Recently in Civil Liberties Category

"Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to "dam the runoff" and prevent water from spilling out of a detainee's mouth...[T]o keep detainees alive even if they inhaled their own vomit during a session - a not-uncommon side effect of waterboarding - the prisoners were kept on a liquid diet. The agency recommended Ensure Plus."

But it's not torture or anything: Recently-released CIA documents explain exactly how we went about waterboarding suspects during the Dubya era. "'It does not simulate drowning, as the lungs are actually filling with water,' Nance wrote in the New York Daily News. There is no way to simulate that. The victim is drowning."

Update: Oh, by the way, Karl Rove is "proud" of these despicable acts.

"The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions."

The WP's John Solomon and Carrie Johnson report on widespread phone record abuse at the FBI. What's particularly galling here, if I'm reading this right, is that the law they were breaking seems to be a loophole-ridden statute in the Patriot Act included mainly as a fig leaf, but even that weak tea was too much for them to abide by. For shame.

"As news of the deaths emerged the following day, the camp quickly went into lockdown. The authorities ordered nearly all the reporters at Guantánamo to leave and those en route to turn back. The commander at Guantánamo, Rear Admiral Harry Harris, then declared the deaths 'suicides.' In an unusual move, he also used the announcement to attack the dead men. "I believe this was not an act of desperation," he said, 'but an act of asymmetrical warfare waged against us.'"

In Gitmo, no one can here you scream. After chatting with four members of a military intelligence unit on the premises, Harper's writer Scott Horton makes a compelling case that three Gitmo suicides in 2006 were in fact covered-up murders, occurring as a result of the Dubya-era torture regime. "All four soldiers say they were ordered by their commanding officer not to speak out, and all four soldiers provide evidence that authorities initiated a cover-up within hours of the prisoners' deaths."

Update: Slate's Dahlia Lithwick calls out the press for its deafening silence. "The fact that three Guantanamo prisoners--none of whom had any links to terrorism and two of whom had already been cleared for release--may have been killed there and the deaths covered up, should be front-page news. That brand-new evidence of this possible atrocity from military guards was given only the most cursory investigation by the Obama administration should warrant some kind of blowback. But changing what we allow ourselves to believe about torture would change the way we have reconciled ourselves to torture. Nobody in this country is prepared to do that. So we have opted to ignore it."

"The Obama administration has clung for so long to the Bush administration's expansive claims of national security and executive power that it is in danger of turning President George W. Bush's cover-up of abuses committed in the name of fighting terrorism into President Barack Obama's cover-up." In an editorial applauded by Salon's Glenn Greenwald, the NYT calls out the Obama administration for their appalling and Dubyaesque record on civil liberties.

As Greenwald well notes: "All of this vividly underscores a vital point. There is simply no way that a person with even the most minimal levels of intellectual integrity could have objected to these actions during the Bush years yet defend them now that Obama is doing them, or even refrain from objecting just as loudly."

See also Sen. Feingold's recent and angry post on dKos this month (coupled with this statement on the Senate Judiciary committee) on the hamstringing of his attempts to revise the Patriot Act. Far too many ostensible civil libertarians in the Democratic Party have been rolling over for this administration since January -- The time for giving the benefit of the doubt has passed. On this -- and other crucial issues before us -- it's time to put this admin's feet to the fire and hold the president to his word.

"Guantanamo may be Dick Cheney's idea of America, but it's not mine,' Morello said in a statement announcing the effort. 'The fact that music I helped create was used in crimes against humanity sickens me.'" A group of musicians including Tom Morello of Rage Against the Machine, Trent Reznor of Nine Inch Nails, R.E.M., Billy Bragg, Pearl Jam, the Roots, Rosanne Cash, and David Byrne demand that Gitmo close, and that their music stop being used for torture. "If there are any legal options that can be realistically taken they will be aggressively pursued," Reznor promised."

"'We must recognize that these detention policies cannot be unbounded,' he said at the time. 'They can't be based simply on what I or the executive branch decide alone.'" The Obama administration backs away from the new preventive detention law they've been floating in recent months. This is a clear victory for civil liberties advocates, but, as The Prospect's Adam Serwer makes plain, only a partial one: "'It may be one of the better results we could hope for, but in reality indefinite detention continues,' said Michael W. Macleod-Ball, Chief Legislative and Policy Council for the ACLU's Washington Legislative Office. 'That's antithetical to the American justice system.'"

Indeed, the administration's fallback position is one long held by Dubya -- that the authority for preventive detention already exists in the post-Sept. 11 blank check written by Congress. That's not change we can believe in. See also Glenn Greenwald today on this and recent developments on the state secrets front: "[T]he Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers."

In the NY Review of Books, meanwhile, Garry Wills takes the long view of all this: "[T]he momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch...Sixty-eight straight years of war emergency powers (1941-2009) have made the abnormal normal, and constitutional diminishment the settled order."

Wills concludes his essay on a worthy, if fatalistic, grace note that holds for a lot of ideals in this troubled age: "Nonetheless, some of us entertain a fondness for the quaint old Constitution. It may be too late to return to its ideals, but the effort should be made. As Cyrano said, 'One doesn't fight in the hope of winning' (Mais on ne se bat pas dans l'espoir du succès)."

"Attorney General [Eric] Holder's decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute." An "atmosphere of continuous jeopardy?" Well, boo frickin' hoo: Seven former CIA heads try to bigfoot President Obama (and not AG Holder, where jurisdiction resides) into stopping the -- already purposefully hamstrung -- investigations into Dubya-era CIA torture.

As usual, Salon's irreplaceable Glenn Greenwald is already on top of it: "Do leaders of organizations in general ever believe that their organizations and its members should be criminally investigated and possibly prosecuted for acts carried out on behalf of that organization?...What these CIA Directors are urging would be completely improper. In fact, one could plausibly argue that where (as here) the DOJ determines that serious crimes might have been committed and an investigation needed, it would constitute obstruction of justice for the President to intervene by quashing any possibility of prosecution."

"Holder has fallen prey to the sort of magical legal thinking that seeps through the whole CIA report: the presumption that if there's a legal memo, it must be legal...In other words, we are now protecting the good-faith torturers. That isn't just wrong, it's outrageous. It ratifies the most toxic aspect of the whole legal war on terror: that anything becomes permissible if it's served up with a side of memo. Paper your misconduct with footnotes and justifications--even after the fact--and you can do as you please."

Slate's Dahlia Lithwick explains the fundamental problem with the Justice Department's new inquiry into Dubya-era torture: "Pretending we are investigating and curtailing a torture program isn't all that different from pretending we didn't torture in the first place."

Meanwhile -- hold on to your hats, people -- Slate's Tim Noah discovers that Dick Cheney hasn't been entirely truthful about what's in the theoretically exculpatory CIA memos. "Portions have been redacted, so perhaps the evidence Cheney claims that enhanced interrogation saved American lives has been blacked out. But judging from what's visible to the naked eye, the documents do not provide anything like the vindication that Cheney claims." (Of course, even if they did provide said vindication, the question of whether or not torture is effective -- 24 notwithstanding, we're pretty sure it isn't -- is a completely separate question from whether or not torture is legal -- it isn't.)

"'There are only two possibilities here,' Mr. Webb said in introducing his bill, noting that America imprisons so many more people than other countries. 'Either we have the most evil people on earth living in the United States, or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice.'"

In his latest column, the NYT's Nicholas Kristof makes the case anew for comprehensive criminal justice reform. "[O]ver all, in a time of limited resources, we're overinvesting in prisons and underinvesting in schools. Indeed, education spending may reduce the need for incarceration...Above all, it's time for a rethink of our drug policy." (Via Sententiae.)

"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers." In the WP, two longtime Baltimore cops once again lay out the case for drug decriminalization. "Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes." See also: Prohibition.

"Eventually, the agency's network would encompass at least eight detention centers, including one in the Middle East, one each in Iraq and Afghanistan and a maximum-security long-term site at Guantánamo Bay, Cuba, that was dubbed Strawberry Fields, officials said. (It was named after a Beatles song after C.I.A. officials joked that the detainees would be held there, as the lyric put it, 'forever.')"

Charming. The NYT gets a window into the CIA's top-secret "black sites" program courtesy of former #3 man Dusty Foggo, who -- irony alert -- is currently serving a three-year term in a Kentucky jail on fraud charges associated with Duke Cunningham. (I presume Kentucky's finest have yet to break out the "enhanced interrogation techniques" on this joker. Speaking of which, "[n]othing exotic was required for the infamous waterboards -- they were built on the spot from locally available materials...The cells were constructed with special features to prevent injury to the prisoners during interrogations: nonslip floors and flexible, plywood-covered walls to soften the impact of being slammed into the wall.")

"'An investigation that focuses only on low-ranking operators would be, I think, worse than doing nothing at all,' said Tom Malinowski, Washington advocacy director for Human Rights Watch." Per both the WP's recommendation and an earlier trial balloon of a few weeks ago, Attorney General Eric Holder announces he's considering a ridiculously abbreviated investigation into the Dubya era torture regime, one that will focus only on "'whether people went beyond the techniques that were authorized' in Bush administration memos that liberally interpreted anti-torture laws."

In other words, Attorney General Holder's big plan appears to be snag a Jack Lint (re: Lynndie England) or two, while retroactively legitimizing the real criminals who set these thoroughly un-American torture policies in motion, and then call it a day. This is not justice, nor is it change we can believe in.

Civil libertarians across the board are livid at today's news, and for good reason. Worse, this is just the most recent chapter in the Obama administration's blatantly terrible record on civil liberties issues over these past six months. The President's nudge, nudge, wink wink stance on all this last April -- these aren't "really" our policies" -- looks ever more mealymouthed and insulting with each new revelation. That dog won't hunt anymore.

Whatever happens with health insurance reform, and let's hope it passes with real teeth, the president's civil liberties record thus far counts as a real moral failure for this administration. Their enthusiastic continuation of Dubya-era policies on this front does violence not only to the reasons why many of us voted for Obama in the first place, but to the founding principles of our increasingly aggrieved republic. For shame.

"I chose to be a lawyer and ultimately a judge because I find endless challenge in the complexities of the law. I firmly believe in the rule of law as the foundation for all of our basic rights...Mr. President, I greatly appreciate the honor you are giving me, and I look forward to working with the Senate in the confirmation process." Hearkening back to the pragmatists once again -- "For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience" -- President Obama chooses Judge Sonia Sotomayor as Souter's replacement on the Court. [Wiki]

Naturally, conservatives are getting their opposition ducks in a row (with some help from Jeffrey Rosen's recent dubious hit piece in TNR.) "But some Senate GOP officials privately conceded that, barring a major stumble, the judge will probably be confirmed with relative ease. 'You don't have to be a rocket scientist to figure out that we need to tread very carefully,' said John Weaver, a Republican political consultant who advised Sen. John McCain (R-Ariz.) for years. 'The only way we'll find ourselves in a political predicament is if we don't treat her with the same respect that other nominees received.'" Yeah, good luck with that.

In any case, early word on Judge Sotomayor is that she is very far from the liberal activist of right-wing nightmare, but rather a "highly capable technocrat," and exactly the sort of hypercompetent and moderate -- perhaps to a fault -- pick one would expect from this president. "'She's a lawyer's lawyer,' said Paul Smith, a partner at Jenner & Block who participated in the call...She's a cautious lawyer...who was a corporate lawyer herself...She reads statutes narrowly."

As most everyone keeping up on current events these days knows, the people around the president, as well as the president himself, spend a good bit of time emphasizing the pragmatic nature of this administration. One senior administration official recently deemed the president a "devout nonideologue", and Obama himself has argued several times that he aims to tackle the myriad problems before us with a "ruthless pragmatism." Now, we've seen nothing to indicate that Obama's pragmatic nature is an act. If anything, from installing Sen. Clinton as his Secretary of State to keeping Sec. Gates at Defense, it's clear that pragmatism, accommodation, and inclusiveness are his temperamental instincts as a politician. Nevertheless, it's also clear that comparisons to Franklin Roosevelt, and the "bold, persistent experimentation" Roosevelt promised in 1932 -- and subsequently followed through on over the course of the decade -- aren't entirely undesired by the White House.

Well, I've been traveling over the past few days, and thus haven't been following the news as closely as usual. Still, even given President Obama's health care announcement on Monday (highly reminiscent of the NRA in that it purports to let the big players in the health care industry help write the codes, so to speak) and the welcome declaration on Wednesday that the administration would soon seek a new regulatory apparatus for derivatives markets, Franklin Roosevelt was not the first president that came to mind as a point of reference for Obama this week.

No, that would be Gerald Ford, who, most historians agree, was an honorable man thrust into a thorny dilemma by the crimes of his predecessor, and who grievously hamstrung his own brief administration by deciding to pardon Richard Nixon. And now, it seems, history gets dangerously close to repeating itself. For, it's moved beyond obvious that the Dubya administration not only willfully engaged in torture -- clearly, bad enough -- but did so to compel false confessions of an Iraq-9/11 connection that they knew never existed. And yet, we've already witnessed the ungainly sight of President Obama equivocating on the question of prosecutions in the name of some dubious "time for reflection, not retribution." (Never mind that, as President Obama reminds us on other matters, wounds, like corruption, fester in the dark.)

This week, President Obama has compounded his recent error -- twice. In the first of two eleventh-hour reversals, Obama -- who has promised us "an unprecedented level of openness in government" many times over -- instead chose to side with the publicists of the Pentagon and block the court-ordered release of new photographs detailing detainee abuse: "'The publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals,' Obama said yesterday. 'In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in danger.'" (How bad are they? If Sy Hersh is correct, and there's no reason to think he isn't, they could be very, very bad.)

Then, today, the Obama administration announced they will continue using extra-legal military tribunals, not federal courts or military courts martial, for Gitmo suspects. "'Military commissions have a long tradition in the United States,' said Obama in a statement. 'They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.'" (The key line of the WP story: "In recent weeks, however, the administration appears to have bowed to fears articulated by the Pentagon that bringing some detainees before regular courts presented enormous legal hurdles and could risk acquittals.)"

Obama's statements aside, the arguments -- re: excuses -- in favor of blocking the release of these no-doubt-horrifying photos and maintaining extralegal tribunals -- now with 33% less illegality! -- are the thin gruel you might expect. The WP's Dan Froomkin already eviscerated the former quite devastatingly, while Salon's Glenn Greenwald, laudable as usual, has taken point on the idiocy of the latter: "[W]e'll give due process as long as we're sure we can win, and if we can't, we'll give you something less." In both cases, the principle animating the advice given to President Obama seems mainly to be the usual self-serving, CYA behavior of Dubya holdovers at the Pentagon.

But that doesn't absolve President Obama of his failures here. For whatever reason -- perhaps he's trying to smooth things over in these areas so he can focus on the considerable domestic problems on his plate -- Obama is increasingly making the exact same mistake as Gerald Ford. As other commentators have pointed out, by shoving the rampant illegalities of the GWoT under the rug -- or worse, perpetuating them -- Obama is dangerously close to making his administration retroactively complicit in the crimes of the previous administration.

Now, I'd like to move on to fixing the economy and universal health care -- not to mention voting, lobbying, and campaign finance reform -- as much as the next guy., But sidestepping the tough choices on torture and the imperial presidency, as Paul Krugman (whom I've had issues with but am in complete lockstep with here) noted a few weeks ago, is simply not an option, if we are to maintain anything resembling our national soul after this egregious wallowing in torture and illegality.

Speaking of which, a quick comment on the emerging question of what and when Speaker Pelosi knew about torture (which the Republicans have shamelessly latched onto like a life raft -- see in particular Karl Rove frantically pointing at her to save his own skin the other day. You can almost smell the desperate flop sweat exuding from his every pore.) Well, let's look into it. Commissions, investigations, prosecutions -- let's quit screwing around and start getting to the bottom of this fiasco. I can't believe I have to keep writing this like it's even a bone of contention, but look: If we can't get it together enough to collectively agree that torture is both immoral and illegal, and that those who designed and orchestrated these war crimes during the Dubya administration be subject to investigation, prosecution, and punishment, then we might as well call this whole "rule of law" thing off. As ethicist David Luban noted yesterday in congressional testimony, the relevant case law here is not oblique. Either the laws apply to those at the very top, or they don't -- in which case, it's hard to see why anyone else should feel bound to respect them either.

Which brings me back to pragmatism. Hey, in general, I'm all for it, particularly when you consider all the many imbecilities thrust upon the world by the blind ideological purity of the neocons of late. But, let's remember, the limits of pragmatism as a guiding national philosophy were exposed before all the world before Obama, or even FDR, ever took office. When, after several years of trying to stay well out of the whole mess, Woodrow Wilson entered America into World War I in 1917, the very fathers of Pragmatism, most notably philosopher of education John Dewey, convinced themselves war was now the correct call and exhorted their fellow progressives, usually in the pages of The New Republic, to get behind it. (Many did, but others -- such as Jane Addams and Nation editor Oswald Villard -- did not.) War went from being a moral abomination to a great and necessary opportunity for national renewal. Given it was a done deal, the pragmatic thing to do now was to go with the flow.

Aghast at this 180-degree shift in the thinking of people he greatly admired, a young writer named Randolph Bourne called shenanigans on this "pragmatic" turnaround, and excoriated his former mentors for their lapse into war fervor. "It must never be forgotten that in every community it was the least liberal and least democratic elements among whom the preparedness and later the war sentiment was found," Bourne wrote. "The intellectuals, in other words, have identified themselves with the least democratic forces in American life. They have assumed the leadership for war of those very classes whom the American democracy had been immemorially fighting. Only in a world where irony was dead could an intellectual class enter war at the head of such illiberal cohorts in the avowed cause of world-liberalism and world-democracy."

Now, you'd be hard-pressed to find a bigger cheerleader for the progressives than I. But the fact remains that Bourne, who perished soon thereafter in the 1918 influenza epidemic, was prescient in a way that many of the leading progressive thinkers were not. The emotions unleashed by the Great War and its aftermath (as well as the sight of the accompanying Russian Revolution) soon fractured completely the progressive movement in America, and proved exceedingly fertile soil for the reascendancy of the most reactionary elements around. (Back then "Bolshevik" and "anarchist" were preferred as the favorite epithets of the "One Hundred Percent American" right-wing, although "socialist," then as now, was also in vogue. At least then they had real socialists around, tho'.) And the pragmatic writers and thinkers of TNR, who thought they could ride the mad tiger through a "war to end all wars," instead found their hopes and dreams chewed up and mangled beyond recognition. They wanted a "world made safe for democracy" and they ended up with the Red Scare, Warren Harding, and an interstitial peace at Versailles that lasted less than a generation.

The point being: however laudable a virtue in most circumstances, pragmatism for pragmatism's sake can lead one into serious trouble. And, as a guiding light of national moral principle, it occasionally reeks. As Dewey and his TNR compatriots discovered to their everlasting chagrin, you can talk yourself into pretty much anything and deem it "pragmatic," when it's in fact just the path of least resistance. And, when your guiding philosophy of leadership is to always view intense opposing sides as Scylla and Charybdis, and then to steer through them by finding the calm, healthy middle, you can bet dollars-to-donuts that the conservative freaks of the industry will always be pushing that "center" as far right as possible, regardless of the issues involved. And, eventually, without a guiding moral imperative at work -- like, I dunno, torture is illegal, immoral, and criminal, or the rule of law applies to everyone -- you may discover that that middle channel is no longer in the middle at all, but has diverted strongly to the right. In which case, welcome to Gerald Ford territory.

Nobody wants that, of course. We -- on the left, at least -- all want to remember the Obama administration not as a well-meaning dupe notable mainly for its unfortunate rubberstamping of Dubya-era atrocities, but as a transformational presidency akin to those of Lincoln and the two Roosevelts. To accomplish this goal, it would behoove the White House to remember that Lincoln, pragmatic that he was, came to abolition gradually, but come to abolition he did. Or consider that Franklin Roosevelt, pragmatic that he was, eventually chose his side as well. "I should like to have it said of my first Administration that in it the forces of selfishness and of lust for power met their match," FDR said in his renomination speech of 1936. "I should like to have it said of my second Administration that in it these forces met their master."

I should like to have it said of President Obama's administration as well. The alternative -- Obama's sad, "pragmatic" capitulation to Dubya-era criminals -- is too depressing to contemplate. But the picture below (found here) gives you a pretty good sense of what it'll mean for America if we don't get to the bottom of this, and soon.

"I actually think that the state secret doctrine should be modified. I think right how it's over-broad. But keep in mind what happens is, we come into office, we're in for a week -- and suddenly we've got a court filing that's coming up. And so we don't have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We've got to respond to the immediate case in front of us."

In case you missed it last night -- I'll concede, I'd forgotten about the presser and was watching the NBA playoffs -- President Obama was finally asked about his troubling continuation of Dubya's state secrets policy during his "100 Days" press conference last night. [Full transcript.] And his answer -- basically, the justice department turns like a battleship, but we're on the case -- is somewhat heartening, I guess, in that the president seems to concede anew that the privilege has been abused of late, even under his own administration. But, as Salon's Glenn Greenwald reminds us today, the Obama/Holder JD has done a good bit more than just "stay the course" on states' secrets since coming into office, and last night's excuse -- well, despite our actions over 100 days, this isn't *really* our policy -- isn't going to hold water for much longer.

Also last night, while sort of pressed into it by ABC News' Jake Tapper, President Obama said in no uncertain terms both that waterboarding is torture (correct) and that, as we all know, his predecessor's administration sanctioned it: "I believe that waterboarding was torture. And I think that the -- whatever legal rationales were used, it was a mistake." Now, it isn't the president's call to move forward on an investigation and possible prosecutions at this point -- that task falls to Attorney General Holder. Still, if what the president said last night is true, and it obviously is, then AG Holder has only one choice moving forward. It's time to get to the bottom of this.

"'It's the deepest kind of corruption,' said a recently retired longtime national security official who was closely involved in the AIPAC investigation, 'which was years in the making. It's a story about the corruption of government -- not legal corruption necessarily, but ethical corruption." In a fascinating (and depressing) must-read, Congressional Quarterly's Jeff Stein lays bare a byzantine corruption scandal involving AIPAC, the Dubya WH, and Jane Harman, former Democratic chair of the House Intelligence Committee and, some grumbling aside, basically a "team player" for Dubya during the illegal and warrantless wiretaps episode. (Irony of ironies, it appears Harman's misdeeds were caught on -- a court-approved -- wiretap.)

Talking Points Memo offers a handy timeline of the case here. Basically, on one level it's your basic political quid-pro-quo. Harman told an unnamed suspected Israeli agent that she would "waddle into" a federal espionage case then extant against two members of AIPAC and gum up the works somehow. In return, "the suspected Israeli agent pledged to help lobby Nancy Pelosi...to appoint Harman chair of the Intelligence Committee after the 2006 elections." (It didn't take: Pelosi instead chose Silvestre Reyes.) "Seemingly wary of what she had just agreed to, according to an official who read the NSA transcript, Harman hung up after saying, 'This conversation doesn't exist.'"

Sordid enough. But what's a mid-oughts scandal without the Dubya angle? After she had been caught on said wiretap, a federal investigation into Harman was approved...for awhile. But it seems Attorney General Alberto Gonzales now knew he had Harman in his pocket, and took advantage accordingly. "According to two officials privy to the events, Gonzales said he 'needed Jane' to help support the administration's warrantless wiretapping program, which was about to be exposed by the New York Times. Harman, he told [CIA Director Porter] Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program. He was right. On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, 'I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities.'"

Not that I need to remind anyone here, but Dubya's use of illegal and warrantless wiretaps would, in more cases, be recognized as an impeachable offense. As it was, the Senate GOP (then in the catbird seat) held firm against hearings, and many of our congressional Dems -- Feingold, Leahy, and a few other lonely souls notwithstanding -- folded like a house of cards. Now, at least in the case of Harman, we know why.

Update: The NYT weighs in with their side, and it's TLDR'ed by TPM. And Salon's Glenn Greenwald has a good bit of snarky fun with Harman's recent "road to Damascus" moment regarding wiretaps.

"The Times article, based on information from former intelligence officers who spoke on condition of anonymity, said Abu Zubaydah had revealed a great deal of information before harsh methods were used and after his captors stripped him of clothes, kept him in a cold cell and kept him awake at night. The article said interrogators at the secret prison in Thailand believed he had given up all the information he had, but officials at headquarters ordered them to use waterboarding." Perusing last week's sordid torture memos, eagle-eyed blogger Marcy Wheeler discovered an unsettling statistic: two suspects -- Abu Zubaydah and Khalid Shaikh Mohammed -- were waterboarded by the CIA 266 times. Zubaydah "revealed no new information after being waterboarded, the article said, a conclusion that appears to be supported by a footnote to a 2005 Justice Department memo saying the use of the harshest methods appeared to have been 'unnecessary' in his case."

Meanwhile, as right-wing stooges like former CIA director Michael Hayden and Mike Allen's anonymous friend excoriate the president for breaking tradition and revealing the illegalities of the Dubya era, Chief of Staff Rahm Emanuel ventured onto the Sunday shows to tamp down talk of any prosecutions, even for the higher-ups. "[P]eople in good faith were operating with the guidance they were provided. They shouldn't be prosecuted...those who devised policy, he [Obama] believes that they were -- should not be prosecuted either, and that's not the place that we go -- as he said in that letter."

Wrong answer, Rahm. And, unless President Obama were to grant full pardons to the architects of Dubya-era torture, it's not even his call whether or not they should be prosecuted. In fact, choosing not to prosecute them would constitute a violation of international law.

Update: The White House doesn't necessarily agree with Rahm. "[A]dministration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale. Three Bush administration lawyers who signed memos, John C. Yoo, Jay S. Bybee and Steven G. Bradbury, are the subjects of a coming report by the Justice Department's ethics office that officials say is sharply critical of their work. The ethics office has the power to recommend disbarment or other professional penalties or, less likely, to refer cases for criminal prosecution."

Update 2: "With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that." President Obama opens the door further for prosecution.

And, sometimes, here in our own Room 101, it's insects. As breaking everywhere this afternoon, the President authorizes the release of four long-awaited CIA memos that detail the rationalizing and application of Bush-era torture policies. [No. 1 | No. 2, No. 3a/3b | 4a/4b.] And, as Salon's Glenn Greenwald notes, they seem to suggest that even the parties-that-be knew what they were doing constituted torture. ("Each year, in the State Department's Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear resemblance to some of the CIA interrogation techniques...The State Department's inclusion of nudity, water dousing, sleep deprivation, and food deprivation among the conduct it condemns is significant and provides some indication of an executive foreign relations tradition condemning the use of these techniques.") But, they approved these already-condemned practices as legal anyway, with the caveat that they "cannot predict with confidence whether a court would agree with this conclusion." Yeah, you think?

Well, let's hope the courts get a chance to decide either way. While releasing these documents today, Pres. Obama and Attorney General Holder also made clear that the CIA interrogators involved will not be prosecuted for these acts. "'It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,' he said in a statement." Um, I'm of the opinion that it would be unfair to get strung up in a, cough, "stress position" by a bunch of Cheney-authorized CIA yahoos and then see no legal recourse for it. (And, hey, "just following orders" -- what a novel legal defense. Who were the ad wizards that came up with that one?)

On the other hand, as the WP points out: "Today's carefully worded statement left open the possibility, however, that agents and higher-level officials who may have ventured beyond the strategies approved by Bush lawyers could face legal jeopardy for their actions." That still closes too many legal doors, imho. The strategies approved by Bush lawyers are horrible -- and illegal -- enough. But, at least we can still hold out the minute possibility that the real, top-level architects of Dubya-era torture policy will face some sort of prosecution for their crimes, above and beyond their inevitable condemnation in the history books. (President Obama may argue that "[t]his is a time for reflection, not retribution," but, the law is the law. And, as he should know, pardoning Nixon didn't do Gerald Ford any favors.)

Either way, let's be clear: These memos prove beyond a shadow of a doubt -- as if there were any doubt left -- that it was the stated and directed policy of the Dubya-era CIA to engage in acts they knew to be torture. That is unacceptable, completely antithetical to our ideals, and exceedingly worthy of a criminal investigation. If, in the name of national unity or CIA morale or whatever, the president wants to give a pass to the flunkies who actually held the victims down as they flailed, choked, or writhed in agony...well, that just means somebody else higher-up has to pay. Fine. But, if the rule of law means anything anymore, and I believe it does, the people responsible must be held to account.

"Even for the hardest-core Obama loyalists, it's rather difficult to attribute these increasingly harsh condemnations of Obama's civil liberties, secrecy and executive power abuses to bad motives or ignorance when they're coming from the likes of Russ Feingold, Talking Points Memo, the Center for American Progress, Nancy Pelosi, EFF, the ACLU, The New York Times Editorial Board, Keith Olbermann, Jonathan Turley, The American Prospect, Bruce Fein, Digby, along with some of the most enthusiastic Obama supporters and a bevvy of liberal law professors and international law experts -- those who were most venerated by progressives during the Bush era on questions of the Constitution and executive power."

Salon's Glenn Greenwald surveys the growing progressive consensus that something is rotten at Holder's DOJ with regard to state secrets and the continuation of Bush-era policies antithetical to, if not downright contemptuous of, civil liberties. (In case you missed it here or here, I'm not happy either.) "That the Obama DOJ has repeatedly embraced the very legal theories responsible for much of the intense progressive rage towards the Bush/Cheney regime is now beyond dispute. The question of motive -- of why Obama is doing this -- is far less clear."

Now, obviously, the president has a lot on his plate these days, and a finite amount of political capital with which to achieve an enormous number of objectives. Still, it's well past time that the administration explain what's going on on the civil liberties front from start to finish, akin to Obama's economic overview speech at Georgetown this morning. These are not piddling matters.

"'Any way you look at it, it's pretty remarkable,' said Jon B. Eisenberg, an attorney for al-Haramain. 'This is an executive branch threat to exercise control over a judicial branch function.'" Rather than Chuck Todd and Ed Henry falling over each other with illl-thought-out, gotcha garbage that conforms to GOP talking points, here's a question I'd like to have heard the president answer last night: What the hell is going on at the Obama Justice Department, vis a vis the state-secrets privilege? "Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House." That is not at all what we voted for, and it's nigh time we got a good explanation of why Holder et al are continuing to play by the Dubya playbook.

"Rather than vengeance, we need a fair-minded pursuit of what actually happened." Judiciary Committee chairman Senator Patrick Leahy calls for a "truth commission" to investigate Dubya-era abuses. "'We need to be able to read the page before we turn the page,' Leahy said. 'We need to come to a shared understanding of the failures of the recent past." Ok, sounds grand...but perhaps we should stop perpetuating those abuses while we're at it.

"Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same." Meet the new boss, same as the old boss? The Obama administration and Holder Justice Dept. uphold Dubya's dubious use of a "state secrets" privilege to put the kibosh on a lawsuit put forward by five men "extraordinarily rendered" by the CIA.

See also a livid Glenn Greenwald for the details: "The entire claim of 'state secrets' in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?"

Update: Sensing the likely blowback, one presumes, the Justice Dept. announces it'll be reviewing Dubya's "state secrets" claims in due course. "It's vital that we protect information that if released could jeopardize national security, but the Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know." So apparently, the ugly details of our now-defunct(?) extraordinary rendition policy aren't among the actions we should have any clue about. Ugh...this one definitely goes in the Carcetti file.

"It is precisely our ideals which give us the strength and moral high ground to deal with the unthinking violence that we see emanating from terrorism organizations around the world...We are going to win this fight, we are going to win it on our terms." As hinted soon after the election, it's finally on its way out: One day after putting a hold on all Gitmo tribunals, the president orders the closing of the national embarrassment at Guantanamo within the year.

"[T]he orders [also] bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said."

And there was much rejoicing! We can all breathe a little easier and stand a little taller now that America is actually starting to act like America again. (And, trust me, I won't shed any tears over dropping the gulag and torture news category here at GitM.)

Btw, the "new sheriff in town" pic above is via The Big Picture's very worthwhile inaugural collection, as seen at Webgoddess.

"Waterboarding is torture." True story. In his confirmation hearings before the Senate, Obama's nominee for Attorney General, Eric Holder, states the obvious. Then again, it's been several years since the obvious had a seat anywhere near the table at OAG, so this is cause for rejoicing. As Sen. Dick Durbin put it, ""In three words, the world changed."

It took awhile to get here, but Gus Van Sant's timely and vibrant biopic Milk, which I caught on Christmas day, is well worth the wait. In a year that witnessed a former community organizer take his message of hope all the way to the White House, and saw a majority of Californians vote for legislating and invalidating their neighbors' marriages (my favorite pin: "Can we vote on your marriage now?"), Milk couldn't feel any more of the moment. (If anything, I wish Milk had come out before the Prop 8 vote, when it might've done some good.) Arguably the best film about the realities of politics since Charlie Wilson's War, Milk is blessed with excellent performances across the board -- most notably Sean Penn, James Franco, and Josh Brolin, but also supporting turns by Emile Hirsch, Alison Pill, and others. And as a chronicle of a key moment in an ongoing civil rights struggle, Milk also feels like a watershed film of its own in its approach to its gay and lesbian characters. In short, it's one of the best films of 2008.

"My name is Harvey Milk, and I want to recruit you." So began the oft-repeated speel of the San Francisco city supervisor and "Mayor of Castro Street," who, in 1977 and after several attempts, became the first openly gay official elected to office in the US. But, seven years before those heady days, Milk (Sean Penn) was just a 40-year-old insurance man (and Republican, even), living a closeted life of quiet desperation in NYC. After a chance encounter and illicit proposition becomes an impromptu birthday party, Milk and new beau Scott Smith (James Franco) fall in love, talk about starting over, and decide to go West. Life is peaceful there...or is it? Even as Milk's camera shop in the gay-friendly Castro district becomes a salon of artists, thinkers, and free spirits, bigotry is rampant even in the streets of San Francisco, and the cops at best turn a blind eye to -- and at worst actively participate in -- antigay violence. No more, says Milk. Taking a page from the ethnic political machines of an earlier century, he organizes Castro's gays and lesbians into first a protest movement and then an organized voting and boycotting bloc. And when a redistricting plan emphasizing community self-rule in San Francisco is put into effect, Milk becomes an actual, legitimate political wheeler-and-dealer, with all the benefits and aggravations attending. (For more on the man and the movement, see the 1984 documentary The Times of Harvey Milk, now on Hulu for free.)

But, even as Harvey Milk rises to power in San Fran, a parallel movement stirs amid the churches and suburbs of Orange County. Led by former beauty queen, singer, and orange juice shiller Anita Bryant, the ever-so-Christian "Save Our Children" campaign gathers steam across the nation in its quest to roll back what meager protections gays and lesbians have managed to establish over the years. And when conservative state senator John Briggs (Denis O'Hare, seemingly forever destined to play assholes) brings the fight west in the form of Proposition 6, an initiative that would ban gays and lesbians from public schools, the battle for California is on. And even as Milk becomes the poster boy against Prop 6 and for recognizing gays and lesbians as full citizens and fellow human beings, he has to contend with trouble on the homefront -- not only in his personal life (his new boyfriend Jack (Diego Luna) is more than a little erratic) but in his political backyard, where supervisor Dan White (Josh Brolin), from the Catholic, working-class district next door, is starting to act increasingly unstable. (But, I guess this is what happens when society is so permissive as to let a man get all hopped up on twinkies.)

Which reminds me: A word of appreciation for Josh Brolin's work here. Sean Penn is garnering kudos across the board, and a likely Oscar nod, for his portrayal of Milk, and they're very well-deserved. It's really an astonishing transformation Penn accomplishes here -- not so much because he's playing someone who's gay (homosexual), but because he's playing someone who's gay (happy).This is the same guy who sulked through Mystic River?) And, while Brolin will likely -- and, imho, justifiably in the end -- get edged out for Best Supporting Actor by Heath Ledger for The Dark Knight, his work here suggests he's got some serious chops. At first it seems as if Brolin will just be coasting on his recent Dubya impression -- another good-natured, hard-hearted conservative fratboy for the resume. Then, just as you think Brolin's endangering himself in terms of typecasting, it's suggested Dan White might also be a deeply repressed closet case. (I tend to find the argument that all frothing-at-the-mouth homophobes are in reality trapped in the closet to be too simplistic by half, but apparently there's some grounding for it in White's story. In any case, Brolin underplays it beautifully ) As Milk progresses, we begin to sense other reasons why White is such a strange and ultimately homicidal bird -- he's envious of Harvey, he feels personally screwed over by him, he's something of a friendless wonder, he's not the brightest bulb on the tree anyway, he feels trapped by, and powerless before, the authority figures in his life (his wife, his cop buddies, his church). Brolin lets all of this play out without tipping his hand in any one direction. It's a subtle, complex, and very worthwhile performance, and it's a testament to the film's heart that it extends such empathy even to its ostensible antagonist.

Speaking of empathy, this isn't at all a surprise coming from Gus Van Sant, always a very humanistic director, but it should be noted regardless: When it comes to full recognition of gays and lesbians, Milk laudably practices what it preaches. Jonathan Demme's Philadelphia was good for its time, but nowadays (it's on heavy rotation on AMC) it gives off a distinctly Guess Who's Coming to Dinner? vibe. And, as I said when it came out, Ang Lee's Brokeback Mountain often seemed "as somber, restrained, and delicate as Kabuki theater." By contrast, the couples of Milk are passionate -- both physically and emotionally -- messy, flawed, and alive. Of course, there have been other well-rounded depictions of gays and lesbians in film in the past -- in Van Sant's earlier work, in the films of other gay directors like Todd Haynes, John Cameron Mitchell, and Kimberly Peirce, and in countless others. Still, Milk feels like an event of sorts. Unlike many of its forebears, it's a mainstream Oscar-caliber movie that just takes its characters' sexuality at face value and without apology. In that sense, it feels like a film whose time has come.

I said earlier that Dan White was ostensibly the villain of Milk, but that's not entirely true. Rather, to its credit, the film is pretty bold about pointing the finger where the trouble really lies: at the conservative-minded legions of organized Christendom -- or at the very least its right-wing, for-profit flank -- who've decided that arbitrarily upholding one proscription mentioned in passing in the Old Testament (shellfish, anyone?), and then ruthlessly enforcing it on the backs of their neighbors and co-workers, is more important than upholding the central tenet of the actual teachings of Jesus: "Love one another." (Along those lines, expect a good bit of "godless liberal Hollywood" bluster from the usual corners if this film gets any Oscar buzz.)

Which brings us to that Wal-Mart of spirituality, Rick Warren, who as you all know will be delivering the invocation at Obama's inauguration this month, and who has said all manner of intemperate things about gays and lesbians (as well as jews, pro-choice voters, and others) in the past, even going so far as to campaign for Prop 8 in California two months ago.

Now, when the Rick Warren pick first came out, I didn't say anything here for two reasons. One was deeply selfish: That was the week I was finishing up my speechwriting app, and it didn't seem like the most opportune time to be too critical of the administration around here at GitM. (In the end, it didn't matter anyway, of course.) More importantly, though, I am -- and still partly remain -- of the mind that the bigger picture needs to be kept in mind here. If it keeps the right-wing fundies relatively happy and docile, and helps them to buy into the notion of a post-partisan Obama presidency, then Rick Warren can give all the one minute ceremonial speeches he wants, so long as Obama ultimately shows himself a friend to gay and lesbian rights in his presidential actions.

But, there's a sequence in Milk that brought me around a bit. When Dan White mentions the "issue" of gay rights in one crucial scene, Harvey replies: "These are not issues, Dan. These are our lives we're fighting for." And, put that way, the calculus changes. To straight progressive folk such as myself, one can easily -- too easily -- get to thinking of gay rights as an "issue" among many. But, for gays and lesbians all around the country, this is their lives. And, when considered thusly, the president of these United States -- least of all a president who ran and won on a campaign of hope -- should not be legitimizing bigotry, such as that continuously expressed by Warren without apology, in any kind of forum, let alone the most portentous and culturally significant inauguration in at least fifty years, perhaps ever.

In an eloquent column last week, the NYT's Frank Rich articulated basically where I stand on Obama's decision at this point: His choice of Warren is "no Bay of Pigs. But it does add an asterisk to the joyous inaugural of our first black president. It’s bizarre that Obama, of all people, would allow himself to be on the wrong side of this history." Let's hope that Obama doesn't follow in the footsteps of the last Democratic president, who very quickly started backpedaling on gay rights once in office, vis a vis "Don't Ask, Don't Tell." And, while I'm sure he's pretty busy these days, the president-elect (apparently a movie buff of sorts) could do worse than spend a few hours to reflect on the story of another community-organizer who believed in the transformative power of hope, who carried the hopes of his constitutents into higher office...and who faced unflinching and unwavering contempt from an irreconcilable opposition once he got there.

"I think you can be a law-and-order leader and still understand that the criminal justice system as we understand it today is broken, unfair, locking up the wrong people in many cases and not locking up the right person in many cases." In an auspicious sign for 2009, Sen. Jim Webb (D-VA) announces he'll be taking at stab at criminal justice and prison reform in the coming year. "Webb aims much of his criticism at enforcement efforts that he says too often target low-level drug offenders and parole violators, rather than those who perpetrate violence, such as gang members. He also blames policies that strip felons of citizenship rights and can hinder their chances of finding a job after release."

It sounds like he's on the right track, and bully to Sen. Webb for even taking this issue -- normally not one that brings in the votes -- on. (Let's hope Webb knows his Wire.)

Of course, a lot of headway could be made if we just started taking a saner approach to drugs in this country, i.e. unclogging the justice system of non-violent drug offenders and doing away with mandatory minimums. From there, I hope Sen. Webb sets his sights on the shameful and grotesque private, for-profit prison industry that has sprouted here in America. I for one believe running an unsafe, substandard prison and getting rich by outsourcing your supply of "captive" laborers to corporations that don't want to pay market wages is much more immoral and criminal behavior than getting high in some fashion and being unlucky (and/or black) enough to get caught. And I don't think I'm in the minority in this assessment anymore.

"The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of 'coercive management techniques' for possible use on prisoners, including 'sleep deprivation,' 'prolonged constraint,' and 'exposure.' What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners...The only change made in the chart presented at Guantánamo was to drop its original title: 'Communist Coercive Methods for Eliciting Individual Compliance.'"

How low have we sunk under Dubya? Apparently, under this administration, we've actually been plagiarizing Maoist torture techniques for use in the Gitmo gulag. "'What makes this document doubly stunning is that these were techniques to get false confessions,' Levin said. 'People say we need intelligence, and we do. But we don't need false intelligence.'"

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote for a five-member majority clearly impatient that some prisoners have been held for six years without a hearing." In a setback for the Dubya administration and a victory for the American way of life, the Supreme Court grants habeas corpus rights to Guantanamo detainees. (The decision in Boumediene v. Bush is now the fourth time the Court has reaffirmed the rule of law over Dubya's monarchial anti-terror policies.)

In vicious dissent, the conservative bloc: Roberts, Scalia, Thomas, and Alito, with Scalia in particular scowling and ranting like a Batman villain. "'America is at war with radical Islamists,' he wrote, adding that the decision 'will almost certainly cause more Americans to be killed.' He went on to say: 'The Nation will live to regret what the court has done today.'" To which I say, "Get over it." I highly doubt we'll regret it as much as your being put on the Court in the first place, Justice Scalia.

"Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel." (Nor, apparently, does the Fourth Amendment apply.) An unsettling memorandum by Dubya stooge John Yoo which advocates both dictatorial rule and the legality of torture is released to the public, five years later. "'The whole point of the memo is obviously to nullify every possible legal restraint on the president's wartime authority,' Jaffer said. 'The memo was meant to allow torture, and that's exactly what it did.'"

More than anything, I'm reminded of Lincoln's remarks to the Indiana fourteenth: "'Whenever I hear anyone arguing over slavery, I feel a strong impulse to see it tried on him personally.'"

And, just in case anyone was under the impression that this sort of thing only happened in the dark days of 2003, witness Attorney General Mukasey last week getting publicly verklempt and making up 9/11 tales as he goes along, all to help preserve the NSA's warrantless wiretaps. At this point, Chuck Schumer has a lot to answer for.

"Not one lawyer in 100 can identify Ohio congressman John Bingham as the main drafter of the 14th Amendment. Yet Bingham is a fascinating historical figure: he served in Congress in the 1850s as the country was torn apart and in the 1860s as it was stitched back together. He was a federal judge and the nation's minister to Japan. As a prosecutor, he convicted John Wilkes Booth's co-conspirators, and as a member of Congress he gave closing arguments in President Andrew Johnson impeachment trial. All that, plus he drafted Section 1 of the 14th Amendment, which is perhaps the single most important paragraph of our Constitution." Over at TNR, Doug Kendall pleas with Obama and others to remember the Reconstruction amendments.

The Senate bans waterboarding by a vote of 51-45 and, surprisingly enough, straight-talker John McCain votes against the bill. "McCain sided with the Bush administration yesterday on the waterboarding ban passed by the Senate, saying in a statement that the measure goes too far by applying military standards to intelligence agencies. He also said current laws already forbid waterboarding, and he urged the administration to declare it illegal." God forbid we take too strong a stance against torture, eh, Senator? For shame.

"Katyal, who has been called in by both senators, described what sounded like a typical establishment vs. insurgency split between the two. Clinton 'comes at it a bit more from a top-down perspective,' he said, 'as in, "elites are likely to know what the right answer is." She'll likely talk to the Nobel Prize winner, but maybe not be as likely to talk to the people on the ground affected by the policies./ Obama, on the other hand, talked to Katyal for two hours when the Military Commissions Act, which sought to limit the Guantanamo detainees' right to bring appeals in federal court, was being debated in the Senate. He wanted to know how the proposed law would play out directly for the detainees, and Katyal was representing Salim Ahmed Hamdan before the Supreme Court."

Slate's Emily Bazelon examines how Obama's years as a con law professor influence his judicial thinking. "Obama's immersion makes the law professors in his inner circle giddy. In addition to the sweet relief of a candidate who has promised not to keep marching to the drummer of executive power, and who wants to protect rather than diminish the right to privacy, the Obama lawyer team loves their man because he goes toe to toe with them. As Harvard law professor Martha Minow puts it, 'He has at his fingertips the whole historical context of the moments in which our Constitution has been stretched, or has been in jeopardy, and when presidents have tried to bring it back. This isn't an afterthought for him: "Oh, I'll go consult my lawyers."'" This probably goes a way toward explaining why Obama has the backing of so many anti-Gitmo lawyers.

"I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion." The honeymoon is way over. In congressional testimony yesterday, Attorney General and theoretical straight-shooter Michael Mukasey announces he won't look into waterboarding, won't look into the warrantless wiretaps, and won't enforce the persecuted prosecutor contempt citations. His rationale for all this? If the Justice Department says it's ok, it's not illegal. "That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice." Sigh...it's enough to make one miss Alberto Gonzales. Ok, not really.

"Hayden said Khalid Sheik Mohammed, Abu Zubayda and Abd al-Rahim al-Nashiri were waterboarded in 2002 and 2003. Hayden banned the technique in 2006, but National Intelligence Director Mike McConnell told senators during the same hearing Tuesday that waterboarding remains in the CIA arsenal -- so long as it as the specific consent of the president and legal approval of the attorney general."

Not to be lost in the Super Tuesday shuffle (as intended): CIA Director Michael Hayden admits that we've waterboarded at least three high-level detainees. "Human Rights Watch, which has been calling on the government to outlaw waterboarding as a form of illegal torture, called Hayden's testimony 'an explicit admission of criminal activity.'"

"'I think he represents the kind of leader that we need for the future of the country,' Sebelius told The Associated Press. 'I think he brings the hope and optimism that we really need to restore our place in the world, as well as to bring this country together and really tackle the challenges that we have.'" Kansas Governor Kathleen Sebelius endorses Barack Obama for president. (Sebelius also gave the Democratic SOTU response last night, and her upcoming endorsement was one of DC's worst-kept secrets last week.)

And another intriguing endorsement via the Daily Dish: Obama gets the support of 80 volunteer lawyers of Gitmo detainees: "Some politicians are all talk and no action. But we know from first-hand experience that Senator Obama has demonstrated extraordinary leadership on this critical and controversial issue." (Their full statement is here.)

"Bush and Cheney are clearly guilty of numerous impeachable offenses. They have repeatedly violated the Constitution. They have transgressed national and international law. They have lied to the American people time after time. Their conduct and their barbaric policies have reduced our beloved country to a historic low in the eyes of people around the world. These are truly 'high crimes and misdemeanors,' to use the constitutional standard." Not to be lost in the New Hampshire shuffle: Former Senator and presidential candidate George McGovern makes the case anew for Dubya's impeachment.

Yesterday, according to Hillary Clinton, Barack Obama was too liberal. Today, he's not liberal enough. Flailing about desperately for something that will stick on the Illinois Senator, the Clinton camp contrives a patently false abortion mailer questioning Obama's pro-choice commitment. The mailer says "Clinton has a record of fighting 'far-right Republicans' to defend abortion rights, while Obama has been 'unwilling to take a stand on choice.'" And the facts? "During his eight years in the legislature, Obama cast a number of votes on abortion and received a 100 percent rating from the Illinois Planned Parenthood Council for his support of abortion rights, family planning services and health insurance coverage for female contraceptives. He voted against requiring medical care for aborted fetuses who survive, a vote that especially riled abortion opponents."

The peg Clinton is trying to hang her hat on is seven times in the State Legislature when Obama voted "present" rather than "yes" on a given abortion-related bill. As was reported over the summer (i.e, well before this mailer was composed), Obama "did so with the explicit support of the president and CEO of Illinois Planned Parenthood Council. 'We at Planned Parenthood view those as leadership votes,' Pam Sutherland, the president and CEO of the Illinois Planned Parenthood Council, told ABC News. 'We worked with him specifically on his strategy.'"

So, in other words, like yesterday's mandatory minimums fiasco, this is another weaselly, obviously false desperation ploy by Clinton's team. (And one, like the soft-on-drug-related-crimes gambit, seemingly aimed at preemptively marring Senator Obama's general election viability.) Sorry, try again.

"There could have been absolutely no doubt in the mind of anyone at the C.I.A. -- or the White House -- of the commission’s interest in any and all information related to Qaeda detainees involved in the 9/11 plot. Yet no one in the administration ever told the commission of the existence of videotapes of detainee interrogations." From a few days ago, 9/11 Commission Chairs Thomas Kean and Lee Hamilton angrily accuse the CIA and Dubya White House of stonewalling their investigation. "As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction."

"Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter." Gee, you think? Attorney General Michael Mukasey announces a federal criminal probe into the matter of the destroyed CIA torture tapes. It will be headed by John H. Durham, currently "the second-in-command at the U.S. attorney's office in Connecticut."

"The grim truth is, not much has changed. The Bush administration continues to limit our basic freedoms, conceal its own worst behavior, and insist that it does all this in order to make us more free." As a follow-up to her 2006 list of civil liberties violations, Slate's Dahlia Lithwick surveys The Bush Administration's Top 10 Stupidest Legal Arguments of 2007.

"In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus for apprehensions made pursuant to it." Taking a page from his earlier mentor, A. Mitchell Palmer, FBI Director J. Edgar Hoover, recently declassified documents reveal, floated the idea of interning 12,000 Americans he suspected of disloyalty in 1950, during the Korean War. [Hoover's letter.] "Hoover wanted President Harry S. Truman to proclaim the mass arrests necessary to 'protect the country against treason, espionage and sabotage.' The F.B.I would 'apprehend all individuals potentially dangerous' to national security, Hoover’s proposal said." Thank goodness our intelligence community is past such retrograde thinking and kneejerk trampling on civil liberties today...uh, right?

"[H]ere's a different thought experiment: How would the national debate over torture have changed if we'd known about the CIA tapes all along? How would our big terror trials and Supreme Court cases have played out? Yes, this is also a speculative enterprise, but it's critical to understanding the extent of the CIA's wrongdoing here." In light of the recent revelation that the CIA destroyed video evidence of their abusive interogation procedures in 2005, well after they'd become relevant both in many different legal cases and in the national discussion about torture, Slate's Emily Bazelon and Dahlia Lithwick survey the wreckage the CIA has made of our legal process. "Video of hours of repetitive torture could have had a similarly significant impact -- the truism about the power of images holds. If we are right about that -- and we think we are -- this evidence that has been destroyed would have fundamentally changed the legal and policy backdrop for the war on terror in ways we've only begun to figure out." If nothing else, an independent counsel should be named immediately. Even given the criminality and contempt for the rule of law we've come to expect from this administration, this sort of thuggish, gangland behavior is shocking news.

One of the staples of the failed drug war, mandatory minimums take two substantial hits as the Supreme Court decides 7-2 in favor of judicial discretion in a pair of drug cases, Kimbrough v. U.S. and Gall v. U.S. "Justices Clarence Thomas and Samuel A. Alito Jr. dissented in both cases."

The ranks of Team Dubya dwindle further as chief terrorism adviser Frances Fragos Townsend announces her resignation. "Townsend has been a key player in Bush's circle, earning the president's trust despite initial suspicion among Republicans because of her background in the Clinton Justice Department...As gatekeeper for intelligence wiretap requests [in the Clinton era], her office fought efforts to invoke the Foreign Intelligence Surveillance Act in matters that could result in criminal cases, fearing that prosecutors would use warrants under that law instead of amassing the evidence needed to cross the more difficult threshold for obtaining a criminal wiretap...Townsend later said she fought 'tooth and nail' against information-sharing restrictions."

Having survived his evasions on waterboarding, new Attorney General Michael Mukasey looks to start his tenure in the right direction by reopening the internal investigation into warrantless wiretapping, the same investigation that collapsed in 2006 because Dubya would not grant the department the necessary security clearances. "H. Marshall Jarrett, the OPR's chief counsel, wrote in a letter to several lawmakers yesterday that lawyers in his office 'recently received the necessary security clearances and are now able to proceed with our investigation.'"

"Will we join that gloomy historical line leading from the Inquisition, through the prisons of tyrant regimes, through gulags and dark cells, and through Saddam Hussein's torture chambers? Will that be the path we choose?" As a result of his continued inability to define waterboarding as torture, Michael Mukasey's chances of becoming AG grow murkier. "'If we are going to restore the image of the United States of America, the highest law enforcement officer should be clear, firm, unequivocal: that waterboarding and torture are unacceptable, un-American, illegal and unconstitutional,' Durbin said." Update: But, of course, key Dems capitulate, namely Senators Schumer and Feinstein. Good God, our party is pathetic at times.

"All other considerations aside, any person who cannot say, plainly and unambiguously, that water-boarding is torture and is both immoral and illegal should not be the attorney general of the United States. Period." After the nominee's hemming and hawing about waterboarding, Slate's Frank Bowman makes the case against Michael Mukasey's confirmation as AG. "If the Senate is foolish enough to ratify the replacement of a bumbling toady with an accomplished apostle of the gospel of executive supremacy, it will deserve every snub this and future presidents inflict. But the rest of us deserve better."

"'The administration can't have it both ways,' Rockefeller said in a statement. 'I'm tired of these games. They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program." Claiming only that the US "does not torture people," the White House refuses to turn over Justice Department documents on torture policy, "contending that their disclosure would give terrorist groups too much information about U.S. interrogation tactics." Those documents, announced by the NYT on Thursday, "provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures, and "show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics."

"And then this year, all hell breaks loose. The last few weeks have produced one Oprah-grade revelation after another. Which makes gazing up at the justices today something like waking up the morning after Woodstock: There's a tangle of naked judicial limbs up there on the bench, and the uneasy collective sense that it's best to avoid eye contact." It's that time of
year again: Slate's Dahlia Lithwick reports in from the Supreme Court's first Monday, one made more uncomfortable than usual by the summer's events. "Of this I am certain: In the few hundred pages of his new book, Thomas has managed to undo years of effort by his colleagues to depoliticize the judicial branch."

“'I don’t think of myself as a liberal at all,' he told me during a recent interview in his chambers, laughing and shaking his head. 'I think as part of my general politics, I’m pretty darn conservative." A holdover link from last weekend (and a follow-up of sorts to this 2006 post): Jeffrey Rosen profiles Justice John Paul Stevens in the NYT Magazine. "In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror."

"This is probably one of the most important cases in decades as it relates to the death penalty." Now we'll really see how pro-life they are...the Supreme Court agrees to hear a case on the constitutionality of lethal injections.

"The problem is that no one seems quite sure what law, if any, would apply to security firm contractors, and any potential applications are untested and would be vigorously challenged." A murky incident involving Blackwater USA over the weekend, which resulted in the deaths of eight alleged Iraqi civilians, raises questions about the legality of private security firms working in Iraq (on whom the well-being of most American diplomats in the region depends.) "Should any Iraqis ever seek redress for the deaths of the civilians in a criminal court, they will be out of luck. Because of an order promulgated by the Coalition Provisional Authority, the now-defunct American occupation government, there appears to be almost no chance that the contractors involved would be, or could be, successfully prosecuted in any court in Iraq." Needed or not, having privately-held American militias operating outside the bounds of the Iraqi legal system isn't going to elicit much respect for the rule of law in the region.

"In making this selection, I think President Bush has made a very...deliberate effort to choose someone who would not be controversial," Sidestepping the political firestorm a Ted Olsen nod would have unleashed, Dubya chooses retired judge Michael B. Mukasey to be Gonzales' replacement at the Justice Department. While conservative, particularly on national security issues, Mukasey is "'not an ideologue for the sake of being an ideologue,' said Andrew Ruffino, a former law clerk of the nominee's. Said Bruce Ackerman, a Yale law professor who was a classmate of Mukasey's: 'He is not a hyper-charged Federalist Society type. He is not a glad-hand networker.'" (He does, on the other hand, have strong ties to Rudy Giuliani.)

Another brick from the wall...A US District judge in New York declares that the FBI's secret use of "national security letters" (NSLs) under the Patriot Act is unconstitutional, violating the First Amendment and the separation of powers clause. "Marrero wrote in his 106-page ruling that Patriot Act provisions related to NSLs are 'the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.'"

"This man has advanced Communist views, and several of his Indian friends say that they have often seen him at Communist meetings. He dresses in a bohemian fashion both at his office and in his leisure hours." Big Brother was watching him: Ralph Luker of Cliopatria points the way to the recently-released UK Security Service files on George Orwell (as well as those on folk music archivist Alan Lomax and others.) "[W]hile his left-wing views attracted the Service's attention, no action was taken against him. It is clear, however, that he continued to arouse suspicions, particularly with the police, that he might be a Communist. The file reveals that the Service took action to counter these views."

"We're going to push and push and push until some larger force makes us stop," Addington said at one point." The Terror Presidency, a new book by disgusted conservative and former Justice Department official Jack Goldsmith, further details the role played by Cheney henchman David Addington in this administration's rolling back of the rule of law."'We're one bomb away from getting rid of that obnoxious [FISA] court,' Goldsmith recalls Addington telling him in February 2004."

Would you want this man making a life-and-death decision for you? For some reason, embattled Attorney General Alberto Gonzales -- who hasn't been coming across as a model of competence lately -- is apparently about to receive expanded powers to fast-track state death penalty cases. "Kathryn Kase, a Houston lawyer who serves on the National Association of Criminal Defense Lawyers' death penalty committee, said the Justice Department's proposed regulations are 'severely lacking' because they do not provide enough oversight to ensure that defendants are receiving adequate legal counsel. 'In our judgment they allow states to...claim they have a capital representation case that is functional, when in fact it might not be functional at all,' Kase said. 'It may not prevent people from being wrongfully sentenced to death.'" The older I get, the worse the death penalty seems as public policy. Even the cruel and unusual aspect notwithstanding, it's arbitrary, it doesn't work as a deterrent, it's often racist. Add Gonzales' presumed oversight to the list of negatives.

"'We're hugely disappointed with the Democrats,' said Caroline Fredrickson, legislative director for the American Civil Liberties Union. 'The idea they let themselves be manipulated into accepting the White House proposal, certainly taking a great deal of it, when they're in control -- it's mind-boggling.'" Um, why did we put these jokers in office again? Surely not to support such flagrantly unconstitutional intrusions as this. Folding completely to White House pressure, a Democratic Senate voted 60-28 and a Democratic House voted 227-183 to sanction Dubya's illegal wiretapping procedures. 'The bill would give the National Security Agency the right to collect such communications in the future without a warrant. But it goes further than that: It also would allow the monitoring, under certain conditions, of electronic communications between people on U.S. soil, including U.S. citizens, and people 'reasonably believed to be outside the United States,' without a court's order or oversight." The Dems' fallback position? They included a six-month sunset provision in the bill, so they'll get a chance to revisit and repeat their capitulation to the executive throne early next year. But can we expect any more leadership from the congressional Democrats then? Really, this is beyond disgraceful. "'The day we start deferring to someone who's not a member of this body...is a sad day for the U.S. Senate,' Feingold said. 'We make the policy -- not the executive branch.'"

"'Conservatives got everything they could reasonably have hoped for out of the term,' said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation." Proving the crucial importance of the Alito-O'Connor switch (and, I'll continue to maintain as my answer to Emily Bazelon's line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of "free speech" but also -- seriously, no lie -- to partially roll back Brown v. Board of Education. (In another well-reported case, the majority's inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you're keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn't sound so appetizing. Update: Slate's slate of legal observers discuss.

In a document dump of both exhilarating and terrifying proportions, the CIA announced it will release its "family jewels" next week: close to 700 pages of documents chronicling secret Agency activity from the fifties to the seventies. (A preview of what's to come includes reports of detentions, wiretapping, surveillance, and other sordid current administration favorites.) "CIA Director Michael Hayden on Thursday called the documents being released next week unflattering, but he added that 'it is CIA's history.' 'The documents provide a glimpse of a very different time and a very different agency,' Hayden told a conference of historians." Hmm, we'll see.

"'Here...comes...that famous General Taguba -- of the Taguba report!' Rumsfeld declared, in a mocking voice." Well, the agency and the time may have changed, but it's increasingly clear we still have a lot to answer for, thanks to the actions of those who would claim to protect our way of life. The inimitable Sy Hersh of The New Yorker (who also played a role in 1974 in getting the CIA docs released -- take that, Woodward) reports in with the tale of General Antonio Taguba, the head of the Army's original investigation into Abu Ghraib who, like so many other truth-tellers in the administration, was eventually hung out to dry for his candor. Hersh's frightening and sadly plausible piece not only makes clear that Rumsfeld, Dubya, et al had more knowledge of the nightmare of Abu Ghraib than they've publicly let on, but also suggests that those repellent images we've all seen from the prison may only be the tip of the iceberg of the horrors that occurred in our country's name. "Taguba said that he saw 'a video of a male American soldier in uniform sodomizing a female detainee.' The video was not made public in any of the subsequent court proceedings, nor has there been any public government mention of it."

"He's saying he's above the law...It just seems to me this is arrogant and shows bad judgment." Also in related news, historians probably shouldn't expect a similar classified document dump a quarter-century from now: Word leaks from a congressional committee that Cheney has refused to comply with the National Archives in preserving classified documents over the past four years and even tried to abolish the office responsible for enforcing the law. "Cheney's office declined to discuss what it called internal matters...The Justice Department confirmed yesterday that it is looking into the issue." Another day, another imperial prerogative attempted by these lawless yokels in the White House.

Think I'm being shrill? Ok, here's another: After listening to former Attorney General John Ashcroft discuss internal differences over Dubya's illegal surveillance program yesterday, the Senate Judiciary Committee voted 13-3 to issue subpoenas for White House and Justice Department documents regarding the eavesdropping system. "The White House made no move to comply."

"'At least it makes clear the signing statements aren't solely for staking out a legal position, with the president just saying, "I don't have to do these things, but I will,"' Fein said. 'In fact they are not doing some of these things. You can't just vaporize it as an academic question.'" Also in the administration malfeasance department, a new study by Congress's Government Accountability Office finds that more often than not Dubya has been ignoring the laws he's flagged in signing statements as not in tune with his imperial mood. "'The administration is thumbing its nose at the law,' said House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), who requested the GAO study and legal opinion along with Senate Appropriations Committee Chairman Robert C. Byrd (D-W.Va.). 'This GAO opinion underscores the fact that the Bush White House is constantly grabbing for more power, seeking to drive the people's branch of government to the sidelines,' Byrd said in a joint statement with Conyers."

"The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention...To sanction such presidential authority to order the military to seize and indefinitely detain civilians...would have disastrous consequences for the constitution -- and the country." In what should have been a no-brainer, a federal appeals court rules 2-1 in the case of al-Marri v. Wright that Dubya can't hold US residents indefinitely on suspicion alone. [Full opinion, and the dissent by a Bush appointee.] "The panel tailored its opinion to Marri's circumstances; it does not directly apply to the more than 300 foreign nationals held as enemy combatants in the military prison at Guantanamo Bay, Cuba. But lawyers for some captives noted that the same flaws the court found in the administration's classification of Marri were true for Guantanamo detainees."

"But reading Mansfield has real value for understanding the dominant right-wing movement in this country. Because he is an academic, and a quite intelligent one, he makes intellectually honest arguments, by which I mean that he does not disguise what he thinks in politically palatable slogans, but instead really describes the actual premises on which political beliefs are based. And that is Mansfield's value; he is a clear and honest embodiment of what the Bush movement is." Glenn Greenwald eviscerates Harvard professor Harvey Mansfield after the latter pens an op-ed for the WSJ entitled "The Case for the Strong Executive -- Under some circumstances, the Rule of Law must yield to the need for Energy." See the problem in that title? It kinda jumps out at you.

"'Everybody at the White House...all think he needs to go, but the president doesn't,' said a Republican who consulted the Bush team yesterday. Another White House ally said Bush and Gonzales are ignoring reality: 'They're the only two people on the planet Earth who don't see it.'" True to form, Dubya responds to Alberto Gonzales' flameout on Thursday by declaring he has "full confidence" in the Attorney General and calling his service "fantastic." (Fantastic? Really? Do you mean that in the "fanciful" sense, perhaps?) In light of this bizarre news, Dahlia Lithwick reevaluates Gonzales' testimony, arguing that what came across to us in the reality-based community as evasive, misleading, or just plain stammering seemed to Dubya a solid defense of the unitary executive theory. The really scary thing is, she's probably right.

"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman." In keeping with a tendency to move right incrementally, without necessarily overturning any laws (one that may also pose trouble for the McCain-Feingold act in coming weeks), the Roberts Court upholds a ban against partial-birth abortion 5-4, with Justice Anthony Kennedy the swing vote. (He was joined, of course, by Justices Scalia, Thomas, Roberts, and Alito.) Kennedy's reasoning? According to Slate's always-perceptive Dahlia Lithwick, it was fear of the Inconstant Woman: "Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas." For her part, Senator Barbara Boxer sadly summed it up as such: "'It confirms that elections have consequences,'...alluding to Bush's re-election and the seven GOP Senate wins in 2004 which set the stage for the appointment of Roberts and Alito."

With that in mind, all the major candidates for 2008 obviously weighed in on the decision in Gonzales v. Carhart, although everyone pretty much followed to party script, even the ostensibly pro-choice Giuliani. [Clinton | Edwards | Giuliani | McCain | Obama | Richardson | Romney] "Wednesday's ruling raises the stakes for the 2008 presidential election, which is almost certain to pit an abortion-rights Democrat against an anti-abortion Republican." Let's not make the same mistake again, y'all.

"The bar for inclusion is low, and once someone is on the list, it is virtually impossible to get off it. At any stage, the process can lead to 'horror stories' of mixed-up names and unconfirmed information, Travers acknowledged." The WP plunges into the rising TIDE (Terrorist Identities Datamart Environment), a.k.a. the terrorist watch list that has quadrupled in size over the past four years. (And, here I thought we were winning the war on terror.) "Sen. Ted Stevens (R-Alaska) said last year that his wife had been delayed repeatedly while airlines queried whether Catherine Stevens was the watch-listed Cat Stevens."

"It was a running joke that some of the new faces were 25- to 32-year-old males asking, 'First name, last name?'" A front-page story in today's NYT discloses that the NYPD spied on possible RNC protesters for over a year before the 2004 convention, including several unlikely candidates -- such as Billionaires for Bush -- for anything other than lawful political protest. "'The police have no authority to spy on lawful political activity, and this wide-ranging N.Y.P.D. program was wrong and illegal,' Mr. Dunn [of the ACLU] said. 'In the coming weeks, the city will be required to disclose to us many more details about its preconvention surveillance of groups and activists, and many will be shocked by the breadth of the Police Department's political surveillance operation.'"

"'We concluded that many of the problems we identified constituted serious misuse of the FBI's national security letter authorities,' Inspector General Glenn A. Fine said in the report." A Justice Department audit finds the FBI has been systematically misusing NSA letters to procure personal information without a court order, prompting a mea culpa from director Robert Mueller and the prospect of possible hearings into the matter. "'It appears that the administration has used these powers without even the most basic regard for privacy of innocent Americans,' [Sen. Dick] Durbin said in a statement."

"In some sense, the president is now as much a prisoner of Guantanamo as the detainees...The endgame in the war on terror isn't holding the line against terrorists. It's holding the line on hard-fought claims to absolutely limitless presidential authority." Slate's Dahlia Lithwick discerns the method in Dubya's madness on the civil liberties front: "expanding executive power, for its own sake."

"'The administration is playing games about warrants,' Martin said. 'If they are not claiming new powers, then why did they need to issue a signing statement?'" New year, more of the same. Channeling Albert Sidney Burleson, Dubya creates consternation among civil liberties advocates with another recent signing statement reinvoking the right to read anyone's mail. Let me know if y'all figure out what the best student loan consolidation plan is.

"Whenever the courts push back against the administration's unsupportable constitutional ideas...the Bush response is to repeat the same chorus louder: Every detainee is the worst of the worst; every action taken is legal, necessary, and secret. No mistakes, no apologies. No nuance, no regrets. This legal and intellectual intractability can create the illusion that we are standing on the same constitutional ground we stood upon in 2001, even as that ground is sliding away under our feet." Slate's Dahlia Lithwick surveys the top ten most outrageous civil liberties violations of 2006.

"It's something that's been bothering me for quite some time, the direction in which the party has been going more and more toward big government and disregard toward privacy and civil liberties." Staunch conservative, defender of civil liberties, and Borat cameo Bob Barr leaves the Republican Party (for the Libertarians.) Now if only Susan Collins and Olympia Snowe would follow his example...

"This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning." Ground is broken on the new MLK memorial, to be "built along the edge of the Tidal Basin, midway between monuments to Thomas Jefferson and Abraham Lincoln. It will be the first on the Mall honoring an African American and the first that does not memorialize a president or a war hero." Great! As I've said before in this space, I'm all in favor of adding more historically-themed monuments to the Mall, and a tribute to Dr. King seems a particularly worthy addition to our nation's central gathering place.

Wasting no time after signing the godawful terrorism bill into law, Dubya tells the US District Court that it has lost jurisdiction over habeas corpus petitions filed by Gitmo detainees. "What's being blocked and what the government is opposing tooth and nail is the most simple thing of all: a hearing before a district court judge,' said Jonathan Hafetz, who handles many detainee cases for the Brennan Center for Justice at New York University School of Law. 'The government will do anything to prevent Guantanamo detainees from being able to present evidence in court.'"

Guess who's back? The Roberts Court reconvenes for another term, and all eyes are on Justice Kennedy...

"We don't blame the Democrats for being frightened. The Republicans have made it clear that they'll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won't remember the pragmatic arguments for caving in to the administration. They'll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation's version of the Alien and Sedition Acts." Abu Ghraib becomes standard operating procedure as Dubya's terror bill -- horrifying as it is -- passes the House 253-168 (roll call) and the Senate 65-34 (roll call.) Twelve Senate Dems (well, eleven Senate Dems and Lieberman) voted for the bill: Carper, Johnson, Landrieu, Lautenberg, Menendez, Nelson, Nelson, Pryor, Rockefeller, Salazar, Stabenow. Chafee was the only Republican to vote against it, Snowe abstained.

Shameful, pitiful, demoralizing, pathetic. What else is there to say? As Rebecca Blood sums it up (via Medley): "We have lost the war on torture. It's devastating."

"The Nuremberg trials presupposed something about the human conscience: that moral choice doesn't take its cues solely from narrow legalisms and technicalities. The new detainee bill takes precisely the opposite stance: Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain." Also at Slate, David J. Luban argues that Dubya's recent torture bill spells the end of the Nuremberg era, a period when the US worked hard at "codifying genuinely international humanitarian law," to say nothing of the Great Writ.

"Eliminating habeas is tantamount to letting hundreds of Guantanamo prisoners rot in jail." After striking a somewhat nonsensical compromise with the McCain-Graham faction, Dubya gets most of his desired detention and torture bill, one which gives him the authority to interpret the Geneva Conventions by fiat and disallows detainees from either invoking the Conventions or challenging their treatment in any court. "'It replaces the old broken' military trial system ruled illegal by the Supreme Court with 'a new broken commission system,' said Marine Corps Col. Dwight Sullivan, the chief defense counsel for the Defense Department's Office of Military Commissions. He said 'it methodically strips rights' guaranteed by laws and treaties and appears to be unconstitutional." Update: The House GOP get gleeful about the torture bill.

"Purely from a strategic point of view, this is another mess...Every time Republicans think they have an issue to unite them and divide the Democrats, the Republicans end up spending most of the time fighting among themselves." As fear-mongering and falling oil prices perhaps help the GOP get back in the race this November, the WP surveys the political implications of the recent stand of principle by Senators Warner, McCain, Graham, and Snowe against Dubya's grotesque tribunal plan. Politics or no, Dubya's proposed gutting of the Geneva Conventions must be stopped: "'What is being billed as "clarifying" our treaty obligations will be seen as "withdrawing" from the treaty obligations,' Graham said. 'It will set precedent which could come back to haunt us.'"

"We should see the administration's bill for what it is: a shattering assault on our constitutional system of checks and balances. It seeks to inaugurate an age of presidential supremacy over fundamental rights, without effective control by Congress or the courts. The Senate should reject it decisively when it comes to the floor in the coming weeks." Yale professor Bruce Ackerman decries Dubya's recent wiretapping bill, which recently passed out of committee on a party-line vote. (Thanks, Arlen.)

After fierce debate among the neocons, Dubya comes clean about the CIA's secret prisons (outed by the Post last November) and moves the detainees held therein to Gitmo. But don't think this moment of clarity means King George is playing it straight just yet: He's also asking Congress to sidestep recent court decisions and grant him power to continue wiretapping without warrants and to torture alleged evildoers with impunity. And even moderate Republicans and military lawyers have issues with his recent attempts to deny suspected terrorists due process.

Update: Slate's Dahlia Lithwick has more: "The speech teemed with all the rhetorical wizardry you might expect of a do-over. Bush justified torture and extraordinary rendition while denying that they exist. He stuck a fork in the eye of the Supreme Court while agreeing to be bound by the majority's decision. He conceded that Congress should play a role in creating military tribunals while demanding that it greenlight his plan."

"[P]ublic interest is clear, in this matter. It is the upholding of the Constitution." In a strongly worded decision that minces no words about the Dubya administration's "obviously" unwarranted powergrab, U.S. District Judge Anna Diggs Taylor finds the NSA warrantless wiretaps blatantly unconstitutional. "It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights...There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution." Elsewhere in the opinion, Taylor found that the wiretap program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III." Update: As per the norm, the GOP try to shoot the messenger.

"This report raises serious concerns crucial to the survival of our democracy...If left unchecked, the president's practice does grave harm to the separation of powers doctrine, and the system of checks and balances that have sustained our democracy for more than two centuries." Then, again, I could be sold on the merits of bar associations...if they continue to call out Dubya for trampling on our Constitution.

"If another nation's leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the president for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections. These realities make the Supreme Court's decision in Hamdan v. Rumsfeld, issued on the last day of its 2005-2006 term, in equal parts stunning and crucial." In related news, as seen at both Salon and Mother Jones (as well as the New York Review of Books), author and law professor David Cole underlines the importance of the Hamdan decision in preserving the rule of law and throttling Dubya's unchecked power grabs of late.

As the legislative and judicial branches struggle to rein in Dubya's excesses, recent Senate testimony on the treatment of Gitmo detainees reveals fissues within the administration's approach to the Hamdan ruling: "The testimony has shown that the Justice Department -- which had insisted on the legality of the existing policy -- is eager to sharply limit the impact of the Supreme Court's decision, while military lawyers and some other Pentagon officials are celebrating it as a vindication of their long-held concerns about U.S. detainee policy." Update: "The President is always right?" (Via Looka.)

Meanwhile, in another recent reversal -- one likely precipitated by both the Hamdan case and pending lawsuits by the ACLU and others -- the Dubya White House agrees to a deal put forth by Arlen "paper tiger" Specter that would put the NSA warrantless wiretaps to a constitutional review by the FISA court. But the trick, as many Dems have pointed out, is under this deal the FISA court would only do a general review of the wiretap program, rather than conduct the individual case-by-case reviews that the law has always demanded: "Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose 'any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate.'"

"'I gave blood,' Mr. Lewis said, his voice rising, as he stood alongside photographs of the clash. 'Some of my colleagues gave their very lives.'" Publicly embarrassed by their recent lapse into old-school "massive resistance," (and no doubt chagrined by their dismal poll numbers), the House GOP get their act together enough to pass the Voting Rights Act extension 390-33, after giving fringe right-wingers the chance to vote up or down on a few poison-pill amendments. (All failed, thanks to the Dems.) Still, several southern conservatives are not appeased: "One of the 33 holdouts was Rep. Patrick T. McHenry (R-N.C.). 'Some politicians in Washington wouldn't dare vote against this bill because they'd be lambasted by the media and liberal interest groups.'"

In a happy day for the rule of law, and following the Supreme Court's recent decision in Hamdan, the Dubya White House and Pentagon reverse themselves and announce that the Geneva Conventions will now apply to Guantanamo detainees. Yes, good news indeed...Still, given that this administration can so rarely be taken at its word, vigilance will be required to see if the treatment of detainees actually changes at all: "Neither the White House nor the Pentagon provided any immediate details as to what would be done differently or how the decision would effect the controversial policies on interrogation, which have provoked an international outcry as well as considerable domestic controversy."

In a blow to the monarchial presidency that may also affect future rulings on warrantless wiretaps and torture policy, the Supreme Court strongly rebukes Dubya for his Gitmo tribunals, declaring they "were not authorized by any act of Congress and that their structure and procedures violate the Uniform Code of Military Justice (UCMJ) and the four Geneva Conventions signed in 1949." As Justice Stephen Breyer summed it up in a concurring opinion: "The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'"

Boo hiss. The Supreme Court decides 6-3 to strike down a Vermont campaign finance law, which was conceived in part as a challenge to Buckley v. Valeo. "The result appears to doom any future efforts to impose spending limits on state or federal campaigns, legal analysts said." And, in related news, Slate's Dahlia Lithwick and Walter Derringer discuss recent Supreme Court decisions, with special attention to the recent capital punishment case, Kansas vs Marsh.

"The real question here, as with so many other programs run by this Administration, is whether they are obeying the laws we have on the books to protect Americans from unnecessary invasions of their privacy." Dubya & co. opt for the Shoot the Messenger offense once again and try to eviscerate the NYT for exposing their monitoring of banking records since 9/11. Well, sure, it's entirely possible that this surveillance has been conducted legally and with proper respect to the civil liberties of ordinary citizens, but somehow I don't think this administration has earned the benefit of the doubt.

Listen up, Cornyn: "There never was a more vicious or insidious doctrine announced for the consideration of a free people than the doctrine that our constitution or any part of it is suspended during a state of war. Our constitution was made for war as well as peace. Equally vicious is the doctrine that you must disregard the guarantees of the constitution and trample upon our civil liberties in order to save the constitution...[W]e can never get anywhere if we resort to the theory that the minority has no rights which the majority is bound to respect or that the constitutional rights of the citizen must give way to some supposed emergency. I think the greatest service the true American can render to the cause of orderly liberty is to demonstrate in this critical situation that we can deal with every confronting situation and meet every emergency without violating or disregarding to the individual citizen any of his rights under our constitution. If we have reached the point where we cannot take care of the situation without resorting to arbitrary methods, to undefined official discretion, then the enemies of this government may well say that our system has proved a failure." -- Sen. William E. Borah, "Letter to Austin Simmons," January 21, 1920.

"This is an act of desperation because they have no way to prove their innocence. A system without justice is a system without hope." Three detainees at Guantanamo commit suicide by hanging themselves in their cells, a tragedy to which the U.S. camp commander, Rear Adm. Harry Harris, responds with freakishly bizarre war-on-terror gibberish: "They have no regard for life, either ours or their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us." Say what? "'They are smart. They are creative, they are committed," he said." Um, they're dead, by their own hand, after being indefinitely detained for years. How about a little perspective here?

"'You have given up the store,' complained Sen. Richard Durbin, D-Ill., in denouncing the move. 'You're just walking away.'" Playing true to form, Arlen Specter folds yet again and reverses his earlier promise to make phone companies testify about their role in the NSA's recent data-mining. "The senator from Pennsylvania acknowledged his reversal was forced upon him by his Republican colleagues in a private session prior to the afternoon hearing."

"'He couldn't not do it,' explained Richard Viguerie, a prominent conservative activist who believes that gay marriage will not have much of an impact in 2006. 'He's got an election coming up and he is 30 percent in the polls. Nothing, Dr. Samuel Johnson told us, focuses the mind like an impending hanging.'" The conservative coalition collapsing in historic fashion around their ears, Dubya and Rove invoke an old standby and attempt to shore up the bigot vote in November by publicly coming out for the anti-gay marriage amendment. Unfortunately for them and the GOP, the same old freak-baiting trick -- however carefully worded -- doesn't seem likely to catch fire amid all the war and scandal, and the Senate, as well as GOP moderates, want none of it. Update: As expected, the Senate spike the amendment, with 2 Dems (Byrd, Ben Nelson) backing the bigots and 7 Republicans (Chafee, Collins, Gregg, McCain, Snowe, Specter, Sununu) joining the rest of the Dems in voting against the measure.

"'There's been a quiet, silent revolution going on,' Carp said in an interview. 'If you're a conservative, you're going to say, "Thank God." If you're a liberal, you're going to put your hands over your head and say it's a nightmare.'" By way of my friend Mark, CQ's Kenneth Jost laments the Dubya judiciary.

It's getting mighty strange in Washington of late, as GOP congressional leaders rise in outraged defense of pretty clearly corrupt (and stubborn) Democrat William Jefferson, claiming that an FBI search of his office violated the Speech and Debate clause of the Constitution. (Constitutional scholars seem to consider it a toss-up: "'It's really a matter of etiquette,' said Akhil Reed Amar, a professor of constitutional law at Yale University. 'I don't see any constitutional principle here.'") Funny how we can illegally spy on, indefinitely detain, and/or brutally torture people, and Congress barely bats an eye. But someone searches a congressional office and all Hell breaks loose. I wonder why...

Oh, that's why. In related news, ABC News is reporting that Casino Jack's #1 guy, GOP Speaker Dennis Hastert, is a target in the widening Abramoff investigations. And, what's more, ABC is sticking by its story even after a DOJ denial. "'You guys wrote the story very carefully but they are not reading it very carefully,' a senior official said."

"'Having been blacklisted from working in television during the McCarthy era, I know the harm of government using private corporations to intrude into the lives of innocent Americans. When government uses the telephone companies to create massive databases of all our phone calls it has gone too far.'" Author, oral historian, and American institution Studs Terkel is one of six plaintiffs to file a lawsuit against AT&T for their complicity in the NSA master phone database.

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds." In a Georgetown commencement address, new Chief Justice John Roberts expounds on his view of the job after eight months. Well, we'll see when those next few decisions come in.

"The State party should cease to detain any person at Guantanamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention." A day after an ugly prisoner uprising, the UN Committee Against Torture implores the US to close the prison at Gitmo. The report (PDF) also calls for the US "to expressly ban controversial interrogation techniques, and to halt the transfer of detainees to countries with a history of abuse and torture."

"Unlike so many of the hacks placed in charge of important government agencies during the past six years, Hayden possesses powerful qualifications for the job...By the admittedly dismal standards of the Bush administration, then, Hayden is an unusually good appointment." As former NSA head and probable CIA director-to-be Michael Hayden navigates the confirmation process (leaving all his Snoopgate-related answers for the secret session), he procures an endorsement from an unlikely source: Salon's Joe Conason: "[D]espite his military uniform, Hayden is likely to be more independent of the Pentagon and the White House than Goss was. It will help that, unlike Goss, he actually knows what he's doing." Hmmm. Update: Hayden is through committee on a 12-3 vote. (Feingold, for his part, voted no: "Our country needs a CIA Director who is committed to fighting terrorism aggressively without breaking the law or infringing on the rights of Americans."

"''When the president nominated Porter Goss [as CIA director in September 2004], he sent Goss over to get a rogue agency under control,' Steven Simon, a colleague of McCarthy's at the National Security Council from 1994 to 1999, said Goss's aides told him. Simon said McCarthy's unusually public firing appeared intended not only to block leaks but also to suppress the dissent that has 'led to these leaks. The aim was to have a chilling effect, and it will probably work for a while.'" The WP delves deeper into the firing of CIA officer Mary McCarthy last month, and discovers it may well have been due to both her opposition to secret gulags and her anger over CIA lies on the subject.

"In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. 'In other words,' Bush explained, 'one end of the communication must be outside the United States.' As a result, domestic call records -- those of calls that originate and terminate within U.S. borders -- were believed to be private. Sources, however, say that is not the case." USA Today unleashes a firestorm in Washington today after the paper uncovers a NSA plan to "create a database of every call ever made." (Q&A) "With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information."

Dubya's response? As expected, we're only going after the bad people. Nevertheless, Dems and even moderate Republicans in Congress are livid over these new revelations, to the point of possibly spiking the Hayden bid for CIA chief. For his part, Senate Judiciary Committee chair Arlen Specter says he'll chair hearings on the matter, but, really, what else is new? For all his tough talk in the past, so far he's remained a paper tiger when it comes to curbing Dubya's imperial pretensions. Still, one would think this stunning leak might breathe new life into Sen. Feingold's censure resolution, as well as strong congressional legislation that might finally help to redress this administration's startling contempt for civil liberties. After all abuse and torture, secret and/or illegal gulags, indefinite detentions without cause or charges, extraordinary rendition, and warrantless wiretaps are all one thing...but now you're hitting most Americans where they live. Update: Or not -- A new poll shows Americans surprisingly sanguine about NSA data-mining. Update 2: Or are they?

"This administration thinks they can just violate any law they want, and they've created a culture of fear to try to get away with that. It's up to us to stand up to them." In very related news, the Justice Department closes its investigation into the NSA warrantless wiretaps because the NSA denied them the necessary security clearances. "We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program...Without these clearances, we cannot investigate this matter and therefore have closed our investigation."

"The most important aspect of the president's comment isn't just that he acknowledged, at least tacitly, that Gitmo is a disaster and must be closed; or even that he acknowledged that detainees have a basic right to some adjudicatory process. These two concessions are momentous, but they pale next to his admission that he is in any way bound by the decision of the high court -- that the court will have the last word on anything to do with the war on terror." Slate's Dahlia Lithwick dissects some surprising recent comments by Dubya on Guantanamo Bay, and ponders the future of the Gitmo Gulag. "[Recent] silent mass releases do suggest that Donald Rumsfeld's famous 2002 claim, that the then-760 prisoners at Guantanamo were 'the worst of the worst,' was something of an overstatement. They were probably closer to 'the best of the worst,' or as I've suggested, 'the least lucky of the middling.' The actual worst of the worst have been relegated to a whole other secret prison system that actually makes Guantanamo look rather attractive."

"Officers are told to look for individuals who wear bulky clothing in the summer, pace back and forth, fidget with something beneath their clothing, fail to make eye contact, wear too much cologne, or have strange hair coloring. The indicators are also contradictory and inconsistent. Officers are told, for example, to look for individuals who are nervous and individuals who are calm, individuals who are overtly Muslim (those who mumble as if praying or who wear scented water for "ritual purification") and individuals who seem to hide their Muslim identity so as to blend in. In sum, the guidelines are meaningless to officers who only have a few seconds to decide whether an individual constitutes a real threat before deploying lethal force." A new report by NYU's Center for Human Rights and Global Justice finds suspect racial profiling at work in police anti-terror initiatives that can -- and does -- lead to fatal error. "The identification of suspects cannot be based on confusing indicators, or on the assumption that all Muslims, or those perceived to be Muslim, are potentially terrorists...If people can be shot on the basis of these assumptions, mistakes are bound to be made."

"When you have a deep enough infection and you just open it up a little bit and let air get to it to heal over, it will come back. It will keep coming back until you open it up and you let it heal from the inside out." The city of Waco, Texas attempts to come to terms with its local history of lynching.

I'm a bit late on this one: In an ugly confluence of several of this administration's shady dealings, CheneyCo.'s KBR/Halliburton -- its attempts at continued war profiteering faltering -- recently won a $385 million contract to build immigrant detention centers for the Dept. of Homeland Security. "The contract, which is effective immediately, provides for establishing temporary detention and processing capabilities to augment existing ICE Detention and Removal Operations (DRO) Program facilities in the event of an emergency influx of immigrants into the U.S., or to support the rapid development of new programs." Um, new programs? (By way of Supercres.)

"[Y]ou have somebody being fired from the CIA for allegedly telling the truth, and you have no one fired from the White House for revealing a CIA agent in order to support a lie. That underscores what's really wrong in Washington, D.C." Following the recent dismissal of CIA historian and Africa specialist Mary McCarthy for telling the Post about our secret gulags, several Dems, including John Kerry and Rep. Jane Harman, question the Dubya double standard regarding leaks. Update: Was it not McCarthy after all?

"These problems are getting worse, not better, and it's because the judiciary hasn't taken some simple steps to make them go away." A Post report finds ethical violations are rampant among several federal judges, usually of the conflict-of-interest or boondoggle variety. "A second set of ethical lapses involves seminars held at resorts by a Montana-based group, the Foundation for Research on Economics and the Environment (FREE). On at least six occasions from 2002 to 2004, federal judges accepted air travel, food and lodging from the libertarian foundation but did not list the gifts on their annual disclosure reports, as required by law, documents and interviews show."

"'Obviously, it's a very difficult issue and evokes a lot of emotions,' Feingold said in a telephone interview yesterday. 'I think it's something ultimately that people throughout the country will accept, but it's not an easy issue.'" Unlike many of his Dem colleagues (and potential rivals in 2008), Feingold comes out for legalizing same-sex marriage. "Feingold noted that removing the prohibition against gay marriage would not impose any obligation on religious groups. He indicated that no religious faith should ever be forced to conduct or recognize any marriage, but that civil laws on marriage should reflect the principle of equal rights under the law."

'Even if the Court were to rule in Padilla's favor,' Kennedy went on, 'his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings." By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla's dilemma has been rendered "hypothetical" now that he's been transferrred into the normal justice system.

Justice Ginsburg disagrees: "This case...raises a question of profound importance to the Nation. Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant'? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests."

"The president's consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government's case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances." Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself...as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could "find that 'conspiracy' -- the only charge against Hamdan -- does not violate the law of war."

Update: The Court hears the case, and it seems a majority -- Scalia and Alito notwithstanding -- are not amused with the Dubya administration: "Without Chief Justice John Roberts...the argument seemed lopsided against the government." Still, as was expected to be the norm on the Roberts Court,"the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy."

"Placards posted by soldiers at the detention area advised, 'NO BLOOD, NO FOUL.' The slogan, as one Defense Department official explained, reflected an adage adopted by Task Force 6-26: 'If you don't make them bleed, they can't prosecute for it.'" In related news, the NY Times exposes more allegations of shameful and disturbing Abu Ghraib-like detainee abuse conducted by "a shadowy military unit known as Task Force 6-26." "Task Force 6-26 was a creation of the Pentagon's post-Sept. 11 campaign against terrorism, and it quickly became the model for how the military would gain intelligence and battle insurgents in the future...Military and legal experts say the full breadth of abuses committed by Task Force 6-26 may never be known because of the secrecy surrounding the unit."

"'I haven't read it,' demurred Barack Obama (Ill.). 'I just don't have enough information,' protested Ben Nelson (Neb.)." As Senator Tom Harkin signs on as a co-sponsor of Russ Feingold's censure resolution -- which, word has it, is also now backed by John Kerry, Barbara Boxer, and Robert Menendez -- the Post's Dana Milbank watches the rest of our party head for the hills. "Hillary Rodham Clinton (N.Y.) brushed past the press pack, shaking her head and waving her hand over her shoulder. When an errant food cart blocked her entrance to the meeting room, she tried to hide from reporters behind the 4-foot-11 Barbara Mikulski (Md.). 'Ask her after lunch' offered Clinton's spokesman, Philippe Reines. But Clinton, with most of her colleagues, fled the lunch out a back door as if escaping a fire."

"This is clearly more serious than anything President Clinton was accused of. It is reminiscent of what President Nixon was not only accused of doing but was basically removed from office for doing." As Senator Feingold continues his lonely push for a censure resolution, the GOP go into full "soft on terror" attack mode, while most Dems -- of course -- commence to hemming and hawing. "Reid...commended [Feingold] 'for bringing this to the attention of the American people. We need a full and complete debate on this NSA spying.' Reid and Sen. Joseph I. Lieberman (D-Conn.) told reporters they wanted to examine the resolution before endorsing or rejecting it." The world is watching, Dems: Get up and fight!

"In all the years I have been on the bench, I have never seen such an egregious violation of a court's rule on witnesses." In keeping with this administration's penchant for cutting corners on civil liberties (and playing right into the hands of America's critics), the trial of Al Qaeda operative Zacarias Moussaoui, the so-called "20th hijacker," appears on the verge of mistrial after it comes out that government lawyer Carla Martin blatantly coached witnesses. Said Judge Leonie Brinkema: "This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country." Update: Slate's Dahlia Lithwick tries to explain the strange "medical malpractice" reasoning at work in this death penalty case.

"This conduct is right in the strike zone of the concept of high crimes and misdemeanors....We, as a Congress, have to stand up to a president who acts like the Bill of Rights and the Constitution were repealed on Sept 11." On This Week, Senator Feingold calls for a censure of Dubya for, "openly and almost thumbing his nose at the American people," continuing the NSA warrantless wiretaps. (The censure resolution is here.) Catkiller Frist -- flush from his straw poll win over the weekend -- responded by calling the censure a "terrible, terrible signal" to give the evildoers. It's "terrible" to show respect for the rule of law? Get real. It's about time somebody in the AWOL Senate stood up to this administration's repeated abuses of power. Update: Feingold writes more on the censure. (Via Medley.)

"It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings." Former Justice Sandra Day O'Connor goes after judge-bashers on the right, quoting very intemperate remarks by Boss DeLay and Sen. John Cornyn. Kudos to her, although, as Ed ranted earlier today, this is all coming a bit late, isn't it? I mean, where were Justice O'Connor's concerns about avoiding such ends when she became the swing vote on Bush v. Gore (arguably for dubious personal reasons)? Like her fellow Arizonan John McCain, Justice O'Connor talks nice about standing up to right-wing power-grabs. But, also like McCain, when it was her turn to face them down, she didn't walk the walk.

"Far from 'reasserting responsibility and oversight,' Congress is putting itself out of business. Sen. Jay Rockefeller, D-W.Va., suggested that, after this week, the intelligence committee will sink 'further into irrelevancy.' The Times went a step further today and declared the committee dead." Century Foundation fellow Patrick Radden Keefe takes issue with the Pat Roberts "compromise" over the NSA's warrantless wiretaps.

By way of a friend, the State Department releases its mandated yearly human rights report for 2005 (here), finding cause for alarm in Iran, Russia, China, Venezuela, Burma, North Korea, Belarus and Zimbabwe and (surprise, surprise) progress in Iraq and Afghanistan. The report doesn't delve into human rights violations here at home (although China tries to fill that gap in response every year), but it does unequivocally state -- in bold, no less -- that "countries in which power is concentrated in the hands of unaccountable rulers tend to be the world's most systematic human rights violators." Hey y'all might be on to something. Deadpans the head of Amnesty International: "The Bush administration's practice of transferring detainees in the 'war on terror' to countries cited by the State Department for their appalling human rights records actually turns the report into a manual for the outsourcing of torture."

Conservative judicial nominee James Payne, whom Salon's Will Evans outed as corrupt this past January, withdraws his name from contention for the bench...or has it withdrawn. "A Senate confirmation hearing for Payne that would have been likely to highlight the ethical problems...could have proved embarrassing to the Bush administration, Oklahoma's Republican senators James Inhofe and Tom Coburn -- who have backed Payne so far -- and the judge himself."

"'The committee is, to put it bluntly, basically under the control of the White House through its chairman,' [Senator Jay Rockfeller (D-WV)] told reporters. 'At the direction of the White House, the Republican majority has voted down my motion to have a careful and fact-based review of the National Security Agency's surveillance eavesdropping activities inside the United States.'" Once again, on a party line vote and at the behest of Chairman Pat Roberts (by way of the Dubya administration,) the GOP members of the Senate Select Committee on Intelligence vote down an investigation into the NSA warrantless wiretaps....meaning presumed committee moderates Olympia Snowe and Chuck Hagel buckled under pressure again.

And, speaking of buckling under pressure, the House pass the Patriot Act 280-138. "'I rise in strong opposition to this legislation because it offers only a superficial reform that will have little if any impact on safeguarding our civil liberties,' [Congressman Dennis] Kucinich said...'Congress has failed to do its job as a coequal branch of government...The administration's attack on our democracy has to be reigned in.'"

"I am only a chicken farmer in Pakistan." With the recent release of detainee names, the NYT looks more closely at exactly who's being held at Guantanamo Bay, including several folks, it seems, who were guilty of the heinous crime of wearing the wrong timepiece, a "Casio model F-91W watch. According to evidentiary summaries in those cases, such watches have 'been used in bombings linked to Al Qaeda.'"

As Randy "Duke" Cunningham faces sentencing today, federal investigators take a closer look at his connections to the Counterintelligence Field Activity (CIFA), "the Pentagon's newest and fastest-growing intelligence agency." "In pre-sentencing documents filed this week, prosecutors said that in fiscal 2003 legislation, Cunningham set aside, or earmarked, $6.3 million for work to be done 'to benefit' CIFA shortly after the agency was created. The contract went to MZM Inc., a company run by Mitchell J. Wade, who recently pleaded guilty to conspiring to bribe Cunningham." Update: 8 years, 4 months.

"'These allegations...describe disgusting treatment, that if proven, is treatment that is cruel, profoundly disturbing and violative of' U.S. and foreign treaties banning torture, [U.S. District Judge Gladys] Kessler told the government's lawyers." So what happened to "we don't torture?" Lawyers for the administration fight allegations of abuse at Gitmo (involving force-feeding and a restraint chair) -- not by saying it didn't happen -- but by arguing instead that the recent McCain bill doesn't apply there. "'Unfortunately, I think the government's right; it's a correct reading of the law,' said Tom Malinowski, Washington advocacy director for Human Rights Watch. 'The law says you can't torture detainees at Guantanamo, but it also says you can't enforce that law in the courts.'"

"I did not and could not address...any other classified intelligence activities." In a letter clarifying his recent Senate testimony on the NSA wiretaps, Attorney General Alberto Gonzales hints at a broader warrantless spying program than has yet been acknowledged. "'It seems to me he is conceding that there are other NSA surveillance programs ongoing that the president hasn't told anyone about,' said Bruce Fein, a government lawyer in the Nixon, Carter and Reagan administrations." Update: Gonzales tells Jane Harman that's all there is.

The Bush administration loves it, but many Justice Dept. officials think it's illegal...Now, it's the Supreme Court's turn to weigh in on Boss DeLay's gerrymandering plan in Texas. "Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map." (Rehnquist and O'Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.

"'The die has now been cast,' acknowledged the law's chief opponent, Sen. Russell Feingold, D-Wis....'Obviously at this point, final passage of the reauthorization bill is now assured.'" As expected, most Senate Dems -- no doubt aiming to protect their national security flank in the upcoming elections -- join in voting 84-15 to end another Feingold filibuster, thus sending the barely-revised Patriot Act along for likely passage. "'No one has the right to turn this body into a rubber stamp,' said Feingold, the leading opponent of the law in Congress. 'The White House played hardball and the decision was made by some to capitulate.'" Good God, our party is pathetic at times. Update: The Senate passes the Patriot Act, 89-10.

Arlen Specter, who has clearly given up on his oversight and impeachment talk of a few short weeks ago, tries at least to bring future NSA wiretap inquiries before the FISA court. Meanwhile, the White House nixes a call by 18 House Dems to appoint an independent counsel to delve into the NSA matter, opting instead for more of their patented Shoot-the-Messenger defense: "'I think that where these Democrats who are calling for this ought to spend their time is on what was the source of the unauthorized disclosure of this vital, incredible program in the war on terrorism,' White House spokesman Scott McClellan said. 'I really don't think there is any basis for a special counsel. ... But the fact that this information was disclosed about the existence of this program has given the enemy some of our playbook.'"

Something wicked this way comes: Bucking to challenge Roe v. Wade in the Roberts court, the pro-life South Dakota legislature pass a bill outlawing abortion (with no exceptions therein for rape, incest, or non-fatal threats to the mother's health), and it seems pro-life Gov. Mike Rounds will sign it. On the bright side, even many pro-lifers doubt the Dakota bill will pass constitutional muster -- "'If you're just reading the law as it stands now, South Dakota's law doesn't really stand any chance under Roe or Casey . I have to agree with those who think it's remote,' said Chuck Donovan, executive vice president of the Family Research Council and a former lobbyist for the National Right to Life Committee." Update: Mississippi follows suit.

"It is also worth noting that much of this reclassification is being conducted by junior officers, or in many cases private contractors who know nothing about the historical context of these documents and nothing about whether the contents are sensitive or innocuous. One military historian told me that some of these junior contractors have been instructed simply to reclassify anything bearing the words 'atomic' or 'restricted data,' regardless of what else the documents might or might not contain." Fred Kaplan offers up more info on the highly suspect re-classifying program currently underway at the National Archives.

"America, your head's too big, because, America, your belly's too big, and I love you, I just wish you'd stay where you is." Oops...watch yourself, Morrissey. On the eve of a new album, the former Smiths frontman says the FBI and British Intelligence have come 'round his door.

'If anything, Stevens's influence has grown in recent years. He has a knack for building coalitions across ideological lines, and he makes shrewd use of his prerogatives as the senior associate justice. It is largely because of him that a court with seven Republican-appointed members, and nominally headed by a conservative, Chief Justice William H. Rehnquist, produced a string of relatively liberal results in recent cases." The Post's Charles Lane profiles the Court's Supreme lefty and history's third-oldest justice, John-Paul Stevens.

The WP surveys the recent White House campaign to prevent Senate oversight into the NSA wiretaps. "Hagel and Snowe declined interview requests after the meeting, but sources close to them say they bridle at suggestions that they buckled under administration heat." Well, then, Senators, what do you want to call it?

"It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism...The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them...let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield." -- George Washington, Farewell Address, 1796.

"Whenever I hear any one arguing for slavery I feel a strong impulse to see it tried on him personally." -- Abraham Lincoln, "Speech to One Hundred Fortieth Indiana Regiment" (March 17, 1865)

"Few men have virtue to withstand the highest bidder." -- George Washington

"It is said an Eastern monarch once charged his wise men to invent him a sentence to be ever in view, and which should be true and appropriate in all times and situations. They presented him the words: 'And this, too, shall pass away.' How much it expresses! How chastening in the hour of pride! How consoling in the depths of affliction!" -- Abraham Lincoln, "Address Before the Wisconsin State Agricultural Society, Milwaukee, Wisconsin" (September 30, 1859)

"[T]errorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the 'sole organ for the nation in foreign affairs.'" From the Right, George Will makes the conservative case against Dubya's "monarchical" pretensions regarding the NSA wiretaps. (Via Cliopatria.)

"We've always said that Guantanamo Bay was something that shouldn't have happened." A report by the UN Human Rights Commission argues that the US should shut down the Gitmo gulag immediately, a conclusion shared by Kofi Annan and -- apparently -- the British government. As to be expected from this gang, the White House is shrugging the criticism off.

"Treason is a strong word, but not too strong to characterize the situation in which the Senate is the eager, resourceful, and indefatigable agent of interests as hostile to the American people as any invading army could be." As feared -- the Senate GOP, including supposed "moderates" Snowe and Chafee -- vote down hearings into the NSA wiretaps. And also as feared, the Senate Dems completely collapse on the Patriot Act renewal, joining the Republicans to end the Feingold filibuster 96-3. (Only Robert Byrd (D-WV) and Jim Jeffords (I-VT) sided with Russ.) So, with the Senate in effect abdicating its responsibilty as an independent and coequal branch of government, it looks like it'll be up to the judiciary to check Dubya's executive powergrab.

To the consternation of the Dubya administration, the Sydney Morning Herald posts more horrifying and previously unpublished pictures from Abu Ghraib. (Warning: They're grisly, as you might expect.) Why doesn't Cheney want to ban this flagrantly unAmerican behavior again? He must realize this type of national disgrace makes us hypocrites before the world. [First seen at Ed Rants/Blivet.] Update: Walter Shapiro: "Abu Ghraib is not an issue of partisan sound bites or refighting the decision to invade Iraq. Grotesque violations of every value that America proclaims occurred within the walls of that prison." Salon has more.

"It took a long time for Democrats to step up and challenge the administration's baseless assertions that the Patriot Act could not be changed without threatening the security of the American people. When we finally did so, when we decided to make the case that we can fight terrorism and protect our American principles at the same time, it looked like Democrats were finally ready to stand on principle and offer strong leadership. Instead, too many Democrats have folded, and momentum for critical changes to the Patriot Act to protect our freedoms has been squandered." In Salon, an angry Russ Feingold calls out his party for capitulating on the Patriot Act extension. Ugh. Are the Democrats irreparably broken at this point? Does our party leadership lack all conviction? At this point, the evidence is piling up against them, and, if we don't get our act together, we're going to lose our best chance in a decade to take back Congress this November. Update: Feingold filibusters alone.

"'I can't believe I'm in a conservative hall listening to him say [Bush] is off course trying to defend the United States,' Sorcinelli fumed." As a result of his questioning Dubya's NSA powergrab, right-wing civil libertarian Bob Barr finds himself persona non grata at the annual Conservative Political Action Conference. Similarly in the doghouse with the powers-that-be is right-wing pollster Frank Luntz, due to a longstanding feud with John Boehner -- Luntz backed the wrong horse in '98. And, speaking of Boehner, the new Majority Leader is apparently causing mild tremors along another GOP faultline, the one between evangelicals and pro-business stooges. (Boehner numbers among the latter.) Could this all be the prelude to a '06 crack-up of '94 proportions?

As critics in both parties poke more holes in Dubya's flimsy NSA defense, Republican congresswoman Heather Wilson of New Mexico, chairwoman of the House Subcommittee on Technical and Tactical Intelligence, calls for a "complete review" of Dubya's wiretapping program.

The Specter hearings into the illegal NSA wiretaps begin, and, so far despite Specter's tough talk on Sunday, they've been pretty much a sideshow. For one, as they did with Big Oil, the GOP ensured by a 10-8 party-line vote that Gonzales didn't have to testify under oath. For another, Gonzales has been falling back on the ridiculous Article 2 defense and saying little of import as of yet. Still, at least Republicans like Specter and Lindsey Graham are joining Feingold and others in calling out the administration's dubious rationale for the Imperial Presidency, so perhaps these hearings may be of some service yet. Update: As the NYT points out, we've been here before. Update 2: Dahlia Lithwick is not amused.

Despite well-publicized concerns in their own Justice Department (which were overruled by senior officials), the White House rides to the rescue of Boss DeLay's troubling redistricting plan by filing an amicus brief before the Supreme Court. "DeLay's efforts on behalf of the plan resulted in his being admonished by the House Ethics Committee and indicted on charges of illegally diverting money to the campaigns of state legislators who drew the new map."

"Hate is too great a burden to bear. It injures the hater more than it injures the hated." Coretta Scott King, 1927-2006. Said Rep. John Lewis today, ""She was the glue that held the civil rights movement together."

Well, That's that, then. Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy: Please take your vitamins.

I already mentioned this in the Feingold post below, but it merits its own space: The brief Alito filibuster is already over, with nineteen Dems voting for cloture. There are a lot of blogs calling for the heads of the "Vichy Dems" right now, and, true, they're not looking too good right now. But, frankly, neither is anyone else. The whole thing reeks of mismanagement and rank opportunism across the party.

I'm with Walter Shapiro: "In hindsight, the battle was effectively over after the first day of the Senate hearings when the criminally verbose Judiciary Committee Democrats failed to sustain a clear and consistent anti-Alito argument with all those cable networks broadcasting live. When politicians and interest-group leaders know that they are going to lose, they automatically retreat to a can-I-get-anything-out-of-the-wreckage calculus. So moderate senators from red states like South Dakota's Tim Johnson decide that they can buttress their independent credentials with home-state conservatives by supporting Alito, since the outcome would be the same no matter how he voted. Groups like People for the American Way realize that shrill calls for a filibuster might preserve their fundraising base even if their years of urgent appeals to prevent a right-wing Supreme Court takeover failed to change a single Senate vote. And Kerry -- whose late entry into the anti-Alito fray can be partly excused by his not serving on the Judiciary Committee -- is also aware that such dramatic gestures help him maintain an up-to-date, ready-for-'08 e-mail list of Democratic activists."

At any rate, the silver lining of this judicial nightmare (other than Judge Kennedy's potential unpredictability) is that tomorrow, after Alito is voted through and Dubya gives his State of the Union, the GOP are officially out of good news. From tomorrow on, all the stories on tap, the continuing Iraq quagmire notwithstanding, are hearings and investigations -- into the NSA wiretaps, into Abramoff, into Plamegate, into Katrina. So let's pick ourselves up off the floor and get it together -- We've got serious questions to ask of this administration, and, more importantly, we've got ourselves an election in nine months.

With a tip-off from the Progressive Patriots Fund, I had the opportunity yesterday to catch Sen. Russ Feingold speak on the Patriot Act and the NSA wiretapping scandal over at Cardozo Law School. (Their pics are a lot better than mine -- I forgot to charge my batteries, and thus only got in 2 or 3 shots before my camera died on me.) And how was he? Well, all-in-all, he came off as a convincing candidate for the election ahead, as well as an impressive, informed, and personable fellow. To be honest, I found his remarks a bit lawyerly (then again, he's a lawyer speaking before a law school, so that's not really a fair criticism), but, taken in full, he seemed a committeed progressive and a refreshingly candid leader, the type of dynamic, independent thinker the Senate should be teeming with, if the system came anywhere close to working these days.



The gist of Sen. Feingold's remarks was thus: Al Qaeda is the central threat facing America and has been since 9/11. Yet, instead of bringing the nation together to eliminate this terrorist organization, the Dubya White House has chosen time and time again to endanger our national security and compromise our most fundamental American values for their own ideological or power-hoarding purposes. (Iraq, Guantanamo, extraordinary rendition, secret gulags, you name it.) Along those lines and as we now all know, the Patriot Act, which only Feingold voted against in 2001, contains some terrible provisions therein, the most notorious example affecting Middle America being Section 215 (which gives law enforcement, among other things, the right to see what you've been reading.)

Yet, as per the norm, Dubya has refused to admit that it's even possible that something might be wrong with the Patriot Act now that it's up for renewal -- only that it's necessary to defeat the evildoers and that any microscopic change in the statute could rend the fabric of freedom irreparably. (Despite this now-somewhat hoary ploy, Feingold and others have succeeded in blocking a permanent blanket extension for now, as y'all know if you've been visiting here lately.) And, of course, Dubya has taken this same tack of obfuscation and fear-mongering to cover up his brazen wiretapping power-grab -- which, according to Congress's own research arm, broke at least two laws and counting.

Again, this story is not news to many Dems out there, but Feingold laid it out in clear, comprehensible, and systematic fashion. (The only "breaking news" made was the Senator announcing this letter to Gonzales, asking him why he, in effect, lied to the Judiciary Committee during his confirmation hearings about the NSA wiretaps.) And he had some good lines throughout -- In reply to Rove's ridiculous claim that Dems were "pre-9/11", Feingold quipped that the GOP suffered from a "pre-1776" mentality these days. (He also retold the recent Patrick Henry exchange.) To be honest, I'd liked to have heard more in this vein -- In terms of breaking down the legislative legerdemain and legal issues at hand, Feingold was superb. But I thought the speech needed more narrative sweep and rhetorical grandeur, more explanation of why this battle matters so much to the workings of the republic. He doesn't have to turn into Robert Byrd overnight. Still, I thought the remarks could have benefited from more dramatic heft and historical resonance: Jefferson, Madison, Adams, Lincoln, Wilson...they're all relevant here. (Then again, as I said above, I was an historian sitting in a room full of lawyers, so I was a tougher sell than most.)

Along those lines, if there was a problem with this presentation, it's that the Senator, while clearly outraged, at times seemed much less livid about all this than many in the audience, who occasionally sounded ready to hoist the black flag. (In fact, many will no doubt be happy to hear that Feingold was asked twice "why Democrats are so lame." As he noted (and as the blogosphere can attest this week), if a crowd in New York City is this irate with the party, the Dems might be in serious trouble nationwide in November. Still, he also emphasized that the Democrats could be more effective fighters if they actually controlled a house of Congress -- You can't hold hearings if you're in the minority.

In terms of other questions, Feingold said he supports and will take part in the very late-developing (and now already defunct) Alito filbuster (Roll Call.) In fact, he thought the Dems made a crucial mistake in capitulating to the original "Gang of 14" compromise, arguing cogently that Dems have seen nothing for it and may well have had the votes to win Catkiller's game of nuclear chicken. Since Casino Jack and lobbying reform seemed too big a subject to address competently in the time allotted, I asked him a question about his thoughts on the NYT decision to spike the NSA story for a year, his general view of the mass media's performance in serving as a check on these types of executive abuses, and ('cause it seemed apropos) his thoughts on the burgeoning blogosphere's role in all this. He didn't really go after the Times decision, and said that, in terms of the recent Patriot Act debate, he thought the press had actually done an ok job. Regarding blogs, he called the Internet "a miracle for populist politics," which was a good enough soundbite that everyone in my row dutifully wrote it down at the same time.

And, of course, Sen. Feingold was asked -- a couple of times -- whether or not he was running for President in 2008. Naturally, he played it coy -- After all, we still have just under two years before the Iowa caucus. But, for what it's worth, I was impressed by him -- He's not a first-class emoter like Edwards or Clinton, of course. Instead, he comes across as a highly intelligent, capable, and nuanced thinker, a la Bradley, Kerry, or Gore on his better days. But unlike those three, he also seemed much more comfortable in his own skin, more naturally himself at the podium, and -- most importantly -- more content to play the maverick if his lefty principles dictate thus. (Although, as I said, I'd like to see him tone down the lawyer-ese and rev up more Wellstone-ish fire if he does make a White House run.) I suppose there's a small, bordering-on-infinitesimal chance that Rodham Clinton, Biden, Warner, or someone else might drop all the "New Democrat" protective camouflage this time around and begin loudly and undefensively proclaiming progressive principles to the Heavens. But, until that unlikely event, my candidate in the 2008 Democratic primary is Senator Russ Feingold of Wisconsin. (Update: 1776 link via Medley.)

"This extremity of Bush's position emerges most clearly in a 42-page document issued by the Department of Justice last week. As Andrew Cohen, a CBS legal analyst, wrote in an online commentary, 'The first time you read the "White Paper," you feel like it is describing a foreign country guided by an unfamiliar constitution.' To develop this observation a bit further, the nation implied by the document would be an elective dictatorship, governed not by three counterpoised branches of government but by a secretive, possibly benign, awesomely powerful king." As Dubya embarks on another weeklong campaign of fear and distortion (as per standard Rovian operating procedure), Slate's Jacob Weisberg gapes at the audacity of Bush's brazenly unconstitutional ploy for power. "[I]n his white paper, Bush as much as declares: 'I determine what my words mean and I alone determine what yours mean, too.'...Bush's message to the courts, like his message to Congress, is: Make way, subjects."

In related news, Senate opposition to the Patriot Act -- All the Dems and only four measly Republicans -- seems to be holding firm for now, meaning that the old, unrevised version will remain in effect for the time being. Of course, if King George actually possessed the powers he's arrogantly allocated to himself of late, there would be no need for a Senate vote on the Patriot Act at all. Hopefully, Arlen Specter understands the danger in these breathtaking assertions of unconstitutional power by Dubya, and will make his forthcoming Senate Judiciary hearings count for something. After all, given this administration's blatant power grab, it's no longer hyperbole to say that our republic is at stake.

"Judge Alito's record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court's work." Although the Senate Judiciary Dems (including Feingold) lined up against him, Sam Alito made it out of committee on a 10-8 party-line vote. Now, with his nomination before the full Senate, and with Nebraska Dem Ben Nelson joining the GOP majority, it seems, unfortunately, that the "worst nightmare of liberal democrats" will come to pass, and Alito will join the Roberts court. (For what it's worth, Nelson wasn't alone in his apostasy: Santorum challenger Bob Casey also came out for the judge.) Well, let's hope Justice Alito takes a less forgiving look at executive encroachment than has Judge Alito. (Casey link via Medley.) Update: While the NYT says filibuster, Dems Robert Byrd and Tim Johnson back Alito. (Of course, if the NYT hadn't sat on the NSA story for a year, perhaps we could have nipped Alito in the bud back in November 2004.)

"The voting section is always subject to political pressure and tension. But I never thought it would come to this...I was there in the Reagan years, and this is worse." With the help of former career officials who've resigned in disgust, the Post delves deeper into the partisan corruption of the Justice Department's Civil Rights Division on Dubya's watch. "The Bush administration has...initiated relatively few cases under Section 2, the main anti-discrimination provision of the Voting Rights Act, filing seven lawsuits over the past five years -- including the department's first reverse-discrimination complaint on behalf of white voters...By comparison, department records show, 14 Section 2 lawsuits were filed during the last two years of Bill Clinton's presidency alone."

And, in related news, Salon's Will Evans uncovers a crooked Dubya-appointed federal judge, James Payne of the 10th Court of Appeals. Apparently Judge Payne "issued more than 100 orders in at least 18 cases that involved corporations in which he owned stock," which, obviously, is illegal. "'There's no wriggle room here,' says professor Stephen Gillers, a scholar of legal ethics at the New York University School of Law. 'It's not just an ethics rule, it's a congressional statute -- a law.'" Little wonder the administration is running scared from pics of Casino Jack -- they've already got the stink of Abramoff-style cronyism and corruption all over them.

""The curtain got pulled aside, and there's not even a wizard behind it...these people are incompetent." As you probably heard, Karl Rove emerged from hiding to offer his blueprint for Republican resurgence in 2006. Yep, you guessed it: terror, terror, terror, 9/11, 9/11, 9/11, garnished with a smattering of tax cuts. But, to their credit, it sounds like Dems are relishing this coming fight, with Intelligence Committee Dem Jane Harman pushing back once more on the illegal wiretaps, and, in keeping with the recent trend of presidential also-rans finding their voice, John Kerry taking off the gloves on the Sunday shows. "Osama bin Laden is going to die of kidney failure before he's killed by Karl Rove and his crowd."

"While it's true that O'Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it's also true that in other extremely contentious areas, it is Kennedy, not O'Connor, who has swung the court leftward." As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick -- who is concerned about Alito's judgment in the relatively precedent-less world of anti-terror-law -- gives us hope for the Court's future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)

The non-partisan Congressional Research Service finds -- again -- that Dubya's warrantless wiretapping was illegal. In this case, the Dubya White House violated the 1947 National Security Act, by neglecting to inform the entire House and Senate intelligence committees of their shenanigans. Put it in the impeachment file, Sen. Specter.

"The president of the United States has been breaking the law repeatedly and insistently...A president who breaks the law is a threat to the very structure of our government." I've had my issues with the guy, but, y'know, when he's right, he's right. As the ACLU and Center for Constitutional Liberties plan lawsuits against the NSA wiretaps, a revived Al Gore calls out Dubya on Snoopgate (Transcript.) Interestingly enough, "Gore was supposed to have been introduced, using a video link, by former congressman Robert L. Barr Jr. (R-Ga.) -- a bitter adversary of Gore and President Bill Clinton during the 1990s who now shares Gore's concern over the surveillance program. That strange-bedfellows moment was thwarted by a technological breakdown."

The (somewhat perfunctory) hearings are over, and -- despite several "quiet bombshells" and troubling evasions, it appears likely that Sam Alito will be confirmed to the court as expected. Well, hopefully the purported liberalizing influence of the Court will work its mojo on Alito, although that's not a very comforting peg on which to hang one's hat. (Another perhaps equally unlikely possibility which I've heard discussed recently is that Roberts, not Alito, will become the new swing vote. One can only hope.)

Didn't we just do this? Well, regardless, the Senate Confirmation hearings for Sam Alito are now underway. Given his dubious paper trail, his conflict-of-interest on the books, the recent disclosures about Dubya's imperial pretensions and the possibility of a Dem filibuster, Sam "Scalito" Alito looks to have a tougher road ahead than John Roberts. But, who among the GOP, other than possibly Arlen Specter, might vote against him? Barring a Borkish meltdown before the Senate Judiciary, or, unlikelier still, an uprising over the issue of presidential power, I'd be surprised (but not at all dismayed) if Alito isn't nominated to the bench, particularly with the public (slightly) behind him. That being said, having freakshow GOP pro-lifers like Sam Brownback and Tom Coburn froth at the mouth over Roe v. Wade probably isn't doing Alito any favors in the court of public opinion. Update: Alito's opening statement: Aw shucks, I'm just a humble, regular, working-class guy from Jersey, and in no way a scary conservative (although I do really dislike 60's liberals.) Update 2: Slate's Dahlia Lithwick weighs in.

"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here,' the authors of the CRS report wrote. The administration's legal justification 'does not seem to be...well-grounded.'" A 44-page nonpartisan report by the Congressional Research Service finds Dubya's dubious reliance on presidential prerogative to explain away the NSA wiretaps doesn't hold up.

With most of their arguments already rendered false or nonsensical, "Big Time" Dick Cheney invokes an old standby to justify the illegal NSA wiretaps (which, it turns out, may have begun before White House authorization): 9/11, 9/11, 9/11. And, also in the King George department, Dubya in effect announces he'll bypass the new torture ban whenever he feels like it. Says one legal expert: "The signing statement is saying 'I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.'" (Media Matters link via Looka.) Update: The FISA court judges want answers, and a possible NSA whistleblower steps up.

Unable to defeat the Feingold-led filibuster, the Senate GOP instead decide to punt with a six-month extension of the Patriot Act. Dubya originally said he'd veto a three-month stopgap, and the Republicans have been fervently against previous Democratic calls for a temporary extension...but at this point it sounds like the White House and GOP will take what they can get. (Feingold's reaction: It's "a victory for the American people.") Update: Make that a month.

"'The fact is, the federal law is perfectly clear,' Turley says. 'At the heart of this [NSA wiretap] operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment.'" Salon's Michelle Goldberg assesses the current political temperature for Dubya's impeachment. "'For Republicans to suggest that this is not a legitimate question of federal crimes makes a mockery of their position during the Clinton period. For Republicans, this is the ultimate test of principle.'" Update: Slate's Dahlia Lithwick also muses on Dubya's distaste for the rule of law.

Passed over thrice for a Dubya high court nomination, conservative appeals court judge J. Michael Luttig today got the chance to exercise his wrath upon the administration in a decision regarding Jose Padilla, and for good reason. "The appeals court opinion reflected a tone of anger that is rare for a federal court addressing the United States government...Luttig said the government's actions created the appearance 'that the government may be attempting to avoid' Supreme Court review in a matter of 'especial national importance.' He also suggested that the government's actions in the Padilla case may possibly have had negative consequences for 'the public perception of the war on terror' and 'also for the government's credibility before the courts in litigation ancillary to that war.'"

"What I've heard some of the judges say is they feel they've participated in a Potemkin court." Allegedly in protest over Dubya's illegal use of wiretaps, US District Judge James Robertson resigns from the Foreign Intelligence Surveillance Court (or FISA court.) Meanwhile, the NYT reports that, despite what the administration is saying, some purely domestic calls were overheard via Dubya's warrantless wiretaps.

Is the FBI searching for Al Qaeda...or the Army of the 12 Monkeys? In yet another example of scary overreaching by intelligence organizations of late, the ACLU disclosed today that the FBI has been spying on several innocuous activist organizations since 9/11, including PETA, Greenpeace, and the Catholic Workers' Group.

Team Dubya spent the weekend on the offensive regarding the recent disclosure of illegal NSA wiretaps, with Bush saying over and over again that disclosing the wiretaps was "a shameful act" that "damage[d] our national security." Sheah. That Dubya and his cronies would try to pass off these egregious violations of civil liberties and due process with more dissent is disloyalty garbage (and a frisson of 9/11, 9/11, 9/11) speaks once again to how corrupt and out-of-control this administration has become. Let the investigations commence. Update: Newsweek's Jonathan Alter weighs in: "Bush was desperate to keep the Times from running this important story -- which the paper had already inexplicably held for a year -- because he knew that it would reveal him as a law-breaker...If the Democrats regain control of Congress, there may even be articles of impeachment introduced."

"I don't want to hear again from the attorney general or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care." Aided by today's shocking revelation that the NSA has been monitoring thousands of international calls without a warrant since 2002, a group of Senators led by Russ Feingold -- and including four Republicans (Craig, Hagel, Murkowski, and Sununu) -- succeed in defeating an extension of the Patriot Act. At this point, I might as well put a Feingold 2008 banner over on the sidebar -- Ever since the McCain-Feingold days, the Senator from Wisconsin has continued to rise in my esteem, and this once again proves his mettle as our most forthright and committed progressive standard-bearer. Bravo!

An ugly day for American values around the world: In Iraq, an investigation inaugurated after the recent discovery of secret prisons in Baghdad uncovers at least 120 victims of torture and/or abuse in prisons run by the new Iraq Interior Ministry. "Prisoners had their bones broken and their fingernails pulled out, were subjected to electric shocks and had burning cigarettes crushed into their necks and backs, said the Iraqi official." And, elsewhere, a European investigation suggests that the CIA were in fact holding prisoners illegally in Europe, until they were surreptitiously moved to North Africa after the story broke. Charming. So is this what Dubya meant when he said "we are determined to show the meaning and promise of liberty" to the world? If so, I'd remind him of the Lincoln quote he used in the same inaugural address: "Those who deny freedom to others deserve it not for themselves; and, under the rule of a just God, cannot long retain it."

Ten days after the Post unearthed a Justice Department memo deeming the recent Texas redistricting a violation of civil liberties, the Supreme Court says it will review the DeLay plan. "The panel stressed that it was deciding 'only the legality' of the redistricting plan, 'not its wisdom.'"

Another smoking gun...The Post obtains a memo showing that Justice Department lawyers generally agreed that the infamous DeLay redistricting in Texas violated the Voting Rights Act. "The memo, unanimously endorsed by six lawyers and two analysts in the department's voting section, said the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts. It also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections." Nevertheless, higher-ups at John Ashcroft's Justice Dept. overruled the memo for partisan reasons, to great effect: "The redistricting was approved in 2003, and Texas Republicans gained five seats in the U.S. House in the 2004 elections, solidifying GOP control of Congress." As the illegalities pile up, one has to wonder: Is there any facet of the Republican operation that isn't rotten to the core?

As the State Department stalls for time, the European Union considers suspending the voting rights of those member nations which were home to secret CIA gulags. (Human Rights Watch has said that Poland and Romania are the most likely suspects, although many other nations may have witnessed CIA flights go to and fro.)

"It almost doesn't matter whether withdrawing or redeploying the troops is a good idea; it's simply going to happen because there is no way for it not to happen (short of a major act of political will, such as reviving the draft or keeping troops on the battlefield beyond reasonable endurance). This is what Murtha meant when he told Russert, 'We're going to be out of there, we're going to be out of there very quickly, and it's going to be close to the plan that I'm presenting right now.' Cutting through the congressional anger and the "cut and run" cheapshots, Slate's Fred Kaplan explains exactly what John Murtha called for last week, and why. "John Murtha's proposal leaves open a lot of questions, but -- seen for what it really says, not for how it's been portrayed -- it's a start."

"I was trying to escape. Obviously, it didn't work." If it's any consolation, Dubya, we all feel just as trapped. In one of those resounding visual metaphors that capture a presidency and that life occasionally kicks up for all to see (the last one being Dubya's fiddling during Katrina), our leader gets stymied by a locked door while trying to evade a reporter's questions about his China trip (which were pretty softball, given all the things he could've been asking these days.)

In somewhat related news, in the relatively sanguine Post story about the door incident, the following depressing information is included: "In five years in the presidency, Bush has proved a decidedly unadventurous traveler...As he barnstormed through Japan, South Korea and China, with a final stop in Mongolia still to come, Bush visited no museums, tried no restaurants, bought no souvenirs and made no effort to meet ordinary local people...[Laura Bush] once persuaded him to go to the Hermitage Museum in St. Petersburg, only to see him burn through the place in 30 minutes. He dispensed with the Kremlin cathedrals in Moscow in seven minutes. He flatly declined an Australian invitation to attend the Rugby World Cup while down under."

"This was a huge 'Congress getting into the ballgame' week,' Mr. Graham said. Mr. Warner said wryly, 'You know, Congress is a co-equal branch.'" Well, make no mistake: They're no Clay, Calhoun, and Webster. Still, the NYT takes a gander at the self-named "Little Triumvirate" of John McCain, Lindsey Graham, and John Warner, three "Gang of 14" members who've become the locus of GOP discontent with Dubya in the Senate.

Apparently the House and Senate have decided on a compromise over the Patriot Act, one that will theoretically reduce the disturbing number of FBI terrorism inquiries via fuller reporting. The bill is now being put on the fast track by the GOP, so as to give Dubya a much-needed boost on his terror credentials, which means the Patriot Act, warts and all, may be made permanent by Thanksgiving. Update: Feingold leads a bipartisan charge against the bill.

Another week, another secret torture center...anyone else sensing a pattern? Tensions in Iraq simmer to a boil as a secret prison holding 173 Sunnis is uncovered in Baghdad. "The discovery...created a new aura of crisis for American officials and Iraqi politicians who hold power in the Shiite-led transitional government. For many Iraqis, the episode carried heavy overtones of the brutality associated with Saddam Hussein and his Sunni-dominated government."

Whatsmore, the head of the Badr Organization, a Shiite militia suspected of pulling the strings and wielding the implements in this center, says: "This bunker is run by the Interior Ministry, the Americans are there every day." Whether or not that's true (and for the love of Pete, let's hope not), it's obvious that recent events, from Abu Ghraib to the Frist-sanctioned CIA black sites to the al-Jamadi murder, have seriously damaged our credibility as opponents of torture, in this prison and around the world.

"I am particularly proud of my contributions in recent cases in which the government argued...that the Constitution does not protect a right to an abortion." An unearthed 1985 job application by Sam Alito is chock-full of scary quotes by the Justice-nominee. "In the document, Alito said he drew inspiration from the 'writings of William F. Buckley, Jr., The National Review and Barry Goldwater's 1964 campaign.' 'In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment,' he said."

"At the same time, prosecutions for the kinds of racial and gender discrimination crimes traditionally handled by the division have declined 40 percent over the past five years, according to department statistics. Dozens of lawyers find themselves handling appeals of deportation orders and other immigration matters instead of civil rights cases." The Post traces the demise and demoralization of the Justice Department's Civil Rights Division under Attorneys General Ashcroft and Gonzales.

"Senate Majority Leader Bill Frist says he is more concerned about the leak of information regarding secret CIA detention centers than activity in the prisons themselves...'I am not concerned about what goes on [in the prisons] and I'm not going to comment about the nature of that,' Frist replied." Unbelievable. The same guy who blew a gasket over a closed-door Senate session last week couldn't care less what goes on behind closed doors in secret, illegal CIA gulags. (I guess he figures it couldn't be much worse than your average day at the Frist family animal shelter.)

A true Dubya conservative? Aside from the usual Federalist Society wingnuttery, Judge Samuel Alito also appears to have some considerable conflict-of-interest problems on his record. "Alito had at least $390,000 in Vanguard mutual funds when he ruled in a 2002 case that favored the company. After a party to the suit complained, he stepped aside and another panel of judges reheard the case. Alito also ruled in a 1996 case involving Smith Barney, which was his brokerage firm." This probably won't derail his nomination by itself, but, still, Judiciary Committee members Kennedy and Feingold, among others, want answers.

"Two years ago, at Abu Ghraib prison, outside Baghdad, an Iraqi prisoner in [C.I.A. officer Mark] Swanner's custody, Manadel al-Jamadi, died during an interrogation. His head had been covered with a plastic bag, and he was shackled in a crucifixion-like pose that inhibited his ability to breathe; according to forensic pathologists who have examined the case, he asphyxiated...Swanner has not been charged with a crime and continues to work for the agency." So, as the New Yorker's Jane Mayer reports, "we do not torture"...we just crucify. Sweet merciful Jesus, what have we become? (Via Malice Aforethought.)

As our GOP Congress looks to shoot the messenger over secret prisons, England's House of Commons rejects an anti-terror bill pushed by Prime Minister Blair -- his "first defeat" after 8 years in office -- which would allow terrorist suspects to be held for 90 days without charge. Meanwhile, France approaches the two-week mark of youth rioting, despite curfews, increased jail time, threats of deportation, and the shutdown of instigating blogs, and the rest of Europe looks on with trepidation...

Republicans...they never stop surprising me. The nation discovers that, contrary to our most basic principles, the CIA has a series of secret, illegal gulags around the world, and how do GOP leaders respond? They want to know who told the press. (Mind you, this is after stonewalling investigations into prewar intelligence and the Plamegate leak for many a year.)

To be fair, not all GOP Senators are with them on this. Said Gang of 14 member Lindsey Graham (R-SC): "Talk about not seeing the forest for the trees. The real story is those jails...I'd like to know why we've got secret prisons and what oversight precautions we have." And Trent Lott (R-MS) believes that a Republican is likely responsible for the leak, after hearing about the prisons from Mr. Torture himself, Big Time Dick Cheney. "'Every word that was said in there went right to the newspaper,' Lott said. 'We can't keep our mouths shut.'" But, perhaps Catkiller knows this, and suspects one of his probable primary opponents? (LA Times story via Quiddity.) Update: Wheels within wheels...Was the leak investigation letter accidentally leaked? Regardless, Pat Roberts has put the kibosh on a congressional investigation...for now.

Typical Dubya Doublespeak: Just as Bush tells the world, "We do not torture," his vice-president continues his quest to exempt the CIA from a congressional torture ban, which would obviously be an unnecessary action were Dubya's remarks truthful. In related news, the Dems want a wide-ranging inquiry into pre-war intelligence, and members of both parties are concerned about increased "terrorism" inquiries under the Patriot Act.

As the Cheney-Addington gang work to strip the Geneva Convention from prisoner treatment manuals, the Washington Post uncovers an overseas network of CIA "black sites," a.k.a. gulags, some of which actually use old Soviet compounds in Eastern Europe(!) "It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas...Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing."

Whatsmore, these gulags, created under this administration since 9/11, "were built and are maintained with congressionally appropriated funds, but the White House has refused to allow the CIA to brief anyone except the House and Senate intelligence committees' chairmen and vice chairmen on the program's generalities." There's no other way to look at this: By appropriating the tactics of our enemies, as John McCain warned earlier this month, we have abandoned our most fundamental principles and shamed our nation. Evildoers? Please. Dubya need look no further than his own White House and CIA. Update: Congress and the EU want answers.

"'Everyone thinks it is over for Karl and they are wrong,' a source close to Rove said. The strategist's legal and political advisers 'by no means think the part of the investigation concerning Karl is closed.'" As Scooter Libby preps for his Thursday arraignment, Rove continues to sweat the Fitzgerald investigation. Meanwhile, Cheney picked Libby's replacements yesterday, and they're more of the same: The new chief of staff, David Addington, was the co-author of the infamous torture memo, and Cheney's new national security advisor, John Hannah, acted as the conduit for false Iraq intel in the lead-up to war. And, as you might expect of Cheney's cronies, both are already implicated in Plamegate.

Wise? Not hardly. It's become even clearer since yesterday that Samuel Alito is no Sandra Day O'Connor, and that he's all for ultra-conservative judicial activism. The Left appears ready for war this time around, but Alito's fate probably rests with a few GOP moderates, including Specter, Collins, Snowe and Chafee. Update: Worse than Scalia?

Dubya kicks off his first post-indictment week by throwing chum to the right-wing fundies and nominating Samuel A. Alito, Jr. to the Supreme Court. So far, he sounds more John Roberts than Harriet Miers, but "[u]nlike Roberts, he has opined from the bench on abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals." Well, if the White House wants a battle to shore up its right flank, it looks like they're going to get it.

Rather lamely citing a potential dispute over executive privilege (a.k.a. the Krauthammer option), the White House removes Harriet Miers from Court consideration. Obviously, this isn't a big surprise after the recent right-wing uprising, but it does mean that Dubya's next choice will undoubtedly veer closer to the fundie side of the fence. With that in mind, who's next? Update: Washington reacts.

"We are Americans, and we hold ourselves to humane standards of treatment of people no matter how evil or terrible they may be. To do otherwise undermines our security, but it also undermines our greatness as a nation." Behind Sen. John McCain, who knows as well as anyone why we must set limits on our interrogation policies, the Senate votes 90-9 to rebuke the White House and constrain future interrogation abuses at Gitmo, Abu Ghraib, and around the world. For his part, Catkiller Frist earlier tried to smother the amendment, but ultimately ended up voting for it. Wouldn't want a vote for torture on our 2008 transcript now, would we?

"Although it's obviously too soon to situate the Bush administration in history, it's possible...that it may be leading us into a period where politics is defined according to the old spoils system rather than the technocratic assumptions ushered in by the Progressive Era." With the Miers pick in mind, Slate's David Greenberg reviews the sordid history of Supreme Court cronyism from Jackson to LBJ.

"She may turn out to be the greatest thing since Antonin Scalia, but when will we know that?" Two days after the Harriet Miers pick, and despite news reports accentuating her strong evangelicism, conservatives are still openly perturbed by the choice (George Will is particularly livid.) As for how she stands on the issues, we still know very little, other than her mixed record on gay rights and probable pro-life stance. (Well, presumably, she's also pro-lottery.) Nevertheless, it sounds like she's probably already got Harry Reid's vote.

"Thus began [in 1994] what historians will regard as the single most corrupt decade in the long and colorful history of the House of Representatives...[N]ever before has the leadership of the House been hijacked by a small band of extremists bent on building a ruthless shakedown machine, lining the pockets of their richest constituents and rolling back popular protections for ordinary people" By way of Cliopatria, Newsweek's Jonathan Alter surveys the corruption of Boss DeLay's ring, with an eye to history. Update: And, wouldn't you know it, Boss DeLay has been indicted again, this time for money laundering.

In the early morning, Dubya chooses White House Counsel Harriet Miers as the next Supreme Court nominee. (Searching far and wide again, I see.) Well, let the vetting begin. On the plus side, the fundies seem perturbed, and she has some Dem donations in her past. On the other hand, she's a rabid Bush loyalist, calling him "the most brilliant man she had ever met." (Get out much?) Update: The Weekly Standard's Bill Kristol is disappointed, depressed, and demoralized by the Miers pick, while Legal Times was already unenthused about her. Update 2: Slate's Dahlia Lithwick and Emily Bazelon are similarly nonplussed: "Can anyone really imagine that she'd be the nominee if she weren't a woman and the president's friend and loyal adviser? Cronyism and affirmative action: It's a nasty mix."

"I will pick a person who can do the job. But I am mindful that diversity is one of the strengths of the country." As the Roberts nod goes to the full Senate (my thoughts on Roberts below), Dubya hints at a woman and/or minority justice for O'Connor's seat. With these parameters in mind, Salon's Tim Grieve surveys the most likely choices. Among them are faces familiar -- Edith Clement, Priscilla Owen, and Janice Rogers Brown, for example -- and unfamiliar, such as Maureen Mahoney, the "female John Roberts." (And, of course, there's always Gonzales, although his star seems to have dimmed.)

"'What makes evolution a scientific explanation is that it makes testable predictions,' Lander said. 'You only believe theories when they make non-obvious predictions that are confirmed by scientific evidence...Evolution is a way of understanding the world that continues to hold up day after day to scientific tests.''" As a Pennsylvania court weighs anew the constitutionality of adding creationism to biology curricula, scientists (again) try to explain how evolution differs from claptrap like intelligent design -- namely, that evolution produces hypotheses that are empirically verifiable (particularly in these heady days of genetic manipulation.) Well, yes...but what of the Pastafari? Why are we so eager to keep schoolchildren in the dark about the benedictory influence of His noodly appendage?

"When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime."

By a vote of 13-5, John Roberts is approved by the Senate Judiciary Committee -- with Dems Patrick Leahy, Herb Kohl, and Russ Feingold joining the Republican majority -- and will no doubt become the Court's next Chief Justice. The Dems -- and particularly Sen. Feingold -- are already getting flak for their Yes votes from People for the American Way and other liberal groups. (For their part, Hillary and Joe Biden have decided to keep the 2008 primary voters happy.) Well, just as I think Feingold was right to vote yes on Ashcroft in 2001, I think he made the correct decision here, both in terms of principle and politics.

In terms of principle, I think Feingold's statement above is exactly correct. We could go through 1000 nominees, and Dubya would never pick anyone who comes remotely close to being a progressive -- Sadly, the conservative tinge of the Supreme Court was decided last November, with Dubya's re-election. The question before the Senate was whether Roberts was (a) competent enough to fill the position of Chief and (b) whether he adhered to the broad mainstream (albeit conservative mainstream) of American legal thought. I watched almost all of the Roberts hearings and, although he dodged and weaved past way too many important questions, he was clearly (a) hyper-competent and (b) more respectful of existing legal precedent than many other conservative freakshows Dubya could have appointed (and might still.) Roberts said a number of times that he believed in a constitutional right to privacy, that Griswold was good and settled law, and that (although most agree on this anyway, Janice Rogers Brown notwithstanding) the Lochner Court was not an appropriate or worthwhile historical role model for today's judiciary. Perhaps he's lying, but it's no small business to lie before the Senate. I think Feingold was right to take his word at face value and vote yes, with reservations.

Voting for or against a 50-year-old Chief Justice is not a decision to be taken lightly, and I'm sure Dems on both sides of the vote chose their stance on principle. But, to be base for a moment and consider the politics of the situation, the Yes voters allowed themselves wiggle-room on the next nominee that most Dems have basically wasted on a sure thing. Roberts is replacing Rehnquist, a conservative for a conservative. The real battle lies ahead, when Dubya appoints a justice to take O'Connor's swing-vote position. Where are the Dems who voted no on Roberts going to go? Chances are the next candidate for justice will be less competent and more conservative, in the scary-fundy sense, than Roberts, but the no-voting Dems have lost all pull by not keeping their powder dry. Had the Dems acceded to Roberts' nomination, they would have easier recourse to a possible filibuster in Round 2, particularly with the fair-play-minded Gang of 14. Now, not so much.

At any rate, I'll admit to being already something of a Feingold groupie -- More than any other Dem, except perhaps the late Paul Wellstone, I view him as my Senator in Congress, the closest thing to a true progressive out there. (For what it's worth, I also thought he did a better job than any other Dem in his questioning of Roberts, with the possible exception of Dick Durbin.) Still, I think he made the right decision in this vote, and I hope very much that groups on the left who disagreed with his choice here keep an eye on the big picture and don't start calling for his head.

And Roberts? Well, I'm never going to agree with the guy on a lot of issues, that's for sure. But, in the hearings, I thought he came across as conservative in the old and best sense of the term -- cautious, restrained, not inclined to break tradition -- and not as a frothing, fundamentalist reactionary like any number of judges Dubya has appointed to the bench. Let's hope, for all our sakes, that this turns out to be the case.

The Roberts confirmation hearings are now underway. So far, they're not making for the most scintillating television -- at this very moment, Sen. Jeff Sessions (R-AL) is mangling his way through an opening statement he's clearly never read before -- but hopefully the drama will pick up once the Senators start firing away questions. (In fact, Feingold's up now with his opener, and Roberts' brow looks increasingly furled.) Update: Well, he's polished...I'll give him that. After watching three days of hearings, I learned more about hapless toads and the various senators on the Judiciary committee than I have about Roberts.

Striking a blow against those terrorist conspirators who orchestrated the Fourth Amendment, a federal court headed by conservative Supreme Court contender Michael Luttig declares that US citizens can be held indefinitely without charges. " For his part, Attorney General Alberto Gonzales, another big-time Court contender, "hailed the ruling as reaffirming 'the president's critical authority to detain enemy combatants who take up arms on behalf of al Qaeda.' Oh, yes, they will destroy this village in order to save it.

Breaking News: Segregationist, federalist, kingmaker, lousy historian, fashion maven, and Chief Justice of the Supreme Court William Rehnquist has died. Can't say I'm looking forward to the Dubya gang getting to pick a new Chief Justice. Nope, not at all. Update: Dahlia Lithwick weighs in, and the nomination calculus begins anew. Update 2: It's Roberts for Chief.

"And that's why John Roberts doesn't alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity...Roberts cares a lot about looking temperate, and that isn't a bad thing in a judge." As Senators Ted Kennedy and Patrick Leahy turn up the heat on the Roberts nod, Slate's Dahlia Lithwick argues that, at the very least, he seems temperamentally unsuited to be a judicial bomb-thrower. That's good, 'cause even with today's news of a missing civil rights folder and a possible conflict-of-interest in a terrorism case, there doesn't yet seem to be a silver bullet that could derail this nomination. Update: Dahlia Lithwick reconsiders after pondering Roberts' "Woman Problem."

Much to the consternation of the Dubya White House, a handful of GOP Senators, including Gang of 14'ers John McCain (R-AZ) and Lindsey Graham (R-SC), are trying to establish congressional oversight over prisoner treatment at Guantanamo and elsewhere. McCain's proposed amendments include restricting interrogation techniques to what's in the Army field manual, stopping the practice of "extraordinary rendition," forcing the government to register all detainees with the Red Cross, and prohibiting "cruel, inhumane and degrading treatment of prisoners in U.S. custody no matter where they are held." For his part, Graham's amendment appears just to rubber-stamp the current Dubya policies...but apparently even that's too much legislative oversight for Cheney, Rummy, and the rest of the admin whip-hands, who are trying to enlist their Senate allies to offer up a watered-down, smoke-and-mirrors version instead. For shame.

Based in Chesapeake at the moment, I've been missing out on all the madness in NYC these days, such as bus evacuations and the new, already-infamous subway searches. Others such as Medley have already ripped this new policy to pieces, but, really, what are they thinking? Any actual, honest-to-goodness terrorist with a bomb on their person will refuse the search request, turn around, and make the 5-7 minute walk to another subway station. These searches are totally pointless and at best produce nothing more than a hassle for commuters and the fleeting illusion of security. At worst, they're flirting with unconstitutionality and give the impression of police state search-and-seizure tactics becoming omnipresent in American life. Isn't that what the "evildoers" want?

"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy...But [Roberts] represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port." So, John Roberts. (I was traveling/working and missed out on yesterday's Clements bubble.) Early word seems to be that he's a tried-and-true conservative -- A member of the Federalist Society, he was a Rehnquist clerk and a protege of Ken Starr -- but not necessarily an ideologue or throwback. He seems a bit shaky on civil liberties, at least if you're a Guantanamo inmate or a 12-year-old eating fries on the DC Metro. (And, of course, there's the worrying inconsistency on Roe v. Wade.) But, my first impression, like many, is that Dubya could've picked a lot worse. Still, let's get him before the Senate and see what comes out. Update: Hmmm...questionable on the environment, voting rights, and church-state separation too.

Soon after returning from a two-day stint at the Virginia Hospital Center, Rehnquist announces he's staying on the Court (which may well speed up Dubya's announcement of O'Connor's replacement.) Well, big of the Chief to finally tell us. What was the holdup, and why so coy a week ago?

"'Reasonable people always suspected these techniques weren't invented in the backwoods of West Virginia,' said Tom Malinowski, the Washington director of Human Rights Watch. 'It's never been more clear than in this investigation.'" A new report by military investigators finds the tactics of Abu Ghraib in full use at Guantanamo. "The report's findings are the strongest indication yet that the abusive practices seen in photographs at Abu Ghraib were not the invention of a small group of thrill-seeking military police officers...they were used on Qahtani several months before the United States invaded Iraq."

"'I'm not sure where people get judgment,' Professor Powe said in an interview on Wednesday. 'I'm quite sure it doesn't come from the law school context. But really good politicians have it. They know how far they can go, and when they have reached a good stopping point.'" As the Senate's moderate "Gang of 14" looks to navigate the rocky shoals ahead, the NYT's Linda Greenehouse makes the case for a return to the longstanding tradition of non-judge justices.

"As lawyer for the governor in the Texas Statehouse from 1994 to 1997, Gonzales was responsible for advising Bush about whether he should delay the death sentences of capital murderers...As my colleague Phillip Carter has written, Gonzales' work on this life-or-death task 'would have barely earned a passing grade in law school.'" Slate's Emily Bazeon argues that rabid right-wingers are correct on one account: Alberto Gonzales would make a lousy Supreme Court justice.

"It's not necessarily clear that a press engaged in a tabloid-esque race to the bottom, consumed by sensationalist pseudo-stories, nuggets of McNews and flag-waving rhetoric, is a free press in any meaningful sense of the term," writes Salon's Andrew O'Hehir in a thoughtful piece on the Judith Miller case. But, he concludes, "[c]ompelling a reporter to reveal his or her sources to the police turns that reporter into a police agent, and that's not acceptable, even in unsavory circumstances like these." Update: Salon readers poke some substantial holes in O'Hehir's argument. Update 2: O'Hehir responds.

As a counterpoint, Slate's Jacob Weisberg argues the following: "To Miller and the Times, confidentiality is the trump value of journalism, one that outweighs all other considerations, including obedience to the law, the public interest, and perhaps even loyalty to country. This is indeed a strong principle, but it is a misguided one. In the Mafia, keeping confidences is the supreme value. In journalism, the highest value is the discovery and publication of the truth."

And one more view by way of James Fallows, who's written quite a bit on journalistic ethics in his time: "So Time Inc's Norman Pearlstein says he will turn over Matthew Cooper's notes, because Time magazine is 'not above the law.'...Matt Cooper, Judith Miller, and the New York Times have been saying something completely different. They have been saying that there is a conflict between what the law asks and what their professional values allow them to do. Therefore they will take the consequences. They will go to jail....They are not placing themselves above the law. They are saying that certain values matter more to them than doing what the law now (outrageously, in my view) asks them to do. Norman Pearlstein is a smart man. Can he really have missed this point? Or is he acknowledging that another set of values have come to count for more, in large-scale corporate-owned journalism?"

As Washington waits for word from Rehnquist, Senate Dems sit by the phone, and the Left arms for a Last Battle of sorts, Judiciary Committee Chairman Arlen Specter muddies the waters by suggesting that the new Chief Justice be...Sandra Day O'Connor?

Can Dubya have his cake and eat it too? Crossfire correspondent and Douchebag of Liberty Robert Novak hints that Rehnquist will also leave the Court this week. As the article suggests, this may be good news for the Dems, as it seems unlikely that Dubya will be able force through two hard-core right-wingers in a row, even with Fred Thompson at the helm...or at least one hopes. Update: The terrain shifts for twin appointments.

As Dubya heads off to G8 (although not before pushing back on Gonzalez), Washington DC continues to gird for the Supreme Court fight ahead, with Senators of both parties airing their respective views on questioning candidates, the Post previewing the fall 2005 Supreme slate, and everyone else trying to guess Dubya's probable pick. Of course, even a hardline conservative may not decide as Dubya intended...although that'll be small consolation for the Dems should one get through.

Here's an independence day nightmare: "With the Supreme Court vacancy left by the retirement of Justice Sandra Day O'Connor, the conservative movement has within its grasp the prize it has sought for more than 40 years: the control of all levers of the federal government."

Yes, the right-wing fundies' time is now, which is why they are already trying to spike Alberto Gonzales as too moderate and imploring Dubya to pick the "right" kind of conservative. Meanwhile, as the two parties gear for battle (despite talk to the contrary) and Dems reconsider the filibuster, Senate Judiciary Chair Arlen Specter contemplates his own legacy, which, if past behavior is any indication, likely means rolling over on command.

It's on...Justice Sandra Day O'Connor announces her retirement. "Because she is a moderate, her departure gives President Bush a major opportunity to alter the direction of the court if he so chooses." Round 1 looks to begin July 8. (Possible contenders.)

"There's not much these days that the two parties in Washington can rally around, as evidenced by the increasingly shrill tone here. You might think that one thing on which everyone in both parties could agree would be a resolution apologizing for the Senate's failure, over many decades, to make it a federal crime for racists to hunt black people like animals and hang them from trees." Terry Neal wonders why eleven GOP Senators refused to sign the recent anti-lynching resolution. (Cliopatria's Robert KC Johnson posted a list of the eleven Senator's responses from Roll Call a few days ago.)

As I've said earlier, I can see how a mea culpa that's coming anywhere from thirty to 130 years late may not be the most useful legislation ever passed by the Senate. But, when it comes time to mark your name down against an abomination like lynching, why not take the opportunity? To paraphrase Karl Rove, moderation and restraint is not what I feel when I see African-Americans strung up and mutilated by mobs of white folk. But, for one reason or another, a sizable number of the GOP think different. Therapy and understanding for the attackers, perhaps?

Here's an oldie-but-goodie from the GOP...by a margin of 286-130, the House pass another variation on the anti-flag-burning amendment. "'Ask the men and women who stood on top of the (World) Trade Center,' said Rep. Randy (Duke) Cunningham, R-Calif. 'Ask them and they will tell you: pass this amendment.'" Yes, I'm sure the victims of that day were calling their loved ones by cellphone during those horrible moments to voice their support for a freakin' flag-burning amendment. Have you no shame, Mr. Cunningham?

"Taken in context, Durbin's premise -- that the techniques characterized in the FBI memo are consistent with those deployed by 'mad regimes' -- is worth debating. But of course, such invocations are never debated in their precise context." In light of Senator Dick Durbin's recent apology for bringing up Nazis to discuss Gitmo, the WP discovers Godwin's Law.

"When is it time to start referring to Bush as an unpopular president? When his approval ratings are solidly below 50 percent for at least three months? Check. When his approval ratings on his signature issues are in the red? Check. When a clear majority of Americans say he is ignoring the public's concerns and instead has become distracted by issues that most people say they care little about? Check." Dubya's numbers continue to plunge. Want some unsolicited advice, Mr. President? Let's hear more about Third World debt relief, and fewer blanket endorsements of the Patriot Act. Update: In not-unrelated news, faith in the newsmedia also hits a low.

"Frist called her "a superb judge" who applies the law 'without bias, without favor, with an even hand.' Sen. Lindsey O. Graham (R-S.C.), one of the 14 negotiators, called Brown "an extremely talented and qualified judge" who will 'advance the cause of conservative judicial philosophy.'" As Janice Rogers Brown moves through the Senate, some Dems and left-leaning groups start rethinking the benefits of last month's nuclear compromise.

"As a chapter in the continuing history of opposition to dissent, Oppenheimer's fate is especially worth re-exploring now. Whether in the closed halls of the intelligence services or in the open sessions of Congress, we need the hard impact of contestation; we need recalcitrant voices ready to challenge the established terms of discussion...Oppenheimer always thought that argued dissent was an inseparable part of patriotism. He was right." In his review of the recent biography American Prometheus, Harvard's Peter Galison lauds J. Robert Oppenheimer's patriotic vision of reflective dissent.

A defeat for medicinal weed is a victory for federal authority under the Interstate Commerce Clause in today's 6-3 Supreme Court ruling upholding federal laws against marijuana. Wrote John Paul Stevens in the majority opinion, "[t]he Controlled Substances Act is a valid exercise of federal power, even as applied to the troubling facts of this case." (The losing side consisted of Justices O'Connor, Rehnquist, and Thomas.) This is a tough one. I think prosecutions of sick people seeking medicinal marijuana to alleviate their daily miseries are grotesquely ill-conceived, but, then again, I'm not for rolling back federal power to pre-Civil War levels, either. And, for what it's worth, "some lawyers who have followed the controversy closely predicted that the ruling, while disappointing, would not bring sweeping changes, since most marijuana prosecutions are undertaken by state and local officials rather than federal authorities."

Last Friday, the Pentagon admitted that a Quran -- and detainee -- were in fact urinated on by a guard at Guantanamo. But, according to the eagerly dismissive White House, there's no need to court-martial anybody or anything. (Heck, you should hear about Dubya's crazy pledge days.) In the meantime, Senator Joe Biden (D-DE) took time off from castigating Howard Dean to call for the closing of Guantanamo.

Eager to put the lie to the recent nuclear compromise, Dubya readies a slew of judicial nominations for the Senate, and you can bet dollars to donuts that they're not going to be moderates. "'There's about 20 waiting in the wings,' a Senate Republican official said."

"Now in terms of the requests for the documents, I view that as just another stall tactic, another way to delay, another way not to allow Bolton to get an up or down vote." As per his usual my-way-or-the-highway approach, Dubya announced he's decided to stonewall the Dems by withholding the requested intelligence documents bearing on Bolton. Given that this UN appointment seems a done deal in terms of votes, you'd think our "uniter, not a divider" prez might've relished an opportunity to appear magnanimous and thus replenish some of his squandered political capital. But perhaps he didn't want to put another feather in McCain's cap so soon after the nuclear compromise...or perhaps these documents confirm anew that Bolton is unfit for his post. (Video link via Freakgirl.)

Even more troubling, in keeping with the administration's attempts to make Amnesty International this week's Newsweek, our president also put the blame for the "absurd" recent Amnesty report about our dismaying recent proclivity for torture squarely on the shoulders of "people who hate America." As Sidney Blumenthal notes, "It may be of minor ironic interest that before the invasion of Iraq, the Bush administration cited Amnesty International's reports on Saddam Hussein's violations of human rights as unimpeachable texts. Secretary of Defense Donald Rumsfeld often claimed Amnesty as his ultimate authority."

"'Frankly, I was offended by it,' Cheney said in the videotaped interview. 'For Amnesty International to suggest that somehow the United States is a violator of human rights, I frankly just don't take them seriously.'" Awww. Our thin-skinned veep's feelings are hurt by an Amnesty International report claiming all is not kosher at Guantanamo Bay. Well, as a colleague of mine noted, perhaps someone should fill Dick in on Abu Ghraib (or, for that matter, countless other episodes in US history, from chattel slavery to the Trail of Tears.) For his part, the president of Amnesty responded: "It doesn't matter whether he takes Amnesty International seriously. He doesn't take torture seriously; he doesn't take the Geneva Convention seriously; he doesn't take due process rights seriously; and he doesn't take international law seriously. And that is more important than whether he takes Amnesty International seriously." Touche. (That being said, the WP cried foul as well.)

"Today's conservative activists have become the new postmodernists. They shift attention away from the truth or falsity of specific facts and allegations -- and move the discussion to the motives of the journalists and media organizations putting them forward." By way of Crooked Timber, E.J. Dionne calls out the po-mo bent of today's GOP.

The Bush administration announces they're going to reevaluate their anti-terrorism strategies. To put it mildly, "[t]he policy review marks what many experts regard as a belated shift." Well, perhaps a good place to start would be looking harder at who we sell weapons to, so we as advocates of freedom around the world aren't forced to explain away situations like the recent massacre in Uzbekistan. (2nd link via Looka.)

While the toilet incident that got Newsweek in trouble was emphatically denied, the Pentagon announces -- after the release of FBI interviews obtained by the ACLU -- that there have in fact been incidents of Koran mistreatment at Gitmo. (Surprise, surprise.) While "the interviews underscore that U.S. government officials were made aware of allegations of prisoner abuse and Koran mistreatment within months of the opening of Guantanamo Bay in early 2002", just last week "Pentagon spokesman Lawrence T. Di Rita said the Defense Department had received no credible claims of such abuse."

Priscilla Owen may be through, but a number of papers note today how Monday's compromise only sets the stage for an ugly battle over Dubya's next Supreme Court pick, likely to be a conservative freakshow.

As Frist's press secretary gets tang-tungled trying in vain to explain her boss's support for a 2000 judicial filibuster, Sen. John Cornyn (R-TX), one of Catkiller's stooges (who also blamed courthouse violence on activist judges a few weeks ago), sets the nuclear gambit in motion with a call for cloture. This will come to a head Tuesday, unless the moderates can avert the cataclysm. "Throughout the past three days of debate, Democratic senators pointed repeatedly to the Senate's approval of 208 of Bush's judicial nominees. Instead of being satisfied with a 95 percent success rate, the highest for a president's judicial nominees in the past two decades, Bush has shown that he wants to have everything his way, the Democrats charged. By comparison, Republicans blocked 69 of President Clinton's judicial nominees during his two terms."

As Frist's nuclear countdown ticks off, Senate moderates attempt a compromise, Senate aides hone their maneuvering, and Senate freakshow Rick Santorum (R-PA) invokes Godwin's Law in claiming that Dems were "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me?'" (C-SPAN link via Quiddity.)

Undeterred by the Dem's last-minute attempt to let less-controversial judges pass through first, Bill Frist initiates the nuclear countdown in the Senate. "'I don't rise for party,' said Senator Frist. 'I rise for principle.'" That is to say, the principle of seeing all the right-wing fundies line up behind his 2008 presidential bid.

Nuclear negotiations break down between Reid and Frist, setting the stage for a cataclysmic Senate meltdown this week over Karl Rove's pet judge, Priscilla Owen. (That is, unless the Ben Nelson-John McCain compromise -- which seems a considerable capitulation by the Dems -- gains currency with the GOP.) Can Catkiller really have the votes? Surely, there are more than three so-called "conservatives" in the Senate who would vote against this type of radical rule change. Or has the GOP sunk so low? Update: A few days old now, but ah well: Salon offers a handy nuclear primer.

"I know it's a bit of an odd-fellow, or odd-woman, mix,' she said. 'But the speaker and I have been talking about health care and national security now for several years, and I find that he and I have a lot in common in the way we see the problem.'" As a testament to politics making strange bedfellows, Hillary and Newt make the rounds. But will this type of bipartisan rapprochement seem antiquated after we enter the Nuclear Age next week?

"The Republicans' hands aren't clean on this either. What we did with Bill Clinton's nominees -- about 62 of them -- we just didn't give them votes in committee or we didn't bring them up." On ABC's This Week, Senator Chuck Hagel (R-NE) pretty much announces he's not voting for the nuclear option. "'My goodness,' Hagel said, 'you've got 100 United States senators. Some of us might be moderately intelligent enough to figure this out. We would, I think, debase our system and fail our country if we don't [work it out.]"

"During the presidential election last year, Chandler told the congregation that anyone who planned to vote for the Democratic nominee, Sen. John F. Kerry (Mass.), should either leave the church or repent." Chan Chandler, a N.C. Baptist minister puts pandering for Dubya above saving souls, a decision which would likely serve him in good stead among Rick Scarborough's "Patriot Pastors," a Christian Right group now mobilizing the zealots for the coming filibuster fight. Update: Chandler claims "a misunderstanding."

Despite a (somewhat dismaying but probably politically necessary) attempt by top Senate Dems to achieve a compromise on the question of judicial nominations, Catkiller Frist remains committed to go nuclear to preserve his presidential prospects. Two-thirds of the country think the nuclear option is a bad idea, but will that be enough to sway the moderate GOP?

Conservative freakshow Sen. Sam Brownback (R-KS), now head of the Senate Appropriations subcommittee on the District, threatens Washington DC to back down on its plan to recognize gay marriages (by allowing joint filing for same-sex married tax returns.) Less government? Local control? Surely, it's obvious by now that today's GOP is much more interested in policing the bedroom. If you're still voting Republican these days for any other reason, how much more proof do you need?

"'I think Senator Frist has backed himself into a corner where I don't see how he can avoid pulling the nuclear trigger,' said Charlie Cook, editor of the nonpartisan Cook Political Report." According to the WP and various lookers-on, the Senate Majority Leader is "all but certain" to go nuclear on the question of judicial filibusters in the next few weeks, mainly so he can shore up his possible presidential candidacy with freak-show conservatives. In addition, his nascent 2008 bid also explains why Catkiller has chosen to appear on a forthcoming fundie telecast that claims Democrats are "against people of faith." That's a low blow even from you, Senator...How dare you? Update: Election 2008 maneuvering heats up among the GOP as Frist's allies go after John McCain for his apostasy on the nuclear option.

"I believe we have a fair and independent judiciary today...I respect that." The Hammer may have already mouthed off about federal judges in the Schiavo case, but, Catkiller Frist, like Vice-President Cheney, is savvy enough to realize that the GOP have stepped into serious trouble, and has thus decided he wants nothing doing. (Not a hard call. -- Their PR misplay here has gotten so obvious that even Harry Reid is calling 'em out.) Well, if the Republicans want to mitigate the damage, perhaps Cheney or Frist should have a word with Senator Jon Cornyn (R-TX), the latest conservative freakshow to go after federal judges. Update: The WP probes the GOP breach.

While the GOP may have bent the rules to facilitate passage of the ANWR drilling bill (set for a vote today), it appears they face a Senate shutdown by the Dems if they keep pressing on Dubya's wacko judicial appointees. And why not? Dubya has revealed he's not going to relent on Social Security PSAs, despite their unpopularity, and he continues to appoint controversial right-wing neocons like Paul Wolfowitz to top positions (in this case, the World Bank.) If Dubya and the Right don't want to compromise, then we Dems shouldn't play ball. It's 1993 all over again. (That being said, it's probably wise of Reid to keep legislation "supporting our troops" out of the boycott...FOX News would have a field day with that one.) Update: By a 51-49 vote, the Senate opens ANWR to drilling, with Dems Daniel Akaka, (D-HI), Daniel Inouye (D-HI), and Mary Landrieu (D-LA) putting the GOP over the top.

Update 2: Slate's Fred Kaplan has more on the Wolfowitz pick.


Update 3: Conservative George Will warns against GOP tampering with the filibuster rule.

"Fighting over the 'evolving standards of decency' underlying the Eighth Amendment's ban on 'cruel and unusual punishment,' the 5-to-4 opinions reflect an all-out war between the proponents of a living (or at least medium-rare) Constitution and those who want to see it dead (or perhaps well-done, with a nice pinot)." Slate's inimitable Dahlia Lithwick explains the Kennedy-Scalia sniping undergirding the Supreme Court's very welcome 5-4 decision to ban juvenile executions. To keep things in perspective, the only other nations besides us that have put juveniles to death since 2000 are China, Iran, Pakistan, and the Congo...not exactly what you'd call the Axis of Freedom.

Second verse, same as the first...New Attorney General Alberto Gonzalez outlined Justice Department priorities in his first policy speech yesterday, and it looks to be more of the same: extending the Patriot Act, strengthening anti-obscenity laws, deporting immigrants, and fixing the "broken system" whereby Senate Dems fulfill their constitutional obligations and vote up or down on Dubya's freak-show judicial nominees. So, as we all feared, it's Ashcroft all over again. But will Gonzalez at least undrape the Justice Department statuary?

As both a path-breaking porno flick and a Nixon-felling secret informant, it may have been surprisingly successful. But, unfortunately, as a documentary, the one-sided Inside Deep Throat is a superfluous and self-congratulatory tale that's more frustrating than fulfilling. Forgoing any attempt at analytic rigor, the movie seems designed mainly to make the audience feel enlightened and blue-state cosmopolitan just for showing up. The most you can say for it is that it's Kinsey without the nuance.

In the opening moments, the documentary tries to establish its serious pedigree with a motley crew of left-leaning talking heads remembering their "first time" at Deep Throat: Norman Mailer, Erica Jong, Camille Paglia, Bill Maher, Dick Cavett (looking very well-preserved), Hef, Gore Vidal, John Waters, etc. Ok, so far, so good. But, then the interminably smug Dennis Hopper voiceover kicks in, and the movie begins its slow lurch into irredeemable goofiness.

By the end, that lurch has become a full-on tailspin. The upshot of the film seems to be this: Deep Throat was no mere skin flick. It was about art, freedom, liberating female sexuality, and breaking restrictive social barriers...in short, it was about America.(Conversely, all subsequent porn, particularly in the post-Boogie Nights VHS-era, has been about commerce, exploitation, degradation, and, well, you know.) Moreover, the release of Deep Throat marked an epochal moment in the burgeoning culture wars, and this movie leaves no doubt which side it's on -- various would-be moral arbiters straight out of right-wing central casting are interviewed at times, and naturally they all make Ken Starr look like Larry Flynt. Meanwhile, the admittedly-dubious conviction of Deep Throat-star Harry Reems is treated like the worst threat to constitutional liberty in decades, a cross between the Hollywood Ten and the trial of Sir Thomas More.

While I think Deep Throat's artistic merits are vastly overrated here -- it's a ludicrous porno that improbably tapped into the zeitgeist and fell ass-backwards into crossover appeal, no more, no less -- I'm generally sympathetic to the case being made in this documentary about First Amendment freedoms and the snickering, adolescent way our culture handles adult sexuality most of the time. But Inside Deep Throat's bullheadedly partisan and hyperbolic tone does a disservice to its central arguments. In other words, like the stereotype of the industry it sought to illuminate, Inside Deep Throat turned out to be breathless and brainless...you'd probably be better off watching whatever's on Skinemax.

"We must not allow the passage of time or the illusion of safety to weaken our resolve in this new war." Dubya uses the swearing-in of crony Alberto Gonzalez as Attorney General to pull a Two-Minutes-Fear and shill for a blanket extension of the Patriot Act. With even GOP conservatives against some provisions of the Act at this point, not bloody likely.

"To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve." After outgoing Attorney General John Ashcroft showed his true colors one last time, incoming Homeland Security head (and former admin torture guru) Michael Chertoff promises to keep an eye to civil liberties at his confirmation hearings. Hmm...I'd have more faith in his espoused concern if he hadn't already ignored the in-house Justice Dept. ethics office (and lied about it) in the past.

In a boon for civil liberties, federal judge Joyce Hens Green declares that the incarcerations at Guantanamo are illegal, since the military tribunals set up by the Bushies violated due process. "In today's decision, Green said the hearings, called Combatant Status Review Tribunals, are stacked against the detainees, and deny them crucial rights. She said some detainees may indeed be guilty and pose a danger to the United States, but the government must first give them a lawful hearing on the evidence against them." The judge also called out the Gitmo Gulag on its torture policies and excessively broad definition of "enemy combatant."

As if all the talk of Scalia being our next Chief Justice wasn't bad enough, it seems the power has really gone to his head of late. "Lamenting his inability to stop the Supreme Court's slide away from the principles of judicial restraint he espouses, Scalia said he felt like 'Frodo in "The Lord of the Rings," soldiering on.'" Excuse me? You, Sir, resemble in no way the Shire-folk, and you're definitely no Frodo. Perhaps one of the Nine, garbed in black?

Rick Perlstein's recent comparison of Dubya and The Sopranos is given more credence with the revelation that Homeland Security nominee Michael Chertoff also vetted torture law for the Bushies in 2002-2003. "While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a 'threat of imminent death'...But Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A." Hmmm...and you thought Tom Ridge knew some crazy uses for duct tape.

Monica who? On the eve of Dubya II, Salon's Peter Dizikes offers a short but comprehensive list of this administration's scandals thus far. Thirty-four and counting...not that you'd know it from watching the evening news.

"Alberto Gonzales has paved the way of his own advancement with memos that are intellectually slovenly, that impute definitive powers to the executive, and whose attempts at shirking the basic moral precepts of international humanitarian law are not very skillful. If he is confirmed as attorney general, our nation will be shamed, shunned and endangered." As the Gonzales hearings begin on Capitol Hill, Salon does an able job of exposing his egregious yes-man tendencies in both the torture memos and, previously, in managing Governor Dubya's execution sprees. Update: Yet, the Dems roll over.

After a long and tortuous road, including some last-minute GOP balking, Dubya signed the intelligence bill into law today. "The new law, which grew out of last summer's report of the national commission that investigated the Sept. 11, 2001, terrorist attacks, brings together the 15 separate intelligence agencies into a single command structure, legislates creation of a National Counter Terrorism Center, increases border security and establishes a civil liberties board to serve as a check on excesses in the war on terrorism." Sounds good...now let's get that bastard Buttle.

Break out the duct tape...Homeland Security chief Tom Ridge joins the ranks of the Dubya-departed, "noting that he feels exhausted from the grueling hours required for the work and that he wants to make more money now that he has two children reaching college age." Current names being bandied about as replacements include "former Virginia governor James S. Gilmore III, Massachusetts Gov. Mitt Romney and Frances Fragos Townsend, current White House homeland security adviser." Given the recent trend to promote Dubya loyalists throughout the cabinet, I'm surprised they haven't found a new gig for Marc Racicot yet...he's been the flunky's flunky.

"But there's one thing I know, though I'm younger than you -- Even Jesus would never forgive what you do." By way of a friend of mine (and in a striking confluence of the music and civil liberties posts earlier today), a high school band in Colorado -- Coalition of the Willing -- has the Secret Service sicced on them for practicing Bob Dylan's "Masters of War." Hmm...I've been known to belt that one quite loudly in the occasional times I plug in around here (It's basically A-minor throughout.) I guess I'd better begin with a disclaimer from now on to assuage the neighbors.

"Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor." The New York Times tries to figure out if Dubya can actually remake the Supreme Court along "strict constructionist" lines as feared and concludes that, yeah, he probably can.

On his way out the door, John Ashcroft calls out judges for judging. "'The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war,' Ashcroft said." Well, maybe now that he's got some time on his hands, perhaps someone can explain to him that whole checks-and-balances thing.

It's official...John Ashcroft is out at Justice. I have no doubt Dubya's second-term replacement will be comparably grotesque. Still, can't say I'm sad to see him go. Update: Dubya chooses White House counsel Alberto Gonzalez, who, despite his loyalty to Bush, seems like a step up...although his signing off on the Abu Ghreib terror memos gives me pause.

One bright spot concerning the next four years: Apparently, John Ashcroft isn't sticking around for a second Dubya term. His possible replacements include deputy Larry Thompson, Dubya stooge Marc Racicot, or White House counsel Alberto Gonzalez (the torture memo guy...he'll fit right in.)

Hope is on the...wait, what's this? Oops, sorry about that. Turns out Hope took a wrong turn and got lost somewhere back there in Idiotville. Welcome to Despairtown, baby.

So, that's that, then...the Idiot Wind blows anew. The American electorate has spoken and -- despite all the shadiness and incompetence of the past four years -- has given Dubya and his cronies the imprimatur to go hog-wild. 51-48%...this is pretty much a mandate, folks. (Big of those Red Staters to ensure that we will be woefully unprepared for the next terrorist attack on a Blue State.) Y'know, H.L. Mencken's whole Tyranny of the Booboisie schtick has always grated on my lefty sensibilities, but at this point I have to admit he may have been on to something.

Ugh. I'm too young to remember 1984 very well, but I'm curious as to how last night and this morning compared for America's Left. (I've since been reminded by several people I trust that 1968 and 1972 were much more grievous blows.) Thing is, 2004 started out with such promise over here. But, right around the time I ended up on crutches in May, events personal and political took a nasty turn, and the past few months have been some of the most dismal I can remember. Now, it seems, I may just look back on this time as relatively calm and worry-free.

But, ok, enough wallowing...let's start taking it frame-by-frame. Given the war, the economy, and Dubya's obvious incompetence, how on Earth did we lose this election? Well, give credit where credit is due...all this exit-talk of "moral values" proves that Karl Rove pulled off his gambit: He got the extra 4 million evangelical votes he was targeting, partly, it seems, by judiciously invoking rampant anti-gay hysteria. Yet, for some reason or another -- a lousy ground game, perhaps? -- the Dems inexplicably didn't counter with extra votes of our own.

Where do we go from here? The Dems are facing an ugly Rule of Four...We lost four seats in the Senate, at least four seats in the House, and likely four seats in the Supreme Court. Whatsmore, we now appear officially dead in the water in the South and Midwest. And, with Kerry and Daschle gone, our standard-bearers now appear to be Hillary Clinton (about whom the country has already made up its mind), John Edwards (whom I still admire, but he couldn't carry his home state), and Barrack Obama (who's probably too inexperienced to make much headway in 2008.)

Obviously, it's now well past time for the serious party overhaul we should've began last cycle, when Al Gore had an election stolen from him that he should have won hands down. Daschle & Gephardt are already in the dustbin of history, and Terry McAuliffe should probably follow them there. I for one don't think Howard Dean was or is the answer, but he's one of the only people injecting new blood and enthusiasm into the party right now, so he should have a seat at the table. Right now, I think Edwardsian populism is our strongest ideological card, but as I said, it didn't seem to make much headway last night.

Silver lining? Yeah, right. Well, as this Washington Monthly forum noted in September, second terms are notoriously scandal-prone (Watergate, Iran-Contra, Monica), partly out of press boredom, and Dubya's ilk seem particularly scandal-worthy...perhaps we'll finally hear a little more about Halliburton. I'm sure there'll be no shortage of horrifying policy decisions emanating from this administration that'll keep lefty blogs like this one in business. And, on a purely selfish note, my likely dissertation topic on the fortunes of progressivism in the twenties is now seeming much more sexy in the wake of last night's 1928-like cultural divide. Of course, none of these are really any consolation at all.

At any rate, I generally believe that America tends to get the president it deserves. So, God help us, we've brought this upon ourselves. And now, for we 48%, the hard work begins...we have to lick our wounds, get our act together, and figure out how we can best combat the rightward drift that's afflicting our nation. Alas, I fear Dubya will do much of the heavy lifting for us, by running the nation further into the ground over the next four years. Still, we gotta keep on keeping on, y'all. I do not believe this darkness will endure.

Just in case anybody needed it spelled out, Rehnquist's recent health problems make it explicit: next week's vote will in fact determine the Supreme Court. It'd be hard to find a judge more Right-Wing than the Chief here, but I'm sure a second Dubya administration would do its damnedest to find one nevertheless.

By way of Looka and The Nation, 100 Facts and 1 Opinion: The Non-Arguable Case Against the Bush Administration. If you know any undecideds out there, this might be a good one to share.

A NYT report finds mistreatment of prisoners at Guantanamo is much more widespread than earlier suggested by Rumsfeld and other administration officials. "One regular procedure...was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels...Such sessions could last up to 14 hours with breaks."

An hour after tonight's town hall debate in St. Louis, the immediate spin seems to be that it was a draw, mainly because Dubya didn't scowl and sputter to the extent he did last time around. (The "soft bigotry of low expectations" strikes again.) But it must be a Two Americas thing, 'cause that's not the debate I saw...most of the time I was waiting for Rove and Cheney to run on stage, hold a light to Dubya's eyes, and squirt some water in his mouth. As before, John Kerry radiated calm, determination, and a quick, roving intelligence. In a word, leadership. Dubya, on the other hand, was once again all hat and no cattle, trying to shirk, smirk, weasel, bluster, and lie his way through the proceedings. "Flip-flopper," "global test," tax-and-spend, etc...Dubya sought to evade every single question about his dismal record with a insult or a threat, even going so far as to throw around "Liberal" desperately, a word still verboten since his Daddy ran it through the mud in '88.

Kerry's been surging since last Thursday, and I expect it'll continue after tonight. But I confess, I really can't wrap my mind around how anyone could have watched tonight's event and think Bush would be the better choice between these two men. With the possible exception of the canned Red Sox quip, there wasn't a moment when Kerry didn't seem presidential and didn't hold the upper hand. And, as for Dubya...based on tonight, I wouldn't trust this guy to run the local chapter of the Elks, much less the Oval Office. No mistakes made at all, Mr. President? Who wants a President so blatantly unreflective about life-and-death decisions? I mean, he could have at least tried to look one up on the Internets. Would forgetting about your timber company count as a mistake?

That being said, I think we can all breathe a sigh of relief that, when considering the inevitable Supreme Court appointments over the next four years, Dubya has at least promised not to overturn Dred Scott v. Sandford. Phew! Say what you will about Dubya's godawful judicial nominees, at least we know they'll hold up the Thirteenth Amendment. (Civil rights and civil liberties, of course, are another matter...) Update: Ok, now I get it. It was a coded pro-life message to the right-wing fundies. (Via Blivet.) Update 2: Tim Noah talks more about Dred.

The NYT's Linda Greenhouse and Slate's Thomas Baker preview the coming Supreme Court term, which we already know won't involve appeals by Roy Moore, credit card companies, or telemarketers. Update: Dahlia Lithwick talks Blakely.

"Although these events concern different legal issues and different sets of detainees, they share a common denominator: a legal strategy to keep the rule of law out of the war on terrorism by whatever procedural, legal, or administrative means are available." According to Slate's Phillip Carter, the Dubya administration is obstructing and/or ignoring the recent Supreme Court decisions on the Gitmo Gulag. Sadly, I guess we couldn't expect any less from this crowd.

Partisanship 1, Civil Liberties 0. The House GOP ride to the administration's rescue and, by means both fair and foul, block a critical challenge to the Patriot Act with a 210-210 tie vote. "Rep. C.L. Butch Otter (R-Idaho), a conservative and an advocate of the defeated provision, told reporters after the vote: 'You win some, and some get stolen.'"

Well, I'm a bit behind on this one, but I finally got out of the apartment to catch Michael Moore's Fahrenheit 9/11 yesterday afternoon. And the verdict? Well, it's undoubtedly an extremely powerful piece of cinema. And, judging from the reactions of the afternoon crowd, it looks as if it might do some real good in crystallizing popular discontent with the Bush administration outside of the blog-world echo chamber. Still, even though I know Moore is playing by the rules set by right-wing freak shows like Rush Limbaugh and Ann Coulter, I found myself wishing at times that he had played F911 a little straighter. Simply put, Dubya and his cronies are guilty of so much blatant incompetence and documentable malfeasance that it's disappointing that Moore feels he has to rely on cheapshots and push-button emotions some of the time.

If you've been keeping up with pretty much any lefty blog since 2000 (including this one), the central and most powerful allegations made here -- that Dubya and the Neocons played bait-and-switch on the American people in Iraq and used 9/11 as a pretext for all kinds of terrible legislation, while doing pathetically little to minimize the actual threat of terrorism -- will not come as a surprise. Still, when the data is laid out before you here like ducks in a row, from the Florida fiasco in 2000 through to the recent stonewalling of the 9/11 commission a few weeks ago, the continued pattern of incompetence and mendacity that has characterized this administration becomes unmistakably clear. As the story unfolds, Moore offers plenty of intriguing footage -- Bush's 7 minutes of Pet Goat superfluousness may perhaps be overemphasized by now, but it's still out-and-out eerie. Equally damning is footage of Dubya at the ranch a month prior to 9/11, in which he has absolutely no clue what his agenda is for the day and, whatsmore, doesn't seem to much care (particularly when contrasted with his obvious enthusiasm for armadillos exhibited a few scenes later.)

But while there are plenty of blows landed, I ultimately thought that Fahrenheit 9/11 would have been much more impressive if it had focused more closely on the facts and avoided the more obvious attempts at sentiment. For example, instead of examining in detail the clear civil liberties transgressions occurring at the Gitmo Gulag and elsewhere under the Patriot Act, or noting the discrepancies in its enforcement (no gun checks?) under Attorney General-cum-balladeer John Ashcroft, Moore spends too much time interviewing an aging weightlifter and various Fresno peace activists -- all of whom have run afoul of goofy anti-terrorist inquiries -- for laughs. Similarly, instead of talking about Dubya's spiking of the Nunn-Lugar act or his continued cutting of First Responder funding, the film dinks around Western Oregon with two underfunded deputies - as a result, I thought the larger point about Bush's failure to protect the homeland was lost.

As the film moves overseas, the problems with F911 become more evident. Regarding the war in Afghanistan, Moore talks about a proposed UNOCAL pipeline to the exclusion of virtually anything else, which I think invites charges of shrillness (Exhibit A: The Bonanza riff) and blurs one of the most serious charges against this administration - that it gave up a chance to catch Osama Bin Laden in order to play regime change in Iraq. Speaking of Baghdad, I think Moore would have done better to talk more about missing WMD and lies to the UN and spent less time with Lila Lipscomb, the mother of a deceased US soldier. This last section of the film is undeniably powerful, but it also feels extremely manipulative, particularly as it's hard to envision very many situations where a mother's grief wouldn't be harrowing to behold. (The same goes for the grisly scenes of charred bodies and horrifically wounded Iraqi children.)

Still, what do I know? Perhaps Fahrenheit 9/11 needs these human touches to get its point across to a larger audience, a goal which it so far seems to be accomplishing with great aplomb. The fact is, Michael Moore can undoubtedly be a blowhard with grating populist pretensions, but if we had any semblance of a functioning national media these days, Fahrenheit 9/11 would have been a non-event. In the absence of anything like an independently critical television press, and given the existence of such a well-oiled, well-funded right-wing propaganda machine these days, perhaps somebody out there had to co-opt conservative talk-radio techniques to get the message out. I'm more of a "destroy the ring" than a "use the ring" kinda guy, but, as I said, what do I know? I could write in this space a hundred times over and still never reach an infinitesimal fraction of the people who will see this film and be newly angered by the idiotic and unethical behavior of this administration.

In short, if a picture is worth a 1000 words, this film is worth 10,000 blogs - by stringing so many of the Bush-bashing beads together in such entertaining and moving fashion, Fahrenheit 9/11 should bring the heart of the anti-Dubya critique right to the Heartland. I just wish it had covered its flank a little better by sticking to the cold, hard facts about the national embarrassment of historic proportions that is George W. Bush, rather than indulging every so often in cheap laughs and reflexive sentiment.

In three separate cases, the Supremes invoke the Magna Carta and the Founding Fathers to call out Dubya for the trampling of civil liberties under his watch. In the words of the Post, "the opinions, concurrences and dissents were decisive on this: They represent a nearly unanimous repudiation of the Bush administration's sweeping claims to power over those captives." (Nearly unanimous because Clarence Thomas, he of the "high-tech lynching," saw no problem with the US government holding prisoners indefinitely without cause or access to courts...perhaps he's trying to get invited to Cheney's next hunting trip.) It'd have been nice if the Supremes had gone farther and also decided on the Padilla case rather than kicking it back to a lower court, but still, this is a solid showing by the Bush v. Gore gang. As Salon waggishly put it, let freedom reign.

The NYT reports that the prisoners of the Gitmo Gulag are at best small potatoes -- most having nothing to do with Al Qaeda at all -- and that the Pentagon and Dubya administration have continually overstated the detainees' level of knowledge about Al Qaeda in order to justify the continued existence of the Guantanamo camp. "'It's like going to a prison in upstate to find out what's happening on the streets of New York,' a counterterrorism official with knowledge of Guantánamo intelligence said. 'The guys in there might know some stuff. But they haven't been part of what's going on for a few years.'" When it comes to the War on Terror, is there anything the Bush administration doesn't lie about anymore?

While authorization for attack dog intimidation techniques implicate intelligence higher-ups in the horrors of Abu Ghraib, Bush gets legalistic to (not) explain the pro-torture policies emanating from his administration. Hmmm. I bet the White House is wishing Reagan could die every week right now.

I missed most of the recent discoveries about Dubya's pro-torture policy changes during my cable outage, but Value Judgment has birddogged a nice Washington Post editorial that sums up the story so far. "There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of 'national security.'"

They can't handle the truth...Senator John Warner (R-VA) takes heat from his fellow Republicans for leading the inquiry into Abu Ghraib.

Be afraid. Be very afraid. And don't say we didn't warn you. Nothing changes an undesirable news cycle quite like another terror threat, does it? As the AP article notes: "The sudden warning returns the nation's attention to terrorism, the issue that President Bush has highlighted as a central theme of his re-election campaign, after intense focus on other subjects like Iraq and prisoner abuses in Iraq. Bush has lost ground in the polls, falling in approval ratings to the lowest point of his presidency."

To be fair, releasing pics of the possible suspects is probably more helpful in preventing a future attack than the usual exhortations to buy duct tape. And nobody want to see another 9/11, particularly those of us who live in NYC. Still, the very fact that news articles have to concede that Dubya may just be pushing the Panic button for political points proves how untrustworthy this president has become. And don't you love how Bush officials keep suggesting that Al Qaeda wants to "have some impact on the electoral process," as if voting Democratic means the terrorists have won? Sorry, but you'll have to count me among the many Americans who thinks that terrorists have more to fear from John Kerry than they ever would from Dubya's haphazard and crony-driven homeland security agenda.

So the word emerging from Cannes on Michael Moore's Fahrenheit 9/11 is very positive so far. I'm very curious to see what kind of reaction this film will get stateside, once the distribution situation has been resolved. Hopefully, it'll end up doing more than just preaching to the converted in arthouses across America, as it sounds like it has the potential to be very big.

Jan 25, 2002: "'As you have said, the war against terrorism is a new kind of war,' Gonzales wrote to Bush. 'The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.' Gonzales concluded in stark terms: 'In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.' Dismissing the Geneva Conventions, two full years before the atrocities at Abu Ghreib? That giant sucking sound you hear is the void left by White House Counsel Alberto Gonzales's incredible imploding Supreme Court bid. He's probably got less chance now than Ken Starr of taking the nation's highest bench, and for good reason.

A handful of GOP libertarians join Dems in blocking reauthorization of the Patriot Act.

Earth to Inhofe? Earth to Inhofe? Nope, no answer. While several GOP leaders are turning on Dubya (and Rumsfeld) after recent events, Senator James Inhofe (R-OK) is not among them. To the contrary, he lost it in committee today, proclaiming that he is "probably not the only one up at this table that is more outraged by the outrage than we are by the treatment" of prisoners at Abu Ghraib. (For their part, Senators John McCain (R-AZ) and Lindsay Graham (R-SC) disavowed Inhofe immediately.) One would be tempted to write Inhofe off as simply a crank, until you peruse the many similar responses emanating from the Right about the relative newsworthiness of US soldiers engaging in torture and assorted other depravities. Mind you, these are the exact same Defenders of American Values who wore moral outrage like a cheap cologne all through l'affaire Lewinsky...some people have no shame. Update: Sure enough, the Right rallies around Inhofe.

With Rummy on the ropes, Dubya and Cheney rush to the defense of their man in Defense. Hey, hold him to your breast as long as possible, Mr. President...maybe then, you'll all go down together come November.

I don't know how we will ever recover from this. Medley aptly sums up my stomach-churning disgust at the Iraq atrocity photos now circulating around the world. If there wasn't a connection between Dubya's carnival sideshow in Iraq and the war in terror before, there assuredly is now. And if a picture is worth a thousand words, just think how many possible US-hating terrorists have been born with each one of these vile and grotesque snapshots. Our entire nation and way of life have been shamed by these depravities, perhaps to fatal effect.

Slate's Dahlia Lithwick reports in on the Bush administration's twin attempts before the Supreme Court to lock up US citizens and hide their shady energy deals indefinitely. Update: The Times and Post weigh in as well.

Despite Justice Scalia carrying water for Ted Olson and the Bush team as per usual, it seems that a majority of the Supreme Court may not be amused by Dubya's defense of the Gitmo gulag.

Facing increasing criticism for his closed-door colloquys, Justice Scalia backs down to some extent on Speechgate...he now says he'll allow print reporters to transcribe his remarks, but not radio or television journalists. What, may I ask, is our esteemed Justice afraid of? Surely he can find a way to express himself more moderately for televised public consumption. He'll just have to give up the Cheney hunting stories.

Nat Hentoff files another dispatch on Guantanamo, and it ain't pretty. "The authority to unilaterally keep a defendant locked up?conceivably for the rest of his or her life?used to be reserved solely for kings, who could ignore any part of the realm's legal system. This monarchical power?as I've indicated in reporting on the indefinite imprisonment, without charges, of American citizens Yaser Hamdi and Jose Padilla?has been expanded by George W. Bush to include defendants at Guantᮡmo."

Seen on CNN Saturday afternoon - Elaine Newton (whom long-term readers will remember as my ex-wife) discusses her online Camera Watch project at Carnegie Mellon. Hmmm...small world, and it appears to be getting smaller all the time.

A CIA inquiry delves into the Bush administration to ascertain which [Karl Rove]Dubya flunky[/Karl Rove] was motivated by petty revenge and political calculation to compromise the identity of an agent. Just like the Bushies to play political games with both our collective and individual security...Hopefully the Agency will get to the bottom of this White House felony more thoroughly than they did WMDgate.

In keeping with his Judge Danforth-like predilections, Attorney General Ashcroft issued an edict that would limit plea bargains and lawyerly discretion over which charges to bring in a federal suit. Again, when will Ashcroft follow his own pronouncements, lock up his nephew, and throw away the key?

Looks like it's a bad day for imperious Dubya appointees. In the wake of Congress's recent decision to limit the powers of the Patriot Act, a defiant Ashcroft wants his toys back. Also facing considerable bipartisan and public criticism, Michael Powell appoints a task force on media consolidation. As Copps notes in the article, next time perhaps it'd be better to do the fact-finding before you vote.

The LA Times relates the sad story of Ansar Mahmood, who has paid a heavy price for being a Muslim in America after 9/11. In not-unrelated news, Ashcroft cracks down on lenient sentencing. Perhaps they'll reconsider his nephew's drug bust, then.

The ACLU and six Muslim groups launch the first constitutional challenge against the Patriot Act. This should be one to watch. In related news, James Ridgeway examines the Clintonian antecedents of the Act.

I know conservatives think free markets solve everything, but this is ridiculous. The Pentagon creates a futures market for terrorism in order to better predict possible attacks and assassinations. Um, somebody might want to tell the brass that these are basically called Dead Pools, and have been around for years now. Update: Well, that's that, then.

Not just theory anymore, an internal Justice Dept. report cites numerous civil rights violations under the Patriot Act. It was only a matter of time, wasn't it?

"This is coming whether we like it or not...It's not how do we stop the tidal wave. It's how do we manage it." The Village Voice laments the creation of Combat Zones That See, or CTS. Smile, you'll be on camera.

"Two senators—one a conservative Republican, the other a moderate Democrat—who spoke with Ashcroft...were surprised at his lack of command of the basic issues. Whether it was lack of interest or lack of intellectual firepower, the Attorney General seemed not to appreciate the complexities of the constitutional issues he was dealing with." Nat Hentoff cites Stephen Brill's After to depict amateur hour in the Ashcroft Justice Department.

"He should turn it in to his professor, get his grade -- and then they both should burn it." A GMU grad student finds his infrastructure research may be groundbreaking...and dangerous.

"If I felt that my neighbor of 10 years was doing fundraising for a group, I'd turn 'em in...[the FBI will] just investigate them—and if you're wrong, you're wrong. And if you're right, that's a big thing!" In other words, report your neighbor! What's the harm? Suspicion breeds confidence! The Voice's James Ridgeway notes the proliferation of Cat Eyes, a neighborhood "civil defense" group encouraging citizens to look out for suspicious behavior. Underneath the spreading chestnut tree...

The Post profiles Anthony Romero, the current head of the ACLU. Intriguing to note that the organization has grown by 33% (100,000 new members) in the past eighteen months. Even if I disagree strongly with the ACLU on campaign finance, I think most of the time they're doing God's work. So that membership stat may end up being Ashcroft's only positive legacy.

Robert Kennedy? I knew Robert Kennedy, Robert Kennedy was my father, and Attorney General Ashcroft, you are no Robert Kennedy.

In related news, how are your federal anti-terrorist tax dollars being spent? Thanks to Ashcroft and Tom De Lay, to interdict Texas Democrats, not terrorists. Apparently, De Lay and his Texas cronies brought the Feds in to spy on their political enemies (during their redistricting sojourn to Oklahoma), and then engaged in a shredding-fest the day federal involvement came to light. I suppose with Ashcroft at the helm it was only a matter of time before our terrorist defense shield started operating this way.

Like a junkie looking for another fix, Ashcroft takes time away from putting down gay pride events to beg Congress for increased powers in fighting terrorism. If the death penalty doesn't even work as a deterrent in "normal" crime, why would it stop terrorists?

Among its many, many, MANY faults, apparently Patriot Act II also guts the Clean Air Act. Bizarre. In related news, Attorney-General Ashcroft finds an unlikely ally in NY Senator Chuck Schumer.

It looks like the worst-case scenario outlined by Alternet yesterday is coming about sooner than expected. Senator Orrin Hatch leads a GOP charge to eliminate the sunset provisions in the Patriot Act, thus making permanent the sweeping antiterrorism provisions of the first bill and setting the stage for PATRIOT II. Let's hope Hatch doesn't have the votes.

Wiretaps, deportations, DNA databases, secret arrests, you name it. Alternet summarizes the many dangerous implications of PATRIOT II, Attorney General Ashcroft's upcoming salvo against American civil liberties. The Bushies are going to need another war to pass this one off on us. (Via Genehack, whom I've got my eye on...)

When times are this crazy, trust The Onion to come through in the clutch. True patriots know that a price of freedom is periodic submission to the will of our leaders—especially when the liberties granted us by the Constitution are at stake. What good is our right to free speech if our soldiers are too demoralized to defend that right, thanks to disparaging remarks made about their commander-in-chief by the Dixie Chicks? I should not be allowed to say the following things about America, especially during wartime.

Supreme Court Justice Antonin Scalia accepts a free speech award...while muzzling the press. War or no, the blatant examples of conservative doublethink lately are getting outrageous. In loosely related news, the FBI track down a long-lost copy of the Bill of Rights. Think they could let Ashcroft take a gander before they return it to NC? The Attorney General seems to have gotten caught up somewhere around the Second Amendment.

Nat Hentoff recoils at the provisions of the Domestic Security Enhancement Act of 2003, Attorney General Aschroft's next salvo in the war on civil liberties. Meanwhile, Dubya's bean counters at the White House OMB try to ascertain the monetary value of lost privacy and freedom. Sigh...you know it's gotten bad when even GOP apparatchiks like Dick Armey are calling out the Justice Department.

It came out yesterday that two suspected Al Qaeda operatives held in US custody died from "blunt force injuries" during interrogations. Even if these wounds were perpetrated before their capture (which is a big if), it's utterly dismaying to read where the line is being drawn by our government between "stress and duress" and out-and-out torture. Equally stomach-turning is that we apparently subcontract out the tough nuts to crack to those nations even less perturbed by the ethics of torture than we are. What have we become?

Speaking of Orwell (is it Eurasia or Eastasia today, Saddam or Osama?), the Dubya administration capitalizes on terror panic to drum up war fever (and good media coverage.) It's amazing to me how worried many people here in town seemed about the recent orange alert (status update via Looka.) One friend told me that his out-of-town guests cancelled their flight into the city because of a possible attack, and a handful of other folks I know wouldn't use the subway. I dunno...I just can't get too stressed about something that's so completely out of my hands. Besides, it's probably true that living in New York City increases the chances that I'll die as a result of terrorism, but it also vastly decreases the chances that I'll die in a car wreck, which is still the leading cause of death in America for people under 33. So, it's basically a wash. Not that I'm ambivalent about perishing in a gas attack or something worse, mind you, but I just don't see the utility in freaking out every time the US intelligence community decides to cover its ass by issuing warnings based on non-specific "specific information."

Dahlia Lithwick fills us in on the legal standing of the pro-life license plates sprouting up across the South these days. Hmmm. I assume these plates afford much better protection from random police stops than would, say, a "Jah is my Co-Pilot" bumper sticker. I'm curious as to what percentage of these license plate owners also drive easy-to-flip SUV's. If you're so pro-life there, fella, why are you driving such a pro-death vehicle?

Checks and balances? Bah, humbug. Like the legislative branch on the matter of Iraq, the judiciary has now also capitulated to the chief executive, allowing Dubya to detain American citizens at will in the name of fighting terrorism. Oh, heck, let's bring back torture too while we're at it.

Citing Cheney's energy meetings, Ashcroft's FOIA directives, the holding of the (Iran-Contra explaining?) Reagan papers, and a host of other Dubya decisions that seem unnecessarily marked private, the NY Times (quoting Alan Brinkley) finds the Bush fils administration the most secretive in American history. But whatever would they have to hide?

Via a friend of mine in the program, Professors Eric Foner (with whom I've taken two classes) and Glenda Gilmore offer a rebuttal to Daniel Pipes' recent list of academics who hate America. An article like this really doesn't deserve a response but, simply put, Pipes is a moron. Reading any chapter of Foner's recent Story of American Freedom -- or any of his other books for that matter -- belies Pipes' ridiculous and dangerous charge of anti-Americanism. And finding fault with Dubya's wag-the-dog Freudian fiasco in Iraq, a soon-to-be-military excursion that has already run roughshod over our Constitution, hardly speaks ill of anyone's patriotism.

If anything, it's egregiously anti-American for Pipes to earmark academics who should be constrained from the "outside." A quote the Daniel Pipes of this world ought to consider: In the words of Cornel West, "To understand your country, you must love it. To love it, you must, in a sense, accept it. To accept it as how it is, however is to betray it. To accept your country without betraying it, you must love it for that in it which shows what it might become. America – this monument to the genius of ordinary men and women, this place where hope becomes capacity, this long, halting turn of the no into the yes, needs citizens who love it enough to reimagine and remake it."

Also courtesy of Looka, John Ashcroft is encouraging Justice Department lawyers to evade - or break -the Freedom of Information Act whenever possible. How frighteningly typical of our Attorney General...you gotta wonder at this point if he dresses up like Judge Dredd when nobody's looking.

Oh, these suspects have very important information...they're just not allowed to tell it. As the Ashcroft Justice Department leaps at the chance to try out their newly validated surveillance powers, the Post examines their contortion of a 1984 material witness statute to keep terrorist suspects locked up indefinitely. Very sneaky...but how far can you bend a law before it breaks?

Well, that's that, then. Despite some historic raging against the bureaucratic behemoth by Sen. Robert Byrd, the Senate passes the Homeland Security Act 90-9. Nice to see Feingold voted against it, at any rate. Well, here's hoping my extra history degree will find me a place in Information Adjustments (and well away from the careerists in Information Retrieval.) Hmm...speaking of which, I wonder what history books out there might suggest "patterns indicative of terrorist activity." Guess I better buy them earlier rather than later...and in cash.

An appeal court today approved broadened wiretap powers for John Ashcroft's Justice Department. (But don't worry...they'll only use it on the bad people.) In loosely related news, the Dems are discovering a filibuster won't work in stopping much of the GOP's desired legislation, including oil and gas drilling of the Arctic Wildlife Refuge. Looks like things'll be getting worse before they get better.

Speaking of big oil, I was doing some reading between classes in what passes for a student center here at Columbia and ended up sitting next to the undergraduate pro-war-in-Iraq table. (To be honest, I'm always a bit startled by the conservatism of today's undergraduate community, although I suppose it wasn't much different in my day - I still remember the drunken revelries all over campus that accompanied the 1994 midterms.) At any rate, I noticed the organization's name was Students United for Victory, which would make their acronym SUV. Ah well, I presume the irony was lost on these earnest young hawks.

With full control of Congress, the President declares homeland security his top priority, and will move on the Senate-stymied bill to create the Department of Homeland Security during the lame-duck session. Mmm, security...sounds doubleplussgood. So do I have to get my bar code on the side of my head like 12 Monkeys, or can I put it on the back of my neck or something?

Be afraid. Be very afraid. In fact, panic. And remember, if something bad happens, we told you. So it's not our fault. Nope, no sir. Oh, and happy halloween.

Strange times, indeed...are Bob Barr and Dick Armey our last, best hope in preventing Ashcroft's America?

Speaking of the Supreme Court, the inimitable Dahlia Lithwick sits through First Monday (and takes time to check in on Winona.)

Former President Jimmy Carter decries Dubya's Middle East policy, as well as the numerous human rights violations currently being overlooked and/or perpetrated in the name of anti-terrorism.

The only thing the FISA court proved was that when wolves are guarding the henhouse, they eat a lot of coq au vin. The always incisive Dahlia Lithwick rails against secret courts and the overlooked provisions of the Patriot Act.

The secret court overseeing the Foreign Intelligence Surveillance Act (FISA) rebuff Ashcroft's plea for increased wiretap powers, and declares the FBI has misled the court over 75 times. Never thought I'd be on the side of a secret court, but there you go. It must be getting really ugly over at Justice if somebody's leaking this bad boy.

Sketching an eerie parallel to Ashcroft's current war on libraries, Derrick Jackson surveys the FBI's long and ignoble history concerning Black America.

Jonathan Turley, Constitutional Law professor at GW and television staple during l'affaire Lewinsky, lashes into John Ashcroft for his recent plan to create extraconstitutional internment camps of "enemy combatants" (re: US citizens) in and around the country. (Via Caught in Between.) Y'know, I do believe John Ashcroft is the scariest man in the country right now.

All manner of Dept. of Homeland Security Posters (Via Do You Feel Loved?) As Chris noted, some of 'em are kinda shrill, but I'm a sucker for the retro stylings.

How you like them apples? Even conservatives are sick of Ashcroft. And so, it turns out, are many of are his underlings, who are clashing with him on gun checks.

...cause your shopping habits are being monitored. I wonder what the Feds would think of my alarming intake of Red Bull and Mt. Dew Code Red.

How to Identify a Terrorist, from the Office of Homeland Security. (Via Quiddity.)

So much for Independence Day. "The majority opinion in Earls reflects some of the worst results-based decision-making we've seen since Bush v. Gore. And like Bush v. Gore, it is rooted in panic, expediency, and a twisting of prior precedent to fit the facts." Dahlia Lithwick excoriates the Supreme Court for their recent decision to force urine tests on high school kids.

Armed with the Patriot Act (what a wonderfully Orwellian name) signed by Dubya last October, the FBI begins scouring libraries to check "terrorist" reading habits. Good news for your local Barnes and Noble, I suppose, who'll probably be selling a lot more copies of The Anarchist's Cookbook from now herein. I'd love to see a sample list of what books make the FBI's red flag list.

The Voice takes a look at the legal dream team who are leading Dubya's assault on civil liberties.

A key Republican comes out against the Ashcroft revisions to the FBI.

Ashcroft loosens restrictions on the FBI in the name of fighting terrorism. Hmmm...I wonder if he'll let them conduct surveillance on gun nuts.