« June 2007 | Main | August 2007 »
July 21, 2007
Monarchical powers of the Executive
Here is what Cheney was referring to in that NY Times interview.
One constitutional dispute early in the Jefferson Administration was over the Louisiana Purchase. What would the party whose adherents had insisted on a Senate role in negotiating the Jay Treaty say about the President's power to negotiate the Purchase? Jefferson's Secretary of State Albert Gallatin supported the Louisiana Purchase by saying that the purchase eventually would have to be ratified by treaty and that its negotiation therefore belonged to the President under the Constitution. Jefferson did not embrace Gallatin's constitutional argument. Instead, the President decided to go through with the Purchase, without abandoning his view that the Constitution severely limited the President, by asserting an inherent extraconstitutional prerogative power for the Executive that was more sweeping than anything Hamilton had ever put forward. Jefferson justified his decision this way:
A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself... absurdly sacrificing the end to the means.
One of the remarkable aspects of Jefferson's assertion is the stark way in which it poses a fundamental constitutional issue. Chief Executives are given the responsibility for acting to respond to crises or emergencies. To the extent that the Constitution and laws are read narrowly, as Jefferson wished, the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the law. Paradoxically, the broader Hamiltonian ideas about executive power - by being more attuned to the realistic dangers of foreign policy - seem more likely to produce an Executive who is able and willing to live within legal boundaries. Thus, the constitutional construction that on the surface looks more dangerous seems on reflection to be safer in the long run.
After Jefferson, the notion of executive prerogative was put on the shelf. Instead, Jeffersonian Presidents began asserting Hamiltonian ideas about executive power. Although we will discuss the use of force separately below, Sofaer's comment on the post-Jeffersonians bears quotation here:
Although Presidents during this period claimed no inherent authority to initiate military actions, Madison [departing from the theory of the Helvidius papers] and particularly Monroe secretly used their powers in ways that could have been justified only by some sweeping and vague claim - such as the right to use the armed forces to advance the interests of the United States.
Posted by Mike at 03:42 PM | Comments (0) | TrackBack (0)
July 20, 2007
Owning Up to an Intel Failure
Usually I'm not a big fan of Michael Hirsh, but this is a great piece:
July 19, 2007 - Ironically, the most devastating admission of failure came from the president’s No. 1 advocate. When Frances Fragos Townsend, George W. Bush’s homeland security adviser, was asked this week about the resurgence of Al Qaeda detailed in the administration’s new National Intelligence Estimate, she replied: "The fact is, we were harassing them in Afghanistan, we’re harassing them in Iraq … Every time you poke the hornet’s nest, they are bound to come back and push back on you."Harassing? Poking? That’s the best we can do? This is the small, fractious group of several thousand fighters that launched the worst-ever attack on U.S. continental soil. We knew where they were all the time: in the mountains of Afghanistan and Pakistan (not in Iraq). We had an organization chart of the baddest of the bad: Osama bin Laden, Ayman al-Zawahiri, Khalid Shaikh Mohammed, Mohammed Atef, Abu Zubaida. We had a lot of support around the world in pursuit of our mission to hunt these men down, kill them or capture them and do with them as we pleased; no one, after all, had much use for Al Qaeda, including much of the Arab world. Indeed, we very nearly caught Osama bin Laden only two months after 9/11, at Tora Bora. (As Gary Berntsen, the CIA officer in charge of the operation, recorded in his 2005 book "Jawbreaker," bin Laden told his followers, "Forgive me," and apologized for getting them pinned down by the Americans; but the Pentagon refused to send in more troops to encircle the trapped "sheik."). It’s nearly six years later. How is it that the mightiest economic and military power in history can’t destroy a mere hornet’s nest?
We know the answer. The needless diversion to Iraq. It’s not just that resources, money and attention were directed to Iraq long before the brutally difficult job of pacifying Afghanistan and transforming the jihadi-infested regions of Pakistan was done. (Jim Dobbins, Bush’s former special envoy to Kabul, now calls Afghanistan the "most under-resourced nation-building effort in history.") The invasion of Iraq also vindicated, in the eyes of Islamists around the world, bin Laden’s once-dubious strategic decision to confront what he’s called the "far enemy," the United States. On the eve of 9/11, according to documents obtained from Al Qaeda’s seized computers, bin Laden and his top aide, Zawahiri, had difficulty persuading their fellow jihadis that the distant superpower should be their real target. Bush ended that debate in bin Laden’s favor when, by invading Iraq for trumped-up reasons, he made the United States the "near enemy" in the Arab world. And now the merger between the old near enemy (the Sunni Arab regimes) and the new near enemy (America) is all but complete, giving Islamists a neatly defined adversary. The president’s newest conception of the global war on terror is that it is a fight that pits him and fellow "moderates" (Hosni Mubarak of Egypt, King Abdullah of Jordan and so on) on one side against the "extremists" (groups like Hamas and Hizbullah that have been further empowered by the president’s democracy campaign).
Bush’s profound strategic misconception of the nature of this war—abetted by many prominent pundits who to this day cannot admit they were wrong in fraudulently linking Al Qaeda to Iraq—is the main reason why a group that represented a small, extremist strain of Islam before 9/11 has now grown into a worldwide movement. Let’s not kid ourselves about that. But there is still a window for hope here. One conclusion that the National Intelligence Estimate fails to draw is that even though Al Qaeda has partially reconstituted its organizational structure, mainly in the tribal regions of Pakistan, it is not yet back to where it was pre-9/11 in terms of competence. "What the NIE totally misses is that there’s been a big decline in Al Qaeda’s human capital," says John Arquilla, an intelligence and Islamist expert at the Naval Postgraduate School in Monterey, Calif. "When we hit Afghanistan, there were probably about 3,000 core Al Qaeda operatives. We killed or captured about 1,000; about 1,000 more end up in distant parts of world. And about 1,000 ended up in Waziristan. But the great terror university in Afghanistan is gone; they’ve relied on the Web since. They haven’t had hands-on instruction and the bonding instruction of the camps. That’s resulted in low skill levels. Their tradecraft is really much poorer. They didn’t make the bombs right in London. One cell got lost on its way to attacking the U.S. Embassy in Rabat [Morocco]. The rise of suicide attacks by foreign fighters in Iraq is also reflective of this lower skill level."The danger, Arquilla says, is that the longer the Iraq War goes on, with America as the central enemy, the more skilled the new generations of jihadis will become. "They’re getting re-educated. The first generation of Al Qaeda came through the [Afghan] camps. The second generation are those who’ve logged on [to Islamist sites]. The next generation will be those who have come through the crucible of Iraq. Eventually, their level of skill is going to be greater than the skill of the original generation. We’re already starting to see that, for example in places of Western Africa.…"
There is only one conclusion. If we are to avoid another 9/11 some day, we must go back to square one and correct Bush’s original mistake—the disastrous strategic misconception that turned America into the "near enemy" in the Arab world. We must remove ourselves from the front lines in Iraq and stop it from becoming Al Qaeda’s new "terror university." That doesn’t argue for total withdrawal. But it does suggest that the surge must stop—and soon. Only if the United States assumes a lower profile in Iraq—retreats to its four superbases and redoubles training of the Iraqi Army—will the jihadis begin to lose their new rallying cause.
Posted by Mike at 11:11 AM | Comments (0) | TrackBack (0)
July 11, 2007
26,000-member force proposed for Darfur
UNITED NATIONS - Britain and Ghana circulated a draft resolution Wednesday authorizing a 26,000-strong U.N.-African Union peacekeeping force for Sudan's Darfur region. The measure also threatened to take steps against those obstructing peace efforts.The draft resolution, obtained by The Associated Press, states that there will be a single chain of command for the "hybrid" force, provided by the United Nations, a move that would clear up the contentious issue of who will be in charge.
U.N. peacekeeping chief Jean-Marie Guehenno indicated last month that the Sudanese government had accepted that the United Nations would have overall operational control while day-to-day operations would be in the hands of its African commanders. But many Security Council members wanted that spelled out clearly in a resolution.
The draft states that the hybrid operation, to be known as UNAMID, will have up to 19,555 military personnel, including 360 military observers and liaison officers, a civilian component including up to 3,772 international police, and 19 special police units with up to 2,660 officers.
It demands that all parties in Darfur "immediately cease hostilities and attacks" on the AU force, civilians and humanitarian workers. It also emphasizes that "there can be no military solution to the conflict in Darfur and calls upon the government of Sudan and the rebel groups to enter into talks" to reach a political settlement.
The four-year conflict between ethnic African rebels and pro-government janjaweed militia in Sudan's vast western region has killed more than 200,000 people and displaced 2.5 million. A beleaguered 7,000-member African Union force has been unable to stop the fighting.
The U.N. and Western governments have pressed Sudan since November to accept a U.N. plan for a joint force to replace the poorly equipped and underfunded AU force.
Posted by Mike at 10:23 PM | Comments (1) | TrackBack (0)
Only in America
ERIE, Pa. - A pizza deliveryman who robbed a bank and was then blown up by a bomb locked around his neck helped plan the robbery and then got caught up in something "much more sinister," a federal prosecutor said Wednesday.The deliveryman, Brian Wells, 46, had told police before the bomb exploded in August 2003 that he was an innocent victim and had been forced by gunmen to rob the bank.
However, in the indictments unsealed Wednesday, Wells is named as a co-conspirator. Two other people — Marjorie Diehl-Armstrong, who is currently serving a prison sentence for killing her boyfriend, and her friend Kenneth E. Barnes — are charged with bank robbery, conspiracy and a firearms count.
Authorities said Diehl-Armstrong, 58, wanted the money so she could pay someone to kill her father, but they said Wednesday that they didn't know what motive Wells might have had for getting involved.
Wells' brother John was visibly outraged after prosecutors held a news conference saying his brother was in on the plot.
"Where is the evidence? There is no evidence. You cannot link a man when there is no evidence," John Wells said, his voice trembling with anger. "When he was accosted at gunpoint, taken from his job, that's not a co-conspirator."
"Brian did not put that collar on himself," John Wells said. He also accused investigators of not doing their jobs and said "the truth will come out."
The indictments say Diehl-Armstrong and Barnes contrived a series of notes to make Wells appear to be "merely a hostage," with the plan being to get the money from Wells in a way that if he was caught, he could claim he was an unwilling participant. According to the indictments, they locked a live bomb onto Well's neck to ensure he turned over the money.
"If he died, he could not be a witness," authorities said in the indictment.
The bomb that killed Wells was on a timer, but it was unclear if his co-conspirators planned on his death, U.S. Attorney Mary Beth Buchanan said Wednesday. She described Wells as having a limited role in the plot and said she couldn't comment on what his motive might have been.
"Sadly, the plans of these other individuals were much more sinister ... and he died as a result," Buchanan said. "It may be that his role transitioned from that of the planing stages to being an unwilling participant in the scheme."
Diehl-Armstrong is currently serving a state prison sentence for killing her boyfriend, James Roden. In the indictment, authorities say she killed Roden to keep him from disclosing details of the robbery plot.
Barnes, 53, is jailed in Erie County on unrelated drug charges. Authorities have described him as Diehl-Armstrong's fishing companion.
On Aug. 28, 2003, Wells set out to deliver an order for two pizzas to a mysterious address that turned out to be the location of a TV tower. He turned up about an hour later and roughly two miles away at a PNC Bank branch in Summit Township, with a note demanding money and saying he had a bomb.
Wells took $8,702 from a teller, got into his Geo Metro and was surrounded by police a short time later in a parking lot. State troopers pulled him out of the car and handcuffed him. Hanging from his neck under his T-shirt was a triple-banded metal collar and a device with a locking mechanism that kept it in place. Attached to the collar was a bomb.
"It's going to go off," Wells said. "I'm not lying."
He said someone had started a timer on the bomb and forced him to rob the bank.
While police waited for a bomb squad, the bomb exploded, killing Wells. Police found a gun resembling a cane in the car and a nine-page handwritten letter that included detailed instructions on what Wells was to do with the bank money and how he could unlock the collar by going through a kind of scavenger hunt, looking for clues and landmarks.
The note also included a list of rules and a threat that Wells would be "destroyed" if he failed to complete his mission.
Buchanan said Wednesday that while Wells was in the bank, Diehl-Armstrong and Barnes had watched from across the street, and Diehl-Armstrong was later seen twice along the route described in the notes.
Jim Sadowski, a former co-worker of Wells, said he doesn't believe his friend could have been involved.
"I worked with him and I knew him. I just don't see him doing anything like that. He was a nice person," Sadowski said.
Diehl-Armstrong has been linked to the Wells investigation because her boyfriend's body was found in the freezer of a home near the TV tower where Wells made his final delivery. She pleaded guilty but mentally ill to killing her boyfriend and is serving a sentence of seven to 20 years in state prison.
The man who owned the home, William Rothstein, was questioned in Wells' death but has since died of cancer.
Diehl-Armstrong's attorney Lawrence D'Ambrosio has said he believes she had nothing to do with Wells' death but may have known the people behind the robbery.
Posted by Mike at 04:56 PM | Comments (0) | TrackBack (0)
July 09, 2007
Bush justice is a national disgrace
By John S. KoppelAs a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.
The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.
In the course of its tenure since the Sept. 11 attacks, the Bush administration has turned the entire government (and the DOJ in particular) into a veritable Augean stable on issues such as civil rights, civil liberties, international law and basic human rights, as well as criminal prosecution and federal employment and contracting practices. It has systematically undermined the rule of law in the name of fighting terrorism, and it has sought to insulate its actions from legislative or judicial scrutiny and accountability by invoking national security at every turn, engaging in persistent fearmongering, routinely impugning the integrity and/or patriotism of its critics, and protecting its own lawbreakers. This is neither normal government conduct nor "politics as usual," but a national disgrace of a magnitude unseen since the days of Watergate - which, in fact, I believe it eclipses.
In more than a quarter of a century at the DOJ, I have never before seen such consistent and marked disrespect on the part of the highest ranking government policymakers for both law and ethics. It is especially unheard of for U.S. attorneys to be targeted and removed on the basis of pressure and complaints from political figures dissatisfied with their handling of politically sensitive investigations and their unwillingness to "play ball." Enough information has already been disclosed to support the conclusion that this is exactly what happened here, at least in the case of former U.S. Attorney David C. Iglesias of New Mexico (and quite possibly in several others as well). Law enforcement is not supposed to be a political team sport, and prosecutorial independence and integrity are not "performance problems."
In his long-awaited but uninformative testimony concerning the extraordinary firings of U.S. attorneys, Attorney General Alberto R. Gonzales did not allay these concerns. Indeed, he faced a no-win situation. If he testified falsely regarding his alleged lack of recollection and lack of involvement, he perjured himself and lied to both Congress and the American people. On the other hand, if he told the truth, he clearly has been derelict in the performance of his duties and is not up to the job. Either way, his fitness to serve is now in doubt.
Tellingly, in his congressional testimony, D. Kyle Sampson (the junior aide to whom the attorney general delegated vast authority) expressed the view that the distinction between "performance" considerations and "political" considerations was "largely artificial." This attitude, however, is precisely the problem. The administration that Sampson served has elided the distinction between government performance and politics to an unparalleled extent (just as it has blurred the boundaries between the White House counsel's office and the attorney general's office). And it is no answer to say that U.S. attorneys are political appointees who serve at the pleasure of the president. The point that is lost on those who make this argument is that U.S. attorneys must not serve partisan purposes or advance a partisan agenda - which has nothing to do with requiring them to promote an administration's legitimate policy priorities.
As usual, the administration has attempted to minimize the significance of its malfeasance and misfeasance, reciting its now-customary "mistakes were made" mantra, accepting purely abstract responsibility without consequences for its actions, and making hollow vows to do better. However, the DOJ Inspector General's Patriot Act report (which would not even have existed if the administration had not been forced to grudgingly accept a very modest legislative reporting requirement, instead of being allowed to operate in its preferred secrecy), the White House-DOJ e-mails, and now the Libby commutation merely highlight yet again the lawlessness, incompetence and dishonesty of the present executive branch leadership.
They also underscore Congress' lack of wisdom in blindly trusting the administration, largely rubber-stamping its legislative proposals, and essentially abandoning the congressional oversight function for most of the last six years. These are, after all, the same leaders who brought us the WMD fiasco, the unnecessary and disastrous Iraq war, Guantanamo, Abu Ghraib, warrantless domestic NSA surveillance, the Valerie Wilson leak, the arrest of Brandon Mayfield, and the Katrina response failure. The last thing they deserve is trust.
The sweeping, judicially unchecked powers granted under the Patriot Act should neither have been created in the first place nor permanently renewed thereafter, and the Act - which also contributed to the ongoing contretemps regarding the replacement of U.S. attorneys, by changing the appointment process to invite political abuse - should be substantially modified, if not scrapped outright. And real, rather than symbolic, responsibility should be assigned for the manifold abuses. The public trust has been flagrantly violated, and meaningful accountability is long overdue. Officials who have brought into disrepute both the Department of Justice and the administration of justice as a whole should finally have to answer for it - and the misdeeds at issue involve not merely garden-variety misconduct, but multiple "high crimes and misdemeanors," including war crimes and crimes against humanity.
I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk.
The views presented in this essay are not representative of the Department of Justice or its employees but are instead the personal views of its author.
John S. Koppel has been a civil appellate attorney with the Department of Justice since 1981.
Posted by Mike at 12:47 AM | Comments (0) | TrackBack (0)