Senators and presidential candidates insisted exactly the opposite when they specifically argued that Congress could legally require Bush to obtain Congressional approval before bombing Iran and generally that Presidents have no power to start wars without a vote from Congress.  It was true during the Bush years and it is true now that this is an absolute distortion of the "Commander-in-Chief" power of Article II.

To say that the President is "Commander-in-Chief" is not to say that he has the power to start wars.  That power is expressly assigned to Congress under Article I, Section 8.  The "Commander-in-Chief" power means nothing more than, once a war starts, the President is the top General with the power to decide how it is tactically prosecuted.  I made this argument over and over during the Bush years because this warped Article II view was the principal Bush/Cheney argument for justifying almost everything they did, and to rebut it, I invariably cited the dissent written by Antonin Scalia -- and joined by John Paul Stevens -- in Hamdi v. Rumsfeld, in which the Surpeme Court ruled that the President, as "Commander-in-Chief," has the power to detain even American citizens as "enemy combatants."  

Both Scalia and Stevens insisted that any such attempt was plainly unconstitutional, and emphatically rejected the Bush/Cheney (now-Obama/Clinton) view that Presidents have unconstrained national security power under Article II.  They explained just how limited of a power the "Commander-in-Chief" clause vests, and that the expansive Bush/Cheney view would replicate the worst excesses of the British King:

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders; general mistrust of military power permanently at the Executive's disposal. . . . No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"[The Commander-in-Chief power] would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

That bolded section -- quoting Alexander Hamilton, the founder most enthusiastic of executive power -- is dispositive.  The British King could start wars on his own; the American President cannot, as that power is reserved exclusively for Congress.  The Bush/Cheney "Commander-in-Chief" view suffered a death blow two years later, in 2006, when the Supreme Court, in Hamdan v. Rumsfeld, rejected the claim that the President has the unconstrained power to decide how prisoners will be detained.  The Court emphasized "the powers granted jointly to the President and Congress in time of war," and -- citing Youngstown -- explicitly held that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers."  The notion that Presidents have unconstrained war powers is a obsolete, discredited relic of the Bush years, no matter how much Barack Obama and Hillary Clinton attempt to revitalize it in pursuit of their own Freedom-Spreading War.

One's views on the desirability of the Libya war have absolutely nothing to do with whether Obama has acted legally and/or whether his theories of presidential power are valid.  This, too, should have been decisively settled during the Bush years, when Bush followers invariably argued that Bush was justified in eavesdropping without warrants or torturing because of the good outcomes it produced (Keeping Us Safe) -- as though Presidents have the power to violate laws or transgress Constitutional limits provided they can prove that doing so produces good results.   The one and only safeguard against tyranny is that political leaders are subjected to the constraints of the Constitution and law (we're a nation of laws or a nation of men, said Adams: you must choose).  To argue that you're supportive of or indifferent to lawless acts because of the good results they produce is simply another way of yearning for a benevolent tyrant (and is another way of replicating the mindset of the Bush follower).

Matt Yglesias is absolutely right when he points out that, in reality, Congress is happy to have the President usurp its powers in these cases because it alleviates them of responsibility to act.  But the same was true of the Democratic Congress under Bush, and that didn't justify anything Bush did; it just meant that Congress shared the blame for acquiescing to it.  It may be common, and it may produce good outcomes, and it may be a longstanding problem, but there's no question that Obama's commencement of this war without Congressional approval, and especially Hillary Clinton's announcement that Congress has no power to restrict the President in any way, are acts of pure imperial lawlessness.  Daniel Larison put it best:

This is an outrageous statement, but it's entirely consistent with what the administration has been illegally doing for the last 12 days. They seem to believe quite seriously that, as long as they don't call it a war, it doesn't fall under any laws regulating war powers or the Constitution. The sliver of good news in all of this is that Obama and his officials are showing such contempt for American law and institutions that they are exposing themselves to a serious political backlash. War supporters won't be able to hide behind the conceit that the war is legal. As far as U.S. law is concerned, it has never been legal, and only people making the most maximalist claims of inherent executive power can believe otherwise. Anyone who continues to support the war from this point on will be revealed as being either a blind Obama loyalist, an ideological liberal interventionist, or a devotee of the cult of the Presidency.

Most Democrats, liberals, and even traditional conservatives and libertarians purported to find such lawlessness outrageous and dangerous during the Bush years.  It isn't any less so now.  

The wisdom and legality of arming Libyan rebels

Whatever one thinks about the U.S. involvement in the war in Libya -- some substantial portion of my readers support it, though Republicans are more enthused about the U.S. taking a leading role -- it has unquestionably departed far from the claims that were made about it in the beginning. The no-fly zone was established long ago; the focus is now on attacking Gadaffi's ground forces, enabling rebel advancements, and regime change. Despite claims about Arab League and French leadership, the U.S. has provided the overwhelming bulk of bombs, jet fighters, intelligence and other resources. And now there is what The New York Times calls a "fierce debate" within the administration about whether to arm the Libyan rebels. Two points about all of this:

First, The Washington Post yesterday reported that "the U.S. military dramatically stepped up its assault on Libyan government ground forces over the weekend, launching its first missions with AC-130 flying gunships and A-10 attack aircraft designed to strike enemy ground troops and supply convoys." The Post article aptly explained the significance of this development:

The use of the aircraft, during days of heavy fighting in which the momentum seemed to swing in favor of the rebels, demonstrated how allied military forces have been drawn deeper into the chaotic fight in Libya. A mission that initially seemed to revolve around establishing a no-fly zone has become focused on halting advances by government ground forces in and around key coastal cities. . . . AC-130s were used to great effect during the two U.S. offensives in Fallujah, a stronghold of the insurgent group al-Qaeda in Iraq in the early days of the Iraq war.

Moreover:

Military officials consider AC-130s and A-10s well suited to attacks in built-up areas, although their use has led to civilian deaths. Unlike fighter jets and bombers, which typically carry 500- or 1,000-pound bombs, the AC-130s and A-10s deliver more discriminate but still devastating machine-gun fire.

That the war expanded that quickly and that substantially is an obviously significant fact to know. But, as FAIR's Peter Hart notes, The Post knew about this development for at least a week but concealed it from their readers at the Government's request; the article included this sentence: "The Washington Post learned of their deployment last week but withheld reporting the information until their first missions at the request of U.S. military officials."

The classic case for when newspapers justifiably withhold war information is "troop movements" -- learning but not reporting in advance where the U.S. intends to deploy troops or mount an attack. But this was not that case. The fact that the U.S. intended to deploy AC-130s was obviously known to the Libyan forces targeted by them; the true significance of reporting this would have been to reveal that the U.S. was involved in a more extensive war effort than was being suggested, and that it extended beyond merely creating a no-fly zone to protect Benghazi. To me, this concealment is more justifiable than, say, the NYT's concealment of Raymond Davis' CIA employment or its year-long non-disclosure of the Bush illegal NSA program -- at least there's an argument to make that disclosing the intended use of these weapons beforehand could help the Enemy by revealing war plans in advance -- but it still seems to be a clear case where an American newspaper is acting "patriotically" by withholding newsworthy information to help the U.S. Government propagandize its citizens.

Then there's the question of the legality of arming Libyan troops. Salon's Justin Elliott reported on Monday that the administration was actively considering arming the rebels despite an absolute arms embargo imposed by U.N. Resolution 1970 ("imposing an arms embargo on the country"). Today, The Guardian elaborates by citing numerous legal experts insisting that it would be a violation of the U.N. Resolution for the U.S. to arm the rebels. For its part, the U.S. insists that it is legally entitled to do so, with Hillary Clinton announcing that the arms embargo has been "overriden" by the broad mandate of U.N. Resolution 1973, allowing "all necessary measures" to be used to protect Libyan civilians.

On the strictly legal issue, this seems to be a close question. Can the specific arms embargo really be "overriden" by a general clause allowing the protection of civilians? That seems redolent of the Bush arguments that specific prohibitions in the law (such as the ban on warrantless eavesdropping) were "overriden" by the broad war powers assigned by the AUMF. More to the point, can it really be said that arming Libyan rebels is necessary for the protection of civilians? That sounds much more like what one does to help one side win a civil war.

Ultimately, though, does anyone really think these legal niceties will matter at all if the U.S. decides it wants to arm the Libyan rebels (and yesterday on Democracy Now, University of Trinity Professor Vijay Prashad claimed that one of the key rebel leaders lived in the U.S. -- in Vienna, Virgina -- for the past 30 years, "a 10-minute drive from Langley, and returned to Benghazi to, in a sense, I think, hijack the rebellion on behalf of the forces of reaction")? If the U.S. wants to arm the rebels, it will do so regardless of whether it violates any U.N. arms embargo, and few supporters of this war -- most of whom justify it by pointing to these U.N. Resolutions -- will care very much, if at all. Once wars begin, and positions harden, nothing matters less than legalities.

The real question is the wisdom of this escalated involvement. How many times do we have to arm one side of a civil war -- only for that side to then become our Enemy five or ten or fifteen years later -- before we learn not to do that any more? I wrote earlier on Twitter, ironically, that one good outcome from arming the Libyan rebels is that it will lay the foundation for our new war 10 years from now -- when Commander-in-Chief George Prescott Bush or Chelsea Clinton announce that we must wage war to stop the Libyan faction from threatening its neighbors and supporting Terrorism (with the weapons we provided them back in 2011). One of the most reliable ways that the posture of Endless War has been sustained is by our flooding the world with our weapons, only to then identify various recipients as our new (well-armed) enemy. Whether this is a feature or a bug, it is a very destructive outcome of our endless and always-escalating involvement in military conflicts around the world.