Worth reading
Paperwight ("Paperwight's Fair Shot"), Who Will Rid Me of This Meddlesome Priest? --

The Bush Administration handpicked know-nothing Party apparatchiks to fill every possible political appointment they could find, and turned them loose on the executive branch with 'guidance' from Karl Rove. I expect that guidance generally took the form of "expressions of concern" regarding certain "districts" or "issues". Policy and personnel decisions were made in the fuzzy apparatchik cloud and then the shaft bolt lashed out of the cloud and struck someone in the civil service. No chain of command, no accountability, no procedure. Everyone just sort of knew what had to be done -- they were all picked because they knew in advance what "had to be done" to serve the Party.

Marc Lynch, interviewed by Ken Silverstein of Harper's Magazine --

At the same time, neither Al Qaeda as an organization nor bin Laden as an individual is commanding a great deal of respect or support. When you get these attacks in Algeria and Morocco, it repels people rather than attracting them. But the paradox is that even as Al Qaeda repels people with its actions, its core ideas are becoming more widely accepted, and that’s really troubling, and a real indictment of American public diplomacy. That’s also why the situation in Iraq is so devastating at the wider regional and global level. Killing people in Morocco and Algeria triggers a negative reaction, but fighting Americans in Iraq resonates with a much wider part of the Arab population.

Jonathan Schwarz ("Tiny Revolution") in Mother Jones: "No Congress, No Peace" --

What, then, would a serious congressional strategy to block a war with Iran look like? Constitutional scholars and congressional staff agree there's no one magic answer. The alarming truth is that 220 years after the adoption of the Constitution, there are few settled answers about what legal powers the executive branch possesses to start a war. But there are several steps Congress could take to make a war with Iran politically very difficult for the White House.

Andrew Sullivan, The Atlantic Monthly, Torture, Moral Vanity, and Freedom --

Even a prisoner in a small cell can stand and walk a little, can breathe on his own, has the capacity to tend to his own bodily functions, and to think or pray. Torture is designed to rob him of all these last shreds of liberty. It takes control of his body and soul and by the use of physical or psychological coercion, rids him of any real freedom at all. It puts him into the abyss of tyranny on a personal scale. And any man or woman who is given the license to torture and any man or woman who grants the right to torture is definitionally a tyrant over another person. There is no state more abject than the man broken on the waterboarding rack, or frozen to near death, or forced to stand for days on end, or hooded and strapped to shackles in a ceiling, or having his legs pulpified by repeated beating, or forced to eat pork and drink alcohol against religious strictures. Everything I have just described has been done by US forces under the command and direction of George W. Bush. They are all acts of absolute tyanny, conducted by people who at that moment are absolute tyrants.

posted by Thomas Nephew at 8:35:00 PM -- |  

 
TPC
In an aside to his dismemberment of Douglas Kmiec's bizarre op-ed in the Washington Post,* Georgetown's Marty Lederman ("Balkinization") has probably solved why the President sent his thugs over to Ashcroft's hospital bed that night to collect his signature instead of acting Attorney General Comey's. (Recall that Comey said it was a "complicated question" why his signature was needed.) The first reason Lederman advances is

"...to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington's, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?"

Plausible, but I think Bush would have been just as willing to push around the NSA general counsel as he was willing to try to put a pen in a drugged-up Ashcroft's hands. But Lederman's second reason pits Bush against someone he couldn't bully quite as easily:

Second, the AG signature might have been necessary to induce the requisite private actors -- telcom companies in particular -- to continue to go along with the program.

18 U.S.C. 2511(2)(a)(ii) provides that "providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with -- (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title [not relevant here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." That statute further provides, importantly, that "[n]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter."**

In other words, TPC -- The Phone Company -- forced Bush's hand.


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* I wondered what Kmiec was smoking when I read his final paragraph. Lederman was similarly puzzled.
** Emphases in original; links to Cornell Law LII entries added.

UPDATE, 5/18: Writing for the excellent WIRED Magazine blog "Threat Level," Ryan Singel thinks Lederman may be wrong with his telcom theory:

"Two reasons why: Qwest asked for such a paper and never got it. Why would the others get it? And more to the point, the Administration is pushing language that would immunize telcos from lawsuits accusing the companies of illegally helping the government. Why push that provision if the telcos already are holding get out [of] federal court free cards?"

As I respond there, I don't think those are strong objections. Qwest's experience doesn't show what happened to other telcoms -- and at least for a couple of weeks, there weren't any "get out of court free cards." The retroactive nature of the immunization legislation Singer mentions may actually be motivated, in part, by the two week gap that Lederman (and Senator Feinstein, in the hearing) pointed out. (See "For Impeachment," below, for links and text). posted by Thomas Nephew at 12:30:00 PM -- |  

 
"We just want it to be over"
At the end of his column today about Republicans in disarray, on the run from Rep. Waxman, and turning on eachother, columnist Robert Novak reports this plaintive bleat:

"We're not hostile to the administration," one prominent conservative House member who did not want his name used told me. "We just want it to be over."

I see some common ground here. posted by Thomas Nephew at 1:40:00 AM -- |  

 
For impeachment
As is well known, James Comey gave explosive testimony (transcript) before the Senate Judiciary Committee yesterday concerning his standoff with Alberto Gonzales and Andrew Card over the approval of a secret program. Here's a video of some of that testimony.

The encounter had been reported by James Risen and Eric Lichtblau in January 2006, but Comey's testimony provides more detail about now-Attorney General Gonzales and President Bush's roles. Glenn Greenwald makes a number of good observations, as usual, including this one, about Comey and Mueller preparing for Gonzales/Card arrival at Ashcroft's bedside by ordering FBI agents not to allow Comey to be removed from the room*:

Comey and Mueller were clearly both operating on the premise that Card and Gonzales were basically thugs. Indeed, Comey said that when Card ordred him to the White House, Comey refused to meet with Card without a witness being present, and that Card refused to allow Comey's summoned witness (Solicitor General Ted Olson) even to enter Card's office. These are the most trusted intimates of the White House -- the ones who are politically sympathetic to them and know them best -- and they prepared for, defended themselves against, the most extreme acts of corruption and thuggery from the President's Chief of Staff and his then-legal counsel (and current Attorney General of the United States).

Marty Lederman ("Balkinization") goes further -- "Comey Testifies that the President Broke the Law." Lederman summarizes:

Comey testified as follows:

(i) that he, OLC and the AG concluded that the NSA program was not legally defensible, i.e., that it violated FISA and that the Article II argument OLC had previously approved was not an adequate justification (a conclusion prompted by the New AAG, Jack Goldsmith, having undertaken a systematic review of OLC's previous legal opinions regarding the Commander in Chief's powers);

(ii) that the White House nevertheless continued with the program anyway, despite DOJ's judgment that it was unlawful;

(iii) that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several other DOJ officials therefore threatened to resign;

(iv) that the White House accordingly -- one day later -- asked DOJ to figure out a way the program could be changed to bring it into compliance with the law (presumably on the AUMF authorizaton theory); and

(v) that OLC thereafter did develop proposed amendments to the program over the subsequent two or three weeks, which were eventually implemented.

The program continued in the interim, even after DOJ concluded that it was unlawful.

Lederman repeats the point today:

The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute.

(All emphases in original.) At minimum, Gonzales has deserved impeachment for his untruthful testimony about the US Attorney scandal and his role in that abuse of power to thwart criminal investigations and intimidate voter registration campaigns. Comey's testimony is icing on the cake in that respect; though I don't know whether Gonzales' different office at that time (counsel to the President) would have some bearing legally, it ought not to as a matter of his fitness for the office of Attorney General.

But it seems to me Comey's testimony is a "smoking gun" for impeaching the President and convicting him of a "high crime and misdemeanor" as well. Now I'm not the legal expert Lederman is, so when he fails to draw a conclusion I should be careful to supply one. But as I understand Comey's testimony, the President allowed an illegal program to proceed while adjustments were made to make it legal again. For instance:

SPECTER: You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?
COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for. [...]
But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.
COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...
SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?
COMEY: Yes.
SPECTER: So it went forward illegally.
COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.
SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?
COMEY: I believed so.

Later:

FEINSTEIN: And what was the elapsed period of time from that meeting, the denial of DOJ to certify the program and the time when it was essentially certified?
COMEY: It was reauthorized on Thursday, March the 11th, without the department's -- without my signature, without the department's approval. And it was the next day -- so less than 24 hours later -- that we received the direction from the president to make it right. And then we set about -- I don't remember exactly how long it was -- over the next few weeks making changes so that it accorded with our judgment about what could be certified as to legality. And so it was really only that period from Thursday, when it was reauthorized, until I got the direction from the president the next day that it operated outside the Department of Justice's approval.
FEINSTEIN: For approximately two weeks?
COMEY: I don't remember exactly. It was two or three weeks I think that it took us to get the analysis done and make the changes that needed to be made.

Comey's a careful guy, as is Lederman, and so there may be some loophole here that I don't yet understand. But it's difficult for me to put any other face on this than that -- given what Comey was telling him -- the President was at best criminally negligent in allowing a program to continue for weeks after learning his acting Attorney General found it had no legal basis.

And at not-too-unlikely worst, of course, Bush was just the top thug ordering his consigliere thug Gonzales to go to the hospital and squeeze a go-ahead fig leaf out of an ailing Ashcroft for a program that he already knew was legally out of bounds. (All the talk of there not being a statutory requirement for an Attorney General's signature can't get around the great and unseemly lengths Gonzales and Card -- and through them, George W. Bush -- went to to get one.)

There have been ample grounds to consider impeachment before -- from approving torture in contradiction to treaty obligations, U.S. law, and common decency, to approving warrantless surveillance in contradiction to U.S. law, to presiding over a blatantly fraudulent campaign to convince Congress and the public of the need to go to war with Iraq, costing tens of thousands of lives.

Yesterday's Senate Judiciary Committee hearing adds sworn, smoking gun testimony about serious, unlawful presidential conduct to that bill of particulars.

Impeach President George W. Bush.


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* This testimony is on the video at around the 6:30 mark.

UPDATE, 5/16: A Talking Points Memo reader hits another nail on the head (emphasis added):

It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.

EDIT, 5/17: video aligned to right side of page. posted by Thomas Nephew at 10:50:00 PM -- |  

 
Department of followups: terraforming, Wal-Mart, Bosnia, coffee, Gilliard
An occasional review of further developments in stuff I've written about before.

Terraforming Today, October 19, 2002 --- As I wrote in 2002, it's been established for some time that phytoplankton "blooms" -- surges of growth of marine single celled plants-- can be caused simply by adding relatively small amounts of iron to areas of open ocean. (Iron is a trace element the organisms need to grow and multiply.) Much of the biomass that isn't converted into plankton-eaters eventually settles to the bottom of the ocean. The questions have been whether this could result in significant net removal of carbon from the atmosphere -- and even if it did, would it be a good idea? Now we can add another one: is it commercially viable as a "carbon credit" scheme? In early May, the New York Times' Matt Richtel reported in "Recruiting Plankton to Fight Global Warming":

In an effort to ameliorate the effects of global warming, several groups are working on ventures to grow vast floating fields of plankton intended to absorb carbon dioxide from the atmosphere and carry it to the depths of the ocean. It is an idea, debated by experts for years, that still sounds like science fiction — and some scholars think that is where it belongs. [...]

In Europe, where there is a market for carbon credits, it is now worth only $2 to offset a ton of carbon emissions. But not long ago, that figure was $35, and it is expected to rise again as the limits imposed under the Kyoto Protocol on global warming start to bite. Planktos believes that it can make a healthy profit if it receives $5 a ton for capturing carbon dioxide. [...]

....[but] one unresolved question is whether regulatory bodies will even endorse iron fertilization as a valid means of carbon sequestration that would be allowed under any so-called cap-and-trade system to limit global warming gases.

One objection to the "Geritol tablet" global cooling theory are that at least some of the biomass settling to the bottom of the ocean may wind returning to the atmosphere later on as methane or nitrous oxide, both of which are worse greenhouse gases than carbon dioxide. Another problem is that large scale carbon and biomass dumps to the deep sea might well change the chemistry of the deep sea environment, disrupting ecosystems there.

Meanwhile, though, at least two companies -- Planktos and Climos -- are looking at the idea. Planktos is sending a ship, Weatherbird II, to the Pacific Ocean area near the Galapagos Islands to measure carbon uptake after iron releases.

Wal-Mart wins another one, February 25, 2005; WalMartWorkersRights.org, July 17, 2005; Employee Free Choice Act, June 13, 2005 --- Human Rights Watch (HRW) has published a study of Wal-Mart labor practices this month -- Discounting Rights: Wal-Mart's Violation of US Workers’ Right to Freedom of Association. From the introduction:

Wal-Mart is a case study in what is wrong with US labor laws. It is not alone among US companies in its efforts to combat union formation, following the incentives set out in unbalanced US labor laws that tilt the playing field decidedly in favor of anti-union agitation. It is also not alone in violating weak US labor laws and taking advantage of ineffective labor law enforcement. But Wal-Mart stands out for the sheer magnitude and aggressiveness of its anti-union apparatus and actions.

Between January 2000 and July 2005, even the NLRB (National Labor Relations Board) found 15 labor law violations by Wal-Mart. The next closest "competitor" was Kroger -- with 2. The HRW report describes a variety of illegal Wal-Mart anti-labor tactics in detail, including Discriminatory Hiring, Firing, Disciplining, and Policy Application; Union Activity Surveillance; “Unit Packing” and Worker Transfers to Dilute Union Support; Addressing Worker Concerns to Undermine Union Activity; Threatening Benefit Loss if Workers Organize; Interrogating Workers about Union Activity; Illegal No-Talking Rules; Discriminatory Application of Solicitation Rules; Illegal No-Solicitation Rules; and Confiscating Union Literature. There's also a chapter on the Loveland, Colorado case I wrote about a couple of times back in early 2005 (see "Wal-Mart wins another one".)

ICJ: Srebrenica was genocide. Serbian police were involved... (yet Serbia cleared of genocide), February 26, 2007 --- In early April, the New York Times' Marlise Simons reported "Genocide Court Ruled for Serbia Without Seeing Full War Archive":

Lawyers interviewed in The Hague and Belgrade said that the outcome might well have been different had the International Court of Justice pressed for access to the full archives, and legal scholars and human rights groups said it was deeply troubling that the judges did not subpoena the documents directly from Serbia. At one point, the court rebuffed a Bosnian request that it demand the full documents, saying that ample evidence was available in tribunal records. [...]

As part of its ruling, the court said that the 1995 massacre of nearly 8,000 Muslim men and boys at Srebrenica, a designated United Nations safe haven in eastern Bosnia, was an act of genocide committed by Bosnian Serb forces, but that it lacked proof in this case that the forces were acting under Serbia’s “direction” or “effective control.”

The ruling raised some eyebrows because details of Serbian military involvement were already known from records of earlier tribunal cases. For instance, evidence showed that in late 1993, more than 1,800 officers and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb army, and were deployed, paid, promoted or retired by Belgrade.

These and many other men, including top generals, were given dual identities, and to help handle that development, Belgrade created the so-called 30th personnel center of the general staff, a secret office for dealing with officers listed in both armies. The court took note of that, but said that Belgrade’s “substantial support” did not automatically make the Bosnian Serb army a Serbian agent.

However, lawyers who have seen the archives and further secret personnel files say they address Serbia’s control and direction even more directly, revealing in new and vivid detail how Belgrade financed and supplied the war in Bosnia, and how the Bosnian Serb army, though officially separate after 1992, remained virtually an extension of the Yugoslav Army. They said the archives showed in verbatim records and summaries of meetings that Serbian forces, including secret police, played a role in the takeover of Srebrenica and in the preparation of the massacre there.

I've meant to write about this in its own post, but couldn't figure out what else to say beyond spluttering in disgust. So rather than lose sight of it altogether, I'm just putting down a marker here. It seems to me there's a back story waiting to be reported on this. One involves the "controversy" of whether Serbia and Montenegro could be held to account under international law, since this "rump Yugoslavia" was not strictly the former republic of Yugoslavia (FRY) in and of itself. A second, deeper controversy involved some judges' 1996 opposition to the whole idea of holding nations -- rather than individuals -- accountable for genocide:

In [Judges Shi Jiuyong's and Vereshchetin's] view, the Convention on Genocide was essentially and primarily designed as an instrument directed towards the punishment of persons committing genocide or genocidal acts and the prevention of the commission of such crimes by individuals, and retains that status. The determination of the international community to bring individual perpetrators of genocidal acts to justice, irrespective of their ethnicity or the position they occupy, points to the most appropriate course of action. Therefore, in their view, it might be argued that the International Court of Justice is not the proper venue for the adjudication of the complaints which the Applicant has raised in the current proceedings.

A remarkable view for a judge on the International Court of Justice! This view didn't prevail in 1996, but it was co-authored by a judge (China's Shi Jiuyong) who was among the majority finding against Bosnia this February. As before, it seems to me that justice for Bosnians and Srebrenicans has foundered on legal pedantry and shortsightedness.

Starbucks Challenge, November 20, 2005 --- Just got a comment to this post alerting me to the documentary "Black Gold," by Nick and Mark Francis, about Ethiopian coffee farmers and their struggle to get a decent price for their crop:

Tadesse Meskela, the representative of the Oromia Coffee Farmers Cooperative Union in Southern Ethiopia, seeks to circumvent the global commodity exchanges by tirelessly traveling the world selling premium grade coffee directly to coffee roasters who will pay more for his high grade product and who support the idea of paying farmers a living wage. He returns the profits to the cooperative members who use the extra income to build the schools and infrastructure needed to develop their communities.

At the Cancun conference, one African delegate explains, “Trade is more important than aid.” Seven million Ethiopians are dependent on aid and Africa exports a smaller percentage of world trade today than 20 years ago - only 1%. If that figure only doubled it would represent 70 billion dollars, five times the amount of aid the continent receives.

Send some good thoughts Steve Gilliard's way, March 9, 2007 --- Mr. Gilliard is not getting better; a post-operative "system-wide infection" has him back in the ICU at his hospital. In addition to good thoughts, consider visiting his web site and clicking through on some ads, donating some money, or buying some of his handsome "Fighting Liberals" or "We Fight Back" t-shirts, coffee mugs or other items.


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NOTES: "Recruiting Plankton" item via Enrique Gili ("commonground"), who also linked my 2002 post (thanks); Human Rights Watch Wal-Mart report via Jonathan Tasini. Gilliard via digby and Avedon Carol.

posted by Thomas Nephew at 12:30:00 PM -- |