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Saturday, October 15, 2005
Stevens' grave threat to McCain amendment's intent Writing at "Balkinization," human rights law expert Marty Lederman warns about Senator Ted Stevens' threat to agree to 'guidance' of the McCain amendment allowing cruel, inhuman or degrading treatment under certain conditions. Lederman points out that if this, if carried out, would not just gut the McCain amendment, but practically reverse its intended effect: But if Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment's otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration's view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces.Emphasis in original. Read Lederman's whole post, which also recaps the shameful legal patchwork that John Yoo and his ilk have assembled in support of the indefensible. UPDATE, 10/15: my e-mail to Senator Stevens, spell-checked and slightly elaborated. Dear Senator Stevens,You can improve on this. Please do. Thursday, October 13, 2005
House and Senate Defense Appropriations Conferees Here is a list of people to contact regarding the House/Senate Defense Appropriations conference next week. On the Senate side, these are in fact the actual conferees; I'm not sure about the House side yet. If you're from one of these states or congressional districts, call them up. If not, call them up anyway. If there's no e-mail address, click on "Senate" or "House" to begin finding out how to contact them. SENATELet's get on it, folks! We expect anyone from the "90" to pound the table for this, we expect the "9" to cooperate, we expect the House members to see the light. Nothing should come out of that conference unless the unaltered McCain amendment comes along for the ride. What else can we say? ===== UPDATE, 10/14: these are the Senate and House members of the Defense subcommittees of the respective Appropriations committees. Click on the links for shortcuts to the member or Senator you want to contact. Nell has a good suggestion for what to do first in her comment -- push Stevens to represent the "90" when the amendment comes up, and not stack the deck against them with Senate conferees who voted against that amendment. UPDATE, EDIT, 10/19: Nell Lancaster reports that all 19 Senators from the subcommittee will be conferees as well; the House conferee list wasn't known to the Senate staffer she spoke with. Congressional Quarterly: McCain amendment will be unloved in conference I got this via the well-informed "Thornwood," who set me straight earlier today about the likely Senate conferees (see the updates to my Sunday "Celebration over..." post) involved in reconciling the House and Senate defense bills. The conference will determine the fate of the McCain amendment prohibiting "cruel, inhuman or degrading" treatment of prisoners by American personnel anywhere in the world. Unfortunately, despite the 90-9 win in the Senate, the amendment looks like it will have few friends on either side of House-Senate conference table. As the article below confirms, Ted Stevens -- one of the nine "Nazgul" -- will be in charge of the Senate side, and it looks like there won't be any pleasant surprises on the House side, either. "CQ" articles aren't available to mere mortals, so a big thank you to "Thornwood." I don't usually like to just copy a whole article, but getting the word out is the important thing right now. Without further ado: Some in House GOP Likely to Oppose McCain Provision on Humane Treatment"That way we can wind up beating them anyway," the senior defense official did not need to add. Oversight? We don't need no stinkin' oversight. So yes I do want to pass a law, and that's precisely the kind of attitude that makes me think we need to. Laws give some people the spine not to do what they shouldn't have done anyway. I'm trying to get a full, accurate list of the House and Senate conferees. For now, I say let the people above know you think they're wrong. "Pass the McCain amendment without any 'guidance,' just the way the Senate did." But I'm also trying to get some advice about what would be the most useful thing for us mere citizens to do between now and next week's conference. So although I'll be on a long weekend trip starting this evening: stay tuned. Tuesday, October 11, 2005
Kitty Kelley v. George W. Bush SECRECY has been perhaps the most consistent trait of the George W. Bush presidency. Whether it involves refusing to provide the names of oil executives who advised Vice President Dick Cheney on energy policy, prohibiting photographs of flag-draped coffins returning from Iraq, or forbidding the release of files pertaining to Chief Justice John Roberts's tenure in the Justice Department, President Bush seems determined to control what the public is permitted to know. And he has been spectacularly effective, making Richard Nixon look almost transparent.-- Kitty Kelley, Bush's Veil Over History, New York Times, October 10, 2005. I've started a amateur sideline in Bush administration hypersecrecy in this blog, after being startled into wakefulness by a particularly absurd example -- the successful effort to keep Johnson-era Presidential Daily Briefs secret. The excuse given -- and swallowed whole by a pliant judge -- was that even such ancient PDBs might reveal national security secrets by virtue of the "mosaic" of information they might help complete. More recently, the Defense Intelligence Agency has resumed its efforts to have "the conduct of foreign intelligence or counterintelligence operations" by its Directorate of Human Intelligence be exempt from the Freedom of Information Act (FOIA) requirements -- which if successful would prevent much of the facts of future Abu Ghraibs from coming to light.. Ms. Kelley (author of "The Family: The Real Story of the Bush Dynasty") focuses on Executive Order 13233, issued on November 1, 2001 of the post 9/11 era, "under which a former president's private papers can be released only with the approval of both that former president (or his heirs) and the current one." The executive order advances the catchall "deliberative privileges" as one of the several privileges supposedly providing constitutional justification for the continued secrecy of presidential papers (despite longstanding law to the contrary): In Nixon v. Administrator of General Services, the Supreme Court set forth the constitutional basis for the President's privileges for confidential communications: "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends."Kelley notes that Henry Waxman is waging a quixotic fight in the House to reverse the order, and that the American Historical Association is leading a lawsuit seeking release of presidential papers. But a March 2004 ruling by DC District Court Judge Colleen Kollar-Kotelly found the complaint "nonjusticiable" "until Plaintiffs have some actual or imminent redressable injury" -- which seems to me a bit of a Catch-22, if you don't know what's in the documents and thus can't demonstrate their value to your inquiry. However obscure this issue may seem, and however distant the prospects for success, Ms. Kelley is right to warn: Unless one of these efforts succeeds, George W. Bush and his father can see to it that their administrations pass into history without examination. Their rationales for waging wars in the Middle East will go unchallenged. There will be no chance to weigh the arguments that led the administration to condone torture by our armed forces. The problems of federal agencies entrusted with public welfare during times of national disaster - 9/11 and Hurricane Katrina - will be unaddressed. Details on no-bid contracts awarded to politically connected corporations like Halliburton will escape scrutiny, as will the president's role in Environmental Protection Agency's policies on water and air polluters.Ms. Kelley is an often scorned writer -- writing in Slate, Michael Crowley describes her as "colonoscopist to the stars," and that's just for starters. For all I know, that scorn is partly deserved; she does appear to have got some salacious facts wrong about her subjects -- even while usually getting "the core" of the story right, as Crowley admits between hatchet blows.. That's too bad, because the rap on Kelley may make it too easy to ignore her very valid concerns about Executive Order 13223 -- used most recently to limit access to records sought during Chief Justice Roberts' nomination hearings. It's a shame more journalists like Michael Crowley couldn't be bothered to care more about that abuse of power than about, say, Kitty Kelley's mistakes. Maybe she's not so wrong about the other stuff, either, and maybe they're not so right. ===== NOTE: Robert's hearing link via Karen of Dark Bilious Vapors. Monday, October 10, 2005
Germany: It's Merkel -- and the Social Democrats The German elections appear to have resolved into a "great coalition" -- with a new chancellor at the helm. The New York Times' Judy Dempsey and Katrin Bennhold report: Conservative leader Angela Merkel announced today that she will become Germany's first female chancellor, three weeks after a near-dead heat election that forced the two biggest parties to negotiate a power-sharing agreement.So much for my prediction that neither Merkel nor Schroeder would win the chancellorship -- although the Times reports that it appears to have cost Merkel a cabinet post or two to cement her claim on the top position: Details of which cabinet posts would go to which party were still pending confirmation, but officials, speaking on conditions of anonymity because of the sensitivity of the negotiations, said the Social Democrats were likely to obtain 8 of 14 ministries, including the foreign ministry, the finance ministry, the labor ministry and the development brief.Paul Katzenberger of Munich's Sueddeutsche Zeitung (a newspaper with a generally left-wing outlook on the news) comments -- under the title "Etikettenschwindel" ("Brand fraud"): The now agreed on great coalition has hardly anything to do with the will of the voter expressed on September 18th.One view of German politics of the last several years is that the far left giveth and the far left (or, if you prefer, the progressive left) taketh away. In 2002, PDS party leader Gregor Gysi may have helped Schroeder win a very close election when he weakened his own party by not standing for election himself. Even this time, the new Linksbuendnis ("Left Alliance") led by Gysi and former Social Democrat Oskar Lafontaine could have formed a mathematical majority with the SPD and the Green Party following the mid-September election. But the Linksbuendnis apparently ruled out entering into a governing coalition with any party -- which was apparently just as well as far as Schroeder and his moderate wing of the SPD were concerned. The result, however, was arguably that a majority of German voters whose views could be expressed as "go very slow with your so-called economic reforms" has lost to a minority more committed to shaking up the German economy. Accordingly, German newsweekly Die Zeit reports that CSU coalition partner chief Edmund Stoiber (who lost to Schroeder in 2003) will head the key Commerce [Wirtschaft] and Technology department in Merkel's "coalition of new possibilities." Die Zeit also reports that "the partners announced Germany must invest at least 3 percent of gross national product annually in research and development. [...] CDU/CSU and SPD agree that income taxes will be simplified to achieve more transparency, efficiency and fairness. We will reduce [tax loopholes]..." However, many SPD rank and file are not yet resigned to the division of labor. The German newsweekly SPIEGEL reports that party moderate [Parteirechte] Johannes Kahr, reacting to the CDU/CSU getting the Commerce cabinet post while SPD settled for Labor, spoke of "'plain horror', called the results 'suboptimal, and announced 'the thing isn't over yet'..." Otto Schily, the former Interior Minister, is thought to be Joschka Fischer's likely successor as Foreign Minister. A February 2005 interview with him discussed in this blog displays a man deeply but thoughtfully concerned with Islamic immigration and assimilation and Islamist radicalism in Germany and Europe. He has reportedly got on quite well with Ashcroft and other US officials, but has also ably represented German demands for US evidence in German trials of Islamic radicals. Merkel's instincts are to reforge closer ties between Germany and the United States. In 2003, as the Iraq war loomed, she even wrote a (widely criticized) op-ed for the Washington Post stating that "Schroeder doesn't speak for all Germans," and also asserted that she supported Bush's Iraq policies "in all their consequences." Her conservative allies are often a little more circumspect, but seem less inclined than the SPD/Green coalition to push the European Union as an alternative to the old transatlantic relationship. Back in 2003, Wolfgang Schaeuble -- another likely CDU/CSU cabinet minister -- said: I hope that we in German politics can maintain or rebuild the basic consensus between the great political groupings, that Atlantic partnership and European unity aren't alternatives, but different sides of the same coin, that are inseparably connected. European unity doesn't succeed as an alternative to the Atlantic partnership.So there may be a little less overt strain on the relationship between Germany and the Bush administration. On the other hand, Iraq in particular has proven to more of an adventure than an accomplishment since 2003, so that it's probably (even) less attractive to Germans now than it was then. As pointed out on this site, Merkel is no Bush -- she helped negotiate the Kyoto Treaty, and seems too cool and calculating to jump headfirst into a quagmire. I wonder if Merkel will choose to accomplish a less fraught relationship with the current administration by simply keeping that relationship out of the headlines altogether. Sunday, October 09, 2005
How it's done Well, with simple masking tape or duct tape, you dilate the eyes, and they you use halogen lamps, and a person is placed in a rigid position where they cannot move. Their eyes are opened and the halogen lamps, you know, they're producing 40,000 watts. It's intense. And that breaks them down. High-pressure water -- I mean, you've heard the term 'drinking from a fire hose.' I wouldn't do that. That generally wouldn't extract what you want, and usually would drown somebody quickly. But you can use high-water pressure into one ear, and when that first ear drum is broken with, you know, 14 or 15 hundred pounds of water pressure going in, the don't -- they will talk before that second ear drum is broken....Caller "Mitch", speaking to Glenn Beck, a nationally syndicated radio show host -- and psychopath: Mitch, I've got to tell you I appreciate your service. [...](Transcript via Media Matters, audio clip here) Whether "Mitch" is telling the truth or not, we've got the goods on Mr. Beck. Count it as another cost of the past four years that he's got an audience that keeps tuning in. Celebration over, rulebooks consulted UPDATE, 10/13: Commenter "Thornwood" suggests Senate conferees determining the fate of the McCain amendment may come from the Senate Appropriations Defense subcommittee. If so, this could be bad news. See update below.Jim Henley has got back to work by providing a useful summary of the political and procedural issues ahead for the McCain amendment prohibiting cruel, inhuman, or degrading treatment by any US personnel anywhere in the world. He plausibly dismisses the House conferees as "in the tank" for torture and concludes it's up to Senate conferees to hang tough -- something he doesn't have full confidence they will do: There may be Republican Senators who voted for the McCain Amendment for public-relations reasons but who will readily disavow it when the lights dim. More likely there may be some whose vote reflected their sincere, pious wishes, but whose spines won’t bear the load soon to be heaped on them by the President’s men and the House leadership.Obviously, much depends on which Senators are among the conferees (the nine Christian Coalition Nazgul are disproportionately powerful) and how determined a defense those from among the ninety mount. Like Henley, I thought I'd try to figure out how conferees are selected. While Senate Rule XXVIII is not very specific on that score, it may be that other rules and historical precedents shed some light. One document that gets pretty specific, albeit for the 101st Congress, not the 109th, is "Riddick's Senate Procedure." Here are some of the relevant passages from the "Conferences and Conference Reports" chapter.* Bear in mind several caveats: (1) rules may have changed since the 101st Congress, (2) I may have misunderstood the applicability of a given rule to the current situation, and (3) all too often of late, the attitude on Capitol Hill has been "rules? we don't need no stinkin' rules." With that, selected items from the Riddick rules: Three or more Senate conferees are likely: The number of conferees from each House may vary usually from three to any larger number, and need not be the same number from each House since they do not vote as a body; to the contrary, the conferees from each House vote as a unit as to what should be done about each amendment or each difference in the bill as passed by the two Houses. (p.449)Their powers are relatively limited, but they could try to get the House conferees to agree to a watered down measure that they would bring back to the Senate as well: The conferees usually make one of three types of recommendations concerning an an amendment sent to conference. They may recommend that the amending House (usually the Senate in the case of appropriations bills) recede from its amendment, which restores the position of the House on that amendment (or removes that issue from the bill if the House had no language on the issue). They may recommend that the House recede from its disagreement to the amendment of the Senate, in which case the language contained in the Senate amendment is included in the conference report. Or the conferees may recommend that the House recede from its disagreement and concur in the amendment of the Senate with an amendment (a compromise amendment agreed upon by the conferees). (p.450)A conference agreement gets an "up or down vote": A conference report, after it has been signed by the conferees and submitted to the Senate, is not susceptible of amendment; the question then put is on agreeing to the report, with the vote being taken on adoption of the report in its entirety. (p.452)By convention, John Warner is likely to control who the Senate defense conferees are: It is the universal practice in the appointment of conferees for the Presiding Officer to name the Senators suggested to him by the Member in charge of the particular bill... (p.455)Remaining conferees are likely to be from the Senate Armed Services Committee -- but there's a loophole allowing more of the "90" to be represented: It is also almost the invariable practice to select managers from the members of the committee which considered the bill. But sometimes in order to give representation to a strong or prevailing sentiment in the House the Speaker goes outside the ranks of the committee. (p.456)An unsatisfactory conference result can lead to appointment of new Senate conferees: If and when a motion that the Senate further insist on its amendments in disagreement and ask for another conference is agreed to, the Senate has a right to appoint new conferees if it desires to do so. (p.458-9)Overall, this would seem to mean that Bill Frist (who I assume is or would be the "Presiding Officer") risks snubbing Senator John Warner if he doesn't appoint him to the conference committee, but that in principle he could choose to "stack the deck" with one or the other of the "Nazgul" on the Armed Services Committee (Inhofe, Roberts, Cornyn) in the interests of "representing the minority position." Needless to say, this is worth warning him about, but Frist may be such damaged goods right now that he may not have the gumption to try anything tricky. In 2004, at any rate, the defense conferees appear to have been John Warner (R-VA), Carl Levin (D-MI) ... and John McCain (R-AZ) -- judging by an open letter to two of them from other Senators concerned about base closures, and a news item listing all three regarding a compromise on Boeing air tanker procurement. This would seem to be a pretty excellent group to go into conference on this issue. The question would be whether Frist allows it this time around, too. While it's possible there could be a "train wreck" blocking defense money because of this, that doesn't have to happen. The anti-torture position is ascendant, the Bush/Cheney/Rove/DeLay opposition is as weak as it's been in years -- and supporting torture doesn't seem like great "comeback trail" material to me. What to do? I'd say three things:
===== * See also the "Amendments between Houses" chapter, which gets into the handoff procedures as differences in House and Senate bills are worked out. UPDATE, 10/13: I’ve just got a comment saying that since McCain’s amendment was passed on the Senate Appropriations Bill, "the conferees for the McCain amendment will come from the Appropriations Committees Defense Subcommittee), of each house of Congress, and not the Armed Services Committees (of which Warner is the Chairman)." So my Warner/Levin/McCain theory may well be wrong. Worse, the Senate Appropriations Defense Subcommittee contains 3 "Nazgul." Worse, it is led by 1 of them — Ted Stevens, and the full roster includes Thad Cochran (next most senior Republican on the committee) and Kit Bond as well. Thus, if "Thornwood" is correct, and if the Appropriations Defense subcommittee sends three conferees, they could well be Stevens, Cochran, and Inouye (the ranking Democrat on the subcommittee) — and this particular amendment would have been opposed by 2 of the 3 conferees. I think they’re still somewhat honor- and convention-bound to honor a 90-9 vote, but I don’t think they’ll struggle too hard for it as base closures and whatnot are fed into the negotiation mix, especially if they know/suspect that many of the ”90” may have realized this — support a mile wide and an inch deep. I’m sorry for probably misleading folks with the original post. (Update first crossposted as a comment at "Unqualified Offerings"; minor edits and links added here.) 
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