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(Ok, admittedly, that's still unsubstantiated. Sorry, couldn't resist.) In any event, a sturdy and plodding workhorse of a biopic, Clint Eastwood's J. Edgar attempts to humanize the man who fanned forty years of fears about Communism to become architect of the F.B.I. and one of the most powerful figures in Washington. It's...not bad, and I would say I was engaged for most of the movie's run. But, even despite all the Brokeback Mountain-style kabuki restraint that Eastwood must've felt he had to employ to do justice to the are-they-or-aren't-they relationship of Hoover and longtime partner Clyde Tolson, a film about a figure as polarizing as J. Edgar Hoover should take stronger stands about its subject. Despite some very good (and, in di Caprio's case, very bizarre) performances, this is mostly biopic mush.

It doesn't help that Eastwood has yet again opted for the tinkly piano and gray palette that seems to characterize all of his historical pictures. This worked wonders for Letters of Iwo Jima, not so much for Flags of our Fathers and this film. Here, Eastwood has set a story beginning in 1919 -- perhaps the most lurid and tumultuous single year for America in the 20th century (I'm only ever-so-slightly biased on this) -- and made it look like a drab, washed-out daguerrotype. In that fateful summer, after an anarchist's bomb blows up the front porch of Attorney General A. Mitchell Palmer's house in the ritzy West End of Washington (his neighbors, Franklin and Eleanor Roosevelt, had just parked down the street), Hoover is hand-picked to run the new "General Intelligence Division" of the Justice Department that will bring the perpetrators to justice.

With previous experience at the Library of Congress in organizing information, Hoover soon takes on two key assistants in Tolson (Armie Hammer, once again exuding Ivy League entitlement) and personal secretary Helen Gandy (Naomi Watts, who gets the best of the age make-up), and quickly attempts to make a CSI of the GID. Cut to forty years later, and Hoover -- now balding, paunchy, and covered in latex -- is obsessively snooping on Martin Luther King and making veiled threats to Attorney General Bobby Kennedy about his brother's sleeping habits. With our two historical poles established, the rest of J. Edgar flits back and forth in time, telling the story of its protagonist as both a young and old man - Other than these two moments, the film spends most of its time, strangely enough, dealing with the kidnapping of the Lindbergh baby. (In 2004, when discussing The Alamo, I noted how fun it is to cast the story of American history with actors. Let me say that Josh Lucas totally works as Charles Lindbergh.)

For the most part, J. Edgar is an innocuous edutainment. But it also has some serious problems, and not just the standard-issue groanworthy biopic tropes like Freudian parent issues overdetermining the subject's entire life story. (Here, Mom (Judi Dench) is a stern and overbearing sort who forces Hoover to bury his secrets within, even as he's trying to pry up everyone else's.) Y'see, it comes out rather late in the third act that Eastwood and screenwriter Dustin Lance Black have attempted to add a Fight Club-ish "unreliable narrator" schtick to the film: The whole time, we've been watching Hoover's sanitized retelling of his own history. But this should-be-huge reveal is underplayed, and thus becomes somewhat buried. And, as a result, people who don't know anything about the times are going to leave a theater with a very wrongheaded sense of the story.

For example, it's never mentioned or adequately explained that the 1919 anarchist bombings which open the film only killed two people -- one of them the bomber on Palmer's porch, who either tripped or mis-timed the blast -- and that, not unlike recent times, pretty much everything Palmer and Hoover did subsequently in 1919 was a massive overreaction. (Hence, the "Red Scare.") They show Hoover and a team of G-men knocking down an anarchist printing press in Paterson, New Jersey linked to the bombs, but, with the arguable exception of Emma Goldman's deportation proceedings at Ellis Island, they don't show any of the many, many raids that were just glorified fishing expeditions and/or excuses to remove foreign-born potential Communists from American shores.

Similarly, when the film briefly depicts the Centralia Massacre that same year, it shows events in a way that Hoover, and many other Americans, probably saw them -- I.W.W. radicals killing patriotic veterans in a turkey shoot. But that depiction does violence to the much more complicated truth of the event, which involved American Legion members deciding first to go march on some radical Wobblies. And you'd never know that the culmination of that day was an I.W.W. member and veteran grabbed from jail by soldiers, beaten, castrated, hung, hung, hung, shot, and shot. Again, Eastwood and Black have written themselves a pass for this, because they hint Hoover is an unreliable narrator at the end of the film. But that lede is buried.

So the history has definite issues, and this same tendency towards whitewashing detracts from the whole film. Granted, given how little we know, the Tolson-Hoover relationship should perhaps be treated with this discretion -- although my understanding is they were more conceived of as a couple than this film lets on. (FWIW, Hammer is quite good here despite some unfortunate age-makeup, and a Supporting Actor nod is likely.) But, that aside, and to be blunt about it, sometimes an asshole is just an asshole. One can argue that Hoover had all the reasons in the world to be the way he was -- an overbearing mom, a traumatic secret, whathaveyou. But this film spends more time trying to make us feel charitable towards its protagonist than it does putting his behavior in any kind of appropriate context. (For example, why is Hoover obsessed with MLK? Should he be wiretapping him? It's never really addressed.) Should we feel for J. Edgar, after hearing his story? Perhaps, yes. But we should also leave the theater with a clearer sense of how illegal and often reprehensible his rise to power really was.

"Calling the blockade a 'dangerous, oppressive and undemocratic' attack led by the United States, Mr. Assange said at a news conference here that it had deprived his organization of 'tens of millions of dollars,' and warned, 'If WikiLeaks does not find a way to remove this blockade, we will not be able to continue by the turn of the new year.'"

Another scalp for the War on Whistleblowers: Strapped for cash thanks to Visa, Mastercard, PayPal, and Western Union blocking transactions, Julian Assange warns that Wikileaks may have to close its doors soon. That would be a shame: In this day and age, we need something approaching real and undomesticated journalism. (Pic above via, ironically, Facebook.)

"The Attorney-General's kind remarks are noted and appreciated. I've spoken to Ed Burns and we are prepared to go to work on season six of The Wire if the Department of Justice is equally ready to reconsider and address its continuing prosecution of our misguided, destructive and dehumanising drug prohibition."

I saw this a few weeks ago, and Follow me Here reminded me of it: As we pass the fortieth anniversary of the failed war on drugs, Wire creator David Simon makes a deal with Attorney General Eric Holder: End the drug war for a Wire season six. As if there weren't already enough good reasons to do so, S6 would be the cherry on top.

"When the clock strikes midnight tomorrow, we would be giving terrorists the opportunity to plot attacks against our country, undetected,' Senate Majority Leader Harry Reid said on the Senate floor Wednesday...'[Any delay would] increase the risk of a retaliatory terrorist strike against the homeland and hamper our ability to deal a truly fatal blow to al-Qaida."

Honestly, what is this horseshit? In a disturbingly complete 180 from his comments the last time this came up back in 2006 -- although, to be fair, he eventually folded like an accordion then too -- Senate Majority Leader Harry Reid dusts off the Cheneyite talking points to call for an immediate, unamended extension of the PATRIOT Act. (It passed the Senate today, 72-23.)

Contrast this with Reid in 2005: "'We killed the Patriot Act,' boasted Minority Leader Harry Reid...to cheers from a crowd at a political rally after the vote." Ladies and gentlemen, our Democratic Senate Majority Leader. And, yet, however hackadocious Reid is being in this instance, let's remember -- this is coming from the top, from the constitutional scholars at the White House. After all, as Mike Riggs notes in Reason: "If the PATRIOT Act lapses, and a sarlacc does not swallow LAX immediately after, it'll be that much harder to convince Americans that those provisions are necessary."

"Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book 'Necessary Secrets' (2010), argues for more stringent protection of classified information, says, 'Ironically, Obama has presided over the most draconian crackdown on leaks in our history -- even more so than Nixon.'"

In the New Yorker, Jane Mayer delves deeply into the Obama administration's continued war on whistleblowers, via the prosecution of NSA whistleblower Thomas Drake. (See also Glenn Greenwald on this, as well as here and here.) "'I actually had hopes for Obama...[b]ut power is incredibly destructive,' Drake said. 'It's a weird, pathological thing. I also think the intelligence community coöpted Obama, because he's rather naïve about national security. He's accepted the fear and secrecy. We're in a scary space in this country.'"

"'There can be no conceivable justification for requiring a soldier to surrender all his clothing, remain naked in his cell for seven hours, and then stand at attention the subsequent morning,' he wrote. 'This treatment is even more degrading considering that Pfc. Manning is being monitored -- both by direct observation and by video -- at all times.'"

Sometimes I don't post here because I'm really busy. Sometimes I don't post here because the news is too damned depressing: The United States takes another big step towards Miniluv by applying Dubya-era torture and intimidation techniques to an American citizen in custody for leaking, Bradley Manning. (Y'see, it's a four lights = five lights kinda thing. Manning has to break -- and then, like Zubadayah and KSM, voice untruths -- for there to be any sort of possible criminal conspiracy case against Wikileaks.)

What is there to say, really? State Department spokesman P.J. Crowley already correctly stated that this abusive treatment of Manning was "ridiculous, counterproductive, and stupid," and, within days, he was fired for stating the obvious.

The president, meanwhile, assures us everything is ok because the Pentagon said so: "I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards. They assure me that they are." This, as Glenn Greenwald (who's been on top of this all the way) points out, is exactly the same rationale Dubya used to use: "'When [Bush] asked 'the most senior legal officers in the U.S. government' to review interrogation methods, 'they assured me they did not constitute torture.'" Well, ok then.

So let's review. Dubya's administration constructs an illegal and unconstitutional torture regime -- Nobody goes to jail, and nothing changes. (Look forward, not backward!) The Dubya administration lies to the American people in order to prosecute a war of choice in Iraq. Nobody goes to jail, and nothing changes. Through greed and outright fraud, Wall Street traders implode the global economy to the tune of trillions of dollars, and, with the convenient exception of Bernie Madoff, nobody goes to jail, and nothing changes. (Synthetic junk, anyone?) Big banks continue their crime spree by engaging in a massive epidemic of foreclosure fraud, and nobody goes to jail (but we'll make them promise not to do it again!)

Oh, and an Army private leaks "secret" documents (so secret they were available to millions of people) because "[h]e wanted people held accountable and wanted to see this didn't happen again" -- the very definition of whistleblowing -- and now we're treating him like Winston Smith. (Then again, our president does despise whistleblowers.)

Should Manning be in U.S. custody right now? Yes. He took an oath to the United States military and, knowing full well the consequences, broke it in an act of civil disobedience. If you can't do the time, don't do the crime -- I get that. But should Manning be abused and tortured in U.S. custody? Of course not -- Nobody should be. In fact, I thought we elected Barack Obama as president to make sure this never happened again.

Nope, sorry. Instead, President Obama fired Crowley and is owning what's happening to Manning right now. He also just reinstated and normalized indefinite detentions at Gitmo. (Obama the constitutional scholar? Meet the Fifth and Sixth Amendments.) And when not perpetuating Dubya-era illegalities, he (and new lefty-bashing chief of staff) spend their days talking up the deficit, talking down regulation, and hoping the Chamber and the NRA take their meetings. Feel those winds of change, y'all. (Obama meme pic above via here.)

Update: "Based on 30 years of government experience, if you have to explain why a guy is standing naked in the middle of a jail cell, you have a policy in need of urgent review." P.J. Crowley reflects on his recent firing. "I stand by what I said. The United States should set the global standard for treatment of its citizens - and then exceed it. It is what the world expects of us. It is what we should expect of ourselves."

"After the Anonymous attacks and the release of Barr's e-mails, his partners furiously distanced themselves from Barr's work. Palantir CEO Dr. Alex Karp wrote, 'We do not provide -- nor do we have any plans to develop -- offensive cyber capabilities...' But both of the Team Themis leads at these companies knew exactly what was being proposed...They saw Barr's e-mails, and they used his work. His ideas on attacking WikiLeaks made it almost verbatim into a Palantir slide about 'proactive tactics.'"

Strange powers have our enemies, and strange weaknesses! In Wired, Nate Anderson of Ars Technica fdelves into the story behind the highly troubling HBGary leaks. Among other things, these leaks have already revealed that:

1. Bank of America contemplated hiring private-intelligence goons -- the aforementioned HBGary, the aptly-named Palantir Technologies, and third-wheel Berico Technologies -- to spread anti-Wikileaks disinformation discredit Salon's Glenn Greenwald.


2. The Chamber of Commerce has been using their services to conduct surveillance on and smear progressives and unions.


3. These organizations are manufacturing sock-puppets wholesale to create an "illusion of consensus" on behalf of their clients.


4. Private security firms like the aforementioned ones above are, as Marcy Wheeler puts it, deploying "intelligence techniques developed for use on terrorists [against] citizens exercising their First Amendment rights." And


5. These morons actually tried to charge their clients $2000 a day for what amounts to trolling services.

As HBGary target Glenn sums it up: "What is set forth in these proposals for Bank of America quite possibly constitutes serious crimes. Manufacturing and submitting fake documents with the intent they be published likely constitutes forgery and fraud. Threatening the careers of journalists and activists in order to force them to be silent is possibly extortion...Attacking WikiLeaks' computer infrastructure in an attempt to compromise their sources undoubtedly violates numerous cyber laws. Yet these firms had no compunction about proposing such measures...and even writing them down. What accounts for that brazen disregard of risk? In this world, law does not exist as a constraint."

In other words, they do not fear the law because it has forsaken these lands. And, hey, when you consider that nobody has yet gone to jail for lying the American people into a trillion-dollar war, setting up an illegal, unconstitutional, and inhumane torture regime, or fraudulently abetting or even precipitating a multi-trillion-dollar economic meltdown, their brazen calculation seems like a pretty safe bet.

"A military trial of civilians is an atrocity..." Now isn't that quaint? Union war hero James McAvoy finds himself reluctantly defending Robin Wright (a.k.a. Mary Surratt), a possible accessory to the assassination of Abraham Lincoln, in the trailer for Robert Redford's The Conspirator, also with Kevin Kline, Justin Long, Alexis Bledel, Evan Rachel Wood, Colm Meaney, Danny Huston, and Tom Wilkinson. Here's hoping the historical setting here can ease the didacticism that marred Lions for Lambs.

"'To the extent there are gaps in our laws,' Holder continued, 'we will move to close those gaps, which is not to say...that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that's ongoing."

After another embarrassing document dump by Wikileaks -- this time diplomatic cables, next time Bank of America? -- Attorney General Holder threatens the prosecution of Julian Assange, an Australian citizen -- most likely under the Espionage Act, the same catch-all 1917 law used to lock up Eugene Debs back in the day.

First of all, Gawker's John Cook has already explained why this attempted line of prosecution doesn't work. However docile the "nation's watchdogs" remain on any other given day, the newspapers that published these leaks would have to be considered co-conspirators in any Espionage Act-related indictment. "We think its fairly obvious that the Department of Justice won't go after the Times or any of the other papers involved in the story. But if it doesn't, that's just evidence that its attempt to use the Espionage Act to go after Assange isn't about enforcing laws: It's about retribution, harassment, and rattling sabers."

Secondly, if Assange wants to avoid federal prosecution, perhaps he should just...I dunno...torture somebody? Or maybe rip off the American people for trillions of dollars? Or how 'bout just spying on Americans via warrantless wiretap? Apparently, disclosing those kinds of secrets is one of those look-forward-not-backward kinda things.

Let's get real here. There's no threat to our troops in these leaks -- Even the Pentagon admits that. (A more overlooked problem, as a friend pointed out, is what this leak might mean for human rights workers.) Wikleaks' methods are of the blunderbuss variety, yes. (That probably speaks in their favor: They don't seem to tailor their leaks to suit a predetermined spin. They just dump data. And, hey, somebody should be doing the media's job.) And, sure, Assange comes off as more than a bit pretentious, but what of it? If being a jackass were a crime, our prison system in this country would be completely broken...oh wait, it already is.

In the end, as Glenn Greenwald well put it, "our government and political culture is so far toward the extreme pole of excessive, improper secrecy that that is clearly the far more significant threat." You'd think an administration that ran on unparalleled transparency in government might feel the same way. But, sadly, like its predecessor, the only crime this administration really seems to hate is whistleblowing.

"From the early 1930s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5% (44 of 54) of articles on the subject and The Los Angeles Times did so in 96.3% of articles (26 of 27). By contrast, from 2002-2008...The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4%). The Los Angeles Times did so in 4.8% of articles (3 of 63)."

By way of Greenwald and Sullivan, a Harvard study documents exactly how absurdly our national media carried water for the Dubya-era torture regime. "In addition, the newspapers are much more likely to call waterboarding torture if a country other than the United States is the perpetrator."

This story, along with Politico's gaffetastic reaction to Rolling Stone's Michael Hastings doing real journalism on the McChrystal story -- ("Hastings would be considered a bigger risk to be given unfettered access, compared with a beat reporter, who would not risk burning bridges by publishing many of McChrystal's remarks" -- See also Lara Logan) and Joke Line deeming Glenn Greenwald a traitor because he dared to call unrepentant Iraq war evidence-falsifier Jeff Goldberg a horrible journalist ("Greenwald...so far as I can tell, only regards the United States as a force for evil in the world.") pretty much tells you everything you need to know about our broken and corrupt Village media. And this is all just in the past week. Rinse and repeat, over and over and over again. (Pic via here.)

"'A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,' Justice Kennedy wrote.'" Breaking 5-4 along the usual lines -- Roberts, Alito, Thomas, Scalia, and Kennedy in the majority -- the Supreme Court determines Miranda rights must now be specifically invoked. "Justice Sonia Sotomayor, in her first major dissent, said the decision 'turns Miranda upside down' and 'bodes poorly for the fundamental principles that Miranda protects.'"

One important note: "The majority ruling is in line with the position taken by the Obama administration and Supreme Court nominee U.S. Solicitor General Elena Kagan. In December, she filed a brief on the side of Michigan prosecutors and argued that 'the government need not prove that a suspect expressly waived his rights.'" And, given that this administration is currently working to rewrite Miranda to stop the terr'ists, I guess we shouldn't be too surprised.

"The relationship between the federal government and the oil company has been an awkward collaboration all along -- "We have them by the neck," Interior Secretary Ken Salazar said of BP in congressional testimony last week -- but it reached a turning point Monday when the administration said it no longer wants to share a podium with BP at the daily briefing in Louisiana. Instead, the national incident commander, Coast Guard Adm. Thad W. Allen, will give a solo briefing wherever he happens to be."

With "Top Kill" a failure, the way forward murky, the environmental impact likely irrevocable, and oil still flowing into the Gulf at a rate three times what BP tried to spin, the Obama administration begins to move toward a more confrontational footing, including having Attorney General Holder look into a possible criminal investigation. Yeah, I'd say there's a case there. And it'd be a much better use of Justice's time than its flat-out reprehensible war on whistleblowers. (Aquaman cover via Graphic Policy. And Spongebob fared little better.)

Update 2: "'We will prosecute to the fullest extent of the law, anyone who has violated the law,' Holder said. 'This disaster is nothing less than a tragedy.'" I'm all for it -- Let's get some accountability here for once. But, hey, you know what else is a tragedy? Torture. And you know what else? Indefinite detentions. And you know what else? The fraud-fueled Wall St. meltdown. As I noted above, the only folks this Justice Dept. seems to have been cracking down on so far, in full defiance of 2008 campaign promises about transparency, are whistleblowers. Their priorities have seemed awfully screwed-up thus far, to say the least.

"The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government's case and has no way of proving his innocence. I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary." Me too, Senator Obama, me too.

In a decisive break with his campaign stances and the best indicator yet that this administration is now happily perpetuating deeply troubling Bush-era policies, the President wins the right to hold detainees indefinitely in Bagram -- the difference from the Boumediene decision on Gitmo being that Bagram is a "war zone." (And Ben Franklin's admonition aside, that's an excuse you hear quite a bit these days.)

FWIW, Politico's Josh Gerstein -- while bending over backwards, as per the Village norm, not to call torture "torture" -- suggests civil liberties concerns are overblown here, but check out his reasoning: "The Obama administration...has, so far, resisted seeking a full-scale preventive detention law that would apply to future captives. Instead, it has pleaded with civil liberties and human rights groups not to oppose some legal mechanism to allow the continued detention of Al Qaeda captives, at least some of whom may be untriable because of aggressive interrogations many view as torture."

Oh, please. We have to hold them forever because we tortured them? How utterly and completely effed up is that? As Stephen Colbert well put it: "It's essentially the same stance taken by George Bush. With one important difference: Obama makes the kids like it."

"'I am confident that she's a solid, reliable modern Democrat...She's not George McGovern or whoever the liberal left of the Democratic party would want, but the left of the Democratic party isn't where the party is any more. She's a good, solid Clinton-Obama Democrat.'"

Well, that's the trick, isn't it? Particularly that she'll be replacing the irreplaceable John Paul Stevens. In any case, President Obama has made his second pick for the Supreme Court, and it is his Solicitor General and former Harvard Law Dean Elena Kagan. "As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition."

Making the progressive case for Kagan: Larry Lessig, an old friend of hers: "The Kagan I know is a progressive...[T]he core of Kagan's experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I've seen her flip the other side." Lessig expounds on this coalition-builder argument here: "To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left...But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes." (To which one must ask, really? Who's gonna flip?)

Making the progressive case against Kagan: Salon's Glenn Greenwald: "[G]iven that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who -- at best -- is a huge question mark?...I believe Kagan's absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her." This was a follow-up from another piece, where he argued: "Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of 'post-ideological' attribute Obama finds so attractive." Interestingly, this last part seems much the same argument Lessig's making in her favor, with the valence changed.

(As an aside, this feud got a bit heated, with Greenwald deeming Lessig a liar and stooge. Having been on the wrong end of Greenwald's wrath myself on the Citizens United case, Lessig's rebuttal to this charge sounded all-too familiar: "Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars...[Y]ou can make your point well enough without painting everyone else as liars or constitutional crazies." True story.)

Anyway, speaking of Citizens United, since the President has explicitly said that decision is lousy law several times over, I presume he's made sure Kagan is in agreement on that front. (He has, right?) And, as I said back during John Roberts' nomination, my feeling is generally the president's prerogative in choosing Supreme Court justices should be respected. (Can't countenance Roberts' lying, tho'.) So, if Kagan's the president's choice, I'm prepared to give her the benefit of the doubt and support the nomination.

But, quite frankly, I shouldn't have to doubt (and here, the next two links are via Greenwald.) As the NYT editorial page well put it: "President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view."

So, sure, I guess it's entirely possible Kagan is a secret superprogressive of the Leonard Cohen type. ("They sentenced me to 20 years of boredom, for trying to change the system from within.") But there's another explanation that's more likely. And, loath as I am to agree with David Brooks, his column today echoes almost exactly what I was thinking:

"Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook.) There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly. She has become a legal scholar without the interest scholars normally have in the contest of ideas. She's shown relatively little interest in coming up with new theories or influencing public debate. Her publication record is scant and carefully nonideological...What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess."

That's my rub too, and it dovetails with larger problems I have with DC political culture. More often than not, the people who tend to succeed here are the ones who keep their head down, play the DC game, stay resolutely non-ideological and unobtrusive in their opinions. never go out on a limb, never say or do anything that could hurt their bid to be a Big (or Bigger) Shot down the road. (Hence, the whole phenomenon of The Village.)The problem is, these plodding, risk-averse careerist types are exactly the type of people you don't want making decisions in the end, because they will invariably lead to the plodding, risk-averse and too-often rudderless politics of the lowest common denominator.

I'm really hoping the future Justice Kagan isn't another example of this troubling trend, because as I said when Stevens retired: "The Court needs a strong and unabashed liberal conscience right now. What it emphatically does not need is another centrist technocrat that will help push the Court ever further to the right" But, as Kurt Vonnegut put it in Mother Night, "We are what we pretend to be, so we must be careful about what we pretend to be." And when someone spends decades being so careful and circumspect in the face of so many obvious injustices, both by recent administrations and in the world at large...well, I really have to wonder about their judgment.

Update: Having said all that, this recently unearthed 1996 internal campaign finance reform memo to Chief of Staff Leon Panetta, on which Kagan is one of six signers, suggests she is in fact on the right side of the campaign finance reform issue: "It is unfortunately true that almost any meaningful campaign finance reform proposal raises unconstitutional issues and will provoke legal challenge. This is inevitable in light of the Supreme Court's view -- which we believe to be mistaken in many cases -- that money is speech and attempts to limit the influence of money on our political system therefore raises First Amendment problems. We think...the Court should reexamine its premise that the freedom of speech guaranteed by the First Amendment always entails a right to throw money at the political system." So that's a big check-mark in my book -- Unfortunately, other Clinton-era memos are less promising.

Another very busy week at work, and haven't had time to do a real update. But, in the meantime, via @Normative and since today is Tolkien Reading Day (i.e. the day Isildur's Bane was destroyed and Sauron fell), here's a great editorial cartoon on the dangers of the ring on the executive power front. (I presume that's meant to be Russ Feingold in the Elrond role.) The Hearts of Men are easily corrupted, and the Ring of Power has a will of its own...

"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.

"You asked me once," said O'Brien, "what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world." The door opened again. A guard came in, carrying something made of wire, a box or basket of some kind. He set it down on the further table. Because of the position in which O'Brien was standing, Winston could not see what the thing was. "The worst thing in the world," said O'Brien, "varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by implement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal...In your case," said O'Brien, "the worst thing in the world happens to be rats."

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.

Every single Dem incumbent returned to office. At least 26 more seats in the House. The nation's first woman Speaker. Six new governorships. At least four Senate seats. And, if all goes well in Virginia (which, at 5am EST, is looking likely -- Webb's up 8,000, which is a pretty solid lead heading into a recount) and Montana (which seems positive for us, albeit less so -- Tester's up 5,000 with 85% reporting), perhaps even control of Congress...Yessir, all-in-all, it was a pretty grand night for us. So, Dubya and Karl...how you like them apples? Update: Make that 28 seats in the House and 5 in the Senate....soon to be six. Congress is ours!

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.