Secret Government?

At this link is brief of amicus curiae, the National Archive (of Washington, D.C.) and Electronic Frontier Foundation, in the case of Doe v. Mukasey, on appeal from the US District Court, Southern District of New York. Summary of the argument: judicial review of government's demands for secrecy is necessary to protect the security of the nation and quality of government decision making.

The case has an aspect of interest for habeas watchers: it challenges an attempt by Congress to usurp the traditional role of the courts. Part of the AEDPA, governing federal judicial review of habeas corpus, does this also, and may well fall under fire from recent constitutional challenges.

TGIF

TGIF Heading into another Weekend here is a newsy update. So we'll poison the well in order to save the water. That's right, send more troops says Sen. McCain. Of course the generals need a bigger standing army to do this. I respectfully disagree. Do not throw good money after bad.
Here's the plan: draw a perimeter, tell the Saudis to mind their own business and simmer down. We'll save money, lives (ours), and credibility. No matter who controls Iraq it will still be Muslim, anti-American and non-democratic. We need to go back to "self-determination". We lost before we even started. They can sort it out better than we can. Keep terrorism inside/contained AND away from our troops.

The sad story of the Botched execution(s) is here.

Baseball Fans: new import from Japan is the Type O Warrior (hat tip NYT)
In Japan, people with Type O are commonly referred to as warriors because they are said to be self-confident, outgoing, goal-oriented and passionate. According to Masahiko Nomi, a Japanese journalist who helped popularize blood typology with a best-selling book in 1971, people with Type O make the best bankers, politicians and — if you are not yet convinced — professional baseball players.

Poll Says the New Congress is Trusted: Americans trust Democratic lawmakers more than President Bush to handle the nation's toughest problems, including the Iraq war, and a quarter of Republicans are glad that Democrats have won control of Congress, a Washington Post-ABC News poll finds.


A good blurb on Terrorism and Security (by Tom Regan of Christian Science Monitor)

Here you will find a good roundup of the blog and media coverage of the Musladin Supreme Court decision. Hat tip Kent at Crime and Consequences.

Too Good to Pass: Mike at Crime and Federalism (link below at "Mike says")has this called "How Scalia Views the "Little People" -- juicy, for "populist conservatives" -- Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council.

Mike says: Ninety-nine percent of people make much less money than that. According to Justice Scalia, they must not be raising their families properly. Only the little people make less than 150K. I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Open Letter to Justice Scalia by Keith S. Hampton is here.

More on Hamdan (hat tip Kent at Crime and Consequences)
District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Hat tip also Crime and Consequences re the Duke rape case. David Scott of AP reports on a defense motion in the Duke Lacrosse team rape case alleging that a DNA test by the prosecution showed multiple males' DNA but none of the team members' and that the result was not disclosed to the defense. The story doesn't say what relief the motion is requesting. Given that they do have the information months before trial, there doesn't seem to be a Brady violation here.

RE Counsel, Medellin and Acker in CCA by Austin American Statesman, here (Nov. 20).

"This state's highest appeals court for criminal cases consistently ignores justice, even when the evidence of injustice is clear. True to its recent history, the court last week rejected two appeals from condemned inmates whose trials were travesties of justice."
"The most ardent death penalty advocate understands that a capital murder proceeding must guarantee a fair trial. One of the strongest arguments against capital punishment in Texas is that the judicial system is so broken that innocent defendants can be condemned and executed."

Cause and effect: The AP reported 12/12--that CCA set new rules to ensure better performance of lawyers for death row. Rules were adopted Monday, (12/11?).

Review: Fiasco by Thomas E.Ricks

Fiasco: The American Military Adventure in Iraq. (Thomas E. Ricks, Penguin Press, New York, 2006)

The curious thing about a book, any book, is that it tends to raise a fundamental question: What is there in this piece of printed pulp that was, at one time, a living tree do I not already know? Then you read it and find out.

Ricks knows what he's talking about as he is the Washington Post's senior Pentagon correspondent and got a lot of information contemporaneously, and from emails from personnel engaged in the operations. From this he has pieced together a “first draft” of history, and a good first draft it is. There are many, many anecdotes and real-life scenarios showing what life was like in the combat theater which I appreciated, being relegated to my soft chair: the stories I found particularly sorrowful were the ones describing fratricide, roadside bombs and deaths and mutilations of comrades. I don't know whether having lived through and observed (through the media) what was actually happening in and around Iraq contributed to my feeling of deja-vu as I read Fiasco.

The answer to the first question referenced in paragraph one above was, as it turned out, both a lot and not much. There is a lot I did not know about the how of what happened in Iraq, but I pretty much knew what happened as and when it happened. At least I thought I did, and after reading Fiasco I still think so. Maybe that has something to do with the fact that I happened to read much of the reporting as it became available in the media, although I don't remember having seen his bylines. Maybe it just means that this book describes events straight down the middle, even if there might be some spin in the title.

When Ricks uses the word “adventure” in the subtitle he's just being polite. But why be polite? He really uses the term in the critical sense of “adventurism” so the book actually should have been titled the “misadventure” in Iraq. Is that accurate? Well, that is the same as asking whether he is right. The elections are over, Ricks is a seasoned reporter and not a politician and so we don't expect a lot of spin or obfuscation, although the timing of publication as to the election seems a tad suspicious. So what? Is he being fair and honest, because fair and honest is what we should expect from a serious book that is, on its face, not satirical and not attempting to be conspicuous conspiratorial political ax-grinding, like Ann Coulter, Bill O'Reilly, and some other people I know, and this is to take nothing away from grinding or axes. I like to keep my edges sharp, too.

After taking in the first paragraph of Fiasco and again after finishing chapter ichiban I happened to agree with virtually everything. It's true, I confess, my first reaction was, “okay, I already know everything that could possibly be in here” and, “I could have written that.” That is what bias does. It jades your view. It starts with “A Bad Ending,” paragraph one, Chapter One:
President George W. Bush's decision to invade Iraq in 2003 ultimately may come to be seen as one of the most profligate actions in the history of American foreign policy. The consequences of his choice won't be clear for decades, but it already is abundantly apparent in mid-2006 that the U.S. Government went in Iraq with scant solid international support and on the basis of incorrect information—about weapons of mass destruction and a supposed nexus between Saddam Hussein and al Qaeda's terrorism—and then occupied the country negligently.

But what of the possibility that Ricks is wrong? Would that mean we were right to go into Iraq or that we are doing a good job there? That even if we straightened things up and rebuilt the place so Iraq came to resemble one of those NICs like South Korea, India or Japan, would that justify what we did and make it right? Could that atone for our immediate sins, our mistakes, our transgressions? These are speculative questions and not easily answered even with the benefit of hindsight. To some extent they carry normative implications, and where norms are involved relativity of the moral variety lurks dangerously around the next curve. Still, it is not too soon to begin thinking about them.

The ultimate question about which Fiasco sounds an SOS but which unfortunately can not yet be answered is, assuming that we made mistakes, and committed sins, errors and transgressions, can we still atone for them or is it too late? That remedial inquiry will require intense soul-searching and above all, honesty. It might require Congressional hearings into the how and why.

Ricks rightly perceives that the Iraq mis-adventure was the Bush administration's response to 9/11; the Patriot Act was Congress's. He also perceives that that was mistaken in drawing resources away from fighting terrorism, and here too Ricks is right on the ball. So does my thinking so mean I'm not a patriot? That I am a traitor? That I am unfaithful to the troops and don't support them? It makes me wonder. And my wondering leads me to ask, “who's fault is that?” The kind of uncritical thinking that the President seems to require of the People recently reminded me of this infamous quote:

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." --Theodore Roosevelt, 1918.

The internet has made it all but impossible to conceal what is really going on, even in the far reaches of the world. To the extent that's true, we really do live in a transparent world. What the internet has failed to bring about, however, is an end to the lies and the spin and the attempts to communicate what is happening in purely political terms, and by political I mean Orwellian. If anything the spin is worse because it is forced to try to overcome the truth. And sometimes it does. For example, the president, through his spokespersons and alter-egos, Vice President Richard Cheney, Secretery Rice, and there are others, have been saying for three years that we are “winning” in Iraq, that we have been doing the right thing, that we needed to be there and that we need to “stay the course.” And as Robert Gates has discovered in his Senate confirmation hearings in December, this has created a political minefield. I want to emphasize the three years because that is a fairly longish period of time for anybody to be continuously conned, deceived, and mislead.

The Bush line is clearly untenable today because Bush was wrong about Iraq in the beginning, and he is wrong about it now. The military did not learn from its own experiences and the policy-makers did not study their history and, consequently, we are where we are today, a sad lot much like where the British were 75 years ago, in danger of losing big chunks of prestige and colonial territory. Ricks aptly quotes from British Lt. Gen. Aylmer Haldane, The Insurrection in Mesopotamia, 1920: “From the beginning of July until well into October, ... we lived on the edge of a precipice where the least slip might have led to a catastrophe.” Only by “luck, pluck and courage” (typically British traits not only by coincidence) was “a long and agonizing guerrilla war” avoided.

General Myers in particular was saying things were going very well when they weren't, but he was not alone.

When Bremer flew home to Washington for quick consultations at the end of July 2003, his message was that the situation was far better than it appeared in the news coverage. *** In fact the U.S. Occupation was about to be confronted by a full-blown counterinsurgency. But as the United States entered its first sustained ground combat in three decades, this was his story, and he and the entire Bush administration stuck to it.

General Franks, too, could not be heard to say things went badly and continued to insist that “the plan” for Iraq was a good one, but in hindsight we know that this was wrong. It was wrong from the beginning. And, in the fact, Ricks notes that even the stated tactical objective for going in at the outset was wrong. Wrong tactically and wrong strategically. That was the mushroom cloud scenario, thanks to Secretary, and formerly National Security Adviser, Rice. Wrong. Wrong. Wrong? Only General Colin Powell has come to make this, which is also his current assessment, public. The folly is described in counterpoint by Ricks using this quote from Gen. Franks's memoir, American Soldier:

History will record that America's strategy for fighting terrorism was a good strategy, that the plan for Operation Iraqi Freedom was a good plan—and that the
execution of that plan by our young men and women in uniform was unequaled in
its excellence by anything in the annals of war.”

Ricks provides much evidence to the contrary throughout, but especially in “False Start” which opens the first chapter of Section II, in Chapter 7.

“Fittingly,” he writes, “a war justified by false premises began on false information.” My own theory on this just happens to be that most wars actually do start that way. If somebody wants to make war they are usually going to be telling lies in order to make it happen. Remember Vietnam and the alleged naval attacks at Haiphong Harbor? Then Ricks quotes Richard Perle, “This was, I believe, a successful intelligence operation by Saddam Hussein in which we were led to believe that he was in a certain location, and he wasn't there.”

So we were duped. So much for the decapitation strategy. Decapitation, followed by an inept occupation, demonstrably resulted in chaos. So much for the just war theory. So much for the theory of preventive war. So much for Bush's legacy. I'm truly sorry. I voted for him the first time. War is not glorious. War is never preventive, never just. War is always, sadly, with tears in your eyes, only necessary to preserve life and limb, no more and no less. That is what the Iraqi insurgency is now teaching. For posterity, that is being taught to us, by us. Will we learn?
We learn that as early as two months following the invasion of April, 2003, the occupation was “teetering.” In “Franks Flunks Strategy” we get this:

The American military believed it had taken Baghdad.
To understand that mistaken conclusion, it is necessary to step back and examine Gen. Tommy Franks, the senior U.S. commander in the war, and particularly his misunderstanding of strategy. That is a grand-sounding word, and it is frequently misused by laymen as a synonym for tactics. In fact, strategy has a very different and quite simple meaning that flows from just one short set of questions: Who are we, and what are we ultimately trying to do here? How will we do it, and what resources and means will we employ in doing it? The four answers give rise to one's
strategy. Ideally, one's tactics will then follow from them—that is, this is who we are, this is the outcome we wish to achieve, this is how we aim to do it, and this is what we will use to do it. But addressing the questions well can be surprisingly difficult, and if the answers are incorrect or incomplete, or the goals listed not reachable, then the consequences can be disastrous.

This, in a nutshell, states our current dilemma. Because we went in expecting one thing and found another. Expecting WMD we found none: expecting liberation we found rebellion and sectarian divides.

Ricks has amply demonstrated, as events on the ground have also demonstrated, that neither the President, Gen. Myers, nor Gen. Franks have been speaking the truth. Clearly, to the extent that they believed what they said was true they were clearly wrong. To the extent they were heeding the advice of the boots in the sand, they were wrong. But Ricks shows that not all the advice percolating up from ground (or intel) was in tune with Bush's Polly-Anna scenario. Well intentioned, no doubt, but still very wrong. What the guys at the top were saying wasn't true. For three years the Republic has wrongly been fed Mis-information and Untruth by our leaders. That is a sad commentary on us. Sad because we have been complicit. We have let them do it, and let it be said that they have done it with impunity.

In democracy, the People have a collective duty to take responsibility for what happens. That is how we earn the right to be free and democratic. Not imposing accountability for being told lies, and for making mistakes, and for clearly unproductive, unjust and stupid results is the first step toward tyranny. Going to Iraq was stupid. Democracy is not stupid. Iraq today is undemocratic, un-American, and definitely not un-Cola cool, baby.

And hear, hear, the public is finally fed up with “strong but wrong.” Come to think of it, that's a lot like “shoot first and ask questions later.” But gee, that's apparently exactly what we've been doing. We have taken the paradigm of our own eighteenth century Indian wars and taken it to Iraq and, surprise! It did not work. And it took a professional cadre of military men to let—no, let is too passive—they made this happen. And we, the People, have stood by and allowed it to happen. There will be consequences. It is ultimately unfair, however, to lay all blame on the military men, even those at the top, because our Constitution provides for political control of the military.

In sum, Fiasco provides a good preliminary account of some of the fateful decisions in terms of their effects, but it is not yet clear precisely what the really big and most critical decisions were, when they were made, or by whom, excepting the decision to go in itself. So we are still left wondering whether it was Rumsfeld, Bush, Bremer, or somebody else at the very top who is to blame for the full extent of the real fiasco. The book points out but does not develop many of the issues of fraud, waste and abuse associated with the employment of military contractors. We should be learning more about this in coming years.

Finally, one of the decisions that must be viewed with great skepticism was Maj. General Raymond Odierno's “get tough” policy. In broad-brush, thus began a formal disagreement between the approach (attitude) employed by the regular Army, armor and artillery, and the thinking of the Marines, and the counter-insurgency methods learned from past experience. To defeat an insurgency you must live among the people and win them over one by one. But in the early days nobody noticed the telltale signs that an insurgency was forming. That insurgency, in fact, might even have been planned at the outset given the paucity of the resistance of the regular Iraqi army in the opening days of the war.

I noticed too that Odierno's unit is stationed in Texas. Ricks notes that they sometimes felt like second stringers, and so it occurred that maybe they had a complex and took it out on the Iraqis. Mostly, however, I sensed that Lt. General Ricardo Sanchez, who was the senior military commander, must bear the brunt of the blame for what went wrong after the politicians took over. The sections about prisoner abuse and Abu Ghraib tell a very depressing story deserving of entirely separate treatment. It is truly worse than shameful that that has become part of the history of the U.S. military.

And just briefly comparing Fiasco to State of War: The Secret History of the CIA and the Bush Administration (Free Press, January 2006) by James Risen I found both books are similar in their criticism of Bush, but Risen has focused more on the secrecy and intel, as his title suggests, and relied more on anonymous sources, and that was frustrating to me. Knowing who said what gives a book a definite sense of credibility. Having said this, I think I'll need to take a second look at State of War. Maybe that will be next, after I review Soldier, by General Powell.

Trends

Terrorism, Secrecy, Security

If you were wondering what the government thinks it is doing at the airport security counters then read this. Tom Goldstein is counsel of record on this newly-filed Reply Brief in the case of Gilmore v. Gonzales (No. 06-211; petition here, brief in opposition here). On the brief with him are Thomas Burke and Rochelle Wilcox of Davis Wright Tremaine, and James P. Harrison, an attorney in Sacramento. The case will be considered at the Justices' January 5 Conference. Hat tip, SCOTUSblog.

Death Penalty for Sex Crimes An Incentive to Kill here.

So, how is Your Prison Sex? Learn how its done here.

Being horny and drunk hazardous to health. How hazardous, here.

lawsuits of Michigan inmates Lorenzo Jones, John Walton and Timothy Williams were dismissed on such technicalities, rather than merits. One of the suits claimed discrimination, and the other two involved prison medical care, which a Free Press investigation has found to lack the most minimal standards.

Seven Million and counting. Can immigration keep up? What this?

Death in Prison

Reason over Hysteria Every Time. Just an opinion.

Reviews

I picked up a couple of books recently, yes, in actual black and white print and on paper not a computer screen. The first one is Run, Run, Run a bio of Abbie Hoffman by Abbie's brother Jack written five years after his death. Actually, it's borrowed from Barry Kissin, who ran for the Maryland 6th Congressional District in the Democratic primaries. If you missed the 1980s and weren't paying attention to Nicaragua, PECO, Saving Our River, the latter-day SNCC and the civil disobedience movement and want a quick primer and thoughtful eulogy, get this book. I lean toward the Buddhist philosophy of laughter in achieving improved health and enlightenment (I Know I heard this on NPR this morning but can't seem to find it right now). Combine the two, laughter and mass protest, and change the world all for the better simultaneously with improving your health. Or just laugh a lot. You'll feel better, even if you force yourself to laugh. It's the only forced activity that's good for you, unless you consider being force fed "foodloaf" good for you. Don't know what food loaf is? Consider yourself lucky.

Making Globalization Work (Joseph E. Stiglitz) is the sequel to Globalization and Its Discontents by the same author. I found this passage interesting in relation to our national security policy (the principle applies with equal force to domestic economics, but I'll leave that to the experts--hint, for developing countries substitute "working poor"):

There are few success stories--our brief tour of the world has shown us a world replete with failures...we can at least create a more level playing field. It would be even better if we tilted it to favor the developing countries. There is a compelling moral case for doing this. I think there is also a compelling case that it is in our self-interest. Their growth will enhance our growth. Greater stability and security in the developing world will contribute to stability and security in the developed world.

The other passage I found interesting is this one about Microsoft and monopolies.

Equally worrying...is how new technologies (reinforced by new trade rules) are enhancing the market power of incumbent, dominant firms, such as Microsoft,
which are all from the developed world: for the first time, in a key global industry, there is a near-global monopolist, so powerful that even highly innovative firms in the United States like Netscape, the developer of the first major browser, get easily squashed.***So much power does Microsoft have that it brazenly threatened to wrthdraw from Korea if Korea pursued its anittrust action against the firm--in a sense, it confirmed the allegations of overweening market power,