Ask a Stupid Question

Whoever said there are no stupid questions needs to familiarize themselves with Slate.com.

In "A blueprint for the closure of Guantanamo Bay" Jack Goldsmith and Benjamin Wittes tackle a tricky conundrum: how best to close Gitmo such that it may as well remain open? According to Goldsmith and Wittes there are some truly vexing problems facing Obama if he wants to close Gitmo, chief among them how he can continue to perpetrate human rights abuses and weild pre-Magna Carta powers. For them the closing of Gitmo is only acceptable if it's a purely cosmetic change.

In order to help the readers of Slate understand how best to maintain the status quo under the thinnest veneer of change they've prepared a list of moronic questions that entirely (and purposely) miss the point of closing Gitmo. I've selected a couple of the silliest ones for our reading pleasure.

Stupid question #1:

Under what theory can detainees who are not tried remain incarcerated?
Detainees convicted of crimes will be incarcerated for the term of their sentence. But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention.

"Under what theory can detainees who are not tried remain incarcerated?" Oy. (Insert sound of hand slapping forehead) This question can be reformulated as "Bill of Rights -- huh what's that?"

"But detainees not yet charged or who can't be charged must be held in some form of extra-criminal detention."

Because, you know, they're totally guilty. So guilty that we can't possibly try them for lack of evidence. The authors don't even entertain the notion that people who can't be charged with crimes should be released -- that would make closing Gitmo something other than a meaningless symbolic gesture.

Stupid question #2:

What about acquittals and short sentences?

How about "sucks" or "them's the breaks" or "yeah, what about them?" In a working justice system acquittals happen. But that is apparently unacceptable. Because, you know, these people are all totally guilty.

Any of the trial systems above might result in short sentences for or the acquittal of a dangerous terrorist.
[...]
This conundrum gives the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates. Should the government loosen the rules for trial to make convictions easier, or should it rely more heavily on noncriminal detention? Hard call.

Should the government railroad detainees through a kangaroo court or not even bother with trials at all? Hard call. Goldsmith and Wittes are pondering how best we can create a Justice system that maintains only the thinnest veneer of justice. The entire piece is devoted to keeping Gitmo open in spirit.

When Christopher Hitchens tackled the question "How Did I get Iraq Wrong" he answered with "I didn't." Similarly the answer Goldsmith and Wittes want to give to "What's the best way to close Guantanamo?" is "leave it open." But unlike Hitchens, who revels in iconoclasm, Goldsmith and Wittes are compelled to pay lip-service to shifting political winds.

At least the Hitchens approach is less weaselly.

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And Justice For Most

The new improved justice - less sense, nicer abs.

Judge Allred, after the sentencing of Osama Bin Laden's driver to 66 months minus 61 already served in captivity (also known as a whopping five months):

Mr. Hamdan, I hope the day comes when you return to your wife and daughters and country, and you are able to be a husband and father in the best sense of all of those terms.

Well that's odd. Surely that day comes five months from now no?

Whether that day will come, of course, remains unclear. Although the Bush administration insists enemy combatants can be locked up so long as the global fight against terrorism is under way, Hamdan's continued detention after Dec. 31, 2008, when his sentence ends, will become less sustainable politically in light of last week's verdict.

Oh.

There have been many legitimate complaints about the trial process at Gitmo. It's a thrown-together mess with much lower standards of evidence and procedure, designed to find defendants guilty. But the entire process appears to be a red-herring -- whether or not the defendants are released is not dependent on the results of the trials.

Had Hamdan been found guilty of all charges and sentenced to life the Pentagon would be crowing about how the system validated its actions. But because the sentence was dissapointing the Pentagon feels free to ignore it. Keep the guilty verdicts and ignore the not-guilty ones -- that's justice?

The true justice system is guilt by decree. We pick people up, we use the parlance of "illegal enemy combatants" to declare them guilty, then the rest is an afterthought. Once we've declared someone an "illegal enemy combatant" they are too scary and dangerous to be let go, even if a rigged trial system still disagrees with that conclusion.

That's the new justice, American style.

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Useless Democrats Excoriated

Pictured above: an erudite metaphor.

Democrats have once again caved to our historically unpopular President. Politely feign shock.

In this post I revisit something I explored in Useless Democrats Explained and The Democrats' Master Plan: the false notion that Democrats have done something politically expedient, offered up as either an excuse or a rationalization to soften the blow of another Democratic failure.

Weakness is Not a Virtue

The primary narrative employed against Democrats is that they are weak-willed appeasers standing in stark contrast to tough manly Republicans. Against that backdrop it's not political savvy to take actions that predictably lead to headlines like "Senate bows to Bush, approves surveillance bill." Although media narratives of Democratic weakness are often contrived this one is entirely accurate. Once again they have "caved", "capitulated" and "rolled over."

I was looking for examples of heroic behavior to contrast against Democratic actions and remembered the "Kneel before Zod" scene from Superman 2. Per wikipedia:

With this, General Zod's revenge on Jor-El seems complete, as he commands Superman to kneel before him, take his hand, and swear eternal loyalty to him. But Superman has not lost his powers a second time; instead, he has stripped Zod, Ursa, and Non of theirs while he remained safe in the molecule chamber. As he takes Zod's hand, he crushes it and then overpowers him, throwing him into an icy crevasse, where the general disappears into the mist.

I googled "kneel before Zod"+clip for a video clip of that scene to use here. The second result? The gloating Kneel Before Zod | Redstate about the most recent FISA capitulations, which presumably casts Republicans as the menacing Zod and Congress as those who compliantly kneel.

When Democrats and Republicans go head-to-head that is nearly always the presiding tone, that Democrats allow themselves to be dominated even though they have numbers and a mandate.

Democrats Turned Strength into Weakness

A typical explanation for Democratic capitulation is that if a terror attack occurs they will be blamed -- but they will be blamed regardless of their actions. Remember that Republicans blocked Democrats from extending the Protect America Act, an act Republicans previously argued was vital to our national security. Democrats were in a good position to make political hay off of a terrorist attack. (If you're into that sort of thing) Rather than push for an extension to the PAA while portraying Republicans as dangerous obstructionists Democrats instead decided to seek a "compromise" with existing Republican plans and painted themselves as the security lollygaggers.

Politically Savvy Actions Lead to Politically Favorable Results....Right?

The most obvious problem with the argument that Democrats cave due to "political realities" is that there is no evidence that these savvy actions are producing good political results. Here is the polling data for Congressional approval ratings. A graph would make a fun sled ride. Divining meaning from those numbers is difficult but they certainly aren't evidence of success. At Salon the Editor in Chief's current blog entry is "Betrayed by Obama", which runs on the front-page as "Obama's unforgivable FISA sellout." In various places Obama is being correctly labelled a dreaded flip-flopper for saying he'd filibuster any bill with immunity and then voting for this one. Most of the Democrats invested in this issue are strongly opposed to telecom immunity; Obama's actions here have induced a strong negative buzz that threatens to reduce voter turnout, donations and positive word of mouth. Meanwhile it's difficult to imagine anyone of any political persuasion donating more money and ethusiasm to his campaign thanks to this "compromise."

It's absurd to watch people argue that constant Democratic failures are a great strategy even as they generate mountains of negative press and dismal approval ratings, both among the party faithful and among the general public.

Conclusion

Once again Democrats have validated the narrative that they are soft and weak. They've squandered a politically favorable position that made Republicans look like irresponsible obstructionists and recast themselves as behind the curve on security. They've generated negative press and tarnished the image of their Presidential nominee. And despite protestations to the contrary there is no evidence that the Democratic master plan of kneeling before Bush is winning politics.

I suppose it's possible that without these constant capitulations Democrats and Obama would be doing worse in the polls. Given how sullied the Republican brand is though it's difficult to believe that rolling over for Republicans is good politics and I've seen no evidence that it is -- and not for want of looking.

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People Who Think We're Stupid

This guy... this guy is just pissing... he's pissing all over us. He's pissing on you. What does it taste like? Chief, what does it taste like, 'cause you know what, it tastes like piss to me.

But I'm pleased that in Title I, there is enhancement over the existing FISA law. Reaffirmation, I guess that's the word I'd looking for. A reaffirmation that FISA and Title III of the Criminal Code are the authorities under which Americans can be collected upon.

It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

There was broad consensus in the Congress that if a suspicious pattern of communications is found and a U.S. person is targeted, there needs to be approval granted by the FISA court. And, as Nancy Pelosi insisted, it needed to be established that the FISA law was the only way to legally wiretap an individual--in other words, under this law the Executive can't just go ahead and do it.

To review: FISA legislation specifically says it "shall be the exclusive means by which electronic surveillance...may be conducted." President Bush chose to ignore that and to this day claims that nebulous Article II powers give him the ability to perform whatever surveillance he wishes, regardless of the law. Now Nancy Pelosi, Barack Obama and Joe Klein (among others) tell us that we can rest easy now that we have reaffirmed the very exclusivity that Bush ignored in the past and reserves the right to ignore in the future.

Perhaps the next time we are capture a diabolic serial killer we should remind him that murder is illegal and yes, we totally meant it when we said it the first time -- then let him go free after wagging our fingers slightly. Problem solved!

At some point laws must be enforced but this Democratic Congress has proven repeatedly that it won't enforce the law. Impeachment was off the table from day one. Private citizens are allowed to openly flaunt subpoenas. Now Bush ignores FISA exclusivity without consequence.

Why will Bush honor FISA exclusivity this time around? Not a trick question.

Is Joe Klein dumb enough to believe that simply restating the exclusivity of FISA will prevent Bush from further wrongdoing? Perhaps -- he certainly is a dope about FISA-related issues. (As I've covered previously) Is Nancy Pelosi? I doubt it. Is Barack Obama? Almost certainly not. He cannot honestly believe that "reaffirming" the exclusivity of FISA has meaning. It's just a line to feed to the dumb American public -- AKA us. Up to this point I've been impressed at Obama's willingness to treat the public as something other than rubes and suckers. But the question here is "is he that stupid or does he think we are?"

Perhaps nobody ever went broke underestimating the intelligence of the American public, but feeding nonsense logic-free rationalizations to that public is hardly the politics of change.

Note: Hunter at DailyKos made a very similar set of posts, but similar to how Leibniz and Newton independently invented calculus this is an example of great minds thinking alike.

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Score One for the Unitary Executive

You may remember that in summer/fall 2007 the Bush Administration decided that the Office of Administration would retroactively stop responding to Freedom of Information Act requests. Now a court decision has validated that action. Citizens for Responsibility and Ethics in Washington, the paintiffs, explain the tortured logic of the decision:

In May 2007, CREW sued OA for records regarding missing White House e-mail and the office’s assessment of the scope of the problem. After initially agreeing to provide records, OA changed course and claimed it was not an agency and, therefore, had no obligation to comply with the FOIA. OA made this claim despite the fact that even the White House’s own website described OA as an agency and included regulations for processing FOIA requests.

[...]

OA has admitted that it functioned as an agency and processed FOIA requests until August 2007. Although CREW filed its FOIA request in April 2007 – four months before OA changed its position – the court found that OA had no duty to respond to CREW’s FOIA request because OA was never an agency in the first place.

The court found that the Office of Administation does not have "substantial independent authority" and exists solely to "advise and assist" the President. The intent of "advise and assist" is supposed to protect sensitive Presidential conversations, but in this case it was applied quite loosley:

Instead, OA’s charter documents and President Carter’s message to Congress make clear that OA’s function is to support, i.e., assist, the President indirectly [emph. in original] by providing efficient, centralized administrative services to the components within EOP.

This is a win for the theory of the Unitary Executive on two fronts. First it waters down the meaning of "advise and assist", divorcing it from its original intent. Second it further validates the notion that something that looks and acts as an agency, and is generally understood to be an agency even by its own employees, may not actually be one and can have its status changed at any time for the sake of convenience. (Or malfeasance).

According to the theory of the Unitary Executive the President is directly or indirectly in charge of the entire executive branch. Under that interpretation executive branch agencies are extensions of the President and no agency operates with "substantial independent authority" apart from the President. Currently the Department of Justice responds to FOIA requests, but if the "U.S. attorneys are emanations of a president's will" then presumably the DOJ can stop responding to FOIA requests at any time. If you accept the notion that executive agencies are merely appendages of the President then all of them can argue for exemption from the Freedom of Information Act.

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AT&T: Your New Branch of Government

For a while I've been meaning to write about the letter AT&T wrote to the House Committee on Energy and Commerce. It's a great example of how the application of State Secrets Privileges has widened to the point of absurdity:

Unfortunately, under current circumstances, we are unable to respond with specificity to your inquiries. That is because, on many issues that appear to be of central concern to you, responsive information, if any, is within the control of the executive branch.
[...]
Moreover, the United States, through a sworn declaration from the Director of National Intelligence (DNI), has formally invoked the state secrets privilege to prevent AT&T from either confirming or denying certain facts about alleged intelligence operations and activities that are central to your inquiries.

AT&T can't say anything at all to Congress because that information is just too darn secret to share with out elected representatives. That information is of course also too secret to reveal in court, even ex parte and/or in camera. (In the judge's chamber with only one party present) This is how it's supposed to work? A giant corporation mores know about what our government is up to than two of the three branches?

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One American Who Cares About Big Brother: Barack Obama

Update: Looks like I should have called this "Three Americans Who Care About Big Brother: Barack Obama, Hillary Clinton and John McCain."

This could not be more timely. I write a post about TIME Magazine's dismissal of privacy concerns, go to bed and wake up to news that multiple people accessed Barack Obama's passport file without authorization.

This is what TIME wrote:

In all the examples of diminished civil liberties, there are few, if any, where the motivating factor was something other than law and order or national security.

And here is what we heard today:

On three occasions since January, Sen. Barack Obama's passport file was looked at by three different contract workers, said State Department spokesman Sean McCormack.

The contractors accessed information in the file in an unauthorized way, he said.

I'm going to go out on a limb and suggest that this anauthorized snooping was not motivated by law and order or national security.

Time continued:

For now, however, civil libertarians will have to continue to argue that the danger lies not in how the government's expanded powers are being used now, but how they might be used in the future.

Or maybe we can point out how even narrower, unexpanded powers are currently being abused.

The FBI spied on Coretta Scott King out of fear that in her widow grief she would attempt "to tie the anti-Vietnam movement to the civil rights movement" -- as if that were illegal. MI5 spied on George Orwell for a decade because "This man has advanced communist views ... He dresses in a bohemian fashion both at his office and in his leisure hours." (Not the US but seems appropriate) We know these powers have been and will continue to be abused.

Do American Care About Big Brother? Well, we know that one fairly prominent one does for good reason.

Update: Sorry, did I say one? But seriously folks, somehow this just proves TIME Magazine's point that the pure-hearted thousands of civil servants and private contractors with access to our personal data are simply incapable of abuse. Somehow.

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TIME: Do Americans Care When We Tell Them Not To?

Original Ending to Se7en, rejected by test audiences:
Mills: "What's in the box?!?"
Somerset: "I don't know, I didn't open it."
Mills: "Oh -- probably a gift basket. Let's get lunch."
FIN

In an absolutely terrible thing TIME poses the question Do Americans Care About Big Brother? When I saw this thing I immediately sent an email to TIME pointing out a factual error. No response, no correction. When I woke up the next morning I saw commenters at TIME's Swampland discussing it and that Glenn Greenwald had already taken it to the woodshed. (Scooped!) I'm not going to repeat his complaints but I will call out the most important ones and take a slightly different angle on the thing in question.

What is this thing I'm reading?

What is this? It's not news; it doesn't contain any timely information. It's not labelled as opinion and is not written in a standard opinion style. I suppose it's "analysis" -- except that it contains no actual analysis.

The primary point of the "analysis" is that Americans don't care about Big Brother. But the article doesn't include a single verifiable fact or any data to support that conclusion. There are no polls cited, no anecdotal interview with a man on the street. Nothing. This is a standard ploy that many pundits have made a career of: speak for "Americans" when the author is really speaking only for themselves.

Regardless of ideology it's just bad journalism.

The conclusion is an example of self-fulfilling prophecy

Even if we grant the dubious conclusion that Americans are eager to trade away privacy for promises of security, that in itself is not surprising or meaningful. The media influences public opinion and media outlets including TIME have spent years excusing privacy violations while dramatizing the threat of the evil terrorists. In the pages of TIME Joe Klein has repeatedly lauded the NSA spying programs, calling them essential to national security even though he knows little about them.

The mainstream media has spent years telling us that 9/11 changed everything, including apparently the Constitution. Mike McConnell, who was caught lying to Congress about these "essential" programs, is still routinely quoted unquestioningly by the media and treated as a reliable source.

For some time after 9/11 most Americans believed that Saddam was personally connected to the attacks. If that's proof of anything it's proof that the government is good at propagandizing and that the media is a credulous enabler.

This TIME article itself makes arguments that Americans should be willing to trade away privacy for promises of security. Is it some sort of revelation if Americans exhibit an attitude that has been beaten into them for years? The article is a trend story that itself perpetuates the trend.

What's inside the box is probably not a gift basket

I won't belabor this point as Glenn covered in depth but without visibility into these programs it's pointless to say that they haven't been abused (which is still false anyway) as that observation is grounded in willful ignorance. The administration has argued that executive actions should remain secret to the point that not even Congress and the Court can know their details. Our information on these programs comes almost entirely from leaks and whistle blowers, which are rare in an administration that has elevated loyalty above competence and ethics.

Before the Walter Reed reporting we as a nation were unaware of the abuse and neglect of our veterans. Before Charles Savage wrote about signing statements few realized that the President was using them to legislate. Investigations into CIA black sites and Abu Ghraib disturbed our theretofore blissful ignorance.

There's one way to know what's inside the box: open it. There's one way to know the extent of abuse in these programs: investigate them. Relying on the administration to voluntarily disclose abuses is inane, especially given that investigators in the executive branch are "emanations of a President's will" with assumedly "no substantial authority independent of President Bush."

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Guilty, Not Guilty, and Now Introducing: Totally Not Guilty

Or: Why Arguments for Telecom Innocence are Irrelevant and Boring.

Proponents of telecom amnesty use the justification that telecoms are innocent. Typically I don't argue back; why should I? It's irrelevant.

These proponents have apparently invented the bold new "totally not guilty" determination. It works as follows: there are no rules of evidence and no evidence is presented. No testimony is given by any of the parties involved and there are no perjury laws in effect. The specific charges are not considered. There is no judge, no jury and no prosecutor -- only a defense advocate. This advocate may or may not have any relevant knowledge, legal background or familiarty with the case. They simply write that the defendant is totally not guilty and then they totally are, just like that. Of course, thanks to double jeopardy laws, once a defendant is declared totally not guilty they are immune from retrial in traditional court.

Sarcasm? Hardly. This is exactly what proponents of telecom amnesty believe: that it's possible to determine, without any sort of process, that a defendant is not guilty to the point where they don't have to show up in court and defend themselves to begin with.

Telecom amnesty proponents want the discussion to devolve into a confusing debate over selectively quoted and purposely misinterpreted court rulings and legal theories. These legal arguments are presented in non-legal settings to convince us that a proper legal setting is unessecary. Like the guy who's so good at crushing a whiffle ball off a tee with a little plastic bat that a major league tryout is a formality best avoided these amnesty proponents make such convincing arguments in press releases, blogs and and op-eds that they render court proceedings extraneous.

Maybe some day the totally not guilty determination will exist someplace other than in the minds of inventive authoritarians. I'll humbly suggest that until that day comes legal disputes should be resolved using a standard legal process rather than a convenient newly-invented one that amounts to trial by Wall Street Journal columnists.

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Wiretap "Compromise" in Works - Huzzah!

Ooh a compromise. Who can predict where this is heading?

The Washington Post reports that a wiretap compromise in forthcoming -- but for the life of me I can't figure out what the compromise actually is. Democrats are preparing to go along with the administration and grant amensty to telecoms while Republicans don't move an inch. That's compromise folks.

It's not hyperbole to say that for much of the beltway media words like "compromise" and "bipartisanship" have become entirely divorced from their commonly understood meanings. As David Broder made clear compromise and bipartsanship occur when and only when Democrats drop all pretense of opposition and do exactly what the least popular President in history asks.

The specific absurdity here is that the conflict is between people who seek to uphold the law and those who seek to undermine it, and the "compromise" is to wholly excuse law breaking.

A key congressional aide said that the issue is one that must be reviewed carefully, and a balance must be struck between appropriate court review and avoiding "protracted litigation."

Don't do the crime if you can't do the crime? This "key congressional aide" is arguing that a balance must be struck between enforcing the law and the rights of criminals to not be inconvenienced, let alone found guilty.

One has to wonder where else we can apply this brilliant logic. On one hand tax evasion is illegal but on the other hand fining tax evaders makes them frowny. Murder is illegal but that should be carefully balanced against the pain and suffering caused by jail time criminal prosecution.

It's amazing how few Democrats are willing to stand up and say "why are we comprising on following the law? Let's just follow it, end of discussion."

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Stuff Unworthy of Full Posts

Time for another roundup.

That Word Doesn't Mean What You Think It Means

From the State of the Union Address:

The Congress must ensure the flow of vital intelligence is not disrupted. The Congress must pass liability protection for companies believed to have assisted in the efforts to defend America. We have had ample time for debate. The time to act is now.

Believed? The most common justification given for telecom immunity is that the telecoms acted patriotically by responding to direct requests from the President. Surely Bush himself knows whether or not that is the case -- what's belief got to do with it? The answer of course is that Bush does know -- he's just not telling.

Makes you wonder though, if our belief is wrong and the telecoms didn't do anything at all then why exactly do they need immunity?

This formulation is not new. Administration officials ususally qualify their desciptions of telecom actions with "believed", "alleged" or a similar variant. They could simply tell us what the telecoms did, but that would run counter to their devotion to secrecy and misinformation.

---

This Sandwhich is a Matter of National Security

Three deep-cover operatives were killed bringing you this photograph of the top-secret government project known only as "Lunch Menu Item 5."

Casinos lobby government to ban internet gambling. Government complies. World Trade Organization cries foul. Government negotiates and resolves dispute. Intrepid go-getter Ed Brayton files Freedom of Information Act request to obtain copy of agreement. Administration response?

Please be advised that the document you seek is being withheld in full pursuant to 5 U.S.C. § 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.

In his previous post Ed Brayton wrote:

I have submitted an FOIA request for the full text of the settlement. There's no way they can legally deny that request, but given the Bush administration's secrecy fetish I'm willing to bet they'll at least try to stonewall it.

If anything he gave them too much credit. This is an administration that decided the Office of Administration was retroactively not subject to FOIA requests. The same administration that tried to retroactively classify public material. There's nothing this administration can't justify by appealing to national security concerns.

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Joe Klein Still Doesn't Get It

"I have neither the time nor legal background to figure out who's right."

When we last checked in on Joe Klein he and his Time editors were falling all over each other to correct, excuse and explain away the fact that he writes editorials without performing basic research and without understanding the relevant facts. You might think that after that embarrassment he would stick to writing about his area of expertise -- whatever that might be -- but you'd be wrong. What makes Joe Klein such a serious and respected reporter is his ability to compound errors with further errors and to bravely wade once again into issues that mystify him.

Joe Klein once again weighs in on the FISA debate. (It's worth reading the comments at the end -- his readers are on to him) His previous debacle taught him nothing about FISA but it did teach him a neat trick: instead of saying things that are misleading or outright false, he trots out others to do it for him. This way he is merely "reporting" rather than inventing.

Over the past few weeks, I’ve asked Constitutional Law professors from Harvard, Yale and the University of Chicago about the immunity provision. There are differences of opinion—no one is thrilled about immunity, to be sure—but the bottom line is, essentially, that this is a lesser issue diverting attention from the passage of an important law.

Joe Klein talks to some contacts of his and they all agree with Joe Klein. Amazing how that works out.

At the start of his piece Klein rattles off a list of issues that have "broad agreement among most members of Congress." But he never takes the next step in suggesting that Congress go ahead and pass a bill containing those broad agreements. If "no one is thrilled about immunity" Klein could write a piece admonishing Republicans for insisting on it-- but that's not the Klein we know and love. No, our Joe Klein is busy rounding up "experts" as clueless as himself who can join him in uttering a few half-hearted words against telecom amnesty before blindly supporting it.

So how big a deal is the immunity provision? In effect, it is a grandfather clause: it essentially says that telecoms should not be punished for acts that were illegal in the past but now become legal in the FISA reform bill. In other words, it would be like prosecuting a doctor in 1974 for abortions he performed before Roe v. Wade was decided. He had performed abortions when they were illegal, but they were now legal and therefore…what? None of the legal scholars I spoke with were sure how such cases had been handled in the past...[em. added]

His analogy is nonsense but beyond that look at the last line. The entire premise of his piece is that instead of offering his own uninformed opinion he will report on what his experts think -- but they are no more informed than Klein! Klein couldn't be bothered to perform his own research (didn't have the time nor legal background) and neither could his contacts. So now instead of having to listen to one ignorant and lazy pundit we have to listen to a handful. Much better. They argue that telecom amnesty is acceptable while admitting they don't know how it works.

Klein's experts aren't experts on retroactive immunity. Well surely they are experts on the immediate issues surrounding FISA right?

Barron, however, is opposed to lifting immunity for telecoms "because, going forward, you don't want to send the message that anyone has a free pass to act illegally on such a basic Constitutional question, even if they've been asked by the government to do so." Barron acknowledges that there are mitigating circumstances in this case: the country seemed under the threat of imminent attack in the months after 9/11, when these data-mining requests were made, and that such searches will now become legal under the new law. He suggests a compromise. The telecoms should not be granted immunity, but punitive damages should be waived if the cases are litigated.

How wrong are thee? Let me count the ways.

1. The warrantless wiretapping began prior to 9/11. "9/11 changes everything" is annoying enough even when it has some grain of truth, and this claim does not.

2. Klein constantly refer to "data-mining" without explaining what he means or how he knows that data-mining is all that occurred. It's hard to believe he even knows what data-mining is, given that he only speaks about it in shifting generalities.

3. "Such searches will now become legal under the new law" is entirely circular logic. Much of the debate is centered around the question of whether certain surveillance techniques should ever be legal.

4. While arguing that law-breakers should not get a "free pass" the proposed solution is just that: literally a free pass. Some compromise.

Joe Klein's experts are just repeating the same falsities and inane logic Klien himself employs to give his opinions a veneer of respectability.

Professor Cass Sunstein of the University of Chicago agrees that if no immunity is granted to the telecoms, there should be no punitive damages: "Huge damage awards would just be passed on to the consumers in any case." But Sunstein also believes that the importance of immunity has been blown out of proportion: "This is a terrible, mostly symbolic fight. The stakes are far lower than the level of noise suggests. The notion that essential civil liberties are at stake here is just an exaggeration. The important thing is to get the new statute right."

If "the important thing is to get the new statute right" then why are Klein and his allies pushing to pass a bill that includes provisions that "no one is thrilled about"? The argument that huge damages would be passed on to consumers could of course be used in defense of virtually any corporate misdeed.

So far Klein has done well in letting his experts make inane assertions on his behalf, but in true Joe Klein fashion he has to get in on the act:

But the NSA program, if operated under the legal restrictions imposed by an updated FISA law, is a crucial intelligence tool. It has the potential to prevent the next 9/11. (And indeed, it should be remembered that the actual data-mining is done by mid-level, apolitical NSA employees—political appointees of the Bush Administration have absolutely no legal access to the information and there have been, to my knowledge, no specific abuses reported so far.) If, for example, it is found that Bush administration officials were sifting through the NSA data to gain information on their political opponents, then they should tried, convicted and thrown in the clink for as long as possible....But there is no suggestion that they, or the telecoms, have done anything like that.

The Bush Administration and the telecoms in question have already demonstrated a willingness to break the law, and people like Joe Klein argue that they deserve no penalties for those illegalities; the argument that things will be swell if everyone follows the law to the letter is naive at best. Given that they already broke the law without penalty what makes this time different? A pinky-swear?

Klein pretends to speak authoritatively that only "apolitical NSA employees" are privy to data and that surveillance powers have not already been abused. How he knows these things is a mystery, especially given that he continuously gets even basic facts wrong. The reality is that nobody knows to what extent surveillance powers have been abused. The Bush Administration has repeatedly hidden behind state's secrets privledges and executive priviledge to avoid divulging information and telecom immunity would short-circuit the already difficult process of discovery through court proceedings.

Joe Klein has no idea what the administration has done so far; he has no interest in finding out and advocates policies that actively prevent those who are interested from further investigations. He's willing to see and hear no evil and wants to force us to do the same by law.

The entire thing is so disengenuos. The clueless Klein lines up equally clueless experts who all back up his opinion that we have to vote for a bill regardless of content or the terrorists will win. He writes editorial after editorial arguing that Democrats should cave and include nonsense provisions but he'll never argue that Republicans should stop politicizing national security policy and stop insisting on policies that even his own experts pay lip-service to opposing.

In Joe Klein's world it just has to be the fault of Democrats. That's his invented narrative and he's sticking to it. They should just suck it up and vote for bad bills because asking Republicans to vote for good bills is not proper decorum.

Just once I'd like to read a pro-amnesty editorial that didn't include falsehoods and purposely misleading rhetoric. I suspect it will never happen because the case for telecom amnesty is so anemic it's impossible to prop up without a relying on a loose relationship with the truth.

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On Language: Habeas Corpus and Constitutional Text

I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —
Alberto Gonzales

In a way Alberto Gonzales is quite right: the Constitution does not explicitly grant Habeas Corpus.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Of course, by that same logic Amendment I does not grant freedom of assembly, Amendment II does not grant the right to bear arms, Amendment IV does not grant protection from search and seizure, Amendment VII does not grant trial by jury and Amendment XV does not grant voting rights. (It's true -- read 'em!)

The completely naive defense against this clever rules-lawyering is that it sure seems strange to include passages in the Constitution with no meaning. But we are not completely naive. The Constitution is written the way it is for good reason. And if you aren't sure what that reason is Amendment IX provides a hint:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Constitution does not grant rights to the people as much as it grants rights and places restrictions on the government. When the Constitution was written the right to Habeas Corpus had already existed for at least 500 years, having been formally written-up in the Magna Carta of 1215.

The fact that the Constitution does not expressly grant certain rights (shorthand I am guilty of using) makes a powerful statement about the nature of those rights: that they exist before and outside of our modern government. Rights granted by the government can be repealed; intrinsic rights can not be. The government does not grant us poor peasants rights as it sees fit, instead we force the government to keep it's hands off our pre-existing rights.

You don't have to take my word for it. Federalist Paper #84 explains why the original Constitution did not include a Bill of Rights at all.

The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provisions in our constitution, are perhaps greater securities to liberty and republicanism than any it contains.
[...] The observations of the judicious Blackstone in reference to the latter [Habeas], are well worthy of recital. "To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British constitution."

Gee, Habeas sounds kinda important. But we continue:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.
[...]
It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. [...]
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Here we see exactly why Alberto Gonzales' words were a purposeful misrepresentation of the truth that should have gotten him impeached on the spot. The Constitution does not grant certain rights because the government cannot grant that which all people naturally already have. Nor can the government restrict rights it has no power to restrict. As we see above, Hamilton believed that including rights in the Constitution only allowed for the plausible fiction that the government decides what rights we possess at all, when it is the people who grant the government its rights, not the reverse.

Sadly the Bush Administration has an antagonistic view of the Constitution and the Justice Department works not to enforce it but to actively undermine it by purposely interpreting it as exactly opposite the intended meaning. Once again the familiar question arises: are they ignorant or dishonest?

Gonzales thought (or pretended) he was on to something when he pointed out that the Constitution does not explicitly grant Habeas Corpus, as if that justified the denial of Habeas rights. Nothing could be further from the truth, a self-evident fact for any good-faith actor with a basic understanding of the Constitution and its history.

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Alan Dershowitz is like totally opposed to torture

Alan makes a brilliant case for torture:

Recently, Israeli security officials confronted a ticking-bomb situation. Several days before Yom Kippur, they received credible information that a suicide bomber was planning to blow himself up in a crowded synagogue on the holiest day of the Jewish year. After a gun battle in which an Israeli soldier was killed, the commander of the terrorist cell in Nablus was captured. Interrogation led to the location of the suicide bomb in a Tel Aviv apartment. Israel denies that it uses torture and I am aware of no evidence that it did so to extract life-saving information in this case.

But what if lawful interrogation failed to uncover the whereabouts of the suicide bomber? What other forms of pressure should be employed in this situation?

We should torture because in Israel not torturing someone worked out great. Got it. A well-chosen example.

---

What does Alan mean when he says "I am personally opposed to the use of torture" in an op-ed promoting torture? Perhaps it would be better put as "I am opposed to personally torturing" or "I am opposed to being personally tortured." Either of those might make some sense.

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Bush and Perino, two small children

From the White House Press Briefing today.

Q Why is the President dodging a personal phone call to Musharraf?

MS. PERINO: The President has had his Secretary of State --

Q I'm asking you directly why doesn't he call him?

MS. PERINO: The President feels very strongly that President Musharraf knows exactly how he feels about the situation.

Q That isn't the point.

MS. PERINO: It is the point.

Q Dana, does the White House believe that Musharraf is now a dictator?

MS. PERINO: Look, I think that that is -- it's premature to say that. This is a President --

Q Well, why is premature when the First Lady --

MS. PERINO: -- who has worked closely with an ally in the war on terror, President Musharraf. We're doing two things with them: on the one hand, working cooperatively to take the fight to the enemy, to fight against terrorists; and on the other hand, trying to help President Musharraf and the other members of the Pakistani government to move along the path to democracy, because ultimately what's going to help solve this problem is a free society, a democratic society. And yes, President Musharraf, we believe, has made a mistake. We are gravely concerned about the situation. We are calling for an immediate return back to --

Q But wait a minute, why are you calling it a mistake? You seem to be giving Musharraf the benefit of the doubt.

MS. PERINO: -- we are calling for an immediate return to civilian rule, and we are in communication with them because we have a lot of cooperative interests. We have a broad relationship, and we cannot lose sight of the fact that we have very serious counterterrorism operations that are currently underway in Pakistan as well.

Q Why did -- the First Lady was very clear in her op-ed in The Wall Street Journal about Burma, Myanmar, saying it's a military dictatorship; what they're doing is wrong. We're not hearing the First Lady, we're not hearing the President being that sharp either on Pakistan. Why do you seem to be giving Musharraf the --

MS. PERINO: And what you have heard -- what you have heard from the President and this administration is that we were made aware that this state of emergency could possibly be declared. We have averted it before, in trying to work cooperatively with President Musharraf. This time the President of Pakistan decided that this is the direction he wanted to go in. We disagree with it. We want him to return to civilian rule. We want the normalcy of the democracy to come back. We're in the early stages of this crisis, and it's going to evolve. We're assessing the situation, and we're reviewing our aid packages.

Q But why is it evolving? It's been days that he basically said, no more constitution, and we're going to round up political --

MS. PERINO: We have condemned the action. We have condemned the action. We cannot support any means that are happening outside of the constitution. And that's why we are calling for him to return to the constitution. But remember, this is a country that we want to see democracy. There is a way to get them back on that path. It would be in the best interests of not just the Pakistani people but for people like those of us in the United States, who want to work with an ally in order to fight against terrorists.

Q But why should Musharraf believe that you guys are really serious about what you're saying from this podium when the President doesn't actually pick up the phone and call him to let him know personally? That carries a lot more weight than having Condoleezza Rice or somebody else talk to him.

MS. PERINO: Well, we disagree. The President has made his points very clear with Musharraf; he's had many meetings with President Musharraf. And Secretary Rice has delivered those messages. And we feel that we are going to keep pressuring them to get back to that rule of law, working with our Ambassador, Anne Patterson, who is in constant contact with President Musharraf.

Q It still does not carry the same weight as the President having direct contact with Musharraf -- (inaudible).

MS. PERINO: Well, I'll let you -- I'll let that be your opinion. I'll let that be your opinion.

Q But what is the tactic? I mean, what is the strategic reason for President Bush not to actually pick up the phone and talk to him?

MS. PERINO: I feel confident that the President is being well served and advised by his senior national security team. The decision has been made to have Secretary Rice be the one directed to have this communication.

Q Why shouldn't we see this as double standard? I mean, it's not the same standard as applied to Burma.

MS. PERINO: I can understand why that question would be asked, but I think everyone has to remember that we are in the early days of a crisis, looking at a country who had decided to try to move down the path to democracy in establishing freedom of the press, civil societies, improving the education system, the public health system, allowing for freedom of expression and assembly. Democracies take time to develop. It is not easy. And this is certainly a setback, and we're --

Q Well, they certainly don't have freedom of the press or assembly at the moment.

MS. PERINO: And we have called for a return to it.

Ben.

Q Dana, where does the review on aid stand?

MS. PERINO: It's still ongoing. It's early to say.

Q I mean, is there a sense of urgency to it? Do you expect any --

MS. PERINO: I can assure that people have been working on this ever since we had heard that the state of emergency may have been what he was going to decide to do, and early on -- early to mid last week that they decided to have Secretary Rice call once again to President Musharraf to make our feelings known. The aid review that you talked about is ongoing. It's interagency, and I don't have anything more on it right now.

Q And more broadly, you've outlined, again, the White House strategy of urging Pakistan to return down a democratic path, reviewing aid. But you also said yesterday that you shouldn't rush -- you shouldn't rush into a strong action.

MS. PERINO: I don't know if I said that. I said that we have to be mindful to make sure that we do not undermine any of our counterterrorism efforts. We have -- the President has to protect the American people. Pakistan is a country where extremists try to take -- are trying to take hold and have a safe haven, and we had to deny them that. And working -- we have been working with the Pakistani government, through President Musharraf, for the past several years on that.

Q What I'm wondering is, are you concerned at all of a world view that perhaps the White House response to this is too passive?

MS. PERINO: We -- I believe our -- look, our allies understand that we have -- that we have a problem here. It is difficult. The world is not tidy. It is certainly a difficult situation in Pakistan right now. But they also understand that we have counterterrorism efforts there. And I believe that the world community would understand that we would like to try to get him back on the path to democracy, to have the free and fair elections, for him to take off his uniform. And that's what we are going to continue to push to do.

Q Dana, may I quick follow, please?

MS. PERINO: I'm just going to go -- since you had a couple, I'm going to go back to others who haven't.

John.

Q Doesn't Musharraf's actions, in rounding up lawyers, judges, activists, people who have opposed him politically, doesn't that betray his stated reason for the state of emergency, which was supposedly to -- out of concern over Islamic militants? Does the White House perceive that --

MS. PERINO: Clearly we are very concerned that people who wanted to express themselves freely would have been put in prison. We would like for them to be released immediately. The common enemy that we all have are the extremists and the terrorists, and it's not just the extremists and the terrorists that want to attack Americans or other Western allies, but they have attacked the Pakistani people as well. That's the common enemy.

Q Has Secretary Rice or anybody else in the government engaged the Pakistani government on this level, saying, why are you arresting people, lawyers --

MS. PERINO: Yes, certainly. Ambassador Patterson and Secretary Rice have been very involved in it. And Steve Hadley has talked to his counterpart as well.

Q And have you had any feedback from the Pakistan government that talked about the Attorney General, about elections? Have they talked at all about --

MS. PERINO: I would say that we do not have official word, and we certainly don't have a date yet. So hesitant to say that for sure that those are going to take place.

Q But, I mean, have they talked about releasing any of those folks that have been arrested?

MS. PERINO: I have not heard that.

Bret.

Q Can you concede that the U.S. doesn't have the leverage that it once did over Pakistan? And perhaps the reason the President isn't picking up the phone is because it's easier to point out that Musharraf turns his back on Secretary Rice than it is to point out that he turns away from the advice --

MS. PERINO: No, the President feels strongly that he and Musharraf have had a good relationship in the past. They have worked well together to help prevent terrorists, as well as the President has helped him on the way to establishing a free and fair Pakistan, one that is democratic.

The United States is certainly a powerful country, and the President feels very confident that his feelings are well known by the Pakistanis, especially President Musharraf.

Q But as far as our leverage over what's happening in Pakistan.

MS. PERINO: I think that we are quite comfortable with where our leverage is. This is a situation where, look, the United States, we can be a powerful country; we can urge, we can provide aid. But Pakistan is a sovereign nation. And they made a decision that we disagreed with. We think it's a mistake. We'd like to see them move to democracy, because ultimately what they want is peace for their region and peace for their country, and that's going to come from democracy. This is a step backwards. And in order to get to that peace that they say that they want, and that we certainly would like to see, getting back on that path to democracy is the only way to do that.

This is how I used to act when my mom asked me to clean my room or eat my vegetables.

The rich thing about the Pakistan situation is that Musharraf has suspended the Constitution and is rounding up dissidents in the name of fighting terrorism; stealing a page right out of the Bush playbook. He's adpoted trademark GOP rhetoric, decrying "activist judges" while comparing himself to Lincoln.

This comes on the heels of Turkey justifying excursions into Iraq using similar logic: why surely Turkey must be allowed to defend itself from Kurdish terrorism!

The world has realized we've remodeled our house with glass. What are we going to say to Musharraf exactly? That jailing people without trial or counsel in the name of fighting terrorism is wrong? Does that admonition come with a cough and a snicker?

Turkey and Pakistan have learned from the pros. Make vague appeals to terrorism and you can justify anything.

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The Ironic Times - now with 100% less irony

From the wonderfully funny Ironic Times

Bush Pick for Attorney General Headed for Confirmation
Mukasey last piece in puzzle keeping Bush, Cheney from firing squad.

No attorney general under Bush is going to consider waterboarding torture -- because torture is illegal and we waterboard. Sometimes it really is that simple.

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Illegal spying began before 9/11

9/11 changed excuses everything

I have to admit this one surprised even me a little. (All emph. added)

A former Qwest Communications International executive, appealing a conviction for insider trading, has alleged that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal.

Former chief executive Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks, according to court documents unsealed in Denver this week.

There are a few major takeaways from this:

1. There is nothing we can't excuse by whoring out 9/11, even when they took place before 9/11.
2. Our government punishes companies for not breaking the law, while granting them immunity when they do - effectively reversing legal and illegal.
3. The efficacy of warrantless spying programs, which has never been evidenced in any way, now has more reason to be doubted as those programs did not prevent 9/11.
4. Once again, we've been misled about the nature of the NSA spying programs - surprise!

Glenn Greenwald had a great piece earlier this week on Joe Klein's defense of warrantless eavesdropping and telecom amnesty. Klein argues that the NSA programs are essential -- even though he has no idea what they do or how effective they are. There is literally no way he can argue that, so he doesn't argue it -- he merely asserts it as fact.

The current head of the NSA was already caught lying about the effectiveness of government surveillance, claiming that recent FISA changes helped catch terrorists in Germany only to retract those claims when pressed. There is no reason to believe that these programs work, or that they are limited to fighting terrorism. We don't know what they do, who they spy on, how broad they are or even what the purpose is. We don't know how many people are privy to the information gathered or whether that information is permanently archived. (Which would be yet another violation of FISA laws)

In short, we simply have no idea what is going on, and by "we" I include Congress and the courts, including the FISA court. Yet that doesn't prevent administration defenders from swearing that these programs are both vital and properly managed.

Qwest did what few telecoms had the courage to do: it asked the government to provide legal rationalization for demands that appeared illegal, and when the government declined it refused to play along and in so doing fulfilled its legal obligation. "What the President says goes" is not a law in our country. We are a nation of laws, not a nation that unquestioningly follows a supreme leader. Other telecoms chose to follow orders that appeared illegal, and now the administration is tacitly admitting their guilt by lobbying heavily for amnesty on their behalf.

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Just how dumb do they think we are?

This is how we know they're all terrorists.

Press Briefing by Dana Perino

Q And the protests, themselves, seem to have been stilled. What do you make of that?

MS. PERINO: Well, unfortunately, intimidation and force can chill peaceful demonstrations. And reports about very innocent people being thrown into detention, where they could be held for years without any representation or charges, is distressing;[em. added] and we understand that some of the monasteries have been sealed.

It's interesting that Perino specifies "very innocent people" instead of simply "people." That's probably because when we detain people without representation or charges it's because we magically know they're guilty.* Olberman: Those Aren't Terrorists, They're Monks

And todays winner of the worst case of moral equivalence evah has to be MSNBC's resident idiot Keith Olberman for comparing Burma's Monks to terrorists being held in Guantanamo.

People being held in Guantanamo and CIA black sites are bad guys and bad guys don't have rights -- it's in the Constisomething as well as the Magna Whatsit. Maybe you've forgotten how the justice system works. Here's a reminder:

1. Declare someone guilty of something.

* = Except when we eventually let them go without charging them with anything.

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This product contains 5% journalism

Media criticism is something I want to do more of. And now that I'm taking a journalism class, I can use my blog posts to double as homework in a stunning violation of ethics.

Our media is often guilty of pure stenography. Rather than providing readers with relevant facts or background information our "journalists" perform jobs that will soon be relegated to robots, writing as though they were transcribing videotape. And when then do stray from a rote just-the-immediate-facts approach it is more often to inject inanity and personal bias than to inform the reader.

The McClatchy take on Bush's UN address: "Bush astounds activists, supports human rights"

Speaking before the United Nations General Assembly, the president called for renewed efforts to enforce the U.N.'s Universal Declaration of Human Rights, a striking point of emphasis for a leader who's widely accused of violating human rights in waging war against terrorism.

Now the New York Times coverage of the same: "Bush, at U.N., Announces Stricter Burmese Sanctions"

Mr. Bush referred repeatedly to the declaration, citing its first article, “All human beings are born free and equal in dignity and rights,” as well as the 23rd, 25th and 26th articles, which call for access to employment, health care and education.

The declaration, a nonbinding resolution that was negotiated in 1948, calls on countries to protect a wide array of rights, including freedom of speech, assembly and religion, while prohibiting slavery, torture and arbitrary detention.

McClatchy chose to compare what Bush said to his previous actions, while the NYT played the part of credulous observer bereft of independent thought. Perhaps that is merely a difference in journalistic styles, or then again, perhaps not:

He said that there were no homosexuals in Iran — not one — and that the Nazi slaughter of six million Jews should not be treated as fact, but theory, and therefore open to debate and more research.

Mahmoud Ahmadinejad, the president of Iran, aired those and other bewildering thoughts in a two-hour verbal contest at Columbia University yesterday, providing some ammunition to people who said there was no point in inviting him to speak. Yet his appearance also offered evidence of why he is widely admired in the developing world for his defiance toward Western, especially American, power.

These are the first two paragraphs of the Times' coverage of Ahmadinejad's visit to Columbia University. Here the Times abandons the blank recitation approach, instead injecting the opinions of the piece writer. Later Ahmadinejad is accused of a "dodge" (rather than a "response") and his visit to New York is described as "dramatic theater".

Let's directly compare the Time's coverage of Bush and Ahmadinejad speaking to the UN:

Mahmoud Ahmadinejad, the president of Iran, said Tuesday that he considered the dispute over his country’s nuclear program “closed” and that Iran would disregard the resolutions of the Security Council, which he said was dominated by “arrogant powers.”

In a rambling and defiant 40-minute speech to the opening session of the General Assembly, he said Iran would from now on consider the nuclear issue not a “political” one for the Security Council, but a “technical” one to be decided by the International Atomic Energy Agency, the United Nations’ nuclear watchdog.

Once again the Time's piece contains an immediate value judgement by the author, that his speech was "rambling" and "defiant." Note that Bush's speech was not described as "poorly enunciated" or "hypocritical."

These small darts of negative opinion are featured prominently in the Time's coverage of Ahmadinejad, immediately biasing the reader. Thank God the NYT has the "courage" to attack a man widely portrayed as the next Hitler while refusing to issue any judgements about our own country and President.

Had the Times described Bush's speech to the UN as "rambling", "nonsensical", "hypocritical" or "in willful disregard to his own conduct and policies" they would be taken to task, hoisted up as examples as what is wrong with our media. But describing Ahmadinejad as "rambling", "bewildering", "defiant" (as opposed to, say, "brave") and claiming that his remarks provided "ammunition to people who said there was no point in inviting him to speak"? That of course is perfectly acceptable because it exactly parrots the views of Washington insiders and our administration.

Surely Steven Lee Myers, who wrote covering Bush's speech to the UN, is aware of our own human-rights violations. When he wrote that Bush cited the "Universal Declaration of Human Rights" it must have occurred to him that the US may itself be violating it. (We violate numerous articles) He cannot be unaware that, as he reports of Bush's complaints with arbitrary detention, that arbitrary detention is a US policy Bush champions.

Journalists who cover specific topics for a living have a much broader understanding of them than casual readers and have a responsibility to convey that knowledge through their writing. Refusing to provide context or address obvious questions is an abdication of that responsibility. Reporting what people say while ignoring their actions, actions the journalists themselves are well-aware of, is a service only to those who speak loudest and most often.

According to the NYT that Bush spoke in favor of human rights is news; that he didn't mean it, which is not merely a matter of opinion but is evidenced by his own words and actions, is not.

Here is how the Time's reported Ahmadinejad's complaints against the US:

Without mentioning the United States by name, Mr. Ahmadinejad used his speech to carry out a full-scale assault on the country as power-mad and godless. He said its leaders “openly abandon morality” and act with “lewdness, selfishness, enmity and imposition in place of justice, love, affection and honesty.”

“Certain powers,” he said in a thinly veiled reference to Washington, were “setting up secret prisons, abducting persons, trials and secret punishments without any regard to due process, extensive tapping of telephone conversations, intercepting private mail.”

Note again the immediately biasing language, that Ahmadinejad launched a "full scale assault" (a word conveying violence) on the US, calling us "power-mad and godless" -- which is not an actual quote from Ahmadinejad. Let's re-write the above in a way that is unbiased, factually accurate and informative:

Without mentioning the United States by name, Mr. Ahmadinejad used his speech to carry out an accurate attack on the US' numerous human-rights abuses.

“Certain powers,” he said in a thinly veiled reference to Washington, were “setting up secret prisons, abducting persons, trials and secret punishments without any regard to due process, extensive tapping of telephone conversations, intercepting private mail.”

Ahmadinejad said the US runs secret prisons and abducts people, but he didn't merely say it -- the NYT has confirmed it with its own investigations. The original NYT version gives the reader no way to evaluate the veracity of the statements when the NYT knows full well that the statements are accurate.

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Hypothetical questions

What would you do if Tim Russert asked you some incredibly stupid questions? (Purely as a hypothetical, of course.)

Hypothetical questions make sense when the scenarios posed are realistic. In the Democratic debate tonight Russert posed the following:

Imagine the following scenario. We get lucky. We get the number three guy in Al Qaida. We know there's a big bomb going off in America in three days and we know this guy knows where it is.

How do we "know" beyond all doubt that the person is a terrorist? How do we "know" a bomb is about to go off? How do we "know" that they know -- and that they will tell us accurately?

We "knew" that Khalid El-Masri was a terrorist -- until it turned out he had the bad fortune to possess a suspicious-sounding name. (For which he was kidnapped, tortured, then finally released without charge or apology) We "knew" that Jose Padilla was a dirty bomber and we tortured him to find out the nefarious details of his plot -- only to discover that he was not a dirty bomber at all.

Simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. -- Dick Cheney August 26, 2002

We know that Saddam Hussein is determined to keep his weapons of mass destruction, is determined to make more. -- Colin Powell February 5, 2003

Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised. -- George Bush March 18, 2003

There is no doubt that the regime of Saddam Hussein possesses weapons of mass destruction. As this operation continues, those weapons will be identified, found, along with the people who have produced them and who guard them. --Gen. Tommy Franks March 22, 2003

We know where they [WMDs] are. They are in the area around Tikrit and Baghdad. --Donald Rumsfeld March 30, 2003

That's a lot of "we know" and "no doubt" claims that turned out to be totally false.

If I know that torturing a suspected terrorist will reveal the details of an imminent bomb threat then instead of torturing I'll just use my Lasso of Truth to find out the details then race to the scene in my Invisible Jet.

The rest of you should consider the fact that if you can be wrong about who is a terrorist or where bombs are then...you can be wrong about who is a terrorist or where bombs are. The premise of the question is invalid; our government has proven that what it claims to "know" is only marginally related to actual truth.

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