The War of Editorials

The Wall Street Opinion Journal published an editorial today attacking the New York Times's decision to run the story about the vast database at Swift Consortium that purports to track the terrorist money trail by collecting the bank records of millions of people all over the world, including Americans. The WSJ also tried to cover its own ass by blasting the Times for pointing out that the WSJ had also written about the secret money tracking program:

President Bush, among others, has since assailed the press for revealing the program, and the Times has responded by wrapping itself in the First Amendment, the public's right to know and even The Wall Street Journal. We published a story on the same subject on the same day, and the Times has since claimed us as its ideological wingman. So allow us to explain what actually happened, putting this episode within the larger context of a newspaper's obligations during wartime.
[...]
...more than a few commentators have tried to link the Journal and Times at the hip. On the left, the motive is to help shield the Times from political criticism. On the right, the goal is to tar everyone in the "mainstream media." But anyone who understands how publishing decisions are made knows that different newspapers make up their minds differently.

Some argue that the Journal should have still declined to run the antiterror story. However, at no point did Treasury officials tell us not to publish the information. And while Journal editors knew the Times was about to publish the story, Treasury officials did not tell our editors they had urged the Times not to publish. What Journal editors did know is that they had senior government officials providing news they didn't mind seeing in print. If this was a "leak," it was entirely authorized.

Would the Journal have published the story had we discovered it as the Times did, and had the Administration asked us not to? Speaking for the editorial columns, our answer is probably not. Mr. Keller's argument that the terrorists surely knew about the Swift monitoring is his own leap of faith. The terror financiers might have known the U.S. could track money from the U.S., but they might not have known the U.S. could follow the money from, say, Saudi Arabia. The first thing an al Qaeda financier would have done when the story broke is check if his bank was part of Swift.

Give me a break. Any terrorist or financer of terrorists who thinks that the United States could only find their money if it comes from the United States would be an utter fool. They'd have to have a Bush-level IQ to think that the Americans are not going to find their money if it's in Saudi Arabia. Please. Let's not talk like Al Qaeda is a bunch of four-year-olds who think the tooth fairy leaves quarters under their pillows at night.

Richard Clarke and Roger Cressey point out in a New York Times op-ed today that tracking down terrorists' sources of financing is done as much to impede terrorist operations by making it harder for terrorists to keep their money in one place or get it from one place to another as it is to actually find the money. Knowing exactly what particular method the United States government is using to follow the money trail is far less significant for Al Qaeda than knowing that anytime they put their money in a stationary location for any length of time, the United States will very likely be able to find it [emphasis mine]:

Counterterrorism has become a source of continuing domestic and international political controversy. Much of it, like the role of the Iraq war in inspiring new terrorists, deserves analysis and debate. Increasingly, however, many of the political issues surrounding counterterrorism are formulaic, knee-jerk, disingenuous and purely partisan. The current debate about United States monitoring of transfers over the Swift international financial system strikes us as a case of over-reaction by both the Bush administration and its critics.

Going after terrorists' money is a necessary element of any counterterrorism program, as President Bill Clinton pointed out in presidential directives in 1995 and 1998. Individual terrorist attacks do not typically cost very much, but running terrorist cells, networks and organizations can be extremely expensive.

Al Qaeda, Hamas, Hezbollah and other terrorist groups have had significant fund-raising operations involving solicitation of wealthy Muslims, distribution of narcotics and even sales of black market cigarettes in New York. As part of a "follow the money" strategy, monitoring international bank transfers is worthwhile (even if, given the immense number of transactions and the relatively few made by terrorists, it is not highly productive) because it makes operations more difficult for our enemies. It forces them to use more cumbersome means of moving money.

Privacy rights advocates, with whom we generally agree, have lumped this bank-monitoring program with the alleged National Security Agency wiretapping of calls in which at least one party is within the United States as examples of our government violating civil liberties in the name of counterterrorism. The two programs are actually very different.

Any domestic electronic surveillance without a court order, no matter how useful, is clearly illegal. Monitoring international bank transfers, especially with the knowledge of the bank consortium that owns the network, is legal and unobjectionable.

The International Economic Emergency Powers Act, passed in 1977, provides the president with enormous authority over financial transactions by America's enemies. International initiatives against money laundering have been under way for a decade, and have been aimed not only at terrorists but also at drug cartels, corrupt foreign officials and a host of criminal organizations.

These initiatives, combined with treaties and international agreements, should leave no one with any presumption of privacy when moving money electronically between countries. Indeed, since 2001, banks have been obliged to report even transactions entirely within the United States if there is reason to believe illegal activity is involved. Thus we find the privacy and illegality arguments wildly overblown.

So, too, however, are the Bush administration's protests that the press revelations about the financial monitoring program may tip off the terrorists. Administration officials made the same kinds of complaints about news media accounts of electronic surveillance. They want the public to believe that it had not already occurred to every terrorist on the planet that his telephone was probably monitored and his international bank transfers subject to scrutiny. How gullible does the administration take the American citizenry to be?

Terrorists have for many years employed nontraditional communications and money transfers -- including the ancient Middle Eastern hawala system, involving couriers and a loosely linked network of money brokers -- precisely because they assume that international calls, e-mail and banking are monitored not only by the United States but by Britain, France, Israel, Russia and even many third-world countries.

While this was not news to terrorists, it may, it appears, have been news to some Americans, including some in Congress. But should the press really be called unpatriotic by the administration, and even threatened with prosecution by politicians, for disclosing things the terrorists already assumed?

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Five U.S. Soldiers in Iraq Under Investigation for Rape and Murder

The soldiers, from the U.S. Army, are accused of raping and killing an Iraqi woman, burning her body, and murdering three other members of her family [emphasis mine]:

Maj. Gen. James D. Thurman, commander of coalition troops in Baghdad, had ordered a criminal investigation into the alleged killing of a family of four in Mahmoudiya, south of Baghdad, the U.S. command said. It did not elaborate.

"The entire investigation will encompass everything that could have happened that evening. We're not releasing any specifics of an ongoing investigation," said military spokesman Maj. Todd Breasseale.

"There is no indication what led soldiers to this home. The investigation just cracked open. We're just beginning to dig into the details."

However, a U.S. official close to the investigation said at least one of the soldiers, all assigned to the 502nd Infantry Regiment, has admitted his role and has been arrested. Two soldiers from the same regiment were slain this month when they were kidnapped at a checkpoint near Youssifiyah.

At least four other soldiers have had their weapons taken away and are confined to Forward Operating Base Mahmoudiyah south of Baghdad. The official spoke on condition of anonymity because of the sensitivity of the case.

The official said the killings appear to be unrelated to the kidnappings but that a soldier felt compelled to report the killings after his fellow soldiers' bodies were found.

The killings appeared to have been a "crime of opportunity," the official said. The soldiers had not been attacked by insurgents but had noticed the woman on previous patrols.

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Hamdan v. Rumsfeld Decided in Favor of the U.S. Constitution

It was a rare victory for the Constitution over the Imperial Presidency: the Supreme Court today ruled 5 to 3 that Pres. Bush cannot use military kangaroo courts to try Guantanamo detainees:

The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.

The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing," "remarkable." Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, "It doesn't get any better."

The response from bloggers both left and right is huge and continuing.

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Press Has Ignored Boston Globe Series on Presidential Signing Statements

The Boston Globe's Charlie Savage broke, and has single-handedly been pursuing, the news that, since he took office in 2001, Pres. Bush has issued more than 750 "signing statements" to undo the effects of legislation Congress passed and he signed into law.

Dan Froomkin has a long and very substantive piece about the fact that the rest of the mainstream press has essentially ignored Savage's reports:

President Bush's unprecedented use of "signing statements" to quietly assert his right to ignore legislation passed by Congress -- including its ban on torture -- first came to light in January due to some aggressive reporting by Boston Globe reporter Charlie Savage.

In April, Savage reported his astonishing discovery that Bush has claimed the authority to disobey more than 750 laws in all since he took office:

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation's sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files "signing statements" -- official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register. . .

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills -- sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

Since then, a few major news organizations have taken note of this amazing story -- then let it drop. Most haven't covered it at all. Up until this morning, not one reporter had asked the president, the vice president, or even the press secretary a single question about Bush's penchant for signing statements.

(According to Laurie Kellman of the Associated Press, the topic came up at this morning's White House press gaggle just before a Senate hearing on the topic was set to begin, and press secretary Tony Snow explained: "It's important for the president at least to express reservations about the constitutionality of certain provisions.")

Savage has kept at the story, but this is not a job for a one-man band.

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Connecticut Librarians Win Their Battle To Keep Library Records Private

This is a significant victory for all libraries and the people who use them:

The American Civil Liberties Union today declared victory in their legal battle with the FBI over a Connecticut library group's right to keep patron records private. After dropping their vehement defense of the gag provision accompanying the request, the FBI has now abandoned the demand all together.

"First the government abandoned the gag order that would have silenced four librarians for the rest of their lives, and now they've abandoned their demand for library records entirely," said Ann Beeson, Associate Legal Director of the ACLU. "While the government's real motives in this case have been questionable from the beginning, their decision to back down is a victory not just for librarians but for all Americans who value their privacy."

The Library Connection, a consortium of 26 Connecticut libraries, sought help from the ACLU when the FBI demanded patron records through a National Security Letter last summer. This controversial Patriot Act tool allows the government to demand, without court approval, records of people who are not suspected of any wrongdoing. Anyone who receives such a demand is gagged from disclosing the mere existence of the request.

The librarians can now disclose the NSL they received, which has never before been released in full. The NSL shows that the FBI was seeking all records associated with a particular computer. The NSL was dated May 19, 2005, but Library Connection did not receive the NSL until July 13, 2005.

"We pursued this matter because librarians should protect the privacy of our patrons," said George Christian, Executive Director of Library Connection. "Everyone has the responsibility to make sure the government plays by the rules."

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The Anti-Flag Burning Amendment Is Dead

The proposed amendment to make flag burning a crime died in the Senate today, falling one vote short of the number needed to send it to the states for ratification.

Rick Moran of Rightwing Nuthouse wrote eloquently, before the news of the amendment's defeat came out, on why he opposes the amendment.

I understand that many of my conservative friends -- and even Arlen Specter, the hypocritical bastard -- are in favor of the proposed amendment that the Senate will start debating today on criminalizing the burning of the American flag.

But in a nation born of dissent, it seems to me that passing an amendment that would contradict one of the main things the flag represents is not only wrong but does an injustice to those who fought and died to protect it.

I know I'll get a lot of flack for that last statement. But how meaningful can a heroes' death be if we place a limit on what he died for? Must we also pass an amendment saying that this religion or that religion is outlawed? Should we amend the Constitution to prevent the New York Times from publishing all secrets? Perhaps we should have an amendment that outlaws lobbying? Or that limits demonstrations against the government?

We'd never think of amending the Constitution for any of those things. Even the New York Times, arrogant and self righteous though they may be, must be allowed to decide whether or not to publish information that may harm national security. We don't like it. We believe they did it because, at bottom, they disagree with the government's contention that we are at war and that publishing secrets gives aid and comfort to the enemy. But in the end, they must not be prevented from making their own judgments in such matters because to limit their decision making also puts prior restraint on their ability to publish. That is de facto censorship and cannot be allowed in a free society.

Given how openly many Republicans these days advocate filing criminal charges against newspapers, like the New York Times, that don't allow the government to tell them what to print; and given the fact that the Times is being labeled "traitorous" by most right-wing bloggers for doing what journalists are supposed to do, it's a relief to find that at least one right-winger can separate his belief that the Times should not have published the article from the idea that the media should retain the right to make such judgments.

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The Question About Sebastian Mallaby

"Why so lonesome?" WaPo columnist Sebastian Mallaby asks.

The question about loneliness is: Why do people do this to themselves? Why do Americans, who reported an average of nearly three close friends in 1985, now report an average of just over two? And why does one in four have nobody with whom to discuss personal issues? This is the age of Oprah and MySpace, of public emoting on television and the Web. Apparently people watch "Friends" but don't actually have many.

When the new loneliness numbers appeared Friday in the American Sociological Review, some experts cautioned that the problem can be overstated. Americans say they feel close to an average of 15 others, according to Barry Wellman and Jeffrey Boase of the University of Toronto. But there's a difference between extensive networks and deep ones.

Oh my gosh, REALLY, Sebastian? I would never have known!

Does this idiot really think people don't know the difference between acquaintances and close friends?

Even more to the point, does he actually believe that people choose to be lonely? That they deliberately court loneliness and seek it out?

If you get sick, stressed or just plain sad, you are going to want the sort of friend you can rely on. Maybe you'll be able to convert an acquaintance into a soul mate when you discover you need one. But this just-in-time approach to emotional crises isn't always going to work. Look at the way the slow decline of friendship has been mirrored by the rise of emotional problems. Over the past half-century, the prevalence of unipolar depression in affluent countries has jumped tenfold.

People's myopia on friendship is like their myopia on saving. They know that jobs are insecure, that a health problem can cause bankruptcy, that retirement is fabulously expensive; but the household savings rate has fallen below zero. Equally, people know that spouses aren't immortal and that divorce is common. But nearly one in 10 -- a much higher share than in 1985 -- reports that their husband or wife is the only person they confide in.

And those are the lucky ones. Some people actually don't have even a husband or wife to confide in. Imagine that!

People are taking these financial and emotional risks even as they neurotically avoid other risks. Today's consumers buy bike helmets and ski helmets and antibacterial soap; they fret about partially hydrogenated fats and consume less tobacco than their parents. But by some reckonings social isolation is as big a risk factor for premature death as smoking.

You can see how this American isolationism sets in. Modern society creates the tools that allow you not to save -- if you have to pay for the kids' college, you can refinance your home -- while doing little to change the basic need to save for old age and misfortune. In the same way, modern society creates tools that extend your casual networks -- e-mail, instant messaging, social-networking Web sites -- while doing nothing to remove the basic need for soul mates.

Meanwhile, people work more hours. They commute longer because they've moved to the exurbs in search of larger homes; they've got spacious entertainment rooms but no mental space for entertaining. And then there's the subtle effect of the culture. "Family time" is endlessly extolled, and lovers emit poetry and song about every facet of their relationships. But when was the last time a rock singer or a new man waxed lyrical about friendship?

Yet the biggest reason for American loneliness, and perhaps the clue to some kind of cure, lies in path dependency. People know that tending to friendship is important, but their behavior follows the path created by countless other decisions -- and friendship is neglected. Social science experiments reveal lots of behavior of this kind. People who agree with their doctors that they need hip replacements seldom get around to having the procedure.

There are ways to beat path dependency, however. Another experiment has shown how undergraduates who agree to get a tetanus shot seldom actually do so, but if you make them an appointment and hand them a map to the clinic, the odds that they'll comply leap tenfold. Savings habits are equally sensitive to slight tweaks in incentives. Invite workers to sign up for 401(k) pensions and many will procrastinate. Tell workers they are part of the program unless they opt out and the participation rate rockets.

Can Americans be prodded to invest more in friendships? It's hard to imagine American companies organizing regular Japanese-style drinking sessions for the staff; it's hard to believe that a French-style cap on working hours would do more than encourage yet more lonely Web surfing.

So ending loneliness is as straightforward a proposition as putting money in a savings account or going to the doctor for a tetanus shot. It's just an issue of making the time; set aside a few hours every week to end your loneliness by shopping for a best friend or a family or a loving partner.

Sebastian, I'm sorry, but this was just exactly the most perfectly wrong day for your cluelessness to catch my eye. I spent five hours this afternoon and evening in a Bronx hospital after losing my balance while I had my foot up on a bench trying to tie a shoelace, and falling backwards and hitting my head on the ground. (I have not been getting much sleep lately, because of schoolwork, and that may have explained my klutziness.) I didn't lose consciousness, but I was horribly dizzy and nauseated. Without going into the entire hellish story, the EMTs insisted on taking me to a local hospital, even though this was the Bronx, which is totally unfamiliar territory to me, and I had no way of getting back to campus, where my car was parked. And there was no one to go with me (other than the EMTs) and no one to pick me up.

Sebastian Mallaby needs to know that I did not choose to be sitting in an ambulance on my way to a hospital I'd never heard of before in a neighborhood I didn't know, with no one I could call and cry into the phone to who would say, "Hold on, I'm coming right now." I thought about my ex-husband, who is very happily remarried. I don't begrudge him that, but I envied him when I thought that if this had happened to him, he could have called his wife and she would have come running.

Am I lonely? You bet I am. Loneliness is my native environment. Most of the time I don't pay that much attention to it; it's too familiar to be remarkable. But at times like this afternoon, when I'm sitting in an ambulance with an oxygen mask over my face, sobbing uncontrollably because it's just hit me that I'm going to the hospital and I'm missing class and I don't know if it's something really serious, and the only person there with me is the EMT, who can give me first aid but not TLC. When you are in a crisis that is terrifying and you realize you are in it alone and that's just the way it is, that is one of life's more painful experiences.

Very fortunately, I turned out to have no adverse after-effects from the fall. My blood sugar was normal, my EKG was normal, and the CAT scan I had was normal. I suspect the extraordinary nausea I felt, that would not go away even after the medics had arrived, was an anxiety attack that was triggered by the accident itself and the stress I was under because of missing class and being alone. Let it be said: I am relieved. But that does not change the fact that I went through this experience with no one there who cared about me for support.

Believe me, Sebastian, I did not choose not to have close friends, or family nearby, or a husband or a boyfriend. If I knew how to change it, I would. So go ahead and make that appointment at the loneliness clinic and show me the map that will tell me how to get there. I promise you, they won't have the vaccine when I get there.

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Iraqi Civilian Death Toll Exceeds 50,000

This LA Times article is particularly notable because the Bush administration makes no real attempt to count civilian deaths; and the news media usually focuses on American deaths and rarely even mentions the human cost of this war to Iraqis:

At least 50,000 Iraqis have died violently since the 2003 U.S.-led invasion, according to statistics from the Baghdad morgue, the Iraqi Health Ministry and other agencies -- a toll 20,000 higher than previously acknowledged by the Bush administration.

Many more Iraqis are believed to have been killed but not counted because of serious lapses in recording deaths in the chaotic first year after the invasion, when there was no functioning Iraqi government, and continued spotty reporting nationwide since.

The toll, which is mostly of civilians but probably also includes some security forces and insurgents, is daunting: Proportionately, it is equivalent to 570,000 Americans being killed nationwide in the last three years. [My emphasis.]

In the same period, at least 2,520 U.S. troops have been killed in Iraq.

Iraqi officials involved in compiling the statistics say violent deaths in some regions have been grossly undercounted, notably in the troubled province of Al Anbar in the west. Health workers there are unable to compile the data because of violence, security crackdowns, electrical shortages and failing telephone networks.

Powerline's John Hinderaker predictably makes much of the LAT's reference to Iraqi Health Ministry records showing that 75% of civilian deaths can be attributed to insurgent and sectarian violence -- conveniently ignoring the reality that the insurgency and the militia death squads are a direct consequence of the U.S. invasion.

Hinderaker also resorts to the much-repeated argument that the murder rate in the United States is "four times higher" and that cities like Chicago, Milwaukee, and Philadelphia have similar murder rates.

One more thing: the L. A. Times article includes the intriguing observation that the large majority of people being murdered, by terrorists or, apparently, otherwise, are in Baghdad:

At least 2,532 people were killed nationwide last month. Of those, 2,155 -- 85% -- died in Baghdad.

The current population of Iraq is around 26 million, of whom approximately 6 million live in Baghdad. A murder rate of 377 x 12 = 4,524, for the 20 million people who live anywhere other than Baghdad, works out to 22.6 per 100,000. That's around four times the murder rate in the United States, and about the same as the murder rates in cities like Chicago, Philadelphia and Milwaukee. So, if the Times' figures are anywhere near accurate, it is absurd to say--as the Times article does--that "the entire country [is] a battleground."

Of course, Hinderaker's statistics fail to mention that the United States has a population of over 295,000,000, compared to Iraq's 26,000,000-plus. Hinderaker also does not take into account the fact that the murder rates in individual American cities are not in the context of a larger society engulfed in war; that the violence in Iraq is of a kind designed to terrorize (torture, beheadings, summary executions), and that in American cities there is a law enforcement infrastructure that is completely lacking in Iraq. Although most of the violence in Iraq may be in Baghdad, that violence has a destabilizing effect on the entire country that is utterly unlike the United States [emphasis mine]:

At the Baghdad morgue, the vast majority of bodies processed had been shot execution-style. Many showed signs of torture -- drill holes, burns, missing eyes and limbs, officials said. Others had been strangled, beheaded, stabbed or beaten to death.

The morgue records show a predominantly civilian toll; the hospital records gathered by the Health Ministry do not distinguish between civilians, combatants and security forces.

But Health Ministry records do differentiate causes of death. Almost 75% of those who died violently were killed in "terrorist acts," typically bombings, the records show. The other 25% were killed in what were classified as military clashes. A health official described the victims as "innocent bystanders," many shot by Iraqi or American troops, in crossfire or accidentally at checkpoints.

With the entire country a battleground, it is likely that some of the dead may have been insurgents or members of militias.

"The way to think about the violence is that it's not just the insurgent attacks that matter," said David Lake, a member of the Center for Study of Civil War, an international group of scholars who study the causes and effects of internal strife. "What we should be concerned about is the sense of security at the individual level. ... If the fear has gotten out of control."

Societies fall apart when people stop believing the government can keep them safe [...] and instead turn to militias for protection, said Lake, who is a professor of political science at UC San Diego.

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Common Sense? Half a Brain? Not in Rightie Blogger Land!

It's amazing what you can learn from other bloggers that you never, ever knew before. Like, just this morning, I learned from Michelle Malkin that Al Qaeda was tipped off by the New York Times to the fact that the U.S. government tries to catch terrorists through their financial records!

Well... actually, let me amend that a little. Al Qaeda might have already known that the U.S. was trying to find their financial records -- but Al Qaeda didn't know how the the U.S. was trying to do that. Al Qaeda didn't know that the U.S. was trying to find their financial records by sifting through a vast global database of financial records controlled by an international consortium of banks located in Belgium! Now that Al Qaeda knows that the U.S. is looking through tens of thousands of innocent Americans' financial records to find Al Qaeda's, Al Qaeda is going to get really scared that, using such an efficient method, the U.S. will find their money much much faster! And knowing that, Al Qaeda will take all their money out of all the banks and divide that money equally among all the terrorists and have them put it under their sofa cushions at home! And we'll never be able to find it in the banks anymore!

Darn that traitorous New York Times! If any American soldiers are killed in Iraq today, you'll know why!

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Dick Cheney's Contempt for the U.S. Constitution Offends ME

Dick Cheney is offended by the free press doing its job:

Vice President Dick Cheney on Friday vigorously defended a secret program that examines banking records of Americans and others in a vast international database, and harshly criticized the news media for disclosing an operation he said was legal and "absolutely essential" to fighting terrorism.

"What I find most disturbing about these stories is the fact that some of the news media take it upon themselves to disclose vital national security programs, thereby making it more difficult for us to prevent future attacks against the American people," Mr. Cheney said, in impromptu remarks at a fund-raising luncheon for a Republican Congressional candidate in Chicago. "That offends me."

I am offended by Dick Cheney pushing through one secret spy program after another by presidential fiat, with no judicial or congressional oversight whatsoever. The fact that Dick Cheney thinks it's just fine to ignore financial privacy law and to arrogate to itself powers reserved by the U.S. Constitution for the other two branches of government is deeply offensive to me as an American.

The only check that is left on the Bush Imperial Presidency now is the press. Eric Lichtblau and James Risen of the New York Times should be applauded for taking seriously their duty to inform the public about infringements on Americans' freedom by our own government, not smeared as "traitors."

Steven Taylor at Poliblog thinks that if the Bush administration took its legal oversight obligations seriously, it would not be necessary for journalists to write about said administration's failure to do so:

... I am hardly upset with the media for releasing the information, because it seems quite obvious that the administration will not submit to adequate oversight without this kind of public attention. The way we (and seemingly the Congress as well) have found about about the NSA wiretap program, the NSA phone records program and now this program has been through media revelations.

Sen. Arlen Specter made the same point in the Lichtblau and Risen piece published Thursday:

Mr. Specter has been at odds with the administration over another previously secret counterterrorism operation, the National Security Agency's domestic eavesdropping program. The senator said he was particularly troubled that the administration had expanded its Congressional briefings on the financial tracking program in recent weeks after having learned that The New York Times was making inquiries.

"Why does it take a newspaper investigation to get them to comply with the law?" the senator asked. "That's a big, important point."

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Housekeeping Note

I am, for reasons unknown, having trouble signing into my Hotmail account. Until I get that resolved or get another e-mail account, you should use the Haloscan comment link on my posts, rather than the Blogger one. Comments made in the Blogger area go to my Hotmail account for moderation before being posted.

I'll try to get this resolved asap.

UPDATE: Problem resolved. My new e-mail address is libertystreetusa@gmail.com. I've changed the link on my post.

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More Violence, More Lies

The violence spirals up:

Iraq's government clamped a state of emergency on Baghdad and ordered everyone off the streets Friday after U.S. and Iraqi forces battled insurgents armed with rocket-propelled grenades, hand grenades and rifles near the heavily fortified Green Zone.

The military also announced the deaths of five more U.S. troops in a particularly violent week for American forces that included the discovery of the brutalized bodies of two soldiers. Twelve U.S. servicemembers have died or been found dead this week.

The fierce fighting in the heart of Baghdad came despite a crackdown launched 10 days ago that put tens of thousands of U.S.-backed Iraqi troops on the streets as the new prime minister sought to restore a modicum of safety for the capital's 6 million people.

The desperate lies continue:

Hundreds of chemical weapons found in Iraq were produced before the 1991 Gulf War and probably are so old they couldn't be used as designed, intelligence officials said Thursday.

Two lawmakers -- Sen. Rick Santorum, R-Pa., and House Intelligence Chairman Peter Hoekstra, R-Mich. -- on Wednesday circulated a one-page summary of a military intelligence report that says coalition forces have recovered about 500 munitions with mustard or sarin agents, and more could be discovered around Iraq. "We now have found stockpiles," Santorum asserted.

But intelligence officials, who spoke on condition of anonymity because of the subject's sensitive nature, said the weapons were produced before the 1991 Gulf War and there is no evidence to date of chemical munitions manufactured since then. They said an assessment of the weapons concluded they are so degraded that they couldn't now be used as designed.

They probably would have been intended for chemical attacks during the Iran-Iraq War, said David Kay, who headed the U.S. weapons-hunting team in Iraq from 2003 until early 2004.

He said experts on Iraq's chemical weapons are in "almost 100 percent agreement" that sarin nerve agent produced from the 1980s would no longer be dangerous.

"It is less toxic than most things that Americans have under their kitchen sink at this point," Kay said.

And any of Iraq's 1980s-era mustard would produce burns, but it is unlikely to be lethal, Kay said.

Asked about the potential danger to U.S. troops, Defense Secretary Donald H. Rumsfeld said: "They are weapons of mass destruction. They are harmful to human beings. And they have been found."

Gotta hand it to Rummy -- he isn't afraid of looking like a complete and utter fool.

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The Most Important Job There Is

I wanted to explain my silence here for the past several days. June 19, which is the last day I posted, was also my last day of having any free time until August 4. I have started my pre-service teacher training, which is one of the components of the alternate certification route to becoming a teacher that I am taking with NYC Teaching Fellows. On Tuesday, June 20, I started graduate coursework at Lehman College in the Bronx (part of the City University of New York, or CUNY) that will eventually earn me a Master's degree in English Education, subsidized by the City of New York in return for teaching for the next two to three years in a high-needs middle school or high school, also in the Bronx.

In addition to being in classes from 9 a.m. to 6:30 p.m. five days a week, I have mountains of homework; and starting July 5, I will be adding student teaching to the mix. In the fall, I will have a Transitional B certificate which will qualify me to teach full-time in a NYC public school until I get my permanent certification.

Right now, I am exhilarated, thrilled, incredibly excited, terrified, exhausted, and totally overwhelmed. The NYC Teaching Fellows program attracts thousands of applicants from all over the country and even other countries; and I feel honored and very, very grateful to have been accepted as a Fellow.

All of which is to say that, as much as I want to post at Liberty Street every day, my top priority right now is becoming a secondary English teacher in the NYC public school system. The NYCTF staff told us at a welcoming ceremony on Monday that what we are doing is the most important work anyone can do. It's a calling, really.

So I will post when I can, but it will not be every day.

For now, I refer you to a reply I just posted to a series of comments by one of my right-wing readers. That will serve as today's substantive post.

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How Would You Like to Live in Your Filing Cabinet for Two Days?

Spencer Ackerman in The New Republic:

Sadly, few people besides Andrew and the ACLU care much about torture anymore. But, thanks to the ACLU, on Friday the Pentagon finally declassified a missing piece of the grim portrait of American torture: a November 2004 report about detainee abuse by Special Operations Forces in Iraq. (Warning: PDF) I've been trying, and failing, for over a year to obtain this report, conducted by Brigadier General Richard Formica, but it turns out to be underwhelming--that is, sadly consistent with disingenuous reports like that filed by Vice Admiral Tom Church, which strip the bark off the trees to avoid seeing the forest. Formica opted to investigate specific allegations of abuse about certain units rather than the broader conduct of Special Operation troops who seize detainees. (One such unit, not investigated by Formica, had the motto "No Blood, No Foul.") He told reporters on Friday that it was "regrettable" that the troops he did investigate had inadequate guidance about detention policy, but singled out no one as ultimately responsible. Indeed, going by The New York Times, there are some serious questions about Formica's judgment here:

General Formica found that in the third case at a Special Operations outpost, near Tikrit, in April and May 2004, three detainees were held in cells 4 feet high, 4 feet long and 20 inches wide, except to use the bathroom, to be washed or to be interrogated. He concluded that two days in such confinement "would be reasonable; five to seven days would not." Two of the detainees were held for seven days; one for two days, General Formica concluded.

Here are two such questions you can puzzle over from your home or office. Take all the shelving out of a typical filing cabinet. (My own office cabinet happens to be slightly smaller than the cell described here.) Now lock yourself in it for two days. You may notice you can neither stand up straight nor lie down, and crouching gets really uncomfortable extremely fast. Remember that as an Iraqi detainee, the Geneva Conventions apply to you. Now ask yourself: Why would Formica consider such treatment "reasonable" for two days? And if someone put an American soldier in such conditions for two days--or authorized doing so--what should happen to that person?

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The North Koreans Are Coming

Here's what North Korea's been doing while Bush has been attacking a country with no nuclear weapons:

North Korea is believed to have completed fueling a missile capable of reaching Alaska, raising the probability of an imminent test launch, U.S. officials said on Sunday.

The United States plans to join Japan in a sharp response if the test goes ahead.

Washington has warned Pyongyang against the launch in a message passed to North Korean diplomats at the United Nations but there was no response, American officials said.

The officials, speaking on condition of anonymity, said Pyongyang could still decide to scrap the launch, but that was unlikely given the complexity of siphoning fuel back out of a missile prepared for launch.

The test is expected to involve a Taepodong-2 missile with an estimated range of 2,175 to 2,670 miles (3,500 to 4,300 kilometers). At that range, parts of Alaska in the United States would be within reach as well as Asia and Russia.

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Dick Cheney's Last Throes

Dick Cheney, speaking at a National Press Club luncheon today:

Vice President Dick Cheney said Monday that aggressive U.S. action is responsible for preventing new terror attacks since the Sept. 11 strikes.

"Nobody can promise that we won't be hit," Cheney said. But he credited a determined offense against terrorists abroad, improved intelligence-gathering and preventive steps at home for thwarting or discouraging terror attacks on U.S. soil.

Okay, so then why was a terrorist attack on New York City's subway system averted only because Ayman Zawahiri called it off at the last minute? And why did the Department of Homeland Security slash New York City's funding by 40% and increase funding for cities like Louisville, Kentucky; and Omaha, Nebraska?

... Cheney also said that, when President Bush and he took office in January 2001, the balance of power in government was tilted in favor of Congress.

The unpopular Vietnam War and the Watergate scandals allowed Congress to take more authority at the expense of the executive branch, Cheney said. He and the president believed it was important to "have the balance righted, if you will. And I think we've done that successfully," he said.

Democratic critics of the president and even some Republicans have questioned the administration's assertion of expanded executive power in the name of combatting terrorism. These include warrantless eavesdropping by the National Security Agency, detention of suspected terrorists without charges, expanded powers under the Patriot Act and alleged secret CIA prisons overseas.

Cheney defended the NSA's domestic eavesdropping program, which the administration calls its "terrorist surveillance program" as important in the war on terror, while conceding it was controversial.

"We have been engaged in a debate about the wisdom of the program and whether or not it's legal, but it clearly is legal, we believe. It is consistent with the Constitution."

It clearly is legal, we believe?

Cheney also defended his "last throes" comment made over a year ago, and actually said he still believes it's true.

Cheney tries to spin his previous comments as a prediction of political progress. Cheney now says he meant that May 2005 would be the beginning of a "series of events when the Iraqis increasingly took over responsibility for their own affairs." Actually, Cheney predicted that violence in the country, from May 2005 on, "will clearly decline."

Full transcript:

REPORTER: About a year ago, you said that the insurgency in Iraq was in its final throes. Do you still believe this?

CHENEY: I do. What I was referring to was the series of events that took place in 1995 [sic -- 2005]. I think the key turning point when we get back 10 years from now, say, and look back on this period of time and with respect to the campaign in Iraq, will be that series of events when the Iraqis increasingly took over responsibility for their own affairs. And there I point to the election in January of '05 when we set up the interim government, the drafting of the constitution in the summer of '05, the national referendum in the fall of '05 when the Iraqis overwhelmingly approved that constitution, and then the vote last December when some 12 million Iraqis in defiance of the car bombers and the terrorists went to the polls and voted in overwhelming numbers to set up a new government under that constitution. And that process of course has been completed recently with the appointment by Prime Minister Maliki of ministers to fill those jobs. I think that will have been from a historical turning point, the period that we'll be able to look at and say, that's when we turned the corner, that's when we began to get a handle on the long-term future of Iraq.

Think Progress has the video.

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If They Gave Out Academy Awards for Incompetence ...

Glenn Kessler reports that in 2003, right after the fall of Baghdad, the U.S. turned down a no-conditions offer from Iran to discuss a broad range of issues:

Just after the lightning takeover of Baghdad by U.S. forces three years ago, an unusual two-page document spewed out of a fax machine at the Near East bureau of the State Department. It was a proposal from Iran for a broad dialogue with the United States, and the fax suggested everything was on the table -- including full cooperation on nuclear programs, acceptance of Israel and the termination of Iranian support for Palestinian militant groups.

But top Bush administration officials, convinced the Iranian government was on the verge of collapse, belittled the initiative. Instead, they formally complained to the Swiss ambassador who had sent the fax with a cover letter certifying it as a genuine proposal supported by key power centers in Iran, former administration officials said.

Last month, the Bush administration abruptly shifted policy and agreed to join talks previously led by European countries over Iran's nuclear program. But several former administration officials say the United States missed an opportunity in 2003 at a time when American strength seemed at its height -- and Iran did not have a functioning nuclear program or a gusher of oil revenue from soaring energy demand.

"At the time, the Iranians were not spinning centrifuges, they were not enriching uranium," said Flynt Leverett, who was a senior director on the National Security Council staff then and saw the Iranian proposal. He described it as "a serious effort, a respectable effort to lay out a comprehensive agenda for U.S.-Iranian rapprochement."

While the Iranian approach has been previously reported, the actual document making the offer has surfaced only in recent weeks. Trita Parsi, a Middle East expert at the Carnegie Endowment for International Peace, said he obtained it from Iranian sources. The Washington Post confirmed its authenticity with Iranian and former U.S. officials.

Kevin Drum congratulates the Bushies for a job horribly done, and notes the odd placement of this story:

That demonstrates some savvy foreign policy insight, doesn't it? Turn down an unprecedented offer from Iran when they're weak and we're strong, and then three years later reluctantly agree to much narrower talks when they're stronger and we're weaker. Great job, guys.

NOTE TO POST EDITORS: Nice job putting this on page A16. It's not as if this is anything important, after all.

Of course, you can't have a meeting of the minds if the minds are not all there:

... the minds in the United States government were convinced their counterparts in Iran would not be long in power, about to be overthrown from within. So the United States didn't even respond. Inaction has its consequences.

Parsi said that based on his conversations with the Iranian officials, he believes the failure of the United States to even respond to the offer had an impact on the government. Parsi, who is writing a book on Iran-Israeli relations, said he believes the Iranians were ready to dramatically soften their stance on Israel, essentially taking the position of other Islamic countries such as Malaysia. Instead, Iranian officials decided that the United States cared not about Iranian policies but about Iranian power.

The incident "strengthened the hands of those in Iran who believe the only way to compel the United States to talk or deal with Iran is not by sending peace offers but by being a nuisance," Parsi said.

Glenn Greenwald writes that Iran hard-liners are pushing for regime change rather than negotiation:

Just as was true with Iraq, most hard-line Iran war agitators are completely uninterested in inducing Iran to disarm. What they really crave is a change of government as soon as possible, something which is attainable most effectively by war. They don't want to pursue diplomatic measures that could result in a cessation of Iran's nuclear activities because a non-nuclear Iran with no regime change does not even remotely satisfy their goals. Anything less than forcible regime change will be perceived by them as dangerous "appeasement." Exactly as they viewed the first Gulf War, achieving concrete goals while failing to use our military to get rid of governments we dislike is weak and misguided. Government-changing war is the only solution that works.

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"Last Throes" Cheney, Meet "Closing Window" Freakley

Haven't we heard this before?

As fighting in Afghanistan has intensified over the past three months, the U.S. military has conducted 340 airstrikes there, more than twice the 160 carried out in the much higher-profile war in Iraq, according to data from the Central Command, the U.S. military headquarters for the Middle East.

The airstrikes appear to have increased in recent days as the United States and its allies have launched counteroffensives against the Taliban in the south and southeast, strafing and bombing a stronghold in Uruzgan province and pounding an area near Khost with 500-pound bombs.

U.S. officials say the activity is a response to an increasingly aggressive Taliban, whose leaders realize that long-term trends are against them as the power of the Afghan central government grows.

"I think the Taliban realize they have a window to act," Army Maj. Gen. Benjamin Freakley, commander of the 22,000 U.S. troops in the country, said in a recent interview. "The enemy is working against a window that he knows is closing."

Freakley apparently doesn't believe his own spin, though:

The enemy in Afghanistan is "adaptive" and "very smart," Freakley said. One tactic they have used lately to counter U.S. dominance in the air is to withdraw, when fighting, into compounds where civilians are located, which has resulted in civilian deaths in two sets of airstrikes near Kandahar.

The spate of recent civilian deaths caused by the bombing has hurt the U.S. image in Afghanistan.

It's called asymmetric warfare, says Pachacutec at Firedoglake:

Although some asymmetric wars can be won, they cannot be won without the support of local populations. The people of India kicked the British Empire's asses out, even if the British did win the key battle depicted in the film Gunga Din, notably, through the assistance of a local collaborator (depicted in racist tones as a doggedly loyal turbaned lackey).

The U. S. cannot win its current fight against terrorist cells operating within civilian populations militarily, and yet the entire Bushco foreign policy is staked on the notion that it can. Stock market bubbles burst. The idea that America's current strategy can win is a bubble. Start selling short. Remember, there is no actual "war on terror."

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Where Are the Marines When You Really Need Them?

We could have used some Marines at the Supreme Court on Thursday. That's the day when five men in black robes decided to deal the Fourth Amendment another body blow.

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

The court, on a 5-4 vote, said judges cannot throw out evidence collected by police who have search warrants but do not properly announce their arrival.

It was a significant rollback of earlier rulings protective of homeowners, even unsympathetic homeowners like Booker Hudson, who had a loaded gun next to him and cocaine rocks in his pocket when Detroit police entered his unlocked home in 1998 without knocking.

The court's five-member conservative majority, anchored by new Chief Justice John Roberts and Alito, said that police blunders should not result in "a get-out-of-jail-free card" for defendants.

Dissenting justices predicted that police will now feel free to ignore previous court rulings requiring officers with search warrants to knock and announce themselves to avoid running afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

"The knock-and-announce rule is dead in the United States," said David Moran, a Wayne State University professor who represented Hudson. "There are going to be a lot more doors knocked down. There are going to be a lot more people terrified and humiliated."

The case is Hudson v. Michigan.

The New York Times condemned the ruling on its editorial pages yesterday.

... Since 1914, the Supreme Court has held that, except in rare circumstances, evidence seized in violation of the Constitution cannot be used. The exclusionary rule has sometimes been criticized for allowing criminals to go free just because of police error. But as the court itself recognized in that 1914 case, if this type of evidence were admissible, the Fourth Amendment "might as well be stricken."

The court ruled yesterday that the evidence could be used against Mr. Hudson. Justice Antonin Scalia, writing for the majority, argued that even if police officers did not have to fear losing a case if they disobeyed the knock-and-announce rule, the subjects of improper searches could still bring civil lawsuits to challenge them. But as the dissenters rightly pointed out, there is little chance that such suits would keep the police in line. Justice Scalia was also far too dismissive of the important privacy rights at stake, which he essentially reduced to "the right not to be intruded upon in one's nightclothes." Justice Stephen Breyer noted in dissent that even a century ago the court recognized that when the police barge into a house unannounced, it is an assault on "the sanctity of a man's home and the privacies of life."

If Justice Sandra Day O'Connor had stayed on the court, this case might well have come out the other way. For those who worry that Chief Justice John Roberts and Justice Samuel Alito will take the court in a radically conservative direction, it is sobering how easily the majority tossed aside a principle that traces back to 13th-century Britain, and a legal doctrine that dates to 1914, to let the government invade people's homes.

Orin Kerr notes the irony rank hypocrisy in Justice Scalia's distinctly non-originalist argument that the availability of civil litigation and advances in police professionalism have made Fourth Amendment protections against use of tainted evidence no longer relevant. Kerr quotes from Scalia's published opinion:

Congress has authorized attorney's fees for civil-rights plaintiffs. This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action. For years after Mapp, "very few lawyers would even consider representation of persons who had civil rights claims against the police," but now "much has changed. Citizens and lawyers are much more willing to seek relief in the courts for police misconduct." ...

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities ... but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. ... Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. ... Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. ... Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

and then asks:

Am I right that Scalia is saying that the meaning of the Fourth Amendment can change over time as the staffing of police departments and public interest law offices changes? The Constitution -- It's alive!

Steve Verdon responds to the "Why should we let bad guys go free just because the police made a technical error?" argument:

Great, so evidence found in no-knock raids is just fine. Technically, these kinds of searches are illegal and the usual response by the courts is: sorry the evidence isn't admissable in court. The benefit to society at large is: the cops have to play by the rules.

Think about that last one for a few minutes. It says, "Playing by the rules is no longer necessary. Want to use more no-knock raids? Go right ahead." The problem is that the police, like the rest of us, make mistakes. Sometimes these mistakes result in very bad outcomes which Radley Balko has documented (1, 2, 3, 4, 5, 6, 7, 8, 9, 10) The benefit of getting the police to "play by the rules" protects us all. Weakening the incentives to have the cops play by the rules puts all of us in more danger. First we had Kelo now Hudson. Pretty soon the only thing we'll be "free from" are a couple of gay guys getting married.

Jill over at Brilliant at Breakfast has more on police mistakes:

For those tempted to parrot the talking point that if you have nothing to hide, you have nothing to worry about, ask Philip Petronella. Or ask Roy and Belinda Baker. Or ask Sharon and William McCulley. Or ask Rodolfo Celis. Or Loraine Adams, whose 61-year-old husband was shot to death by police during a drug raid on the wrong house. Or Lloyd Miner. Or any of the many other people who have found themselves staring down the barrel of a policeman's gun in a wrong-house search, whether our privacy rights should be so summarily dismissed.

Lindsay Beyerstein has a very lucid and simple explanation for why the knock-and-wait requirement is so crucial:

The "knock-and-announce" rule is supposed to guard individual privacy and dignity. We don't want to live in a society where the police can burst into our homes unannounced. Innocent people shouldn't live in fear, as they do in many dictatorships, that the cops could bust in at any moment.

It's not such a hard concept. You're a free and equal citizen, innocent until proven guilty, minding your own business in your private residence. If the cops want to enter your home and search your property, they have to ask you first. If they've got a warrant, it's an offer you can't refuse, but they do have to ask.
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We all have the right to be secure in our persons, houses, papers, and effects against unreasonable search and seizure. Knock-and-announce has been integral to our definition of a reasonable search decades. The State of Michigan concedes that arrested man's rights were violated by the no-knock.

Throwing out illegally gathered evidence advances the rights of the arrestee and everyone else by making us more secure by deterring illegal searches in the future.

The police want to convict bad guys. If we throw out evidence gathered from unreasonable searches and seizures, the police will be less likely to search us in unreasonable ways, lest they lose precious evidence.

Publius takes a different view:

First, I think people are overreacting a bit to Hudson's result. Some background on the exclusionary rule will help put it in perspective.

First, the exclusionary rule is not a right. It's a remedy. For instance, let's say the police barge into your house and see the blow, assault rifle, kiddie porn, and emails from Ken Lay sitting on your table. For you to be convicted, this contraband must be admitted into evidence. Otherwise, there is (logically speaking) no factual foundation for your conviction. To be grossly general for now, the exclusionary rule "excludes" this stuff from being admitted as evidence if the police violated your Fourth Amendment rights to get it. Thus, the exclusionary rule itself is not a right. It's the remedy that vindicates your Fourth Amendment right and gives that right its teeth. [There's a deeper philosophical question about whether the line between right and remedy is a coherent one, but let's put that aside for today.]

The exclusionary rule, however, is not the only possible remedy. For instance, the remedy could be a federal civil rights suit against the police department, or even throwing the offending officers in jail. The point is that there is a whole range of potential remedies. The exclusionary rule is just one of many. And it's an extreme one because, in order to deter bad conduct, it always lets a guilty person go free.

The second thing to keep in mind is the distinction between a warrantless search and a search conducted pursuant to a warrant. If the police have a warrant, that means (in theory) they did their job and gathered enough evidence to establish probable cause before a judge, who then executed the warrant. On the other hand, they could have just barged in without a warrant. These two situations are very different.

Finally, before police enter your house, they are constitutionally required to perform a "knock-and-announce." It's an old tradition. As Scalia explained, the rationale behind the K&A is (1) to prevent unnecessary violence and property damage; and (2) give people a second to gather themselves (e.g., put their pants on). For instance, if the police just barged in, people would be surprised and might attack or shoot the perceived intruder. Also, if the police knock, a lot of people will comply and open the door, making busting down the door unnecessary.

Ok -- with all that in mind, you can understand why the opinion was right. The precise question in Hudson is not "what should the remedy be when the Fourth Amendment is violated?" The precise question is "should the exclusionary rule be the remedy when the K&A requirement is violated?" I don't think so.

First, as Scalia explains well, you have to consider whether the remedy matches the purpose of the right. Unlike the warrant requirement, the K&A right is not intended to protect you from government scrutiny. It governs the manner in which the police may enter after they've already decided to enter. And it does so to prevent violence, damage, and to protect your dignity. That's not to say there shouldn't be any remedy for this violation, but it seems like excluding evidence is a bit drastic for this situation.

The warrant requirement, however, is completely different. The purpose of this right is to prevent the police from intruding to your house without a good reason that has been approved by a court. It doesn't govern the manner of the entry, but the entry itself. Thus, there's a lot more at stake. And for that reason, the more extreme exclusionary rule makes a lot of sense in this context. (In Hudson, the police had a warrant and were authorized to go in).

While it's true that police may be less deterred to violate the K&A rule following Hudson, there are -- as Scalia surprisingly noted -- some practical reasons to think police will still be deterred. First, police training is better than it used to be. Second (and this is mine), it's often in the self-interest of the police to K&A to avoid getting treated as a burglar.

Bottom line -- Hudson isn't ending the exclusionary rule. It doesn't allow police to enter homes when they otherwise couldn't. It simply says that a certain remedy is not appropriate in certain circumstances.

Lyle Denniston at SCOTUSblog thinks that the decision in Hudson suggests that the exclusionary rule may be on the way out.

Pandagon agrees with Publius.

Kieran Healy at Crooked Timber has some acid commentary on Justice Scalia's willingness "to set his originalism aside." Kevin Drum says this is why he "declines to take originalism seriously." Professor Bainbridge declares, "Anybody who thinks Scalia is an originalist is either ill-informed or being disingenuous."

Kieran also refers us to Radley Balko on the ominous implications of "no-knock-and-announce, no-exclusion." Balko is a policy analyst at the Cato Institute, which filed an amicus brief in Hudson.

How Appealing links to the case, to Justice Scalia's opinion, to Justice Kennedy's concurring opinion, to Justice Breyer's dissenting opinion, to transcripts of the oral arguments, and to additional information on the case.

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Natalie Maines' Question

(Cross-posted at Blanton's and Ashton's.)

From the Telegraph [emphasis mine]:

"The entire country may disagree with me, but I don't understand the necessity for patriotism," Maines resumes, through gritted teeth. "Why do you have to be a patriot? About what? This land is our land? Why? You can like where you live and like your life, but as for loving the whole country ... I don't see why people care about patriotism."

There can be no rational explanation of how Maines's remark came to drive a red-hot poker into America's divided soul, but it's only now that some of the poison has begun to dissipate.

Early concerns about the premature demise of the Chicks' career subsided when the furiously unapologetic single Not Ready to Make Nice became the most downloaded track on iTunes, despite a lack of radio airplay. Then the album went to number one on the Billboard 200 after selling half a million copies in the week after its release in America last month. It looks set to be their first UK top 10 album this Sunday.

There is a difference between "patriotism" -- meaning a love for the country you were born in, and have lived in all your life; and "nationalism," which is an ideology that claims superiority for one's country over all others, and that privileges one country's wishes, ambitions, and perceived needs above those of all others.

"Patriotism," as the term is commonly and conventionally used by people like Michelle Malkin, is closer in meaning to xenophobic chauvinism than it is to simple love of country. I love my country, because it's where I was born and raised. I love my country regardless of whether I love the particular administration in power at any given time. I love my country and also believe, without contradiction, that loving my country does not mean I think my country has the right to kill thousands or millions of human beings living in other countries in order to keep my country Number 1 on the Most Powerful Country List.

I can love my country, and still live in harmony with people all over the planet who love their countries as much as I love mine. I don't have to kill anyone, or conquer, or invade, or occupy anyone else's country, to prove my love.

Michelle Malkin, on the other hand, can only feel "patriotic" by plastering the American flag over every available surface, and giving her unquestioning support to war, occupation, arbitrary detention, and torture when carried out by her country. Malkin's patriotism is inseparable from militarism.

The question Natalie Maines asks is a valid one, and deserves a thoughtful answer. Perhaps Michelle Malkin can take some time out from her frothing-at-the-mouth rage at the Dixie Chicks to provide that answer.

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Artfully Placed Nazi References

(Cross-posted at Blanton's and Ashton's.)

Larry Johnson at No Quarter writes:

Leave it to the Porcine Draft Dodger--Karl Rove--to impugn the character of combat veterans. Can't blame him for trotting out the same playbook that worked so well in 2004 against the candidacy of John Kerry. If it worked once it should work again.

Of course I am referring to Karl's speech Tuesday night to Republicans in New Hampshire. According to a piece in Wednesday's Washington Post:

In a speech to New Hampshire Republican officials here Monday night, the White House deputy chief of staff attacked Democrats who have criticized the U.S. war effort in Iraq, such as Sen. John F. Kerry (Mass.) and Rep. John P. Murtha (Pa.), who he said advocate "cutting and running."

"They may be with you for the first shots," Rove said of such opponents. "But they're not going . . . to be with you for the tough battles."

Karl is a shameless bastard. This could explain why his mother killed herself. Once she discovered what a despicable soul she had spawned she apparently saw no other way out. It would be one thing if his vile tactics were simply mere smears of politicians like Kerry and Murtha. They are big boys and should be able to defend themselves quite ably against this turd. But Rove, like Josef Goebbels, has used fear and smear as his primary tools to keep George Bush in power. ...

Jeff Goldstein responds:

This, my friends, is the conjoining of conspiracy-minded paleocons with the face of the modern deranged leftwing of the Democratic party -- where a former intelligence officer writes publicly that a Republican strategist's inveterate evil was responsible for his own mother's suicide, and where even the spokesperson for the last presidential candidate is unhinged enough to suggest, on the record, that Karl Rove should be concerned about getting cornholed in prison.

And yet these people -- thanks mostly to their enablers in the press -- are often trotted out as serious critics of the administration, and seldom shown for the vile and vicious anti-intellectual thugs that they are. Whether it's Howard Dean calling Republicans evil and saying he "hates" them; or John Murtha convicting soldiers of murder in advance of a full investigation; or a low-rent castoffs like Johnson, who the MSM routinely turns to when they need a good anti-war intelligence source, mustering up the guts to say that Karl Rove is responsible for his own mother's suicide -- the bile is there for all to sample, if only the MSM weren't so good at controlling the information flow.
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Personally, I think the addition of a Goebbels comparison really takes away the sting from the earlier draft [an earlier version of Johnson's blog post].

But then, I've always been a fan of an artfully-placed Nazi reference.

On one point, I agree with Jeff: Larry Johnson's crack about Karl Rove's mother's suicide was cruel, vicious, and completely out of line. And yes, Karl Rove is a cruel, vicious, and ruthless man himself, so some people may feel he doesn't deserve consideration. But it's not about Rove. It's about us. Unlike right-wingers, I do not subscribe to the philosophy that morality is relative to your political ideology, religious or ethnic identity, or national origin. And having lost a close family member to suicide almost 30 years ago, I can say with some authority that I am certain the pain of that particular experience is the same whether your politics are left-wing or right-wing.

Also, on a purely pragmatic level, throwing in a totally gratuitous comment about Rove's mother killing herself because Rove was her son, seriously detracts from an otherwise excellent post.

Having said this, I want to point out that the Josef Goebbels analogy was used less than a month ago -- by Sterling Burnett, a senior fellow at the National Center for Policy Analysis. Burnett compared Al Gore's film, "An Inconvenient Truth," to a Nazi propaganda film by Josef Goebbels. If Jeff made any comment about this, I missed it.

Jeff sarcastically titles his Larry Johnson post "When You Care, It's Okay To Say 'Controversial' Things" -- which is almost exactly what right-wing rag "News Copy New York" wrote about Ann Coulter's performance on the Today show, in which she called a group of 9/11 widows who oppose Bush's policies "witches" and declared, "I've never seen women enjoying their husbands' deaths so much."

She's a rough one with her words but she does it to gain attention to problems otherwise ignored. Unfortunately, it is what a non-liberal has to do to get the coverage by the news outlets.

And what did Jeff himself have to say about Ann Coulter telling five women whose husbands were killed in the flames of the World Trade Center on 9/11 that they were "witches" who "enjoyed their husbands' deaths" -- simply because they spoke out against the way George W. Bush has handled the war on terror?

A search on Memeorandum, Technorati, and other right-wing blogs that did write about Coulter's comments turned up .... nothing. Nada. Zip.

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U.S. Gets an F for Diplomacy and an A for Failure in the GWOT

Who can get 100 foreign policy analysts to agree about the progress of the global war on terror?

George W. Bush can.

Washington is failing to make progress in the global war on terror and the next 9/11-style attack is not a question of if, but when. That is the scathing conclusion of a survey of 100 leading American foreign-policy analysts.

In its first "Terrorism Index," released yesterday, the influential journal Foreign Policy found surprising consensus among the bipartisan experts.

Some 86 per cent of them said the world has grown more, not less, dangerous, despite President George W. Bush's claims that the U.S. is winning the war on terror.

The main reasons for the decline in security, they said, were the war in Iraq, the detention of terror suspects in Guantanamo Bay, U.S. policy towards Iran and U.S. energy policy.

The survey's participants included an ex-secretary of state and former heads of the Central Intelligence Agency and National Security Agency, along with prominent members of the U.S. foreign-policy establishment.

The majority served in previous administrations or in senior military ranks.

"When you strip away the politics, the experts, almost to a person, are very worried about the administration," says Joe Cirincione, vice-president of the Center for American Progress, the Washington think-tank which co-sponsored the survey.

"They think none of our front-line institutions is doing a good job and that Iraq has made the terror situation much worse."
[...]
Almost 80 per cent of the analysts said widespread rejection of radical Islamic ideologies is crucial if terrorism is to be eradicated, but that goal requires "a much higher emphasis on its non-military tools."

Across the board, they rated Washington's diplomatic efforts as abysmal, with a median score of 1.8 out of 10.

More than two-thirds said the United Nations and other multilateral institutions must be strengthened.

In the survey's accompanying report, Leslie Gelb, president emeritus of the Council on Foreign Relations, said policy analysts have never been in such agreement.
"The reason is that it's clear to nearly all that Bush and his team have had a totally unrealistic view of what they can accomplish with military force and threats of force."

Let's put that another way: Violence has solved nothing.

Told you so.

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"It's Always a Sad Benchmark"

Tony Snow, via Josh Marshall:

"It's a number. And every time there's one of these 500 benchmarks, people want something."

Via Reuters AlertNet:

Rep. Ike Skelton, a Missouri Democrat, noted the "sad news that we have reached a sad milestone," and the House of Representatives observed a moment of silence.

Gordon Lightfoot, "The Patriot's Dream":

The songs of the wars are as old as the hills
They cling like the rust on the cold steel that kills
They tell of the boys who went down to the tracks
In a patriotic manner with the cold steel on their backs

The patriot's dream is as old as the sky
It lives in the lust of a cold callous lie
Let's drink to the men who got caught by the chill
Of the patriotic fever and the cold steel that kills

The train pulled away on that glorious night
The drummer got drunk and the bugler got tight
While the boys in the back sang a song of good cheer
While riding off to glory in the spring of their years

The patriot's dream still lives on today
It makes mothers weep and it makes lovers pray
Let's drink to the men who got caught by the chill
Of the patriotic fever and the cold steel that kills

Well there was a sad, sad lady
Weeping all night long
She received a sad, sad message
From a voice on the telephone
Her children were all sleeping
As she waited out the dawn
How could she tell those children
That their father was shot down
So she took them to her side that day
And she told them one by one
Your father was a good man ten thousand miles from home
He tried to do his duty and it took him straight to hell
He might be in some prison, I hope he's treated well

Well there was a young girl watching in the early afternoon
When she heard the name of someone who said he'd be home soon
And she wondered how they got him, but the papers did not tell
There would be no sweet reunion, there would be no wedding bells
So she took herself into her room and she turned the bed sheets down
And she cried into the silken folds of her new wedding gown
He tried to do his duty and it took him straight to hell
He might be in some prison, I hope he's treated well

Well there was an old man sitting in his mansion on the hill
And he thought of his good fortune and the time he'd yet o kill
Well he called to his wife one day, "Come sit with me awhile"
Then turning toward the sunset, he smiled a wicked smile
"Well I'd like to say I'm sorry for the sinful deeds I've done
But let me first remind you, I'm a patriotic son." ...

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Judge Rules: No Legal Rights for Muslim Detainees Is Fine

From the borough formerly known as the People's Republic of Brooklyn:

A federal judge in Brooklyn ruled yesterday that the government has wide latitude under immigration law to detain noncitizens on the basis of religion, race or national origin, and to hold them indefinitely without explanation.

The Heretik titles his commentary "A Gulag Grows in Brooklyn":

"The Executive is free" to detain non citizens indefinitely if their eventual removal is "reasonably foreseeable." So our nation now how has two systems of justice within the confines of its borders. The lesser justice for non citizens is not likely to enhance justice for citizens. Arguments applied to non citizens ("enemy combatants" ring a bell?) have a way of being applied to citizens (hello, Jose Padilla).

Time to dust off Martin Niemoller again.

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No Light in Dark Corners

(Cross-posted at Blanton's and Ashton's.)

If there is one thing that the Gitmo authorities do not want, it's journalists shining light in dark corners. Which is why journalists from the Los Angeles Times, the Miami Herald, and the Charlotte Observer were told to leave the camp today:

In the aftermath of the three suicides at the controversial Guantanamo prison facility in Cuba last Saturday, reporters with the Los Angeles Times and the Miami Herald were ordered by the office of Secretary of Defense Donald Rumsfeld to leave the island today.

A third reporter and a photographer with the Charlotte Observer were given the option of staying until Saturday but, E&P has learned, were told that their access to the prison camp was now denied. An E&P "Pressing Issues" column on Tuesday covered an eye-opening dispatch by the Observer's Michael Gordon carried widely in other papers. He had listened in, with permission, as the camp commander gave frank instructions to staff on how to respond to the suicides.

All four journalists left the island today and arrived in Miami about 12:30 p.m.

The reporter from the Charlotte Observer had initially been told he could stay until Saturday, but that permission was abruptly revoked after the reporter, Michael Gordon, wrote several reports about a briefing the Guanatanamo commander gave his staff on how to respond to the recent suicides:

Michael Gordon of the Charlotte Observer was the first U.S. reporter to arrive at the Guantanamo prison camp just after three prisoners at the controversial facility committed suicide on Saturday. Since then he has filed some remarkable dispatches, culminating in the latest on Tuesday, in which the U.S. commander of the camp, Col. Mike Bumgarner, angrily declared that all the prisoners had proven to be untrustworthy.

They can't be trusted -- to not kill themselves, that is.

"Right now, we are at ground zero," Bumgarner, the commander, told his officers at his morning staff meeting, Gordon related. Bumgarner ordered a round of changes to prevent suicides amid rumors of more to come (several nooses have been seized). "The trust level is gone. They have shown time and time again that we can't trust them any farther than we can throw them. There is not a trustworthy son of a ----- in the entire bunch."

The three prisoners who hung themselves were not among the handful at the prison who have been formally charged with any crime. That, among other reasons, has prompted fresh calls for the U.S. to shutter the facility.

But the commander of the Guantanamo Bay naval base, Rear Adm. Harry B. Harris, has complained that the suicides were a concerted act of "asymmetrical warfare" designed to bring more public scorn onto the prison. A State Department official called the suicides "a good P.R. move," inspiring outrage in the Muslim world as well as among European allies.

Gordon was there -- an Observer photographer, Todd Sumlin, is also at the scene -- as a staff meeting took place on Monday in a conference room inside the prison wire. Gordon was not allowed to attend the meeting "because classified information was shown on a screen," he explained, but was "allowed to listen a few feet away by an open door."

The article continued: "Bumgarner ordered a high suicide alert for 'the brothers,' the term used by the military personnel to describe the detainees. 'Brother' also is a term of Muslim endearment the inmates use among themselves. 'If any brother says he's going to kill himself ... or says the death chant, anything. That brother will immediately go to a suicide blanket and smock,' Bumgarner said."

The suicide blanket apparently is made of a tightly wound material that is hard to puncture or strip. The smock, Gordon explained, keeps a detainee from ripping apart his shirt, pants or underwear to knot a rope.

Later in the discussion, as Gordon recounted, Bumgarner ordered a smock for another detainee. "Sir," one of his officers said, "we're going to run out of smocks."

"Order some more," Bumgarner said. "I want them in the next 72 hours if I have to put you on a jet to get them."

As many times as it's been pointed out, it bears repeating that of the 460 or so detainees who remain in Guantanamo, only a handful at most have been charged with any crime. All of them have been held for up to four and a half years in arbitrary detention, with no legal counsel, no habeus corpus, and no indication of when, if ever, they will be freed.

The vast majority of the prisoners at Guantanamo are guilty of nothing more than being in the wrong place at the wrong time -- like Mourad Benchellali, who was arrested in Pakistan shortly after 9/11, and spent the next two and a half years at Guantanamo.

I WAS released from the United States military's prison camp at Guantánamo Bay, Cuba, in July 2004. As I was about to board a plane that would take me home to France, the last detainee I saw was a young Yemeni. He was overwhelmed by emotion.

"In your country, Mourad, there are rights, human rights, and they mean something," he said. "In mine they mean nothing, and no one cares. So when you're free, don't forget what you've been through. Tell people that we are here."

I now know that this Yemeni was not among the three prisoners who committed suicide at Guantánamo last weekend, but since then his words have been echoing in my head. Although I'm now a free man, the shared pain endlessly takes me back to the camp.

In the early summer of 2001, when I was 19, I made the mistake of listening to my older brother and going to Afghanistan on what I thought was a dream vacation. His friends, he said, were going to look after me. They did -- channeling me to what turned out to be a Qaeda training camp. For two months, I was there, trapped in the middle of the desert by fear and my own stupidity.

As soon as my time was up, I headed home. I was a few miles from the Pakistani border when I learned with horror about the attacks of 9/11. Days later, the border was sealed off, and the only way through to Pakistan and a plane to Europe was across the mountains of the Hindu Kush. I was with a group of people who were all going the same way. No one was armed; most of them, like me, had been lured to Afghanistan by a misguided and mistimed sense of adventure, and were simply trying to make their way home.

I was seized by the Pakistani Army while having tea at a mosque shortly after I managed to cross the border. A few days later I was delivered to the United States Army: although I didn't know it at the time, I was now labeled an "enemy combatant." It did not matter that I was no one's enemy and had never been on a battlefield, let alone fought or aimed a weapon at anyone.

After two weeks in the American military base in Kandahar, Afghanistan, I was sent to Guantanamo, where I spent two and a half years. I cannot describe in just a few lines the suffering and the torture; but the worst aspect of being at the camp was the despair, the feeling that whatever you say, it will never make a difference.

David Ignatius has an excellent column today in which he writes that, in a metaphorical sense, Guantanamo keeps all Americans imprisoned. It's the prison we build for ourselves when we redraw the lines of humanity to exclude an entire segment of people:

When I hear U.S. officials describe the suicides of three Muslim prisoners at Guantanamo Bay last Saturday as "asymmetric warfare" and "a good PR move," I know it's time to close that camp -- not just because of what it's doing to the prisoners but because of how it is dehumanizing the American captors.

The American officials spoke of the dead prisoners as if they inhabited a different moral universe. That's what war does: People stop seeing their enemies as human beings and consign them to a different category. It was discomfiting to see this indifference stated so bluntly, and subsequent U.S. statements tactfully disavowed the initial ones.

We might call it the Guantanamo syndrome -- this process of mutual corrosion and dehumanization. The antidote is to get inside Guantanamo, to see the prisoners as individuals and begin to make distinctions. That's why due process for the detainees is so important -- because it will allow courts to distinguish between prisoners who are vicious killers and deserve the harshest punishment, and those who may be innocent of any terrorist crimes. We need to stop seeing everyone in the same orange suits.

Ignatius quotes Moazzam Begg, a Pakistani who grew up in Britain and spent two years in Guantanamo:

Begg was seized in Islamabad in January 2002. Though he was never charged with any crime, he was held for three years -- at Kandahar and Bagram in Afghanistan and then at Guantanamo. In one early interrogation at Bagram, he says, an FBI agent told him: "After 9/11, Moazzam, the rules changed. We have new laws, and according to them, you're already convicted." What's chilling about that line is that it was essentially true.

"It is considered a sin in Islam to despair," he writes, but after he was transferred to a solitary cell at Guantanamo in 2003, Begg began to crack. The guards seemed obsessed with preventing suicide. Begg received an odd plastic blanket, for example, and later learned that it was a "suicide blanket" that couldn't be torn up to make a noose. When guards found paint chipped in his cell, they worried that he was trying to poison himself.

A prison psychiatrist explained to Begg that there had indeed been suicide attempts: "She told me there were people who'd lost all sense of time, reason, reality; people who had been kept in a solitary cell, completely blocked off with no window, eight foot by six, like mine, but with absolutely nobody to speak to, nobody. She said some of them just ended up talking to themselves." A despairing Begg writes at one point to his father back in England: "I still don't know what crime I am supposed to have committed. . . . I am in a state of desperation and I am beginning to lose the fight against depression and hopelessness."

What gives me hope -- not just for Begg but for all of us -- is that he never lost his humanity at Guantanamo. He talked constantly with his American guards, asking where they were from, what they wanted out of life. When guards made racist remarks, he shamed them by answering back in perfect English. He describes a guard named Jennifer from Selma, Ala., who painted her fingernails black and dressed like a Goth on weekends, and who once confided: "I don't know if they've ever accused you of anything. But I know y'all can't be guilty." Begg says of her: "She left me with a lasting impression. All Americans were not the same."

When we think about Guantanamo, we need to follow that same rule. The prisoners aren't all the same, except in one sense: They are human beings and, as such, they have basic human rights. That recognition is our own escape from Guantanamo.

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