Mass Transit Terrorist Bombing Plot

Both left- and right-wing bloggers are all over the news that the FBI disrupted what is alleged to have been a terrorist plot to bomb the Holland Tunnel. [Later reports say that the Holland Tunnel was not the target, but the authorities would not elaborate.] Rightie bloggers are pointing to the disrupted plot as 'proof' that the New York Times article about the banking records surveillance program 'crippled' the government's ability to catch terrorists. Why? Because the Times's exposure of the SWIFT database forced the feds to stop the planned attack before the investigation was completed:

It is highly possible the terrorists were adapting and disappearing from the radar screens of the international law enforcement agencies, so action now was required.

Leftie bloggers are highlighting the 'Much ado about nothing' angle (because the arrests were made on the basis of loose talk in an Internet chatroom, and not much more).

CBS News' Public Eye, a blog about the way the media covers news, thinks the Daily News editors let their desire to sell papers overwhelm their judgment about this story's news value -- not because the story revealed any national security secrets, but because it's basically a non-story: There's no "there" there:

"TUNNEL BOMB PLOT" trumpeted the New York Daily News this morning on its cover, the words printed in big bold white letters against a black background. Jihadists, said the paper, had a "serious" plot to flood lower Manhattan by bombing the Holland Tunnel, "to drown the Financial District as New Orleans was by Hurricane Katrina."

Frightening? Sure. "Serious?" Well, the jury is still out. The "largely aspirational" plot never went beyond e-mails, there was no credible link to Al Qaeda, and there was no specific mention of the Holland Tunnel, just the mass transit system more generally; additionally, sources say "no one in the United States ever took part in the Internet conversations and ... no one ever purchased any explosives or scouted the transit system."

The plot as the Daily News conceived it seemed absurd enough that one would have thought it would have given editors pause -- how does one flood lower Manhattan via the Holland Tunnel, seeing as the island is above the level of the river? But that didn't stop the paper from rushing its inaccurate story into print and trumpeting it with BIG BOLD LETTERS, and it didn't stop other news organizations from turning the alleged plot into a huge story. That's no surprise, of course. When people speak of bias in the press, they tend to talk abut political bias, but the more serious bias is towards sensationalism, which tends to sell better. (It's safe to say the Daily News moved a few more copies this morning than usual.)

Steve Soto asks the same question I had when I saw that rightie bloggers were using the Daily News article to continue bashing the New York Times:

Why is it bad for the Times to report on financial monitoring of overseas banking transactions that Bush has already bragged about, but now it's OK for a federal official to reveal the information [about the plan to bomb the Holland Tunnel] came from monitoring internet chat rooms?

John Amato over at Crooks and Liars points out that the Daily News piece goes further than simply revealing where the government's information comes from: The investigation into the plot the Daily News wrote about is not over yet. Where is the outcry and the accusations of treason about the Daily News telling the public about an ongoing terrorist investigation?

I called the NY Daily News columnist, ALLISON GENDAR, who was one of the journalists that broke this story today. ...
[...]
I knew it was going to be a hectic day in the newsroom, but I asked her if she thought that the Daily News would be attacked like the NY Times was since this is still an ongoing investigation and her paper printed the story anyway. She quickly said she had to go, but said I could call back. Where is the outrage from the administration and the right wing bloggers over The Daily News possibly compromising an ongoing investigation? I don't wish to cause the NY Daily News problems, but you can see where I'm headed here. It sure looks like the government leaked this story to The Daily News to make itself look good. Crawfordslist feels the same way. The NY Times was set up by the administration and is still being attacked over idiotic stories. This NY Daily News story is more proof of that. ...

Apparently, the New York Times is at fault for the articles it publishes, and for the articles the Daily News publishes:

Most disturbing is this terrorist action here in the US has all the characteristics of having been stopped using the very same programs the NY Times has crippled in its mindless attacks on the Bush administration. Monitoring communications includes monitoring the overseas access to internet chat rooms. One can see the now exposed monitoring of the terrorists' finances and NSA monitoring of overseas terrorists in the information being provided -- meaning they may have had to act now because the terrorists were adjusting their tactics:

Counterterrorism officials are alarmed by the "lone wolf" terror plot because they allegedly got a pledge of financial and tactical support from Jordanian associates of top terrorist Abu Musab al-Zarqawi before he was killed in Iraq, a counterterrorism source told The News.

Emphasis mine. The tactical support is going to come through communications. The plot could have easily been initially detected when this "lone wolf" made contact with the Jordanian terrorists who could have been under NSA surveillance. Since the FBI is involved, the next logical sequence of events would be the NSA providing the lead to the FBI who then took it to the FISA court to make the person the target of surveillance here in the US once they decided it was a serious enough of a threat. It seems clear the authorities had to move before they wanted to for some reason or another:

The News has learned that at the request of U.S. officials, authorities in Beirut arrested one of the alleged conspirators, identified as Amir Andalousli, in recent months. Agents were scrambling yesterday to try to nab other suspects, sources said.

They didn't indicate how many people were the target of the international dragnet but said they were scattered all over the world.

"This is an ongoing operation," one source said.

U.S. agents were allowed to take part in the interrogation of Andalousli, a source said.

There were three ongoing investigations that were impacted by the NY Times' despicable exposure of the SWIFT program which was used to track terrorists cells around the world (not here in the US). It is highly possible the terrorists were adapting and disappearing from the radar screens of the international law enforcement agencies, so action now was required. The word 'scrambling' is not something we want to see when dealing with terrorist threats.

Is the NY Times a danger to Americans in its lust for money and partisan payback on Bush? I'll let the good people of America decide whether they think so based on the plans of these terrorists:

The plotters wanted to detonate a massive amount of explosives inside the Holland Tunnel to blast a hole that would destroy the tunnel, everyone in it, and send a devastating flood shooting through the streets of lower Manhattan.

It is assumed by officials the thugs would try to use vehicles packed with explosives.

Sources said that New York City officials believed the plan could conceivably work with enough explosives placed in the middle of the tunnel, which runs underneath the river bed, a source said.

But others doubted the plot was feasible.

"You are talking major, major explosives and knowledge of blast effect to make this happen," said another senior counterterrorism source.

The efforts to try and play this down by anyone, but especially by the left, is abhorent. Picture you and your family driving through a tunnel or under a bridge when terrorists try this kind of action. Even localized death and destruction is unacceptable losses. If NY City needed a reminder of the stakes the NY Times is playing with (their Pulitzers vs NYC lives) there is no better example. Just imaging [sic] if this had slipped by because we had been blinded to the terrorist's actions.

Yes, and just imagine if any or all of the remaining suspects in the Holland Tunnel bombing plot elude capture because the Daily News published an article about an ongoing investigation.

Liberal Catnip (a blog that's new to me; I found it via a link at Crooks and Liars) devotes an
entire post to the deafening silence on the right about the Daily News reporting leaked information about a live investigation.

It's worth pointing out that the Counterterrorism Blog, which is widely respected both on the left and the right sides of the blogosphere, does not mention the New York Times article -- or news media coverage at all, in connection with national security -- in its initial analysis of the tunnel bombing plot. Not only that: Victor Comras, one of Counterterrorism Blog's regular contributors, is quoted in an op-ed by Ann Woolner (on Bloomberg.com) saying that terrorists are fully aware that their finances are being tracked, and how they are being tracked; and that the New York Times article told them nothing they did not already know:

"We've been announcing that we've been tracing assets and financial transactions for a long time," says Victor Comras, a retired U.S. diplomat who oversaw a United Nations program aimed at tracking terrorist funds. "The fact of the matter is that terrorists knew we were tracking their assets and they took countermeasures early on," Comras said in a telephone interview.

This op-ed is referenced on the right sidebar of Counterterrorism Blog with the link text, "No Crime When Journalists Report What's Public."

Perhaps the right should ask itself why it is raising such a ruckus over something that counterterrorism experts are utterly unconcerned about.

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Thursday Night Catch-Up

The Bush administration was working with AT&T and possibly other companies to build a database of Americans' calling records seven months before 9/11. There goes the national security rationale for the program. And guess what else? The news that the phone call surveillance program predated 9/11 broke on Friday, June 30 -- the Friday before the four-day July 4th weekend.

The U.S. Army today filed three separate charges -- missing movement, contempt toward officials, and conduct unbecoming an officer -- against Lt. Ehren Watabi, who refused to be deployed to Iraq on the grounds that the war was illegal, and that participating in such a war would implicate him in war crimes.

Right-wing bloggers are predictably unsympathetic. Guess "support the troops" really means "support the troops who are supporting Bush's war policies."

It seems that Donald Rumsfeld and Dick Cheney, among others who worked in the Nixon administration when Spiro Agnew was vice-president, have been doing a slow burn ever since the Supreme Court's 1971 decision to uphold press freedom by ruling against the government in its attempt to block publication of the Pentagon Papers, and by rejecting Nixon's request for an injunction against the New York Times when that paper began to print excerpts.

Dick Cheney, Donald Rumsfeld, and others in the Nixon-Agnew-Ford orbit left Washington believing that the imperial Presidency had been disastrously hobbled by a now imperial press. When they reappeared in 2001, under the auspices of George W. Bush, the Nixon-Agnew spirit was resurrected with them -- this time without the Joycean wordplay. More than any other White House in history, Bush's has tried to starve, mock, weaken, bypass, devalue, intimidate, and deceive the press, using tactics far more toxic than any prose devised in the name of Spiro Agnew.

Firm in the belief that the press can be gored for easy political gain, the Bush Administration has set about reducing the status of the media (specifically, what it sees as the left-wing, Eastern-establishment media) to that of a pesky yet manageable interest group, nothing more. As Andrew Card, the White House chief of staff at the time, told this magazine's Ken Auletta, "They" -- the media -- don't represent the public any more than other people do. In our democracy, the people who represent the public stood for election. ... I don't believe you have a check-and-balance function."

Larry Johnson absolutely eviscerates the Bush administration's claim that the New York Times article about the supposedly secret monitoring of international banking data harmed national security. We've heard many times already that Pres. Bush has proclaimed loudly and often how assiduously the U.S. is tracking terrorists' money -- but Larry has unearthed transcripts of congressional hearings in which Treasury Department officials describe the government's tracking methods in exquisite detail:

The information provided to the public went well beyond general platitudes. In fact, U.S. officials provided specific information that anybody, including members of Al Qaeda, who read the testimony would learn what the United States Government was doing and how it was doing it. Here is the public record on what the U.S. Government has been doing to track terrorist finances.

First, a Teasury Department official publicly identified on the record how Al Qaeda moved money thru the international financial system. ...
[...]
Second, U.S. Government officials provided specific details on what they were doing to track and identify how terrorists were moving their money. ...
[...]
Third, U.S. Government officials identified the intelligence community as being an important part of the effort to identify and track terrorist financing. ...
[...]
Fourth, the U.S. Government and the International Community, thru the Financial Action Task Force aka FATF, laid out in detail an international plan for tracking and identifying terrorist assets:

At an extraordinary plenary meeting on the financing of terrorism held in Washington, DC on October 29 to October 30 2001, the Financial Action Task Force (FATF) agreed to a set of special recommendations to suppress terrorist financing. ...
[...]
Finally, the Bush Administration has repeatedly informed the public that they were having great success tracking terrorist financing tracing financial activities "forward" and "backwards". ...
[...]
Only people trading clam shells for coconuts would have been unaware that any financial transaction moving through the international financial system--which includes SWIFT, FedWire, and CHIPS—was being scrutinized by the United States Government. As I noted earlier, Bush official, Juan Zarate, was telling Congress in February 2002 that Bin Laden and his crew were taking precautions because traditional banking money movements made them vulnerable to detection.

Via Cursor.org, which has more on what the terrorists have known all along from Gene Lyons, and on the right's irresponsible "rhetoric of treason" from Glenn Greenwald.

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The Times Gets Its Digs (Well Done)

At least one right-wing blogger thinks this editorial in the New York Times about press restrictions in China is really a veiled dig at the Bush administration and its right-wing supporters for the attacks, accusations, and threats that followed the Times's publication of an article about a secret money-tracking program that the Bush administration put into place in defiance of Congress's lawmaking function. The Times was assaulted for its "traitorous" decision to publish an article about a program the government did not want the public to know about.

Here's the editorial:

News has always been a tough nut for Communist dictators. It happens unexpectedly, giving bureaucrats precious little time to prepare the correct ideological explanation; it often undermines whatever propaganda line the state is pushing, and if it happens to involve embarrassing events like riots, strikes, accidents or outbreaks of disease, it can make the party bosses look less than perfect.

The Soviet Union dealt with the problem with the infamous Article 70 of the penal code, which basically defined anything the state didn't want people to hear as "anti-Soviet agitation and propaganda." Now China proposes to take the art of censorship a step higher with a bill that would severely fine news media outlets if they report on "sudden incidents" without prior authorization.

"Sudden incidents" sounds awfully similar to what most of the world knows better as "breaking news," and in most countries it's considered a core function of the news media.

The trouble with suppressing reports of sudden incidents is that they usually emerge anyway, in a form even more damaging to the state. That happened when the Soviet Union tried to play down the Chernobyl disaster 20 years ago; China's cover-up of the SARS epidemic in 2003 only made the outbreak of the disease more severe.

The draft law says that newspapers, magazines, Web sites and television stations would face fines up to $12,500 each time they published information about a sudden incident "without authorization." It is, of course, a horrible idea that strips away any pretense China might have of political openness or modernity.

This Independence Day seems like a good day to point out that no country does itself any credit when it tries to control the free flow of news. In the case of China, it's also probably futile. Nothing produces the cachet and credibility that censorship does, and the Internet has made the job of controlling information far more difficult. Billing a story as an "unauthorized sudden incident" could become the Chinese equivalent of the old, seductive "banned in Boston."

Or, billing a story as "classified for national security reasons" could become the American equivalent of the new Chinese "unauthorized sudden incident."

Either way, if Bush supporters are angry about the subtext of this editorial, they have only themselves to blame. It's not the New York Times's fault if there is an uncanny parallelism between the U.S. government's and Chinese government's reactions to unauthorized newspaper articles.

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America's Capacity for Self-Correction

I don't disagree with E.J. Dionne when he says that what distinguishes our country from others is its capacity for self-correction. I certainly agree that it is America's dissidents who have, in every instance, moved us forward along the path toward a more complete realization of democracy.

But I also think that Dionne misses a larger point -- and the right-wing bloggers who have commented on Dionne's essay not only miss the point, they don't even know the point exists.

If "the true genius of America has always been its capacity for self-correction," that is not because of something unique in the American character. It's because we have been allowed to do so.

What do I mean when I say we have been allowed to self-correct? I mean simply that no one outside our borders has sabotaged our efforts to self-correct. Right-wingers like Gaius at Blue Crab Boulevard implicitly acknowledge this, without realizing that's what they are doing:

Ultimately, this country has a genius for figuring out what is right and what is wrong. It sometimes takes years, even generations. But we get there in the end.

Indeed, indeed, indeed. And haven't we been a blessed and fortunate people to have had the extraordinary luxury of being able to take those years, and generations, and sometimes centuries, to figure out what the right thing is and how to do it, without other nations invading our country and fighting wars in it or overthrowing our leaders or occupying our land for years and years and years, for the alleged purpose of "helping" us liberate ourselves, expand our freedoms, right our wrongs, and do the right thing?

If I am not mistaken, the American Revolution, which won us the independence that we celebrate on this day, was the last time and the only time a foreign army fought on our shores. That foreign army was France's, and they fought on the colonists' side against the British -- nominally to help us with our cause, but more specifically to harm the interests of their particular enemy, which was England. Whatever their motives, however, we appreciated their help. We could not have won the war without their help. That said, what did the French do once the British had been defeated? They left. They left, even though our brand new country was quite unstable still, did not have a constitution, and was awash in warring factions who could not agree on what direction to go in. They left, even though our first attempt at a constitution, the Articles of Confederation, was a disaster; and even though the Founding Fathers defied their mandate to amend the Articles and instead met in secret, totally scrapped the Articles, and wrote what became our Constitution -- which caused an uproar of outrage.

We new Americans made plenty of mistakes, both small and large, before we found our way back to the right path. There is an excellent case to be made that the reason we were able to find our way to the right path was because the French left. If the French had used our inexperience and instability as an excuse, and decided they had to keep their troops here because we "had never known independence or democracy before" and "couldn't govern ourselves," we very likely would never have solved our problems, or it would have taken much longer. Why? Because we would have been resentful and angry that the French wouldn't leave, and we would have fought them, and the American insurgency against the French occupation would have destroyed our efforts to form our own stable government and society.

So while E.J. Dionne and bloggers like Gaius and A.J. Strata and the "Good Lieutenant" pat themselves on the back for being part of a country that fixes its own problems and always does the right thing, even if it takes a while, they might reflect on what a difficult thing that is to do, and how time-consuming it can be, and what an enormous advantage it has been for us, as a nation, to be able to take all the time in the world that we needed to do it, without fear that some other government somewhere would decide we weren't doing it right and needed to be shown a better way.

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"Bush's Foreign Friends Fading Fast"

The Associated Press:

Most of the leaders who defied criticism at home to stand with him on Iraq and win his friendship are no longer players on the world stage, or are on their way out. And it was a small band of brothers to begin with.

British Prime Minister Tony Blair has said he'll step down before the next national election and is coming under increasing pressure from his own party to do it sooner. Japanese Prime Minister Junichiro Koizumi paid a farewell visit to the United States last week. He is leaving office in September.

Italy's Silvio Berlusconi resigned in early May after his party's election losses. Spain's Jose Maria Aznar was earlier forced out of office, the first casualty of supporting Bush on Iraq.
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Newer leaders, particularly those in Europe, have seen the political penalties paid by those who stood too close to Bush -- and have been more reluctant to embrace him so openly. One exception is German Chancellor Angela Merkel, who has visited the White House twice this year. She and Bush seemed to hit it off, even though they had some differences. Bush, en route to a summit of world leaders in Russia this month, will stop to see the old East Germany where Merkel grew up.

Goodwill that flowed to the United States right after the Sept. 11 attacks has long been offset by growing opposition to the war in Iraq and to Bush's foreign policy leadership, polls show.

A May poll by the Pew Research Center shows Bush's ratings and confidence in him to do the right thing on foreign affairs to be slipping ever lower in Europe -- even at a time of growing apparent consensus with European allies on efforts to restrict the nuclear programs of Iran and North Korea.

"Clearly the U.S. presence in Iraq is a drag on the image of the United States. It is cited more often than the current Iranian government as a threat to regional stability and world peace by many people in these countries," said Pew director Andrew Kohut.

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The Brits Don't Like Us

They think we're cruel, vulgar imperialists:

People in Britain view the United States as a vulgar, crime-ridden society obsessed with money and led by an incompetent president whose Iraq policy is failing, according to a newspaper poll.

The United States is no longer a symbol of hope to Britain and the British no longer have confidence in their transatlantic cousins to lead global affairs, according to the poll published in The Daily Telegraph.

The YouGov poll found that 77 percent of respondents disagreed with the statement that the US is "a beacon of hope for the world".

As Americans prepared to celebrate the 230th anniversary of their independence on Tuesday, the poll found that only 12 percent of Britons trust them to act wisely on the global stage. This is half the number who had faith in the Vietnam-scarred White House of 1975.

A massive 83 percent of those questioned said that the United States doesn't care what the rest of the world thinks.

With much of the worst criticism aimed at the US adminstration, the poll showed that 70 percent of Britons like Americans a lot or a little.

US President George W. Bush fared significantly worse, with just one percent rating him a "great leader" against 77 percent who deemed him a "pretty poor" or "terrible" leader.

More than two-thirds who offered an opinion said America is essentially an imperial power seeking world domination. And 81 per cent of those who took a view said President George W Bush hypocritically championed democracy as a cover for the pursuit of American self-interests.

US policy in Iraq was similarly derided, with only 24 percent saying they felt that the US military action there was helping to bring democracy to the country.

A spokesman for the American embassy said that the poll's findings were contradicted by its own surveys.

"We question the judgment of anyone who asserts the world would be a better place with Saddam still terrorizing his own nation and threatening people well beyond Iraq's borders," the paper quoted the unnamed spokesman as saying.

And presumably the Brits question the judgment of anyone who asserts the world is a better place with death squads and suicide bombers terrorizing Iraq and with the country that overthrew Saddam still occupying Iraq and threatening people well beyond Iraq's borders.

Come to think of it, I question such people's judgment, too.

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If Diogenes Had Known Malkin, Hinderaker, and Horowitz, He'd Have Needed Ten Lanterns

Glenn Greenwald decided to do a little digging into that photograph the NYT published of Donald Rumsfeld's vacation home -- you know, the one that those hysterical, unhinged lunatics named in the title of this post claim exposed Rumsfeld and his pal Dick Cheney to assassination by terrorists?

It turns out that Rumsfeld gave permission for the photograph to be published:

As I documented at length this weekend, Michelle Malkin, John Hinderaker, Red State, David Horowitz and many others of that sort spent the weekend engaged in the most vicious and self-evidently misguided attacks on The New York Times based on a puff piece in this weekend's "Escapes" section. Because the article contained a photograph of Don Rumsfeld's vacation home, they insisted that this was reckless and even retaliatory-- i.e., done with the intent to enable Al Qaeda operatives and other assassins to murder Rumsfeld (as well as Dick Cheney), and that it was further evidence of the war being waged by the NYT and its employees on the Bush administration and the U.S.

For so many obvious reasons, based on easily obtainable information -- including the fact that multiple right-wing news outlets such as NewsMax and Fox and others had previously disclosed this same information months earlier, that this information is commonly reported about government leaders in both parties, and the fact that we always know where our top government officials live and spend their weekends because they have Secret Service protection -- these accusations were as false as they were hysterical.

But in addition to those known reasons, I strongly suspected that the Times would not have published those photographs unless they had made certain in advance that doing so would not conflict with Rumsfeld and Cheney's security concerns. But I did not make this argument because I was not sure that it was true, and unlike Michelle Malkin and John Hinderaker, I'd rather wait to obtain the relevant evidence before running around asserting "facts" based on nothing. As a result, I wrote e-mails yesterday to Linda Spillers (the photographer) and Peter Kilborn (the reporter) bringing these accusations to their attention and asking for a response.

Although I haven't heard yet from Kilborn, I received an e-mail from Spillers this morning, in which she said:

Ironically, photos were taken with Secretary Rumsfeld's permission.

The reprehensible lynch mob hysterics --Michelle Malkin, John Hinderaker, Red State, David Horowitz -- spent the weekend screaming that the Times was guilty of gross recklessness and/or a deliberate intent to have Rumsfeld killed, by virtue of publication of this article. That bloodthirsty frenzy caused other bloggers to publish the home address and telephone number of Spillers and urged that other NYT editors and reporters be "hunted down." Other followers of Malkin and Hinderaker suggested to their readers that this was yet more evidence of the unpatriotic recklessness of the NYT.

All along, Don Rumsfeld gave his express permission to the NYT for these photographs to be taken. How can anything other than complete scorn be heaped on Malkin, Hinderaker, Horowitz, Red State, and all of the uber-patriotic copycat accusers who spent the weekend spewing the most dangerous accusations possible based on completely false premises? Who would think that any of them have a shred of credibility after seeing how irresponsible and impervious to facts they are -- even when knowingly catalyzing lynch mobs against people?

Once they read the NYT article, was there any reason why they could not have simply inquired with Rumsfeld's office, or Cheney's, or with the demonic NYT itself, as to whether there really were any security threats posed by that article? Why couldn't they have searched to see if other media outlets -- such as Fox or NewsMax -- had previously made this information known? Before accusing the NYT of deliberately enabling Terrorists to murder government officials, isn't there at least the most minimal obligations to verify if those accusations are actually true? But they don't care whether their accusations are true. They are in pure hate-mongering mode against the NYT, and all they want is to whip up as much unbridled rage and contempt for the NYT and its employees as possible.

So, they read a blatantly innocuous vacation home fluff piece this weekend, and without bothering to pause for even a split second to conduct a shred of research or engage in even a moment of reflection -- activities which would have led them to prior, much more revealing articles about the Clintons' Chappaqua home, or prior articles revealing the same information about Rumsfeld and Cheney's home -- they instead launch into their reflexive, mouth-watering attacks on people whom they hate, completely indifferent to the consequences of their conduct and equally indifferent to the truth of what they are saying.

Greg Sargent at American Prospect asked the Secret Service whether the photograph and article created a security threat. The answer was no.

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Republican Lawmakers Urge Passage of Law to Ensure that U.S. Can Violate International and Domestic Law Without Fear of Consequences

Quite right: It's outrageous that anyone could think that international law applies to the United States.

Note the strong, principled stand taken by John "Mr. Moderate Republican" McCain:

Two Republican senators said Sunday that Congress must rein in the Supreme Court ruling that international law applies to the Bush administration's conduct in the war on terror.

Thursday's Supreme Court decision embracing Article 3 of the Geneva Accords in the military commission case of Osama bin Laden's former driver strikes at the heart of the White House's legal position in the war on al-Qaida.

Sen. Mitch McConnell,R-Ky., the second-ranking GOP leader in the Senate, said the 5-3 court decision "means that American servicemen potentially could be accused of war crimes.

"I think Congress is going to want to deal with that," McConnell said on NBC's "Meet the Press." He called the ruling "very disturbing."

The Geneva Convention's Article 3 is "far beyond our domestic law when it comes to terrorism, and Congress can rein it in, and I think we should," said Sen. Lindsay Graham, R-S.C., assigned as a Reserve Judge to the Air Force Court of Criminal Appeals. Graham spoke on "Fox News Sunday."

Sen. John McCain, R-Ariz., also expressed concern about the decision, saying it "is somewhat of a departure, in my view, of people who are stateless terrorists."

Article 3 mandates standards of treatment in cases of armed conflicts not of an international character in the territory of a contracting party, which Afghanistan is.

Article 3 prohibits outrages upon personal dignity, "in particular humiliating and degrading treatment," and bars violence, including murder, mutilation and torture.

McConnell wants Congress to deal with the Geneva Accords issue at the same time it addresses another aspect of the court's ruling overturning President Bush's military commissions created to try a limited number of detainees from Guantanamo Bay.

"I don't think we're going to pass something that's going to have our military servicemen subject to some kind of international rules," said McConnell.

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More Information Emerges About Rape and Murder by Army Soldiers

This is from today's Washington Post. Even right-wing bloggers (the few that have commented so far) seem to be taking it seriously:

Fifteen-year-old Abeer Qasim Hamza was afraid, her mother confided in a neighbor.

As pretty as she was young, the girl had attracted the unwelcome attention of U.S. soldiers manning a checkpoint that the girl had to pass through almost daily in their village in the south-central city of Mahmudiyah, her mother told the neighbor.

Abeer told her mother again and again in her last days that the soldiers had made advances toward her, a neighbor, Omar Janabi, said this weekend, recounting a conversation he said he had with the girl's mother, Fakhriyah, on March 10.

Fakhriyah feared that the Americans might come for her daughter at night, at their home. She asked her neighbor if Abeer might sleep at his house, with the women there.

Janabi said he agreed.

Then, "I tried to reassure her, remove some of her fear," Janabi said. "I told her, the Americans would not do such a thing."

Instead, attackers came to the girl's house the next day, apparently separating Abeer from her mother, father and young sister.

Janabi and others knowledgeable about the incident said they believed that the attackers raped Abeer in another room. Medical officials who handled the bodies also said the girl had been raped, but they did not elaborate.

Before leaving, the attackers fatally shot the four family members -- two of Abeer's brothers had been away at school -- and attempted to set Abeer's body on fire, according to Janabi, another neighbor who spoke on condition of anonymity, the mayor of Mahmudiyah and a hospital administrator with knowledge of the case.
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Janabi was one of the first people to arrive at the house after the attack, he said Saturday, speaking to a Washington Post special correspondent at the home of local tribal leaders. He said he found Abeer sprawled dead in a corner, her hair and a pillow next to her consumed by fire, and her dress pushed up to her neck.

"I was sure from the first glance that she had been raped," he said.

This is where I stopped reading, although the article goes on for another screen. I could not make myself go further.

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Coulter Cheats, Lies, Pilfers, Steals, and Plagiarizes. Surprised?

From the New York Post's online edition:

Conservative scribe Ann Coulter cribbed liberally in her latest book, "Godless," according to a plagiarism expert.

John Barrie, the creator of a leading plagiarism-recognition system, claimed he found at least three instances of what he calls "textbook plagiarism" in the leggy blond pundit's "Godless: the Church of Liberalism" after he ran the book's text through the company's digital iThenticate program.

He also says he discovered verbatim lifts in Coulter's weekly column, which is syndicated to more than 100 newspapers, including the Fort Lauderdale (Fla.) Sun-Sentinel and Augusta (Ga.) Chronicle.

Barrie, CEO of iParadigms, told The Post that one 25-word passage from the "Godless" chapter titled "The Holiest Sacrament: Abortion" appears to have been lifted nearly word for word from Planned Parenthood literature published at least 18 months before Coulter's 281-page book was released.

A separate, 24-word string from the chapter "The Creation Myth" appeared about a year earlier in the San Francisco Chronicle with just one word change - "stacked" was changed to "piled."

Another 33-word passage that appears five pages into "Godless" allegedly comes from a 1999 article in the Portland (Maine) Press Herald.

Meanwhile, many of the 344 citations Coulter includes in "Godless" "are very misleading," said Barrie, who holds a Ph.D. from the University of California at Berkeley, where he specialized in pattern recognition.

"They're used purely to try and give the book a higher level of credibility - as if it's an academic work. But her sloppiness in failing to properly attribute many other passages strips it of nearly all its academic merits," he told The Post.

Barrie says he also ran Coulter's Universal Press columns from the past 12 months through iThenticate and found similar patterns of cribbing.

Her Aug. 3, 2005, column, "Read My Lips: No New Liberals," about U.S. Supreme Court Justice David Souter, includes six passages, ranging from 10 to 48 words each, that appeared 15 years earlier in the same order in an L.A. Times article, headlined "Liberals Leery as New Clues Surface on Souter's Views."

But nowhere in that column does she mention the L.A. Times or the story's writer, David G. Savage.

Her June 29, 2005, column, "Thou Shalt Not Commit Religion," incorporates 10 facts on National Endowment for the Arts-funded work that originally appeared in the same order in a 1991 Heritage Foundation report, "The National Endowment for the Arts: Misusing Taxpayers' Money." But again, the Heritage Foundation isn't credited.

"Just as Coulter plays free and loose with her citations in 'Godless,' she obviously does the same in her columns," Barrie said.

Coulter did not respond to requests for comment.

The Post has a rep for tabloid journalism, but Coulter's penchant for plagiarism has been reported many times before.

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Mark Steyn Is an Idiot

In case you thought the Geneva Conventions were created to ensure that all parties to a war are treated in accordance with principles of basic human rights, Mark Steyn wants you to know how wrong you are:

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows' tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it's best if they're fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you'll be treated as a lawful combatant should you fall into the hands of the other side. There'll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded --that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad -- or, if you're a female suicide bomber about to board an Israeli bus, a woman's right to Jews.

So there you are. The Geneva Conventions are not there to ensure that there are basic standards of humane treatment to which everyone involved in a war is entitled. The Geneva Conventions are there to encourage countries that don't have tanks or uniforms to be polite and humble and not engage in asymmetrical warfare when invaded by countries that have lovely uniforms and hundreds of tanks, trucks, and armored vehicles of every size and description.

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Seymour Hersh on the Administration's Plans for Iran

Seymour Hersh's articles are always long, always thoroughly researched and superbly written, and always required reading. His latest, on the Bush administration's plans for Iran, is no exception.

The White House's thinking about Iran is certifiably unhinged. Basically, it can be summed up as creating a deadly threat based on deeply flawed intelligence, going through the motions of finding a peaceful solution with designed-to-fail diplomacy, followed by massive bombing, including the use of nuclear weapons. The last option was allegedly taken off the table after senior military commanders reacted with such an explosion of outrage that the Bush administration was forced to back down. But according to Hersh, the military brass is becoming more and more resistant to the entire tenor of the Bush-Rumsfeld-Cheney "solution" to the Iran problem:

Inside the Pentagon, senior commanders have increasingly challenged the President's plans, according to active-duty and retired officers and officials. The generals and admirals have told the Administration that the bombing campaign will probably not succeed in destroying Iran's nuclear program. They have also warned that an attack could lead to serious economic, political, and military consequences for the United States.

A crucial issue in the military's dissent, the officers said, is the fact that American and European intelligence agencies have not found specific evidence of clandestine activities or hidden facilities; the war planners are not sure what to hit. "The target array in Iran is huge, but it's amorphous," a high-ranking general told me. "The question we face is, When does innocent infrastructure evolve into something nefarious?" The high-ranking general added that the military's experience in Iraq, where intelligence on weapons of mass destruction was deeply flawed, has affected its approach to Iran. "We built this big monster with Iraq, and there was nothing there. This is son of Iraq," he said.

"There is a war about the war going on inside the building," a Pentagon consultant said. "If we go, we have to find something."

Arthur Silber underscores the danger we face -- not from Iran's nuclear program, but from the administration's determination to choose the most belligerent course of action without regard for what is known or not known:

Hersh repeatedly makes the point that no one -- no one, not even the Israelis -- has any good intelligence about Iran and its nuclear plans at all. If and when the hysteria about Iran begins to be deliberately stoked once more, I suggest you keep this fundamental fact in mind and never, ever forget it. ...
[...]
No one should take any consolation from this lack of information: this ignorance is hardly viewed as a deterrent to action by the administration itself. Their "solution" to the complete lack of specificity in knowledge about Iran's nuclear capacity is massive carpet bombing. ...

But this is not the most stunning part of what Hersh reports. For me, reading this passage made my head explode [emphasis mine]:

The military leadership is also raising tactical arguments against the proposal for bombing Iran, many of which are related to the consequences for Iraq. According to retired Army Major General William Nash, who was commanding general of the First Armored Division, served in Iraq and Bosnia, and worked for the United Nations in Kosovo, attacking Iran would heighten the risks to American and coalition forces inside Iraq. "What if one hundred thousand Iranian volunteers came across the border?" Nash asked. "If we bomb Iran, they cannot retaliate militarily by air -- only on the ground or by sea, and only in Iraq or the Gulf. A military planner cannot discount that possibility, and he cannot make an ideological -- only about what damage Iran could do to our interests." Nash, now a senior fellow at the Council on Foreign Relations, said, "Their first possible response would be to send forces into Iraq. And, since the Iraqi Army has limited capacity, it means that the coalition forces would have to engage them."

The Americans serving as advisers to the Iraqi police and military may be at special risk, Nash added, since an American bombing "would be seen not only as an attack on Shiites but as an attack on all Muslims. Throughout the Middle East, it would likely be seen as another example of American imperialism. It would probably cause the war to spread."

In contrast, some conservatives are arguing that America's position in Iraq would improve if Iran chose to retaliate there, according to a government consultant with close ties to the Pentagon's civilian leaders, because Iranian interference would divide the Shiites into pro- and anti-Iranian camps, and unify the Kurds and the Sunnis. The Iran hawks in the White House and the State Department, including Elliott Abrams and Michael Doran, both of whom are National Security Council advisers on the Middle East, also have an answer for those who believe that the bombing of Iran would put American soldiers in Iraq at risk, the consultant said. He described the counterargument this way: "Yes, there will be Americans under attack, but they are under attack now."

I don't know about anyone else, but here is the first thing I thought of when I read this. Apparently, the publication of an article in the New York Times that supposedly gave it away to terrorists that the U.S. government is trying to track their money placed the lives of American soldiers in Iraq and American civilians in the U.S. directly at risk. The New York Times is supposedly directly responsible for the blood of countless Americans at home and abroad who will be killed by terrorists enraged by the revelation that the Bush administration follows their money trails.

But somehow, bombing Iran, which would undeniably put thousands of American soldiers' lives directly at risk, is okay, because "they are under attack anyway."

Is it really the danger to American lives, then, that the Bush administration fears will result from the disclosure of their secret financial records database? Or is it something else?

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Heroes and Villains in the Story of Democracy

Digby aptly calls him an American hero -- for being willing to do the right thing even when doing the right thing came at a heavy price:

Lt. Cmdr. Charles Swift -- the Navy lawyer who beat the president of the United States in a pivotal Supreme Court battle over trying alleged terrorists -- figures he'll probably have to find a new job.

Of course, it's always risky to compare your boss to King George III.

Swift made the analogy to the court, saying President Bush had overstepped his authority when he bypassed Congress and set up illegal military tribunals to try Guantanamo detainees such as Swift's alleged al-Qaida client, Salim Ahmed Hamdan.

The justices agreed, ruling 5-3 Thursday in favor of dismantling the current tribunal system.

Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.

"I may be one of the most influential lawyers in America," the Seattle University Law School graduate said, "but I won't be in the military much longer. That irony did strike me."

What a contrast to his professional counterpart on the other side of this case -- a man who would pervert and mangle any legal principle to keep his privileged position in the halls of power:

"What this decision has done is, it's hampered our ability to move forward with a tool which we had hoped would be available to the president of the United States in dealing with terrorists," Attorney General Alberto Gonzales told CNN.

The administration had planned to try suspects in military tribunals as "enemy combatants." They would not be eligible for the rights, as established by the Geneva Conventions, guaranteed to prisoners of war.

"We are currently evaluating the writings of the Supreme Court," Gonzales said, and "we are going to be working closely with Congress to look at legislation."

The administration is "hopeful that we will have the ability to try people through military commissions," he added.

Gonzales emphasized that the court ruling didn't say "that we could not continue to hold enemy combatants indefinitely for the duration of hostilities, which was something the Supreme Court said we could do..." The prison was established in early 2002.

"That path is still available to us. The president of the United States can continue to hold enemy combatants at Guantanamo. But we are looking at ways to provide as many tools as possible to the president of the United States in dealing with terrorists," he added.

Shorter A.G.: "We have no intention of abiding by the Supreme Court's decision; we will bully and threaten every last Democrat in Congress to pass a law that will allow us to defy the law."

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Death Is Not an Option

Adam Zagorin has a piece in Time magazine about the brutal methods used at Guantanamo to put down hunger strikes and prevent any additional suicides:

The prisoners at Guantanamo Bay, Cuba, won a major victory this week when the Supreme Court struck down the Bush administration's planned military tribunals. But for many prisoners at the detention facility, the protests haven't stopped. Hunger strikes persist, in what Guantanamo commander Rear Adm. Harry Harris, Jr. has called "asymmetric warfare" -- a means to attract attention to their increasingly controversial detention. As a result, the camp's administrators have sought to keep prisoners alive at all cost -- because a prisoner's death (as the U.S. found out three weeks ago, when three Gitmo inmates committed suicide) can be a major embarrassment for the U.S. and add fuel to widespread demands for the facility to be shut down.

Civil-liberties advocates point out that Guantanamo's 460 inmates have few other means to make their voices heard, given that most have been detained for more than four years without even being charged with a crime. Indeed, though the U.S. has condemned the hunger strikers at Gitmo, just last year the White House hailed a hunger-striking Iranian dissident for showing "that he is willing to die for his right to express his opinion."

At Gitmo, however, dead prisoners are something the U.S. military wishes devoutly to avoid. So force-feeding has been standard policy at the camp ever since hunger strikes began in early 2002. The facility's top physicians have also told TIME that prisoners who resist are subjected to especially harsh methods. In one case, according to medical records obtained by TIME, a 20-year old named Yusuf al-Shehri, jailed since he was 16, was regularly strapped into a specially designed feeding chair that immobilizes the body at the legs, arms, shoulders and head. Then a plastic tube that is 50% larger, and more painful to insert, than the commonly used variety was inserted up through his nose and down his throat, carrying a nutritional formula into his stomach.

Thousands of people, of course, endure some form of voluntary intra-nasal feeding every day in hospital settings. But when force-feeding is involuntary and the recipient is in a state of high anxiety, the muscles tense up and the procedure can trigger nausea, bleeding, diarrhea and vomiting. "We are humane and compassionate,"; Guantanamo commander Harris told TIME, "but if we tell a detainee to do something, we expect the detainee to do it." As a note scrawled in al-Shehri's medical records put it: "[The prisoner] was informed that dying is not permitted."

But before you get too upset at these horrors, remember that others have it even worse -- as we found out today from a bevy of right-wing bloggers who broke the horror story of the year: The New York Times published an article in yesterday's Travel section exposing Dick Cheney, Donald Rumsfeld, Tony Snow, and many other high-ranking Bush admin officials to attacks by demonic anti-war protesters and Al Qaeda terrorist assassins by revealing the fact that they have lavish second homes in the tony burg of St. Michael's, Maryland.

Glenn Greenwald has the whole sordid story:

I learned today from Michelle Malkin, Powerline's John Hinderaker, Red State, and David Horowitz, among others, that The New York Times not only wants to help Al Qaeda launch terrorist attacks on the United States, but that newspaper also want to do everything possible to enable The Terrorists to assassinate Dick Cheney and Don Rumsfeld. That is the conclusion which these sober leaders of "conservative" punditry drew after reading this article in the Times' Travel section, which features the tiny, charming village of St. Michaels on the Eastern Shore of Maryland, where both Cheney and Rumsfeld have vacation homes.

Darkly lurking beneath the rustic, playful tone of the NYT Travel article is a homicidal plot on the part of the reporters and editors of the Times to provide a roadmap to their Al Qaeda allies so that they find Cheney and Rumsfeld (and maybe even Mrs. Rumsfeld) and murder them.

Glenn is so impressed by the resourcefulness and journalistic skills the right-wing blogging crowd has demonstrated by ferreting out and exposing this shocking scandal that he wants to add one detail that Hinderaker, Malkin, Horowitz, et al. missed: Three years ago, the New York Times published exactly the same sort of article about former President Bill Clinton!

On June 8, 2003, the same New York Times published a lengthy article entitled "The Ex-President Next Store," which provided every possible detail one would ever want to know, and then many more beyond that, about Bill and Hillary Clinton's new home in Chappaqua, New York and the lives they lead there. The article contained numerous photographs of their home, and all sorts of information about where they eat, recreate and jog. The article is, I believe, behind Times Select, so here is the list of the photographs which accompanied the article:

Photos: Bill Clinton signs autographs for students after a speech at Horace Greeley High School. At Memorial Day ceremonies in Chappaqua, Hillary Rodham Clinton greeted Vietnam veterans. The Clintons' home on Old House Lane in Chappaqua. (Photographs by James Estrin/The New York Times); (Richard L. Harbus for the New York Times)(pg. 1); Bill Clinton is showing up all over Westchester, including at the Trump National Golf Club in Briarcliff Manor, left, where he is a member. Some of his favorite places to eat include Crabtree Kittle House, below left, and Lange's Deli, below right, both in Chappaqua. Mr. Clinton says he likes to run in Rockefeller State Park Preserve.

The article also reported:

When Bill Clinton and Hillary Rodham Clinton moved here in January 2000, news media coverage was so extensive that a national newspaper ran an article on how large a tip Mr. Clinton left at a local coffee shop (it was big: 32 percent) and photographers stood on chairs to capture the couple eating omelets.

The article essentially provided a daily roadmap of Bill Clinton's day. But that was completely different, because everyone knows that the Clintons are good friends of Al Qaeda's and have nothing to worry about. When The Times publishes extensive photographs of the Clintons' private home and reports on their daily activities, that's done with the purpose of glorifying them. But when The Times publishes an article on the town where Cheney and Rumsfeld have vacation homes, and includes a photograph of the mailbox of Rumsfeld's house, it's all part of a nefarious plot to tyrannize prominent conservatives and send Al Qaeda hit squads to get them.

This would be amusing in the most perverse way possible if it weren't for the fact that these are the people who are shaping our national political discourse. We have spent the last week hearing people on every major news station accuse The New York Times of treason, and some have called for the execution of Bill Keller and Jim Risen. More people read Malkin's blog than most newspapers in this country, and that does not count those who are exposed to her when she appears on Fox or from her new venture, Hot Air. Powerline, of course, was crowned Blog of the Year by Time Magazine and has a readership not much smaller than Malkin's. Top Bush officials such as John Bolton submit to interviews with them. These are among the leaders of conservative opinion-making in this country.

And they really believe -- or at least they are telling their readers -- that the article in the weekend NYT Travel Section is in retaliation for criticisms of the Times, is designed to tell Al Qaeda where they can find Cheney and Rumsfeld so that they can kill them, and is yet another plot in the war on America being waged by "liberals" and The New York Times. Shouldn't there be some level of irrationality which, once displayed, disqualifies someone from being taken seriously in our mainstream political dialogue? The most minimal standards in that regard would immediately rid the pro-Bush contingent of their best-selling author along with many, if not most, of their most widely-read bloggers and talk radio hosts.

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Unpacking Hamdan v. Rumsfeld

Long-time Liberty Street reader, Chief, pointed me to Aziz Hug's analysis of Hamdan v. Rumsfeld at ACSblog:

At its crux, Justice Stevens' majority opinion is an application of Justice Robert Jackson's famous tripartite approach to the Separation of Powers between the executive and legislative branches in Youngstown Sheet & Tube Co. v. Sawyer. Both the application of this framework and the manner of its application are of lasting significance here.

First, the Administration has repudiated the applicability of the Jackson Youngstown framework for questions arising around the treatment of non-citizens detained in overseas counter-terrorism operations. The now-infamous August 2002 Office of Legal Counsel memo on torture, for example, made no mention of that case, even to distinguish it on a line between domestic affairs (such as the seizure of property in the United States) and the conduct of foreign wars. Two years and one day ago, a plurality of the Court in Hamdi v. Rumsfeld (with Justice O'Connor writing) invoked Jackson's Youngstown opinion for the proposition that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." Until today, the Administration might have argued that this statement only applied to citizens (like Hamdi) who were detained in the United States (as Hamdi was at the time his habeas petition was filed). ...

But a narrow reading of Hamdi is no longer tenable. In Hamdan, both Justice Stevens (in footnote 23) and Justice Kennedy explicitly invoke Jackson in Youngstown once again as the framework governing the handling of non-citizen detainees held outside the United States. As Justice Breyer says (quoting Justice O'Connor's Hamdi opinion), the Hamdan Court keeps "faith in those democratic means" necessarily implicit in the tripartite structure of the Constitution. The vision of unchecked presidential power at the heart of many counter-terrorism policies today is thus decisively rejected across the board -- and not only for citizens.

Second, it is important to look closely at the precise cases cited (and not cited) for this Separation of Powers point. In Section IV of his opinion (a part joined by four other Justices and hence part of the Court's judgment), Justice Stevens rests the Separation of Powers point not on Youngstown but to the "seminal" case of Ex Parte Milligan. ... Although Justice Stevens does cite Youngstown, the case is cited in a footnote. Justice Stevens' meaning seems to be as follows: Although Justice Jackson's opinion may properly be seen as a landmark one, it was not pathmarking. Rather, Jackson confirmed and elaborated principles that had been in existence for decades.

More revealingly, neither Stevens nor Kennedy cite the slew of more recent cases interpreting the Jackson framework in Youngstown: These include Dames and Moore and Haig v. Agee. By contrast, these are the lead cases cited by Justice Thomas at the very opening of his opinion. Cases from Dames and Moore onward that interpret Youngstown have been persuasively criticized as unfaithful to Jackson's framework. Whereas Milligan and Youngstown seemed to call for careful scrutiny of the precise contours of the emergency powers delegated to the President, Dames and Moore and its progeny permitted a much more fast and loose review of statutory authorities, and judicial sign-off for executive initiatives untethered from Congress's directives. ...

The Hamdan decision rejects this fast-and-loose attitude to the Separation of Powers. It endorses careful scrutiny of the precise powers delegated by Congress to the executive branch. The Court thus properly rejected Justice Thomas's extraordinary idea that the "structural advantages attendant to the Executive Branch" in war-time -- aspects of executive power that make that branch the "most dangerous" to individual liberty today -- merit a hands-off approach by the courts. ...

The Court's decision to rest its holding on the Milligan/Youngstown vision of separate branches, sharing powers represents an important blow to the present Administration's campaign to accumulate the powers to make laws, enforce laws, and then punish those it deems in violation of those laws. ...

A comment on Aziz Hug's post brings up the other question that is always begged in any discussion of what wartime powers Pres. Bush has or should have:

Unless I am mistaken, Congress has not declared war since 1941. There can be no wartime powers without an official state of war. Unless the Bush administration finds a state to declare war upon, this contiues to be a struggle against a tactic and an ideology. Such a struggle is open-ended. It will probably never end. Therefore the notion that the administration should assert "wartime" powers is absurd. Clarence Thomas doesn't know the true meaning of war. Neither does the president.

Over at SCOTUSblog, Marty Lederman writes about Hamdan v. Rumsfeld's enormous implications for the Bush administration's treatment of detainees at Guantanamo and elsewhere:

... the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Could Bush, Cheney, Rumsfeld, et al. be tried for war crimes? It may not be probable, but it's certainly possible.

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